Wednesday, 25 July 2007

Article in The Scotsman on 23 July 2007

The fairy story of the Crown's independence

ROBERT BLACK

At the end of June, the Scottish Criminal Cases Review Commission (SCCRC) referred Abdelbaset Ali Mohmed al-Megrahi's conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, the Crown and the High Court) extends to more than 800 pages, accompanied by 13 volumes of appendices. The commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate there were six grounds on which it had concluded a miscarriage of justice might have occurred.

Strangely, only four of these grounds are enumerated in the summary. They are:
• That there was no reasonable basis for the trial court's conclusion that the date of purchase of the clothes which surrounded the bomb was 7 December 1988, the only date on which Megrahi was proved to have been on Malta and so could have purchased them. The finding that he was the purchaser was "important to the verdict against him".
• That evidence not heard at the trial about the date on which Christmas lights were switched on in Malta further undermined the trial court's conclusion that the date of purchase was as late as 7 December.
• That evidence was not made available to the defence that four days before the shopkeeper made a tentative identification of Megrahi at an ID parade he had seen a magazine article containing a photograph of Megrahi, linking him to the bombing.
• That other evidence which undermined the shopkeeper's identification of Megrahi and the finding as to the date of purchase was not made available to the defence.

The reasons given by the commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the commission includes the trial court's finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the cornerstone of the Crown's case against him. If, as suggested, that finding had no reasonable basis in the evidence, then there is no legal justification for his conviction.

I have always contended that no reasonable tribunal could have convicted Megrahi on the evidence led. Here is one example of the trial court's idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta, and 23 November 1988, when he was not. In an attempt to establish just which of these dates was correct, the weather conditions in Sliema on those two days were explored. Shopkeeper Tony Gauci's evidence was that when the purchaser left his shop it was raining so heavily his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that, while it had rained on 23 November at the relevant time, it was unlikely to have rained at all on 7 December and, if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this, how was it possible for the trial court to find him guilty? And how was it possible for the appeal court to fail to overturn the conviction? The Criminal Appeal Court dismissed Megrahi's appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court's factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

I contend that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries courts have accorded a specially privileged status to the Lord Advocate. It has been unquestioningly accepted that, though a political appointee and the government's (now the Executive's) chief legal adviser, he (now she) would at all times, in his capacity as head of the prosecution system, act independently, without concern for political considerations, and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction.

To illustrate this in the context of the Lockerbie trial, it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been more difficult, and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables. At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Second, they considered whether there was anything which would appear to reflect on the credibility of Majid... On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One judge, Lord Coulsfield, then intervened: "Does that include, Lord Advocate... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged through the Privy Council in London before making available to the defence material in the prosecution's possession that no-one could conceivably deny was of relevance and assistance in the accused person's defence. So much for the fairness of the trial being the Crown's primary and predominant motivation!

It is surely time for all involved in the Scottish criminal justice system to put away childish things. We are all of us, judges included, surely too old to believe any longer in fairytales. Fairytales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered independent investigation into all three aspects - investigation, prosecution and adjudication - of the Scottish criminal justice system, as has already been called for by, among others, Dr Jim Swire, Tam Dalyell and Professor Hans Koechler, the UN observer at the Lockerbie trial.

• Robert Black, QC, FRSE, is Professor Emeritus of Scots Law at the University of Edinburgh.

Sunday, 8 July 2007

PFLP-GC

For an article in the Sunday Express 0f 8 July 2007 pointing the finger of blame for the Lockerbie bombing at the PFLP-GC, Ahmed Jibril, Abu Talb, Abu Elias, Mobdi Goben, Hafez Dalkamoni et al, see http://www.dailyexpress.co.uk/posts/view/12732

Nothing very new in it, except the claim that Abu Elias is living near Washington DC under a new identity.

More than two years later (August 2009) the Sunday Express is recycling this story.

Saturday, 7 July 2007

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:
“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.
“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”


The implications for the verdict of guilty
The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the very cornerstone of the Crown’s case against him. If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system
The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial. Here is just one example of the trial court’s idiosyncratic approach to the evidence. Many more could be provided.
A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.
On evidence as weak as this how was it possible for the trial court to find him guilty? And how was it possible for the Criminal Appeal Court to fail to overturn that conviction? The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).
It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries judges have accorded a specially privileged status to the Lord Advocate. It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.
The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.
Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.
Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.
At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.
Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."
One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"
The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within the -- -- there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."
Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.
Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417; Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!
“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” I Corinthians xiii.11. It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.
It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.
7 July 2007

Lockerbie: A satisfactory process but a flawed result

THE TRIAL
Introduction
On 31 January 2001, after just over one hundred and thirty court days of a trial that had started on 3 May 2000, the three judges in the Lockerbie trial (Lords Sutherland, Coulsfield and MacLean) returned a unanimous verdict of guilty of murder in respect of the first accused, Abdelbaset Ali Mohmed Al-Megrahi, and a unanimous verdict of not guilty of murder in respect of the second accused, Al-Amin Khalifa Fhima1. Megrahi was sentenced to life imprisonment, with a recommendation that he serve at least twenty years.


The prosecution in their closing submissions conceded that the case against the accused was entirely circumstantial. That, of course, is no bar to a verdict of guilty. Circumstantial evidence can be just as persuasive and just as damning as the direct evidence of eyewitnesses to the commission of a crime. But to many observers, including me, it seemed that the case presented by the prosecution was a very weak circumstantial one, and was further undermined by the additional prosecution concession that they had not been able to prove how the bomb that destroyed Pan Am 103 got into the interline baggage system and onto the aircraft.


The trial court’s crucial findings and were they justified?
From the 90 paragraph written judgement produced by the trial court (available on the Scottish Courts website http://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbiejudgement.pdf?sfvrsn=2) it is clear that the court convicted Megrahi on the basis of the following nine factors.


1. The bomb was detonated through the mechanism of a MST-13 digital electronic timer manufactured by a Swiss company (MeBo) and supplied principally (but not exclusively) to Libya.
Commentary. The judges accepted prosecution evidence that a fragment of circuit board found among the wreckage of Pan Am 103 came from a MeBo MST-13 timer. The managing director of MeBo had denied this in his evidence, but his credibility was, unsurprisingly, assessed as being very low. The evidence established that timers of this model were supplied predominantly to Libya (though a few did go elsewhere, such as to the East German Stasi). This fragment is also important since it was the only piece of evidence that indicated that the Lockerbie bomb was detonated by a stand-alone, long-running timing mechanism, as distinct from a short-term timer triggered by a barometric device when the aircraft reached a pre-determined altitude (a method known to be favoured by certain Palestinian terrorist cells operating in Europe in 1988). The provenance of this vitally important piece of evidence was challenged by the defence and, in their written Opinion, the judges accept that in a substantial number of respects this fragment, for reasons that were never satisfactorily explained, was not dealt with by the investigators and forensic scientists in the same way as other pieces of electronic circuit board (of which there were a multitude). The judges say that they are satisfied that there was no sinister reason for the differential treatment. But regrettably they do not find it at all necessary to enlighten us regarding the reasons for their satisfaction.


2. A company of which a member of the Libyan intelligence services (Badri Hassan) was a principal for a time had office accommodation in the premises of the Swiss manufacturer, MeBo.


3. Megrahi was a member of the Libyan intelligence service.
Commentary. The only evidence to this effect came from a Libyan defector and CIA asset, Abdul Majid Giaka, now living in the United States under a witness protection programme. He gave evidence highly incriminating of both Megrahi and the co-accused Fhima. However, the trial judges rejected his evidence as wholly and utterly unworthy of credit, with the sole exception of his evidence regarding the Libyan intelligence service and Megrahi’s position therein. The court provides no reasons for accepting Giaka’s evidence on this issue while comprehensively rejecting it on every other matter.


4. The suitcase which contained the bomb also contained clothes and an umbrella bought in a particular shop, Mary’s House, in Sliema, Malta.


5. Megrahi was identified by the Maltese shopkeeper as the person who bought the clothes and umbrella.
Commentary. The most that the Maltese shopkeeper, Tony Gauci, would say (either in his evidence in court or at an identification parade before the trial or in a series of nineteen police statements over the years) was that Megrahi “resembled a lot” the purchaser, a phrase which he equally used with reference to Abu Talb, one of those mentioned in the special defence of incrimination lodged on behalf of Megrahi. Gauci had also described his customer to the police as being six feet [183 cms] tall and over fifty years of age. The evidence at the trial established (i) that Megrahi is five feet eight inches [173 cms] tall and (ii) that in late 1988 he was thirty-six years of age. On this material, the judges found in fact that Megrahi was the purchaser.


6. The purchases were made on 7 December 1988, a date when Megrahi was proved to be on Malta and not on 23 November 1988 when he was not.
Commentary. By reference to the dates on which international football matches were broadcast on television on Malta, Tony Gauci was able to narrow down the date of purchase of the items in question to either 23 November or 7 December. In an attempt to establish just which, the weather conditions in Sliema on these two days were explored. Gauci’s evidence was that when the purchaser left his shop it was raining to such an extent that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.


7. The suitcase containing the bomb was sent as unaccompanied baggage from Luqa Airport in Malta, via Frankfurt, on the morning of 21 December 1988 on an Air Malta flight, KM 180.
Commentary. The trial judges held it proved that the bomb was contained in a piece of unaccompanied baggage which was transported on Air Malta flight KM 180 from Luqa to Frankfurt on 21 December 1988, and was then carried on a feeder flight to Heathrow where Pan Am flight 103 was loaded from empty. The evidence supporting the finding that there was such a piece of unaccompanied baggage was a computer printout which could be interpreted to indicate that a piece of baggage went through the particular luggage coding station at Frankfurt Airport used for baggage from KM 180, and was routed towards the feeder flight to Heathrow, at a time consistent with its having been offloaded from KM 180. Against this, the evidence from Luqa Airport in Malta (whose baggage reconciliation and security systems were proven to be, by international standards, very effective) was to the effect that there was no unaccompanied bag on that flight to Frankfurt. All luggage on that flight was accounted for. The number of bags loaded into the hold matched the number of bags checked in (and subsequently collected) by the passengers on the aircraft. The court nevertheless held it proved that there had been a piece of unaccompanied baggage on flight KM 180.


8. Megrahi was in Malta on the night of 20/21 December 1988 and left for Tripoli from Luqa Airport on the morning of 21 December.


9. On this visit Megrahi had been travelling on a passport (in a name other than his own) which was never subsequently used.
Commentary. Megrahi (inexplicably, in the view of many) was not called by his lawyers to give evidence on his own behalf at the trial; so no explanation of his use of this passport was ever supplied to the court. There is an innocent (ie non-Lockerbie related) explanation (involving his role in seeking to circumvent US trade sanctions against Libya and obtain Boeing aircraft spare parts on behalf of his employers, Libyan Arab Airlines) which could have been provided.


It is my firm view that the crucial incriminating findings made by the judges were unwarranted by the evidence led in court and were in many cases entirely contrary to the weight of that evidence. I am convinced that no Scottish jury, following the instructions traditionally given by judges regarding the assessment of evidence and the meaning and application of the concept of reasonable doubt, would or could have convicted Megrahi. So how did it come about that the three distinguished and experienced judges who concurred in the verdict felt able to convict him?


In paragraph 89 of the Opinion of the Court it is stated: “We are aware that in relation to certain aspects of the case there are a number of uncertainties and qualifications. We are also aware that there is a danger that by selecting parts of the evidence which seem to fit together and ignoring parts which might not fit, it is possible to read into a mass of conflicting evidence a pattern or conclusion which is not really justified.” Regrettably, in my submission, the judges’ intellectual recognition of the danger does not appear to have enabled them to avoid it2.


THE APPEAL
Introduction
Megrahi duly intimated his intention to appeal against his conviction. Pending the appeal he remained incarcerated in the Netherlands in HM Prison, Zeist. On 14 March 2002 the appeal was dismissed. An Opinion of the Court extending to 200 typed pages divided into 370 paragraphs was delivered3. The appeal was against conviction only: there was no attempt to challenge the recommendation, that a minimum of twenty years should be served before release was considered, which accompanied the trial court’s mandatory sentence of life imprisonment.


As required by the provisions of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, the Appeal Court consisted of five Lords Commissioners of Justiciary and sat in the premises of the Scottish Court at Camp Zeist in the Netherlands4. The hearing extended from 23 January to14 February 2002. The proceedings (except when the evidence of witnesses was being heard) were televised live over the internet on a website maintained by the BBC, the first occasion in Scotland (or elsewhere in the United Kingdom) that live public broadcasting of judicial proceedings has been permitted. The consensus of opinion was that the administration of justice was not impaired by the presence of the television cameras, but that the level of excitement and drama was such that there is unlikely to be much clamour in the foreseeable future from either broadcasters or the viewing public for the experiment to be repeated.


The grounds of appeal
The only ground upon which a criminal appeal can succeed in Scotland is that there has been a miscarriage of justice. In the Note of Appeal lodged on behalf of Megrahi there were set out in 21 paragraphs (many of them subdivided) the grounds upon which, individually or in combination, it was contended that a miscarriage had occurred. One of those grounds related to the existence and significance of evidence which was not heard during the original proceedings. This evidence related to a breach of security at Heathrow Terminal 3 (potentially giving access to the baggage build-up area) the night before Pan Am 103 departed from that terminal on its fatal flight. The Appeal Court allowed the new evidence to be led before it, but ultimately concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the trial court’s determination of the critical issue of whether the suitcase containing the bomb was launched on its progress from Luqa Airport in Malta (an essential plank in the prosecution case) or from Heathrow. This ground of appeal was accordingly rejected.


As far as the appeal based on the remaining twenty paragraphs of the written grounds of appeal was concerned, its failure appears to have been rendered virtually inevitable by two concessions made in the course of argument by the appellant’s counsel. The first of these, as recorded in the Opinion of the Court (paragraph 4) is as follows:


“At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction.”


The second concession is recorded in the following terms (paragraph 5):


“Under subsection (3) [of s106 of the Criminal Procedure (Scotland) Act 1995] an appellant may bring under review of the High Court:


‘any alleged miscarriage of justice, which may include such a miscarriage
based on –


(b) the jury’s having returned a verdict which no reasonable jury, properly
directed, could have returned.’ …


Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b).”


The importance of these concessions is emphasised by the Appeal Court in the penultimate paragraph of its Opinion (paragraph 369):


“When opening the case for the appellant before this court Mr Taylor stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”


The issues that the appeal did not address
The limitations under which the Appeal Court was thus constrained to operate effectively disabled it from considering the issues of (a) whether there was sufficient evidence in law to justify such absolutely crucial findings-in-fact by the trial court as (i) that the date of purchase in Malta of the clothes surrounding the bomb was 7 December 1988, (ii) that Megrahi was the purchaser and (iii) that the case containing the bomb started its progress from Malta’s Luqa Airport and (b) whether those findings or any of them (on the assumption that there was a legal sufficiency of evidence) were such as no reasonable trial court, properly directing itself, could have made, or been satisfied of beyond reasonable doubt, in the light of (i) justifiable criticisms of the evidence and witnesses supporting them and (ii) ex facie credible contrary evidence.


The issues that the appeal did address
What the appellant instead invited the Appeal Court to do was to hold that various findings-in-fact made by the trial court (a) were based upon a misunderstanding of the evidence or were without a basis in the evidence; or (b) were arrived at by giving undue weight to evidence that supported them or insufficient weight or “proper regard5” to evidence that contradicted them; or (c) were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open.


As regards (a) the Appeal Court held that in two or three instances the trial court had found a fact proved on the basis of a misunderstanding of the evidence led, or where there was no evidential basis for the finding. But in each such case the Appeal Court went on to decide that the error was insignificant, could not have affected the ultimate outcome of the case and, hence, was not such as to give rise to a miscarriage of justice.


As regards (b) and (c) the Appeal Court insisted that, as long it was (as here) not contended that no reasonable trial court could have made the finding-in-fact, challenge of findings on these grounds was simply not competent. The weight to be given to evidence or the “proper regard” to be accorded to it were matters entirely for the trial court, as was the question of what inferences to draw from the primary facts that it held proved. Even where, as here, the tribunal of fact was not an inscrutable jury but a bench of judges who gave reasons for their findings, the Appeal Court was simply not entitled to substitute its own views for those of the trial judges. It followed that all of the grounds of appeal directed towards issues of “weight” or “proper regard” fell to be rejected as raising matters not within the competence or powers of the Appeal Court. This is emphasised at various points in the Opinion of the Court6 but principally in the section headed “The function of an appeal court.7


Conclusion
Before the verdicts in the original trial were delivered, I expressed the view that for the judges to return verdicts of guilty they would require (i) to accept every incriminating inference that the Crown invited them to draw from evidence that was on the face of it neutral and capable of supporting quite innocent inferences, (ii) to be satisfied beyond reasonable doubt that the Maltese shopkeeper, Tony Gauci, positively identified Megrahi as the person who bought from his shop in Sliema the clothes and umbrella contained in the suitcase that held the bomb and (iii) to accept that the date of purchase of these items was proved to be 7 December 1988 (as distinct from 23 November 1988 when Megrahi was not present on Malta). I went on rashly to express the opinion that, for the judges to be satisfied of all these matters on the evidence led at the trial, they would require to adopt the posture of the White Queen in Through the Looking-Glass, when she informed Alice "Why, sometimes I've believed as many as six impossible things before breakfast." In convicting Megrahi, it is submitted that this is precisely what the trial judges did.


As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them.


Until such time as an appellate court (perhaps on a reference from the Scottish Criminal Cases Review Commission) is required to address the fundamental issues of (i) whether there was sufficient evidence to warrant the incriminating findings, (ii) whether any reasonable trial court could have made those findings (and could have been satisfied beyond reasonable doubt of the guilt of Megrahi) on the evidence led at Camp Zeist and (iii) whether Megrahi’s representation at the trial and the appeal was adequate, I will continue to maintain that a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied.


Footnotes
1. Fhima was acquitted largely because the judges were not satisfied beyond reasonable doubt that, even if he assisted Megrahi to launch the suitcase containing the bomb which destroyed Pan Am 103 on its progress from Luqa Airport in Malta, he knew that the suitcase contained a bomb.


2. In John Lawton's excellent novel A Little White Death (1999) -- a fictionalised account of the Profumo affair and the Stephen Ward trial -- the hero (at p501 of the paperback edition) describes the presiding judge in the trial (Mr Justice Mirkeyn) as follows: "Everyone doing what they think is expected of them. Mirkeyn did the same. It's probably never crossed Mirkeyn's mind that he's a bad judge or a bent judge. He simply did what was expected. Didn't even need a nod or a wink."




4. The High Court (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251, art 14(1), (2) available at www.hmso.gov.uk/si/si1998/19982251.htm


5. "Proper regard" is an expression used frequently in the written grounds of appeal.


6. For examples of grounds of appeal being rejected on this basis, see Opinion of the Court, paras 76, 80, 84, 118, 129,262, 274, 288, 327, 351.


7. See Opinion of the Court, paras 20-27.
2004