Was Scotland right to release Abelbaset Ali Mohamed Al-Megrahi?

Let me put my cards on the table. I am less than well disposed to Kenny MacAskill’s socialist-leaning ‘soft touch’ justice policies and consider the man a liability to public safety whose tenure as Scotland’s Justice Minister has deeply perturbed me. I am also unashamedly pro-American and have an ingrained suspicion of Colonel Gaddafi’s Libyan regime. So it sticks in my craw somewhat to have to concede that I believe the release of Abdelbaset Ali Mohamed Al-Megrahi from Greenock Prison on compassionate grounds was the right decision.

It is sometimes possible to make the wrong decision for the right reason, which we often describe as a noble failure. On other occasions we may make the right decision for the wrong reasons, and maybe this is one of those; maybe we shall never know. But, as a former Scottish police officer I am in the Swire camp on this one and have long entertained grave doubts over Megrahi’s original conviction. I am also extremely disappointed by the political capital being made in America and elsewhere which is has exposed an ugly side unworthy of even American politics. I expected no better of Hilary Clinton, but now even President Barack Obama has plummeted from the plinth of mediocrity to which I had previously elevated him; a man of opportunist political rhetoric rather than the principled substance of a true statesman.

Much was made at the time of the integrity of Scotland’s Judiciary and Scots Law’s ability to fairly try Megrahi and by and large that was true. However, there is more to justice than the appearance of a ‘fair’ trial; the evidence has to be fairly presented and in this case I believe it was not. It may seem a bizarre comparison but I believe Abdelbaset Al-Megrahi may be Libya’s Dr David Kelly, an innocent man cynically sacrificed for political expediency – the British government scientist who died in suspicious circumstances shortly after whistle-blowing on the infamous Dodgy Dossier that helped precipitate our war with Iraq. And I believe that the parallel does not end there, because I believe that much of the evidence on which Al-Megrahi was convicted was as much a ‘Dodgy Dossier’ as that presented by Tony Blair’s Government in order to inveigle us into a war with Iraq.

I would also qualify what I mean by describing Al-Megragi a innocent, because I acknowledge that as a Libyan intelligence officer Megrahi was a player in a dirty game and question only his guilt of the charge specific to the indictment upon which he was convicted. What else he may have done in other circumstances is not the issue. Britain has spies too, but we call ours heroes.

The evidence at Megrahi’s original trial was not only circumstantial but often tenuous and disappointing. I watched it unfold on television and in the press with much interest, awaiting a killer blow that never came. It was rather like one of those interminable Continental movies that we view convinced that there must be some point or denouement that never actually comes. So it was with the Lockerbie bomber trial.

I shall never forget the shock of seeing the live news reports emerging on the night of the bombing with the scenes of the chaos that befell Lockerbie, nor the feelings of anger, indignation and frustration as investigators began the gargantuan task of sifting the evidence for clues as to the identity of the perpetrators. Then, after years it seemed we had them. Two Libyan suspects arrested, indicted and extradited to the Netherlands for trial by a specially convened Scottish High Court.

But, as the trial dragged on, I began to suspect that all was not well. The evidence had been ingeniously and painstakingly assembled but seemed altogether inconclusive and there seemed more than a whiff of political manipulation at work, while a great deal of the impetus for the conviction of the two accused seemed politically motivated. ‘Somebody did it, so somebody must pay: They’ll do’, seemed to be the only rationale. And let us not forget that at that time Scotland’s chief prosecutor, the Lord Advocate, was a member of the Cabinet and thus vulnerable to at least the appearance of conflict of interest and political manipulation.

Then there was the court itself. A friend of mine who has studied Scots and European law and crossed swords with members of the legal and political establishment is a lot more cynical that me and once opined: “There is no justice in Scotland’s lower courts; merely the whim of the presiding sheriff”.

But the Lockerbie trial was not held in a lower court, but by a bench of the High Court of Justiciary, Scotland’s supreme criminal tribunal. That is correct, except for the one thing that normally distinguishes Scotland’s lower courts from the higher – a jury.

Scotland has four levels of criminal jurisdiction. At the bottom are its District Courts, officiated over by Justices of the Peace (JPs) or Stipendiary Magistrates, armed with limited summary powers. A summary court is one without a jury, which may impose correspondingly light sentences. A JP is a layman such as a councillor who sits with a legally trained adviser called an assessor and may impose a limited fine or up to 30 days imprisonment for minor offences. Stipendiary magistrates are less common but, being legally qualified, may sit unsupervised and may in some cases impose the same sentence as a sheriff. Next up the hierarchy is the Sheriff Summary Court, on which a sheriff sits without a jury. A sheriff is appointed by the Crown and is normally a solicitor with at least ten years court experience or an advocate with at least five years in practise. An advocate in Scotland is what in England would be called a barrister, the more senior among which may be designated Queen’s Counsel (QC). As such, a sheriff hears more serious cases and can impose much heavier sentences, including up to six months imprisonment.

Above these, however, stand Scotland’s courts of Solemn Jurisdiction: the Sheriff and Jury Court and High Court of Justiciary. Each sits with a jury of fifteen members who may convict by simple majority, for which reason the judge can impose much heavier sentences, which in the case of the High Court may be an unlimited fine of life imprisonment. As the name implies, in a Sheriff and Jury court the jury sits with a sheriff, while a High Court jury is empanelled before a Senator of the College of Justice – a full-blown judge of the realm. Civil cases are also heard in the Sheriff courts, but judges hear civil cases in the Court of Session.

So, it was a major departure from the norm for a panel of Lord Justices to hear the Lockerbie trial without a jury. This was decided upon for a number reasons including complexity, security and the sheer length of time the trial was expected to sit, all of which were considered inappropriate to expose any jury to.

Scots law and the courts who administer it are very rigorous in a number of respects. Corroboration is sacrosanct and the evidence of only one witness, no matter how credible, is insufficient to convict any person in Scotland, apart from a very few minor statutory exceptions related to road traffic law and game poaching.

Then there is the unrebuttable presumption that any accused is innocent until proven guilty. For this reason Scotland exercises the 110-day rule, which says that any indictment against a person held in custody must be disposed of within 110 days or they must go free. An extension may be exceptionally granted where the delay was not the fault of the prosecution, otherwise the case is dismissed and the accused acquitted because all the while the accused is held in custody the law is mindful of the unrebuttable presumption that he is an innocent man.

The accused is not obliged to offer any defence, or explain why he is not guilty of the charge: It is the sole responsibility of the prosecution to prove his guilt beyond reasonable doubt.

Lastly Scotland has what has famously been called ‘that bastard verdict’: Not Proven.This dates back to when Scots juries could return one of two verdicts: Proven or Not Proven, on the pragmatic assumption that no human tribunal could truly judge all the circumstances of any case but could only decide on the evidence placed before them. Was the case proven beyond reasonable doubt, or was it not? A Scots jury therefore judged differently on the premise that they were not being asked to decide whether an accused was guilty or not, but on who had won the argument presented to them. So, it was possible for a jury to conclude that while they thought someone was probably guilty, the prosecution had failed to discharge its responsibility of proving so beyond reasonable doubt, and thus is to this day that a jury which is not convinced of an accused’s innocence may signal its doubts with a Not Proven verdict, which, whilst not absolving the accused on all suspicion is nevertheless an acquittal.

Many people do not like this verdict which they do not understand and see as an untidy compromise, effectively saying: ‘We think you’re guilty, but the prosecution failed to prove it’: Perhaps the most honest verdict of all.

In addition, Scotland has among the most stringent sub judice laws, including the Contempt of Court Act, prohibiting the public discussion the media of any matter under consideration by a court of law. So if there was one country in the world where any accused could be expected to have a fair trial, that country would be Scotland whose courts jealously guard the right of every person to avoid prejudicial judgement and enjoy a free hearing. Or so we thought.

As I listened daily to the evidence I was struck by the rigor and effort involved, but could see no clear connection with either accused. The case appeared to be more one of wishful thinking and at times the prosecution seemed to be trying to overwhelm the judges with minutiae in lieu of substantive facts which could place the accused in the frame. It was as if they were simply saying: ‘Listen, they’re guilty. Just take our word for it.’ And eventually, so it seems they did, in Megrahi’s case at least.

But since then, matters have gotten worse. For years we have heard increasingly about evidence conveniently withheld from the defence which pointed to Megrahi’s non-involvement; of compromised witnesses who had been primed, prompted, suborned and possibly bought; of evidence allegedly manufactured or planted. In a word, what we in the police would call a stitch-up. And this is the problem, because the litmus test of Scottish criminal law is that guilt must be proven beyond reasonable doubt, whereas I believe a multiplicity of doubts exist in this case which are more than reasonable. Furthermore, I believe that had they been disclosed to the court during the original trial the indictment would have been dropped and the case summarily dismissed, or as they say in Scots Law, the diet would have been deserted simplicitur.

Why did that not happen? For the same reason it never does – political expediency. Both the British and American governments wanted a conviction for domestic consumption, and even a scapegoat would fit the bill. Thus the FBI, CIA and MI6, among others, lent heavily on the Crown Office and the Lord Advocate, being an obedient servant of the Crown acquiesced and drafted the necessary indictments. The rest is history.

It is not my contention however that the judicial process was flawed but that it was fed whatever it took to convict at least one innocent man. To me, that should have been enough to secure Al Megrahi’s release as it would be manifestly unjust to incarcerate any longer an innocent man who could not live long enough to appeal his unsafe and unsatisfactory conviction. As it is, his conviction stands which is even more unsatisfactory and all hell has broken loose with recriminations and accusations flying in every direction, especially from America where the controversy and doubts over Megrahi’s conviction have seldom been publicised, which is probably in large part responsible for the naïve belief of many Americans that these things just don’t happen. Yes they do. But then we in Britain have had years of governmental spin and outright mendacity to learn from.

I remember being in the police during the 1984 Miners’ Strike, when Margaret Thatcher lent on the then Lord Advocate to stretch the law to allow the police to illegally stop busloads of pickets. They were duly stopped and charged but no case ever went to court, thereby avoiding exposing to any legal challenge what was a wholly unlawful practice.

And any fan of Rudyard Kipling will be acquainted with perhaps his most famous poem, If. It may come as a surprise but by his own admission Kipling actually had someone in mind who had inspired it; a Scotsman by the name of Dr Leander Jameson, a colonial adventurer living in British South Africa in 1895 when he was persuaded by the British government to foment rebellion against the Boers. Jameson duly obliged and raised a force of insurgents with which he raided the Transvaal. However, through a mixture of political expediency and cowardice, Neville Chamberlain’s father Joseph, who had initially backed the scheme got cold feet and back-pedalled vigorously to save his political career, to the point of actually undermining Jameson whose forces were captured, whereupon he was delivered back to the British authorities who, in the best traditions of British foreign affairs denied any part in Jameson’s adventures and hung him out to dry when he was sentenced to 15 months imprisonment for obeying orders Britain denied ever giving him. It was an unmitigated scandal throughout which Jameson spoke not one word against his political masters but took it all in his stride. Hence Kipling’s immortal lines:

‘IF you can keep your head when all about you

Are losing theirs and blaming it on you,

If you can trust yourself when all men doubt you,

But make allowance for their doubting too;

If you can wait and not be tired by waiting,

Or being lied about don’t deal in lies,

Or being hated don’t give way to hating

And yet don’t look too good, nor talk too wise…

‘If you can make one heap of all your winnings

And risk it all on one turn of pitch-and-toss,

And lose, and start again at your beginnings

And never breathe a word about your loss…’

If you have the poem, I suggest you read it again. If not, it’s widely available on the internet. It’s a tremendously moving piece in its own right, but when read in the context of knowing about whom it was written it's even more powerful.

As I say, most Americans seem to possess a naïve faith that their government will not lie to them. We British have long been far more cynical. I said at the beginning that Abdelbaset Ali Mohamed Al-Megrahi may have been Libya’s Dr David Kelly. Perhaps a more fitting comparison would have been between Mr Al-Megrahi and Leander Jameson – soldiers of fortune sold down the river by men in grey suits. Only history will tell, but maybe one day we’ll discover who was really behind the Lockerbie bombing. Unlikely? – Perhaps. But stranger truths have emerged before from the murky world of secret intelligence.