Lockerbie trial: telling it like it is

Last month’s preliminary hearing in the Lockerbie case at Kamp van Zeist in The Netherlands was the moment when the two accused men faced their prosecutors for the first time in a public court.  For that reason, what would normally be regarded by the media as an excessively boring court case dealing with questions of competency and relevancy drew print and broadcast journalists from all parts of the globe.  They crowded into the partially-converted recreation hall at the former American airbase to sit in plastic chairs and hear Senior Counsel debate some of the most obscure areas of Scots criminal law.

But the hearing should not be seen simply as a dramatic confrontation between the Lord Advocate’s team and the two Libyan suspects, Megrahi and Fhima.  It should also be seen as the beginning of world-wide and unprecedented interest in Scots criminal justice.  That interest could itself lead to confrontation if not handled correctly.

Fate, and the vagaries of electronic devices, have decreed that one of the smallest legal systems in the world should have the task of dealing with one of the most horrific acts of modern international terrorism.  Coincidentally, this occurs at a time when meaningful moves are being made in the setting up of an international criminal court which in future may be the forum for cases like the Lockerbie prosecution - the hijacking of the Air India plane over Christmas is an example of the kind of terrorist act which might well go to such a new court in the future.  Doubtless, the Lockerbie case will be studied with care by those involved in the setting up of this new and sadly necessary addition to the court systems of the modern world.

To all this has to be added the factor of the enormity of the human tragedy involved.  This is not only the largest mass-murder trial in Scottish legal history, it is also one of the most significant to be tried anywhere.

Taking all this into account, it is perfectly clear that, starting in May, the eyes of the world, particularly the legal world, will be turned on the Lockerbie Trial and Scots justice.

The Lord Advocate himself recognised this when announcing the deal which was to bring the two Libyans to Holland to stand trial before a Scottish court consisting of three judges sitting without a jury. He said he welcomed the international scrutiny of the Scots system and had no doubt that it would not be found wanting by observers.

Most Scots lawyers agree with the Lord Advocate’s sentiments.  We are proud of our system and believe that it truly does “fairly try the accused according to the evidence”.  But is it, in the modern media world, with the explosion of instantaneous information technology, enough to sit back and assume that the system will speak for itself?

It is no accident that nowadays not only every Government but every substantial organisation has people who are appointed to communicate with the public on their behalf. Communication inevitably takes place through the medium of journalists.  Although recent experience in this country has made many think that the individuals given this task are “spin-doctors” whose basic remit is to prevent the truth from being discovered, in reality the vast majority simply have the task of providing journalists with accurate information from which to write newspaper stories and prepare radio and television broadcasts.  Experience shows, as journalists tend not to be specialists, that in more complicated areas of life reports will become confused if this service is not provided.

The Lockerbie case deals with extremely complicated legal issues. The first charge of conspiracy to murder appears to be a highly unusual libel, even to experienced lawyers.  The preliminary debate at Kamp Zeist on 7 and 8 December was ably and closely argued by Senior Counsel, who occasionally lapsed into French, German and Latin.  For all but the specialist court correspondents in the group of 50 or so journalists present in the courtroom, they might as well have been speaking Mandarin Chinese.  What the two accused gleaned through their interpreters goodness only knows.

The result of all this was that the journalists were desperate for information as to how to interpret the proceedings for their readers, listeners and viewers.  Although the Scottish Executive Press Office were present for the purpose of accrediting journalists, they were under instructions not to give any briefings.  That is quite understandable and proper.  The Lord Advocate is one of the Ministers of the Scottish Executive served by that Press Office.  But he is also prosecutor in the case.  The conflict for the Press Office were they to try to brief is clear.

However, no information service is being provided by Scots lawyers to the international journalistic community except for that provided by the Glasgow University Law School Lockerbie Trial Briefing (LTB) Unit.  My presence in Kamp Zeist in December was as a member of that group.  Since it was set up by Professor John Grant in April 1998, the LTB team has given seminars to non-Scots lawyers and journalists in Glasgow, Edinburgh, London, Washington DC, Portland Oregon, and now Kamp Zeist.  The LTB Handbook, produced in 1998 (with the backing of the Law Society of Scotland) has gone to news desks all over the world.  The LTB website has at certain times had over 50,000 “hits” per day.  The Handbook is soon to be produced in a second edition to reflect the current circumstances of the case.  At Zeist, three of us from that team were inundated with queries from the journalists there.  We were interviewed by every European and American newspaper, radio and television station I have heard of, and a few I have not heard of.  We were offered money for interviews - which we did not take!  I do not think it is too arrogant to say that, if we had not been there offering briefings and advice, there would have been a great many misunderstandings printed and broadcast all over the world about Scots law and this hearing.  It does seem a little unfortunate that, when through the tragic circumstances of the Lockerbie case, Scots law is to have its window on to the world, so little has been done to provide an information service in order that it can be properly understood.  The need for a straightforward, impartial, unbiased source of information has been amply demonstrated by LTB experience over the past 18 months.  Were this trial taking place under English law, there can be little doubt that a media machine would have been put in place by the Lord Chancellor’s Department to deal with the world’s journalists.  The LCD would have been free of the conflicts which beset the Scottish executive and make provision of such a service here impossible. The Lockerbie Trial is not only about three Scottish judges judging the accused men.  It is also about the Scottish legal system being judged by the international legal community and world-wide public opinion.  It would be sad if, in this unique situation, Scots law is misjudged due to lack of a proper information service.

Separately, it is inevitable that throughout the course of the proceedings there are going to be difficulties with journalists reporting certain aspects of the trial.  For example, although they rejected the accused’s case against the Sunday Times in August of last year, the judges made it clear that there could still be situations in which media reports amounted to contempt of court.  Although it would be unprecedented in Scotland, might it not be sensible for the judges to consider the possibility of an informal explanatory briefing for journalists the day prior to the commencement of the case?  This might seem beneath the dignity of the court but there is relatively recent precedent for this in England.  Sir William Macpherson of Cluny, who presided over the Stephen Lawrence Inquiry, also presided over the trial of Robert Black at Newcastle Crown Court.  The accusation against Black that he abducted and murdered three young girls drew phenomenal media interest.  Sir William, one of the most experienced and respected of English criminal judges, decided to hold an informal media morning on the day before the trial began.  He said he understood that the press had a job to do, but so did he and it was important that they did not make his job impossible.  He asked for their cooperation.  Throughout the course of the Robert Black trial, that is precisely what he got.

New situations call for new measures.  In the Lockerbie case, Scots law should not stand too much on its dignity and say it will be clearly proved to be beyond reproach.

We have much to be proud of in this wee country and its legal system.  But if we want to get a good Report Card at the end of the Lockerbie Trial, we will have to take the relatively simple step of explaining to the world how we Scots do justice.

It is, after all, a principle of our system that justice is not only done by our courts, but is seen to be done.  Perception is not just an add-on, it is a legally enforceable necessity.  The first significant human rights judgement from a Scottish court (the Temporary Sheriffs case) was decided in part on this crucial point.  So to do justice properly in a mature legal system requires the creation of the perception of fairness within that legal system.  In the Lockerbie case, exceptionally, the perception will be that of not just Scots citizens but of the rest of the world.  The Scottish criminal justice system and Scots lawyers should help this process along.  We must guide our media guests as they journey in print, radio, television and through the Internet to our strange little legal land.

Alistair J Bonnington University of Glasgow Lockerbie Trial Briefing Team