By Nigel Thorpe
Chief of the English Copy Desk
Albawaba.com - Amman
Fearing that he would be killed and buried on a European battleground in the first World War, Rupert Brooke, the most famous of the English war poets, wrote “If I should die, think only this of me: That there's some corner of a foreign field that is forever England.”
Paraphrasing Brooke’s famous sonnet, there’s some corner of a foreign field that for the past year has been Scotland. This corner is Camp Zeist, a former US Air Force base in the Netherlands where a panel of three Scottish judges have, for the last eleven months, been presiding over the trial of the two Libyans accused of blowing up Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988. Abdel Basset Al-Megrahi 48, and his co-defendant Al-Amin Khalifa Fhima, 44, pleaded not guilty to murdering the 270 passengers, crew and local residents of the town who perished in the 1988 disaster.
As detailed in an earlier report by Albawaba.com, the Lockerbie trial was postponed last week until Tuesday 16th January to “allow defense lawyers to study the final text of the murder charge“ against them. The prosecutors had asked the court to “retain only one charge, that of murder, against the two and drop the counts of conspiracy to murder and breach of aviation security.” As reported by CNN, “the prosecution has adopted a risky all-or-nothing strategy” in an attempt to gain a conviction on what the defense has called “a web of circumstantial evidence.”
The ‘news vacuum’ that followed the adjournment has been filled by editorial speculation in many of the world’s newspapers as to the trial’s likely outcome. These discussions have concentrated on the legal and political repercussions of either a guilty, or a not guilty verdict, without highlighting the fact that, under the provisions of Scottish Law which apply to this trial, the judges have the option of a “third verdict.”
Clare Connolly, from the Lockerbie trial briefing unit at Glasgow University, commented: the trial “will create legal history because it's the largest mass murder trial that there has ever been in Scotland. It's also unique because it's conducted before three judges without a jury." Although the trial will take place without a jury, the court will have the same powers, authorities and jurisdiction which it would have had if it had been sitting with the usual panel of fifteen jurors in Scotland. The final verdict, which must be agreed by at least two of the three judges, will be delivered by the presiding judge in open court and published on the Internet at www.scotcourts.gov.uk.
Scottish law, which traces its roots back nearly one thousand, five hundred years ago to the time of Emperor Justinian (Eastern Roman Emperor 527-565 ), is a distinctive legal system which Scotland retained when it became part of the United Kingdom in 1707.
There are important differences between Scottish law and criminal procedures of English and American courts. If found guilty, there will be no death sentences passed since the maximum sentence under Scottish law is life imprisonment. Life imprisonment is the prescribed punishment for murder or contravention of the Aviation Security Act (1982). If convicted, the Libyans would serve their prison sentence in special cells which have, CNN reports, already been built in Scotland. A second key difference is that Scottish law allows a verdict of “not proven” in addition to the familiar guilty and not guilty verdicts.
“Not proven is one of the oddities of Scots law," says Glasgow University law lecturer Clare Connelly. "The not proven verdict has the same effect as a not guilty verdict, namely, the accused is acquitted and cannot be tried again for the same crime. It usually means the judge or jury thought the accused was guilty but not beyond reasonable doubt."
According to the Law Society of Scotland, “the not proven verdict is used in one third of acquittals by juries, and in one fifth of the acquittals in non-jury trials. The advantage of this “third verdict” is that it is an option between not guilty and guilty which can be used by a judge or jury when they feel that the charges have not been proved, but equally, they cannot say that the accused is “not guilty” because a reasonable doubt remains in their mind as to the accused’s innocence.
According to the society, “the legal profession has been divided over the issue (the not proven verdict ) for most of the verdict’s 300 year history. In 1827, Sir Walter Scott, novelist, poet and Sheriff, described it as “that bastard verdict, not proven.” Lord Moncrieff, who commented in 1906 that this verdict was “theoretically and historically indefensible,” was one of the many eminent judges who attacked the verdict. In contrast, other famous Scottish lawyers have supported it. Lord Justice General Clyde, for example, commented in 1964 that “ for upwards of 200 years a not proven verdict has been available and no convincing argument has been advanced to justify its elimination from our law.”
The Thomson Committee which examined Scottish criminal procedures in 1975 recommended that the three verdict system be retained and in 1993, the Scottish Office concluded that “it was not convinced that there was enough groundswell of dissatisfaction from the public and, crucially, from the legal profession” to abolish the not proven verdict. Most recently in 1994, the British Government in a White Paper entitled “Firm but Fair” made no proposals for any changes to the Scottish verdict system because of the absence of “a considerable weight of informed opinion against the verdict.”
The Scottish Law society concludes “it would appear that there is no immediate prospect that there will be any change in the current three verdict system” and
also notes that the “challenge to the (non proven) verdict stems from the dissatisfaction and feelings of injustice suffered by the families of victims of crime."
A verdict of not proven or not guilty brings proceedings to an end but, should the majority of the Scottish judges hand down a not guilty verdict, the legal road ahead could be both long and complex. A retrial is not competent (possible)," Scottish solicitor Alistair Bonnington said. "An appeal against conviction, sentence or both can be made on the basis of a 'miscarriage of justice'." Five judges sitting in the High Court of Criminal Appeal would then hear the appeal. Beyond the appeal court, the accused could petition the Scottish Criminal Cases Review Commission. The commission was established in April 1999 and has the power to refer cases back to the High Court for further consideration should fresh evidence be uncovered which casts doubt on the validity of the initial trial decision.
As detailed on the University of Glasgow’s School of Law website, “the recent devolution settlement between Scotland and the rest of the UK contained in the Scotland Act means that the Scottish High Court is no longer invariably the final arbiter of criminal matters in Scotland (or its temporary “legal island” in the Netherlands ). Scotland must now comply with the European Convention on Human Rights. The website argues that “it is therefore possible that a fiercely-contested argument from defence ( could be ) that the Crown in the Lockerbie case has acted in breach of the accused’s rights as enshrined in the European Convention and the case could be taken to the Judicial Committee of the Privy Council, or referred to a European court of appeal.
Although, in law lecturer Clare Connelly’s words, “the not proven verdict has the same effect as a not guilty verdict, namely, the accused is acquitted and cannot be tried again for the same crime,” this ‘third verdict’ would leave a bitter taste of dissatisfaction and injustice in the mouths of the friends and family of the ill-fated passengers of Pan Am Flight 103. To reach any kind of “closure”, the bereaved should know that the right person or persons have been found unequivocally guilty of the heinous crime that claimed 270 innocent lives, and turned a corner of a Scottish field into a memorial that is forever a testimony to the horrors of international terrorism.
© 2001 Al Bawaba (www.albawaba.com )