UN claims Lockerbie trial rigged; Court was politically influenced by US

By Neil Mackay, Home Affairs Editor, Sunday Herald (Scotland), 8 April 2001, pg. 1

The United Nations has savaged the Crown Office’s handling of the Lockerbie trial, claiming the outcome was rigged through the unfair suppression of evidence; it was politically influenced by the USA; and the court had no grounds to return a guilty verdict.

Dr Hans Kochler, who was handpicked by UN Secretary General Kofi Annan to act as the international observer during the trial in Holland, hinted that the trial was rigged, claimed the guilty verdict handed down in February to Abdelbaset Ali Mohamed Al Megrahi was arbitrary and irrational and gave his tacit support for an acquittal at the planned appeal. His co-accused, Al Amin Khalifa Fhimah, was found not guilty.

Kochler’s report, which calls for the case to be re-investigated and is heavily critical of the conduct of the three trial judges—Lord Sutherland, Lord Coulsfield and Lord MacLean—has sparked a bitter war of words between the Scottish Executive, the Crown Office and the United Nations. But a spokesman for Colin Boyd, the Lord Advocate, said Kochler had completely misunderstood the trial and was ignorant of Scots law.

Kochler’s report said the presence in court of two state prosecutors from the US Department of Justice was highly problematic, adding: This created the impression of ’supervisors’ handling vital matters of the prosecution strategy and deciding, in certain cases, which documents were to be released in open court or what parts of information were to be withheld.

He pointed to the handling of the key prosecution witness, Majid Giaka, a Libyan double agent who implicated both accused in the bombing of Pan Am 103, as proof of how representatives of foreign governments in the Scottish courtroom led to a serious problem of due process.

During the case, CIA documents concerning Giaka were dismissed as not relevant by the prosecution. The documents were later released in a censored form and, said Kochler, proved to be of high relevance.

This seriously damaged the integrity of the whole legal procedure, he said, claiming the US officials jeopardised the independence and integrity of legal procedures.

He added that this negatively impacted on the court’s ability to find the truth. Kochler criticised the trial judges for introducing a political element into the proceedings by letting the US prosecutors sit in court.

The report also says: It was a consistent pattern during the whole trial that—as an apparent result of political interests and considerations - efforts were undertaken to withhold substantial information from the court.

Kochler again pointed to a number of documents relating to Giaka not being made available to the defence. It may never be fully known to what extent relevant information was hidden from the court, he said.

The UN also condemned the administration of Scottish justice following a statement by the Lord Advocate, Colin Boyd, claiming that an unnamed foreign government had substantial new information relating to the defence case.

The information was never provided despite the defence planning to show that a Palestinian terrorist group carried out the bombing, not Libya. The accused’s lawyers effectively went on to put on no defence.

Kochler says shrouds of secrecy and national security considerations prevented them putting on an adequate defence. The court seems to have accepted that the whole legal process was seriously flawed, the report said. As a result foreign governments may have been allowed to determine which evidence was made available to court.

Pointing to a number of witnesses, such as Giaka, who lied in court, the report said: Virtually all people presented by the prosecution as key witnesses were proven to lack credibility to a very high extent.

Kochler questioned the judges’ conduct in incorporating this evidence into the verdict, saying: It seems highly arbitrary and irrational to choose only parts of their statements for the formulation of a verdict that requires certainty ’beyond any reasonable doubt’.

Kochler added: The air of international power politics is present in the whole verdict of the judges The guilty verdict is particularly incomprehensible in view of the admission by the judges that the identification was ’not absolute’.

He said the verdict was exclusively based on circumstantial evidence while not one single piece of material evidence linked Megrahi to the crime.

Political considerations may have been overriding a strictly judicial evaluation of the case and adversely affected the outcome of the trial, the report says. This may have a profound impact on the evaluation of the professional reputation and integrity of the three Scottish judges.

A certain co-ordination of the strategies of the prosecution, of the defence and of the judges’ considerations during the latter part of the trial is not totally unlikely. This however—when actually proven—would have a devastating effect on the whole legal process of the Scottish court.

He said this was not compatible with the independence of the judiciary and put in jeopardy the very rule of law and the confidence citizens must have in the legitimacy of state power. The report added: There are many more questions and doubts at the end of the trial than there were at its beginning. The search for the truth must continue.

Kochler added that he hoped an appeal will correct the deficiencies of the trial.

A spokesman for the Crown Office said: The UN observer, Dr Kochler, appears to have misunderstood a number of aspects of criminal procedure and processes in this case. The Crown pointed out that it was up to the prosecution and defence teams, not judges, to investigate the case and decide which evidence is heard in court.

The suggestion that the verdict was politically motivated again proceeds on a complete misunderstanding of the function and independence of the judiciary, he added.