Scotland will argue that any future trial relating to the Lockerbie bombing should be conducted under Scots Law before Scottish judges.
Outgoing US Attorney General William Barr appeared to stake his country’s claim by announcing, just before he left office last month, that efforts would be made to extradite and try two more Libyans.
But well-placed sources in law enforcement have revealed that Lord Advocate James Wolffe QC believes that while both Scotland and the US can claim jurisdiction as both countries lost many citizens, Scotland has the greater claim.
Abu Agila Mohammad Masud, allegedly bomb-maker for the late Libyan leader Muammar Gaddafi, and Abdullah al-Senussi, former intelligence chief and Gaddafi’s brother-in-law, are the untried suspects.
Mr Barr was Attorney General in 1991 when the blame for the Lockerbie bombing, which claimed 270 lives on 21 December 1988, was first shifted from Iran to Libya.
In virtually his final act in his final stint as Attorney General, he again put the spotlight on Libya, and appeared to presume the US would lead efforts to prosecute either or both of the suspects.
One source said: “It’s early days but already there have been discussions among senior figures in the Crown Office and the Lord Advocate seems to have arrived at a position where he would not be happy to see the US lead on this.
“Both countries lost many citizens, but the crime happened over Scottish soil. Primacy has to be decided, but our argument should be the stronger.”
He added that it was unlikely a Scottish trial would involve a jury and would be more likely to follow the precedent established by the trial of the late Abdelbaset Ali Mohmed Al Megrahi, the only man convicted of the atrocity.
He and his co-accused, Lamen Khalifa Fhimah, who was acquitted, were tried under Scots law in the Netherlands, a neutral third country, by a panel of three Scottish judges without a jury.
The source said: “Lockerbie was a unique event in Scottish criminal history, and the extraordinary measures taken were partly out of necessity to persuade the accused they would have a fair trial.
“If there were to be a second trial, it would be very unlikely that ordinary people would be put under pressure to decide a trial involving international terrorism.”
He added that only two of Scotland’s current crop of High Court judges had no prior involvement with Lockerbie – five are currently considering a posthumous appeal brought by Megrahi’s family – but more judges could be appointed.
Robert Black QC, Professor Emeritus of Scots Law at Edinburgh University and the architect of the first trial in a neutral country, said that Libya would be far more likely to co-operate with Scotland than the US.
He said: “There is no way Libya could be seen to send one or more of its citizens to be tried abroad in a country that has the death penalty.
“There would also be an absolute certainty among Libyans that America would find a way to convict.
“We did not cover ourselves in glory with the conduct of Megrahi’s trial, with so much evidence that would have helped his case being withheld from the defence, but I still think Libya is more likely to trust Scotland than the US.”
Dr Jim Swire, who lost his daughter Flora on Pan Am 103 a day short of her 24th birthday, marked the 32nd anniversary last month by saying he was sick of the ‘charade’ of blaming Libya.
He said: “I have already written to William Barr warning him that if the US persists on pursuing a second trial against Libya for Lockerbie, he’d be as well building a palace on the slopes of Mount Vesuvius. It will crumble soon enough.”
He argued that the International Criminal Court would be the only tribunal that could guarantee a fair trial.
He added: “Any future prosecution certainly should not be in the hands of US prosecutors. The accused would not get a fair trial, and you cannot have that when the death penalty is likely to follow.
“The prosecution of Megrahi was a disgrace, but at least he was treated humanely and when diagnosed with advanced cancer, he and his family were shown compassion and he was allowed to go home to his loved ones.
“The Americans would not have allowed that.
“Scottish and American prosecutors need to stop posturing. None of the evidence they used against Libya stands up to scrutiny, yet they persist when there is a much stronger case against Iran.”
The Crown Office said it had no comment to make ‘given that the Scottish criminal investigation is ongoing and there is an appeal before the court in relation to this crime’.