APPLICATIONS IN THE APPEAL AGAINST CONVICTION BY THE REPRESENTATIVE OF THE LATE ABDELBASET ALI MOHAMED AL MEGRAHI AGAINST HER MAJESTY'S ADVOCATE AND THE ADVOCATE GENERAL [2020] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPLICATIONS IN THE APPEAL AGAINST CONVICTION BY THE REPRESENTATIVE OF THE LATE ABDELBASET ALI MOHAMED AL MEGRAHI AGAINST HER MAJESTY'S ADVOCATE AND THE ADVOCATE GENERAL [2020] ScotHC HCJAC_39 (26 August 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_39.html Cite as: 2020 GWD 33-426, [2020] HCJAC 39, [2020] ScotHC HCJAC_39

in the applications in the appeal against conviction following upon a Reference from the

Act: CM Mitchell QC; John Pryde & Co SSC (for Aamer Anwar & Co, Glasgow)

[1] This opinion records the reasoning behind the orders of the court dated 26 August

2020 following upon a Procedural Hearing which arose out of the lodging of a Note of

Appeal subsequent to the Reference to the court by the Scottish Criminal Cases Review

[2] It is important to observe in limine that, although they explored a number of avenues

of potential appeal, the SCCRC have referred only two grounds for the court’s

consideration. In broad terms these are, first, that no reasonable court could have found

Mr Megrahi guilty in so far as its verdict was based on the testimony of Antonio Gauci. This

testimony was held: (i) to be an identification of Mr Megrahi as the purchaser of clothing,

which was later identified in the debris from Pan Am flight 103, from a shop in Malta; and

(ii) to fix the date of that purchase as at 7 December 1988. The second ground is based upon

the failure of the Crown to disclose a number of documents which could have had a material

effect on Mr Gauci’s evidence and hence the verdict. Although the SCCRC were asked to,

and did, consider the significance of a failure to disclose two Protectively Marked

Documents (PMDs), the SCCRC have not referred the case on the basis of any significance

[3] In the appeal resulting from an earlier reference by the SCCRC in 2007, the court

determined that an appellant could base his appeal on grounds which had either not been

considered by the SCCRC or actually rejected by them. This prompted Parliament to

introduce section 194D into the Criminal Procedure (Scotland) Act 1995. This provides that:

“(4A) The grounds for an appeal arising from a reference… must relate to one or

more of the reasons for making the reference contained in the [SCCRC’s] statement

(4B) … the High Court may, if it considers it in the interests of justice to do so, grant

leave for the appellant to found the appeal on additional grounds”.

[4] The appellant has lodged a Note of Appeal consisting of 27 pages. Like the new

Reference, it advances only two grounds of appeal. The first, which occupies the initial ten

pages of the Note, reflects the Reference and relates to what are said to be deficiencies in

Mr Gauci’s testimony in so far as relating to his identification of Mr Megrahi and fix ing the

date of the purchase of the clothes. This poses no procedural problem. Examination of this

evidence will form a substantial part of the court’s task at the hearing of the appeal.

[5] The second ground also reflects the content of the Reference; but only up to a point.

It is based on the non-disclosure of four categories of documents and other material. Part A

of Ground 2 (pages 11 to 21 of the Note) largely relates to documents bearing upon the

testimony of Mr Gauci. All of these documents have now been disclosed. Within the detail

of this ground, however, a discrete issue is raised about an alleged systematic failure of the

Crown to disclose documents, as distinct from a failure to disclose specific relevant items.

As will be seen, this did not form part of the Reference although the SCCRC did make some

oblique remarks about such a failure. Item 14 of Part A refers to the Crown precognition of

[6] Part B (pp 21-23 of the Note) relates to certain Central Intelligence Agency cables

which have a bearing on the evidence of Abdul Majid (also known as Giaka). His evidence,

in so far as it incriminated Mr Megrahi, was rejected by the trial court. The cables did not

form part of the Reference. Part C (pp 23-24) refers to the PMDs. Part D (pp 24-26) covers a

number of items which are said to demonstrate the systematic disclosure failure.

[7] The appellant seeks orders: (1) under section 303A of the Criminal Procedure

(Scotland) Act 1995, authorising Ali Abdulbasit Ali Almaqrahi to institute an appeal on

behalf of the deceased Abdelbaset Ali Mohamed; (2) under section 194D(4B) of the 1995 Act

for leave to found the appeal on additional grounds wh ich do not relate to one or more of

the reasons contained in the SCCRC’s Statement of Reasons; and (3) recovery of the two

PMDs, which are in the possession of the United Kingdom Government and, it seems, Police

Scotland. The first order is uncontroversial and will be granted. The representative is the

son of Mr Megrahi. The issues for the court concern the remaining two orders sought.

[8] The case has a very long history. This was recently set out by the court in a

Statement of Reasons following upon the grant to the appellant of an extension of time to

[2] …On 31 January 2001, after a trial in the High Court of Justiciary sitting in the

Netherlands between 3 May 2000 and 18 January 2001, Mr Megrahi was convicted of

the murders of 270 people by the deliberate introduction of an explosive device onto

a civilian flight (PA 103) from London Heathrow to New York. The plane

disintegrated and the debris fell in and around the village of Lockerbie. The trial had

[3] The reasons for the conviction are set out in a written opinion of the court of

three judges (HM Advocate v Megrahi 2001 GWD 5-177). This described the evidence

which was relied upon by the court. In summary, many thousands of pieces of the

debris had been recovered from the crash site and analysed. The court accepted that

the bomb had been inside a Toshiba RT-SF 16 radio cassette player. This had been in

a brown hard-shell Samsonite suitcase (the primary suitcase) which had been placed

in luggage container AVE 4041. The container had been located in the port side

forward cargo hold. The primary suitcase held 12 items of clothing. These had been

sold from a shop in Malta run by the Gauci family, of whom Tony Gauci was a

member. Mr Gauci said that he had sold the items to a Libyan. A fragment of a

single sided circuit board from an MST-13 timing device, which had been

manufactured by MEBO AG in Zurich, was found within a piece of shirt which had

[4] Members of the Libyan Jamahariya Security Organisation, in which

Mr Megrahi was head of airline security, had ordered timers from MEBO. Twenty

samples of single and double sided MST-13 timers had been sent to Libya and to its

embassy in Berlin. Some of these had been tested by the Libyan military in

connection with explosives. MEBO leased an office in their Zurich premises to a

firm, namely ABH, in which Mr Megrahi was a principal. Mr Megrahi would have

been aware of airline security arrangements. He was involved in military

[5] Mr Megrahi held a passport, which had been issued by the Libyan

authorities, in a false name. The only use of this passport in 1988 was for an

overnight visit to Malta on 20/21 December. Mr Megrahi had arrived in Malta by

plane at 5.30pm and left the next day at 10.20am. The check in for his departure was

between 8.50 and 9.50am. Mr Megrahi had, on several previous occasions in 1988,

travelled to Malta using his own passport. He had done so on 7 December, after

which he departed on 9 December to Prague; returning to Libya via Zurich and

[6] It was the Crown’s case, which was ultimately accepted by the court that, on

21 December, the primary suitcase had been carried on Air Malta flight KM 180 from

Luqa airport in Malta to Frankfurt. The check-in for that flight was between 8.15 to

9.15am. In Frankfurt the baggage was transferred onto a Pan Am feeder flight

(PA 103A) to Heathrow and there re-transferred onto PA 103. John Bedford, a Pan

Am loader-driver had set aside container AVE 4041 to receive interline baggage; ie

that arriving from one airline and leaving on another . He had had left the baggage

shed for a time. When he returned, two suitcases had been added to the container;

one being “a brown… hardshell Samsonite-type”. Into the container also went the

baggage which was transiting from PA 103A. No passenger on KM 180 had had an

onward flight to London or the USA. However, a piece of baggage from KM 180 had

been coded at the relevant baggage station in Frankfurt for PA 103A and was

delivered to the gate to be loaded accordingly. An unidentified and unaccompanied

bag had thus travelled on KM 180 and was loaded onto PA 103A. How the baggage

had been loaded at Malta unaccompanied by a relative passenger remained a

mystery. This was described by the court as a major difficulty in the Crown case.

[7] An identification parade [which had included Mr Megrahi,] had been held on

13 April 1999. At this, Mr Gauci had said: ‘Not exactly the man I saw in the shop.

Ten years ago I saw him, but the man who look a little bit like exactly is the

number 5’, who was Mr Megrahi. Mr Gauci also identified Mr Megrahi in court,

stating that he ‘resembles him a lot’. The identification evidence was subject to some

scrutiny, including the ascertainment of the time when Mr Megrahi had been in the

shop. Questions were raised about whether the Christmas lights in the locality had

been put up. The court concluded that the items had been bought on 7 December

1988. It concluded that Mr Gauci’s identification of Mr Megrahi as the purchaser

was, ‘so far as it went’, reliable and a ‘highly important element’ in the case.

‘[H]aving considered the whole evidence in the case, including the

uncertainties and qualifications, and the submissions of counsel, we are

satisfied that the evidence as to the purchase of clothing in Malta, the

presence of that clothing in the primary suitcase, the transmission of an item

of baggage from Malta to London, the identification of Mr Megrahi (albeit not

absolute), his movements under a false name at or around the material time,

and the other background circumstances such as his association with [MEBO]

and with members of the JSP or Libyan military who purchased MST -13

timers, does fit together to form a real and convincing pattern. There is

nothing in the evidence which leaves us with any reasonable doubt as to the

[9] The conviction was appealed on multiple grounds (Megrahi v HM Advocate

2002 JC 99). The appeal was presented by counsel who had appeared at the trial. It

was accepted by Mr Megrahi that there was a sufficiency of evidence. Although

there were a great many individual grounds of appeal, these were paraphrased into

contentions that: (i) the court had failed to give adequate reasons; (ii) the appeal

court could review the conviction on the basis of the evidence which the trial court

had accepted as material; (iii) the trial court had erred in applying a presumption of

the accuracy of business, notably the baggage, records; (iv) the Crown had failed to

call the maker of these records; (v) expert evidence on the interpretation of the

records ought to have been led and subjected to cross ex amination; and (vi) there

was new evidence which pointed to a miscarriage of justice. Much of the criticism

levelled at the trial judges in the appeal related to their interpretation of specific

[10] The appeal court’s treatment of the evidence is much more detailed than the

analysis which appears in the Opinion of the trial judges. However, a report on the

grounds of appeal was called for in the appeal proceedings (cf Megrahi v HM

Advocate 2002 JC 38). As it had been invited to do by Mr Megrahi, the court analysed

the evidence at trial in painstaking detail. There was an intricate analysis of the

accuracy of the baggage records at Frankfurt. The court rejected the argument that

the trial judges had applied a presumption of accuracy. The judges had been entitled

to reach the conclusions which they reached, having taken into account the criticisms

which had been made by the defence. In particular, a suspect case had been coded in

Frankfurt in the time window for baggage coming in from KM 180. The judges had

been entitled to infer that an item of unaccompanied baggage had been transferred

from KM 180 and loaded onto PA 103A. The judges had been entitled to have regard

to evidence that the security procedures at Frankfurt, in so far as involving X-ray

examination of baggage, had certain defects and to reject testimony that such an

examination would have detected the explosive. The judges had properly

considered the defence submissions about the existence of further items of

[11] There was an intricate analysis of the evidence of what had occurred at

Heathrow and in particular the testimony of Mr Bedford (supra) in relation to the

brown Samsonite suitcase. The contention was that, since the primary suitcase

matched the description which Mr Bedford had given, it must have been infiltrated

at Heathrow and not Luqa. The trial judges had rejected that submission.

Mr Bedford had said that two suitcases of a type which matched the description of

the primary suitcase had been loaded onto PA 103, albeit that the remnants of only

one was found. The one that had been found contained the clothing which had been

bought in Malta. Mr Bedford’s description of where the interline suitcase had been

placed in the container was not consistent with it being the primary suitcase.

[12] Mr Megrahi was allowed to introduce new evidence to the effect that there

had been a break-in at Heathrow late on the evening of 20 December or in the early

hours of 21 December. The appeal court accepted that this had happened, but that

this only added to the other evidence of a possible infiltration at Heathrow. In the

context of the whole circumstantial case, it was not material. There was no link

[13] The court then focused on the ‘most fundamental issue raised in the appeal’,

viz. evidence which linked the bomb to Malta. This involved scrutinising the

identification of Mr Megrahi by Mr Gauci. Many criticisms of Mr Gauci’s testimony

were advanced. These included consideration of Mr Gauci’s earlier descriptions of

the ‘Libyan’ to whom he had sold the clothes and his identification of photographs of

other people. His descriptions were said to have been of an older person . By the

time when Mr Gauci had picked out Mr Megrahi from photographs, some 26 months

had elapsed since the purchase. Even then, Mr Gauci qualified his selection by

saying that the man in the photograph would have had to be 10 years older. The

quality of the photograph of Mr Megrahi had differed from the others. The appeal

court emphasised that it was for the court of first instance to determine the weight to

be attached to this evidence. No ground of unreasonable verdict had been tabled.

The trial judges had been entitled to accept the identification, ‘so far as it went’ as

credible and reliable. The appeal court considered the antecedents of the

identification, notably Mr Gauci’s reaction to a photograph of Mr Megrahi in a

magazine which had been published at the end of 1998 or the beginning of 1999.

Mr Gauci had thought that the person in the photograph looked like the man who

had bought the clothing. This had prompted him to go to the police at that time.

The appeal court considered the effect of pre-trial publicity on the issue. It noted that

Mr Megrahi had not challenged Mr Gauci’s testimony that Mr Megrahi resembled

the person who had bought the clothing. The appeal court rejected the grounds of

appeal which related to Mr Gauci’s identification of Mr Megrahi.

[14] The evidence relating to the date of the purchase of the clothing was

considered. This concerned the date upon which Mr Gauci’s brother would have

been watching a Seria A match; agreed as either 23 November or 7 December. The

latter date was important, as Mr Megrahi had been staying in a hotel near the shop

on that date. The appeal court was not persuaded that the trial judges had made any

material error in deciding that the sale had been on that date. There was an

exploration of the weather conditions on the date of purchase, and whether the local

Christmas lights had been illuminated by then. Mr Megrahi’s connections with

MEBO and the use of the false passport were examined. The appeal court found no

[15] On 28 June 2007, the Scottish Criminal Cases Review Commission referred

the case back to the High Court. This reference ran to some 790 pages in which a

wide range of representations, which had been made by Mr Megrahi, were

considered. The SCCRC had carried out its own investigations into some matters.

Some of Mr Megrahi’s points found favour with the SCCRC. Others did not. The

SCCRC identified five reasons for a reference: unreasonable verdict; undisclosed

evidence concerning Focus magazine; undisclosed evidence concerning rewards; the

date of the purchase of the clothing; and undisclosed protectively marked

documents. However, notwithstanding the restricted scope of the reference,

Mr Megrahi’s legal representatives, who were different from those who had

conducted the trial and the appeal, lodged grounds of appeal running to 317 pages.

These included matters which the SCCRC had considered and rejected. They

encompassed issues which Mr Megrahi had not asked the SCCRC to consider. This

gave rise to an objection from the Crown to the effect that Mr Megrahi could not, as

of right, require the court to entertain grounds which did not form part of the

reference. The Crown argued that there was no logic in Parliament creating a review

body whose decision to refer certain matters but not others could simply be reversed

by the appellant. Compulsory consideration by the court of grounds which had been

rejected by the SCCRC would result in a waste of judicial time and resources in a

[16] On a construction of section 194B(1) of the Criminal Procedure (Scotland) Act

1995, and after a substantial debate, the court rejected the Crown’s contention (Al

Megrahi v HM Advocate 2008 SLT 1008). However, the court pointedly commented:

‘[80] … Whether it is desirable, having regard to among other things the use

of judicial resource, that a reference appellant should have unrestricted scope

in what he lays before th e court for adjudication is a matter for Parliament;

On 17 August 2009, after many days of submissions on the substantive grounds of

appeal, Mr Megrahi was allowed to abandon his appeal (Al Megrahi v HM Advocate

2009 GWD 29-467). He did so, the SCCRC have found, at least partly because he

thought that by doing so his prospects of compassionate release would be

[9] The new Reference has been lodged over a decade after the abandonment of the

previous (second) appeal which had followed the original reference. The SCCRC considered

six broad areas of potential concern about the conviction. They enumerated these as follows:

(1) insufficiency of evidence; (2) unreasonable verdict; (3) fresh evidence concerning the

putting up of the Christmas lights near the shop; (4) non-disclosure of documents relating to

Mr Gauci’s testimony; (5) the nature and source of the timer fragment; and (6) the possibility

of suitcase ingestion at Heathrow and not Malta. The SCCRC rejected the argument that

there was an insufficiency of evidence. They discounted the idea that any new evidence in

relation to the timing of the Christmas lights could have had any material effect on the

[10] The evidence relative to the timer, which Mr Megrahi’s representatives had

advanced as significant, had been known to the defence at the time of the trial. It had

deliberately not been pursued. The contentions, which had been advanced by a Dr Kerr,

concerning the possibility that the principal suitcase had been ingested at Heathrow rather

than Malta, were analysed and rejected by the SCCRC. This last area had involved

consideration of the testimony of a Heathrow Airport security guard, who had discovered

what appeared to have been a break-in early on 21 December 1988. This had been part of

the new evidence which had been introduced during the first (pre Reference) appeal and

had been rejected by the court as not being material when examining the verdict . The

[11] The new Reference is made on two grounds only. The first is that the verdict was

unreasonable in terms of section 106(3)(b) of the 1995 Act. This is broadly the same ground

as had been previously referred in 2007. It is based on a contention that a reasonable jury

could not have concluded, on the evidence presented to them, that Mr Megrahi had been the

purchaser of the clothes from the Gaucis’ shop. The trial court concluded that the date of

purchase was 7 December 1988. This was said to be the only date on which Mr Megrahi

could have bought the clothes. The SCCRC reasoned that it had been the acceptance of this

date as correct, together with the resemblance identification made by Mr Gauci, that enabled

the trial court to draw an inference that Mr Megrahi had been the purchaser. The SCCRC

were “not persuaded” by the Crown’s argument that the trial court’s verdict had not simply

been based on these two factors but on a combination of the resemblance identification, the

date of purchase and a variety other circumstances. The SCCRC were also not persuaded

that the finding of 7 December as the date of purchase had not been an indispensable step in

the proof of Mr Megrahi as the purchaser of the clothes. A finding that Mr Megrahi had

been the purchaser was, on the SCCRC’s analysis of the trial court’s judgment, pivotal. The

question then was whether it was reasonable for the Court to accept that Mr Megrahi had

[12] The SCCRC were of the view that Mr Gauci’s police statements and testimony,

concerning the identification of Mr Megrahi, contained substantial discrepancies and

inconsistencies. His identification from a spreadsheet of photographs in February 1991 had

been equivocal and qualified. It was, on the SCCRC’s reasoning, arguably not an

identification at all, since it only amounted to evidence that the man in the selected

photograph was similar or “really similar” to the purchaser if he had been older. The value

of Mr Gauci’s identification of Mr Megrahi must have been reduced by his having

previously seen a photograph of him in Focus magazine. The identity parade had been held

some three to four months after Mr Megrahi had obtained a copy of Focus and 10 years after

the purchase of the clothing. Similar considerations applied to the dock identification which

Mr Gauci had made during the course of his testimony. The SCCRC considered that a

reasonable court would have had grave doubts about the identification. Mr Gauci’s

evidence about the date of purchase was grossly riddled with deficiencies. The trial court

had focused on Mr Gauci’s evidence that he thought that the date of purchase had been

7 December (and not 23 November) because the Christmas lights were being put up and that

it had been a fortnight before Christmas. Neither reason had been mentioned by Mr Gauci

to the police, when they had spoken to him repeatedly throughout 1989 and 1990. No

reasonable court could have accepted that Mr Megrahi had been properly identified by

Mr Gauci as the purchaser. That identification was integral to the court’s conclusion that he

was guilty. Notwithstanding the remaining chapters of the evidence about the involvement

of Libya and Mr Megrahi, the SCCRC concluded that a miscarriage of justice may have

[13] The second ground of reference is, in large part, a contention that the Crown failed to

disclose certain specific matters to the defence. In order to succeed on this ground, in so far

as it is based on a breach of the right to a fair trial under Article 6 of the European

Convention on Human Rights, an appellant has to satisfy a test whereby, had the material

been disclosed, there would have been a real possibility of a different verdict (McInnes v

[14] Much of the material which was identified by the SCCRC as disclosable relates to the

identification of Mr Megrahi by Mr Gauci,; notably evidence of Mr Gauci being exposed to a

photograph of Mr Megrahi in Focus magazine and being aware of the possibility of a

payment to Mr Gauci of a substantial reward. Thus, the SCCRC identify, as disclosable,

statements from a Sergeant Busuttil and an Inspector Scicluna that on 1 April 99 Mr Gauci

had, when speaking to the police, referred to seeing the purchaser’s photograph. On

9 April, Mr Gauci had handed the magazine, which was dated December 1998, to the police

and had said “That’s him”. On 12 April 1999, Mr Gauci had attended the identification

parade, which had included Mr Megrahi, in the Netherlands. A police report of 20 March

1999 stated that another magazine, Il Torca, had published a photograph of Mr Megrahi and

his co-accused on 28 February 1999, This too had been shown to Mr Gauci, who knew that

the accused were going to be on the parade. Mr Gauci had said that DCI Bell had discussed

the Focus photo with him and that Mr Gauci had said that it showed the purchaser. The

Busuttil statement suggested that Mr Gauci had had the copy of Focus at his home for

4 months prior to the parade. He had relinquished possession of it only a few days before

the trial. The impression created at the trial had been that he had only had fleeting

possession of the magazine. The SCCRC considered that there was a substantial risk that

Mr Gauci’s identification had been prompted from his having seen the photograph of

Mr Megrahi and not from his memory. Even although it was recognised that Mr Gauci had

picked out Mr Megrahi in February 1991, the statements and the report ought to have been

[15] The SCCRC identified a DCI Bell memorandum dated 21 February 1991 concerning

Mr Gauci’s security. It referred to a recent meeting with Mr Gauci at which he had

expressed an interest in receiving the reward money, which had been available from the

United States of America’s Government and had been reported in the press. There was a

further memorandum from DCI Bell on 14 June 1991 which said that he had had no recent

personal contact with Mr Gauci after the identification parade in February 1991. On

7 February 2001, after trial, DC Supt McCulloch wrote to the US Embassy nominating

Mr Gauci for a reward under the USA “Rewards for Justice” programme. There was a

report of 12 January 2001 concerning witness protection for Mr Gauci. It had said that

Mr Gauci had declined offers of a reward. An undated report stated that rewards had not

been discussed in advance of trial. All of these items, the SCCRC reasoned, were likely to

have been material to the presentation of defence. It could not be said that they would not

[16] The SCCRC referred to Mr Gauci’s Crown precognition dated 25 August 1999, in

which he had stated that the date of purchase had been at the end of November or the

beginning of December 1988. It might have been 29 November (a Tuesday) as he had had an

argument with a girlfriend. However, his brother had been at home so it was a Wednesday.

The SCCRC concluded that the decision not to disclose the precognition had not been

justified. Information about the date of the purchase was “of obvious significance to the

defence”, which had been deprived of the opportunity to trace the girlfriend. However, it

was not possible to say that this might have affected the verdict since what might have been

[17] The SCCRC considered the two protectively marked documents (Reference

paras 10.9.1 et seq), as they had also done in 2007. They noted that their request to have the

PMDs declassified had been rejected. The SCCRC were allowed to see the PMDs. The

SCCRC observe that they could have applied to the court for an order requiring Police

Scotland, who had the documents, to disclose them (1995 Act s 194I). They did not do so,

apparently on the basis that the application would have been opposed either by Police

Scotland or the UK Government. The SCCRC describe the material in the PMDs as

secondary hearsay and thus inadmissible. The information could not therefore, of itself,

sustain a reference on non-disclosure grounds. They continued (para 10.9.5):

“One might conclude, however, that the Crown, by not disclosing… that piece of

information, failed in its duty of disclosure and, as a result, deprived the defence the

opportunity of investigating the matter. But even if the [SCCRC] were to draw such

a conclusion – and the [SCCRC] could draw it – the [SCCRC] has no way of knowing

[18] On the basis that it would be speculation to reach any view on such investigations,

the SCCRC did not consider that the non-disclosure of the PMDs met the real possibility of a

different verdict test. In that respect, they reached a different view from that which they had

held in 2007, when they did refer the case on this ground. The SCCRC went on to question

why the Crown had not investigated the matter on the basis that “it ought to have been

obvious… that the crucial piece of information in the [PMDs] would, if correct, strengthen

the defence case”. Upon inquiry from the SCCRC, the Crown 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”. It was “at best, curious”.

“The [SCCRC] has already ruled out the possibility that this failure may meet the test

for miscarriage of justice by way of non-disclosure. In spite of this, the common law

provides a separate legal framework that may be applicable in this instance.

Particularly if there are questions about the good faith of the authorities in reaching

their decisions on disclosure, the law of oppression may become important…”.

The SCCRC noted that the previous abandoned appeal had a ground based on oppression,

but it had not been suggested that the Crown had acted other than in good faith. Although

the SCCRC regarded the Crown’s approach to the PMDs as prima facie strange, they doubted

whether disclosure would have altered their approach to this ground. However, they added

that there was now another significant piece of in formation in the form of the findings of the

Sandwood report in relation to the CIA cables (supra). Sandwood had concluded that this

issue raised concerns about the Crown’s “conduct and apparent contempt for the rules of

disclosure”. There were, the SCCRC reasoned, parallels with the Crown’s treatment of the

[20] In concluding, the SCCRC observed (para 10.9.17) somewhat cryptically that:

“It strikes the [SCCRC] that those advising the appellants, if in possession of all of

the material available to the [SCCRC], could reasonably elect to frame an arguable

ground of appeal based upon oppression, suggesting that the failure of prosecutors

to disclose materials was systemic [sic] and, potentially, questioning the good faith of

the Crown. Such a ground of appeal could reasonably refer to a number of other

failures of disclosure. The centrepieces, however, would be the materials addressed

in… Sandwood and the [PMDs]. As a result of the continuing restrictions on onward

disclosure of the relevant material, the [SCCRC] is unable at this time to investigate

this matter properly and thereafter to provide any reasoned analysis of the foregoing

The Application to found upon Grounds of Appeal which did not form part of the

[21] There is no difficulty with the court proceeding to hear the first ground of appeal. It

falls squarely within the Statement of Reason for the Reference. In due course, the court will

examine the evidence in relation to Mr Gauci’s purported identification of Mr Megrahi and

his testimony on the date of purchase of the clothing in order to determine whether a

miscarriage has occurred because the verdict is found to be unreasonable.

[22] The second ground of appeal, in so far as it relates to the non-disclosure of

documents which have a bearing on Mr Gauci’s testimony, also presents no problem. The

failure to disclose the documents enumerated in Part A of Ground 2 falls with the Statement

of Reasons for the Reference, with the exception of the Crown precognition of Mr Gauci,

[23] The remaining elements of Ground 2 are problematic because they do not fall within

the terms of the Reference. The primary purpose of an appeal under a Reference from the

SCCRC is to consider whether a miscarriage of justice has occurred for the reasons stated by

the SCCRC in that Reference. The SCCRC do not refer cases in abstract but on specific

grounds which they have considered and determined to be meritorious in the context of

whether a miscarriage of justice may have occurred. They may have rejected other grounds

which they did not consider to merit the court’s attention. They did so in the Statement of

Reasons in relation to the contentions on behalf of Mr Megrahi that: (a) there was a legal

insufficiency of evidence; (b) there was fresh evidence about the installation of the Christmas

lights; (c) the nature and source of the timer fragments were such as to indicate a source

different from the Libyan Government; and (d) the ingestion of the suitcase had been at

[24] As already noted, when allowing grounds, which had not formed part of the

Reference, to be argued in Al Megrahi v HM Advocate 2008 SLT 1008, the court questioned the

desirability of having an unrestricted appeal having regard to the proper use of judicial

resources. It was this which led to section 194(4A) of the 1995 Act. This states that the

grounds of appeal must relate to one or more of the SCCRC’s reasons, unless the court

considers that it in the interests of justice to found the appeal on additional grounds . The

default position is thus to confine any appeal to the grounds in the Reference.

[25] The effect of this is, first, to exclude from consideration any part of Ground of

Appeal 2 which alleges that there was a systematic failure on the part of the Crown to

disclose relevant material as a generality, as distinct from a failure to disclose particular

material. 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

[26] The only ground upon which an appeal against a conviction can succeed is one

which maintains that a miscarriage of justice has occurred (1995 Act s 106(3)). Although

conduct which is oppressive may form part of a ground of appeal, it is not definitive. In

solemn cases, oppression on the part of the Crown tends to be a ground which is used in

connection with pleas in bar of trial or the exclusion of evidence rather than as a basis for a

post-verdict review (Bakhjam v HM Advocate 2018 JC 127, LJG (Carloway), delivering the

opinion of the court, at para [28]). It normally relates to conduct which has resulted in an

identified procedural unfairness which in turn has created a miscarriage of justice.

[27] 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. The questions in a particular case are simply:

(1) whether the Crown failed to disclose a document, or other matter, which fell to be

disclosed as material to the proper preparation or presentation of the defence ( McLeod v

HM Advocate (No 2) 1998 JC 67, LJG (Rodger) at 80); and (2) whether that failure resulted in a

miscarriage of justice by applying the test of whether, had it been disclosed, there was a real

possibility of a different verdict (McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at

para 20). Since systematic failure cannot form the basis of a successful ground of appeal, the

court does not consider that it is the interests of justice to explore the general system which

[28] This also means that consideration of the material in Part D of Ground 2 ought also

to be excluded as relating to the allegation of general system failure. These did not form

part of the Reference and were not regarded as of any materiality in connection with the

assessment of the testimony of Mr Gauci. Similar considerations apply to the material in

Part B. However, 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

The Recovery of the Protectively Marked Documents and their inclusion in Ground 2

[29] The SCCRC were, no doubt correctly, very reticent about revealing the contents of

the PMDs in their new Statement of Reasons; as they had been in the 2007 Reference. It is

reasonable to conclude from the description of the PMDs in the new Reference, and the

content of the new Public Interest Immunity certificate which was produced shortly after the

Procedural Hearing with which this opinion is concerned, that they are documents

emanating from an agency of a foreign state. Beyond that, the court does not know what

they contain or what their significance might be in the context of the non-disclosure ground

of appeal. The abandoned appeal had contained a ground based upon the PMDs and they

had formed part of the 2007 Reference. Although they are not part of the present Reference,

the SCCRC has commented on their inability to reach a final view on the matter because

they were hampered in their ability to investigate the information in the PMDs.

[30] On 29 May 2008, the court, which had allowed unrestricted grounds of appeal

following upon the 2007 Reference, ordered the production of the PMDs to the court. It had

planned to assign “closed sessions” to decide upon whether the PII certificate should be

overruled and thus that PMDs should be disclosed to the appellant and be available for

consideration in the appeal. This procedure would have involved submissions from the

Advocate General, on behalf of the Secretary of State for Foreign and Commonwealth

Affairs, and the respondent. The interests of the appellant would be looked after by a

special counsel. Although a hearing in camera was fixed for 19 August 2008, a subsequent

interlocutor of 28 November 2008 indicates that no decision had been taken even by then.

That seems to have remained the position at the time when the appeal was abandoned in

[31] The Advocate General has produced a new PII certificate dated 17 August 2020 and

signed by the Foreign Secretary. This states that the Foreign Secretary has considered

whether there is a real risk that disclosure of the PMDs, in whole or in part, would cause

serious harm to the public interest, notably national security and the international relations

of the United Kingdom. The Foreign Secretary states that he has balanced public interest

with that of doing justice in the present proceedings; noting that the ultimate decision is one

“8 … 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

9. The documents were provided in confidence to the United Kingdom Government

by another State. Disclosure of the documents would harm the United Kingdom’s

international relations with that State. It would undermine trust in the United

Kingdom of the State whose confidence were disclosed. It would reduce the

willingness of that State (i) to confide information to the United Kingdom, (ii) to co-

operate with the United Kingdom in various fields, including counter-terrorism

liaison. It would raise serious questions in the minds of other Governments around

the world about the confidentiality of their communications with the United

Kingdom Government and therefore their willingness to make such a disclosure

commitment. … [I]t is essential for the conduct of international relations, and for

national security, that other States should be able to communicate with the United

Kingdom Government in the knowledge that those communications will not be

The Foreign Secretary explains that he cannot be more specific in the certificate, since to do

[32] 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 . Only after that hearing can it be

decided whether the PMDs should be disclosed and form part of Ground of Appeal 2.

Meantime, the court will provide a schedule for the hearing of the appeal.

(1) under section 303A of the Criminal Procedure (Scotland) Act 1995, authorise

Ali Abdulbasit Ali Almaqrahi to institute an appeal on behalf of the deceased

(2) under section 194D(4B) of the 1995 Act, allow the appellant to found the

appeal on additional grounds which do not relate to one or more of the reasons

contained in the Statement of Reasons by the SCCRC for making the Reference; these

grounds being non−disclosure of the documents specified in Ground of Appeal 2

(3) refuse the application in relation to Ground 2 Part A para 14 and Part D (in its

entirety); therefore the court will hear Ground 1 and Ground 2 Part A (with the

(4) refuse to allow, as a ground of appeal, those parts of the Note of Appeal

which refer to a "system of disclosure which was not fit for the purpose of ensuring

that all relevant information was identified and disclosed", the absence of a "robust

system of disclosure", a "systemic failure of disclosure; and bad faith on the part of

(5) order the production to the court of the two protectively marked documents

in Part C; appoint a hearing to consider the new PII certificate; and appoint special

counsel to represent the appellant at that hearing; continue meantime the application

(6) appoint: (i) 24 November 2020 and the three following days as the date for the

hearing of the appeal; 16 October 2020 as the date by which the appellant shall lodge

a Case and Argument; (ii) 30 October 2020 as the date by which the respondent shall

lodge a Case and Argument; and 6 November 2020 as the date by which all

productions (including a core bundle if the productions exceed 500 pages), a joint

reading list and a joint list of authorities shall be lodged. ”

Scottish High Court of Justiciary Decisons