Scots law under the microscope

You can count on the fingers of one hand the number of high-profile Scottish criminal trials, but we are now due to have a Scottish trial which, for us, must rank as the trial of the century, the Lockerbie trial.  The two Libyans are charged with involvement in the largest mass murder in Scottish history: a total of 270 people died as a result of the destruction of Pan Am Flight 103.  The trial will be the first time a Scottish criminal court has heard a case outside Scotland.  This will be the first Scottish criminal trial involving serious charges which has had no jury.  The trial may well be the longest criminal trial in Scottish legal history; the present estimate is that the trial will run for a year.  And it probably will be the most expensive; the estimates, albeit unofficial, range from £30m to £50m.

On the evening of 21 December 1988 a Pan Am Boeing 747 en route from London Heathrow to JFK airport in New York suffered a catastrophic explosion and plummeted to the ground in the Borders town of Lockerbie.  All 259 passengers and crew on the plane and eleven local people died in the crash.  There then followed the largest police enquiry in Scottish legal history, ironically conducted by the smallest Scottish force, Dumfries and Galloway.

A Fatal Accident Inquiry was held in 1990.  In addition, the CAA Accident Investigation Branch investigated and reported on the circumstances.  It became clear that the tragedy was not the result of mechanical failure or pilot error, but was instead the direct consequence of an explosive device placed in luggage in one of the plane’s holds.

In November 1991 the Lord Advocate obtained a warrant for the arrest of Abdel Baset Ali Mohamed Al-Megrahi and Al-Amin Khalifa Fhimah on charges of murder, conspiracy to murder, and offences under the Aviation Security Act of 1982.  An indictment in similar terms was issued in the United States.  It is anticipated that the Scottish indictment, which in any case must be served within the statutory 80 days, will be served shortly and will specify the same three offences as the petition warrant of 1991.

Thereafter, the story makes less than happy reading.  The UK and US insisted that the Libyans stand trial in either Scotland or the United States.  Libya insisted that it could not, under its law, extradite its own nationals; and indeed that, under the Montreal Convention of 1971, it was entitled to report the two Libyans to its prosecution authorities, which it says it did.  Frustrated at the lack of progress, the UK and US governments used their position in the United Nations Security Council to have a resolution adopted requiring the two Libyans to be surrendered for trial and to have sanctions imposed on Libya when the two Libyans were not surrendered.

From then until August 1998, a staggering period of just under seven years, nothing happened.  Each side adhered to its position:  the UK and US that nothing short of trial in Scotland or the United States was enough, the Libyans that they could not extradite their nationals and, in any case, were complying with the Montreal Convention.

In August 1998 there was a change of heart on the part of the two governments.  They declared that they would accept trial in a neutral venue before a panel of Scottish judges under Scots law.  This compromise, incidentally, differed little from the deal struck in January 1994 between Professor Robert Black of Edinburgh University and Dr Ibrahim Legwell, then head of the Libyans’ defence team, that there be a trial in a neutral venue before a panel of international judges, with a Scottish presiding judge, under Scots law.

A process of negotiation ensued for nearly eight months in order to satisfy the Libyans about a number of concerns they had.  These centred on the security of the two Libyans once they were in the Netherlands, the neutral venue, and the location in which they would serve any prison term if convicted.  Eventually, after the intervention of President Nelson Mandela of South Africa and Prince Bandar, the Saudi Ambassador to the United States, Al-Megrahi and Khalifa Fhimah surrendered themselves for trial in a military airbase near The Hague on 5 April.  They were quickly extradited from the Netherlands to Scottish jurisdiction and arrived the same evening at Camp Zeist, a former American airbase near Utrecht, which, for the purposes of the trial, is a Scottish jurisdiction.  On 14 April they appeared separately before Sheriff-Principal Graham Cox QC for the second time and were fully committed.  No judicial examination was sought by the Crown.

The intention all along has been to make the Lockerbie trial as near as possible a normal criminal trial under solemn procedure, given the exceptional nature of the circumstances.  The Order in Council, allowing a Scottish court to sit furth of Scotland, specifically states that, except for necessary departures, the trial is to be conducted as if it were in Scotland.

The Order in Council is an interesting instrument.  Called The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order, it provides that in respect of Al-Megrahi and Khalifa Fhimah, and in respect of charges against them of murder, conspiracy to murder, and offences under the Aviation Security Act, “the High Court may... sit in the Netherlands”.  That essential provision of the Order, and the details of special rules applicable to this trial, may be novel enough, but there is more of legal interest.

The statutory authority for the Order is the United Nations Act of 1946, an unusual basis for subordinate legislation.  The reason for using this particular Act is that the UN Security Council on 27 August 1998 had called upon the UK “to take certain actions to facilitate the conducting of criminal proceedings under Scots law in the Netherlands”; that this call, made under article 41 of the UN Charter, is legally binding; and that the United Nations Act is the vehicle through which the UK gives effect to its UN obligations.  Constitutional purists might like to know that the Order was made “At the Court at Heathrow”.

The neutral venue for the trial is the Netherlands and therefore a Scottish court will be sitting abroad.  Or will it?  Under the agreement between the UK and Dutch governments of September 1998, the latter made available premises for the “Scottish Court”, but only “for the sole purpose, and for the duration, of the trial”.  The premises provided, Camp Zeist, are, if not part of Scottish territory, then at least part of Scottish jurisdiction.  The compromise to allow for the trial specified that the trial should be held before a panel of Scottish judges and with no jury.  While the absence of a jury in a trial under solemn procedure is a clear departure from normal practice, there are good and cogent reasons for it.  It would be wholly unreasonable to expect fifteen jurors to uproot themselves to the Netherlands for a trial which, on some predictions, may last for up to a year.  Also, and perhaps equally importantly, the defence teams - for there will have to be two - could be expected to make much of the fact that Al-Megrahi and Khalifa Fhimah have been the subject of enormous media attention, much of which states or implies that they are responsible for the Lockerbie tragedy.

There has been considerable speculation that, as in a normal criminal trial, the two accused might apply for (and, worse yet, be granted) legal aid.  It now seems clear that the defence costs will be met in full by sympathisers in the Arab world.

The three judges are to be appointed by the Lord Justice-Clerk.  One might have expected the task to fall to the Lord Justice-General, but Lord Rodger was deliberately not nominated for the task because he had previously been Lord Advocate and therefore responsible for all prosecutions in Scotland, including of course the prosecution of the two Libyans.  Lord Cullen, on the other hand, has not been involved in prosecutions and would be perceived as impartial.  The Lord Justice-Clerk is required to appoint an additional judge, who will sit with the court but will not vote in any decision.  The additional judge is intended to act if one of the judges becomes unable to act for any reason.

The court is to decide any question of law put to it by a majority.  At the end of the trial, the court will come to a verdict, again by a majority, and, if a conviction is secured, to pass sentence.  The court is then to give written reasons for the conviction.  There is explicit provision for an appeal, in which case the appeal court is to consist of five judges.  The normal trial/necessary departures basis of the Order in Council seems well served by these provisions.

There was a predictable media frenzy of interest at the beginning of April when Al-Megrahi and Khalifa Fhimah were flown to the Netherlands.  There was appreciably less interest for the two committal hearings before Sheriff-Principal Cox, but that was, perhaps, the result of journalists knowing that there was no story to cover.  The Lockerbie Trial Briefing Unit at Glasgow University was inundated with enquiries from journalists immediately prior to and after 5 April.  The Unit’s web-site (http://www.lawgla.ac.uk/lockerbie) had an enormous 25,000 “hits” a day during that period, but the number has now dropped to an average of 3,000 a day.  Of course, not all these “hits” were from the news media, but a substantial number were.

There is little doubt that there will be substantial media interest once the Lockerbie trial proper begins.  The question is, will this interest be sustained throughout the trial?  The answer must be that it will not.  In fact, news organisations are already making plans to cover the opening of the trial, thereafter relying on a “pooling” system or a news agency to provide copy as the trial proceeds.  Doubtless, these news organisations will be back at Camp Zeist in force for the verdict.

Of course, the matter is not helped by the normal Scottish practice of not allowing cameras in court.  A number of the larger news organisations, particularly the BBC, would like to cover the trial, presumably not live - who would want to watch wall-to wall coverage of a Scottish criminal trial?

But it is important in a trial of this magnitude which has already attracted interest from throughout the world that the general public are allowed to view at least highlights of the trial; and a permanent visual record of Scotland’s trial of the century is very desirable.  One would hope, but sadly not expect, that the court would allow recording of its proceedings as a matter of record, conducted by one organisation obliged to make its coverage available to all news organisations.  There is no doubt that American journalists who have spoken to the Lockerbie Trial Briefing Unit have great difficulty comprehending why the trial is not to be televised.  Whether televised or not, Scots law will be under the microscope - and, in this regard, the Scottish profession and the Scottish people have nothing to fear.  The trial will be conducted with decorum and dignity, with restraint and professionalism and without histrionics and theatrics.

Indeed, it will in all probability be a very low key, cerebral affair.  There is no jury to play to; and a bench of judges do not need to have evidential points driven home.  The trial will be scrupulously fair and the eventual decision, whatever it might be, will be based exclusively on the evidence.  It is a pity then that the world will not be able to see that.  Scots law is, however, on the map.  There are parts of the world, including England, which now know that Scotland has a separate legal system.  That will be reinforced and expanded as the trial proceeds.  It would be both churlish and insensitive to say that one of the benefits of the Lockerbie trial will accrue to the Scottish legal system.  That is not what the trial is about, nor should it be.  What is important is that those alleged to be responsible for the atrocity that happened over Lockerbie on 21 December 1988 should be brought to trial; the families of the 270 people who perished that night deserve no less.  It is equally important that the two suspects have their day in court; if they are not responsible for the tragedy, then they deserve to have their names cleared and to be freed from the house arrest they have been under for seven years.

Note: The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No. 2251

Professor John P. Grant, School of Law, University of Glasgow.