Lockerbie – 2025 and still unresolved
A recent article by Ronnie Clancy KC, published in two parts by Scottish Legal News, seeks to sustain the conviction of Abdelbaset al-Megrahi for the 1988 Lockerbie bombing, and to dismiss as fanciful the various, numerous, arguments put subsequently to challenge the legitimacy of that conviction.
The basic premise of Mr Clancy’s position is that the trial court, the Appeal Court and the Scottish Criminal Cases Review Commission (“SCCRC”) have all concluded that the guilty verdict is unassailable on the evidence of the case. Particular emphasis of the SCCRC’s independence from the court is a feature of Mr Clancy’s narrative.
The decision as to whether a conviction is to be quashed rests entirely and exclusively with the Appeal Court. The SCCRC has no active say in this; its function is to refer cases to the Appeal Court where it is satisfied that there may have been a miscarriage of justice, and that it is in the interests of justice to make that referral. The decision rests, however, with the court.
This means that, leaving aside for the moment the role of the SCCRC, Mr Clancy’s argument is that Mr al-Megrahi must be guilty because the courts tell us so. This accords the courts an infallibility that they do not claim for themselves. That, with respect to Mr Clancy, is an exercise in wishful thinking, and a gross distortion of the reality.
To understand this, it is necessary first to understand the application, in our courts, of the presumption of innocence. In the context of a trial, the accused person is to be presumed innocent until guilt is proven beyond reasonable doubt. It is for the Crown to provide that proof. The benefit of any doubt must go to the accused. In cases considered by the Appeal Court, that relationship between Crown and accused is inverted. Following on conviction at trial, the guilt of the accused is presumed. For the conviction to be overturned, the accused must provide compelling new evidence, or satisfy the Appeal Court that some flaw or irregularity in the process of investigation or prosecution was so fundamental as to render the conviction unsustainable. Any benefit of the doubt in this scenario goes to the Crown. The Appeal Court sets the bar on this very high indeed. It is not enough to show that the trial court could, or should, have come to a different verdict. The test is basically to show that the trial court was not entitled to come to the verdict of guilty, either on the evidence before it or taking into account any new evidence. The default position is that convictions are to be maintained in the absence of a compelling argument to the contrary.
The Appeal Court has itself made clear the restrictive nature of this. In Harper v HMA [1], the SCCRC referred the case to the Appeal Court on the basis that it considered that a reasonable doubt existed as to the accused’s guilt. In refusing the appeal, the court held that, even if it had been convinced that a reasonable doubt existed as to the accused’s guilt, the court had no power to quash a conviction “on the basis that the verdict in the case was unsatisfactory in the light of the evidence”.
It is, therefore, entirely possible – and it frequently happens – that an appeal will be refused because it was possible for the trial court to have placed a particular interpretation on a piece of evidence. The question as to whether, on grounds of reasonableness, it should have done is not even asked.
This renders much less potent the argument that Mr al-Megrahi must be guilty because the courts – of the system that convicted him – decline to say that he is not. The appeal judgements in this case are littered with instances of this type of “reasoning”. It may be law, but it’s not justice.
The SCCRC, Mr Clancy tells us, has also demolished the various arguments as to Mr al-Megrahi’s innocence. I think not. The SCCRC has referred this case to the court on two separate occasions. The first referral specified six grounds on which the SCCRC believed that there may have been a miscarriage of justice. Those grounds were never tested in court, because Mr al-Megrahi withdrew the appeal before (and it is suggested as a requirement of) his release on compassionate grounds. And while the SCCRC is indeed independent of the Appeal Court, it exists only to feed into that court. The SCCRC is well aware of the way the game is played, and of just how restrictive the rules are. What we should be looking at here is not so much that the court rejected the SCCRC’s identified grounds of appeal, but rather that the SCCRC identified those grounds in the first place.
This case is not going to go away. There are good and compelling reasons for this. Dr Swire, and the families of the other victims, are surely entitled to know why their loved-ones were murdered, and by whom. There remains, after many years, significant, informed, doubt that this has been settled. More broadly, there is a widespread apprehension that our criminal justice system has been seriously compromised for reasons of political expediency. Unless a full and transparent examination of this is carried out, confidence will continue to be eroded in both our justice system and our organs of government.
The Scottish Legal News articles can be found here and here.
[1] 2005 SCCR 245