Misguided Magnus

For all Abdul Baset Ali al-Megrahi's protests about the fragility of the prosecution case against him, there are three crucial facts to be borne in mind in reading these documents.

First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.

Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.

Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.

Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.

He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.

What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.

That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.

[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.

First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated in paragraph 369 of their Opinion:

“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] 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 [verdict unreasonable on the evidence]. 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 true position, as I have written elsewhere, is this:

"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."

Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."

Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him.

And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.

Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]