Lockerbie. When the rule book is thrown out
17 September 1996
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It is a cliche of modern life that when events of great significance occur, people remember where they were or what they were doing when the news broke.
My first experience of this was the freezing November night when I heard of the assassination of President Kennedy. I was nine. More examples followed: man landed on the moon (on holiday on the Isle of Iona), President Nixon resigned (nightshift at a vegetable packing factory).
And then the evening of 21 December 1988: I was winding down from work and preparing for Christmas when television news of a disaster at Lockerbie became news of a plane crash and then, apparently, turned into a report of mass murder on Scottish soil.
I followed reports of the subsequent investigation with interest and remember the aston- ishment with which I read Press reports in November 1991 of the issuing of warrants for the arrest of the two Libyan men accused of planting the bomb which brought down the plane in Lockerbie.
In Scotland, as soon as a suspect is arrested or an arrest warrant issued, press reports of the crime become relatively bland, no details of evidence are published and it is highly unusual for photographs of the accused to be released.
But in the Lockerbie case, the press seemed to throw the rule book out of the window. There were photographs, detailed analysis of the alleged evidence presented as fact, and a triumphant, congratulatory tone which indicated that the crime had been solved and only the irksome procedure of a formal trial had to be undergone before the men could be banged up in prison.
The normally restrained Scotsman newspaper repeat-edly described the issuing of the warrants as "the Lockerbie verdict" and used the term "gotcha" in a deliberate echo of The Sun's coverage of the sinking of the Belgrano during the Falkland's conflict.
Over the next two years, the media blitz continued. The United Nations imposed sanc-tions on Libya for refusing to hand over the men for trial. Remarkably, one of the conditions to be satisfied for the removal of sanctions was that Libya should pay compensation for the attack on Pan Am 103. What price the presumption of innocence?
Libya was regularly referred to as a sponsor of terrorism, of which Lockerbie was always mentioned as an example. The accused men were, and even now continue to be, described as Libyan intelligence agents - an allegation which they deny and would have to be proved by the Crown in any trial.
In August 1993, I was on holiday near Lockerbie when I was called back to Edinburgh for a preliminary meeting. Within weeks I was instructed to act for the two men accused of the bombing as their Scottish solicitor.
Over the next couple of months, I went to Tripoli twice to meet my clients. They were anxious to know as much as possible about the Scottish criminal justice system and how their case would be dealt with. They wanted to know what safeguards were in place to ensure they would receive a fair trial.
In particular, they were concerned about whether they could object to their being prosecuted because of what they perceived as prejudicial media coverage of the case.
I was accompanied by Lord Macaulay of Bragar QC, a leading Scottish criminal silk, and between us we guided our clients through the presumption of innocence, the standard of proof and the requirement for corroboration. We explained the need for evidence to, on the whole, be given orally and to be subject to cross-examination. We informed them that in Scotland the case of a defendant who has been remanded in custody must be heard within 110 days.
But this appeared to be unrealistic in this exceptional case, because the Crown had taken three years to obtain warrants for the two men, and had then had a further two years to get organised.
Under normal practice the defence would not be given even a provisional list of Crown witnesses until the defendants were committed in custody for trial.
These witnesses, who could number hundreds and be spread around the world, would then have to be interviewed. A defence case would have to be prepared and all this would have to be done in three-and-a-half months.
Anticipating this problem, Lord Macaulay and I met with the Lord Advocate to see if we could be given a list of witnesses in advance, with the accused still at liberty, so that we could begin preparation.
The Lord Advocate refused, stating that departure from usual practice was not justified. Our clients were not impressed, particularly when we explained the Lord Advocate's suggestion that we apply for a postponement of any trial and that the 110-day remand period could be extended. In other words, the accused could only have a properly prepared case if they gave up their right to a speedy trial.
On the question of prejudicial publicity, we explained a person who is indicted for trial in Scotland can take a preliminary plea to the competency of the proceedings against him based on oppression because of prejudicial publicity. If successful, the plea would result in the ending of the case and the defendant would have to be freed.
In deciding the issue, the court would pay regard to the gravity of the case, and therefore the public interest, the nature of the publicity, the timing of the publicity in relation to the trial, the risk of prejudice and ultimately whether the risk of prejudice was so grave that even careful directions to the jury by the trial judge could not reasonably be expected to remove it. No such plea in Scotland has ever succeeded, although in one or two cases where there has been prejudicial local media reporting, trials have been moved to a different location.
We pointed out to our clients that that they could not object to the Scottish proceedings against them unless they first surrendered themselves for trial in Scotland.
They wanted to know their options. We told them that if their plea was unsuccessful, they would simply be tried in Scotland. If their plea was successful and the Scottish prosecution was not allowed to proceed because of the prejudicial publicity, they would be freed with the risk that they would be re-arrested and taken to the US for trial.
They wanted to know if I thought such a plea would succeed in their case. I could give no such assurance. They were concerned that no jury in Scotland could approach their case free of the taint of the press coverage. They instructed me accordingly, and said they would not come for trial in Scotland or the US, but were prepared to be tried in an alternative venue, if one could be agreed upon.
When their instructions were made known, I was attacked in the press by MP Sir Nicholas Fairbairn QC.
He called me a disgrace to the Scottish legal profession and accused me of insulting the Scottish people, and said I should apologise publicly. He seemed to have assumed that I had told the accused that they would not get a fair trial in Scotland, when in fact I had never disclosed what personal opinion I held.
I was also criticised by the BBC's Scottish lawyer, who seemed to assert that, since a mechanism existed to test the accuseds' plea based on prejudice, therefore, ex hypothesi, they would get a fair hearing, even though they might not succeed in the plea.
This was nonsense. The accused were, indeed, interested in the fact of the procedure, but most clients take decisions based on the prospects of a successful outcome, not on legal theory. My clients were in the position of being able to choose whether to participate in the criminal justice game. Most people do not have that luxury.
So a stalemate currently exists. The authorities will not agree to a trial in another venue. The accused will not leave Libya and they cannot be lawfully ejected. The prospects for a trial ever taking place look remote. However, this is of no professional concern to me. I have no objective of "resolving" the Lockerbie case other than in accordance with my clients' instructions.
If the sanctions remain in place, if Western companies cannot resume normal business with Libya, if there is no public airing of the evidence, so be it. I am philosophical about whether a criminal trial, conducted under an adversarial system, would ever get at the truth anyway.
I believe our system is designed to "produce a result" not to reveal the truth. In the murky world of politics, diplomacy and international hypocrisy which has surrounded Lockerbie, the truth is likely to be an elusive objective.