Whence the Lockerbie Case leak?

On entering Edinburgh University’s School of Law in 2004, my first lecture was delivered by Professor Robert Black QC, and concerned the trial of Abdelbaset Ali Mohmed Al Megrahi. Convicted by a three judge panel in Camp Zeist, the Netherlands, anyone with half an eye on Scottish justice issues will be familiar with the extensive legal and political controversy surrounding the trial. Robert Black is convinced that – abstractly guilty or not – legally, Megrahi should not have been convicted on the evidence lead against him, beyond the standard of reasonable scepticism required. He has kept and continues to update a blog on the Lockerbie Case here.

Privately, other senior figures in the legal profession have suggested to me that, to their minds, a jury would not have convicted Al Megrahi on the evidence presented to the Court in the Netherlands. Implicitly, it is being suggested here that judges Sutherland, McLean and Coulsfield yielded to an inchoate sense of pressure, putting aside their doubts and convicting Megrahi. On either question, I am not particularly qualified to answer, not having reviewed the evidence. I simply report that it is a prevalent view in the dusty corridors of Scottish legal discussion.

Of course, we should bear in mind that other jurisdictions habitually try criminal cases employing only judges. Appeal courts regularly set aside lower courts findings of fact. The criticism implied by changing decisions or substituting a different ruling on appeal is undoubtedly less sharp when it is simply a general fact of legal life. Scotland is different. The exceptionalism which saw Megrahi tried without a jury seems to have erected barriers of embarrassment. In its structure, the High Court of Justiciary is collegiate. To recognise that one’s colleagues “got in wrong” would be dreadfully to undermine the whole College of Justice. Better to encourage quietism, and leave Megrahi where he is. So, in half-articulated whispers and furtive conversations, some suggest the "Lockerbie problem" should be dispensed with.

This is Denningprinzip, a haunting refrain recalling the much overrated Alfred Denning, who suggested in McIlkenny v. Chief Constable of the West Midlands [1980], dismissing allegations of police brutality against the “Birmingham Six” that we should all:

“Just consider the course of events if this action were to go to trial … if the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose. If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal … This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go any further. They should be struck out.”

A vile canon for judicial action, that, which gnaws at the very bowels of the rational basis for our regimes of legal regulation. That somewhat extended interlude aside, I read with interest in the Herald this morning that they have “seen” a confidential and private clinical psychiatric assessment of Megrahi, outlining his fragile emotional condition. As some of you will recall, Megrahi has a cancer of the prostate. He misses his family. The obvious question is 'who decided to make the Herald’s Lucy Adams a gift of this private document?' The most obvious answer is, I think, the Libyan consul, who is credited in the newspaper as the commissioner of this psychiatric opinion. All under the table of course, plausible deniability centre stage. This must be seen in the context of an earlier appeal of 2007, where Megrahi sought bail from prison while his appeal is being considered. The Court of Criminal Appeal turned him down, saying that:

“The critical question, as the court sees it, is, against the background of the atrocity of which the applicant stands convicted, whether the applicant's health, present and prospective, is such that the Court should on compassionate grounds now admit him to bail. On balance the Court is not persuaded, on the information before it, that it should. While the disease from which the appellant suffers is incurable and may cause his death, he is not at present suffering material pain or disability. The full services of the National Health Service are available to him, notwithstanding he is in custody. There is, it appears, no immediate prospect of serious deterioration in his condition. The prognosis for its development is at present uncertain. If he responds well to the course of palliative treatment which he has now started, his life expectancy may be in years. If he does not respond well, that expectancy may be less good. While recognising that the psychological burden of knowledge of an incurable fatal disease may be easier to bear in a family environment than in custody, the Court, having regard to the grave nature of the conviction and taking into account the fact that a reference has been made and the fact that the appeal process is likely to be protracted, is not persuaded that the stage has been reached when early release is appropriate.”

That judgement obviously leaves the door open, and clearly recognises that “the stage” may be reached where Megrahi might be bailed during his appeal proceedings. Alternatively, the report could be regarded as a “softening up” of public opinion for a future prisoner transfer, by humanising the man and his suffering. Alternatively, it may just be a piece of intrusive journalism, gawking at a sick man through the bars, fingering thoughtlessly through the sorry details of his private well-being.

Generally, it strikes me as a deliberate, as opposed to an accidental piece of information diffusion. Either way, I'm sure that the Scottish judiciary would be relieved if the matter could be disposed of more discreetly - leaving questions about the justness or fairness of the initial conviction in 2001 - quietly unanswered. I only hope that the College of Justice vindicates its title, and doesn't let the enervating tendrils of Denningism throttle due process in Scotland.