Posted 19 February 2010
I thought Robert Forrester’s article “Circumstantial Jigsaw Puzzle” of the 5th February 2010 raised interesting points. It is his belief (and that of other supporters who regard Mr Megrahi as the principal victim of Lockerbie) that he should not have been convicted on the evidence presented at Camp Zeist.
He quotes Professor Black (para.10) that in his view “it constituted the worst miscarriage of justice perpetrated by a Scottish Criminal Court since 1909.” As this was also the first time in which the experiment concept of a Scottish Court sitting on neutral territory had been attempted I wondered if there was a connection between the two.
I would therefore pose the fundamental question - why was Megrahi convicted if the evidence against him was so flimsy?
As the article notes the “evidence” of Majid Giaka was rejected and the evidence against Megrahi was almost entirely circumstantial. Why was it that at every point where the prosecution case was challenged their Lordships decided in favour of the prosecution case despite compelling evidence to the contrary (The conclusion, despite the meteorological evidence, that the clothing was purchased on the 7.12.88, the “identification” of Megrahi as the purchaser, the absence of evidence of a bag smuggled onto KM180, the conclusion a suitcase had been transferred at Frankfurt, ignoring the evidence a brown Samsonite was introduced at Heathrow ect. He also points out the crucial issue of the renumbering of RARDE’s notes concerning the discovery of the MST-13 timer although the notes were those of Dr Hayes not Alan Feraday.)
There was also in this Camp Zeist trial the quite astonishing reversal of the burden of proof and the mystery of the “missing” witnesses that a Jury may have found curious.
Mr Forrester had a lot to say about the absence of a Jury. (para.2)
“It is truly hard to believe that if a Scots jury of fifteen ordinary citizens had been employed to reach a verdict, they would have arrived at the same conclusion as their Lordships.”He raises the incongruity of any “self respecting bomber” introducing a bomb at Luqa and transferring it twice to explode after take-off from Heathrow. It is a point to which the Judges were indifferent but a Jury employing common-sense may rightly have come to a different conclusion.
“Never again” he writes “should the Crown be in the position where it performs the role of prosecutor, Judge and Jury”. In view of the outcome of “Camp Zeist” it is unlikely that any defendant anywhere would chose such an option – that may have been the object of the conviction. He speculates that the result would have been different if there were a “Jury drawn from citizenry at Zeist”. But the key feature of “Camp Zeist” was the discarding of a Jury. With a Jury what would be the point of moving the trial to Camp Zeist – indeed what objective was served by having the trial at Camp Zeist at all save to give the illusion that this was a negotiation not a surrender?
Mr Forrester’s article implies that in some way the Jury was disposed of by some Government decree. Mr Forrester writes “it is clear that he (Professor Robert Black) agrees that one of the reasons why we have a Jury of fifteen ordinary citizens in criminal trials, and do not utilise a form of Diplock Court in Scotland is in order that a degree of common sense might prevail in arriving at a verdict.” This is quite true but whose idea was it to try this case as a “Diplock Court” without benefit of a “degree of common sense”? It was the defence “team” and the Libyan Government who thought the defendants chances were improved by abolishing the Jury. Messrs Fhimah and Magrahi (to the extent that they had any say in the process) were given some pretty lousy advice. The Libyan Government were also badly advised and fell into a trap set by the West by responding in a thoroughly predictable manner. (As with Iraq while sanctions were bad news for the people they were not necessarily bad for the regime.)
At para.10 Mr Forrester writes “There is no criticism whatsoever of Professor Black (Mr Forrester’s colleague in the Justice for Megrahi campaign) how could anyone have imagined that such a Pandora’s box be opened?
Well some people did imagine this outcome prior to the trial and wanted a proper investigation and the right defendants charged. However I for one was astonished that their Lordship’s still managed to convict Mr Megrahi after rejecting Giaka’s evidence. I thought it was the defendants who were “bonkers” to agree to be tried for mass murder in a Judicial experiment the central feature of which was the abolition of a Jury.
I take the view, completely without empirical evidence, that the Scottish bench is composed of individuals who are deeply conservative (with a small “c”) who regarded “Camp Zeist” as an abomination an overt politicisation of the Judicial process in which they were expected to conduct a show trial on foreign soil and come to the pre-determined verdict of “not proven”.
I suspect they found it intolerable that a defendant or defendants would negotiate the form of tribunal before which he would deign to appear (presumably in the expectation that they would gain some advantage from it) and were determined that this Judicial experiment would not be repeated, an objective I suspect that has been achieved. In the circumstances were they ever going to give the defendants an even break?
“Camp Zeist” was a disaster for Mr Al-Megrahi as, for reasons that escape me, he gave up his right to a Jury and elected instead to be tried (and have his 1st appeal heard) before a panel of Judges determined that the defence should not benefit from “Camp Zeist”. How could “anyone imagine that such a Pandora’s box be opened?” I suggest someone of reasonable intelligence might have predicted the attitude of the Legal Establishment to a “designer” trial.
One should recognise that “Camp Zeist” was likely a factor in Mr Megrahi’s conviction.