Jim Swire’s announcement that he and the UK families of Pan Am 103 plan to resurrect Abdelbaset Ali Mohmad Al Megrahi’s appeal takes this tortured case into uncharted legal territory. Or I should say, takes it further into the uncharted legal territory that was first ploughed into when the model for a trial under Scots law held in Holland was first proposed as a solution to break the legal deadlock by Robert Black QC. Anything goes in this exceptional case. But whilst the jungle just got thicker, the path has perhaps become a little clearer.

It is a great strength that Scots law is so adaptable, but a source of serious concern if that adaptability is perverted to suit twisted political ends, rather than the interests of justice, as has so often been the case in this sorry, embarrassing, shameful, manufactured affair.

The proposal to pick up the case where Megrahi dropped it is a bold move, and a necessary one. Scots law is internationally derided for its Banana Republic ability to be so bent by political expediency as things currently stand. The Euro-phobic, and in particular Islamaphobic stance of UK mainstream media perhaps blinds many to the tone of the reporting of this case in jurisdictions other than our own, where for example the UN Observer’s remarks that the conduct of Megrahi’s dropped appeal “bore the hallmarks of an intelligence operation” were scarcely, if at all reported. Concluding the halted legal proceedings may be more than cathartic. It may be legally therapeutic.

The dropped appeal was only haltingly entered into after the Scottish Criminal Cases Review Commission grudgingly, almost under duress, acknowledged that a staringly obvious miscarriage of justice may have occurred after three years of deliberations, during which their pledged timescale for reporting continually slipped by six-monthly or three-monthly increments. That gritted teeth conclusion -unlike its other, more direct, matter of fact summaries in almost all its other reviewed cases- took pains to rubbish the cumulative investigative work of the preceding 19 years that had been undertaken with skill, vigour and thoroughness of some of the UK’s finest journalists, work that had led to questions on the floor of Parliament, all of which it casually dismissed with cold and troubling assurance. In its place it posited a bare handful of troubling aspects of the conviction, centred around the identification of Megrahi. Virtually all else was ignored. An appeal, within narrow parameters only, commenced. The conviction, on a shaky nail from the outset, seemed likely to fall even with only this mild nudge.

There is precedent for an appeal to be continued in Scotland by relatives of the convicted person if he has died. Two such cases have been permitted in Scottish courts in the last ten years. What is not so certain is whether this can be done by Swire and the families whilst Megrahi lives after having dropped it himself, or if they can pick it up in the inevitable event of his death, if Megrahi‘s own family don‘t.

It is worthwhile reporting professor Robert Black QC at length here, on this very point.

"The legislation which set up the SCCRC envisages applications being made by persons other than the convicted person himself,” he says.

“The Commission may refer a case to the High Court if they believe (a) that a miscarriage of justice may have occurred and (b) that it is in the interests of justice that a reference should be made. Condition (a) is clearly satisfied: the SCCRC so decided in Mr Megrahi's own application. But what about condition (b)? Would the Commission regard it as in the interests of justice to refer a case back to the High Court where the convicted person himself had commenced an appeal on a SCCRC reference and then chosen to abandon it? The answer might depend on the precise circumstances in which the appellant came to abandon his appeal. Mr Megrahi's terminal illness; the fact that prisoner transfer was not open while the appeal was ongoing; and the fact that Mr Megrahi had no way of knowing that Kenny MacAskill would ultimately opt for compassionate release rather than prisoner transfer, would be relevant factors.

“An appeal in Scotland would require (a) a further reference back to the High Court of Justiciary by the SCCRC -and (b) the High Court to recognise the appellant (assuming that Mr Megrahi himself is no longer with us) as having a legitimate interest to pursue it. A spouse or close relative of Megrahi would qualify. But what of the spouse or close relative of a Lockerbie victim? This is entirely untrodden legal ground.”

That would appear to indicate that not only could the specific terms of Megrahi’s appeal - an appeal broken up and drawn out under a wicked timetable to an interminable length, almost as though intended to outlast the man himself - be resurrected, but new grounds that affected the case subsequent to the SCCRC referral could also be considered. And here there are rich pickings indeed.

“A factor which I think can be strongly argued to be important, is the reputation of the Scottish criminal justice system. This has suffered badly both at home and abroad because of widespread doubts about the justifiability of the conviction of Megrahi,” Black says.

“It is in the interests of justice and of restoring confidence in our criminal justice system and its administration that these doubts be addressed. This can perhaps best be done by allowing the Criminal Appeal Court to consider the SCCRC's reasons for believing that there may have been a miscarriage of justice in a fresh appeal challenging the original verdict.”

So yes, apparently the court could consider the case, as well as the merits of the original conviction, and the subsequent issues arising since the SCCRC referral in 2007. And here there is more. Much more.

Megrahi’s counsel, Maggie Scott QC said the act of dropping his appeal would smooth the passage of his “applications”, namely his application for Prisoner Transfer and his application for compassionate release, two entirely separate matters but which were apparently conflated in Mr Megrahi’s understanding. This misunderstanding, according to the timeline, took place during or in the two days after he received the infamous visit in prison from Kenny MacAskill, whose presence was perhaps nought but a fig leaf for Megrahi’s other visitors, hidden behind the leaf: Robert Gordon, director of the Justice Department - a name that crops up with persistence and regularity behind the headlines in this story - and Linda Miller from the Criminal Law and Licensing Division.

In addition to Scott’s inference that Megrahi was pressured to drop the appeal, there is also the matter of Crown Agent Norman MacFadyen's troubling handling of the evidence, a matter for which MSP Christine Grahame reported him to Lothian and Borders police, although no charges were ever brought. In addition, John Wyatt and others have postulated that a semtex blast as maintained in the discredited Crown case could not have caused the damage that brought down the plane. And further, only one week after the SCCRC ruled a miscarriage of justice may have taken place, Ulrich Lumpert of MEBO swore an affidavit that he had manufactured the timer fragment introduced as evidence of an explosion in the Crown case.

None of this has been tested in court.

Lord Maclean told me that he and his fellow judges reached correct verdicts in this case on the basis of the evidence presented to them. That is a careful and interesting qualification. Megrahi originally lodged a special defence incriminating Mohamed Abu Talb, then a prisoner in Sweden on unrelated charges, but this defence was dropped, and only three from the hundred of named defence witnesses were actually called at the trial, in what can only be described as a token gesture of defence.

With no defence offered, even then, their Lordships were able to comfortably acquit co-accused Fhimah, and the remaining verdict convicting Megrahi is, putting it kindly, attenuated in the extreme. You should read it, if you haven’t already. It is barely logical, and is very far from a linear narration of a case proven beyond reasonable doubt.

What seems unavoidable is the conclusion that the UK, US and Libyan governments puppeteered the Zeist proceedings and current aftermath. It couldn‘t be concealed from the UN Observers. Scots law has been broken to accommodate the desired conclusions, and our own civil service are evidently the principal architects of the key local decision making. A recent letter from Tam Dalyell in the Scotsman read in part that the decision to release Mr Megrahi “had everything to do with avoiding an appeal which would have revealed the delaying and disgraceful behaviour of the Crown Office over 21 years, the "inexplicable" (the UN observer's word) decision by the judges at Zeist and the shortcomings in Mr Megrahi's original defence, not to mention the involvement of the American government in scapegoating Libya: The Americans should now be told that the motive for Mr Megrahi's release was the avoidance of the humiliation of Scottish justice in the eyes of the world.”

If that in itself does not meet the required condition that the matter must be sufficiently in the interests of justice to allow the Scottish Court to hear the families' pursuit of Megrahi’s appeal and to let justice run its course, then seriously, what is?

Steven Raeburn
Editor

Previous Editor's blogs:

Time to bring broadcasting to Court.  Read

Blinkered media preserve redundant myths, from Kennedy to Lockerbie. Read

Goodwill needs structure to meet pro bono need. Read

My Government. Read

Bomber bomber bomber. Read