1 June 2009

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.


  1. Very few students after five years remember anything that I said to them. Congratulations (commiserations?) on being an exception.

    Best wishes.

    Robert Black.

  2. Congratulations ona fair acknolwedgement of Bob Black and his long and important historical association with this case.

    From the day the two Libyans were accused the case has been 'bededvilled' by political aspects. The UK, USA, Germany, Malta and Lybia have all, at various stages been 'playing political games'.

    What the Herald pieces yesterday failed to report was the simple fact that at Megrahis' first bail hearing their Lordships did confirm that in the event of any preceived detrioration or change in his health - they WOULD underake a further hearing.(This is his leagl right).

    What confuses me (and I suspect) MANY others is the simple fact that the Defence have not lodged an application for bail based on the alleged medical report. Could it be that indpendent expert assessment instructed by the Court would not agree in it's conclusions.

    For the record,I do NOT accept Megrahi's guilt - I never have and I never will - the problem being he was iun the wrong place at the worng time.

    The man has been grieviously let down by his first defence team, his Government who could have done MUCH more than they have and lastly but most significantly Scottish Justice!

  3. Mr Megrahi wasn't in the wrong place at the wrong time. He was in the right place at the right time!

  4. The problem with the Lockerbie trial decision is similar to all those where the reputation of a State is at risk.

    Should the Zeist judges have found Al-Megrahi innocent, they would in effect have accused the intelligence services of two nations, and their nominated forensic scientists, of lying and planting of evidence.

    Where the democratic foundation upon which our civilisation relies is at risk, would any responsible judge risk his reputation and career by seeking the truth irrespective of the outcome?

    Such subconscious assumptions lie deep within the political and intelligence minds of all nations, and our legal representatives, no matter how much they may protest otherwise.

    Only when those responsible have retired or died, and the truth becomes "safe" over time, may miscarriages of justice be aired and challenged. History offers many such examples.

    Peter Biddulph, Worcestershire, England

  5. Barry Walker Appari,Ilocos Norte, Phillipines4 June 2009 at 10:58

    This was a very interesting article. The author touched upon the collegiate character of the Scottish (or indeed any) Judiciary.

    The author notes that the Lockerbie case was highly politicised but does not comment on the politicisation of the Judicial process itself by designing a peculiar Tribunal for this particular case created by a political agreement between Governments.

    I suspect the Scottish Judiciary consists of persons who are intensely conservative and whose unstated view was that a trial for murder should be conducted at the Edinburgh Assizes before a Judge and Jury and not before a panel of Judges at a converted military camp in the Netherlands.

    I suspect that collectively the Judiciary regarded “Camp Zeist” as an abomination. The author suggested that the Judges yielded to "an inchoate sense of pressure" in convicting Al-Megrahi. I very much doubt this but suspect the Judges were determined the defendants should gain no advantage from the precendent of negotiating the venue and form of Tribunal before which they would agree to be tried. I think the Judges were disposed to convict if they possibly could in order that the precedent of "Camp Zeist" would never be repeated. I suggest the verdict was not arrived at in isolation from the context of "Camp Zeist".

    The author also dealt in length with Lord Denning's argument that an Appeal should not be allowed because as it would open up the appalling prospect that if the Appeal was won it would be revealed that the Police had given perjured evidence.

    The 1990 Fatal Accident Inquiry into the Lockerbie disaster concluded that the “primary suitcase” arrived at Heathrow Airport unaccompanied on the feeder flight PA103A from Frankfurt.

    This conclusion was based on hearsay evidence given by the Lord Advocate’s Deputy and successor Andrew Hardie QC. This evidence was a repetition of the Police argument that purported to "prove" the primary suitcase arrived from Frankfurt while ignoring or dismissing compelling, indeed irrefutable evidence that the primary suitcase was at Heathrow before the arrival of flight PA103A from Frankfurt. Mr Hardie’s evidence committed the Crown Office and perhaps later the Judiciary to a version of events that was fundamentally untrue.

    In the Camp Zeist Judgement Their Lordships concurred with the prosecution case that the “primary suitcase” had begun its journey in Malta while admitting there was no actual evidence that it had. (Having concluded Mr Al-Megrahi was guilty on other grounds it followed that the suitcase must have been introduced at Malta.) However in doing so they completely undermined and dismissed the argument by which Heathrow had been eliminated. (Camp Zesit Judgement para.25). In essence they repudiated the sworn evidence of their fellow Judge Lord Hardie. Is this an example of the "Denningprinzip"?