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The Scottish Bar
“Hi Guys…er guys?…..um Guys?………….guys? 


President Obama is now seeking to link BP, his most unfavoured face of Big Oil, with Libya, and the release of a proven imprisoned terrorist.  Obama follows the tried and tested rule of media mis-direction – when in doubt blame everyone for being in league with “terrorism” and cast them out.  Put simply, he would like you to believe that BP, wishing to gain access to reap the oil in Libya, put pressure on the British government to release Adelbaset Al-Megrahi who had been tried and found guilty in a Scottish Court.

Adelbaset Al-Megrahi

Except that it wasn’t really like that.  Not even slightly.  He is conflating two entirely different stories for his audience and this post will attempt to separate them out.  Not that anyone’s going to come up smelling of roses on this one.

The story is that BP have negotiated with General Kaddafi of Libya for concessions to drill oil.  Like no one else ever did this sort of thing?  And that this involved a complex series of cross negotiations that involved the British Government in releasing Al-Megrahi to allow the deal to go through.

Only the British Government didn’t release Al-Megrahi. 

This is worth the time, so grab a coffee and settle back.

The essentials are that on 21st December 1988 an American airline exploded over Lockerbie a small town in the Scottish borders, killing 270.  Investigation led to the suspicion that this was an act of international terrorism and that the Libyan government and Al-Megrahi were involved.  As this happened on Scottish soil, the Scottish Judicial system was the relevant one to conduct the trial. 

It’s not well known that Scots law is quite different from English law.  It has its own system of Courts and ruling bodies.  It is a separate jurisdiction.  It is a hybrid system, like that of Louisiana.  In fact that’s an idea, keep thinking Louisiana and you won’t go far astray.  It is as Professor Patterson of Strathclyde famously said, “a simple law for a poor people”.  Lockerbie was to test it to destruction. 

The Scottish Bar (those who serve as solicitors, advocates judges etc) is a very small affair.  Even smaller than the Bars of many US cities.  It is socially restricted being essentially middle class with many having come from the same few private schools for generations.  Many are of legal families, many intermarried, with generations having practised.  It is cosy to the point of being in-bred.  It is small, parochial, narrow, inexperienced, self satisfied, dull and sleepy.  Worse it arrogantly believes itself an example to the world!

Forced startled and blinking into the glare of world wide scrutiny it was not prepared.  Its deficiencies quickly became apparent. 

The case was called in a specially convened Court in the Netherlands, made Scottish soil especially for the case and there sweating through a summer in the white heat of a live world audience, the participants failed their bar, their law, their country, and worst, they failed justice.

Lockmaddy assizes it wasn’t. 

The defendant Al-Magrahi was found guilty and was promptly stuck in the poky.  Phew!  The Bar had got through the test?  But no, the doubts were there from the start.  Professor Bob Black has made this his own speciality so if you want the low down on this then click on his excellent blog http://lockerbiecase.blogspot.com

Prof Bob Black

The matter then faded from immediate view except for the few who saw the flaws in the whole.  They pointed out the fabricated nature of the evidence, the dud case, the bribery of key witnesses.  The endless small details that all added up.  This little show trial was coming apart at the seams.

The matter was referred to the Scottish Criminal Cases Review Board whose own report, reluctantly oh so reluctantly, accepted that a miscarriage of justice had happened. 

And Al-Megrahi appealed. 

Scotland is a devolved country within the UK.  Matters legal are dealt with by its own Justice Minister who is Kenny McAskill.  Now Kenny is a nice guy.  When he was in practise it was as a Partner in a down home Mom and Pop law shop dealing with the daily concerns of ordinary people.  He showed genuine concern and this lead him to politics where his calm manner and common touch have made him friends.  But a diplomatic background or any international legal experience is not his.

This appeal had every likelihood of going ahead.  If it did it would undoubtedly have been a disaster to the profession and to Scotland’s legal standing in the world.

Worse was to happen.  Al-Megrahi fell ill with prostate cancer and a nightmare for the profession loomed.  It was entirely likely that Al-Megrahi would be found innocent and it was just as likely, given the length of time the appeal would take, that he (an innocent man) would die a lingering death in a Scottish jail far from his home and family.  Desperate for a way out of this quandary, did the profession do what it does best?  Did it panic and send Kenny in to bat?

Kenny certainly does something really out of place for a justice minister.  He turns up personally in the jail to negotiate with Al-Megrahi.  The deal?  We might speculate that it was to drop the appeal, and Kenny would invoke a little known part of a 1993 act which would allow him to release Megrahi as a compassionate act. 

The appeal was certainly dropped and Al-Megrahi was back in Tripoli a fortnight later.

So, is Megrahi is back in Libya, not because BP were dealing with Libya, or any deal with the British Government but because the Scottish legal profession were terrified that the whole mess, which had been their one and only throw on the world stage, would come unravelled and their bar would end up looking like a bunch of backwood hicks and amateurs?  It also entirely denies anyone ever being able to test Al-Megrahni’s arguments under court conditions.  Did they put their own legal political expediency over justice?

It worked a treat boys didn’t it?

Copyright David Macadam 2010