A primer on Scots law and the Pan Am 103 bombing trial

By Lynne Margaret Douglas
Special to CNN Interactive

A panel of three Scottish judges decided the fate of two Libyans accused of blowing up Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988. The judges heard evidence in a specially convened court situated on a former U.S. Air Force base in the Netherlands. This "trial of firsts" was conducted under Scots law -- a distinctive legal system which Scotland has retained despite becoming part of the United Kingdom in 1707.

"Not only was this trial the largest mass murder trial in Scottish legal history, but it was the first time a Scottish criminal court has sat abroad and the first time serious criminal charges have been heard without the presence of a jury," said Professor John Grant of Glasgow University's Lockerbie trial briefing unit.

There are key differences between Scottish and U.S. criminal procedure. Under Scottish procedure, there were no opening statements at the start of the trial. Three verdicts were possible and because Scotland has no death penalty; the maximum sentence is life in prison.

The charges

Originally, there were three charges. They were drafted as "alternative charges" which means the accused can only be convicted of one of them. The charges were:
• Conspiracy to murder
• Murder
• Contravention of the Aviation Security Act 1982

However, in a surprise move toward the end of the trial, prosecutors dropped the lesser charges of conspiracy and contravention of the Aviation Act. Prosecutors decided to gamble that the condensed pattern of charges and evidence would convince the judges that there is no reasonable doubt that the two are responsible.

Dropping the conspiracy charge took out of play the theory that there were others, possibly Palestinian terrorists, behind the bombing.

The court

A single judge sitting in the High Court of Justiciary, Scotland's supreme criminal court, with a 15-member jury, normally tries serious crimes in Scotland. However, rules governing the Lockerbie trial stated that a three-judge panel could hear the case without a jury. Lord Sutherland (Ranald Iain Sutherland) was the presiding judge. Lord Coulsfield (John Taylor Cameron) and Lord MacLean (Ranald Norman Munro) assisted. A fourth judge, Lord Abernethy (John Alastair Cameron), attended the trial on standby in case one of his colleagues fell ill or was otherwise unable to attend the proceedings.

Scottish legal profession

The Scottish legal profession is divided into two branches: solicitors and advocates. In High Court cases solicitors do not have rights of audience. They must instruct a senior advocate, called Queen's Counsel, to appear. Unlike U.S. lawyers, Scottish Q.C.'s must wear wigs. Criminal prosecutions are brought by the Lord Advocate, the equivalent of the U.S. Attorney General, who heads Scotland's criminal prosecution service.

Prosecution team

The Lord Advocate, Colin Boyd, led the prosecution team at the trial. He was assisted by Alastair Campbell and Alan Turnbull.

Defense team

William Taylor defended Abdelbaset Ali Mohmed Al-Megrahi. Richard Keen defended Al Amin Khalifa Fhimah.

Trial

There are no opening speeches in Scottish criminal trials. Prosecution lawyers began by calling their witnesses and had to prove their case beyond reasonable doubt. Defense lawyers were allowed to cross-examine any prosecution witness. Leading questions were allowed during cross-examination. Prosecution lawyers could re-examine any of their witnesses after defense cross-examination.

After the prosecution completed its case, defense lawyers called their witnesses. Defense lawyers could re-examine any of their witnesses after prosecution cross-examination.

Prosecution and defense lawyers addressed the judges at the conclusion of all the evidence.

Witnesses

Witnesses were asked to testify to what they saw or heard. Witnesses who live outside the United Kingdom could not be compelled to attend Scottish courts. Applications, in the interest of justice, were allowed to record the evidence of foreign witnesses who wished to testify but who were unwilling to attend Scottish trial courts. Such evidence could have been presented in foreign courts or via live television links.

Under Scots law, if two persons are charged with the same crime, the prosecution may call only one as a witness against the other where the guilt or innocence of that witness has been established.

Evidence

No one can be convicted under Scots law without corroboration. That means there must be evidence from more than one source about the essential elements of a crime. Affidavit evidence, meaning signed and sworn statements, is not permitted.

Verdicts

Three verdicts were possible at the Lockerbie trial
• Guilty
• Not guilty
• Not proven

"Not proven is one of the oddities of Scots law," Glasgow University law lecturer Clare Connelly said. "The not proven verdict has the same effect as a not guilty verdict, namely, the accused is acquitted and cannot be tried again for the same crime. It usually means the judge or jury thought the accused was guilty but not beyond reasonable doubt."

The final verdict had to be taken by at least two of the three judges. It was delivered by the presiding judge in open court and published on the internet at www.scotcourts.gov.uk.

Sentencing

The death penalty is not permitted under Scots law. There is no prescribed punishment for a conviction of conspiracy to murder. Any punishment is at the discretion of the court. Life imprisonment is the prescribed punishment for murder or contravention of the Aviation Security Act 1982. Any prison sentence would be served in Scotland.

Appeals

Scottish solicitor Alistair Bonnington said: "An appeal against conviction, sentence or both can be made on the basis of a 'miscarriage of justice'." Five judges sitting in the High Court of Criminal Appeal would hear an appeal. Beyond the appeal court Al-Megrahi could petition the Scottish Criminal Cases Review Commission. The commission was established in April 1999 and has the power to refer cases back to the High Court for further consideration should fresh evidence be uncovered which casts doubt on the validity of the initial trial decision. "A referral is treated in the same way as an appeal," Bonnington said. "The commission itself cannot set aside a conviction".