US presence makes trial far from "normal"

WHY WE MUST LISTEN TO OUR CRITICS

As expected, there is now international scrutiny of the Scottish legal system due to the trial of the two Libyans taking place at “the Scottish Court in The Netherlands”.  Although Scots law with adaptations, the principal elements of our criminal procedure system are being followed in this case.  What is the reaction of legal commentators to what they are seeing unfold before them?

I had the opportunity of speaking to correspondents from all over the world at Kamp Zeist at the beginning of this month.

Apart from the usual comments about the peculiar garb of the judges and counsel, one of the initial points made regarded the absence of opening speeches.  Our normal Scottish response to a suggestion that such a device is useful is that, as neither side has proved anything at that point, no-one should be entitled to make a speech to the court outlining what may or may not be proved in evidence.  However, our rule is surely meant to prevent the possibility of the minds of jurors being corrupted.  It might well have been possible to allow speeches in the Lockerbie case for the benefit of the public all over the world who wish to follow the case.  As there are no opening speeches, bereaved relatives and the accused’s family in court, have no idea of where the case is going or what points will be crucial to the outcome.

The second matter which caused raised eyebrows was the necessity to lodge a special defence.  Most commentators judged Scots law unusual in requiring any form of written notice of a particular line of defence.

Amazement was also expressed - and this is a fundamental point - about the lack of written evidence in the case.  In many jurisdictions written evidence is the norm, even in criminal matters.  Some systems, including the English, regard oral evidence as necessary only in respect of contested witnesses.  So far, there is only one statement of uncontroversial evidence in the Lockerbie case, which relates to two deceased witnesses whose statements have been accepted in evidence as the defence did not challenge them.  There is agreement on no other point, save the names of the dead.  This is extremely disappointing and shows Scots law in a very bad light.  Lord Sutherland was quite correct when he deplored the “lamentable lack of cooperation” between Crown and defence at the adjournment hearing in April.

No doubt many more criticisms and surprises will emerge in the coming weeks and months. Rather than automatically defending the way we do things in Scotland, we would do well to listen to what these commentators say.  When, as is inevitable, the Scottish Parliament reviews Scottish criminal law and procedure, their points could be helpful.  Any system which says it cannot learn from others is doomed to self-destruction.

But looking further afield, the useful legal lessons that may be learned by the Lockerbie case go much further than the Scots domestic system.  The case has already shown that there is a pressing need for an international criminal court with its own body of substantive law and procedure to try people accused, like Megrahi and Fhimah, of international terrorist crimes.  The courtroom which has been built at Sousteberg, near Zeist, is specially constructed with security in mind.  With goodwill it may find a new role as an international criminal court.  The lessons learned during the coming months in Holland will make Scots law and lawyers uniquely well placed to contribute to any such process. Whatever the verdict in HMA v Megrahi and Fhimah, that would be a successful outcome for the civilised world.

US PRESENCE MAKES TRIAL FAR FROM ‘NORMAL’

The involvement of Libyan lawyers and American attorneys in the case doesn’t gel with the comment to journalists of a ‘normal Scottish trial’ says ALISTAIR BONNINGTON

At their media briefing on the eve of the opening of the Lockerbie case, the Scottish Executive were at pains to point out to foreign journalists that this was “a normal Scottish trial”.  With respect, “normal” is not an appropriate word for this case.  Not only is the High Court of Justiciary located in Holland, sitting for the first time in its history without a jury, operating under a procedure set out by an Order in Council, it has also departed from the normal practice of our criminal courts.  It emerged at that press briefing that the Scottish defence team would be accompanied by Libyan lawyers, and the Crown would have US attorneys sitting with them on the prosecution benches.

As the two accused men have been receiving advice on this case from Libyan lawyers for a number of years, their continuing involvement in the proceedings is hardly surprising.  However, the role of the US attorneys’ work with the Crown team is more difficult to understand.  The explanation for this may well lie in the heavy involvement of the American Office for the Victims of Crime (the OVC) in these proceedings.  This body, established by the US Congress in 1988, is part of the US Justice Department.  It is exceptionally well-funded, taking the proceeds of fines imposed by US courts in drugs cases.  In terms of the “Crime Victims’ Bill of Rights” which the OVC operates, the crime victim, inter alia, has a right “to be present at all public court proceedings relating to the offence... and the right to confer with an attorney for the government in the case”.  The enormous influence of the bereaved US families in this case has been obvious to even the most casual observer.  They are understandably anxious to learn the truth of how and why their loved ones died.  Some clearly hope for a conviction of the two men and, if this is secured, will be able to pursue civil claims against the Libyan Government through the American courts.  Congress has passed a law allowing victims of international terrorism to sue the “sponsoring state” for compensation.  Millions of dollars are arrested in Libyan banks in the US pending the outcome of these compensation claims.

Whilst the work done by the OVC may well be something that Scots law and other systems could contemplate following, it is difficult to escape the feeling that there are some elements of a private prosecution in the Lockerbie case as a result of OVC involvement.  To what extent US attorneys are taking part in the decision-making process of the prosecution team is unclear.  Certainly, if the Lord Advocate’s assurance that this is “an independent prosecution under the law of Scotland” is to be believed, their involvement must be supportive rather than dispositive.

From an international perspective, the involvement of both Libyan and US lawyers in “the Scottish court in The Netherlands” gives the case an unfortunate US v Libya flavour.  It is to be hoped at the end of the day that the unusual steps taken to involve non-Scottish lawyers on both sides of these proceedings will not detract from the value of what is being done at Kamp Zeist.  It would be sad if Scottish justice is judged by the world on the basis of a case in which there has been significant, albeit understandable, compromise of our legal system.

THE SOCIETY’S ROLE

The world’s attention is focused on the case of HMA v Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah, better known as “the Lockerbie Trial”.  That inevitably means that the law of Scotland is under intense scrutiny.  The Society is working to ensure that accurate and impartial information on Scots law is available during the course of the trial.

The Criminal Law Committee recognised the importance of this case and the need to tell people from different countries with different legal systems about the law of Scotland.  Sponsorship of the Glasgow University Lockerbie Briefing Unit Handbook has been a part of that process.

In addition, the committee recommended that the Society should be available to give the media accurate and impartial legal information at the trial.  Council accepted the Committee’s proposal.

Michael Scanlan attended as President of the Society for the first day.

Oliver Adair, Convener of the Criminal Law Committee, and Gillian Meighan, the Head of Press and PR, attended the first three days of the trial.  They worked from the media centre responding to enquiries from journalists from all over the world.  They were supported by a rota of committee members who were available to answer enquiries from Scotland.

The Society’s presence in an independent capacity was welcomed, particularly by journalists from outwith Scotland.  Faced with a TV screen and an audio channel in English or Arabic and no commentary on events and procedures they were pleased to have Scottish solicitors available to explain both criminal procedure and law.

The committee is continuing to answer enquiries on a rota basis as the trial progresses.