, , , , , , , , , , , , , , , , ,

Lockerbie judges : Scotsman

Eighty years ago a legal case in Scotland sweep across the world establishing her legal system in the front row of jurisprudence in the world.  Scots Law was all grown up and walking tall.

The case, Donoghue v Stevenson, involved a young girl who,sitting quietly one day in a cafe in Paisley, poured out the contents of a bottle of ginger beer into a plate of ice cream, to discover to her horror the partially decomposed remains of a snail. The case, on whose responsibility it was to have ensured the lack of snail entered the law books.  The Judge, Lord Aitkin, decided in the absence of any evidence of the snail itself, either through decomposition, disposal, or (dare we whisper it) the chance it was never there in the first place, to conduct an existential mind game turning the Paisley snail into a legal Schrödinger’s cat.

The case became the lead case in that branch of law called Delict in Scotland, and elsewhere in the world Tort. It is, for instance, also the lead case also in New York law.

Thereafter the Scottish profession, chuffed to the gutties, has over the eighty years since rather rested on the rollocks, basking in the lingering afterglow of their glory days, complacent, flabby minded and arrogant, quietly assuming that the world’s lawyers continue to turn to her for guidance in novelties in law.  It was an amusing conceit, something to smile at when seeing the representatives of the profession strut their stuff at conferences abroad, an engaging foible at worst.  Until, a December night in 1988 when a jumbo jet fell from the sky over Lockerbie.  Here at last they thought was an opportunity to once again show the world that Scots Law was right up there at the cutting edge, a golden opportunity again to show the world how things are done.

What followed was a disaster for the reputation of Scots law.  The profession was out of its depth from the get-go.  The case was mishandled from the beginning, and the trial, such as it was, held in the Nederlands on specially created Scottish soil, a catastrophe.  For whatever reason the profession was completely unprepared, would not listen to advice, were utterly overwhelmed by forces far greater than they had met before, and the investigation, management and trial became riddled with contentious errors.  No one at any stage stood up for justice and everyone allowed themselves to be bullied into a guilty verdict.  If you want the whole sordid thing in expert detail turn to Professor Bob Black’s excellent blog here.

Eventually an appeal was launched, a grudging investigation was started and a report from the Scottish Criminal Cases Review Commission outlining many heads of appeal and running to eight hundred pages was produced.

And it’s not just my opinion.  Here is Hugo Miles writing in the Independent on 21st December 2008.  “Since the Crown never had much of a case against Megrahi, it was no surprise when the Scottish Criminal Cases Review Commission (SCCRC) found prima facie evidence in June 2007 that Megrahi had suffered a miscarriage of justice and recommended that he be granted a second appeal. If Megrahi didn’t do it, who did? Some time ago suspicion fell on a gang headed by a convicted Palestinian terrorist named Abu Talb and a Jordanian triple agent named Marwan Abdel Razzaq Khreesat. Both were Iranian agents; Khreesat was also on the CIA payroll. Abu Talb was given lifelong immunity from prosecution in exchange for his evidence at the Lockerbie trial; Marwan Khreesat was released for lack of evidence by German police even though a barometric timer of the type used to detonate the bomb on Pan Am Flight 103 was found in his car when he was arrested”.

The problems became so acute with the prisoner at death’s door, and the distinct probability of his winning any appeal dealing permanent damage to Scots legal profession that the Justice Minister Kenny MacAskill, himself a member of the legal profession, was required to go to the prisoner in person.  The result was to create another legal fiction in Scots Law (a new maxim to join the snail) the concept of Compassion in Scots Law.  Actions which never went anywhere near the central question of his guilt or innocence.

But then as Robert Baer, an ex CIA spook who worked on Lockerbie and openly believes the case is flawed, sourly remarked “Your justice secretary had two choices – sneak into Megrahi’s cell and smother him with his pillow or release him.”

Readers may have wondered why I had previously placed posts regarding the Lockerbie bomber in a blog which deals with American politics, political families and power.  I wrote here, here here, and here, on the injustice that was done to him before his release on compassionate grounds. Miscarriage of justice it might be, an embarrassment for Scotland certainly, but surely still a storm in a tea cup far from the world’s great decisions?  Nothing to bother a blog on American politics surely?

But I have also written about the gradual extension of Munroe’s doctrine into international legal areas.  We saw how Palin sought extradition for Assange, and here and Obama deny any option of trial to Bin Laden.  Now we see Mitt Romney the lead candidate for the GOP and a possible President of the USA, seek to overturn the due process of law in another country (and an ally at that) to unilaterally render Abdel al-Megrahi from the jurisdiction of Scotland to some unknown unstated destination. Unlawful certainly but when the reach of Scotland’s justice minister Kenny MacAskill cannot touch (or protect his ward) what is to stop them?

“It is my hope that Libya will now move toward a representative form of government that supports freedom, human rights, and the rule of law,” Romney said in his statement strickingly lacking in an appreciation of irony.  Bloody rich really, but he does not stop there.  “As a first step, he continued I call on this new government to arrest and extradite the mastermind behind the bombing of Pan Am 103, Abdelbaset Mohmed Ali al-Megrahi, so justice can finally be done.  Which seems plain enough to me.  Even if it does breach the United States Constitution at Article 6 item 2.  But that doesn’t seem to matter to anyone anymore.

You see, far from having been simply released as a free man to live it up in Libya as the press frequently assert, Megrahi is still subject to the Scottish legal system.  He was released on license and allowed to remain in Libya.  Every month Megrahi has to abide by the terms of his release and contact the Parole officers of Renfrewshire County Council who administer these matters for Greenock Prison.  And, he cannot leave Libya, save with the express permission of the Scottish Justice Minister.  Hello again Kenny.

So Kenny MacAskill finds himself beset by numerous different factions seeking to devour him.

  1.  The Scottish Public, who because they do not hear the doubts or speak with professionals who know in their bones it is wrong,want him back in jail.
  2. The British public, who embarrassed at the old Libyan regime making whoopee, want him back in jail.
  3. Kenny MacAskill has exposed his beloved Scotland to the worst ridicule of all- that of simply being ignored and no one in this game is really listening to Scottish lawyers anymore.  The profession are aghast.
  4. The fact that his decision, far from protecting Megrahi, has placed him at deadly risk and by his actions Kenny Macaskill may have signed not so much an instrument of compassion, but a death warrant.  As Kenny is a good man at heart this must sit
    heavily indeed.
  5. The terror of an Appeal going ahead.
  6. The terror of the grounds of Appeal being released.  This would certainly embarrass his profession, his government and the Justice system in Scotland as a whole, and may very well expose American interference with the evidence and due process including bribery of witnesses and tampering with witnesses.  It is certain there are an awful lot of awkward questions that want answered.
  7. The crushing vice of American opinion to have Megrahi extradited and tried (even though he has been tried already).  There he would face a death penalty which is not an option in Scotland.
  8. Worst of all, the distinct probability that the transitional regime may themselves render Megrahi to the Americans to get him out of the country and remove a source of internal tension from their soil.

In fact looking at the options the most likely outcome that would serve everyone’s interests (except those of Justice and Megrahi himself) would be that he dies. Very shortly.

Will my next post on this subject be called “Who killed Megrahi”?

Copyright David Macadam 2011