Abdelbaset Ali Mohmed Al Megrahi V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Kirkwood,Lord Osborne,Lord Macfadyen,Lord Nimmo Smith,Lord Justice General |
| Court | High Court of Justiciary |
| Date | 14 March 2002 |
| Docket Number | C104/01 |
| Published date | 14 March 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice-General Lord Kirkwood Lord Osborne Lord Macfadyen Lord Nimmo Smith
| Appeal No: C104/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION of ABDELBASET ALI MOHMED AL MEGRAHI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Taylor QC; Burns QC; Beckett: McCourts, Solicitors, Edinburgh.
Respondent: The Lord Advocate (Boyd QC); AP Campbell QC, Advocate depute; Turnbull QC, Advocate Depute; Lake: the Crown Agent.
14 March 2002
Introduction
[1]On 31 January 2001 the appellant was found guilty of a charge of murdering 259 passengers and crew on board Pan American World Airways ("PanAm") flight PA103 from London Heathrow airport to New York and 11 residents of Lockerbie on 21 December 1988. This Opinion is concerned with his appeal against conviction, which was heard at Kamp Van Zeist from 23 January to 14 February 2002.
[2]In view of the length of this Opinion it may helpful if at the outset we set out a list of its contents, by reference to its paragraph numbers, as follows:
| Introduction | 1 - 58 | |
| 3 | |
| 4 | |
| 5 - 19 | |
| 20 - 27 | |
| 28 - 58 | |
| The provenance of the primary suitcase | 59 - 274 | |
| 61 - 177 | |
| the accuracy of records | 62 - 94 | |
| the interpretation of records | 95 - 103 | |
| alternative explanations for the bag in tray B8849 | 104 - 134 | |
| the x-ray procedure | 135 - 152 | |
| the loading of baggage on to PA103A | 153 - 164 | |
| the extent of unaccompanied baggage | 165 - 177 |
| 178 - 252 | |
| the treatment of Mr Bedford's evidence | 179 - 202 | |
| the significance of the location of the primary suitcase | 203 - 213 | |
| additional evidence | 214 - 252 | |
| 253 - 274 | |
| "collateral issues" | 254 - 257 | |
| deterrent factors | 258 - 262 | |
| the Luqa evidence | 263 - 274 |
| The identification evidence of Tony Gauci | 275 - 310 |
| The date of purchase of the clothing | 311 - 351 |
| 313 - 319 |
| 320 - 327 |
| 328 - 336 |
| 337 - 351 |
| Other circumstantial evidence and explanations | 352 - 367 |
| 353 - 356 |
| 357 - 360 |
| 361 - 367 |
| Conclusion | 368 - 370 |
The charge of which the appellant was convicted
[3]The charge narrated that the appellant, having formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants in furtherance of the purposes of Libyan Intelligence Services, while acting in concert with others, did certain acts. These included the purchasing on 7 December 1988 of a quantity of clothing and an umbrella in shop premises known as Mary's House at Tower Road, Sliema, Malta; entering Malta on 20 December 1988 at Luqa airport while using a passport with the false name of Ahmed Khalifa Abdusamad; residing overnight at the Holiday Inn, Tigne Street, Sliema, using this false identity; and placing or causing to be placed on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport on 21 December 1988 a suitcase containing said clothing and umbrella and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 radio cassette recorder and programmed to be detonated by an electronic timer, having tagged the suitcase or caused it to be tagged so as to be carried by aircraft from Frankfurt am Main Airport via London Heathrow airport to New York. The charge went on to state that the suitcase was thus carried to Frankfurt am Main Airport and there placed on board an aircraft of PanAm flight PA103 and carried to London Heathrow airport and there in turn placed on board an aircraft of PanAm flight PA103 to New York; and that the improvised explosive device detonated and exploded on board the aircraft while in flight near to Lockerbie, whereby the aircraft was destroyed and the wreckage crashed to the ground and the passengers, crew and residents were killed. The appellant's co-accused, Al Amin Khalifa Fhimah, was acquitted of that charge.
The general nature of the grounds of appeal
[4]In support of his appeal the appellant has tabled a considerable number of grounds of appeal. At the trial it was not submitted on the appellant's behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected certain 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. A few of the grounds of appeal maintain that the evidence was not of such character, quality or strength to enable a certain conclusion to be drawn or to justify a particular finding. However, the great majority of the grounds are directed to the trial court's treatment of the evidence and defence submissions. More specifically it is maintained that the trial court misinterpreted evidence, had regard to "collateral issues" and wrongly treated certain factors as supportive of guilt. It is also said that in regard to certain matters it failed to give adequate reasons. In many cases it is maintained that it failed to take proper account of, or have proper regard to, or give proper weight to, or gave insufficient weight to, certain evidence, factors or considerations. It is also maintained that the trial court misunderstood, or failed to deal with, or properly take account of, certain submissions for the defence. In one of the grounds of appeal the appellant seeks to found on the existence and significance of evidence which was not heard at the trial. Before coming to the grounds of appeal in more detail it is convenient for us to deal with two matters of general importance.
The basis of the appeal
[5]Section 106 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") makes provision for a right of appeal against conviction by a jury. Under subsection (3) an appellant may bring under review of the High Court:
"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
- the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."
In the present case only one of the grounds of appeal seeks to invoke paragraph (a) of section 106 (3). Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b). Accordingly, with the exception of that one ground, the appeal is based on allegations of "miscarriage of justice" within the generality of that expression in subsection (3).
[6]In this case the trial took place before a court of judges sitting without a jury ("the trial court"), constituted under article 5 of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 ("the Order in Council"). Article 5(4) provides:
"For the purposes of any such trial, the court shall have all the powers, authorities and jurisdiction which it would have had if it had been sitting with a jury in Scotland, including power to determine any question and to make any finding which would, apart from this article, be required to be determined or made by a jury, and references in any enactment or other rule of law to a jury or the verdict or finding of a jury shall be construed accordingly."
It is clear that for the purposes of an appeal against the verdict of the trial court, the same provisions apply as in the case of the verdict of a jury, subject to the substitution of references to the trial court in place of references to the jury.
[7]Article 5(6) of the Order in Council provides that in the event of a verdict of guilty:
"...(b)without prejudice to its power apart from this paragraph to give a judgment, the court shall, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction."
In the case of a jury a miscarriage of justice may arise out of a misdirection of the jury by the judge in regard to a matter of law or a matter of fact (as to the latter, see e.g. Crawford v HM Advocate 1999 SCCR 674). The basis for such an appeal requires to be found in the charge to the jury, read along with their verdict. In the case of the trial court there is likewise scope for a conclusion that there has been a miscarriage of justice arising out of a misdirection of law or a misdirection of fact, that is to say a self-misdirection gathered from its written judgment.
[8]It is plain that a trial court could include in its judgment more than strictly "the reasons for the conviction." In the present case it is clear that the trial court included in its judgment not only factual findings and reasoning leading to conviction of the appellant, but also an account of evidence which it had accepted or rejected, the weight attached to certain evidence and the submissions made to it. It is thus possible for this court to know the basis on which the conviction of the appellant was arrived at, and hence it can determine, for example, whether or not the trial court has misdirected itself by misinterpreting evidence or failing to take evidence into account in arriving at its conclusions.
[9]At the outset, Mr Taylor submitted that a miscarriage of justice could be based on the failure of the trial court to give adequate reasons for its...
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