US presence makes trial far from "normal"

[This is the headline over an article by Alistair Bonnington that was published on the website of The Journal of the Law Society of Scotland on this date in 2000. It reads as follows:]

At their media briefing on the eve of the opening of the Lockerbie case, the Scottish Executive were at pains to point out to foreign journalists that this was “a normal Scottish trial”.  With respect, “normal” is not an appropriate word for this case.  Not only is the High Court of Justiciary located in Holland, sitting for the first time in its history without a jury, operating under a procedure set out by an Order in Council, it has also departed from the normal practice of our criminal courts.  It emerged at that press briefing that the Scottish defence team would be accompanied by Libyan lawyers, and the Crown would have US attorneys sitting with them on the prosecution benches.

As the two accused men have been receiving advice on this case from Libyan lawyers for a number of years, their continuing involvement in the proceedings is hardly surprising.  However, the role of the US attorneys’ work with the Crown team is more difficult to understand.  The explanation for this may well lie in the heavy involvement of the American Office for the Victims of Crime (the OVC) in these proceedings.  This body, established by the US Congress in 1988, is part of the US Justice Department.  It is exceptionally well-funded, taking the proceeds of fines imposed by US courts in drugs cases.  In terms of the “Crime Victims’ Bill of Rights” which the OVC operates, the crime victim, inter alia, has a right “to be present at all public court proceedings relating to the offence... and the right to confer with an attorney for the government in the case”.  The enormous influence of the bereaved US families in this case has been obvious to even the most casual observer.  They are understandably anxious to learn the truth of how and why their loved ones died.  Some clearly hope for a conviction of the two men and, if this is secured, will be able to pursue civil claims against the Libyan Government through the American courts.  Congress has passed a law allowing victims of international terrorism to sue the “sponsoring state” for compensation.  Millions of dollars are arrested in Libyan banks in the US pending the outcome of these compensation claims.

Whilst the work done by the OVC may well be something that Scots law and other systems could contemplate following, it is difficult to escape the feeling that there are some elements of a private prosecution in the Lockerbie case as a result of OVC involvement.  To what extent US attorneys are taking part in the decision-making process of the prosecution team is unclear.  Certainly, if the Lord Advocate’s assurance that this is “an independent prosecution under the law of Scotland” is to be believed, their involvement must be supportive rather than dispositive.

From an international perspective, the involvement of both Libyan and US lawyers in “the Scottish court in The Netherlands” gives the case an unfortunate US v Libya flavour.  It is to be hoped at the end of the day that the unusual steps taken to involve non-Scottish lawyers on both sides of these proceedings will not detract from the value of what is being done at Kamp Zeist.  It would be sad if Scottish justice is judged by the world on the basis of a case in which there has been significant, albeit understandable, compromise of our legal system.