Sunday, 8 February 2015

Megrahi's first appeal

[Here is what I wrote on website on this date in 2002 about the state of play at the close of week three of Abdelbaset Megrahi’s first appeal:]

In the course of Friday morning [8 February 2002] the Court decided that it was prepared to hear the new evidence proposed by the defence from security personnel on duty at Heathrow's Terminal 3 during the night before the departure of Pan Am 103, regarding a break-in in the luggage marshalling area.  Mr Alan Turnbull QC for the Crown had argued strongly that the proposed new evidence was not of sufficient "significance" to warrant the Court's hearing it.  By their decision the appeal judges indicated that they were of the view that the evidence in question could have the necessary "significance."  The Crown indicated that if this evidence was permitted, they would  themselves wish to lead evidence on the issue from up to eleven witnesses.  The Court suggested that discussions should take place between the Crown and the defence regarding these eleven potential Crown witnesses, with a view to ascertaining whether the attendance of all was really necessary.  It is likely that the Court will begin hearing the new evidence on Wednesday 13 February. 

During the week it has been abundantly clear that the appeal judges have absorbed the submissions made on behalf of the appellant Megrahi and appreciate the force of a number of the criticisms made in them of the reasoning in the written opinion of the trial Court.  Their Lordships have not been slow to draw their concerns to the attention of the Advocate-Depute.  In particular, Lord Osborne and Lord Kirkwood have asked some very pointed questions indeed and have subjected Advocate-Depute Turnbull and Advocate-Depute Campbell to rigorous cross-examination regarding the Crown's stance in supporting the trial Court's conclusions on certain crucial matters, such as the finding that the bomb was ingested at Luqa Airport in Malta; that Megrahi was the person who purchased the clothes from Mary's House in Sliema; and that the date of purchase was 7 December 1988.


  1. You make the point that during the appeal, the appeal judges seemed to understand the problems with the case. Others have made the same observation, most notably Hans Kochler when he pointed out the comment from Lord Osborne about there being considerable evidence that no unaccompanied suitcase was loaded on to KM180. And yet the appeal was denied. The eventual opinion of the appeal court merely noted that it had to be borne in mind that the Crown case was that the bomb had been introduced at Malta "by a criminal act". No shit, Sherlock! What's that even supposed to mean? If something is done by a criminal act, does that mean the prosecution don't have to prove it?

    Everyone agrees that the failure of the appeal was correct in law. However, was it inevitable? If a bench of appeal court judges see clear evidence they believe points to a conviction being a miscarriage of justice, but the defence advocate has brought the appeal on spurious grounds, are they legally bound to deny the appeal? Was there no avenue open to them to say, Taylor you are an irredeemable idiot but since your client quite clearly would not have been found guilty by any reasonable court, we uphold the appeal?

    1. It would have been possible for the court to ignore the misconceived grounds of appeal and overturn the conviction on the basis of the grounds that ought to have been advanced. But I suspect that such an adventurous approach would not have been acceptable to all five judges on the bench. And, as at all stages in the judicial progress of the case, unanimity was regarded as vital. I believe that unanimity was here preserved by adopting the traditional "strict constructionist" approach to grounds of appeal while making it absolutely clear in the written judgement that the decision had nothing whatever to say about what the outcome would have been if the correct issues had been raised of (a) sufficiency of evidence and (b) whether any reasonable court on the evidence could have reached the conclusions that the trial court did. This was the clearest possible hint that a SCCRC application should be made. That may well have been as far as judicial unanimity would stretch.

    2. Thank you for that explanation. The appeal judgement does indeed read like an engraved invitation to take this to the SCCRC, now you come to mention it.