On 14 March, Abdelbaset Ali Mohmed al-Megrahi lost his appeal against his conviction for the Lockerbie bombing. He was convicted early last year by a special Scottish Court consisting of three Scottish High Court judges sitting without a jury at Camp Zeist in the Netherlands. His appeal was heard by a similar Scottish Court, this time with five judges.
It is difficult to credit this, but it is clear from the appeal court's judgement that the appeal was brought on the wrong grounds, and as a result its failure was inevitable. As we will see below, al-Megrahi's lawyer, William Taylor QC, made a complete mess of mounting the appeal.
Al-Megrahi's original conviction was perverse. In the written judgement which accompanied it, the judges accepted the prosecution's account of how the Lockerbie bombing might have been carried out - by introducing an unaccompanied bag containing a bomb into the international airline baggage system at Luqa airport in Malta tagged for loading on to the fatal flight Pan Am PA103 at Heathrow Airport, having passed through Frankfurt Airport - and concluded that it was done that way, and that it was done by Megrahi. But there is no evidence at all that the bomb was introduced at Luqa airport and no conclusive evidence connecting Megrahi with the bomb.
It is inconceivable that the three intelligent men who put their names to the judgement last year believed that the prosecution had proved that Megrahi was guilty beyond reasonable doubt.
This extraordinary outcome was a consequence of the extraordinary decision of the Scottish prosecution authorities - the Scottish Crown Office - to indict al-Megrahi (and another Libyan, Al Amin Khalifa Fhimah, who was acquitted) in the first place. They did so on the evidence of Abdul Majid Giaka, a former member of the Libyan intelligence service, the JSO, and from August 1988 a CIA asset. During the trial, the defence demolished his credibility as a witness. Before they charged the two Libyans in November 1991, the Scottish prosecution authorities had a duty to ensure that their key witness was credible. They did not do so. This gross incompetence had consequences of geopolitical importance: it led to economic sanctions being imposed on Libya for most of the 90s at the behest of Britain and the US in an attempt to force Libya to hand over the accused for trial.
What is more, the CIA and therefore the US government knew that Giaka was not a credible witness - it was in the cables which his CIA handlers sent back to Langley about him from August 1988 onwards - but they kept this information from the Scottish prosecution authorities. The CIA may even have furnished Giaka with the "evidence" he gave about the two Libyans. Be that as it may, the Scottish prosecuting authorities allowed themselves to be conned by the CIA.
So, what was at stake in the trial at Camp Zeist was about much more than the guilt or innocence of the two Libyans in the dock. For the judges to pronounce them innocent was an indictment of the their fellow professionals in the Scottish legal system who had brought the charges against the two Libyans in the first place. It was also an indictment of Britain and the US for pursuing a vendetta against Libya for most of the 90s to force the handing over of two innocent people.
So, what could the judges do but suspend reasonable doubt and find at least one of the Libyans guilty? That way, their professional colleagues would not get egg all over their faces for bringing an unwarranted prosecution which had such serious consequences for Libya.
With the failure of al-Megrahi's appeal, the original perverse verdict stands and he is serving a life sentence in Barlinnie Prison in Glasgow.
TURNING A BLIND EYE
The appeal court judges must have been equally aware that the verdict of the trial court was perverse. Fortunately, or unfortunately, they had a legal excuse for turning a blind eye to the fact that it was perverse, namely, that it is not normally the business of an appeal court to take a fresh view on the evidence presented to a trial court. And there was no significant new evidence presented to the appeal court.
On the face of it this seems unreasonable. But the jury system would be undermined if it were always open to an appeal court to overturn a jury verdict simply by taking a different view of the evidence before the jury at a lower court.
There is normally an exception to this: that the jury in the lower court had behaved entirely unreasonably in coming to its verdict. An appeal on these grounds necessarily involves the appeal court in re-evaluating the evidence presented to the lower court.
But al-Megrahi's lawyer, William Taylor QC, did not appeal on these grounds even though the trial court had manifestly behaved unreasonably in returning a guilty verdict. As a result, the appeal court did not have to re-evaluate the evidence before the trial court. It is difficult to avoid the conclusion that this was a fatal mistake on Taylor's part.
The legal basis for the appeal was Section 106 of the Criminal Procedure (Scotland) Act 1995, which makes provision for a right of appeal against conviction by a jury. In this instance, of course, the lower court had no jury - the three judges acted in that capacity - but the legal basis for the appeal was the same. Under subsection (3) an appeal may be made against:
"any alleged miscarriage of justice, which may include such a miscarriage based on -
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and
(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."
Only one of the grounds for appeal invoked paragraph (a) and brought forward new evidence. With the exception of that, the appeal was based on general allegations of "miscarriage of justice" under subsection 106(3), none of which the appeal court upheld.
None of the grounds for appeal invoked paragraph (b) and contended that the verdict of the trial court was one that no reasonable jury could have returned.
The one new piece of evidence was not deemed to be significant, and rightly so.
A major element in al-Megrahi's defence at the original trial was that the suitcase containing the bomb was introduced at Heathrow Airport, rather than at Luqa airport in Malta. And it should be said that there was ample evidence that this could have been done because of the lax security at Heathrow, and there was even some evidence that a suitcase similar to the one that contained the bomb was introduced at Heathrow. In marked contrast, there was no evidence at all that the fatal suitcase was introduced at Luqa, or that one could have been introduced there.
Evidence was given to the appeal court that a landside-airside boundary at Heathrow had been deliberately breached sometime during the night before the bombing, and al-Megrahi's lawyers suggested that this was the route whereby the fatal suitcase was taken airside the night before. But there was no evidence that this was the way the suitcase was taken airside. It was just further evidence that security at Heathrow was lax at the time.
In fact, it is unlikely that this breach had anything to do with the introduction of the bomb. Pan Am 103A, which was brought down over Lockerbie, was the third Pan Am flight of the day to New York. If the fatal suitcase been taken airside the night before, it would most likely have been put amongst the luggage for the first Pan Am flight to New York of the day, rather than hidden airside in order to be put amongst the luggage for the third.
Aside from fresh evidence, the normal grounds for appeal are that the judge in the lower court misdirected the jury in regard to a matter of law or a matter of fact in his summing up. This was possible in this instance also, even though there was no jury per se in the lower court. But here it was a matter of the judges in the lower court misdirecting themselves in private and misdirection, if any, had to be inferred from their written judgement.
A few of the grounds for appeal submitted on behalf of al-Megrahi were that the trial court had indeed misdirected itself. Although the court accepted that misdirection had occurred in one instance - it was clear from the written judgement that trial court had misinterpreted evidence - it concluded that the misdirection had not contributed to al-Megrahi being found guilty.
The vast bulk of the grounds for appeal (around 50 of them) were along the lines that the trial court had failed to take proper account of, or give proper weight to, or gave insufficient weight to, various pieces of evidence. Appealing on these grounds was a waste of breath. Although the judgement goes through each of them at length, they were all rejected on the general principle propounded early in the judgement that it was not open to the appeal court to " substitute its own view of the evidence which was before the trial court" (Paragraph 23).
Not only that, it was not up to the appeal court to second guess the trial court in respect to the inferences to be drawn from the evidence or the weight to be given to evidence:
"We have no doubt that, once evidence has been accepted by the trial court, it is for that court to determine what inference or inferences should be drawn from that evidence. If evidence is capable of giving rise to two or more possible inferences, it is for the trial court to decide whether an inference should be drawn and, if so, which inference." (Paragraph 25)
"In the course of this Opinion we will discuss each of the grounds of appeal. However, at this stage we would observe that, for the reasons which we have given above, where it is not said that a trial court has misdirected itself by ignoring something, the amount of weight which should be attached to it is a matter solely for the trial court, and not for the appeal court." (Paragraph 27)
These principles are normal for an appeal against the verdict of a jury in a lower court. But al-Megrahi's lawyer, William Taylor, was of the opinion that the position was different in this instance - because the decision to convict had been taken by a trial court which, unlike a jury court, had supplied a written account of its reasons for convicting. He argued this to the appeal court, submitting that it was open to it to review the conclusions reached by the trial court from the evidence, as set out in its written judgement (see paragraph 22).
The court rejected that view, saying:
"In our opinion this argument is not well founded. The respective roles of the appeal court and the court by which issues of fact are resolved and guilt is determined are not changed by the fact that the normal arrangements have been modified by the Order in Council, and in particular by the requirement that the trial court should deliver a reasoned judgment. While accepting that this court is not a court of review in the sense in which that expression is used in regard to civil cases Mr Taylor failed to recognise the full implications of that acceptance." (Paragraph 23)
NO REASONABLE JURY
As we have said, Taylor did not mount an appeal invoking subsection 106(3)(b), and contend that the verdict of the trial court was one that no reasonable jury could have returned. In fact, he specifically ruled out any reliance on paragraph (b), arguing to the appeal court that it was not applicable in this instance where the judges in the trial court had supplied a written account of its reasons for convicting.
The appeal court went out of its way to state that they disagreed with him about this, saying that if paragraph (b) had been invoked "it would be for the appeal court to consider whether, having regard to the evidence which was not rejected by the trial court, the verdict was one which no reasonable trial court, properly directing itself, could have returned" (Paragraph 24).
There was, of course, no guarantee that, had such a appeal been made, the five appeal court judges would have convicted their three trial court colleagues of having acted unreasonably in bringing in a guilty verdict against al-Megrahi. But by specifically ruling out an appeal on these grounds Taylor ruled out that possibility. It is difficult to avoid the conclusion that this was a fatal mistake on Taylor's part. What was there to lose in asserting what was obvious from the trial court's judgement, that the three judges brought in a verdict that no reasonable jury - not even a Lockerbie jury - could have returned ?
The appeal court concluded its judgement as follows:
"When opening the case for the appellant before this court Mr Taylor stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence. As can be seen from this Opinion, the grounds of appeal before us have been concerned, for the most part, with complaints about the treatment by the trial court of the material which was before it and the submissions which were made to it by the defence.
"For the reasons which we have given in the course of this Opinion, we have reached the conclusion that none of the grounds of appeal is well founded. The appeal will accordingly be refused." (Paragraphs 369-370)
That is a carefully phrased statement, which pointedly refers to the fact that the appeal court was not asked to consider whether the original guilty verdict was one that no reasonable trial court could have returned. It adds weight to the view that al-Megrahi was very badly served by his counsel.