Ten years on from dismissal of Megrahi's first appeal

[Today marks the tenth anniversary of the dismissal by a five-judge court sitting at Zeist of Abdelbaset Megrahi’s first appeal.  The Crown Office, in its increasingly desperate attempts to maintain that the Megrahi conviction is sustainable, is resorting to the hoary old chestnut that the appeal court, presided over by the then Lord Justice General, Lord Cullen, confirmed the findings of the trial court and added its own authority to them.  As the Crown Office well knows, the appeal court did no such thing.

 

Here is part of what I wrote in the first ever post on this blog:]

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.” (...)

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.