The beginning of the end of UK/US blocking of neutral venue trial

[On this date in 1998, the United Nations Security Council held its first public session on Lockerbie since 1992. The report on the proceedings by the IPS news agency reads as follows:]

UN diplomats, and the families of victims of the 1988 Lockerbie bombing, cannot agree on how to try two Libyans suspected of involvement in that attack, a UN Security Council debate made clear Friday.

For Libya, the intensified discussion here marks a qualified victory: for the first time, the doubts over UN efforts to compel Triploi to hand over Abdel Basset al-Megrahi and Al-Amin Khalifa Fhimah for a US and British trial are being aired here at length. In addition, Libyan pleas for a neutral trial and for the easing of some aspects of the sanctions are gaining wider support.

The debate, the first public review of Council sanctions imposed on Libya in 1992, was marked both by the efforts by several diplomats to find a compromise solution for the trial of the Libyans, and the heated resistance from the US government and families of the bombing victims to anything less than a trial in Britain or the United States.

On the one hand, Libya could be cheered by increasing support for the adoption of several humanitarian exemptions to a six-year-old flight ban imposed by the Council, and for a trial of the two suspects at the International Court of Justice (ICJ) at the Hague. An ICJ ruling last month even bolstered calls by some diplomats for the suspension of all UN sanctions.

On the other, Washington and London remain adamantly opposed to any trial outside of the United States or Britain. These two countries were most directly affected by the 1988 bombing of Pan American flight 103 over Lockerbie, Scotland, of the 270 victims, 189 were US citizens and 11 were residents of Lockerbie.

“There is little hope of seeing suffering end until Libya complies with the resolutions of the Security Council ... and turns over the two suspects,” insisted US Ambassador Bill Richardson.

Other ambassadors, however, used the debate Friday to make their most public call for a compromise solution. “The proposal by Libya for her two suspected nationals to be tried under Scottish law by Scottish judges in a third country or at the ICJ should now receive the Council’s serious consideration so that the matter can be resolved equitably,” argued Ambassador Martin Andjaba of Namibia.

The dispute in the Security Council in turn has been mirrored in recent months by the growing rift between the families of the flight victims, with one British group leaning towards the ICJ compromise while two major US groups reject it.

“Libya’s problems can be solved by turning over the suspects to the United States or Scotland for a fair and impartial trial, in full view of the rest of the world,” argued George Williams, president of the US-based ’Victims of Pan Am Flight 103’. “This is not a negotiable issue.”

“This is the time for compromise. This is not the time to be bombastic,” countered Jim Swire, spokesman for ’UK Families Flight 103’, which represents the estimated 35 British nationals who were victims. “We’re not into politics. All we really want is a fair trial, and the venue doesn’t really matter.”

Libya contends that US and British public opinion on the case is so tainted as to prohibit a fair trial in either country. “We would like to recall that the trial of Timothy McVeigh (sentenced to death for the 1995 Oklahoma City bombing) was transferred from Oklahoma City to Colorado... because the place in which the crime was committed no longer provided a place where there are the conditions needed for due process of law and a fair trial for the defendants,” argued Libyan Foreign Minister Omar Mustafa Muntasser on Friday.

Muntasser called for the suspension or lifting of the UN sanctions, noting that the ICJ ruling last month had rendered the Security Council demands for a US or British trial irrelevant and moot, since the Court has accepted jurisdiction in the matter on which the resolutions were based.

The Feb 27 ruling, presided over by ICJ Vice President Justice Chris Weeramantry, strengthens Tripoli’s argument for a trial at the Hague. It found Libyan claims that neither the United States nor Britain has the right to compel Tripoli to turn over the two suspects admissible, and said that the Court could now proceed to hear the merits of Libya’s case.

Whether the decision can actually help to overturn the Security Council’s sanctions ruling is doubtful. Britain and the United States both hold vetoes on the 15-nation Council and remain unwilling to drop the penalties until Libya complies with their terms.

Richardson argued that the ICJ ruling “in no way question(s) the legality of the Security Council’s actions affecting Libya or the merits of the criminal cases against the two accused suspects.” He also disputed Libya’s claims that al-Megrahi and Fhimah could not obtain a fair trial in Scotland, noting a recent UN report which concluded that “the accused would receive a fair trial under the Scottish judicial system.”

British Ambassador John Weston noted dryly that Muntasser had assailed the media in Britain for prejudicing the mood against the two suspects—but that the foreign minister also distributed a British documentary aired last year in Scotland which doubted the two men were guilty.

(That belief is shared by several representatives of the victim’s groups—notably Swire, who contends that Iran and the Syrian-based Popular Front for the Liberation of Palestine-General Command may have been behind the attack.)

If the deadlock over how and where to hold the trial remain unclear, Libya has at least convinced several key nations on the Security Council that some aspects of the sanctions regime, which includes a travel ban and restrictions on the import of machinery related to oil refinery, must be eased.

A recent report by UN Under-Secretary-General Vladimir Petrovsky noted Libya’s complaints about the adverse impact that the air embargo was having on the economy, particularly on the health, social and agricultural sectors.

Russian Ambassador Sergey Lavrov argued that the findings of the report give sufficient grounds to discuss even now the possibility of humanitarian exemptions to the sanctions regime. Among them, he said, should be the replacement of Libya’s four ageing medical evacuation planes and extended humanitarian exemptions for Muslim pilgrims attending the annual ’hajj’ ceremony in Mecca.

Richardson, however, doubted any claims of humanitarian suffering in Libya, calling it the wealthiest country in Africa on a per capita basis, and noting that Tripoli earned some 10 billion dollars in oil revenue last year.

[RB: The speech to the Security Council by the Libyan Foreign Minister Omar al-Muntasser (which I had a small hand in drafting) can be read here. It helped to ratchet up the pressure on the UK and US governments which resulted in their accepting the “neutral venue” solution some five months later.]

Nelson Mandela confirms surrender of Lockerbie suspects imminent

[The following items are from this date in 1999:]

1. The following statement was issued today by the spokesman for Secretary-General Kofi Annan:

This afternoon, the Permanent Representative of the Libyan Arab Jamahiriya, Ambassador Abuzed Omar Dorda, hand delivered to the Secretary-General a letter from Omar Mustafa Muntasser, Secretary of the General People's Committee of the People's Bureau for Foreign Liaison and International Cooperation of the Socialist People's Libyan Arab Jamahiriya.

As already announced by President Nelson Mandela in Tripoli this morning, the letter confirms the readiness of Libya to proceed with the transfer of the two accused to the Netherlands. The Secretary-General is greatly encouraged by this development and the necessary arrangements will now be initiated by the Secretariat.

The Secretary-General has shared the letter with the Security Council.

The Secretary-General would like to record his warm appreciation of the efforts made by President Mandela, as well as Crown Prince Abdullah and others in order to bring this matter to a satisfactory conclusion, in cooperation with the authorities of the Libyan Arab Jamahiriya.

2. Following is the text of remarks made today to the press by the President of the Security Council, Qin Huasun (China), following Council consultations:

Security Council members welcomed the letter from the Foreign Minister of Libya to the Secretary-General of 19 March 1999, indicating that the two suspects would be available for the Secretary-General to take custody of them on or before 6 April;

Security Council members reaffirmed existing Security Council resolutions as the basis to bring about a full and final resolution of the situation;

Security Council members looked forward to the implementation of that handover in accordance with the agreed arrangements and, taking into account also the information provided by the French authorities regarding UTA 772, to the immediate suspension of sanctions with a view to lifting them as soon as circumstances permit, in accordance with relevant Security Council resolutions;

Security Council members thanked the Secretary-General for his tireless efforts in reaching an understanding with Libya on the implementation of Security Council resolution 1192 (1998), and expressed appreciation also for the positive actions taken by the Governments of South Africa, Saudi Arabia and other countries in support of these efforts.

3. Lockerbie trial: new developments

On 19 March 1999 President Nelson Mandela of South Africa announced in Tripoli that Colonel Muammar al-Gaddafi, the leader of Libya, had written to Kofi Annan, the Secretary-General of the United Nations, agreeing to surrender to him for trial the two Libyans (Abdel Baset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah) accused of bombing the Pan-Am jet over Lockerbie on 21 December 1988. The handover is to occur on or before 6 April 1999. UN sanctions against Libya in respect of the country’s failure to hand over the suspects will be lifted within 90 days of compliance. The trial will take place in the Netherlands under Scots criminal law and before a panel of three Scottish judges from the High Court of Justiciary.

The first SCCRC application and consequent appeal

[The following are two items from this date in 2002 and 2009 respectively. Both relate to Abdelbaset Megrahi’s first SCCRC application and consequent appeal:]

1. From The Scotsman

Law expert helps Libya with Lockerbie appeal

The legal expert who brokered the Lockerbie trial is helping the Libyan government to lodge a fresh appeal against the conviction of Abdelbaset Ali Mohmed al-Megrahi, it emerged yesterday.

Professor Robert Black, a law lecturer at Edinburgh University, flew to Tripoli the day after Megrahi’s appeal was rejected last week.

He said he regarded the case as a miscarriage of justice because the court did not consider all the available evidence. "We have not seen the end of this case," Prof Black added.

Thousands of people marched through the Libyan capital yesterday in protest at the decision of the appeal court judges to uphold the conviction of Megrahi. Riot police supervised demonstrations outside a UN office.

A statement handed to a UN representative said Megrahi’s life sentence "contradicts international laws, as it was handed as a result of political pressure aimed at settling account with the Libyan revolution."

Prof Black was invited to the country by the Libyan government’s Lockerbie Committee, which is planning to lodge an appeal through the Scottish Criminal Cases Review Commission. It was he who proposed the idea of trying the Lockerbie suspects in a neutral third country, which was the breakthrough which led to Colonel Muammar al-Gaddafi agreeing to hand the two accused over for trial in the Netherlands.

Megrahi was convicted of the 1988 bombing of Pan Am flight 103 over Lockerbie, resulting in the deaths of 270 people, and lost his appeal last week. (...)

The Libyan government has said it will appeal the ruling to the Scottish Criminal Cases Review Commission, the House of Lords and the European Court of Human Rights.

Prof Black said: "I am sure that at some point they will actually make an application to the Scottish Commission which deals with miscarriages of justice. The commission could then refer it back to the appeal court.

"I predict the grounds for that would be that evidence is emerging that has not yet seen the light of day. There is a hell of a lot more evidence about Lockerbie that appeared at neither the trial nor the appeal."

2. From The Herald

Judges order Crown to hand over undisclosed Lockerbie evidence

Three senior judges yesterday ordered 45 pieces of key evidence to be handed over to the legal team representing the man convicted of the Lockerbie bombing in an embarrassing setback for the Crown Office.

The vital documents include a secret fax that could discredit a key prosecution witness.

The court of criminal appeal in Edinburgh ordered prosecutors to find and disclose the different evidence, which has so far been kept secret from the defence.

Last month lawyers for Abdelbaset Ali Mohmed al Megrahi, the man convicted of the 1988 bombing, began the challenge over material they believe will free their terminally ill client.

But the Crown Office and the UK Advocate General claimed that in some cases the evidence does not exist or is irrelevant.

The Libyan's defence team applied to see 48 documents, which included a fax they claim places a fundamental question mark against the original trial testimony of Tony Gauci, who sold clothes later found in the wreckage of Pan Am 103 at Lockerbie.

The judges rejected three of the requests, including demands for information about the number of times police and US agencies had contact with Mr Gauci.

However, the onus will now be on the Crown to identify and share a range of other undisclosed documents, including those expected to show that Scottish police recommended to US authorities that both the main witness in the trial and his brother should be paid a reward of up to $3m, or $1.5m.

Lord Hamilton, the Lord Justice General, who was sitting with Lord Kingarth and Lord Eassie, said: "Without expressing any view on the adequacy of the steps already taken by the Crown to satisfy the claims for recovery, we consider that the appropriate course at this stage is to identify the classes of document which, if they exist, the appellant is in our judgment entitled to recover."

Megrahi's appeal is due to begin on April 27 and could last at least 12 months. Megrahi, who is suffering from advanced prostate cancer, is determined to clear his name but it is far from certain that he would survive such a long appeal case.

Libyan authorities have been encouraged to apply for a prisoner transfer to allow Megrahi to spend his remaining time with his family, but this would mean dropping the appeal, which he is not prepared to do.

Being economical with the truth over a Lockerbie trial

[What follows is an exchange during Scottish questions in the House of Commons on this date in 1998:]

HC Deb 17 March 1998 vol 308 cc1081-2

4. Mr [Tam] Dalyell:  If he will make a statement on the recent findings of the international court relating to the (a) venue and (b) jurisdiction of the trial of those suspected of the Lockerbie bombing. [33158]

The Minister for Home Affairs and Devolution, Scottish Office (Mr Henry McLeish):  The International Court of Justice made no findings in relation to the venue or jurisdiction for the trial of those accused of the Lockerbie bombing, but has held that it cannot determine, as a preliminary issue, the effect of the Security Council's resolutions on Libya's claims under the Montreal convention.

Mr Dalyell:  Is it really more important that a trial should take place in Scotland than that any trial should take place at all?

Mr McLeish:  Those accused of acts of terrorism should not be able to dictate the venue or composition of the court before which they are to be tried. Scotland and the United States have exercised jurisdiction in that case, and Libya should now surrender the two accused persons for trial in either of those two countries, as it is required to do under the relevant UN Security Council resolutions.

Ms Roseanna Cunningham:  Does the Minister accept that, once a Scottish Parliament is up and running, given the devolution of powers over the legal system, a future Scottish Administration could decide to allow the Lockerbie trial to be held outwith Scotland? Does he accept that, if that happens, Westminster must not attempt to interfere with the decision?

Mr McLeish:  It is worth re-emphasising that both the United States and this country are sticking by an important principle: the solution to that problem lies in Libya, and it is vital that Libya abides by Security Council resolutions and delivers the two accused persons for a proper trial.

Mr Russell Brown:  I whole-heartedly agree with my hon Friend the Minister. There is great pressure on him to consider holding a trial in a neutral country, but, even if the Government were to consider doing so, must not the Libyan Government first give a clear guarantee that they would hand over the two suspects?

Mr McLeish:  Such a guarantee has not, to date, been forthcoming from the Libyans. It is important to repeat that the suspects should be given up. There must be a fair trial, and one has been offered within the jurisdiction of the United States or of Scotland. That is the best way forward. We expect the Libyans to abide by Security Council resolutions, and that is the simple matter on which the case rests at the moment.

[RB: On 12 January 1994 the chief defence lawyer for the two Libyan suspects, Dr Ibrahim Legwell, stated in writing (in response to a letter from me dated 10 January) that his clients were prepared to surrender themselves for trial before a tribunal operating under Scots law but sitting in a neutral country; on the same date, the Deputy Foreign Minister of Libya, Moussa Koussa, stated in writing that the Libyan Government approved of this solution. Further details can be found here.

In October 1997, during President Nelson Mandela’s stopover in Tripoli, en route to the Commonwealth Heads of Government meeting in Edinburgh, Colonel Gaddafi confirmed that this remained the stance of the Libyan Government. On 15 January 1998 in the course of the television programme Words with Wark (in which I participated) Alistair Duff, the Scottish solicitor who represented the two accused men, reaffirmed that his clients wished to stand trial before a Scottish tribunal in a neutral venue, such as I had proposed in January 1994.

I therefore completely fail to comprehend what further “guarantee” the minister and those who supported him could have honestly expected from “the Libyans”.]

George H W Bush, Margaret Thatcher and Paul Channon

[On this date in 1989, a significant event in the Lockerbie story took place (and quite possibly two). Here is what Paul Foot wrote some five years later in a review in the London Review of Books:]

The American investigative columnist Jack Anderson has had some scoops in his time but none more significant than his revelation – in January 1990 [RB: 11 January 1990 in The Washington Post] – that in mid-March 1989, three months after Lockerbie, George [H W] Bush rang Margaret Thatcher to warn her to ‘cool it’ on the subject. On what seems to have been the very same day [RB: 16 March 1989], perhaps a few hours earlier, Thatcher’s Secretary of State for Transport, Paul Channon, was the guest of five prominent political correspondents at a lunch at the Garrick Club. [RB: They were Ian Aitken of The Guardian, Chris Buckland of Today, Robin Oakley of The Times, Julia Langdon of the Daily Mirror and her husband Geoffrey Parkhouse, then of the Glasgow Herald.]  It was agreed that anything said at the lunch was ‘on strict lobby terms’ – that is, for the journalists only, not their readers. Channon then announced that the Dumfries and Galloway Police – the smallest police force in Britain – had concluded a brilliant criminal investigation into the Lockerbie crash. They had found who was responsible and arrests were expected before long. The Minister could not conceal his delight at the speed and efficiency of the PC McPlods from Dumfries, and was unstinting in his praise of the European intelligence.

So sensational was the revelation that at least one of the five journalists broke ranks; and the news that the Lockerbie villains would soon he behind bars in Scotland was divulged to the public. Channon, still playing the lobby game, promptly denied that he was the source of the story. Denounced by the Daily Mirror’s front page as a ‘liar’, he did not sue or complain. A few months later he was quietly sacked. Thatcher, of course, could not blame her loyal minister for his indiscretion, which coincided so unluckily with her instructions from the White House.

Channon had been right, however, about the confidence of the Dumfries and Galloway Police. They did reckon they knew who had done the bombing. Indeed, they had discovered almost at once that a terrorist bombing of an American airliner, probably owned by Pan-Am, had been widely signalled and even expected by the authorities in different European countries. The point was, as German police and intelligence rather shamefacedly admitted, that a gang of suspected terrorists had been rumbled in Germany in the months before the bombing. They were members of a faction of the Popular Front for the Liberation of Palestine, led by Ahmed Jibril. The aim of the gang was to bomb an American airliner in revenge for the shooting down by an American warship of an Iranian civil airliner in the Gulf earlier in the year. On 26 October 1988, less than two months before the bombing, two of the suspects – Hafez Dalkamoni and Marwan Abdel Khreesat – were arrested in their car outside a flat at Neuss near Frankfurt. In the car was a bomb, moulded into the workings of a black Toshiba cassette recorder. In the ensuing weeks other raids were carried out on alleged terrorist hideaways in Germany, and 16 suspects arrested. One of them was Mohammad Abu Talb, another member of the PFLP, who was almost instantly released. Even more curious was the equally prompt release of Khreesat, who was suspected of making the bomb found in Dalkamoni’s car.

The finding of the bomb led to a flurry of intelligence activity. It was discovered that the bomb had been specifically made to blow up an aircraft; and that the gang had made at least five bombs, four of which had not been found. At once, a warning went out on the European intelligence network to watch out for bombs masked in radio cassette recorders, especially at airports.

[RB: Further details of these incidents can be found in Paul Foot’s Lockerbie: The Flight from Justice, pages 3 to 5; in this article in the Executive Intelligence Review of February 1990; and in John Ashton’s Megrahi: You are my Jury, pages 52 to 54.]

"Standards violated in most serious and fundamental way" in Lockerbie case

[On this date in 2002, the International Progress Organization issued a press release in the following terms:]

Lockerbie appeal: miscarriage of justice

Court not in conformity with European human rights standards

Camp Zeist / Vienna, 15 March 2002/P/RE/17525c-is

In interviews for BBC television and radio and for Dutch Television, Professor Hans Köchler, international observer at the Lockerbie Trial, stated yesterday that the decision of the Appeal Court in the case of Abdelbaset Ali Mohamed Al-Megrahi was not justified and did not properly take into account the contradictions and inconsistencies in the original verdict of the trial court. He spoke of a “spectacular miscarriage of justice” that occurred in the highly politicized context of the Lockerbie trial.

In additional remarks made after his return from Camp Zeist, Professor Köchler expressed the view that the handling of the appeal by the five judges demonstrated their bias towards the position of the prosecution as can be clearly seen from the 370 paragraphs of the Opinion of the Appeal Court.

Professor Köchler expressed the view that appeal proceedings are rendered meaningless if an Appeal Court does not seriously deal with new evidence brought before it and does not examine the grounds of appeal in a careful and systematic manner, based on reason and common sense. He furthermore raised serious questions about the performance of Al-Megrahi’s defense.

Professor Köchler stated that reference to the adversarial nature of the Scottish legal system can be no excuse for the total lack of fairness of the proceedings. Whether a legal system is of adversarial or inquisitive nature, whether we deal with a system based on Common Law or on Roman Law, the basic principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms have to be respected in any court proceedings in member states of the Council of Europe having acceded to the Convention.

Article 6(1) of the Convention states that “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …” From the conduct of the trial and of the appeal it is obvious that these basic European standards, by which Scottish courts are legally bound, have been violated in the most serious and fundamental way in the proceedings of the High Court of Justiciary in the Lockerbie case.

In his capacity as international observer nominated by UN Secretary-General Kofi Annan on the basis of Security Council resolution 1192 (1998), adopted under Chapter VII of the Charter, Professor Köchler had made a comprehensive report after the announcement of the original verdict of the Trial Court on 3 February 2001. He announced today that he will present a comprehensive report on and evaluation of the appeal proceedings and that he will submit his observations to the President of the United Nations Security Council and to UN member states.

The International Progress Organization will make the report available to the international public at the proper time. [RB: Professor Köchler’s report on the appeal proceedings can be read here.]

How the first appeal was lost

[On this date in 2002, Abdelbaset Megrahi’s appeal against conviction was dismissed by five judges of the High Court of Justiciary sitting at Camp Zeist. Here is my analysis of their decision:]

Introduction

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. An Opinion of the Court extending to 200 typed pages divided into 370 paragraphs was delivered(fn1). The appeal was against conviction only: there was no attempt to challenge the recommendation, that a minimum of twenty years should be served before release was considered, which accompanied the trial court’s mandatory sentence of life imprisonment.

As required by the provisions of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, the Appeal Court consisted of five Lords Commissioners of Justiciary and sat in the premises of the Scottish Court at Camp Zeist in the Netherlands(fn2). The hearing extended from 23 January to14 February 2002. The proceedings (except when the evidence of witnesses was being heard) were televised live over the internet on a website maintained by the BBC, the first occasion in Scotland (or elsewhere in the United Kingdom) that live public broadcasting of judicial proceedings has been permitted. The consensus of opinion was that the administration of justice was not impaired by the presence of the television cameras, but that the level of excitement and drama was such that there is unlikely to be much clamour in the foreseeable future from either broadcasters or the viewing public for the experiment to be repeated.

The grounds of appeal

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(fn3)” 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(fn4) but principally in the section headed “The function of an appeal court.(fn5)”

Conclusion

Before the verdicts in the original trial were delivered, I expressed the view at http://www.thelockerbietrial.com/in_order_to_convict.htm 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.

Footnotes

1. Al Megrahi v H M Advocate 2002 SCCR 509, available at www.scotcourts.gov.uk/index1.asp

2. The High Court (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251, art 14(1), (2) available at www.hmso.gov.uk/si/si1998/19982251.htm

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

4. 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.

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