Thursday, 11 June 2015

Megrahi's doomed first appeal

[What follows is excerpted from a report published on the Mail Online website on 11 June 2001:]

Lawyers for Lockerbie bomber Abdelbaset Ali Mohmed Al Megrahi today lodged the grounds for his appeal against conviction.

The move came just two days before the deadline for submitting the full grounds to the Court of Appeal.

The grounds should have been lodged within six weeks of the bomber's conviction in January but Al Megrahi's legal team applied for, and were granted, two extensions of six weeks each.

Today, a spokeswoman for the Crown Office confirmed that the appeal grounds had been submitted to the Court of Appeal.

It is unlikely that the grounds for appeal will be made public at this stage.

A judge sitting in chambers will now decide if the grounds warrant an appeal against conviction.

Assuming Al Megrahi's appeal goes ahead, the hearing will take place before five judges at Camp Zeist in Holland.

[Here is something I have previously written about this appeal:]

Megrahi duly intimated his intention to appeal against his conviction. Pending the appeal he remained incarcerated in the Netherlands in HM Prison, Zeist. On 14 March 2002 the appeal was dismissed. (...)

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.”

The issues that the appeal did not address
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.

The issues that the appeal did address
What the appellant instead invited the Appeal Court to do was to hold that various findings-in-fact made by the trial court (a) were based upon a misunderstanding of the evidence or were without a basis in the evidence; or (b) were arrived at by giving undue weight to evidence that supported them or insufficient weight or “proper regard*” to evidence that contradicted them; or (c) were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open.

As regards (a) the Appeal Court held that in two or three instances the trial court had found a fact proved on the basis of a misunderstanding of the evidence led, or where there was no evidential basis for the finding. But in each such case the Appeal Court went on to decide that the error was insignificant, could not have affected the ultimate outcome of the case and, hence, was not such as to give rise to a miscarriage of justice.

As regards (b) and (c) the Appeal Court insisted that, as long it was (as here) not contended that no reasonable trial court could have made the finding-in-fact, challenge of findings on these grounds was simply not competent. The weight to be given to evidence or the “proper regard” to be accorded to it were matters entirely for the trial court, as was the question of what inferences to draw from the primary facts that it held proved. Even where, as here, the tribunal of fact was not an inscrutable jury but a bench of judges who gave reasons for their findings, the Appeal Court was simply not entitled to substitute its own views for those of the trial judges. It followed that all of the grounds of appeal directed towards issues of “weight” or “proper regard” fell to be rejected as raising matters not within the competence or powers of the Appeal Court. This is emphasised at various points in the Opinion of the Court** but principally in the section headed “The function of an appeal court.***

* "Proper regard" is an expression used frequently in the written grounds of appeal.

** For examples of grounds of appeal being rejected on this basis, see Opinion of the Court, paras 76, 80, 84, 118, 129,262, 274, 288, 327, 351.

*** See Opinion of the Court, paras 20-27.

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