Geoffrey Robertson QC on Megrahi’s right to silence

I have just come across the following passage about the Lockerbie trial in the latest edition Geoffrey Robertson QC’s book Crimes Against Humanity: The Struggle for Global Justice (pages 665-6). My comments follow.

The importance of the trial was that it established, to the satisfaction of three experienced Scots judges (and five more on appeal) that the bomb was planted by an agent of Libya, not by terrorist groups supported by Iran or Syria. The open and adversarial nature of the proceedings also served the interests of truth – in particular by subjecting the CIA’s star witness to a cross-examination which comprehensively destroyed his credibility, and through painstaking forensic science, which found tell-tale clues in tiny fragments which fell from 31,000 feet (the ‘made in Malta’ label from the Babygro jumpsuit covering the suitcase bomb). The reasoned verdict proved important, not least because it has informed subsequent debate over the correctness of Al-Megrahi’s conviction.

Lockerbie stands as an important acknowledgement in state practice of the overriding importance of bringing terrorists to justice. It also provides a good example of why international criminal courts should abolish the so-called ‘ right of silence’. Al-Megrahi was too craven to enter the witness box to face cross-examination, later claiming that his lawyers advised him to remain silent. This may well have been because they feared his guilt would have been exposed had he done so, but as a matter of morality, whenever a court holds that the prosecution has established a prima facie case of mass murder against the defendant, the relatives of victims and the public should be entitled to an explanation. If he refuses to take the opportunity to testify, his refusal should be a factor in the assessment of whether he is guilty. Al-Megrahi’s supporters who claim that ‘he always asserted his innocence’ overlook the fact that he failed to assert it at the appropriate time, namely in the witness box at his trial. The ‘right to silence’ is a valuable protection to suspects against being forced to incriminate themselves in police stations after their arrest but is inappropriate at the trial, by which time they will have had years of legal advice to prepare themselves for cross-examinations. The so-called ‘right’ has been abolished in England, where it originated, but not in any international court.

Before discussing Robertson’s view of the Megrahi’s right to silence, it’s worth noting some of the serious omissions from his account.

1. For a trial to operate openly and in the interests of truth, all relevant evidence should be disclosed to the defence. As Robertson well knows, it was not. The SCCRC report and my book (which Roberston confirmed, during a debate on BBC 5 Live on 21 May last year, that he had read) revealed that numerous items of vital documentary evidence had been withheld from the defence. Indeed, four of the SCCRC’s six grounds of referral concerned such non-disclosure.

2. The five appeal court judges did not conclude that the bomb was planted by an agent of Libya and not by terrorist groups supported by Iran or Syria. Rather, they simply rejected the defence’s submissions. Moreover, in doing so the judges made clear in paragraph 369 of their judgment that they had ‘not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.’

3. Defence counsel were only able to destroy the credibility of the CIA’s star witness, Majid Giaka, because they pushed for the disclosure of redacted sections of CIA cables about Giaka. The Lord Advocate had earlier told the court, entirely wrongly, that those sections contained nothing that bore upon Giaka’s credibility.

4. As Robertson should also know, the ‘painstaking forensic science’ examined at trial did not include the results of crucial metallurgy tests, which proved that the fragment of circuit board, which, according to the Crown, originated from one of a batch of Mebo timers supplied to Libya, was different to boards used in those timers.

5. The ‘reasoned verdict’ was condemned as ‘incomprehensible’ by UN trial observer Professor Hans Kochler, and has been criticized by numerous other senior international jurists and Scottish legal experts. Moreover, the SCCRC concluded that it was ‘at least arguably, one which no reasonable court, properly directed, could have returned.’ The judges were satisfied that Megrahi bought the clothes that ended up in the bomb suitcase on 7 December, his only window of opportunity, however, the SCCRC said: ‘The Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House’. This was almost as good as saying that it considered, not only the judgment to be unreasonable, but also the guilty verdict itself.

As for the right to silence, Megrahi was not ‘too craven’ to give evidence, in fact he was quite prepared to. It is undisputed fact – not merely a claim by Megrahi – that his lawyers advised him against it. As Robertson knows, one of the main reasons for this advice was that, a few days after being charged with the bombing, Megrahi had lied in an interview with American TV channel ABC, which he had been falsely assured would not touch upon the prosecution case. He did so, he said, because he feared that, if he confirmed certain aspects of the case, such as his presence in Malta under a false passport, it might provide a pretext for the US government to attack Libya, something it had done five years earlier in response to a much smaller terrorist attack (see pages 11-12 of Megrahi: You are my Jury). It would be a difficult point for any defendant to argue against a ferocious Crown counsel. Megrahi’s difficulty would have been all the greater because he would have to testify in his second language, or via a translator.

The SCCRC gave detailed consideration to Megrahi’s untested defence and numerous other matters that might be considered unfavourable to him. It concluded that, cumulatively, they did not provide a basis for refusing his application for referral.

The fact that Robertson clearly does not believe Megrahi’s story, I suspect, says more about how far removed he is from other people’s realities than it does about Megrahi’s guilt or innocence (he has never, as far as I’m aware, lived under the threat of air strikes). More importantly, if he doesn’t believe the story, then why would equally unworldly judges? The right to silence is, inter alia, a safeguard against such failures of understanding. It exists – or, in England, existed – because the burden of proof is, properly, with the Crown and no defendant need contribute to their own prosecution. That a human rights advocate of Robertson’s stature should advocate its abolition, is as bewildering as it is alarming.

In an endnote, Robertson writes:

Al-Megrahi’s latest self-serving defence is set our in John Ashton, Megrahi You Are My Jury (Birlinn, 2012). But if the bomb was loaded in Malta, the circumstantial case against him remains, without a credible answer.

Isn’t a defence supposed to be self-serving, Geoffrey? Setting this aside, he ignores the fact that, at Megrahi’s insistence, the book set out the case for the prosecution as well as the defence, including evidence not heard at trial. Furthermore, Megrahi requested that I publish the SCCRC report on his case, even though it contained facts and opinions that were unfavourable to him.

The Malta point is utter nonsense. As Robertson should know, even if the bomb was loaded at Malta’s Luqa airport (a possibility that’s all but ruled out by documentary evidence from the airport) the circumstantial case against Megrahi is exceptionally weak. The two main strands of that case are 1) that on 7 December 1988 he bought the clothes at Tony Gauci’s shop, which were subsequently packed in the bomb suitcase; and 2) that a fragment of circuit board recovered from one of the garments was part of a bomb timer that had been supplied to Libya by Swiss company Mebo, whose Zurich offices were shared by a company in which Megrahi was a partner. Gauci consistently described the clothes purchaser as around 50, 6ft tall, heavily built and dark skinned. Megrahi was considerably younger, smaller and lighter skinned. Furthermore, as the SCCRC recognised, meteorological and other evidence ruled out 7 December as the purchase date. Forensic evidence, which, despite being available since the early 1990s, was not disclosed to the trial court, proves that the circuit board fragment could not have originated from a Libyan timer.

For what it’s worth, in my view Robertson has put so much energy into the promotion of international justice that he is blind to the possibility that it can so spectacularly miscarry.  More generally, he displays the depressing tendency of the commentariat to put opinions before the evidence. It’s a trait that’s all the more lamentable in a senior jurist.



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