The tide in Lockerbie is around our ears; it is too late to play Canute, but there is just about time to lift up our heads
I will admit that the Scottish legal system is not my area of expertise. I try hard to follow the key debates and manage to have some opinions on elements of change but I simply don’t have the tools to really investigate the state of our justice. I could tell there was something profoundly rotten it the Shirley McKie fingerprint case. There was just too much stonewall and not enough convincing argument, too many holes and too many people who simply didn’t buy it. I knew the second I heard it that the Scottish legal system was on the wrong side of the slopping out debate. Likewise on Cadder and the right to a lawyer (although I must admit to having some mixed opinions on that one).
On the other hand, I have absolutely no patience with the ‘its not a proper legal system’ attitude that seems to be creeping into debate. There is no credibility in the argument that we should have a different relationship to the Supreme Court than other legal systems just because Jim Wallace has a bunch of new friends in ermine (and because he really, really doesn’t like the Scottish Government). Likewise, I sat on a jury a couple of years ago and found myself compelled by the idea of corroboration. I felt good to know that one piece of evidence wasn’t enough to take away someone’s liberty (and was impressed and surprised at the seriousness with which my fellow jurors debated the corroborated evidence we were given). I do understand the difficulty of corroboration in certain types of crime (especially crimes of a sexual nature) but just can’t bring myself to agree that expedience should overthrow what seems to me a sound principle. I am even ready to argue in defence of the ‘Not Proven’ verdict – I have always been confused by those campaigning for its abolition, given that the outcome would be Not Guilty verdicts instead which doesn’t seem an improvement. In fact, I personally favour abolition of the ‘Not Guilty’ verdict. Let’s hold trials and be honest what happened – a case was made against a person and a jury found the case to be proven or otherwise. Guilt is something else.
But then we get to Lockerbie and it all falls apart. I remember the night it happened. Even then I wondered how it is that people could be speculating about who did it within days. How? Just a guess? Then the guess sort of changed (why?) and from that point even my untrained eye seemed to see a process of shoring up that guess.
I am no trial expert but everything I read of proceedings at Camp Zeist bothered me. As soon as I hear the words ‘secret service’ or ‘national security’ I assume that justice cannot be done. That doesn’t mean that the right person isn’t caught and convicted, just that they will not have a real chance to test the case. Witnesses get paid – can you imagine that in any other case? The CIA prompt people with answers, evidence is withheld, nods and winks seem to be taken as statements of fact. And the outcome seemed to me then and seems even more so today that Scottish justice was treated like a flexible concept with which to pursue international diplomacy and keep the spies spying.
I understand the pressures. What bothers me is not so much that we seem to have rented our principles out in return for a fast, easy conviction and an end to the messing around. What bothers me is that even though we must all know something is up, we keep holding to a line of defence. The Justice Secretary seems to have been told that there can be no deviation from the line that the conviction is safe. It looks to me like a system defending itself against the indefensible. (And by indefensible I do not mean that it is corrupt or got everything wrong, but simply that clearly something is wrong and denying it seems futile.)
So here’s a test of our maturity as a nation. Can we put our hands up and say ‘look, we were naive and shouldn’t have been bounced into this. We were, we were wrong and we’re going to put it straight’. Or once more – as in McKie, as in Cadder, as in slopping out – will we just keep reassuring ourselves that the tide will not come in, even as it laps around our ears?