Late 2009 saw a curious flurry across the EU as a string of prosecutions took place, and changes to the law were proposed  to deal with Bush-era rendition. Steven Raeburn investigates whether Scotland – heavily implicated in the process – could be the next jurisdiction to see arrests and prosecutions.

When the world shifts on its axis and takes the political heavyweights toppling with it, sometimes it can be hard to see what made now powerless figures once look so imposing, when they are safely behind you and diminishing in influence each passing day. The world seems to have forgotten its fear of the USA now that regime change has been successfully effected there, as proven by the conviction in Rome in November 2009 of 22 CIA operatives and one US pilot for kidnapping Abu Omar right off the streets of Milan and sending him abroad to be tortured. Those convicted included the head of the CIA in Milan, Robert Lady. Such defiance would have been unthinkable in the unthinking days of Bush-era dominance. It is the first prosecution of its kind.

It’s not confined to Italy either. That same week in London the Westminster all party Parliamentary group debated whether the crime of rendition should be formalised and written into law as a statutory offence, signalling a change of will, if not in policy, towards the criminal acts carried out in our name by our Government formerly in secret.

In 2007 EU Commissioner Giovanni Fava published a report naming Prestwick airport among several favoured by the CIA as a host of its torture flights, although no charges have ever been brought in respect of whatever took place there. But given the Europe - wide appetite to try to reclaim the moral high ground, it is worth considering whether there are already options available to bring charges under the common law if necessary, for events that appear to be well supported evidentially, and which the UK Government is proposing to clarify in black and white as definite crimes.

“I’m convinced that Scottish law as it is at the moment has been breached, and certainly an investigation should have taken place. Prosecutions could probably have followed. We don’t need to wait for a change in the law, but there obviously seems to be a lack of will to do anything about it,” says human rights specialist and solicitor advocate John Scott.

“It is an area that falls – at least to an extent – outwith the competence of the Scottish Parliament, although Scottish criminal law is certainly a matter for the Scottish police and the Scottish Crown Office. It is something that has fallen between the two jurisdictions. Westminster has been denying there is a problem, although each denial has been followed by proof that the denial was a lie. In Scotland, the Scottish Government has said they are completely against the support of rendition, but haven’t really shown a willingness to insist that something is done about it or at the very least the matter is investigated. The Scottish police have adopted the ostrich-like approach of “Don’t look, don’t find”.

But why aren’t they looking?  It would probably be a comfort to Scots everywhere to have reassurance that the Police had looked into this and satisfied themselves as to the position either way. But as Operation Ore, Operation Blade, drink driving and mobile phone use crackdowns demonstrate, policing priorities are driven by a political agenda, rather than what the available evidence may show or the public appetite demand.

“I’m not sure why the police haven’t investigated it,” says Scott.

“One of the last things we did at the Scottish Human Rights Centre before it folded was to write to all of the Chief Constables in Scotland where there were international airports and asked them if – given the information available at that stage- were they not planning on investigating the matter? We received no satisfactory replies, which more or less suggested that no complaints had been made to them.  Whatever tentative inquiries they had made had always been met with assurances that nothing untoward had taken place.

“Given that we have had repeated assurances from Foreign Secretaries and Home Secretaries that nothing untoward has taken place based on assurances from the Americans, only to have corrections issued later on and grudging admissions that certain things had happened, we can’t now give any credibility to the denials. There is certainly enough information to justify proper investigations. Whether they do it themselves or whether they are directed to do it, Scottish Police Forces should be looking into it.”

The Firm asked the Lord Advocate to advise if Crown policy towards kidnap and rendition has changed, or indeed if it was going to change, as it appears to have in Italy and England. She declined to comment.

The Crown Office also refused to address the questions put to it by the Firm, but instead offered a statement via one of its communications staff. They refused to identify the individual who outlined the Crown’s position, which is that they consider torture to be a crime under Scots law already without necessity of a clarifying statute.  They also throw the onus of responsibility back to the police.

“Torture is an abhorrent practice and is a crime under Scots law.  The Crown Office and Procurator Fiscal Service takes allegations regarding offences of torture being committed within Scottish jurisdiction very seriously,” the statement said.

“While Civil Aviation and in particular the control of flights in and out of Scotland, is a reserved matter and thus the responsibility of the United Kingdom Government, torture or attempts to commit or conspire to commit torture are crimes under Scots law.

“It would be a matter for the police to investigate any such allegations and report to the Procurator Fiscal, and for the Procurator Fiscal to decide whether there was a sufficiency of evidence to commence criminal proceedings in respect of such allegations.

Whilst the Lord Advocate did not contribute, the statement did confirm that the Crown’s policy has not changed as a result of developments in Italy and Westminster, which suggests that the recent reshaping of attitudes in connection with rendition elsewhere is more in line with the Scots law position as it has always been.

“The policy of the Crown Office in respect of these matters remains the same as with the consideration of any allegations of crime; namely where sufficient evidence of a crime is identified,  it is in the public interest to prosecute and there is jurisdiction to prosecute, there will be a prosecution.”

All of which begs the question that, with so much evidence indicating that crimes of rendition in Scotland appear to warrant a thorough investigation, why have there been no charges brought or inquiry launched?

“To date no specific allegation against any individual has been made in relation to the unlawful transportation and torture of terror suspects through airports in Scotland.  It would be for the police to investigate any allegations of a crime having been committed and to report the result of their investigation to the Procurator Fiscal.  If such a report was received it would be given very careful consideration.

“Anyone who has evidence of criminal offences being committed within Scotland should provide that information to the police in the first instance.”

The distinction between the airport and the individual may be a crucial one.  Fava’s report did not name individual Prestwick airport staff, but concluded the airport had been used for CIA flights for the purposes of rendition.  The Crown seem to be suggesting that the machinery of justice is ready to be rolled out, if only they knew who exactly to point themselves towards.

There appears to be no doubt that the Courts would back them, too. In 2000 the House of Lords R v Mullen case overturned the conviction of an IRA member whose criminality and danger to the public was not in doubt, on the basis that the manner of his detention and transport – held to be “in disregard of available extradition procedures” - were a clear violation of the rule of law.  His conviction and 30 year sentence on charges of conspiracy to cause explosions likely to endanger life was overturned as a result, such is the priority placed by the courts on doing the right thing, legally speaking. Moral authority, once lost in transportation, cannot be regained in the courtroom afterwards.  

“This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations,” the House of Lords found.

“The conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts.”

With protection such as that existing in the pre 9/11 environment for both the rule of law and defenders under it, it is arguable that the public interest today would demand robust investigation of anyone at Prestwick or elsewhere in Scotland who may have worked to subvert the path of justice so clearly laid out. The present UK Government appears to be losing this battle with a judicial death by thousand rulings against them.

Any action taken by the police are also likely to find favour and backing from local MP Brian Donohoe, who has been told by Westminster that nothing untoward happened at Prestwick, and he’d be mad as hell if it turned out he’d been told porkies.  On the record, he said he would be “very angry”. Off the record, he says if a minister lied to him about this, he’d “have him.”

“I’ve examined this, and had assurances from two Foreign Secretaries and also from Justice Minister Jack Straw and the Home Secretary that none of the services that went through Prestwick had anything to do with this.  That has been from the outset,” he said.

He told the Firm at this stage he was satisfied planes passing through Prestwick had not been involved in renditions.

“I am being told that by the Foreign Secretary. I’d be very angry if it was the case if I was told that it wasn’t the case when assurances have been given. And I had asked and they hadn’t been given. Any time it has been the topic of debate in the House or about this as an issue by the foreign secretary, or for that matter by the home secretary, I’m informed beforehand.”  

John Scott believes that the whole approach of the justice authorities in relation to rendition has been handled incorrectly, but adds that there is adequate justification – both evidentially and politically- to take the appropriate action even now.

“If we don’t investigate it on the basis of what we know just now, then the message it sends out is that we won’t investigate a reported crime unless we already have enough proof to take it to court. That is not the basis on which crimes should be investigated,” he says.

“There is no excuse for not doing that. This is such a serious crime at domestic level, and in terms of our international obligations and commitments to have nothing to do with torture. It needs to be investigated now. Unfortunately there seems to be a lack of frankness on the part of the UK Government about its complicity and rendition and associated activities involving the intelligence services and what happened to Binyam Mohamed when he was tortured abroad.  More and more is being scoped out.

“Unfortunately the more which is scoped out through denials and obfuscations, the more it looks as if this has been a cover up, rather than a result of laziness or incompetence.  This is a wilful failure to pay proper regard to our international obligations, and the fact that rendition is a criminal matter under Scottish law.

“They are treating us all like children. Now it is beyond dispute that something needs to be done. Introducing a new law might be message politics, but actually there is nothing to stop the UK Government, the Scottish Government or Scottish Police forces doing something about it now. It is an absence of will, rather than an absence of law.”

The big bad Bush has gone, and the UK’s most evangelical follower of US policy, Tony Blair, is burrowing himself deeper into the mire of culpability through the Iraq Inquiry hearings. The law may be slow, but if properly exercised, there is no hiding place. Pure dead brilliant, eh?