Lockerbie trial: the human rights dimension

The Lockerbie trial will also be of note for another reason: it is likely to be the first high-profile case in which the prosecution will be bound by the terms of the European Convention on Human Rights.  Incorporation of this treaty will occur in stages, and in Scots law in advance of English law on account of devolution.  The first of these stages (and for the trial, the most significant) came on May 20 when the Lord Advocate formally became a member of the Scottish Executive and thus (along with the whole system of public prosecution) became bound by s 57 of the Scotland Act.  This provides that no member of the Scottish Executive has any power to do any act which would be incompatible with an individual’s rights under the Convention.

Ensuring compatibility with Convention requirements in the conduct of prosecutions may require reconsideration of existing policies and practices; and ultimately, it may require some modification of statute.  The impact of the Convention is likely to be much more dramatic in Scotland than in other parts of the United Kingdom; while in England and Wales and in Northern Ireland the courts have long used the Convention as an informal source of law in helping shape the development of the common law and in interpreting ambiguities in statute, references to the Convention have been rare in Scots law, largely on account of two decisions of the Court of Session some two decades ago.  Recent dicta in a decision by Lord President Hope sought to encourage the courts to bring Scots law into line with the other legal systems in the UK (and in Ireland, and in the Nordic countries which only recently also incorporated the Convention).  However, use of the treaty in legal argument pending formal incorporation has been minimal.  In March, however, the High Court of Justiciary indicated in a case involving the imposition of a discretionary life sentence that it would begin to take Strasbourg jurisprudence into account, even although relevant recent developments in European caselaw were not cited by either side.  The result is that Scots lawyers have not been encouraged to have much understanding of the Convention: and thus the number of Scottish applications to Strasbourg has been relatively few.  While the United Kingdom is one of Strasbourg’s “best customers”, to use the euphemism, the vast bulk of these cases have originated outside Scotland.  Central and East European legal systems signing up for the Convention have the benefit of a “compatibility study” before ratification in efforts to pre-empt challenges to law or practice.  Scots law, though, will be denied this opportunity; in the context of criminal law, most of the scrutiny of compatibility may come through daily challenges in the courts up and down the land.

And in the court in Camp Zeist.  A number of guarantees at first glance appear of possible relevance.  First, the question of time.  Article 5 provides for “trial within a reasonable time” or for release on bail pending trial where an accused is in custody.  This is best seen as a guarantee against prosecutorial inactivity, and (in continental systems of inquisitorial justice in particular) as imposing a duty upon the state to review whether the reasons for continuing deprivation of liberty pending trial remain relevant and sufficient.  Scots law prides itself on its guarantees of speedy justice.  The problem in the instance of the Lockerbie trial could be not with prompting the prosecution into action (as has often been the case on the continent) but in restraining it (or the trial court’s) impatience to get started.  Article 6 provides for adequate time for the preparation of the defence.  “Equality of arms” is the crucial principle at stake.  The 110 day rule can, of course, be extended on the application of the defence; and multiple applications for extension are conceivable until the defence is as well prepared as is the Crown which has had years rather than months to prepare a case of considerable complexity.

It is deeper in Article 6 that more complex issues arise.  Not only must the defence have adequate time for the preparation of the case, it is also entitled to adequate facilities.  The guarantee also provides that an accused is entitled to obtain the attendance and the examination of witnesses on the same conditions as witnesses for the prosecution.  Again, the fundamental principle is that of “equality of arms” between both sides.  In the context of a case with (to put it mildly) strong suspicions of political and international intrigue where the Crown will wish to keep the shadowy world of intelligence gathering deep in these shadows, Article 6 will arm the defence with arguably new and much stronger rights.  As interpreted by the Strasbourg Court, this guarantee imposes a duty upon the prosecution to advise the defence of the results of its investigations; but it does not go as far as requiring the prosecutor to allow unlimited access to its files.  Further issues will arise if the prosecutor seeks to make use of intelligence agents during the course of the trial.  While the Court has recognised that the protection of vulnerable witnesses who give evidence in a court by use of various “screening” devices may be appropriate, Article 6 does require a case-by-case approach to ensure the reasons for any special treatment of a witness are relevant and sufficient and achieved by the least onerous method.  The right to confront witnesses must not be impaired to any substantial degree.  Any rule of evidence which allows the trial court to draw inferences from an accused’s silence, too, will require to be handled with particular care to avoid any weakening of the presumption of innocence which Article 6 protects.

Adequate time and facilities for preparation of the defence also presuppose adequate resources provided by the state, and Article 6 also guarantees the right of an accused with insufficient means to pay for legal assistance to the provision of legal aid “when the interests of justice so require”.  The UK Government will certainly be mindful of the three Scottish cases challenging restrictions on the availability of legal aid at appeal stage: in each case, shortcomings in domestic law and practice were found to violate Article 6.  Free assistance in court has also to be provided where an accused “cannot understand or speak the language used in court”.  All of this does suggest that the financial burden upon the state may potentially be a significant one, again bearing in mind the complexity of the case and the time in which the state has had to prepare its case.

The trial will bring the operation of Scots law under the spotlight of external scrutiny.  The watchdog role of the media in ensuring justice is done presupposes access to courts; and Article 6 in turn reflects the importance of ensuring that the press (and the public at large) have such a right, unless “to the extent strictly necessary” in the court’s opinion this should be restricted to prevent publicity prejudicing - the interests of justice, or where some other countervailing state interest is appropriate (such as protection of national security).  USA broadcasters in particular may misunderstand the absence of facilities for televised proceedings; but no independent right to such opportunities exists within the scope of Article 10’s guarantees of freedom of expression (in contrast to the approach which has been taken in American courts in interpreting the First Amendment).  In any case, the Court has suggested that the primary interest in public access to a trial court belongs to the accused: in other words, where an accused has agreed to any prosecution suggestion that a trial be held in camera, it would be difficult for him subsequently to claim a violation of Article 6.

Ultimately, the trial may also be subject to the scrutiny of international judicial proceedings in Strasbourg.  Incorporation of the Convention was in part designed to pre-empt successful European challenge; and growing awareness of Convention requirements within domestic law is now of some importance in (at least) the criminal courts.  The Lockerbie trial may well allow issues of Convention guarantees to be raised by the defence but given a much greater audience that few other trials could ever achieve.  That few (if any) of these challenges raised are ultimately successful is beyond the point: the Lockerbie trial may well serve a secondary purpose of bringing the importance of human rights home to legal practitioners as well as the public.

Professor Jim Murdoch, Head of the School of Law, University of Glasgow