|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Kingarth
Lord Wheatley
|
[2008] HCJAC 68
Appeal No: XC524/07
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEAL
by
ABDELBASET ALI MOHMED AL MEGRAHI
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
(BAIL APPLICATION)
_______
|
Act: Scott, Q.C., Gilchrist,
Q.C., McCall, Richardson; Taylor & Kelly,
Coatbridge
Alt: Clancy, Q.C., A.D.,
Gardiner, Ross; Crown Agent
14 November 2008
[1] On 21 December
1988 a bomb
exploded on Pan Am Flight 103 over Lockerbie.
All those on board were killed, as were eleven people on the
ground. There were 270 deaths. Apart from that loss of life hundreds of
immediate family members suffered and continue to suffer in their bereavement.
[2] On 31 January
2001
Abdelbaset Ali Mohamed Al Megrahi (the present applicant for bail) was
convicted after trial of the murder of these 270 persons. He was found to have played a prominent part
in planning and in perpetrating the atrocity.
The verdict of guilty was the unanimous decision of a court of three senior
professional judges. Reasons were given
for the verdict arrived at. The
applicant was sentenced to imprisonment for life with a punishment part of
twenty seven years. An appeal against
conviction was on 14 March 2002 unanimously refused by a court of
five judges.
[3] On 23 September
2003 the
Scottish Criminal Cases Review Commission received an application on behalf of
the applicant in which he sought review of his conviction for murder. After a detailed examination of the issues
arising, the Commission on 28 June 2007 referred the case to this
court. It did so because it believed
that a miscarriage of justice may have occurred and that it was in the
interests of justice that a reference should be made. In its reference document the Commission
explained why it had made the reference.
In effect there were six discrete reasons why it took that course.
[4] The reference
having been made, the applicant lodged a note of appeal in which he sought to
lay before the Court grounds of appeal extending far beyond the reasons for the
Commission's reference. The Court,
having heard argument, has held that the applicant is entitled to have the
Court's adjudication upon the whole grounds of appeal presented by him. The Court has been told that it is the
intention of the applicant's legal advisers to advance, in so far as it may be
necessary to do so, the whole grounds of appeal which have been stated. That statement of intention inevitably makes
the appeal process much more complex and potentially much more protracted than
it would have been had the grounds of appeal been restricted to some shorter
and less complex issues.
[5] The grounds
of appeal which relate to matters not centred on the Commission's reasons for
its reference have not been through any preliminary screening, judicial or
otherwise. It is impossible, without the
benefit of detailed argument, to form a judgment as to their prospects of
success. Miss Scott on behalf of
the applicant expressly urged the court not to undertake such an exercise of evaluation. The consequence, however, is that, at least
in so far as concerns the grounds of appeal not centred on the reasons for the
reference, it is impossible to weigh in the balance any prima facie cogency in these grounds. While no doubt, if sustained, they would lead
to the quashing of the conviction, it is impossible on present information for
the Court to say what prospects they have of being sustained.
[6] While the
grounds of appeal centred on the reasons for the reference have at least
undergone the scrutiny which has led to the reference, it is important to
notice the limitations of that consideration.
It is not a judicial scrutiny and the reference is made on the basis
that there may have been a miscarriage of justice - not a definitive conclusion
that there has been such a miscarriage. Further,
the nature of the reasons for the reference is, in this case, not such the
Court can by an examination without the benefit of legal argument form even a prima facie view that the relative
grounds have a reasonable prospect of success.
While the fact that the Commission has made a reference is a factor to
be taken into account in a bail application - just as is a decision evidenced
by the grant of leave to appeal that there are arguable grounds of appeal (see Ogilvie, Petitioner 1998 S.C.C.R. 187) -
it can be no more than such a factor, to be taken into account with other
relevant factors.
[7] The grounds
of appeal as presented and insisted in are, as we have said, numerous and
complex. Inevitably if it becomes
necessary to determine all of them - or even a substantial proportion of them -
the appeal process is likely to be protracted.
The applicant by insisting in his whole grounds inevitably makes it
so. He is entitled so to insist but
having done so cannot complain if an early resolution becomes impossible. Moreover, the punishment part of his sentence
has many years to run. This is not the
common type of case where a factor in favour of bail pending appeal is that, if
bail is not granted, the whole sentence is likely to have been served before
the appeal is disposed of. In these
circumstances the lapse of time until the likely disposal of this appeal, while
a factor, is not a very compelling one in favour of granting bail.
[8] The applicant
is now 56 years of age. He is
married with several children and grandchildren. He has recently been diagnosed as suffering
from an incurable cancer.
[9] The applicant
is entitled to respect for his personal privacy in any public discussion of his
health. But, because his health, present
and prospective, is a central factor in this application for bail, it is
necessary to say something about it, at least in broad terms. The cancer - prostate cancer - from which the
applicant suffers is very unpredictable.
According to a report by a consultant clinical oncologist shown to us the
applicant's prognosis depends crucially on his response to hormonal treatment,
a palliative treatment which he has now commenced. Depending upon his response his life
expectancy may be in years.
[10] Meantime, the
applicant, with the exception of some mild discomfort, remains at present
symptom-free. He is sleeping and eats
well. He remains independent with his
daily living activities in the prison where he is held. In terms of physical support required, at
this time no additional help appears to be necessary; nor has any been requested. Full access to National Health Service care
is available when required, notwithstanding that the applicant remains in
custody. His incarceration inevitably
gives rise to psychological effects, not least from a sense of isolation
experienced by a prisoner far removed from his home and cultural
background. Such psychological effects
are naturally aggravated by knowledge that he suffers from an incurable
disease. These effects are likely to be
ameliorated, at least to some extent, if, as is proposed, he is released to a
bail address in the west of Scotland where he would live with members of his
immediate family and continue to have access to National Health Service
facilities.
[11] The Scottish
Ministers have a statutory power to release a serving prisoner on licence on
compassionate grounds. Advice has been
issued as to the exercise of that power.
Broadly speaking, in the case of a prisoner suffering from a terminal
illness, life expectancy of less than three months may be considered a
condition appropriate to occasion early release. It is not suggested that the applicant
presently meets that criterion.
[12] This court is
not constrained by such considerations.
It can take a much wider view of any compassionate considerations urged
upon it.
[13] Another factor
which can bear on release on bail is any risk of flight. The Advocate depute submitted that, although
the Crown had no information to suggest that the applicant, if released on
bail, had any intention of absconding, there were elements in his history,
including his involvement with the Libyan intelligence services, which
presented a possible risk of flight. He
urged the court not to rely on the recent undertakings given by a senior
official of the Libyan Diplomatic Corps to the effect that the applicant would
not, if he were to attempt to abscond, be received into Libya.
[14] The Court is
not persuaded that there is a material risk of the applicant absconding,
particularly if any liberation ad interim
was made subject to the kind of conditions which the Crown would seek or which
the applicant would accept. The
applicant's historical connection with security services, which at some time
may have given him access to false passports and other like facilities, does
not, standing the Libyan Government's assurances, appear to the Court to be of
significant current relevance.
[15] The discretion
conferred on the Court to admit a convicted person to bail pending the
determination of his appeal is widely expressed. The Court may, subject to certain provisions
which are not applicable here, so admit such a person "if it thinks fit". In the judgment of the Court the most
significant factor in the applicant's favour is the state of his health. The Court is unsurprised that,
notwithstanding that grounds of appeal were lodged in December 2007, no
application for bail was presented before now.
Absent the recent diagnosis, the prospects of success of such an
application would have been remote. The
critical question, as the court sees it, is, against the background of the
atrocity of which the applicant stands convicted, whether the applicant's
health, present and prospective, is such that the Court should on compassionate
grounds now admit him to bail. On
balance the Court is not persuaded, on the information before it, that it should. While the disease from which the appellant
suffers is incurable and may cause his death, he is not at present suffering
material pain or disability. The full
services of the National Health Service are available to him, notwithstanding
he is in custody. There is, it appears,
no immediate prospect of serious deterioration in his condition. The prognosis for its development is at
present uncertain. If he responds well
to the course of palliative treatment which he has now started, his life
expectancy may be in years. If he does
not respond well, that expectancy may be less good. While recognising that the psychological
burden of knowledge of an incurable fatal disease may be easier to bear in a
family environment than in custody, the Court, having regard to the grave nature
of the conviction and taking into account the fact that a reference has been
made and the fact that the appeal process is likely to be protracted, is not
persuaded that the stage has been reached when early release is
appropriate. If the applicant does not
respond well to the treatment he is undertaking and the prognosis becomes both
more certain and poorer, a stage may then be reached when a different disposal
is appropriate. The Court is prepared to
entertain a renewed application in such circumstances. In the present circumstances, however, for
the reasons which have been given, the application is in hoc statu refused.
