A verdict based upon findings-in-fact that, on the evidence led, no reasonable court could have reached

[Today's edition of The Scotsman contains an article headlined Lockerbie anniversary: No reasonable tribunal could have convicted Megrahi, says Robert Black. It reads as follows:]

“I don’t think there’s a lawyer in Scotland who now believes Mr Megrahi was justly convicted.” Ian Hamilton QC, 7 October 2010

On 31 January 2001, after just over 130 court days of a trial that had started on 3 May 2000, the three judges in the Lockerbie trial at Camp Zeist (Lords Sutherland, Coulsfield and MacLean) returned a unanimous verdict of guilty of murder in respect of the first accused, Abdelbaset Ali Mohmed al-Megrahi, and a unanimous verdict of not guilty of murder in respect of the second accused, Al-Amin Khalifa Fhima.

Megrahi was sentenced to life imprisonment, with a recommendation that he serve at least 20 years (altered under later legislation to life with a “punishment part” of 27 years).

Since the day of the verdict I have contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial. Here are three instances of the trial court’s idiosyncratic approach to the evidence. More examples could be provided.

1. The suitcase which contained the bomb also contained clothes and an umbrella bought in a particular shop, Mary’s House, in Sliema, Malta. Megrahi was identified by the Maltese shopkeeper as the person who bought the clothes and umbrella.

Commentary: The most that the Maltese shopkeeper, Tony Gauci, would say (either in his evidence in court or at an identification parade before the trial or in a series of nineteen police statements over the years) was that Megrahi “resembled a lot” the purchaser, a phrase which he equally used with reference to Abu Talb, one of those mentioned in the special defence of incrimination lodged on behalf of Megrahi. Gauci had also described his customer to the police as being dark skinned, six feet tall and over fifty years of age. Megrahi was light skinned and the evidence at the trial established (i) that he was five feet eight inches tall and (ii) that in late 1988 he was thirty-six years of age. Norwithstanding this evidence, the judges found in fact that Megrahi was the purchaser.

2. The suitcase containing the bomb was sent as unaccompanied baggage from Luqa Airport in Malta, via Frankfurt, on the morning of 21 December 1988 on an Air Malta flight, KM 180. Megrahi was in Malta on the night of 20/21 December 1988 and left for Tripoli from Luqa Airport on the morning of 21 December.

Commentary: The trial judges held it proved that the bomb was contained in a piece of unaccompanied baggage which was transported on Air Malta flight KM 180 from Luqa to Frankfurt on 21 December 1988, and was then carried on a feeder flight to Heathrow where Pan Am flight 103 was loaded from empty. The evidence supporting the finding that there was such a piece of unaccompanied baggage was a computer printout which could be interpreted to indicate that a piece of baggage went through the particular luggage coding station at Frankfurt Airport used for baggage from KM 180, and was routed towards the feeder flight to Heathrow, at a time consistent with its having been offloaded from KM 180. Against this, the evidence from Luqa Airport in Malta (whose baggage reconciliation and security systems were proven to be, by international standards, very effective) was to the effect that there was no unaccompanied bag on that flight to Frankfurt. All luggage on that flight was accounted for. The number of bags loaded into the hold matched the number of bags checked in (and subsequently collected) by the passengers on the aircraft. Notwithstanding this evidence the court held it proved that there had been a piece of unaccompanied baggage on flight KM 180.

3. 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.

Notwithstanding this evidence, the judges found in fact that the clothes were purchased on 7 December.

My view on this issue, first expressed within days of the verdict being delivered in January 2001, was that on the evidence led at the trial, no reasonable court could have reached the conclusion that the date of purchase was 7 December. Weighty support for this view was supplied by the findings of the Scottish Criminal Cases Review Commission in June 2007. Among the six reasons found by the SCCRC for concluding that the Megrahi conviction might have amounted to a miscarriage of justice was the following:

“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.”

The reasons given by the commission for finding that a miscarriage of justice may have occurred in this case were therefore 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 (though both of these things happened and are important).

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, that finding had no reasonable basis in the evidence, then there was no legal justification whatsoever for his conviction.

An appeal against conviction failed in 2002 because, for reasons that are to me utterly inexplicable, Megrahi’s lawyers failed to argue that the evidence had been insufficient to convict or that no reasonable court could have convicted on that evidence.

Since the Zeist trial and appeal important additional evidence has emerged that further undermines the guilty verdict against Megrahi. For example, the fragment of circuit board that was the principal link between the bomb and Libya is now known to have a significantly different metallurgical composition from the timers that were supplied to the Gaddafi regime.

This difference was known to the Crown but was never disclosed to the defence or to the court.

Again, the painstaking research of Dr Morag Kerr in 2012 into the placement and condition of the items of baggage in luggage container AVE4041 that is known to have housed the suitcase containing the bomb has conclusively demonstrated that the guilty Samsonite suitcase was already in that container before any suitcase could have arrived from Malta in the feeder flight from Frankfurt.

Research and analysis of this type ought, of course, to have been done before the trial. But it wasn’t (or, if it was, the outcome was not presented in evidence to the court, perhaps because it failed to support the Malta ingestion scenario).

This new material is without doubt significant. But even more significant is that in the most important criminal trial ever held under the Scottish criminal justice system, the court returned a verdict of guilty based upon findings-in-fact that, on the evidence led, no reasonable court could have reached.

Abdelbaset Megrahi is now dead.

But his widow and children have launched an application to the Scottish Criminal Cases Review Commission to be allowed to bring a fresh appeal against his conviction.

It is to be hoped that such an appeal takes place, not only to remove from Megrahi’s name the stigma of being “the Lockerbie bomber” but also to allow the international and domestic reputation of Scottish criminal justice system to recover from the stain of having presided over such an egregious miscarriage of justice and of having failed for years to have the courage to take the steps necessary to rectify it.