Twenty-four years have elapsed since the conviction of Abdelbaset Ali Mohmed Al Megrahi for his part in the murderous conspiracy which caused the death of 270 innocent people on 21 December 1988. The trial court verdict and the two Court of Appeal judgments upholding that verdict have been widely criticised in the press and media.

In a post on his blog on 9 May 2023, Professor Robert Black said of the Megrahi conviction that “a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied”. The professor’s blog regularly quotes articles by other commentators in the same vein. Similar attacks on the verdict regularly appear in the press and media.

We can expect more of the same in the coming year. In this two-part article, I will show that the vast majority of these criticisms have been discredited as a result of exhaustive investigations carried out by an independent body. I will also explain how the most recent Appeal Court decision significantly strengthens the Crown case.

Crucially, the second and third appeal judgements arose from referrals by the Scottish Criminal Case Review Commission (SCCRC). The SCCRC is entirely independent of the courts, the prosecution authorities and the police. Its function is to act as a gatekeeper enabling cases to be sent back to the Appeal Court for reconsideration if the commission determines that there may have been a miscarriage of justice.

The SCCRC investigations

In this case, on two occasions (2003 to 2007 and 2018 to 2020), the commission used its extensive investigatory powers to evaluate multiple challenges to the Crown case. The results of their work are set out in two lengthy Statements of Reasons totalling 1,200 pages. The commission’s grounds for referring the case on each occasion are narrow in compass by comparison with the extremely wide ranging allegations which were placed before them on behalf of Mr Megrahi. The second SCCRC referral in 2020 is essentially a refined (reduced) version of the first one in 2009.

In their application which resulted in the SCCRC’s referral in 2007 Mr Megrahi’s legal team threw the kitchen sink at the Crown case. The SCCRC took 16 chapters and over 480 pages of its Statement of Reasons (SOR) to set out its reasons for rejecting claims ranging from planting of evidence (several instances) to defective representation by the defence lawyers calling at incompetent forensic work, incriminations of third parties, non-disclosure of evidence (several instances) and insufficiency of evidence on the way. A redacted version of this SOR was published by a national newspaper in 2012 and is available on the internet.

The 2020 referral followed upon a two-year investigation which considered and rejected four further allegations. Announcing the SCCRC’s second referral in a press release on 11 March 2020, the chairman said: “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.”

There are three key points to take from the SCCRC investigations.

First, the scope of the 2020 Appeal was determined by the SCCRC who, over two thorough investigations, weeded out most of the allegations of miscarriage of justice as being unworthy of consideration by the Appeal Court. In an article in the Scotland on Sunday newspaper posted on Professor Robert Black’s blog on 31 January 2021, Dr Jim Swire is reported to have “accused the Crown Office and ‘certain leaders’ in Scotland’s legal profession of following a ‘readily visible course’ based on the premise that the Netherlands court was infallible”. He is reported to have told the newspaper: “Appeals have managed to avoid or ignore many of the aspects of the [Trial Court] evidence in which failures are self-evident, and have never fully addressed some of the further pieces of evidence which have emerged since.” With respect, Dr Swire has missed the all-important point that the SCCRC has sifted the mass of allegations including many based on evidence which post-dates the trial. The commission certainly did not regard the Netherlands court as infallible. The court did not avoid or ignore anything that was placed before it.

Professor Robert Black, quoted in an article from The Times and posted by him on his blog on 16 January 2021, the day after the most recent appeal was refused, said it was “a matter of grave concern that the most recent appeal had been so narrowly restricted to certain legal areas”. This contention fails to recognise the importance of the SCCRC’s role or the validity of its painstaking and impartial work on this case over more than five years. Secondly, the comparison between the narrow grounds for referral put forward by the SCCRC and the rejection by them of a mass of other allegations seriously undermines the claim that Mr Megrahi suffered a grave injustice which has sullied the reputation of the Scottish legal system. 

In the Scotland on Sunday article, Dr Swire is quoted as saying that the Crown Office and the other unspecified leaders of the legal profession (the Appeal Court judges?) ignored or avoided defects in the trial court evidence and new exculpatory evidence because “they wish to conceal the profound failings within their system and its dangerous opacity to criticism, in order that damage to its reputation shall be minimised”. That simply does not stack up in relation to the large body of allegations rejected by the SCCRC. 

Surely it cannot be suggested that they are complicit in a scheme to whitewash the verdict?

In relation to the few points which the SCCRC did refer to the Appeal Court the public can judge for themselves whether the court’s reasons for refusing the appeal make sense by reading their opinion. There is nothing opaque about their judgment.

My third point about the importance of the SCCRC referrals is that they put paid to a whole series of allegations about Mr Megrahi being framed by evidence tampering and the like. The commission’s SOR in 2007 is notable for the number of allegations of this sort that it carefully investigated and rejected. The SCCRC had this to say about these allegations:

There has always been an imbalance in the press and media coverage of the case. This observation from the SCCRC partially explains why that is the case. The work done by the SCCRC shows that the conspiracy theories which have circulated for years are false have largely gone unnoticed.

These theories persist. On 21 January 2021, Professor Black posted another article written by Steve James which contained the following: “The reason for the appeal being restricted to Megrahi’s identification by Gauci is increasingly clear. Any broader querying of the original verdict threatens to bring down the house of cards that is the legal frame-up of Megrahi.”

No evidence is offered in support of this assertion. It flies in the face of the SCCRC’s findings. The appeal was restricted because the commission did not find anything else worthy of a reference to the Appeal Court. As a result of these comprehensive investigations by the commission the public can be reasonably confident that those egregious allegations are unfounded.

Part two will feature in tomorrow’s Scottish Legal News.