[This is the headline over an article by me just published on the website of the Scottish Review. It was written in response to a letter that appeared on the site yesterday from retired solicitor Alistair R Brownlie OBE, criticising the Megrahi petition. Other SR readers have written in supporting the petition and their contributions can be accessed on the same web page. My article reads as follows:]
At the end of June 2007, 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, indicated 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 (such as the payment to a key prosecution witness of $2m) 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 beginning to rain heavily enough for his customer to think 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 in 2002 to fail to overturn the conviction? The Criminal Appeal Court dismissed Megrahi's first appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court's factual findings at all. Indeed, 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 UK government's (now the Scottish Executive's) chief Scots law 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 lower court judges) 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.
I believe that, subconsciously at least, the judges were reluctant to reach a verdict acquitting both accused because of the humiliation that this would entail for the office of Lord Advocate in the most high profile prosecution ever brought in the Scottish courts.
Megrahi launched an appeal based on the SCCRC findings, but abandoned it in 2009 in order to maximise his prospects of repatriation to Libya when terminal metastatic prostate cancer was diagnosed. But the concerns regarding the propriety of his conviction raised by the SCCRC and others have not disappeared.
Lord Denning tarnished his reputation by expressing the view that an alleged miscarriage of justice should not be investigated because it might undermine confidence in the English criminal justice and judicial systems. It is sad to see Alistair Brownlie appearing to take the same stance in Scotland.