Megrahi appeal dismissed

The High Court has dismissed the posthumous appeal brought on behalf of Abdelbaset Megrahi. The 64-page opinion of the court can be read here. [RB: In the version originally issued, the date of the disaster was stated by the court to be 22 December 1988, the same blunder as was made in the trial court's judgement. This has since been corrected to 21 December. Careless.] A summary can be found here. 

As regards the first ground of appeal, the court concludes in paragraph 87 that, notwithstanding evidence challenging 7 December 1988 as the date of purchase of the items from Tony Gauci's shop, and notwithstanding concerns about the evidence supporting Gauci's "identification" of Megrahi, "... the contention that the trial court reached a verdict that no reasonable court could have reached is rejected. On the evidence at trial, a reasonable jury, properly directed, would have been entitled to return a guilty verdict."

As regards the ground of appeal founding upon failure by the Crown to disclose material that would have been helpful to the defence the court concludes that even if the material had been disclosed it would not have made a difference to the guilty verdict. Paragraph 135 of the opinion reads: "The contention that the Crown failed to disclose material which would have created a real prospect of a different verdict is rejected."

The outcome of the appeal is a cogent illustration of just how difficult it is to have the Scottish criminal justice system acknowledge that a mistake has been made, as I continue to believe has happened here. It is, I contend, a matter of grave public concern, that the appeal was so narrowly confined and that issues such as the metallurgy of the circuit board fragment and Dr Morag Kerr's findings regarding the loading of the bomb suitcase at Heathrow were not ventilated.

The Herald's report on the dismissal of the appeal contains the following statement from the Megrahi family's solicitor, Aamer Anwar:

"Ali Al-Megrahi the son of the only man convicted of the Lockerbie bombing said his family were left heart broken by the decision of the Scottish courts, he maintained his father’s innocence and is determined to fulfil the promise he made to clear his name and that of Libya.

"As of this morning the Megrahi family have instructed our legal team to appeal to the UK Supreme Court [and] we will lodge an application within 14 days.

"The family demand the release of secret evidence held by the UK Government, which they believe incriminates others such as Iran and the Syrian-Palestinian group, the Foreign Secretary had refused to do so, this must happen for the truth to emerge."

[What follows is excerpted from a press release issued today by Aamer Anwar:]

Significant material has been received by the Legal team over the last several months, but especially since the announcement by Donald Trump’s former Attorney General William Barr on 21 December 2020, where he stated that the USA wished to extradite a former Libyan Intelligence Officer, Abu Agila Mohammad Masud for the Lockerbie bombing, 32 years later.

Masud’s confession to being involved in the conspiracy with Al-Megrahi to blow up Pan Am Flight 103, was supposedly ‘extracted’ by a ‘Libyan law enforcement agent’ in 2012, whilst in custody in a Libyan Prison. No new information appeared to be presented by Attorney General Barr.

What was significant in the US criminal complaint against Masud was his claim that he bought the clothes to put into the Samsonite suitcase that is claimed went on to blow up Pan Am Flight 103.

Of course, the problem for the US Department of Justice is that the case against Megrahi is still based on the eye-witness testimony of Toni Gauci stating that Megrahi bought the clothes. How can both men be held responsible?

The al-Megrahi family believe that if the conviction against their father were to be overturned then the US case against Masud would be non-existent.

Undoubtedly there will now be huge pressure on Libya and the GNA, the Government of National Accord based in Tripoli to extradite Abu Agila Masud to the US, but of course the American authorities will be also aware that if the Megrahi’s were to be successful at the Supreme Court, then so called case against Abu Masud would crumble. 

A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 32 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

All the Megrahi family want for Scotland is peace and justice, but as Ali stated today their journey is not over, Libya has suffered enough, as has family for the crime of Lockerbie, they remain determined to fight for justice.

They are grateful to their legal team for their unwavering commitment and also to the British families for their compassion and search for justice.

Ali said God willing, he will visit his father's grave one day to tell him that justice was done and that he fulfilled his promise to clear his name and that of Libya.

In this appeal the legal arguments related to two distinct challenges to the conviction. The first was that it was contended that no reasonable jury properly directed could have convicted Mr Megrahi on the evidence led, focusing in particular on the evidence of Maltese shopkeeper Tony Gauci stating that Megrahi bought clothes from him that were ultimately placed into a suitcase containing the bomb planted on the plane.

The second ground was that the failure to disclose information to the defence, led to the trial being unfair and thus a miscarriage of justice, these related to the reliability of Mr Gauci’s identification of Megrahi as the person who bought the clothes, as well as the content of CIA cables.  

In relation to the second ground of appeal, the failure to disclose information to the defence, the decision of the Appeal Court is the determination of a “compatibility issue” – an issue arising from a question relating to the breach of human rights, in this case article 6 the right to a fair trial.   

Where the Appeal Court in Scotland determines a compatibility issue, it is competent to seek leave to appeal from the Appeal Court of the determination of that issue to the UK Supreme Court in London.  If leave to appeal by the Scottish courts is refused, it is competent to seek leave to appeal directly from the Supreme Court in London. 

... the Megrahi family have instructed us to make an application to the UK Supreme Court.  We must now lodge an application within 14 days. Today’s decision will be carefully considered and intimated to the Crown and the UK Advocate General and lodged with the Justiciary Clerk with 14 days of the opinion of the court which is dated 15th January  2021.

The Justiciary Clerk will then ask for written submissions.  The Crown is allowed to lodge  submissions to object. Written submissions are always required even if there is an oral hearing.  It may be that the court will advise that the matter will be considered on paper submissions only. 

The time for a decision on that application is difficult to estimate, however we would expect the al-Megrahi case to progress relatively quickly and no longer than 2-3 months.

When the decision of the High Court of Justiciary is known - if it is an adverse decision then within 28 days an application for 'permission to appeal' can be lodged with the UKSC Registrar to directly appeal to the Supreme Court. One would hope that if such a process were followed then the appeal would be heard before the end of 2021.