Crown's account of 12th procedural hearing

[The Crown Office (headquarters of the Scottish prosecution system) provides relatives of those killed aboard Pan Am 103 with accounts of proceedings in court in connection with the current Lockerbie appeal. I am grateful to one of these relatives (who, for the avoidance of doubt, is not Dr Jim Swire or, indeed, any of the UK relatives) for supplying me with the appended notes distributed by the Crown Office following the twelfth procedural hearing this past week.]

Petition for recovery of documents

On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.

Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.

The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.

Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.

This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.

In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.

•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.

•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.

•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.

•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).

•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.

Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.

Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.


Procedural Hearing 17th – 18th March 2009

People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.

Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross

Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.

Alan Summers QC appeared on behalf of the Advocate General for Scotland.

Hearing Grounds 1 and 2

The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.

Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.

Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.

The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.

Hearing Grounds 3.1 – 3.1

Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.

Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.

The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.

The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.

Outstanding Petitions for Disclosure

There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.

Additional Information

In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.

The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.

Serious evidence-based concerns never addressed

[What follows is the text of an article by Dr Morag Kerr which is published today on the Scottish Legal News website:]

Dr Morag Kerr, secretary-depute of Justice for Megrahi, replies to Ronnie Clancy KC’s recent articles on Lockerbie and argues that despite the slur of ‘conspiracy theorist’ used by the UK and Scottish governments, the Crown Office, the SSCRC and the Americans, Mr Megrahi still suffered a miscarriage of justice.

I declare that the bomb that caused the Lockerbie disaster was in the suitcase seen by John Bedford in the baggage container in the interline shed at Heathrow at 4.30 pm, an hour before the PA103 feeder flight from Frankfurt landed. I challenge Mr Clancy, or anyone else, to prove me wrong using facts and reason, not the unevidenced opinions of others, and not legal technicalities.

Mr Clancy makes a number of assertions in his two-part article of 6th and 7th January, and delivers a number of ad hominem attacks on critics of Abdelbaset al-Megrahi’s conviction, but actual evidence is in short supply. Reasoned refutation is conspicuous by its absence. Much of his argument consists of “the SCCRC have looked at this and say it’s fine, nothing to see here folks,” and “these people are dreadful conspiracy theorists.”

The lazy “conspiracy theorist” slur is a repeat of Magnus Linklater’s perennial articles for The Times, built on a false premise, or rather the logical fallacy of the unexcluded middle. There is a third possibility between that of Megrahi being guilty as charged and the police, the justice system and the SCCRC all being complicit in a conscious conspiracy to perpetuate a miscarriage of justice, and that is the aspect of human nature known as confirmation bias. Reading Mr Clancy’s articles it is very difficult to avoid the conclusion that he too is a victim of this particular form of fact-blindness.

When one is personally invested in a particular conclusion, whether as an individual or as part of a self-reinforcing group, the act of considering the possibility that one might be mistaken can be repugnant, almost painful. This is particularly true when the consequences of having to acknowledge that a mistake has been made are wide-ranging. The brain will seize on any scrap of evidence, however peripheral to the core argument, any line of reasoning no matter how convoluted and sophistic, to shore up the original conclusion and avoid the cognitive dissonance of seriously contemplating a contradictory one.

It is disingenuous in the extreme to cherry-pick public statements by those advancing the proposition that Megrahi was wrongfully convicted to imply that some grand, conscious and co-ordinated conspiracy is being alleged (how could that possibly be, surely these people are malicious!), rather than the obvious interpretation that what is being proposed is that those determinedly shoring up the conviction are mistaken, in thrall to confirmation bias and cognitive dissonance. (Indeed, the very title of my own book about the case, referencing the aphorism known as “Hanlon’s Razor”, should have provided something of a clue.)

It is particularly disingenuous do this, and to base an entire argument on the premise that the SCCRC is to be trusted implicitly, in the very week of the debacle in England surrounding the wrongful conviction of Andrew Malkinson and the very credible allegations that the CCRC “has been infected with a culture of denial”. A culture, that is, steeped in confirmation bias. The Malkinson case is not the only one. Can we really, hands on hearts, trust that the SCCRC is a completely different animal?

In the second part of his article Mr Clancy appears to call on specific pieces of evidence to support his position. Nevertheless, once again the argument is little more than “trust the SCCRC, they’ve looked at this very thoroughly,” rather than reasoned, factual refutation.

The timer fragment

Given the mysterious nature of this object it’s hardly surprising to find it surrounded by a fog of speculation and indeed conspiracy theorising. That also is human nature. However, the speculation comes after the observation that this item was not what the prosecution claimed it was, and does not negate that observation.

Dr Swire and Mr Biddulph, and indeed Mr James, are entirely justified in their doubts about the provenance of the fragment, and their criticism of the way this was handled by the SCCRC. To inject some facts into the discussion (a bit of a shock to the system, I know), the central issue is this. It was recognised at an early stage in the investigation that the circuitry of the fragment was coated with pure tin, a technique used by amateur hobbyists making single or small-batch PCBs, and which is not suitable for large-scale commercial use. This was considered a very significant finding when the fragment was first analysed in Scotland in early 1990. While the pattern of the circuitry on the fragment seems to confirm to a high degree of certainty that it was made from a Letraset template produced by the Swiss electronics firm MEBO, all the PCBs for the MST-13 timers that were manufactured from that template for MEBO by Thüring AG had their circuitry coated with a 70/30 tin/lead alloy. Thüring did not have the facilities to apply a pure tin coating. It is one of the many highly regrettable features of the Zeist trial that this discrepancy was fudged and obscured in court, mainly thanks to a highly misleading statement by Allen Feraday, an English forensics expert, and the bench was never made aware of it.

Speculation and conspiracy theorising aside, nobody knows what that fragment is, who made it or when or for what purpose. All that can be said is that it was not from one of the batches of PCBs manufactured by Thüring and which were supplied to Libya by MEBO, as alleged by the Crown. Mr Clancy refers to “… the large body of evidence, including scientific evidence, that questions the accuracy of [these] claims.” What evidence would that be, then? According to their public news release the SCCRC rejected this ground of appeal on the narrow technical point that “… the applicants have not provided a reasonable explanation as to why the fresh evidence concerning the metallurgy issue was not led at the trial,” and because they believed that the failure of the original defence team to uncover the discrepancy did not amount to “defective representation”, not because they had obtained scientific findings which contradicted this evidence.

The suitcase

This is my own personal area of expertise in the case, and Mr Clancy refers to my 2013 book Adequately Explained by Stupidity?, which is largely devoted to examining this issue. I wonder if he has read it?

According to Mr Clancy, “… the SCCRC carried out a thorough examination of the allegation taking account of all the relevant evidence including information which was not available to Justice for Megrahi. The SCCRC concluded that ‘… it was not arguable that the Justice for Megrahi theory could show conclusively that the bomb had entered the airline luggage in Heathrow’.” (Note, not that this information disproved the proposition, merely that it apparently rendered it inconclusive.)

The evidence presented in my book formed part of Justice for Megrahi’s submission to the COPFS which resulted in the police Operation Sandwood. In the course of that investigation I was interviewed by officers on several occasions, going through the evidence and my reasoning in minute detail. Repeatedly, I assured them that I had no dog in this fight beyond a desire to solve the puzzle (which the original forensic investigators had so signally failed to do). I was (and still am) convinced that the evidence proves beyond reasonable doubt that the bomb suitcase was already in London an hour before the flight supposedly carrying it landed. As a scientist, though, I always strive to maintain an open mind. I begged the police officers on several occasions to tell me if they discovered either additional evidence I didn’t have, or an alternative interpretation I hadn’t thought of, that would cast doubt on my conclusion. I stated categorically that if such evidence were to be found, I would withdraw my thesis and issue a public retraction. Nothing of that nature happened. Contact with Operation Sandwood tailed off and then ceased entirely, with no explanation. All I ever got was a personal jibe from Kenny Macaskill to the effect that (and I paraphrase) “I know something you don’t know, so you’re wrong.”

This is more or less exactly Mr Clancy’s position, echoing the position of the SCCRC. They know “something” that allows an entire book full of minute detail and closely-reasoned argument to be dismissed, but no hint at all is given of what this something might be. I find the secrecy over this point very disturbing.

The best guess I can make is that Operation Sandwood, Mr Macaskill, the SCCRC and Mr Clancy are placing the supposed confession of Abu Agila Masoud to having been involved in the smuggling of the bomb on board Flight KM180 in Malta above my analysis. However, this “confession” is a highly contradictory and confusing document, in places flatly contradicting evidence relied on to convict Megrahi. False confessions are one of the most frequent causes of miscarriages of justice and wrongful convictions, and indeed in this case the lord advocate was unable to assure Justice for Megrahi that he was confident that the confession had not been obtained by torture. My position on this matter is that if someone confesses to doing something that provably didn’t happen, it still didn’t happen.

My analysis of the evidence, which is entirely theoretical, has recently been independently confirmed experimentally.[1] A Dutch forensic scientist, Dr Erwin Vermeij, carried out multiple test explosions using used aluminium LD3 containers with mocked-up suitcases and IEDs made to simulate the Lockerbie bomb, with the bomb suitcase in various positions in the container. These experiments were far more rigorously designed and executed than the botched tests carried out in the USA in 1989. His conclusion states:

Regarding the damage to the luggage containers, experiment 7 where the IED suitcase was in the first (bottom) layer with one end slightly elevated on to the horizontal strut comes closest to replicating the damage observed on LD3 luggage container AVE4041. This suggests that the reported so called Claiden spot is probably too high, presuming that 450g explosive was used. If the center of the Lockerbie bomb was really on the Claiden spot, the only possibility is that the explosive charge must have been larger than 450g.

It was demonstrated in court that it was impossible to get more than 450g of Semtex inside the radio-cassette player used to construct the IED. The position that “comes closest” to the damage observed on the Lockerbie luggage container is the one described in my book.

The luggage tags

The single piece of actual evidence discussed by Mr Clancy is the peripheral matter of an entry in the diary of Lamin Fhimah, Megrahi’s co-accused, relating to his obtaining “taggs” (sic) for Megrahi. As a statement by someone other than Megrahi himself, this was held by the trial court not to be evidence against him. However, it was admitted by the court in the 2021 appeal in order to “considerably bolster” the evidence that the bomb was infiltrated in Malta. There’s no evidence that these tags were even obtained, let alone given to Megrahi, or what he did with them if they were. The accuseds’ explanation was that they were needed as samples to get a printing quote. The re-introduction of this extremely trivial and non-probative evidence suggests to me that someone was getting a bit desperate.

The identification evidence

This is barely touched on by Mr Clancy, despite its actually being the central issue as regards Megrahi’s conviction. He describes it as “qualified (resemblance) identification”, which is being remarkably kind. Frankly, no normal human being, as opposed to angels dancing on the heads of pins, could possibly imagine that the bribed and cajoled Tony Gauci’s fifty-year-old, over six feet tall, dark-skinned, heavily-built customer was in fact the 36-year-old, five feet eight, light-skinned, slightly built Megrahi. Even Tony prefaced his line-up “identification” with “Not the man I saw in my shop, but…” The identification is in fact the shaky hook on which the entire daisy-chain of circular reasoning dreamed up by the police investigation and embellished by the trial court was hung. It has been challenged by four eminent experts in the psychology of memory – Prof Timothy Valentine (70 pages, 2008), Professor Steven Clark (49 pages, 2008), Professor David Canter (105 pages, 2010) and Professor Elizabeth Loftus (seven page journal publication, 2013[2]). The full list of problems with it is much too long to go into here, and it seems yet another problem has now arisen.

One of the things Masoud allegedly confessed to doing, in these interviews in the prison dungeon in Tripoli, was buying the clothes from Tony Gauci. Tony described one customer, not two, and as he has since died, the police have no further opportunity to go back and persuade him to change his statement on that point also. If Masoud bought the clothes, Megrahi didn’t, and if he didn’t, the entire case is a pile of daisy-heads on the floor. However, if Masoud’s confession is required in order to refute the suitcase evidence, this must create a bit of a dilemma for his prosecutors.

Conclusion

Over many years Justice for Megrahi has raised serious, evidence-based concerns about the conviction. These concerns have never been addressed in detail, or at all, by the Crown Office or by any of those who support the conviction – they have simply been cavalierly dismissed and those raising them stigmatised as conspiracy theorists. That must now change. When Sir Arthur Conan Doyle dared to challenge the conviction of Oscar Slater, the response of the prosecution authorities was as dismissive as that of the Crown Office in relation to the Megrahi conviction. But history proved Conan Doyle to be right. 

Reference 1: Vermeij, E. (2024) Survivability of IED components, suitcases, their contents and luggage containers in suitcase bombs. Elsevier: Forensic Science International: Reports, vol 9, July 2024.

Reference 2: Loftus, E. F. (2013) Eyewitness testimony in the Lockerbie bombing case. Memory, vol 21 issue 5, pp 584-590.

Coronavirus may be ‘excuse’ in Megrahi appeal papers row, lawyer claims

[What follows is excerpted from a report published today on the ITV News website. It reads in part:]

The lawyer acting for the family of Abdelbaset al-Megrahi has suggested the prosecution service may be tempted to use coronavirus as an “excuse” regarding handing over documents in the appeal against the Lockerbie bombing conviction.

The way was paved for the appeal when the Scottish Criminal Cases Review Commission (SCCRC) last month referred the case to the High Court, ruling a possible miscarriage of justice may have occurred. (...)

[Aamer Anwar] has since asked the Crown Office to disclose material he believes is related to the case to assist appeal preparation.

The Crown Office said it is reviewing the material it holds but the coronavirus outbreak is affecting the resources available, adding it is going as far as possible “within current public health guidance”. (...)

The SCCRC published a decision on March 11 ruling a miscarriage of justice may have occurred in his case on two of the six grounds it considered in the review – unreasonable verdict and non-disclosure.

On the issue of unreasonable verdict, the commission said a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Megrahi was proved beyond reasonable doubt.

On the issue of non-disclosure, it said the Crown ought to have disclosed certain information to the defence and also its failure to disclose information about reward money bolsters the conclusion he was denied a fair trial.

Now, Mr Anwar has criticised the Crown Office’s response to his request for document disclosure.

He told the PA news agency: “Following the decision of the SCCRC on our application, we wrote on March 13 to the Lord Advocate for full disclosure of materials.

“Despite the appeal timelines imposed upon my team we have received absolutely no disclosure to date.

“That is simply unacceptable and a failure by Crown Office. The Megrahi family, the British families of victims as well as the Libyan people have waited far too long for this appeal once and for all to be settled in the Court of Appeal.”

He added: “The Lord Advocate’s team may be tempted to use coronavirus as an excuse however we will not hesitate to seek orders from the Court to recover these documents.

“The Crown were totally aware that the SCCRC would have been making its decision over the last several months…yet now say the materials are not easily accessible.”

Mr Anwar said draft grounds of appeal have been prepared for lodging with the court by April 30.

In a reply to Mr Anwar’s letter, dated March 20, Lothian and Border Procurator Fiscal Laura Buchan said: “In respect of the request for disclosure we are carrying out a review of the material we hold and will reply substantively in due course.

“You will be aware that the coronavirus (Covid-19) outbreak is having a significant impact on the Scottish criminal justice system.

“Whilst the Appeal Court will continue to sit where possible the outbreak will have an impact on the resource we can currently dedicate to that review and disclosure bearing in mind that much of the review is of hard copy materials stored within office premises, and cannot be conducted online.”

She said Ronnie Clancy QC, senior counsel for the appeal, has offered to meet Mr Anwar’s team to discuss disclosure requests but Mr Anwar said his team would not meet the Crown until fuller information had been provided by the SCCRC. [RB: Ronnie Clancy also acted for the Crown in the appeal allowed to Mr Megrahi by the SCCRC in 2007.]

A Crown Office spokesman said: “Much of the material that requires review prior to disclosure is not held digitally, as would be expected given the age of this case and the sensitivity of some documents.

“The Crown is conducting a full review insofar as possible within current public health guidance.

“Legal representatives of Mr Megrahi’s family have been advised of this and counsel for the Crown have offered to discuss the case with counsel for the appellant.”

Second procedural hearing

Today's procedural hearing before Lords Hamilton, Kingarth and Eassie was, as anticipated, largely concerned with the document in the hands of the Crown, seen and founded upon by the Scottish Criminal Cases Review Commission, that the appellant's legal team is seeking to have disclosed to it. On 11 October the Crown was given six weeks either to get the consent of the foreign country which supplied it to disclosure, or to lodge detailed written reasons as to why the document should not be handed over. The Advocate General for Scotland (who provides Scottish legal advice to the UK Government Departments in London) was also instructed, if so advised, to lodge written answers.

The Lord Advocate (who, as well as being head of the Scottish public prosecution system, is legal adviser to the Scottish devolved Government) lodged answers basically saying no more than that, for reasons that she did not see fit to vouchsafe, the document in question was not disclosable. The Advocate General's answers objected to disclosure on the basis of Public Interest Immunity (PII), but did not deign to disclose what aspects of the public interest would be prejudiced by the document's being handed to the appellant (it already, of course, having been seen by the SCCRC); nor had the Advocate General had the courtesy to lodge a Public Interest Immunity Certificate which would have provided at least some enlightenment.

Maggie Scott QC for Mr Megrahi argued that the Advocate General's PII objection should be dismissed without further argument given that he had not produced in his written answers any material to support it and because it had not been adopted by the Lord Advocate who, in the Scottish criminal justice system is the officer in whose hands alone rests the responsibility for protecting the wider public interest (subject, of course, to ultimate supervision by the High Court). Ronnie Clancy QC for the Crown, however, stated that although no mention of any public interest objection to disclosure was made in the Lord Advocate's answers, this was simply because she had decided that, on this issue, she should defer to the UK Government and the Advocate General since responsibility for foreign relations is non-devolved and rests with the UK Government and so that aspect of the public interest (ie preserving good relations with the foreign government that supplied the document and which has refused to consent to its being disclosed) should be ceded to the Advocate General.

The court, "with great reluctance" allowed the Lord Advocate and the Advocate General six weeks to provide full written reasons for their claim to PII and appointed all parties to lodge by that date a note of their legal arguments and the authorities supporting them on the PII issue. It then fixed a one day hearing for 20 February 2008 for the issue to be fully debated in open court. The Lord Justice General, Lord Hamilton, made it abundantly plain that the court regarded the conduct of both the Lord Advocate and the Advocate General in failing, within the generous period of six weeks allowed them on 11 October, to provide written answers that set out the substance of their objection to disclosure, with full supporting reasons, as highly unsatisfactory.

Two other matters were discussed at the hearing. The first was the scope of the appeal. The Crown had earlier stated that it would consider asking the court to exercise its discretion to refuse to allow to be argued all (or some) of the Grounds of Appeal that related to matters that had been investigated by the SCCRC but rejected by that body. Today Mr Clancy went considerably further: the Crown now wished to argue that, as a matter of law, the Appeal Court was not permitted to hear Grounds of Appeal that had not been accepted by the SCCRC. That is a legal issue that has already been decided by a three-judge bench who held in 2004 (http://www.scotcourts.gov.uk/opinions/XC956.html) that there was no such restriction on the Grounds of Appeal that could be heard. Nothing daunted, Mr Clancy asked for a five-judge court to be convened to reconsider the matter. The court ordered the Lord Advocate to submit within one month a written note setting out her legal arguments and appointed the appellant to submit written answers within one month thereafter. A five-judge court would then be convened to hear oral argument.

The final issue raised was the problem the appellant's legal advisers have been encountering in gaining access to the productions used in the original trial. Dumfries and Galloway Police (who are the custodians of most of them) had apparently been advised by the Crown that the appellant could not have access without an order of the court. Mr Clancy indicated that the Crown did not wish to be obstructive and that he was sure that the matter could be resolved amicably. Ms Scott's rejoinder was that the Crown had been nothing but obstructive. The court indicated that if any further problems were encountered in this regard the matter should be brought back before the court.

Observers of the appeal process have speculated that one of the Crown's principal tactics would be to seek to delay the proceedings at every turn. If corroborative evidence of this were needed, today's hearing has supplied it in abundance.

Once again, there was a good attendance on the public benches. Among the relatives present was Dr Jim Swire and Ms Marina Larracoechea Azumendi. Also in attendance was Edwin Bollier, principal of MeBo, the Zürich company that manufactured the timer that is alleged to have detonated the bomb on board Pan Am 103. The acoustics of the courtroom were somewhat better than on the previous occasion. But they still leave a lot to be desired.

First preliminary hearing in second Megrahi appeal

[What follows is excerpted from a report published on this date in 2007 on the BBC News website on the first procedural hearing in the appeal allowed to Megrahi by the SCCRC:]

Lawyers for the man jailed for the Lockerbie bombing have asked the Crown to hand over documents which they said could help overturn his conviction.

A court was told their non-disclosure could indicate that Abdelbaset Ali Mohmed al-Megrahi, 55, was the victim of a "miscarriage of justice".

The Libyan's legal team said they needed the papers to prepare an appeal.

They were granted an extension until 21 December - the 19th anniversary of the disaster in which 270 people in 1988.

The hour-long hearing - which Megrahi did not attend - was the first time the case has come to court since he was granted the right to a second appeal earlier this year.

The full appeal - before a panel of five judges - is likely to be heard next year.

Speaking at the Court of Criminal Appeal in Edinburgh Jim Swire, whose daughter Flora was among the 270 who died when Pan Am Flight 103 exploded over Lockerbie, described it as "a very ominous date".

"We are getting near the 19th anniversary of the murder of our loved ones," he said.

Mr Swire said he was pleased that Scotland's top judge, Lord Justice General Lord Hamilton, seemed to want to speed things up as much as possible. [RB: The hope that progress would be swift soon turned out to be forlorn.]

However, he added that it would be wrong to put too much pressure on the defence.

Alongside the appeal for documents, Defence QC Margaret Scott said a new witness could discredit Maltese shop keeper Tony Gauci whose evidence was crucial in convicting Megrahi at a special court in the Netherlands in 2001.

Ms Scott also said defence forensic experts were working on reports to counter other evidence led at the trial.

The hour-long hearing followed recent speculation that US security services were blocking the handover of potentially crucial information about the timer which detonated the bomb on Pan Am flight 103.

However, Lord Hamilton, sitting with Lords Kingarth and Eassie, heard that the Americans were not involved.

"The documents don't come from that government or any of its agencies," said advocate depute Ronald Clancy QC, for the Crown.

He told the court: "The documents in question were passed to the UK Government on the basis that they were regarded as being confidential by the authorities that passed them over.

"That being so, the Crown has always taken the position that, if possible, confidentiality should always be respected."

Mr Clancy added: "The Crown has been actively pursuing the matter but today it remains unresolved."

Requests had been made to allow the Crown to hand over the documents and it was possible this might happen without the appeal judges having to rule on the issue, the court heard.

Mr Swire said that if the secret documents did not come from the US then it was "pure speculation" which government they belonged to. [RB: Years later it emerged that the the government in question was that of Jordan.]

In 2002, five judges heard an appeal against Megrahi's conviction but decided that the guilty verdict should stand.

[RB: My own report on the procedural hearing reads as follows:]

The hearing at the High Court of Justiciary in Edinburgh this morning lasted just under one hour. The judges were the Lord Justice General (Lord Hamilton), Lord Kingarth and Lord Eassie. (For brief biographies, see http://www.scotcourts.gov.uk/session/judges.asp.) Mr Megrahi was represented by a team headed by Maggie Scott QC and the Crown by a team headed by Ronnie Clancy QC. For technical reasons of no particular interest in the overall scheme of the Lockerbie case, the Advocate General for Scotland was also represented; as also was the Chief Constable of Dumfries and Galloway (because copies of the documents that Megrahi's lawyers are seeking to have disclosed to them are in that police force's possession).

The principal subject of debate was Megrahi's application to have disclosed a document relating to timers that is in the possession of the Crown and that was seen by the Scottish Criminal Cases Review Commission, and the non-disclosure of which to the defence was one of the Commission's reasons for holding that a miscarriage of justice might have occurred. The only major surprise in the hearing was the Crown's revelation that the foreign country from which the document in question emanated was not the United States of America. The general assumption amongst commentators (myself included) had been that the source of the document was the CIA or the FBI. Mr Clancy indicated that the Crown was seeking the consent of the foreign country in question for the release of the document to the appellant's legal team He asked for, and was granted, a six week period to lodge written answers to Megrahi's application for an order for the document to be disclosed. His hope was that within that period the foreign country would agree to its release and that the court would not therefore have to consider whether to make a formal ruling on the matter.

The other issue ventilated at the hearing was the timetable for Megrahi's legal team to lodge his Grounds of Appeal (as distinct from the "outline of proposed grounds of appeal" that had already been provided to the court). Ms Scott indicated that a vast amount of new material had become available to Megrahi's team from the SCCRC and also from the Maltese authorities and that this had to be considered and assessed before grounds of appeal could be finalised. The court ordered that the Grounds of Appeal be lodged before the end of the legal term on 21 December 2007, but on the understanding that additions and amendments might be required thereafter. A separate set of grounds of appeal on the issue of inadequate representation by Megrahi's original legal team was ordered to be lodged in advance, so that the lawyers criticised in them should have the opportunity of commenting on the allegations without further delay to the proceedings as a whole.

The appeal proceedings will be held in Edinburgh, but Ms Scott indicated concerns about arrangements for Mr Megrahi's repatriation to Libya in the event of his release. It is to be expected that satisfactory arrangements will be evolved, perhaps involving the United Nations (as happened in respect of Mr Fhima, the co-accused who was acquitted at the original trial).

The public benches of the courtroom were by no means full, though a number of Lockerbie relatives did attend, along with a substantial contingent of representatives of the media. The most common complaint from those attending was the difficulty in hearing what was being said. The acoustics were appalling and this was not helped by the tendency of the speaking participants (with the honourable exceptions of Ms Scott and Mr Clancy) to whisper or mumble.

A response to Richard Marquise

[I am deeply grateful to Peter Biddulph for allowing me to post the following response written by him to Richard Marquise's recent broadcast and print contributions to Lockerbie lore.]

1. It would appear that Mr Marquise never handled the fragment [of circuit board allegedly from the MST-13 timer that allegedly detonated the bomb], never saw the fragment. All his forensic information appears to have come from Thomas Thurman, proven to be a manipulator of prosecution reports by the US Department of Justice in 36 out of the 52 Thurman cases that they investigated.

And yet Thurman too never saw the fragment or handled it. When challenged by journalists, he admitted that he had worked solely on photographs supplied by the Scottish police and Thomas Hayes. And the evidence he gave on US TV about identifying the fragment was given as a voice-over using photographs of a sample from the CIA's own laboratory in Langley, Virginia.

Thurman, by resigning and "leaving" the employ of the FBI avoided being a witness at the trial, and his claims and record regarding the fragment were never tested in court. All references to Thurman in the trial transcript took "a priori" that he was on the team who found the fragment that proved Libya did it. His questionable history was never challenged by the defence. Were they negligent?

2. Mr Marquise's senior FBI colleague Oliver Revell never saw the fragment, never handled the fragment. In a televised discussion in 1995 on UK Channel Four TV he claimed :

". . . And we were operating on the premise that [Iran] was the responsible party. But we simply could not bring to bear all of the information we had, and the evidence, and make it fit. And then when the item – the microchip – was found and was identified – and by the way it was through both RARDE and Tom Thurman of the FBI laboratory – independently – that we found the other connection, and then we started working on that." (My italics).

So, whatever might be said by the FBI now, their case in 1991 centred entirely upon the provenance of the fragment of the bomb said to have been found in July 1989 by Dr Thomas Hayes. Should Hayes' evidence be in any way suspect, the case would collapse.

Mr Marquise has claimed elsewhere that the retirement of the CIA's Vincent Cannistraro took place before the key evidence was found. He has said that to for us to say otherwise is wrong.

Well, it's not wrong. Cannistraro was busy as head of the Lockerbie team when Hayes claimed to have found the fragment. Cannistraro retired a year and a half later, in November 1990.

3. The chief identification witness, Tony Gauci, was exposed in 2005 by the very man who - in 1991 - helped with the indictments against Megrahi and Fhimah, former Lord Advocate Peter Fraser. In Fraser's own words, Gauci could not be trusted.

And now a Mr Clancy [Ronnie Clancy QC] of the Scottish Crown team has conceded in a recent Scottish High Court hearing in Edinburgh that even if Gauci's evidence is discredited, it would not significantly affect the prosecution case. A strange claim and admission indeed. Are they already conceding the case in total? [RB: What Mr Clancy said was that the Crown’s view was that there was sufficient evidence to justify Megrahi’s conviction even if Gauci’s evidence were discounted.]

4. Marquise's information regarding the British forensic tracing of the fragment came from Dr Thomas Hayes.

At the time of the trial, Hayes' record in the case of the IRA Maguire Seven (Guildford bombing) was never discussed in court. All that the judges heard was an oblique reference to "deliberate falsehoods" told by his former colleague and supervisor Dr Higgs in another IRA case, that of Judith Ward.

Since Hayes had not been part of that particular Higgs episode, he could - and did - deny all connection or knowledge of that particular Higgs conspiracy. The trial then moved on without further comment or question.

And yet Hayes was central to a Higgs conspiracy in another IRA trial, that of the Maguire Seven, in which the Hayes and Higgs were proved by Parliamentary investigation to have conspired to with-hold evidence that might assist the defence case.

But since the Maguire Seven story was not rehearsed in the Lockerbie trial, none of this could be considered by the Lockerbie judges.

I believe that if Hayes' history in the case of the Maguire Seven had been examined in court, his testimony in the case of Lockerbie would have been discredited in the same way as that of Majid Giaka, the double CIA and Libyan agent.

In his book Scotbom, and since, Mr Marquise gives the impression that American investigation was led and controlled by the FBI. In fact it was controlled overall by the CIA, and by certain people with much blood and lies on their hands. Among the White House team around that time were people proven by declassified documents to understand well the technique of the manufacture of evidence to destabilise Middle Eastern governments. These documents are now freely available. But nobody - including the media in both countries - seems to care any more. It's old news, unwelcome news. People die, so what? Life must go on etc.

All of this, naturally, never came to the attention of the Lockerbie judges. Hopefully the second appeal will offer a long overdue opportunity for the true back-story of Lockerbie to emerge.

If Mr Marquise wishes to challenge any of the above, I will gladly supply the document dates and references with appropriate quotations. I will also arrange for sections of the film and television records to be put on the web. And I will ensure that relevant sections of the trial transcript are also put on the web. People can then judge for themselves where this story might go over the next six months.

The appeal: week three

The first session of Abdelbaset Megrah's appeal has been continuing in the High Court of Justiciary in Edinburgh though, until today, there has been no media coverage that I have been able to trace on the internet. However, a report has now appeared on The Herald's website. It reads in part:

'The Libyan intelligence officer convicted of the Lockerbie bombing made an unexplained trip to Malta using a false passport and an assumed name, appeal judges were told yesterday.

'He arrived the day the bomb that killed 270 people was planted at the island's Luqa Airport and left the following morning, said Ronnie Clancy QC.

'"At no stage was any significant evidence offered as to the issue or use of the passport in any innocent connection.

'"The only evidence about that was a false denial of the possession of the passport."

'Despite rumours that have been circulating for days that Abdelbaset Ali Mohmed al Megrahi will drop his appeal in exchange for a return to Libya, the hearing continued at the Court of Criminal Appeal in Edinburgh. (...)

'Defence QC Maggie Scott has been arguing that no reasonable jury would have found al Megrahi guilty and that there was not sufficient evidence, in law, to convict him.

'Mr Clancy, for the Crown, has now begun the task of trying to demolish the defence claims by reminding the five appeal judges of the reasons why their colleagues found al Megrahi guilty in 2001.

'"No explanation for the visit to Malta the evening before the device was on the plane and departed for Tripoli the following morning," said Mr Clancy.

'"It is clear beyond doubt that the court is linking the use of the passport with the commission of the offence," he said.

'If the Libyan wins this round of his long-running appeal he could go home a free man. If the court, led by Lord Justice General Lord Hamilton, rules against him, al Megrahi still has other challenges to his conviction that are yet to be argued.'

[As regards the coded -- not false -- passport, it is of relevance only if the bomb actually started from Malta, which is a finding that the defence have strongly challenged in the appeal; and they have pointed out that although Megrahi travelled under a coded passport, he stayed in a hotel in Malta under his own name.]

The procedural hearing

The hearing at the High Court of Justiciary in Edinburgh this morning lasted just under one hour. The judges were the Lord Justice General (Lord Hamilton), Lord Kingarth and Lord Eassie. (For brief biographies, see http://www.scotcourts.gov.uk/session/judges.asp.) Mr Megrahi was represented by a team headed by Maggie Scott QC and the Crown by a team headed by Ronnie Clancy QC. For technical reasons of no particular interest in the overall scheme of the Lockerbie case, the Advocate General for Scotland was also represented; as also was the Chief Constable of Dumfries and Galloway (because copies of the documents that Megrahi's lawyers are seeking to have disclosed to them are in that police force's possession).

The principal subject of debate was Megrahi's application to have disclosed a document relating to timers that is in the possession of the Crown and that was seen by the Scottish Criminal Cases Review Commission, and the non-disclosure of which to the defence was one of the Commission's reasons for holding that a miscarriage of justice might have occurred. The only major surprise in the hearing was the Crown's revelation that the foreign country from which the document in question emanated was not the United States of America. The general assumption amongst commentators (myself included) had been that the source of the document was the CIA or the FBI. Mr Clancy indicated that the Crown was seeking the consent of the foreign country in question for the release of the document to the appellant's legal team He asked for, and was granted, a six week period to lodge written answers to Megrahi's application for an order for the document to be disclosed. His hope was that within that period the foreign country would agree to its release and that the court would not therefore have to consider whether to make a formal ruling on the matter.

The other issue ventilated at the hearing was the timetable for Megrahi's legal team to lodge his Grounds of Appeal (as distinct from the "outline of proposed grounds of appeal" that had already been provided to the court). Ms Scott indicated that a vast amount of new material had become available to Megrahi's team from the SCCRC and also from the Maltese authorities and that this had to be considered and assessed before grounds of appeal could be finalised. The court ordered that the Grounds of Appeal be lodged before the end of the legal term on 21 December 2007, but on the understanding that additions and amendments might be required thereafter. A separate set of grounds of appeal on the issue of inadequate representation by Megrahi's original legal team was ordered to be lodged in advance, so that the lawyers criticised in them should have the opportunity of commenting on the allegations without further delay to the proceedings as a whole.

The appeal proceedings will be held in Edinburgh, but Ms Scott indicated concerns about arrangements for Mr Megrahi's repatriation to Libya in the event of his release. It is to be expected that satisfactory arrangements will be evolved, perhaps involving the United Nations (as happened in respect of Mr Fhima, the co-accused who was acquitted at the original trial).

The public benches of the courtroom were by no means full, though a number of Lockerbie relatives did attend, along with a substantial contingent of representatives of the media. The most common complaint from those attending was the difficulty in hearing what was being said. The acoustics were appalling and this was not helped by the tendency of the speaking participants (with the honourable exceptions of Ms Scott and Mr Clancy) to whisper or mumble.

The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;

and

Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner. 

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Lockerbie: court 'should have been told witness wanted payment'

[This is the headline over a report on the website of The Guardian on the second day of the Megrahi appeal. It reads in part:]

The court that convicted a Libyan intelligence officer for the Lockerbie bombing should have been told a key witness wanted payment for his testimony, appeal judges have been told.

Gordon Jackson QC, part of the legal team acting for the family of Abdelbaset al-Megrahi, said there was clear evidence that the witness Tony Gauci was interested in compensation for giving evidence, and frustrated none had emerged.

Jackson said the prosecution had an obligation to reveal that to the trial court, which convicted Megrahi of killing 270 people when Pan Am flight 103 blew up over Lockerbie in south-west Scotland in December 1988.

Instead, the relevant Scottish police interviews with Gauci, a Maltese shopkeeper whose testimony convicted Megrahi, were not given to the court or the Libyan’s defence team. The undisclosed papers “showed a very clear pattern” where Gauci “had a strong motivation of a financial nature,” Jackson said.

Jackson, (...) said the defence could have aggressively pursued this with Gauci when he gave evidence, challenging his credibility.

“The information in those documents would’ve given them the basis to attack that credibility,” he told a panel of five Scottish appeal judges, headed by Scotland’s most senior judge, Lord Carloway, the lord justice general.

It later emerged Gauci and his brother were paid $3m by the US government after he gave evidence – a deal not disclosed until after the trial. (...)

The case was returned to court earlier this year after the Scottish Criminal Cases Review Commission, an independent body, decided there were grounds for believing Megrahi’s conviction was unsafe.

It said there were significant issues with the trial court’s judgment about Gauci’s testimony, and the failure to disclose evidence.

On Friday, Carloway ruled that some of that undisclosed evidence, involving allegations from the Jordanians linking a Palestinian terrorist group to the attack, must remain secret.

Speaking earlier, Claire Mitchell QC, another lawyer for Megrahi’s family, represented by the Glasgow-based human rights lawyer Aamer Anwar, said the trial court had also been wrong to allow Gauci to identify Megrahi from the witness stand because Gauci had previously seen prejudicial press articles claiming Megrahi was guilty.

Ronnie Clancy QC, acting for the Scottish and UK governments, said the trial judges had acted properly and fairly in convicting Megrahi. “The crown’s position is that the appellant can’t meet the statutory test of showing no reasonable jury, properly instructed, could have convicted Mr Megrahi,” he told the court.

“On the contrary, the trial court were fully entitled to make the findings which they set out in their opinion and were fully entitled to conclude Mr Megrahi was guilty beyond reasonable doubt.” In fact, Clancy said, at times they erred in Megrahi’s favour when they weighed up the evidence.