Thursday 27 August 2020

Appeal court accepts Megrahi lawyers' submissions regarding scope of appeal

[What follows is the text of a press release issued today by Aamer Anwar & Co:]

On the 21st August the first procedural hearing in the posthumous appeal of Mr Al-Megrahi took place. The judges retired to give consideration to our grounds of appeal, to the extended grounds as well as an application for recovery of documents held by the UK Government.

The reputation of Scottish Law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al Megrahi. It is in the interests of justice and restoring confidence in our justice system that these doubts can be addressed, but the only place to determine whether a miscarriage of justice did occur is in our appeal court.

We claimed in court that the Crown failed to disclose CIA cables in respect of a key crown witness on the basis of an undertaking given to the United States Government.

We claimed that there was systemic failure to disclose documents to the defence and that the Lord Advocate acted in a way which was incompatible with Mr Al- Megrahi’s right to a fair trial.

It was disappointing that court was told that the Secretary of State for Foreign and Commonwealth Affairs- Dominic Raab MP, had lodged a further Public Interest Immunity Certificate on the 17th August, after it was last done in 2008 by David Miliband. We believe the UK Government is refusing to declassify documents that we believe may support our ground of appeal that there has been a miscarriage of justice. 

The Government has claimed disclosure will cause ‘real harm’ to international relations and to the national security of the United Kingdom.

However, both the Megrahi family and many of the British families of victims supporting this appeal ask whose public interest and security is being protected, some 31 years after the bombing.

If the Government has nothing to hide, then it has nothing to fear from disclosing this material. We asked the Court for a specification for recovery of these classified documents and thus their disclosure.

The Judges the Lord Justice General, the Lord Justice Clerk, and Lord Menzies have now given consideration to our submissions as well as those of Crown Office and the Advocate General on behalf of the UK Government.

1. The court has authorised Ali Abdulbasit Ali Almaqrahi, the son of  the deceased Abdelbaset Ali Mohamed Al Megrahi. to institute an appeal on behalf of his father.

2. Has allowed the appellant to found the appeal on additional grounds which did not relate to one or more of the reasons contained in the Statement of Reasons by the SCCRC for making the Reference.

3.It has allowed ground (1) of appeal to be argued – the ground of appeal in relation to “no reasonable jury” could have returned the verdict that the Court did.

4. It has allowed ground (2) of appeal ‘non-disclosure’ to be argued but also includes the Crown’s failure to disclose CIA Cables – as set out in Operation Sandwood.

5. Importantly it is continuing consideration of part of our appeal on the new Public Interest Immunity Certificate – that is the protectively marked documents which the UK Government maintain should remain ‘classified’ and the Court will now appoint special counsel for this purpose to represent the appellant.

6. The Special counsel will have clearance from the security services and is entitled to see the confidential information and will appear at a private hearing which we may not attend. He/she must not disclose any of the confidential information to our legal team, except—with the permission of the court, and where permission is given, in accordance with such conditions as the court may impose.

7. November 24th  has been set as the date for the start of the appeal.

Today was an important milestone for the Megrahi family on the road to try to establish that the verdict against their father was a miscarriage of justice. There can never be a time limit on justice.

[RB: This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.]


  1. Hmmm. That's interesting. You know what I'm going to say next, don't you. Does this mean they can dredge up the Heathrow evidence?

    I'm still in some confusion about this. The SCCRC rejected the Heathrow evidence on the grounds that the police had shown them something I wasn't aware of which, while they didn't say it destroyed the contentions in my book, they said that it made my conclusion "not certain". Three points about that.

    First, what is this mysterious fact? Because no matter how I rack my brains I cannot think of anything that might emerge that could significantly undermine my analysis. To be honest, and pace the Sandwood fans, it smacks to me of a desperate scramble for something, anything, to dismiss my thesis without giving me any chance to assess whether it actually does damage it. I actually said to them (in Dunfermline I think) that if they did discover anything that undermined my conclusions I would withdraw my appegations myself. But of course they didn't tell me what it was they think they've discovered and forgive me for being very sceptical that this factoid is actually capable of surviving serious scrutiny. I think it should be subjected to that scrutiny, but without sight of the Sandwood report we don't know what it is.

    Second, why is it rational to exclude the Heathrow point in appeal merely on the ground that this mysterious factoid has made my analysis "not certain"? It hasn't been said that it destroys or negates my analysis, merely that it calls it into question. Should this not therefore be something for the court to look at in detail and decide? Doubt about the interpretation of a new piece of evidence (apparently being withheld at the moment) is surely exactly what a court is for.

    This leads on to my third point. Does this mean that the appellant is going to be able to demand sight of the Sandwood report and introduce it, or points raised by it, in court? That would be all birthdays and Christmases in one, I think.

  2. Scope means what was buried stays buried