Brian Wilson: Due process outweighs ‘innocence’ claims

THE legal system deserves respect as much as the right to challenge it should be enshrined in law, writes Brian Wilson.

If I could choose where to go on trial for my freedom, I doubt if I could come up with a better place than our own dear Scotland. To the best of my knowledge, our legal system is competent, transparent, honest and independent of politicians.

Sure, it is bound to make mistakes like any other. So if I was offered four judges (three voting and the other to keep them right) then I would probably regard that as a useful safeguard. And if, in the event of something going wrong, I was assured of the opportunity to appeal to a further five men in wigs, then I would conclude that my chances of getting the right result in the end – assuming, of course, that I was innocent – would be as good as they get.

What’s more, I like having the peace of mind that accompanies such optimism. I do not want to live in a society where the judiciary are corrupt, politically malleable or mindblowingly incompetent. Happily, I am entirely confident that none of these conditions exists in Scotland which is, presumably, why our legal system commands respect and emulation around the world. Setting out to destroy its reputation is a deeply corrosive mission.

I doubt if many of my fellow citizens would disagree with any of that, which is what makes the whole “Megrahi was innocent” campaign so remarkable. Not necessarily wrong, I concede, since all judgments are ultimately fallible – but all the more curious because so many of its adherents would, in other circumstances, be at the forefront of proclaiming the superior virtues of Scottish institutions.

Not in this case. The whole, inescapable premise of the campaign to anoint Abdelbaset al-Megrahi as innocent is that when confronted with the biggest case of mass murder in its history and with the eyes of the world upon it, the Scottish legal system messed up on every available count. And what’s more, it did not do so once, but twice. And there were not four of our most eminent judges party to that most monumental bungle, but nine, not to mention a supporting cast of five Lord Advocates, umpteen prosecutors, forensic scientists and policemen. All totally wrong.

I’m sorry, but I don’t believe it. Partly, I’m sure, that is because I don’t want to believe it – almost as intensely as many of the “Megrahi is Innocent” faction want to believe in the superior veracity of their own conclusions. But also because I feel utterly unqualified to disparage the judges who heard the evidence in the Scottish High Court of Justiciary at Camp Zeist, weighed that evidence, confronted the witnesses, freed one of the accused and then reached a conclusion which was upheld in a Court of Appeal.

Those who proclaim Megrahi’s innocence suffer from no such inhibition or self-doubt. And they have some charming bedfellows. According to Saif al-Islam Gaddafi when his circumstances were rather more favourable than at present, his dad’s regime only admitted responsibility in order to smooth the wheels of diplomacy and paid compensation in order to satisfy the “greed” of the victims’ dependants.

The alternative interpretation – that they admitted responsibility and paid compensation because they were responsible – is so much less exciting. But do we really prefer Saif Gaddafi’s rationalisation of admitting guilt to the conclusion of guilt by a Scottish court?

Neither would the fairness of the Scottish judicial system have stopped at one appeal. In non-pejorative acknowledgement of additional evidence, the Scottish Criminal Cases Review Commission opened the door to a second appeal which was due to be heard in 2009. Here, surely, was an opportunity for the matter to be laid to rest once and for all, except in the minds of the most partisan. But then that option was seized away.

Megrahi was suffering from cancer and the Scottish justice minister, Kenny MacAskill, returned him to Libya on humanitarian grounds. As I opined then, this was an appalling decision for a number of reasons – disrespect to the victims of Lockerbie and their families, most of whom believe Megrahi to be as guilty as sin, among them. But also because of the inevitable consequence that the Scottish justice system would be called into continuing disrepute by those who perpetuated Megrahi’s claim to a miscarriage of justice.

Rationally, Megrahi’s supporters should also have objected to the frustration of the appeal process in this way. Instead they were, to a man and woman, cheerleaders for his release. The two claimed justifications for him being sent back to Libya became conveniently intertwined – not only that he was ill but, in any case, he was innocent. The former was true while the latter remains utterly unproven.

Earlier this year, we had another twist to the tale. Megrahi claimed, via his biographer, that MacAskill had offered him a deal through an intermediary. Dropping his appeal would make his compassionate release a lot easier to accomplish and so he dropped it. MacAskill denied that any such understanding was entered into. Whatever the truth, the outcome was the same – a scenario was created in which the Scottish justice system could be disparaged without the additional evidence being put to the test.

Christine Grahame, the SNP MSP who is convener of Holyrood’s justice committee and also a leading advocate of Megrahi’s innocence, asked MacAskill recently if he would set up an inquiry into “the actions of the Crown Office” in the Megrahi case. Incidentally, Ms Grahame also trumpeted her endorsement of Megrahi’s claims about MacAskill being party to the deal over the Libyan’s release. One wonders if she speaks for her committee or only herself in these matters.

Anyway, MacAskill replied: “The only appropriate forum for determining Megrahi’s guilt is a court of law” and it is a pleasure to agree with him. In the wake of Megrahi’s death, MacAskill repeated that it remained open to his family to pursue an appeal through the Scottish Courts. And that, I suggest, is exactly what they should be encouraged to do, Those, like Ms Grahame, who have been such active advocates of his cause and such eager detractors of our legal system would surely help them raise a fund, if required.

There may separately be a political case for inquiring into relationships between British and/or Scottish Governments with Libya over the past decade or so, while Gaddafi was still in power. But that is an entirely different demand. which concerns the politics of relationships rather than the specifics of criminal prosecution. What cannot be conceded is the conflation of the two concepts which, in effect, is what is now being demanded.

We were all brought up to believe that a man is innocent until proven guilty and Megrahi has been proven guilty in the eyes of the Scottish legal system. That system deserves respect for its processes and conclusions just as much as the right to challenge it must be enshrined in law. And the only place to resolve these differences is a court of law, rather than a television studio or political debating chamber.