Monday 7 July 2014

Seven years' hard

This blog is seven years old today.

I started the blog just after the Scottish Criminal Cases Review Commission had referred Abdelbaset Megrahi’s conviction back to the High Court of Justiciary for a further appeal. It seemed to me that a commentary on the appeal process would be of some value. My expectation was that, even allowing for the law’s notorious delays, the blog would not be needed for longer than two years -- or two-and-a-half at the outside. Foolishly, of course, I gravely underestimated the Crown Office’s ingenuity in delaying proceedings (with the connivance or condonation of the appeal judges) and the obstructiveness of the then UK Government in the persons of the Foreign Secretary, David Miliband, and the Advocate General for Scotland, Lord Davidson of Glen Clova QC. The result was that the appeal hearing had only barely got into its stride when Megrahi’s illness led to his abandoning the appeal and being released on compassionate grounds in August 2009. So the Megrahi case lingers on, as does this blog. Perhaps the current SCCRC application will enable the case and this blog to be decently buried. But don’t expect it to be anytime soon.

Meanwhile, here is the second of two items published in the blog on the first day of its life:

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:
“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.
“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.
“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.
“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty
The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence.    The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser.  This was the very cornerstone of the Crown’s case against him.  If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system
The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.  Here is just one example of the trial court’s idiosyncratic approach to the evidence.  Many more could be provided.
A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta.  There were only two live possibilities:  7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi.  The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.
On evidence as weak as this how was it possible for the trial court to find him guilty?  And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?  The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).
It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system.  For centuries judges have accorded a specially privileged status to the Lord Advocate.  It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction.  This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day.  This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.
The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.
Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony.  Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.
Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.
At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,  stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.
Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."
One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"
The Lord Advocate replied:  “Well, I'm just checking with the counsel who made that...  there is nothing within the -- -- there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."
Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety.  Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.
Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;  Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!
“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” I Corinthians xiii.11. It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.
It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.


  1. Happy anniversary!
    And while the formal overturning of the verdict it not yet reached, great battles are long won.

    Try to google for the word "Lockerbie". You don't get far on the first page before realizing that something is wrong.

    As Robert F. wrote a couple of days ago:
    ...every taxi driver in Glasgow knows that Baset was stitched up.

    That will have meant more for Megrahi than whatever was written in the protocols by the perverted judicial system of Scotland.

  2. How much can happen in seven years! A baby can grow from mewling helplessness to become a person, with his own character, opinions, likes and dislikes.

    A country can grow from tame acceptance of a "devolved" puppet assembly to being on the brink of independence.

    And for my own part, I've moved from knowing little about Lockerbie other than that there seemed to be serious concerns about the safety of the conviction, to understanding a great deal about one particularly important aspect of the case.

    In 2007 I expressed an interest in finding out more, because of the constant barrage of news about the upcoming appeal that was coming over the airwaves day after day. However, I didn't follow up on this interest, partly because the computer I had then was getting on a bit, and slow. I was relying on the appeal to clarify the issues when it came to court.

    It wasn't till 20th August 2009 that I became galvanised to do some work on it for myself. I regarded the abandoning of the appeal as a scandal, and a signal that some people really didn't want these matters aired in court. I realised I had no idea at all what the Christmas lights in a town on Malta had to do with anything. I didn't even know the bomb was supposed to have started on Malta.

    It's amazing how much you can learn in five years, part time. And it's not as if that's all I was doing. I work full time. I was caring for my elderly mother, who died in 2011. I revived my interest in recorder playing, and took evening classes for two years. I sang in two choirs. But I still managed to do more research into the Lockerbie case than I did for my actual PhD, I think.

    It makes me realise how superficial many of the legal investigations and arguments have been. Learned people quibble about legal points, or whether this or that submission is admissible. About whether the court was entitled to find this or that. Nobody seems particularly concerned to ask, what ACTUALLY HAPPENED? Was Megrahi really the man who bought the clothes? Even on a balance of probabilities? Or was this a legalistic exercise in forcing a square peg into a round hole with a sledgehammer?

    As far as the Crown not being interested in a fair trial is concerned, as well as all the points raised above, I'm especially interested in how the Heathrow evidence was dealt with. I don't believe for a minute anyone in the prosecution team realised that PK/139 and the McKee Samsonite proved that the bomb suitcase had been on the floor of the container. I'm damn sure though that they realised that the impossibility of identifying a case that had been on the floor of the container, ostensibly under the bomb, was a serious problem for them.

    They could have presented the evidence honestly. The identification of the six legitimate Heathrow-loaded items. Bedford's evidence about the order in which he loaded these items. The reconciliation of these six items to six items recovered on the ground. Sidhu's testimony that he didn't move these cases when he added the Frankfurt luggage. Then the court could have made up its mind about it all.

    They didn't. They obfuscated shamefully, they concealed fundamental statements and evidence, and they concocted a stupid fairy-story about Sidhu pointlessly shuffling luggage he had no need to move, and the Coyle case somehow getting itself under the bomb. Did they realise the Coyle case was on top of the bomb? Maybe they did, maybe they didn't. Even at best, though, they were torturing the evidence to support a pre-determined conclusion, and damn the truth.

    Scotland needs better than that from its criminal justice system.

  3. When the Attorney General was ‘pinned against the wall’ and told to state the Iraq invasion was legal and he obliged days before the invasion to avoid a mutiny from British military high command [who didn’t like the idea of being arrested for war crimes] was this really any different from what the Zeist judges did [indirectly at the behest of their Lord Advocate] who had probably been ‘pinned up against a wall’ too to ensure a guilty verdict for geo-political [economic] reasons.

    And yet despite no WMDs which must compound the illegality of the decision [also illegal under the terms of the UK anti-terrorism Act 2000], Blair continues to promote ‘war for personal profit’ with the backing of the US/neo-con lobby with the official title of ‘Peace Envoy’.

    And this is all in the public domain, so 7 years hard labour seeking the truth about Lockerbie, is no real surprise and will require a political voice to change.

  4. Judges pinned up against a wall? What a very simplistic viewpoint.

    The mood music coming from the Foreign Office before the verdict was that they expected a not guilty pronouncement. They were pretty resigned to it. Professor Black, who actually knows these people and was right there while it was all happening, has explained the nuances of what went on and how three apparently intelligent men managed to get this so obviously wrong.

    It's all a great deal more subtle than anyone being pinned up against a wall. But then, I woudln't expect Dave to understand nuance.

  5. It’s very naive [or something else] to pretend the State would stage a show trial and allow a not guilty verdict!

  6. I think I'll let Professor Black answer that, if he feels inclined.

  7. I don't feel much inclined. However, my view on the judges' true (if subconscious) motivation for returning one guilty verdict can be found in the article reproduced in this very post (third para of section headed "The implications for the Scottish criminal justice system") and also in the very first post on this blog ("Lockerbie: A satisfactory process but a flawed result") footnote 2 and accompanying text.

  8. There would have been considerable pressure on the Judges to do their patriotic duty and find the two suspects guilty in defence of the system and Lord Advocate.

    And they did their duty by finding Megrahi guilty, after saying he was innocent in their summing up!

    But to salve their conscience the judges announced to the world that Zeist was a show trial by finding Fhimah not guilty.

    Because how can you convict one without the other on a conspiracy charge?

  9. Dave, the Crown withdrew the conspiracy charge. All that the judges were required to consider (and all that they returned verdicts on) were the murder charges against Megrahi and Fhimah.

  10. When exactly was the conspiracy charge dropped, before or during the trial?

  11. On 9 January 2001, which was during the trial.

  12. Thanks Professor,

    Dropping the conspiracy charge was a remarkable thing to happen because it becomes an admission about the lack of evidence despite years preparing a case based on a conspiracy to plant a bomb.

    But without the conspiracy charge being dropped the judges would have had to find both defendants innocent or guilty.

    Thus was the conspiracy charge dropped by the Crown as a back room deal to allow the [protesting] judges to do their patriotic duty by finding one guilty without having to go completely against their conscience and the evidence by finding both guilty?

  13. I don't believe for a second that there was a backroom deal between the Crown and the judges. The scuttlebutt within the Scottish legal profession was that two of the judges wanted to convict both accused and one wanted acquit both. The compromise (because anything other than a unanimous verdict in this case would have been intolerable from a PR standpoint) was to convict one and acquit the other. The scuttlebutt goes on to say that the judge who was for acquittal has ever since regretted agreeing to the compromise. Maybe we'll find out if there is any truth in this once he dies.

  14. Prof, do you think a "not proven" verdict would have been acceptable for either defendant in this case? Given that it's popularly regarded as a "guilty on the balance of probability but not beyond reasonable doubt" judgement?

    (Yes I know you're going to say it doesn't mean that, but that's not the point. That's what people think it means.)

  15. Scuttlebutt again has it that the judges early decided that, whatever happened in the trial, no acquittal would be by way of "Not Proven", for precisely the reason that most people (at home and overseas) would make the assumption that Rolfe refers to.

    How I wish that our only two verdicts were "Proven" and "Not Proven"! It's the "Not Guilty" verdict that is the nonsensical one and does not accurately reflect what 99 per cent of acquittals actually mean, viz that the accused's guilt has not been established beyond reasonable doubt in the eyes of the trier of fact (jury or judge, as the case may be).

  16. Re your first paragraph, that was what I suspected. Re your second, I wholeheartedly agree. No country should have different levels of acquittal.

  17. There was a conspiracy charge against both and no evidence against either and a guilty verdict against one but not the other, but only possible because the conspiracy charge was dropped.

    But why would a conspiracy charge be dropped when the evidence against both was so strong, unless the selected judges were not impressed with the evidence, clearly evident in their summing up.

    Thus a deal must have been done, normally known as a plea bargain, but with the judges, not the defendants!

  18. This is utter nonsense, Dave. The Crown were as surprised as everyone else in the courtroom (and beyond) when the judges returned a verdict of guilty against Megrahi. If you are going to continue contributing, please stop posting comments about what "must" have happened and start concentrating on what actually did.

  19. I wouldn't get your hopes up, Professor....