Thursday, 5 November 2015

SCCRC refuses Megrahi application - "not in the interests of justice"

[What follows is the text of a press release issued today by the Scottish Criminal Cases Review Commission:]

Application on behalf of Mr Abdelbaset Ali Mohmed Al Megrahi

The Scottish Criminal Cases Review Commission announced today that the Board of the Commission has decided that “it is not in the interests of justice” to continue with a review of the conviction of the late Abdelbaset Ali Mohmed Al Megrahi. Consequently, the application has been refused.

The Commission received the current application from Messrs Aamer Anwar & Co., solicitors, in June 2014. At the time it was clear that the application was made on behalf of the “Justice for Megrahi” group, in the form of Dr Jim Swire, the Rev. John Mosey and a number of other family members of the victims of the bombing. The application also appeared to be supported by the members of the family of the late Mr Megrahi.

Before the Commission received the application it issued a press release outlining the matters which it would have to consider at stage one of its review. (See News Release - 6 May 2014).

These included whether it was competent for relatives of the victims like Dr Swire to instruct any future appeal if the case was referred. On 3 July 2015, the court decided that the relatives of the victims had no entitlement to instruct such an appeal. A copy of the opinion can be accessed here: (Opinion of the Court).

The Commission also had to consider the circumstances surrounding the abandonment of Mr Megrahi’s previous appeal. To enable it to do so it was imperative that the Commission be provided with the defence appeal papers. After a period of 14 months, and despite various requests having been made of the Megrahi family and of the late Mr Megrahi’s previous solicitors, Messrs Taylor and Kelly, these have not been forthcoming. In addition, the Commission has sought specific materials from Messrs Aamer Anwar & Co., the current solicitors for the Megrahi family. Over a year has now passed without the necessary information and materials being provided and the Commission has been advised that there is little prospect of either the information or the defence papers being provided in the near future. The Commission is unable to consider the relevant matters properly and now has little confidence in the willingness of the Megrahi family to cooperate with the current review or to take forward any subsequent appeal.

Consequently, the parties have been informed that the current application has been refused. A Statement of Reasons explaining the reasons for this has been issued today to the parties. The criteria applied in reaching this decision are outlined in the Commission’s Statutory Test policy document. (See The Commission's Statutory Test).

The Commission’s Chairman, Jean Couper, said today:

“A great deal of public money and time was expended on the Commission’s original review of Mr Megrahi’s case which resulted, in 2007, in him being given the opportunity to challenge his conviction before the High Court by way of a second appeal.

In 2009, along with his legal team, Mr Megrahi decided to abandon that appeal. Before agreeing to spend further public money on a fresh review the Commission required to consider the reasons why he chose to do so.

It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi’s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review.

It remains open in the future for the matter to be considered again by the Commission, but it is unlikely that any future application will be accepted for review unless it is accompanied with the appropriate defence papers. This will require the cooperation of the late Mr Megrahi’s solicitors and his family.”

The Commission does not intend to make any further comment at this time.

Notes for Editors

The Scottish Criminal Cases Review Commission was established as an independent body on 1 April 1999 to review alleged miscarriages of justice in Scottish convictions and/or sentences. Under section 194A-L of the Criminal Procedure (Scotland) Act 1995, as inserted by section 25 of the Crime and Punishment (Scotland) Act 1997, the Commission may refer a case to the High Court if it believes that a miscarriage of justice may have occurred and that it is in the interests of justice that a reference should be made. Once the Commission refers a case to the High Court, the case will proceed as a normal appeal.

Mr Megrahi was convicted in 2001 of the murder of the 259 passengers and crew on board Pan American World Airways flight PA 103 from London to New York, and 11 residents of Lockerbie on 21 December 1988. He subsequently appealed his conviction and his appeal was refused by the High Court in 2002.

Mr Megrahi previously applied to the Scottish Criminal Cases Review Commission for a review of his conviction in 2003, and his case was referred by the Commission to the High Court for a new appeal in 2007. Mr Megrahi subsequently abandoned his second appeal in 2009. Mr Megrahi died in 2012.

Where a convicted person has died, court rules allow the High Court to consider an appeal where it considers the person taking the appeal has “legitimate interests” in the case. The determination of whether a person has a “legitimate interest” is a decision for the High Court to make.

The Commission petitioned the High Court, in terms of s194D(3) of the Criminal Procedure (Scotland) Act 1995, to establish whether Dr Jim Swire or another member of the victim`s families might be classed as a person with a legitimate interest to pursue an appeal on behalf of Mr Al-Megrahi in the event that the Commission was to refer the case back to the High Court. On 3 July 2015, the court issued its opinion on the matter. A copy of the opinion can be accessed here: (Opinion of the Court).

In light of this opinion the Commission required to address whether it was “in the interests of justice” to accept the conviction of Mr Megrahi for a full further review, taking account of the statutory requirement for “finality and certainty” in criminal proceedings under s194C(2) of the 1995 Act. In considering this matter the Commission required to address the fact that Mr Megrahi had abandoned his appeal in 2009 after a referral from the Commission and that neither he nor any member of his family had lodged an application for a further review of his conviction prior to his death in May 2012.

The Commission has written to the late Mr Megrahi`s solicitors and to his family requesting access to the defence papers in order to allow it to consider the circumstances surrounding the abandonment of Mr Megrahi’s second appeal. No papers were forthcoming despite repeated requests.

[RB: This is disappointing, but not unexpected in light of the High Court’s recent dismissal of the application by the relatives of victims.]


  1. What is it with these papers? Why can't they be given to the Commission?

    1. Papers held by a lawyer belong to the client. When the client is dead, it's his executor who must instruct the lawyer what to do with them. I suspect that the problem (as with the Megrahi family's SCCRC application itself) is what amounts to acceptable evidence of who is, under Libyan Sharia succession law, equivalent to an executor. There is, actually, I am told, no exact equivalent. The eldest son represents the family and is expected to give effect to his father's wishes and is probably nearest to an executor. But it's a real legal headache and Baset's former lawyer, Tony Kelly, refuses to hand over the papers to anyone until he is satisfied that the person asking him to do so has the legal authority to make decisions about Baset's papers.