Tuesday, 22 April 2014

Judicial reputations and rehabilitation of Scots criminal justice

[Six years ago today, I posted on the blog an item marking the death of Scottish judge Lord Macfadyen.  It read as follows:]

Lord Macfadyen, one of the five judges on the bench during the first Lockerbie appeal in 2002, died last week at the age of 62. He will be much missed: he was a good judge and a genuinely nice person.

In an obituary in today’s issue of The Herald, it is said that “His reputation on the bench was enhanced by the Lockerbie appeal of 2002.” This is quite simply not so: none of the Appeal Court judges enhanced his reputation by his participation in the Lockerbie appeal.

The court dismissed the appeal on the technical legal ground that Megrahi’s then legal team had submitted grounds of appeal that were incompetent and had not asked the court to address the correct issues (Was there enough evidence in law to convict him? Was the verdict of guilty one that, on the evidence, no reasonable tribunal could have reached?). In the course of the appeal hearing, a number of the judges, particularly Lords Kirkwood and Osborne, exposed the weaknesses in the Crown’s case against Megrahi at the trial. But, at the end of the day, the court held that it could adjudicate only on the (wrong and misconceived) issues raised by his lawyers. See “Lockerbie: A satisfactory process but a flawed result” section headed “The Appeal”.

The court’s decision, in my view, was a weak one. The final court of appeal in criminal matters in Scotland should decide cases on their substantive merits, not on technicalities or on the performance of the appellant’s legal representatives. None of the judges who concurred in this approach to the Lockerbie appeal enhanced his reputation.

[If, as has been reported, moves are afoot for a further appeal against the conviction of Abdelbaset Megrahi, five more Scottish judges will have an opportunity to enhance their reputations and to contribute to the much-needed rehabilitation of the reputation of the Scottish criminal justice system.]


  1. The final court of appeal in criminal matters in Scotland should decide cases on their substantive merits, not on technicalities or on the performance of the appellant’s legal representatives.

    Is that really true? I imagine we have to bow to the opinion of a legal expert in this matter, but if so it turns the appeal judgement into a howling scandal.

    Time and time again the appeal judgement points out serious flaws in the conviction, then says, but since the appeal wasn't brought on these grounds, we don't have to consider this. I was of the belief that the judges had no choice in the matter. That they had to apply the law and weren't there to search for truth.

    If it was in fact open to them to say, we can see no evidence that the bomb began its journey on Malta and rather a lot of evidence that it didn't, then their behaviour is far more reprehensible than I had imagined.

  2. How one can turn a blind eye to a pivotal detail of a case as complex and time-consuming as was Megrahi's on the spurious basis that it wasn't a pillar of the appeal itself is beyond me. I would throw my robes into a recycling bin outside the palace of justice if my position were thus constrained.

  3. For me, the worst example is this one.

    On 7 February 2002 Lord Osborne, in a debate with the Prosecution on the question of the insertion of the luggage containing the explosive device at Luqa airport in Malta, said: “But is it not a different matter to say, on the basis of these features of the situation, that the bomb passed through Luqa Airport, standing that there is considerable and quite convincing evidence that that could not have happened.” He further stated: “Now, it’s quite difficult rationally to follow how the Court take the step of saying, ‘Well, we don’t know how it got onto the flight. We can’t say that. But it must have been there.’ On the face of it, it may not be a rational conclusion.” And in response to a remark of the Prosecution, he went on: “Well, all sorts of irrational conclusions may have a basis in fact, but … the problem is that they don’t logically relate to the facts.” (In this, I quote Hans Kochler.)

    However, here is how the actual appeal judgement dealt with the same point.

    It was to be remembered that the Crown case was that the security measures at Luqa had been deliberately circumvented by a criminal act.

    That's it. All of it. I have virtually no idea what that's supposed to mean. On the face of it, it seems self-evident. If Megrahi, with or without assistance, got the bomb suitcase on the plane at Luqa, then that was undoubtedly a criminal act. However, that is what is required to be proved, is it not? Asserting the conclusion doesn't qualify as proof.

    Thinking more laterally, I surmise we might be back to the implication that someone or several someones in the employ of Air Malta connived at introducing the unaccompanied suitcase and then falsified the day's records to conceal this. However, no evidence whatsoever was led to support this contention.

    It's quite extraordinary. Imagine it in another context. You are accused of robbing a bank. Not only is there no evidence you did that, there is no evidence the bank was robbed at all. All there is, is a discrepancy in the bank's accounts. Nobody leads any evidence to prove that this supposed robbery took place, but you are convicted on the grounds that the prosecution has claimed that the robbery was "a criminal act" without further proof. No, I don't get it either.

    Professor Black, have you any legal insight into that particular specific point?

  4. Sorry, Rolfe, I'm as mystified by this "reasoning" as you are (and I taught the Law of Evidence for 25 years -- but not, I'm delighted to say, to any of these appeal judges).

  5. When I quoted that part of the appeal judgement at Menzies Campbell in Edinburgh (he'd tried to trap James Robertson by claiming James hadn't taken account of what the appeal judges had said about the point), he snapped back at me, "That's not true!" I merely observe that I didn't type that part of the above post, I cut and pasted.

    Ming was the chairman, I was merely an audience member. He had superior firepower. I didn't have any opportunity to come back at him. Later, at the following book signing, I tried to challenge him on the point. He was quite rude, saying that he was a lawyer and I wasn't so my opinion was meaningless.

    It's quite scary, in a way.

  6. I am a witness to that incident between Rolfe and Campbell. I have never encountered such superior arrogance in my life as that displayed by him.