Lockerbie bombing case to go back to Appeal Court

Scotland's Criminal Appeal Court will again review the conviction of the man found guilty of planting the bomb involved in the Lockerbie tragedy in 1988, after the Scottish Criminal Cases Review Commission today referred the case to the court.

The decision means that the family of the late Abdelbaset Ali Mohmed Al Megrahi can instruct a further appeal against his conviction on 31 January 2001 for the murders of the 259 passengers and crew on board Pan Am Flight 103 from London to New York, and 11 residents of Lockerbie, on 21 December 1988.

Mr Megrahi abandoned a previous appeal following a reference by the Commission, shortly before his release from prison in August 2009 on the compassionate ground of his terminal illness. He then returned to his native Libya, where he died in May 2012.

The Commission is not, by law, permitted to provide members of the public with copies of its statement of reasons, which in this case runs to 419 pages along with "voluminous appendices", but issued a summary of its conclusions in view of the global interest in the case.

It has accepted that a miscarriage of justice may have occurred on two of the six grounds presented, unreasonable verdict, and non-disclosure of evidence.

On the former, the Commission stated its belief that the identification evidence, principally that of Maltese shopkeeper Antony Gauci, from whom Mr Megrahi was said to have bought items of clothing connected with the suitcase that exploded, was insufficient for any reasonable trial court to have accepted that he was identified as the purchaser. Because the court’s specific conclusion that he was the purchaser was integral to the court’s ultimate conclusion that he was guilty of the murders libelled, the Commission believes that a miscarriage of justice may have occurred.

However it rejected a separate ground that, based on the evidence that the trial court accepted in this case, there was insufficient evidence in law to convict Mr Megrahi in the form of circumstantial evidence.

On the non-disclosure ground, the Commission considered that the Crown ought to have disclosed to the defence a statement and a police report concerning Mr Gauci’s possession of photographs of Mr Megrahi before the identification parade, because that information might have materially weakened the Crown’s reliance on Mr Gauci’s ID parade and dock resemblance identifications of Mr Megrahi as the purchaser.
The failure to do so deprived Mr Megrahi a real chance of an acquittal. In addition, the Crown’s failure to disclose information about the reward money to be paid to Mr Gauci under a scheme administered by the US Department of State bolstered the conclusion that Mr Megrahi was denied a fair trial.

The Commission also addressed the question whether to accept the application for review at all, given Mr Megrahi’s decision in 2009 to abandon his appeal. After fully investigating the matter, it did not accept an allegation that the Scottish Government had attempted to induce Mr Megrahi to drop his appeal in exchange for his return to Libya, concluding that the Government had been consistently neutral on this issue. However it did accept that Mr Megrahi genuinely believed that his chances of being returned to Libya rested on him dropping his appeal, and that he had little option but to do so. Accordingly, he abandonment of the appeal ought not to be taken as a justifiable reason not to accept the case for further review.

It further took the view that it would be in "the interests of substantive justice" to refer the case again to the High Court. Material obtained by the Commission, during its earlier and its current review, if believed, reinforced the case against Mr Megrahi, but did not entitle the Commission to establish a compelling and unanswerable case indicating that Mr Megrahi was guilty. "It may be that, if such matters are able to be properly considered in the future in a court of law, appropriate conclusions could be drawn about this new information", the Commission said. 

"Accordingly, and for these reasons, the Commission believes that it is in the interests of substantive justice to refer this case to the High Court."

Other grounds rejected as part of the referral were fresh evidence regarding the timing of Christmas lights being turned on in Malta; evidence regarding a timer fragment (the Commission decided that the Crown did not fail to disclose the information in question, and that the applicants had not provided a reasonable explanation as to why the fresh evidence concerning a metallurgy issue was not led at the trial); and a case based on the origins of the suitcase, as it was satisfied that the defence team had good tactical reasons for approaching this part of the evidence in the way in which it did. 

Chairman of the Commission, Bill Matthews, commented: "This is the second time that the Commission has carried out what I believe has been a rigorous and independent review of this particular conviction, and we note that since our last review further information has become available, including within the public domain, which the Commission has now been able to consider and assess.

"As the Chair of the SCCRC in 2007 said when the case was originally referred, our function is not to decide upon the guilt or innocence of an applicant. Our function is to examine the grounds of review identified and to decide whether any of the grounds meet the statutory test for a potential miscarriage.

"I am pleased therefore that we are now able to issue a detailed statement of reasons which addresses all of the issues raised. I am satisfied that the matter is now returning to the appropriate forum – the appeal court – to consider fully all of the issues raised in our statement of reasons."

Chief executive Gerard Sinclair added: "When we referred this case in 2007 I never expected that, over 10 years later, we would be asked not only to revisit our original decision, applying the law as currently stated, but also consider a whole new set of materials which had become available in the intervening years. I’m pleased to report that, after another lengthy investigation and review, we are now in a position to issue our decision in this unique case.

"It seems important to note that, this month, an entirely new board of the Commission from that which considered the matter in 2007 has again decided to refer this case. The 419-page decision issued today, with voluminous appendices, is a testament to the hard work and diligence of our investigating team over the last three years, involving us in novel and challenging court procedures along the way, and I pay tribute to them."

"The Commission’s involvement in the case is, once again, at an end. It is now a matter for those representing the Crown and the defence to decide how to proceed at any future appeal. Thereafter, it will be for the appeal court to decide whether there has been a miscarriage of justice in this case.”

The case will now proceed as a normal appeal to the High Court.