Obstruction of justice?
Early Thursday morning
Right to the end, the case of the so-called Lockerbie bomber is a scandalous mess. Even his probable imminent release is being bungled. Instead of a dignified official announcement, we have had feverish overnight speculation and rumour, followed by ritual denials. Not a single aspect of this extraordinary affair has been well-handled. It reflects extremely badly on Scotland.
The justice secretary, Kenny MacAskill, appears to have acted with personal compassion and political courage in sanctioning Megrahi’s release to allow him to spend what remains of his life with his family in Libya. As I write this, however, in the absence of official clarification and in the face of confusing media reports, it is far from clear whether Megrahi’s second appeal against conviction will proceed or whether he has been prevailed upon to drop the legal campaign to clear his name.
No doubt this question will be answered soon. But it will leave unanswered a deeper question of the greatest importance. Has there been an obstruction of justice in Scotland?
So long and tortuous, so deeply embarrassing, has this case become, it may be useful to be reminded of the basic facts. On 31 January 2001, a panel of Scottish judges, sitting in a special court at Camp Zeist in the Netherlands, convicted Megrahi, a former Libyan intelligence officer, on 270 counts of murder for his part in the bombing of Pan Am flight 103. His co-accused was acquitted.
From the start, the verdict was hotly disputed, not least by Professor Robert Black, the QC often described as the architect of the Netherlands trial, now better known as its main critic. Jim Swire, whose daughter Flora died at Lockerbie, is also convinced of Megrahi’s innocence. In a gesture of overwhelming humanity, he has pledged to continue the campaign to clear the convicted man’s name in the likely event of Megrahi’s premature death. Dr Hans Kochler, the United Nations’ observer at the trial, has often expressed serious doubts about the fairness of the proceedings and has spoken of a ‘spectacular miscarriage of justice’.
Yet in Scotland it has proved difficult to win influential support for Megrahi’s case. Reactions from opposition parties to Kenny MacAskill’s visit to Greenock prison, where he met Megrahi earlier this month, were highly critical, while there has been widespread media hostility to the idea of his release. Joan McAlpine, in a Sunday Times piece late last year, after the disclosure of Megrahi’s terminal cancer, described him as a ‘convicted child killer’ who should die in prison unless his conviction was overturned. McAlpine added that Megrahi had become ‘a political symbol rather than a human being’ and drew an unflattering comparison between the campaign being conducted on his behalf and the less generous treatment of other mass murderers. In the tabloids, needless to say, the same view has been more hysterically expressed.
It is, however, a human being rather than a political symbol who has steadfastly maintained his innocence and spent the last eight and a half years attempting to pursue it through the courts. His first appeal, in 2002, was rejected. The Scottish Criminal Cases Review Commission then conducted a review lasting no less than four years and, having uncovered evidence that a miscarriage of justice could have occurred, granted Megrahi leave to appeal against his conviction for a second time. The commission declared these findings on 28 June 2007. Two more years have elapsed, but the appeal has still not been heard.
We are entitled to know why.
I have given Robert Black QC several public platforms, through the Institute of Contemporary Scotland, to articulate in detail his robust criticism of the verdict. So magisterial is his assurance, so complete his command of the facts, it is impossible to listen to him without being profoundly impressed by his analysis and conclusions. I suspect he is anguished by what happened in the Netherlands. With the world watching, and so many grieving families demanding justice for the victims, the pressure to find someone culpable must have been almost intolerable. The pressure on Robert Black himself, the designer of this unusual trial, was intense: that it went, from his point of view, so badly wrong has haunted him ever since.
His tenacity in supporting Megrahi has been admirable. He is probably right: Megrahi is probably innocent. But to some extent the question of whether Megrahi is innocent or guilty has become secondary. As soon as the Scottish Criminal Cases Review Commission identified the possibility of a miscarriage of justice, it was the responsibility of the Scottish judicial system to determine the truth in court. It has shown a marked reluctance to do so expeditiously.
It seems a very long time since I first heard Robert Black speak on this subject. It is years. Somewhat touchingly, he was convinced then that the second appeal would not only be heard, but heard reasonably soon, and that the outcome would be acquittal. There seemed to be no doubt in his mind. The point I’m making is that, although Robert Black was aghast at the outcome of the Netherlands trial, he maintained his faith in the Scottish judicial system. He was sure that justice would be done.
With every passing day, the likelihood of such an outcome receded. When the commission sanctioned a second appeal in June 2007, it was considered unlikely that it would be heard until the second half of 2008. Robert Black told me then that, although frustrated by the continuing delay, he accepted this timetable in good faith. For reasons best known to the authorities, the second half of 2008 – and the 20th anniversary of Lockerbie – came and went. Meanwhile, Megrahi was diagnosed with prostate cancer. He applied for bail pending the long-postponed appeal, but a panel of Scottish judges refused the application.
In January this year, it was reported that the second appeal would begin on 27 April 2009 but could take a year. The prisoner’s supporters claimed that, by the conclusion of these protracted proceedings, Megrahi might well be dead. But the appeal did not begin even on 27 April. There was a further delay.
A few weeks ago, in another bizarre twist, Scotland’s senior judge, Lord Hamilton, announced that one of his colleagues, Lord Wheatley, who had been due to hear the appeal with four others, had unexpectedly undergone heart surgery and would not be returning to work until the autumn. Yet more hearing dates were arranged, stretching as far ahead as February 2010. Robert Black was unimpressed by Lord Hamilton’s explanation that the ill-health of one of five appeal judges and ‘presssure of other court business’ made further delay inevitable; he claimed that the failure to take effective steps to minimise the delay was disgraceful. The UN observer, Dr Kochler, went further. He called the long series of postponements ‘scandalous under any circumstances and, seen in the context of deliberate withholding of evidence, tantamount to an obstruction of justice’.
When someone speaking with the voice of the United Nations links Scotland to an obstruction of justice, it is time to be seriously concerned.
Kenny MacAskill is a politician with a reforming track record. He has boldly pressed on with a more enlightened penal policy in the face of deplorable attacks by the popular press. At the moment I choose to believe that his decision, if it is a decision, to release Megrahi is motivated by the same humanitarian concern he has shown in other matters. But the burden on him, as he has attempted to resolve this uniquely troubling case, is not one that any individual should have been expected to shoulder. Megrahi should have been released on bail, pending appeal, as long ago as last November; and there should then have been a sense of urgency about the conduct of that appeal. Instead there was continuing drift.
It now seems possible that the second appeal will never be heard, that Megrahi’s guilt or innocence will never be satisfactorily established, and that the truth about the Lockerbie bombing will never be known. This is an affront to the families of the victims. We need, if not a second appeal, a public inquiry.
13 August
31.08.09
Issue no 133
THE BBC AND
KENNY MacASKILL
Kenneth Roy
Can the public service
broadcaster be trusted?
[click here]
THE LOCKERBIE FILE
Recently in SR
In the interests of justice
28 August
[click here]
Die or else
27 August
[click here]
The changing mood
26 August
[click here]
Speed reacting
25 August
[click here]
The weekend of unreason
24 August
[click here]
Marina and her sister
21 August
[click here]
Why Megrahi will be missed
20 August
[click here]
Obstruction of justice?
13 August
[click here]
GALLERY
Contemporary Scottish art
Michael Murray:
The Hidden Lane
[click here]
In view of the continuing political crisis in Scotland, SR continues to publish daily for the time being
