Pet And Complaint Of Abdelbasset Ali Mohamed Al Megrahi And Al Amin Khalifa Fhima V. Times Newspapers Ltd And John Witherow And Nicholas Rufford
| Jurisdiction | Scotland |
| Judge | Lord Coulsfield,Lord Caplan,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 10 August 1999 |
| Published date | 06 October 2000 |
PETITION TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY
| Lord Justice Clerk Lord Coulsfield Lord Caplan
| Misc. 104/99 OPINION OF THE LORD JUSTICE CLERK in PETITION and COMPLAINT of ABDELBASSET ALI MOHAMED AL MEGRAHI and AL AMIN KHALIFA FHIMA Petitioners; against TIMES NEWSPAPERS LIMITED, JOHN WITHEROW and NICHOLAS RUFFORD Respondents: _______ |
Petitioners: Taylor, Q.C., Beckett; McCourts: Keen, Q.C., McLeod; McGrigor Donald
Respondents: Lord Advocate, Armstrong for the public interest: Davidson, Q.C., Clark; Crown Agent
10 August 1999
This petition arises out of the publication of an article and editorial in the issue of the Sunday Times newspaper on 23 May 1999.
On 21 December 1988 270 persons were killed as a result of a bomb exploding on a Pan American World Airways aircraft on flight 103 over Lockerbie. On 13 October 1991 the sheriff of South Strathclyde, Dumfries and Galloway granted a warrant for the arrest of the petitioners, against whom charges of conspiracy to murder, murder and contravention of section 2(1) and (5) of the Aviation Security Act 1982 had been preferred in connection with that explosion. The petition in respect of which the warrant was granted alleged, inter alia, that the petitioners had conspired together and with others, and acted in concert together and with others, to further the purposes of the Libyan Intelligence Services by criminal means, and in particular the destruction of the aircraft and the murder of its passengers
In a letter dated 24 August 1998 to the Secretary-General of the United Nations the acting permanent representatives of the United Kingdom and United States of America proposed that the petitioners should be tried before a Scottish court sitting in the Netherlands in accordance with the arrangements set out in that letter. Following on resolution 1192 of the Security Council of the United Nations on 27 August 1998, the governments of those two countries entered into an Agreement dated 18 September 1998 for the regulation of the sitting of the Scottish court in the Netherlands and all matters necessary for the proper functioning of that court in the Netherlands for the trial of the petitioners. On the same day there came into force The High Court of Justiciary (Proceedings in the Netherlands)(United Nations) Order 1998, which was made in exercise of the powers conferred by section 1 of the United Nations Act 1946. This provided by Article 4 that, upon notice being given that both of the petitioners were present in the Netherlands, a direction was to be given forthwith that in respect of the proceedings against the petitioners and subject to Articles 6 and 14 of the Order, the High Court of Justiciary was to sit in the Netherlands at premises made available by the government of the Netherlands for the purposes of proceedings conducted by virtue of the Order. Article 5 provided for the appointment of three Lords Commissioners of Justiciary to constitute the court, conduct the trial without a jury, and following its conclusion deliver its verdict. Para (6) of Article 5 provided that in the event of a verdict of guilty, the presiding judge was to pass sentence and that, without prejudice to its power apart from that paragraph to give a judgment, the court should, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction. Article 7 provided for the appointment of an additional judge who could take the place of a member of the court in certain eventualities. Article 10 of the Order stated that anything which, under or by virtue of any enactment or other rule of law, required to be done or might be done by a sheriff in relation to criminal proceedings might, in relation to proceedings conducted by virtue of the Order, be done by any sheriff who would have jurisdiction if the proceedings were taking place in Scotland; and at the premises of the court.
On 5 April 1999 the petitioners travelled to the Netherlands, where they were handed over to United Kingdom authorities and arrested. On that date the appropriate direction was given in accordance with Article 4 of the Order. Thereafter the petitioners appeared before a sheriff in accordance with Article 10. On 14 April they were fully committed for trial. Since the date of their arrival in the Netherlands they have remained detained within the premises of the Scottish court in the Netherlands. On 7 June 1999 the 110 days period within which the trial of the case required to commence, in terms of subsection (4)(b) of section 65 of the Criminal Procedure (Scotland) Act 1995, was extended by a judge of the High Court to 4 February 2000. On the same date the period within which the indictment was to be served was extended so as to expire on 31 October 1999.
The first respondents are the owners, printers and publishers of the Sunday Times newspaper. The second respondent is its editor. The article which is complained of bore to have been written by the third respondent. It carried the headline: "Official: Gadaffi's Bomb Plot". It stated that during the period from 1990 to 1995 the security services of the United Kingdom obtained intelligence that Colonel Gadaffi, the Libyan leader, had personally ordered the bombing in revenge for an American air raid on Tripoli. The article was written against the background of a recent diplomatic initiative which could lead to the restoration of certain relations between Libya and the United Kingdom and significant orders for British companies. The article stated that the United Kingdom Government had "issued a last-minute gagging order" against the newspaper preventing it from publishing details of the intelligence operation which had produced this evidence. It was stated that Colonel Gadaffi had instructed Abdalla Senussi who was head of his External Security Organisation (ESO). Senussi was his brother-in-law and the first petitioner's supervisor. He had used the same method to blow up a French airliner, for which he had been sentenced in absentia in March. It was also stated that Said Rashid, who was described as "one of Gadaffi's inner circle", head of the engineering section of the ESO and a cousin of the first petitioner, ordered timers from a Swiss company. Fragments of a bomb timer from the wreckage of the Pan American aircraft had been traced to this order. Rashid had been sentenced in absentia by an Italian court for his part in the assassination of a Libyan dissident in 1980. In the editorial it was stated, under the headline: "The Guilt of Gadaffi" that, inter alia, "it would be an odd sort of justice that found his cat's-paws guilty of murder and let the real villain off the hook". It also went on to state:
"But even if the suspects are convicted (and it is conceivable that a verdict in Scottish law of not proven or even not guilty might be found after all this time), what will the Government do then? Lift sanctions against a regime convicted of mass murder".
The petitioners seek to have the respondents held to have been in contempt of court. They also seek an order prohibiting the respondents, pending the completion of their trial, from publishing any article, feature or comment relating to the proceedings against the petitioners which is liable to prejudice the administration of justice in general and the case against the petitioners in particular. At the hearing of the petition submissions were made on behalf of the first and second petitioners by Mr. W.J. Taylor, Q.C. and Mr. R.S. Keen, Q.C. respectively. The petition was opposed by the respondents, who were represented by Mr. N.F. Davidson, Q.C. The Lord Advocate, to whom the petition had been intimated, appeared for the public interest. He adopted a neutral position and provided information on a number of matters for the assistance of the court.
Counsel for the petitioners maintained that the article and editorial contained a series of assertions of fact in regard to allegations which the Crown would require to prove at the trial. A fair and dispassionate reader would be left with the impression that the guilt of the petitioners could be taken for granted, and that if there were to be an acquittal, it would not be because the petitioners were innocent, but because the evidence had been adversely affected by the passage of time. The effect of what was written was all the greater as it was partly contained in an editorial in a quality newspaper.
Mr. Taylor and Mr. Keen both invoked the strict liability rule as it is expressed in sections 1 and 2 of the Contempt of Court Act 1981. They pointed out that, by reason of the terms of paras. 4 and 11 of Schedule 1 to that Act, the criminal proceedings against the petitioners had become "active" again for the purposes of the Act with their arrest after they reached the Netherlands on or about 5 April. Section 1 defines the strict liability as meaning:
"the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings, regardless of intent to do so".
Section 2(2) states:
"The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".
Counsel referred to a number of authorities for the propositions - which were not in dispute - that (i) the "risk" must be more than minimal or remote; (ii) "seriously" required a real impediment or prejudice to the course of justice; and (iii) the test fell to be applied at the stage of publication, without regard to what might have happened or might happen thereafter. (Att. Gen. v. English [1983] 1 A.C. 116, per Lord Diplock at page 141; H.M. Advocate v. Caledonian Newspapers Limited 1995 S.L.T. 926 at pages 929-930; and H.M. Advocate v. Scotsman Publications Limited 1999 S.C.C.R. 163 at page 167).
Mr. Taylor also sought to rely on...
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