Why Robert Black won't let the Lockerbie trial lie
AS ONE of Scotland's foremost legal minds, Robert Black's opinions on matters of law are highly valued. Yet Edinburgh University's renowned emeritus professor of Scots law holds one view he feels some would rather he kept to himself. Black not only believes that Lockerbie bomber Abdelbaset Ali Mohmed Al-Megrahi is innocent, but that his murder conviction was the worst miscarriage of justice in Scots law "for 100 years".
Given his links to the case, the irony is not lost on Black. Born and brought up in Lockerbie, he was a practising advocate until accepting the university chair in 1981, and has a degree of personal interest in helping unravel the events leading to the destruction of Pan Am flight 103 over the town in December 1988, killing 270.
Black, 58, was the key architect of the non-jury scheme whereby Megrahi and co-accused Al-Amin Khalifa Fhima could be brought to trial under Scots law at Camp Zeist in the Netherlands in 2000. Without Black's intervention, it is unlikely the Libyans would have co-operated. Fhima was acquitted, Megrahi convicted of murder. His 2002 appeal was rejected, but the case is under consideration by the Scottish Criminal Cases Review Commission. Black is hopeful the independent watchdog will refer the case back to the High Court. "I am convinced they will refer the case back and there will be a second appeal," he says. "This time, the right questions, I hope, will be argued.
"I think the conviction of Megrahi, on the evidence that was led at Camp Zeist, is the most disgraceful miscarriage of justice in Scotland for 100 years - it's as bad as that. It's not just that I think there was a minor mistake, and that these things happen in the best-regulated legal systems - it is just unbelievably bad. Scotland's reputation throughout the world in the criminal justice sphere will be gravely damaged unless and until this is rectified."
Black argues that there are too many flaws in the Crown case for the conviction to be sound. He says a key plank of the Crown's case was that Megrahi had purchased goods in a shop in Malta, which were allegedly found in the suitcase that had contained the bomb.
"What was the evidence? The shopkeeper [Tony Gauci] was able to narrow down the date of purchase to one of two possible dates, because he knew it was a Saturday afternoon when a particular football match was being broadcast on Maltese television. He could not remember whether it was the first or second leg, so it was either 23 November or 7 December. Megrahi was in Malta on 7 December. That could be proved and it was accepted. He was not in Malta on 23 November. To narrow down which of these two days on which these goods were bought was very, very important.
"The defence led evidence from meteorologists because the shopkeeper's evidence was, that whatever date it was, after he had bought the goods, when he got to the door he discovered it was pouring with rain. So, in addition to the goods he had already bought, he bought an umbrella. The meteorological evidence was that on 23 November, there was heavy rain in this part of Malta. On 7 December, the meteorological evidence was that on this part of Malta, there was no rain, or if there had been any rain, it was not enough to wet the ground.
"On that evidence, the Scottish judges held it was 7 December, the date Megrahi was in Malta. I kid you not - it is as bad as that, and that is only one example. Another is the shopkeeper's description of the man who bought the goods - a man of Arab appearance, over 6ft tall, and about 50 years of age. At the time, Megrahi was 36, and 5ft 8in tall. The judges held the person who bought the goods was Megrahi."
Last week, Lord Advocate Colin Boyd called upon his predecessor, Lord Fraser, to clarify what he meant by comments which appeared to cast doubt on the credibility of Gauci's testimony, saying he was "not quite the full shilling".
Black does not attempt to disguise his frustration that the trial he helped get off the ground has resulted in what he believes is a flawed judgment. "I have written about this and nobody is interested. [They think] I have got a bee in my bonnet about Lockerbie. But every lawyer who has taken the trouble to read the judgment of the trial court says 'this is nonsense', and it is nonsense," he says, his voice rising in anger. "It really distresses me. I will not let it go."
Black feels partially to blame for Megrahi's situation. "I feel a measure of responsibility for having suggested this form of procedure and having played a part in persuading the Libyans to agree to it. And then this happens. My concern is not about his guilt or innocence, although I do believe him to be innocent. My concern is that on the evidence led at Zeist, he ought never to have been convicted."
Despite concerns about the potential for pre-trial publicity to have prejudiced a jury, Black now believes the Libyan men may have fared better under the conventional procedure than in the non-jury trial he formulated. Black says: "If they had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence and standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial."
Black's career has taken him into other controversial areas. Ten years ago, he presided over initial inquiry into allegations of nepotism and religious bias at Monklands District Council - an episode he says he "regrets" getting involved with - and also holds outspoken views on the question of selfregulation in the legal profession.
"In the old days, one of the tests of whether a group qualified as a profession was that they were self-regulating. They basically dealt with their own rogues, or people who weren't up to it.
"It is sad that can no longer happen, but I accept that can no longer happen in the type of society we now have. It is not just that you can't trust the professional body to do the job properly. It is that, from a public relations point of view, it looks wrong. Whether they are doing the job properly or not, they are not the right people to do it."
He adds: "If you look at it, the clients complain to the ombudsman that they didn't get a fair crack of the whip from the Law Society. But if you talk to solicitors who have had the Law Society investigate a complaint about them, they talk about the bloody Gestapo coming in and turning your life upside down. So the complainers don't like it, the people who are being complained against don't like it, nobody is happy. Get rid of it. Bring in a system that both sides can live with.
"The Law Society is in a no-win situation. Whatever they do, some of their members will be dissatisfied. I think they have got to bite the bullet and say let's lance the boil and get rid of this function completely and we will then start being a trade union."
Although he is now "semi-retired", Black still enjoys teaching the next generation of lawyers on the LLB course - but adds that he is one of a dying breed of legal academics: "Most academic lawyers, years ago, were like me - they had come up through the ranks of the practising profession. That's unusual these days. In many cases they have never advised a human being with a legal problem in their lives."
Black spends six months of the year at his second home, near a remote village in the Northern Cape of South Africa. He says he "fell in love" with the country after a sabbatical at Stellenbosch University in 1998, and he and a friend are converting an old farm house, Gannaga Lodge, into a hotel.
"It is in the middle of nowhere, literally so. I have got a 50-mile drive over untarred roads till you get to my house, but I can do my work there. I am still writing and researching on various things, including Lockerbie. I have got internet access - very, very slow internet access. For things to download, it takes an age - but you get there eventually," he says.
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