Lessons of Lockerbie: Advocate who switched to crime and won first case
By Joshua Rozenberg, Legal Editor
FEBRUARY 6, 2001

Keen - in the middle of defence team, carrying red bookIF you were facing life imprisonment for mass murder, would you choose to be represented in court by a lawyer who had never done a criminal case in his life?

 Al Amin Khalifa Fhima did, and he is now a free man, cleared last week of the Lockerbie bombing. Imagine, though, that you are Richard Keen, QC, the 46-year-old advocate who was offered the brief. You are asked, for the first time, to appear for a man whose very liberty depends on your advocacy.

You have built up an enviable reputation in insurance litigation, representing big corporations in cases where large sums of money are at stake, but your skills have never before been tested in a criminal case. If it goes wrong, and your client goes to prison, you will always wonder whether someone with more experience could have won an acquittal. Why do you take it on?

 Keen tells me: "I would hate to have said to somebody, in two or three years from now, 'I could have done that case. I was asked to do it, but I didn't'. That would have been a matter of regret. I'm pleased that I did just go ahead and do it, and I would have been pleased whatever the outcome had been."

 Asked how he coped with his first appearance in a criminal court, he says modestly that, for advice on tactics, he relied on his courtroom team: Jack Davidson, QC, and Murdo MacLeod, both experienced criminal advocates. What, then, did Keen have to offer?

 He explains: "This case involved a mass of highly complex forensic science evidence, of a kind perhaps more usually encountered in the context of civil litigation. I think I was seen to have a particular expertise in the examination and cross-examination of forensic scientists."

 Much of that expertise came from his involvement in Scotland's longest civil hearing, arising from the Piper Alpha gas platform explosion in 1988 in which 167 men died. The case, which ran from 1993 to 1997 and is now on appeal to the House of Lords, was brought to decide whether sub-contractors should contribute towards the £140 million damages that the platform's operators had paid to survivors and victims' families.

 There were surprising parallels with the Lockerbie trial: both cases required not only an ability to master a huge amount of technical detail but also an understanding of explosions and their causes. For Fhima's solicitors, McGrigor Donald, Keen was the obvious choice. Not that they had much experience of crime, either.

As a general commercial practice with 180 lawyers across the country, they sometimes defend corporate clients prosecuted for breaches of trading standards law or of health and safety regulations, but they don't touch what in Scotland is called "common law crime" - murders, assaults and so on.

Edward MacKechnie, the partner who handled the case, normally specialises in construction law. Using civil litigators is more astute than it may appear. Before Fhima acquired his own lawyers, both accused men were represented by Alistair Duff, a solicitor and former prosecutor who set up the small but memorably named firm of McCourts in 1991.

On behalf of Abdelbaset Ali Mohmed Al Megrahi, who was convicted last week, Duff instructed William Taylor, a highly experienced criminal advocate and the first person to hold the rank of QC in both Scotland and England. Taylor, 56, is a big, bluff man. While unfailingly courteous to the judges, he made it clear that he was not going to be pushed around.

In court, when he thought he could get away with it, he would occasionally mimic the strangulated mispronunciations of Alastair Campbell, QC, a son of the manse and the main prosecutor. Few could doubt that the defence had all the best lawyers.

Taylor and Keen complemented each other well. Since the charges against the two accused largely overlapped, at least as originally drafted, their advocates were able to take advantage of each other's strengths to the benefit of both accused men.

 Keen is careful not to disclose what he told his client. However, he must have advised Fhima not to go into the witness box and risk being cross-examined. This tactic paid off - but it could have been fatal. Megrahi also gave no evidence and, in his case, the judges pointedly drew attention to the fact that "no innocent explanation" had been offered for the visit he made to Malata, using a false passport, on the eve of the bombing.

 The main evidence against Fhima came from references in his diary to luggage tags. The judges said these entries could "easily be seen to have a sinister connotation, particularly in the complete absence of any form of explanation". However, Keen must have calculated that the entries could not sustain a conviction.

There was no evidence that Fhima was even at Malta airport when the suitcase containing the bomb was put into the luggage system, let alone that he was involved. Keen ridiculed the Crown's case on this point, saying it amounted to "inference upon inference upon inference upon inference leading to an inference".

 Where does Keen go from here? He is seen as a Conservative supporter, which, these days, does little to enhance one's prospects of a judicial appointment in Scotland. He is not tempted by the offer of chambers in England. Though he rented a fine old house in Utrecht for the Lockerbie trial, the prospect of spending the week in London away from his wife and children holds little attraction.

He clearly relishes a challenge. He says: "I think there was some considerable degree of surprise among many people at the Bar that I had been instructed in the case. It therefore gave me the opportunity to prove the doubting Thomases wrong."

 So will he concentrate on crime in future? He points out that he is not even on the legal aid list: costs are not awarded after an acquittal in Scotland, so his fees for the Lockerbie trial will be paid by the Libyans.

But what if another criminal brief were to land in his box at Parliament House in Edinburgh? Very properly, he refers me to the cab-rank rule, which says that an advocate who practises in an area of the law is meant to take on any case that comes along. Maybe, but I suspect few could afford the fare.