Lockerbie
appeal lost
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.
Gross incompetence
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.
Legal basis
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.
New evidence
The
one new piece of evidence was deemed not 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.
Self-misdirection
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
Conclusion
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.
Labour & Trade Union Review
May 2002