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 after further investigation and fresh evidence and referred to the criminal appeal court for Scotland.
Keywords
Introduction
The case law arising from the criminal trial about the Lockerbie disaster continues to accumulate. 1 The criminal proceedings in Scotland have a protracted history and modern case law is required to introduce that in order to, as it were, set the scene. 2 Many previous narratives and analyses of the case were very much of their time and have been overtaken by events. 3 The most recent driving force in law for continuing to review the Lockerbie case is a reference to the appellate jurisdiction of the High Court of Justiciary made by the Scottish Criminal Case Review Commission (hereafter ‘the SCCRC’). 4 The latter statutory body was given legislative authority to do that in 2010. 5 However, a comparatively recent power enabling the rejection of such a reference was itself repealed, for whatever reason, a mere seven years later. 6 The appellate judges were, accordingly, obliged to consider the present reference. The hearing of preliminary aspects and the appeal itself in the period over 2020–21 was strictly speaking at the wish of the representatives of the late convicted man. There is statutory provision for the transfer of the rights of appeal of deceased persons. 7 Thus, it is convenient in this note to mention the appellant although strictly it ought to be to his representatives, although it is a difference without a distinction.
One relevant development in the constitutional firmament in modern times, and certainly since the Lockerbie bombing, has been the establishment of a third Law Officer under the title of the Advocate General for Scotland. Since the Union of Scotland and England in 1707, the UK government was, generally speaking, advised on the law of Scotland by the Lord Advocate. However, with the reappearance of the Scottish Parliament following the passing of the Scotland Act 1998, the Lord Advocate became a member of the Scottish government. The new post of Advocate General for Scotland was created purposively to provide a source of advice on relevant constitutional matters for the UK in Westminster. 8 The Advocate General’s role extends to advising the UK government on the law of Scotland. 9 The Lord Advocate has retained the responsibility of the national public prosecutor in Scotland.
Preliminary Issue
For the court hearing the Lockerbie appeal there is only one statutory ground of appeal; namely, that there has been a miscarriage of justice. 10 It seems unnecessarily academic, in this note at any rate, to try to discover if a Scottish miscarriage of justice equates with an English unsafe conviction. 11 However, it would be odd and probably indefensible if the different parts of the UK had divergent tests on essentially the same issue. The preliminary hearing for the latest referral of the case, 32 years after the bombing itself, to the appeal court in Scotland was on 21 August 2020. 12
Procedurally, there was first to be considered an application that sought recovery of documents. That preliminary issue required a decision of the appellate judges before moving on to the merits of the reference and the appeal itself. The court had to consider a petition of Commission and Diligence for Documents. 13 That procedure is relevant when documents which an accused, or on this occasion the appellant, requires for the preparation of his or her defence, or appeal, are in the possession of the Crown, as prosecutor, or third parties, and the documents are not readily available as a consequence. The accused is entitled to petition the High Court of Justiciary to grant a commission and diligence, in effect a court order and the authority to implement that order, for their recovery. 14 The earlier case law makes it clear that the decision in regard to relevance of the documents sought lies with the defence lawyers and their professional assessment, rather than the prosecution. 15
The petition was heard before a court of three judges, consisting of the Lord Justice General (Lord Carloway), the Lord Justice Clerk (Lady Dorrian) and Lord Menzies. 16 The Court in its written decision revealed a high degree of attention to procedural detail that could not be said to be unexpected in the circumstances: consideration was given to preliminary issues including consideration of the distinction between the grounds of reference by the SCCRC and, separately, the Note of Appeal lodged by the representative of the late accused and appellant. 17
In short, the SCCRC referred a limited number of abstract issues arising from the trial for the consideration of the appellate judges. Then the lawyers for the representative of the deceased accused and appellant were required to crystallise the matter into arguable issue and that was done. The appeal court considered the relevancy of the grounds of appeal before the court on the foundation of the terms of the reference. 18
The first ground of appeal related to what are said to be deficiencies in the testimony of a witness in so far as it related to his identification of the accused at a crucial place and on a date when certain items were purchased. The appeal court found no difficulty in considering that matter to determine if a miscarriage of justice had occurred and that as a consequence the verdict might be found to be unreasonable. 19
The second ground of appeal was based on the non-disclosure of four categories of documents and other materials. 20 All of the documents referred to had been disclosed by the time of the appeal. 21 The appeal court found that there was no problem with that ground of the appeal in so far as it related to the non-disclosure of documents which have a bearing on the identification of the crucial witness. The Court declined to hear any part of the grounds of appeal which alleged that there was a systematic failure of the part of the Crown to disclose relevant material as a generality, as distinct from a failure to disclose particular material. The SCCRC had not referred the case to the court on the basis of any systemic failure. 22
An essential point requires separate consideration. The alleged failure by the Crown to disclose a number of documents which could have had a material effect on the crucial witness identifying the accused included two protectively marked documents. The SCCRC considered the significance of these documents but the case was not referred on the basis of any significance attaching to those documents. 23 An earlier appeal had planned to have ‘closed sessions’ to decide the issue of over-ruling public interest immunity certificates attaching to these documents which it is thought may emanate from an agency of a foreign state. 24
In this context, the Advocate General on behalf of the UK government produced new public interest immunity certificates, dated 17 August 2020 and signed by the Foreign Secretary, with a statement of reasons to justify non-disclosure. 25 It was considered in all the circumstances that the appeal court had to see the protectively marked documents to decide the surrounding issue and, for that purpose, the appellate judges proposed following the procedure which had been envisaged for the 2008 hearing. It appointed a hearing at which the Advocate General and the representative of the appellant, the latter of whom favoured disclosure, could consider the matter further. Such public interest immunity hearings are not unusual now. 26 The appellant on this particular occasion was to be represented by special counsel who was instructed to ‘look after’ the interests of the appellant. 27
Interim Hearing in Camera
The preliminary question for the court at this stage was whether to order recovery for the appellant of the two protectively marked documents, notwithstanding the terms of the public interest immunity certificates signed by the Foreign Secretary on behalf of the UK government. 28 A hearing took place in camera. 29 The decision involved the balancing of competing public interest with the fairness of the proceedings. 30 The Court noted that fairness is particularly important in criminal cases where a person’s liberty is at stake. 31 Yet, it is to be recalled that a trial is not to be seen as unfair merely because of non-disclosure of material. 32
In due course, it was reported to the interested public that the outcome turned on several factors, ‘notably the fact that most of it [the contents] was already known to the defence, and that which was not would neither have been of use to the defence nor would it have been adduced by the defence’. 33 That ‘very limited value’ of the contents when balanced with the danger to the public interest led the Court to refuse to order recovery of the protectively marked documents. 34 The remaining grounds of appeal were adjusted to be considered accordingly.
Substantive Appeal on Merits
Unusually, but not uniquely, the substance of the appeal on the merits was listed to be heard before a court of five judges: The High Court of Justiciary like the Court of Session for civil matters is a collegiate court with major issues resolved by an uneven number of judges. Other examples of five-judge courts in Scotland can be found easily enough and these tend to be convened to hear matters involving very serious cases, or where judicial policy or changes in the common law might be involved. 35 Matters of the greatest importance can result in a court of seven judges. 36 The problem for a small jurisdiction such as Scotland with such long-running cases, not that there are many, is being able to find judges now who have not had any dealings with the case over the years in the course of their professional experience.
The Opinion of the Court was delivered on 15 January 2021 and the appeal was refused. 37 In a Case Comment such as this full analysis of the decision is unnecessary and, in any event, this may decision may yet not be the last Lockerbie case. Immediately on the decision becoming public it was said by the instructed solicitor for the representative of Al-Megrahi that there would be an appeal on then unspecified grounds then to the United Kingdom Supreme Court. 38 It must be considered to be unique to have an appellant abandon his appeal then have that appeal reinstated and after having that refused go on to appeal again. 39 A final appeal is in contemplation to a court that did not exist when the Lockerbie crime was committed.
What might reasonably, and necessarily, be asserted now is that the appeal of 2020–21 is a legal process and not a retrial of a trial 20 years earlier. The two main issues at the appeal were, first, whether there had been an unreasonable verdict standing the evidence of the Maltese shopkeeper around identification of the appellant; and, second, whether the non-disclosure of certain evidence by the Crown was a material factor. 40 The crime was not in issue, and seldom has been in recent years, but the contentious point was the involvement criminally by the appellant. The appeal was thus not concerned directly with an examination of the evidence which might point to other persons or organisations being involved in the murders, except in so far as that involvement might exclude the appellant as a participant ‘in the ingestion of the bomb’ onto a particular flight, after which it was transferred to the flight departing from London Heathrow. 41 However, some consideration ought to be given to the detail of the two grounds of appeal. 42
First Ground of Appeal
The appellant argued that the verdict of the trial court, a court of three judges sitting without a jury, was one which no jury, properly directed, could have returned. 43 The appeal court noted that this ground had been expressly disavowed by the appellant at an earlier appeal. 44 It was also noted that the ground was similar to one of the grounds that had been abandoned in 2009. 45 This ground focused on whether the trial court had been entitled to find that the appellant had been the purchaser of certain specific items of clothing which had been in the suitcase containing the bomb. Criticism was directed at the evidence of identification of the appellant by the shopkeeper who sold these items in his shop in Malta and of the other evidence from which the trial court concluded that the purchases had been made on a specific and significant day.
In analysing the evidence to assess the complaint of an unreasonable verdict, the appellate Judges recorded the point that there had been many undisputed facts in the event that had been accepted as proved. In particular, the crucial facts that went to proof of the crimes were listed. 46 The critical aspects of the evidence that was specified in the challenge related to the identification of the appellant in a shop in Malta, the date of the purchase and certain aspects of the availability of luggage tags. 47 The appeal court heard submissions on the issue. 48 The relevant legal test on a question of an unreasonable verdict being examined had been set out in another decision comparatively recently. 49 That test was then explained by reference to earlier case law. 50 The Court applied the test to the evidence in issue. 51
The successful proof of the crimes at Lockerbie was determined at its core by the identification by a single witness of the appellant as the purchaser of goods found in the case that contained the bomb. The appeal court noted that this was not a fleeting glimpse as the purchaser had been ‘acting in an odd manner, by randomly purchasing a significant number of different items of apparel which were not for himself. This would have taken some time. The purchaser left and returned in a taxi’. 52 Thus, the ability of the shopkeeper to recall the details of the clothing which had been purchased was a factor to be considered in relation to his powers of recollection.
The shopkeeper did not just suddenly pick the appellant out in the dock of the court or even at an identity parade about 10 years after the incident of the purchases. There had been identification from photographs about two and a half years after the purchases were made. The appellant had visited the area in where the shop was in Malta. It was not in dispute that, as the shopkeeper had always said, that the purchaser was a Libyan. This then was a significant resemblance identification which the trial court was entitled to accept as reliable. It was not subject to any form of prior taint. 53 The trial court considered the shopkeeper’s reliability with considerable care. In doing so, the trial court recognised that there were ‘undoubtedly problems’ with his identification of the appellant. That difficulty was, and is, obvious. It was the focus of a significant part of the trial. 54
The appeal court considered the various strands of evidence for the prosecution and challenged by the defence. The conclusion on the ground of appeal that the trial court reached a verdict that no reasonable court could have reached was rejected. On the evidence at trial, a reasonable jury, properly directed, would have been entitled to return a guilty verdict. 55
Second Ground of Appeal
This ground was based on a contention that the Crown had failed to disclose certain specific documents to the defence. These mostly related to the reliability of the shopkeeper’s identification of the appellant as the purchaser of the clothes and included various police statements and reports. 56 The non-disclosure of certain documents, which were said to be pertinent to the credibility and reliability of shopkeeper, were ones that ought to have been disclosed to the defence. 57 The documents then under consideration included some press articles in which photographs of the appellant had appeared. The shopkeeper had apparently unprompted told the police that he had recognised the appellant from these photographs. 58 Also, there were reward documents in which discussions were recorded about possible threats to the shopkeeper and the possibility of a reward. 59 Similarly, other documents included an assessment of the shopkeeper as a potential witness and further discussion of rewards. 60
In deciding the relevance of non-disclosure, the appeal court applied the legal test as it was at the time of the trial, and at that time a document would be disclosable if it would have been material to the preparation or presentation of the defence. 61 That would occur when the Crown was aware of a document which either materially weakened the Crown case or materially strengthened that of the defence. 62 It was not disputed that, at the appellate stage, the critical question was whether, after taking full account of all the circumstances of the trial, there was a real possibility that the trial court might have come to a different verdict if the material, which ought to have been disclosed, had been available to the defence. 63
The appeal court concluded that none of the press material provided grounds, for objecting to either the identity parade or dock identifications, beyond those already available to the defence. It had already been the position of the defence, relative to their plea in bar of trial on the basis of pre-trial publicity, that the shopkeeper had seen many images of the appellant prior to the identity parade. 64 The fact that the shopkeeper had seen a photograph of the appellant in a magazine prior to the identity parade was known to the defence and had been brought out during the trial. If it had been the contention of the defence that seeing such images had influenced identification, that is something which ought to have been put to him for comment. 65 It was not put to him for comment. 66 Had the information in these various documents been available to the court, they would have made no difference to the verdict. 67
The appeal court noted that the undisclosed documents do not indicate that the shopkeeper was motivated to testify, or to identify the appellant, because of the prospect of a reward. Quite the contrary, they portray a person with a reserved and introverted personality but with a strong sense of honesty and decency. The documents illustrate a situation in which the shopkeeper, as such a person, was naturally concerned about his own safety but who was nevertheless compelled by his character to provide such information to the investigating authorities as he could and to testify accordingly. 68
Further, the potential for reward monies to be paid was an obvious line for the defence to have run, if there was any basis for it to have been used in cross-examination or otherwise. It was a matter for the defence to make suitable inquiries in that regard. It is tolerably clear that the defence would have been aware of the existence of a potential reward at the instance of the United States’ government, but this was not pursued at the trial. ‘This was no doubt advisedly so. All that would have been achieved would have been a strengthening of [the shop-keeper’s] credibility’. 69 The contention that the Crown failed to disclose material which would have created a real prospect of a different verdict was rejected. 70 As both grounds of appeal were rejected, the appeal against conviction was refused. 71
Concluding Remarks
This note and the earlier ones on the same topic in the Journal of Criminal Law have been in essence a record of the criminal cases in Scotland for what was and remains a major act of terrorism. It may be unique in that an executive of a government took such a kindly view of an infirm accused serving a very long sentence for mass murder so as to release him early. 72 Yet, the whole circumstances of the events before and at Lockerbie were for a long time, because of their magnitude, central to any considerations of terrorist crimes. The earlier notes concerned almost exclusively various points taken by Al Megrahi, the co-accused having apparently, as was described in a wholly unrelated English decision, adopted a policy, or taken strategic decision, to adopt as low a profile as possible. 73
It is always necessary to consider all the facts and the whole history of the proceedings in a particular case to assess whether a defendant’s right to a fair trial has been infringed or not. 74 None of the various attempts to try to get at the truth about the Lockerbie bombing through criminal trials were ever likely get close to or near even the real issue while the accused chose, as he was entitled to do, to remain silent. 75 Coincidentally, the appellate judges in Scotland, while not bound by a decision of the English appellate judges, must have nevertheless accepted the view that the ‘need for finality in litigation is a basic principle, which applies in all areas including criminal justice’. 76
Much has been made as a matter of general jurisprudence of the participation of an accused in his or her own trial as part of the criminal process, and theories have been offered for discussion. 77 Little has been suggested about the similar point to be made of an appellant participating in an appeal; or rather, in the Lockerbie appeal representatives of the deceased appellant so participating, the true meaning of an appellant commencing and then abandoning an appeal sometime after the procedural starting point. 78
At any rate, it is a matter for comment as to how matters of judicial policy in the UK have developed that Al Megrahi was sentenced to life imprisonment with a punishment part of 30 years for murder and, yet, a generation after that case endorsement was given judicially to a line of authority which does not shut the door to a whole life tariff in a case not involving murder. Thus, the infinite variety of circumstances of serious crime make it impossible to identify in advance where that might occur although one example given in the judgment of the court was where a bomb planted on a commercial airline failed to explode, or does so without causing sufficient damage to bring the aircraft down. 79
The appellate decision of the High Court of Justiciary in 2021 may or may not be the end of the Lockerbie case in Scotland. The law has changed in a material aspect as the Double Jeopardy (Scotland) Act 2011 (asp 16) made provision as to the circumstances in which a person convicted or acquitted of an offence may be prosecuted anew; however, that does seem unlikely now in regard to the accused who was acquitted. However, a prosecution in another jurisdiction cannot be excluded as the authorities in the USA are in possession of sufficient evidence to have been able to charge another man, who has not appeared before the courts in Scotland, for his separate involvement in the preparations for the Lockerbie event. 80
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.