Son of Lockerbie bomber succeeds in obtaining order allowing appeal against father’s conviction

Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi, sought orders authorising the institution of an appeal, for leave under the Criminal Procedure (Scotland) Act 1995 to found the appeal on additional grounds based on the non-disclosure of CIA cables and the recovery of two Protectively Marked Documents in the custody of the UK Government or Police Scotland. Parts of these grounds were not contained in the SCCRC recommendations. 

The applications were considered by the Lord Justice General, Lord Carloway, sitting with the Lord Justice Clerk, Lady Dorrian, and Lord Menzies. 

Deficiencies in testimony 

Mr Megrahi was originally convicted in 2001 of the murders of 270 people aboard Pan Am flight 103 by the deliberate induction of an explosive device onto the plane in a High Court hearing in the Netherlands. The judges who convicted him did so based partially on the testimony of Antonio Gauci, who said he sold clothing that was found in the suitcase containing the bomb to a Libyan man. 

Two grounds of appeal were initially referred to the High Court for consideration, namely that no reasonable court could have found Mr Megrahi guilty based on the testimony of Mr Gauci, and the failure of the Crown to disclose a number of documents which could have had a material effect on Mr Gauci’s evidence. 

The SCCRC was also asked to consider the significance of a failure to disclose the two PMDs, but did not refer the case on the basis of any significance attached to these documents. As a result of an appeal resulting from an earlier SCCRC reference in 2007, the 1995 Act was amended to include Section 19D, which states that the grounds for appeal from a reference must be related to a reason in the reference unless it is in the interests of justice to do otherwise. 

The first appeal ground advance by the appellant was entirely within the grounds given in the SCCRC report, and thus posed no issue to the court. However, the second ground raised a discrete issue about an alleged systematic failure of the Crown to disclose documents, as distinct from a failure to disclose specific relevant items. This did not form part of the Reference although the SCCRC did make some oblique remarks about such a failure. 

In particular, the note referred to certain CIA cables which had a bearing on the evidence of the witness Abdul Majid, which was rejected by the trial court insofar as it incriminated Mr Megrahi. The SCCRC also identified as disclosable a number of police statements and reports relating to Mr Gauci’s identification of Mr Megrahi in photos published in a number of magazines. 

The SCCRC did not consider that the non-disclosure of the PMDs met the real possibility of a different verdict test. It went on to question why the Crown had not investigated the matter, which responded that they had contacted officials of a “foreign authority” who, in 2000, had told them that the information in the PMDs was incorrect. On that basis, the Crown had deemed the material non-disclosable. The SCCRC did not consider that the Crown’s explanation for not investigating the information to be “a convincing rationale”.  

Real harm to national security 

The opinion of the court was delivered by Lord Carloway. On the inclusion of appeal grounds which did not form part of the reference, he said: “Despite their cryptic comments about the possibility of the appellant being able to frame an arguable ground of appeal based on oppression, the SCCRC did not refer the case to the court on the basis of any systematic failure. They were correct to do, albeit for a rather different reason.” 

He continued: “In the context of an appeal against conviction which is based upon an allegation of a failure to disclose relevant material, it is of peripheral, if any, significance to examine whether the Crown, or a particular prosecutor, acted in good faith or to analyse whether the Crown’s systems were efficient or not. If a failure to have an efficient system in place were available as a ground of appeal, a finding of inefficiency would jeopardise all convictions at the time of such a system; even if proper disclosure had been made. That is why it cannot form the basis of a successful appeal.” 

On the CIA cables specifically, he said: “The Crown requested that the CIA cables should form part of the appeal since it would provide the Crown with an opportunity to explain the gradual disclosure of the cables during the course of the trial and avoid the possibility of a third Reference from the SCCRC, should the present appeal fail. On that basis, the court will allow the non-disclosure Ground 2 to include reference to the Part B material on the basis that it is in the interests of justice to do so.” 

On whether the PMDs could be recovered, he noted the certificate produced by the Foreign Secretary considering the risk of disclosing them, which stated: “I am satisfied that the production of the documents would cause real harm to the United Kingdom Government’s international relations. It would also cause real harm to the national security of the United Kingdom, because of damage to counter-terrorism liaison and intelligence gathering between the United Kingdom and other States.” 

Lord Carloway concluded: “In these circumstances, the court considers that it must see the PMDs before reaching a decision. The court will adopt the procedure which was planned in 2008 and order the production of the PMDs to the court. It will appoint a hearing at which the Advocate General and the respondent, who is in favour of disclosure, will be represented along with a special counsel to look after the interests of the appellant.” 

For these reasons, the Court pronounced an order authorising the appeal, with the appellant being allowed to found the appeal on the additional ground of non-disclosure of the CIA cables. The application relating to the PMDs was continued to allow for them to be considered in a hearing by the court, with the appellant represented by a special counsel.