As one man -if not certainly innocent, at least arguably so- spends Christmas away from his family and prepares to die in jail, the “architect” of the unique Scottish trial in the Netherlands, Professor Robert Black QC revisits the case for the first time in The Firm, charting the journey that took him to Libya and ultimately led to  the verdict that remains a stain of shame on Scotland’s legal system.

---

I first became involved in the Lockerbie affair in early 1993.  I was asked if I would be prepared to provide (unpaid) independent advice to the government of Libya on matters of Scottish criminal law,  procedure and evidence with a view (it was hoped) to persuading them that their two accused citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities.  This I agreed to do, and submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons.  

I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland.  The primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence in this case the degree of impartiality and open-mindedness that accused persons are entitled to expect and that a fair trial demands.  A secondary consideration was the issue of the physical security of the accused if the trial were to be held in Scotland.  Not that it was being contended that ravening mobs of enraged Scottish citizens would storm Barlinnie prison, seize the accused and string them up from the nearest lamp posts.  Rather, the fear was that they might be snatched by special forces of the United States, removed to America and put on trial there (or, like Lee Harvey Oswald, suffer an unfortunate accident before being put on trial).

The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers.

Because of UN sanctions, air travel to Tripoli was out of the question.  The normal procedure was to fly to the nearest Tunisian airport on Djerba and then travel by car to Tripoli, a frightening five-hour journey at the best of times but especially so when being driven at breakneck speed in a Libyan government black Mercedes whose driver clearly regarded it as the duty of every other road user to get out of the path of his vehicle, and refused to concede even the possibility that any road user, Tunisian or Libyan, might fail to do so.  

On my return journey in Tunis I discovered that there were no further flights to any European destination that day.  I made a booking for an early flight to London the following morning and proceeded to try to find accommodation for the night. It was only then that I discovered that a meeting of the Council of the PLO was taking place in Tunis and that there was accordingly not a single room to be had in any of the major hotels in the city.

Eventually, however, my taxi driver indicated that he had a friend who ran a small hotel and that he was sure that I would be able to find accommodation there.  He was indeed correct, though I suspect that I am the only guest in the history of the establishment who has ever paid for a room there other than by the hour.

Having mulled over the concerns I returned to Tripoli and on 10 January 1994 presented a letter suggesting that a trial be held outside Scotland, under Scots criminal law but with this major alteration, namely that the jury of 15 be replaced by a panel of judges who would have the responsibility of deciding the ultimate question of whether the guilt of the accused had been established on the evidence beyond reasonable doubt.

This scheme was wholly acceptable, and if it were implemented by the government of the United Kingdom the suspects would voluntarily surrender themselves for trial. The Deputy Foreign Minister of Libya stated that his government approved and would place no obstacles in the path of its two citizens should they elect to submit to trial under this scheme.

A mere four-and-a-half years later the United Kingdom Government agreed to such a procedure. The rest is history, though not a history of which, as yet, the Scottish criminal justice system can be proud.