Lockerbie appeal: High Court refuses to order recovery of secure documents



Lord Carloway
Lord Carloway

The High Court of Justiciary has refused to order the recovery of two protectively marked documents (PMDs) by the legal team appealing the conviction of the late Abdelbaset al-Megrahi following a recommendation by the Scottish Criminal Cases Review Commission.

The documents were ordered to be produced to the court for review following previous proceedings in August 2020. The appellant sought to use the PMDs in Part C of the note of appeal, in which they argued that the documents referred to the possibility of other parties having timers of the type used in the Lockerbie bombing.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Woolman.

Palestinian involvement

Mr Megrahi was convicted of the bombing in 2001 and died in 2012 from cancer following his release on compassionate grounds. During the trial, the court heard evidence relating to the source of the MEBO MST-13 timer used in the detonation of the bomb. The timer had been part of a batch of identical timers delivered to the Libyan security organisation that Mr Megrahi worked for.

The court said at the time that it could not exclude the possibility that other times had been made by MEBO and supplied to other parties, but there was no positive evidence of this. In particular, there was no evidence that any timers had made their way into the hands of the PFLP-GC, a Palestinian organisation that operated in West Germany at least up until October 1988 that had been planning to carry out bombings on aeroplanes.

In 2007, following the conviction of Mr Megrahi, but before his death, two documents came to the attention of his agents following the original SCCRC reference. After a member of the Commission viewed the documents, a positive decision was made by the Crown not to disclose them on the basis that they did not require to do so.

The reason for this decision was that it had never been the Crown’s position that the MST-13 timers were not supplied by the Libyan intelligence services to any other party or that only the Libyan intelligence services were in possession of the timers. The Commission concluded that the decision not to disclose one of the documents indicated that a miscarriage of justice may have occurred. Mr Megrahi later abandoned this appeal.

After the second SCCRC reference in 2020, the Commission viewed the documents again. The Crown told the Commission that they had contacted officials of a foreign authority who had told them the information in the relevant PMD was incorrect.

It was later reported in the press, and in a book written by the former Scottish Justice Secretary Kenny MacAskill, that one of the documents was a letter to the Prime Minister from the King of Jordan which said that Palestinians were involved and the PFLP-GC were responsible.

Lack of adverse reaction

The Foreign Secretary believed disclosure of the documents would cause real harm to the international relations and national security of the UK. However, the Advocate Depute was in favour of disclosure to the appellant. It was submitted that nothing in the document went beyond the evidence that had been disclosed to the defence at trial, in particular a statement given to the FBI by Marwan Khreesat to which the defence had access.

It was further submitted that the lack of adverse reaction when, amongst other publications, Mr MacAskill’s book had referred to the existence of a document from Jordan was a mitigating factor to the concerns of the UK government. These submissions were also adopted by the appellant.

Within the knowledge of the defence

Delivering the opinion of the court, Lord Carloway began by considering the national security issues, saying: “There is force in the Advocate Depute’s submission that much of the material in the second document was explored during the course of the trial and thus in the public domain. Nevertheless, these considerations have not led the court to hold that the minister’s view is unreasonable or that it proceeds on an erroneous basis.”

He continued: “The court therefore accepts that disclosure of the PMDs would cause real harm to the United Kingdom’s international relations. It would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states. That is a matter of considerable importance to be placed in the balance.”

Assessing whether a miscarriage of justice could have occurred, he said: “Questions of who, or what organisation or state, was ultimately behind the explosion, in the sense of identifying the originators of the decision to destroy a civilian aircraft, or what other persons may have been involved in the planning or preparatory processes, are not necessarily of direct relevance to whether Mr Megrahi was involved.”

Lord Carloway said of the contents of the second document: “Its content was, or at least ought to have been, within the knowledge of the defence at the time of the trial. The material was either public knowledge, part of the Autumn Leaves documentation and/or ascertainable from Marwan Khreesat’s statement and/or precognition. On this basis, it could not form part of a successful non-disclosure appeal.”

He said of the first document: “The first document contains what is correctly described by the SCCRC as secondary hearsay and, as such would have been inadmissible as evidence. To be more accurate, it is the hearsay of a person to whom a second person had reported certain things which must in turn have been reported to him by third parties. The ultimate source of the information is unknown. That in itself may not be conclusive.”

Lord Carloway concluded: “Having regard to the nature and content of the two documents, notably the fact that most of it was already known to the defence, and that which was not would neither have been of use to the defence nor would it have been adduced by the defence, and balancing the very limited value of that content with the danger to the public interest as set out in the public interest immunity certificate, the court will refuse to order recovery of the protectively marked documents.”

For these reasons, the court ruled that Part C of Ground 2 of the Note of Appeal could not form part of the appeal. It was also noted that disclosure of the documents in a redacted form would not be of any assistance to the appellant. The appeal continues.

© Scottish Legal News Ltd 2021



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