Lord Sutherland rejected a motion from defence lawyers that a charge of conspiracy to murder be dropped. The lawyers argued that any alleged conspiracy must have taken place outside Scotland, and was outside the jurisdiction of a Scottish court.
Sitting in a Scottish court specially set up at Camp Zeist, a former US airbase in The Netherlands, the judge said the pair, Abdel Basset Ali al-Megrahi and al-Amin Khalifah Fhimah, should be tried for murder, breach of the Aviation Security Act and the disputed conspiracy charge.
"When a crime of the utmost gravity has been committed in a particular country and it has been shown that crime is the result of a long, drawn- out conspiracy, it seems to be quite illogical to say that country has no interest in putting the conspirators on trial even though their actions were carried out abroad," he said.
Lord Sutherland also rejected a motion to delete any reference to the Libyan Intelligence Service (LIS), of which the two are said to be members. Mr Megrahi's lawyer, Bill Taylor QC, had said it would be a "travesty" if the defendants were made to defend the LIS. But Lord Sutherland said: "It appears to me from the indictment that the case seems to hinge on the use of explosives ... any evidence relating to this ... must be relevant.
"If, therefore, the [LIS] has a store of items for the use of members, that would be a possible source of supplies, and if the men are members it would follow that such resources would be available to them."
Lord Sutherland's decisions were widely interpreted as opening the way for the greatest possible amount of evidence to be placed before the court. By retaining the conspiracy charge the prosecution can use evidence dating back as far as 1 January 1985 - almost four years before Pan Am Flight 103 blew up over Lockerbie, killing 270 people.
Clare Connelly, a lecturer in criminal law at Glasgow University and member of a team of observers following the trial, said: "The significance of the conspiracy charge is that in evidential terms it would be the easier charge to prove. There will be evidence of the early actions of the accused that may have been deemed irrelevant."
The inclusion of the conspiracy charge also means the prosecution can make full use of evidence from its key witness, a Libyan defector who claims he saw the defendants preparing a bomb. He was yesterday named in court as Abdul Majid Abdul Razkaz Abdul-Salam Giaka. In a discussion about assessing the credibility of witnesses, the court heard that Mr Giaka had received "sums of money paid to him by the US". "For all I know Mr Giaka is employed by the CIA," observed Richard Keene, QC, representing Mr Fhimah.
Lord Sutherland agreed "reluctantly" to postpone the trial for three months after hearing from defence lawyers that preparations were incomplete.Reuse content