Thursday, 14 March 2013

An opportunity shamefully missed

[Eleven years ago today, Abdelbaset Megrahi’s appeal against conviction was dismissed. The following are excerpts from an article that I wrote a short time later for an American law journal:]

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. (...)

[The] failure [of the appeal] appears to have been rendered virtually inevitable by two concessions made in the course of argument by the appellant’s counsel. (...)

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 [Criminal Procedure (Scotland) Act 1995]. 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 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. (...)

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.


  1. In George Orwell’s 1984 Big Brother controlled both the Government and the Opposition!

    At the Zeist show trial did the CIA have similar control to ensure a guilty verdict?

    The failure of Megrahi’s defence team to ask elementary questions about the evidence at the trial or at appeal does point to collusion with the prosecution?

  2. Dear Dave, your keyboard seems to at times replace full stops with question marks? Oops, I see mine has the same problem?
    Gotta fix it, at least exclamation marks work!

    You wrote:
    "The failure of Megrahi’s defence team to ask elementary questions about the evidence at the trial or at appeal does point to collusion with the prosecution?"

    - - -


    Any team will make failures, including defense teams? It is easy, in hindsight, to point them out when somebody was wrongfully convicted!

    All in all, Megrahis defense team in my opinion did a very good piece of work in the first trial, and it should have 200% plenty sufficient for a not-guilty verdict!

    Have you read any trial transcripts? Obviously, an tremendous research work must have been done in advance?

    But how could they know that the three Lordies would allow themselves to make the conclusions that they did?

    Giaka was torn completely apart, OK - and reading through the transcripts it is clear that this obviously have taken a bit of efforts?

    Gaucy also - but no problem!
    As we now have learned from the noble Lords, there are times, where even a witness who makes numerous conflicting statements, gives an initial description of a person that does not match the defendant at all, points out several wrong people along the way, then seeing the defendant in the press before finally pointing him out, and then says 'a little bit exactly' in court can be more reliable than witnesses who from the beginning seem to know what they have seen!

    And, of course, that these noble Lords, by God are given the amazing ability to decide exactly when such a witness is to be trusted!

    A totally illogical conclusion about the date of purchase of the clothes?

    And no theory, even less so an investigation, of how the suitcase should have passed through in Malta, where the count was found to have matched those checked in by travellers?

    - - -

    It would be more reasonable to say, that with judges having to resort to the above absurdities, the defense must have been quite good.

    Any suggestion about the defense colluding with the prosecution seems to be as well founded as a certain non-bomb theory for the Lockerbie disaster? ;-)

  3. I do not give credence to collusion, incompetence perhaps. However, it does beg the question (when so many questions were demanding to be answered) what was the point in bringing the first appeal anyway if the evidence was not going to be queried? We commonly criticise the investigators, the same material used to convict was available to the defence. What were they doing?

  4. Below RB's mentioned article from

    there is a very interesting comment from one Mr. William Beck, who mentioned "my own case".

    A bit of searching revealed that 'Wullie' Beck's case was a conviction for robbery 32 years ago.

    Applications were twice rejected by SCCRC, until the 'University of Bristol Innocence Project' succeeded in getting the appeal through in December 2012.

    University of Bristol Innocence Project succeeds in obtaining appeal for Wullie Beck

    The appeal court started the hearings just 3 days ago, the 12th of March.

    'A hearing in the appeal court continues before Lord Carloway, the Lord Justice-Clerk, sitting with Lords Brodie and Marnoch, and the judges are expected to give their ruling in writing at a later date.'

    Livingston armed robbery conviction appeal begins

    Also in the case of Mr. Beck the reliability of eyewitness statement plays a major role.

    Let us hope that the good Lords this time has received the proper requests, do not get lost in complex and thin-aired speculations and 'inferrals', and so reach the right conclusion, whatever it may be.

    According to Mr. Beck's mentioned posting he does not have much confidence in the Scottish legal system and, without having sufficient basis for an opinion about guilt or innocence in his case, that is at least one concern where I can follow him.

  5. Dave, that is nonsense.

    You have not acknowledged the fact that Megrahi's defence were actually denied access to some pretty damning evidence which the prosecution withheld. Where do you want to start on that one?

  6. In some high profile cases in which the suspects have been demonized the political motives of the defence are often questioned for taking on the case.

    I recall a discussion on the midnight hour when Jacques Verges who was defending Klaus Barbie was challenged by Serge Klarsfeld to deny being a ‘Nazi’ for representing Barbie.

    This intimidation of the defence is designed to stop them from trying too hard to acquit and having their own integrity questioned and careers ruined.

    This does not mean Megrahi’s defence team were intimidated from trying too hard, but surely the elementary but unasked questions at Zeist, should have been asked at appeal?

  7. I don't think the defence exactly covered themselves with glory in a number of respects. Having said that, this was a case with an enormous scope ranging from the comings and goings of various middle-eastern terrorists to complex electronics and the labyrinthine byways of airport baggage transfer procedures. Could any of us swear we wouldn't have missed any tricks in the time available?

    The huge mistake, I believe, lay in their abandoning of an actual defence case. Expert witnesses could have explained why a ten-year-old memory of a stranger seen once is no evidence at all, why it was not the case that "the bomb suitcase could not have been in contact with the floor of the container", why the Frankfurt baggage transfer records proved precisely the square root of bugger-all an a whole lot more.

    The defence believed the prosecution simply hadn't proved their case, so everyone might as well go home now. They were right. Unfortunately the judges didn't agree with them.