Professor Robert Black, the ‘architect’ of the Lockerbie proceedings in Zeist, has hit back at UN Special Observer to the lengthy trial of Abdelbaset Al Megrahi, Dr Hans Kochler, who yesterday issued a statement attacking Black’s view that the Zeist accord had expired.

Kochler had argued that the original terms of the intergovernmental agreement that allowed the unique trial to take place outside Scotland was still in effect. Comments by Black published in the Sunday Times contradicted this view. “This is now the second appeal …[and] “the agreement was spent,” Black had said.

In an exclusive letter to the Firm, Black has opened up an extraordinary dialogue with the UN Observer, rebutting the points made in yesterday’s statement, reported online in the Firm. Kochler had argued that the procedural hearing undertaken last week at the High Court in Edinburgh should have been heard in Zeist, in accordance with the originally brokered agreement, wrought after lengthy negotiations involving the heads of both the UK and US Governments, as well as Colonel Muammar Al Qhadhafi of Libya, Nelson Mandela and Professor Black.

“’The trial’ “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.”” As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal,” Kochler pointed out.“Nowhere does the agreement distinguish between a “first” and a “second” appeal.”

Professor Black challenges Kochler, claiming the opposite is in fact the case.

“Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place,” Black now says.

“Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period  (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the future.”

Black goes on to say that this ‘unreasonable consequence’ would be rejected by any court hearing the proceedings.

The procedural hearings last week examined whether the fresh appeal should be limited to only those grounds identified by the SCCRC which may constitute a miscarriage of justice. Megrahi’s defence argued that those grounds are extremely limited, and do not allow a thorough assessment of the possible grounds of appeal.

Professor Black’s statement can be read in full below.
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Dr Köchler is wrong in his interpretation of the intergovernmental agreement. It covered a trial and an appeal, both of which have now taken place. Extraordinary processes subsequent to the conclusion of trial and appeal (such as applications to the European Court of Human Rights in Strasbourg and applications to the Scottish Criminal Cases Review Commission and procedure flowing therefrom) are not covered by the extraterritorial provisions of the agreement and no court would interpret the agreement as embracing them. Clearly, neither the Government of the Netherlands nor the Government of the UK would have agreed to maintaining the Scottish Court (and the Scottish prison) in existence at Zeist for an indefinite period (amounting potentially to decades) to cover the event of a successful application being made to the SCCRC at some indeterminate time in the
future. Dr Köchler’s interpretation would entail precisely that unreasonable consequence and, for that reason alone, would be rejected by any court tasked with construing the agreement. It is noteworthy that Mr Megrahi’s current (and highly expert and experienced) legal team have deliberately decided that a submission that the extraterritoriality provisions of the intergovernmental agreement should apply to the new appeal, was not worth pursuing.'

Prof Robert Black QC FRSE