Abstract
The only person against whom a charge of murder was proved in regard to the Lockerbie bombing case in 1988 had an appeal against conviction refused. A subsequent referral of the case back for further consideration by appellate judges was abandoned by the appellant. He was released on the statutory ground of compassion due to his imminent death. The appeal was revived in 2020 after further investigation and fresh evidence and referred to the criminal appeal court for Scotland.
Introduction
The destruction of an aircraft in flight over Lockerbie, in south-west Scotland, on 21 December 1988 was an appalling example of mass killing at the time. The case ‘exposed the fundamental, almost insurmountable, difficulties faced by any system of criminal justice when administered in the context of international policy’. 1 The literature is substantial, and includes a formal government accident report. 2 A full history of the case is probably not possible while so many facts, often about diplomacy and international politics of the period, remain unsettled. 3 The international dimension of the case, with victims from many countries, has ensured a global interest, especially as many points of law were raised by the issues of fact. 4 The civil aspects of the Lockerbie disaster must be recalled especially as the disaster led to a restructuring of elements of aviation laws and civil litigation. 5
The seriousness of the event is not diminished by the passage of time even. The complexities of conventional diplomacy, inter-governmental politics and jurisdictional problems led to a long delay before the accused could be arrested and brought by the independent public prosecutor before a court for trial in 2001. 6 Procedural innovations were considered necessary. 7 These changes, without precedent in Scots law, of the trial were, first, three Judges sitting to decide the facts and then apply the law in the absence of a conventional jury. 8 Secondly, the convening of the High Court of Justiciary to sit in a designated courtroom in The Netherlands where Scots law was applied. 9 Thirdly, the appeal against conviction was heard in The Netherlands before five Judges in 2002.
Fatal Accident Inquiry
There is no office of Coroner in modern Scotland. There were appointments from 1357 but the office became obsolete in the early 18th century. 10 There requires to be held, however, a Fatal Accident Inquiry in certain mandatory circumstances, and other discretionary ones. 11 Broadly, mandatory inquiries were to be held where a death occurred in the course of employment or when a prisoner was in custody. Discretionary inquiries may be held when the Lord Advocate considered it expedient, because of the seriousness of an incident, to do so. The Lockerbie incident involved aircrew who were employees who died in the course of their employment. Moreover, the public concern about the whole extra-ordinary event justified it being regarded as expedient in the public interest to hold such an inquiry, and one was held in October 1990.
These hearings followed civil procedure (but did not apportion individual responsibility) and they were inquisitorial in nature and held in public. 12 The Court comprised of the Sheriff, as a local judge, sitting alone, as the requirement for a jury to determine facts had been abolished in 1976. The culmination of such an inquiry was a written Determination setting out basic matters of fact, with additional recommendations if the evidence supported these. 13 A criminal trial is regarded as sufficient in most instances as being a sufficient means of airing in public the facts and circumstances of the event. However, it was apparent from the outset that no ordinary criminal trial was in contemplation for the Lockerbie bombing incident: if there was to be a criminal trial, it no doubt seemed in 1990 to be a long way off and to be held under uncertain circumstances. 14 The authorities required to be mindful, however, of the possibility that a criminal trial would take place and caution was necessary in the evidence heard at the Fatal Accident Inquiry to avoid in effect a trial in absence.
Case Law in Scotland from 1999 to 2020
The practical and legal limitations of any hearing that amounted in effect to a criminal trial were clear given the international nature of the events and any suggestion of governmental participation, or at least influence, in the incident in 1988. However, it came about that negotiations led to a trial on neutral territory was proposed and agreed and two men were surrendered to the authorities in Scotland. 15 In due course, indictments were served on each of the two accused and there was a major trial.
Preliminary points. There were a number of preliminary points concerning the charges on the indictment. There was a complaint of a contempt of court by a journalist. 16 There was a challenge to the jurisdiction of the Scottish courts. 17 There was a challenge to the admissibility of a prior statement taken abroad. 18 There was a challenge to the admissibility of evidence seized abroad without a warrant. 19 Broadcasters sought and failed to obtain the authority of the court to televise the whole trial although that trial was shown at ‘remote sites’, by encrypted transmission, for the restricted audience of nearest relatives. 20 Media interest was intense. 21
The trial. Uniquely in modern Scottish jurisprudence, the trial was before Judges alone and without the traditional jury of 15 citizens and the charge of murder was proved against one accused. 22 The evidence has been analysed closely. 23 There seems to have been no dispute as to a crime having taken place: it was a bomb placed on the aircraft that brought about its destruction and the deaths of the aircrew, the passengers and also citizens on the ground at Lockerbie. The real issue was whether there was evidence that the two accused were responsible for placing of that bomb on the aircraft. The accused Al-Amin Khalifa Fhima was acquitted ‘largely because the judges were not satisfied beyond reasonable doubt that even if he assisted Megrahi […] he knew that the suitcase contained a bomb’. 24 The charges were proved against the accused Al Megrahi on the basis of substantial evidence of his actions at various relevant places and times, with incriminating inferences drawn from these facts. The judges accepted the evidence of a certain witness as to identification and dates that was highly contentious. 25 He was sentenced to life imprisonment with a minimum period of 30 years’ imprisonment. 26 The outcome has been described as ‘a shameful miscarriage of justice’. 27
The appeal. A procedural question arose about the conduct of the appeal as the verdict of the judges was supported by a lengthy written report containing facts and the application of the law. That was a novel point because juries in Scotland have never been required to justify, let alone reduce to writing, their reasons for finding a charge proved, or not. The order establishing the special court and the subsequent judicial report was held to be sufficient to proceed at the appeal. 28 The actual appeal against conviction of Al Megrahi was also reported. 29
The only ground of appeal against conviction in Scots law is that there has been a miscarriage of justice. 30 A very lengthy list of specific points of appeal, proposed by Al Megrahi in order to support such a ground of appeal, included one that touched on the existence and significance of evidence which had not been heard at the original proceedings. 31 The evidence was in its essence about the state of baggage security at Heathrow sometime before the aircraft departed. The appellate judges heard that evidence and concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the determination of the critical issue of where the bomb was placed on the aircraft: that ground was rejected. 32
The appeal based upon the remainder of the written grounds of appeal was assessed as failing and that outcome being ‘virtually inevitable’ by two concessions made in the court of arguments made by senior counsel for the appellant. 33 The first concession was: ‘At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its [written] judgment the trial court rejected parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction’. 34 The second concession was that of senior counsel expressly disavowing that there had been a verdict which no reasonable jury, properly directed, could have returned. 35 Although senior counsel for the appellant did not submit in the appeal either that there was insufficient evidence for conviction or that the verdict was unreasonable, it was said that the trial court had ‘failed to give adequate reasons for its conclusions and it had misdirected itself in a number of specified instances’. 36
The appeal was on very narrow grounds. 37 The appellate judges were thus constrained from considering certain matters of fact that supported legal principles. 38 The appeal was a challenge to the findings-in-fact because, it was said, these were based upon a misunderstanding of evidence or were without a basis in evidence. Alternatively, the findings in fact were arrived at by giving undue weight to evidence that supported them or insufficient weight to evidence that contradicted them. Alternatively, again, the findings-in-fact were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open. 39 While some misunderstanding of the evidence was identified, that was regarded as insignificant. As for the latter two alternatives, the appellate judges took the view that while it was not argued that no reasonable trial court could have made the findings-in-fact, challenges of findings on these grounds was simply not competent. 40 The appeal against conviction was refused.
One commentator, Sir Gerald Gordon QC, wrote that ‘once it was accepted that there was sufficient evidence for conviction and that the verdict of the trial court was not unreasonable, the appellant was left (apart from the fresh evidence point) with submitting only that the trial court had reached a reasonable verdict for bad reasons, a somewhat uphill task’. 41
After the appeal failed, it was argued by another knowledgeable commentator that the fundamental issues had not been dealt with. These were, first, whether there was sufficient evidence to warrant the incriminating findings-in-fact; and, secondly, whether any reasonable trial court could have made those findings-in-fact (and could have been satisfied beyond reasonable doubt of the guilt of the appellant). It was concluded that there remained concern that a ‘grave miscarriage of justice had been perpetrated’. 42
Referral and abandonment. The whole matter of the Lockerbie case was referred by the Scottish Criminal Cases Review Commission (‘the SCCRC’) to the appeal court in 2007. There was a question about public immunity certificates in the context of the Lord Advocate ceasing to be a member of the United Kingdom government following the implementation of devolution. 43 A petition for recovery for further documents was heard and refused. 44 There was uncertainty as to the scope of the appeal. The appellant’ grounds of appeal included matters considered by the SCCRC but not included by them in the grounds for referral so that the scope of the appeal was to be determined. 45 The accused Al Megrahi sought interim bail before the reference was heard, although that was refused by the Court. 46 The intended reference never reached the point of a full hearing. Al Megrahi abandoned his appeal and he was later released by the Scottish Ministers on compassionate grounds. 47 He returned to Libya and died in May 2012.
In Scots law, an appellant may abandon his appeal by giving the relevant clerk of court a notice of abandonment, following ‘as nearly as may be’ the example of a form that the relevant statute sets out; and on such form being received by the clerk ‘the appeal shall be deemed to have been dismissed by the appeal court’. 48 Such an abandonment may be against conviction or sentence or both. 49 An appellant has a right to abandon only up to the point at which the hearing begins and counsel addresses the court. 50
The reasons for the abandonment by appellant, generally, are not in law relevant; but those relating to the Lockerbie case have been the subject of legitimate discussion and analysis elsewhere. 51 The permission of the court is not necessary, nor need the appellant give reasons so that the true reasons for the abandonment of conviction or sentence or both need not necessarily be known to anyone other than the person formerly the appellant and his legal advisers. The appeal court had to let the case go, and that has been said to be a misfortune in that it happened in the Lockerbie case because apparently additional and relevant material was made available to the public by the former appellant’s solicitors after he had been released. 52
Al Megrahi lived for some time after he had returned home to Libya and there was discussion of the possibility of the US capturing him and taking him for trial in America. A question also arose as to the possibility of fresh evidence for the prosecution after material was recovered with the collapse of the previous political regime in Libya. 53
There was clearly an intention amongst the nearest relatives of Al Megrahi to maintain the appeal and have the conviction quashed. Others wished to have the matter restored for a full hearing but as those others were nearest relatives of passengers who died in the explosion it was uncertain as to whether it could be said that they have a ‘legitimate interest’ within the relevant statutory meaning. 54 It was held that the relatives of the deceased victims have no legitimate interest to institute an appeal against the deceased’s conviction. 55
The Developments in 2020
The SCCRC was established by statute and came into existence in 1998. 56 The Commission has a framework within which it may refer at any time a case to the High Court of Justiciary sitting in its appellate capacity. 57 Post-appeal considerations of the case by the SCCRC have also been viewed in comparative studies. 58 The SCCRC has separately been assessed after 20 years of existence. 59 It has been asserted that the SCCRC, while maintaining a generally harmonious relationships with the courts, has certainly not been overly deferential to them. 60 The success rate for the SCCRC has been about 51 per cent of cases referred. 61 It is recognised that for the SCCRC to operate effectively it needs to retain the respect of the appeal court. 62
Specifically, for the purposes of such a referral by the SCCRC, reference to the conviction or sentence of a ‘person’ includes a person who is deceased. 63 The term does not include the nearest relatives of the victims, some of whom sought to have the matter re-opened. 64 On such a reference being made, the case is to be heard and determined as if it were an appeal under the appellate provisions that otherwise apply ordinarily. 65 At any rate, on such a referral by the SCCRC, one month is allowed from that date for a transfer of the rights of appeal of a deceased person. 66
The family of Al Megrahi have sought repeatedly to have the appeal, abandoned by him before release, reinstated and heard. On 11 March 2020 it was announced by the SCCRC that it had referred again the case of Al Megrahi to the High Court of Justiciary in its appellate capacity. The SCCRC provided ‘a fuller press release than normal’ because of the ‘continuing worldwide interest in the case’. 67
The Press Release referred to the request by the family of the deceased to find that the original reference grounds in 2007 remained ‘valid and compelling’. There were six broad grounds of review. Two new matters were raised and the SCCRC formed the view that a miscarriage may have occurred by reason of there having been an unreasonable verdict and, separately, non-disclosure. The SCCRC did not believe that any of the other grounds raised by the family of the deceased may have led to a miscarriage of justice and did not refer these specific issues as part of the appeal grounds. 68
The ground of unreasonable verdict that was specified as justifying the conviction being considered again in an appeal court concerned the crucial aspect of the identification by a shopkeeper in Malta of Al Megrahi as the purchaser of a suitcase and clothes the former being used to secret the bomb on to the aircraft. 69 The ground of non-disclosure by the Crown of a statement and a police report concerning the possession by the shopkeeper of a photograph of a person before an identification parade. There was also a notable failure of the Crown to disclose that the shopkeeper had received reward money from a scheme administered by the US department of State. 70
Interestingly, ‘for clarity’s sake’ the SCCRC set out a brief summary of the findings of the trial court that constituted the circumstantial evidence. 71 The SCCRC also asserted that it remained of the view, based upon the evidence that the trial court accepted, that there was sufficient evidence in law to convict Al Megrahi. The wholly circumstantial case against Al Megrahi, as accepted by the trial Court, supported the conclusion that he was guilty of the murders for which he was charged. 72
Interim Remarks
Arranging a further hearing for the 2020 referral is not easy, even with a high degree of priority. First, although 32 years have passed since the incident in 1988 and under 20 years from the trial in 2001 some of the legal practitioners involved earlier are still working as lawyers, and every effort is required to avoid any conflicts of interest. Secondly, the return of the Lockerbie case in 2020 coincided with a pandemic of coronavirus and the consequential temporary alteration of criminal procedure because of inherent health concerns for everyone. An enormous backlog of business soon resulted from the temporary closing of courts. Emergency legislation to deal with the immediate problem has been necessary. 73 Finally, as with other notorious and historic cases, the whole Lockerbie incident, in the round, maybe said to be massively complex with a vast body of material, and it is complicated because of its many layers of complexity. 74
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.