February 15 2011
Robert Forrester, special to The Lockerbie Divide.
In a saga which, from its very outset, has been replete with such twisted logic and bizarre interpretations of evidence that it is like stumbling through a hall of mirrors in a state of terminal intoxication, the Lockerbie/Zeist case has thrown up yet another peculiar development. In the good old days of the Auld Alliance, that the Scots always wax so lyrical about, your enemy’s enemy was your friend, at least that’s how the Scots saw it. Ask the French what the alliance refers to though and they’ll probably scratch their heads and tell you that it has something to do with a pact with Czarist Russia to get back at Bismarck. The novelty of the relationship that the justice campaigners seeking an investigation into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi face with their detractors is that ‘the enemy’ has strangely become the campaigners’ friend. How so?
Those who uphold the Zeist judgement fall into two basic categories: media commentators and representatives of the executive and judicial arms of state power. As for those who denigrate the justice campaign in the various media, from the press to the net, they think, like Mr Frank Duggan (President of The Victims of Pan Am Flight 103, Inc) seems to, that by turning up the volume, their arguments will somehow become less factually inaccurate. Wrong. Despite having had it pointed out to him on numerous occasions that Mr al-Megrahi was not, in fact, convicted by eight judges but by three, Mr Duggan continues to assert, for reasons known only to himself, that the higher figure is correct (which conflates the number of judges at the Zeist court of fact with those presiding at the first appeal hearing). In fact, the only people to have found Mr al-Megrahi guilty in the course of one trial of fact and two appeals are the three Zeist judges (the first appeal did not deal with the sufficiency of evidence - because it couldn’t due to the failure of Mr al-Megrahi’s defence team to raise the issue - and the second was dropped by Mr al-Megrahi when he was under no obligation to do so). This is but one relatively minor factual inaccuracy that he maintains, however, until he can get even this glaring error sorted out, one must question the reliability of any, or indeed all, of his statements relating to the case. And, apparently he is a lawyer. One thing that Mr Duggan can be given credit for though, despite the parlous shortcomings in his understanding of the trial and subsequent appeals, is that at least he refers, however fallacious his analysis and conclusions, to matters relating to the case and occasionally argues around it. Nevertheless, he, like some internet bloggers who hide behind the cloak of anonymity that the net provides, has shown himself to be only to ready to indulge in the odd spot of attempted character assassination aimed at the likes of the Justice for Megrahi (JFM) Committee.
The broader group, composed of such internet commentators, is invariably reticent to become drawn on detailing what they think is right about Zeist, or dealing with the matter of the mass murder of 270 people, that the bereaved could have been sold a sop on the back of a possible miscarriage of justice and that the authorities seem to be trying their damnedest to prevent any investigation into what might have happened to give rise to so many doubts over the conviction. Instead, they have accused JFM of variously being anything from assets of the CIA and the FBI to being funded by Libya’s Colonel al-Gaddafi and a front for an Arab terrorist regime, and, most recently, drunkards even! Not sure what JFM’s alleged Muslim sponsor would have to say about that. With such a range of speculative and unsubstantiated slander to choose from and the fact that these individuals attempt to avoid the threat of exposure, they think that the normal rules surrounding the burden of proof can be ignored. Wrong. Neither JFM nor the bereaved who question this verdict are beholden to the likes of these, and what’s more, with reference to the enemy’s becoming one’s friend, such individuals, whose cranial cavities have clearly been abandoned by their brains to be replaced by their spleens, only succeed in tarring themselves with their own brush and making the uncommitted bystander with a passing interest in the case wonder if perhaps the campaigners might actually be right after all as smears seem to be the detractors’ final resort.
On a slightly different tack, another group common amongst internet critics frequently recite the mantra: “Why don’t you just grow up, haven’t you got something better to do? Everybody knows Megrahi was stitched up and that the system is irredeemably bent. In any case, an inquiry would cost millions and probably be a white wash. After all, in the grand scheme of things, expediency has served us pretty well thus far.” So, three years of work done by the Scottish Criminal Cases Review Commission (SCCRC) and the well in excess of £1,000,000 spent on it from the public purse ought to be tossed to the four winds should it? Work which by rights should belong to the public that paid for it and who are denied sight of it because of the Scottish Government’s intransigence and apparent complicity with the Crown. No assumptions regarding corruption should be made on the basis of self-assured, armchair prejudice until proven. And above all, to sanction this type of attitude is effectively say that we’d rather not be bothered about justice if it is going inconvenience us too much. Far better to blunder through it all in ignorance of the facts and supported solely by our jaundiced views. Like it or not, miscarriages of justice do take place. How, therefore, would those exponents of this type of sentiment, and there are quite a few out there, feel if they ever found themselves banged up for something they didn’t do? One imagines, until such misfortune befalls them, that they will even blame the justice campaigners for the fact that the Scottish Government saw fit to fire through the Scottish Parliament section 7 of the Criminal Procedure (Legal Assistance, Detentions and Appeals) (Scotland) Act 2010 on the 27th of October 2010, which hands ultimate power to the High Court to accept or reject cases for appeal, thus rendering the professional and independent input of the SCCRC redundant.
And so to government. Some time last year, JFM, tongue in cheek, invited Messrs Salmond and MacAskill to become members of the campaign group. This was during the period when Senators Gillibrand, Lautenberg, Menendez and Schumer seemed to be attempting to enhance their electoral prospects at the expense of BP and the Scottish Government. Although the First Minister and the Cabinet Secretary for Justice respectfully declined the invitation, they have since qualified as unwitting supporters of the cause through the paucity, flaws and deficiencies of their ripostes to JFM’s challenges.
From the occasion of Mr al-Megrahi’s release in August of 2009, Mr MacAskill maintained that the Scottish Government had neither the power nor remit to set up an inquiry into the case. Wrong. On the 7th of January, the government finally admitted to its powers under the Inquiries Act 2005 thus:
“The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry.” The Scottish Government response to the Scottish Parliament Public Petitions Committee (SPPPC) questions of the 9th of November 2010.
This massive and embarrassing climb down resulted from pressure brought to bear by the JFM petition lodged with the SPPPC in October of 2010. Mr MacAskill now claims, as the sun sets on this SNP government, that primary legislation is required to remove a secondary instrument preventing the publication of the SCCRC’s Statement of Reasons, which referred Mr al-Megrahi’s case back to the Court of Appeal.
“Separately, the Scottish Government intends to bring forward legislation to allow the SCCRC to publish a statement of reasons in cases such as Mr Al-Megrahi's where an appeal is abandoned, subject of course to legal restrictions applying to the SCCRC…….” The Scottish Government response to the SPPPC questions of the 9th of November 2010.
Precisely why is it not possible simply to remove the secondary instrument alone without having to go through the lengthy process involved in introducing new primary legislation? Truly a mystery. But just as the justice secretary claimed to be right, for a few months at least, over his interpretation of the 2005 Inquiries Act, the public is, no doubt, reassured with his current assertions concerning the restrictions on the publication of the SCCRC’s Statement of Reasons. After all, he is a lawyer. Indeed, First Minister Salmond is currently utilising the claim that should the SNP be elected in May’s general election, his government will definitely bring forward [unnecessary] primary legislation to allow for the publication of the SCCRC’s Statement of Reasons. Currently, the SNP stand a pretty good chance of losing this election, and even if they win it and they pass such legislation, the Freedom of Information Act card will doubtless be called to block its publication again. “The concessions of the weak are the concessions of fear.” Edmund Burke.
The Lockerbie/Zeist justice campaigners are rather used by now to delaying tactics and insults, it’s really water off a duck’s back. The Scottish Government’s 7th of January statement however is so risible it is an insult to the intelligence of a single cell life form. Who precisely does the government think it is dealing with here? And what does this say about their regard for the Scottish public. Despite being ridiculed on matters of the interpretation of law by a modest campaign group, the government maintains its confidence in the conviction. How? JFM Health Warning: the arguments here presented by the government may induce severe bouts of vertigo.
“The Government does not doubt the safety of the conviction of Mr Al-Megrahi. He was tried and convicted by a Scottish court before three judges.......” (Mr Frank Duggan please note: “three judges”).
Yes, however, it is precisely because the SCCRC and campaigners believe that the Zeist court of fact may have fallen short of the standards expected of the Scottish criminal justice system that JFM is calling for an inquiry to be opened. We return full circle back to the beginning then.
“....... and his appeal against conviction, heard by a panel of five judges, was unsuccessful.”
Yes, but, the sufficiency of evidence was not adequately dealt with at the first appeal and the SCCRC referred the case back to the Court of Appeal on six grounds relating to exactly that. Yet another revolution of the wheel takes us back to the starting blocks.
“A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors.”
Perhaps this is a variety of what behavioural psychologists term ‘projection’: blaming someone else for one’s own failings. What the government is doing here is excusing the fact that the case has not been fully tested in law because of a decision reached by a terminally ill man who felt that he might stand a better chance of dying at home if he dropped his legal right to an appeal when he was under no legal obligation to do so. What compounds this shameful stance is that the government is clearly perfectly comfortable in leaving the interests of justice in Scotland to be defined by convicts.
Such serpentine contortions and circularity of argument by the government are enough to make a performer at a Berlin burlesque wince with pain!
Following a second round hearing of the JFM petition before the SPPPC at a meeting on the 25th of January 2011, the petition was kept open and further questions are due to be submitted to the Cabinet Secretary for Justice, the Lord Advocate and the SCCRC by the SPPPC. This means that Scotland still has an opportunity to redeem itself and show that it has the courage to deal with this matter head on. Ultimately, to reject this will cast it as afraid to attend to beasts of its own creation and have to live with a criminal justice system that has become a laughing stock. First, the government denies it has the power to open an inquiry under the Inquiries Act 2005, then it fires through parliament, as emergency legislation, section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, now it muddies the waters over the publication of the SCCRC’s Statement of Reasons. Where will it stop?
“On the mace, it says that we will have justice, integrity and compassion. No wonder the petitioners call themselves Justice for Megrahi—frankly, at the moment, there has not been justice for anybody in this particular case.” These were the words of Christine Grahame MSP speaking in support of the JFM petition at the hearing before the SPPPC on the 25th of January 2011. Justice is the thread woven throughout our society which binds its very fabric together, if our justice system is riven with doubt and suspicion, we descend into social chaos. It is down to all of us to ensure that it is one worthy of respect and that its integrity is beyond reproach both within and without our borders. So long as the executive arm of state, the judiciary and the Crown seem to persist in obstructing requests for an independent inquiry into this matter in what appears to be an attempt to protect the transient and temporal reputations of individuals, the Scottish criminal justice system will be the butt of derision and contempt. This is not a legacy that we wish to pass on to our children. Justice is a cause for pride and celebration; it is greater than any one of us and provides, through its structure and functioning, a window revealing the mind and identity of a nation.
The basic tenets of the campaign are the following:
1. We do not assert that their Lordships presiding at Kamp van Zeist were wrong in reaching the verdict that they did. However, we contend that on the evidence laid before the court, we find it incomprehensible that such a verdict could have been arrived at. Like the SCCRC then, we feel that Mr al-Megrahi may well have fallen victim to a miscarriage of justice on the ground that no reasonable court could have passed a guilty verdict.
2. We campaign to lift the doubts over the safety of the conviction which still linger painfully in the minds of the bereaved resultant from the Pan Am 103 tragedy.
3. Following the dropping of Mr al-Megrahi's appeal, his conviction has not been tested in law in the interests of justice. We, therefore, campaign to restore the stature of the Scottish criminal justice system.
An inquiry can only produce a beneficial result for our justice system. Whether it transpires or not that there were shortcomings in the investigation of the Pan Am 103 tragedy and or the subsequent legal proceedings, Scotland will be able to look itself in the mirror again without shame and say: "We tried openly and honestly to lay the doubts to rest." Taking this courageous decision is the only honourable route to go down in order to restore Scottish Justice to her rightful place in our society. To spurn this chance would raise serious doubts over Scotland’s maturity as a nation.
Whether it is the confused rantings of the self righteous President of The Victims of Pan Am Flight 103, Inc, the whispers from the ghosts in the shadows on the internet or the avoidance tactics of the Scottish Government, this all reveals only one thing: fear.
So keep the salvoes of venom saturated invective, the anonymous character assassinations and the legalistic blinds coming. We can’t get enough of them! Apart from anything else, they at least add a spot of humour to what otherwise is such a desperately depressing and sad case. We are in this for the long haul.
As someone once said: “Freedom is always and exclusively freedom for the one who thinks differently.” Those who profess to be defenders of the free world would do well to pay heed to this.