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By Alistair Bonnington
BBC Scotland solicitor
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The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the conviction of Megrahi back to the High Court will doubtless be misinterpreted by many.
I will try to deal here with what from past experience will be the common mistakes.
BASIS FOR APPEAL
Firstly, although the commission can refer a case back to the High Court, it is up to the convicted person's lawyers to lodge papers with the court forming the basis for the appeal hearing.
In this connection, it should be noted that the appellant is not restricted to
arguing only those points on which the commission made its decision to refer the case back to the High Court.
SCCRC VIEWS IRRELEVANT
Similarly, although the High Court is aware of the commission's decision and its terms, the judges hearing the appeal do not necessarily take the commission's views into account at all.
What they decide the appeal upon is the submissions they hear from the appellant's counsel and from the advocate depute in reply.
In particular, they are not bound in any way by the commission's views as to the admissibility of fresh evidence.
It may be that the commission takes the view that some new evidence should be heard, but the High Court takes a different view and refuses to admit it.
QUESTION FOR THE HIGH COURT
All Scottish criminal appeals are determined on one question alone, namely "Has there been a miscarriage of justice?"
The Appeal Court will take the view that there has been a miscarriage if:
- there was a serious procedural irregularity
- there was a serious error in the application of evidential law
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they have heard new additional evidence which they hold to be material and which, in their view, would have affected the outcome of the trial had it been known at the time of trial
But the Appeal Court does not second-guess the views of the trial judges on the credibility and reliability of evidence in general and witnesses in particular.
The assessment of evidence was a matter for the trial court alone.
Given that, when the first appeal was heard at Kamp Van Zeist, Counsel for the appellant, Megrahi, conceded that there was sufficient evidence before the court to convict Megrahi, it will be difficult for Megrahi to argue otherwise at this second appeal.
ARE ALL ACQUITTED INNOCENT?
Finally, it is perhaps worth pointing out that there seems to be widespread naïve confusion about the actual guilt or innocence of individuals tried before criminal courts.
In Scotland, as in many other countries, a high standard of proof must be reached by the prosecution before an accused person will be convicted of a crime.
That standard is 'beyond reasonable doubt'.
It is not, however, beyond all doubt or beyond any possible doubt.
To achieve that standard, it would be necessary to have two eye-witnesses to every stage of commission of the alleged offence - something which is completely impossible, particularly in murder cases where the most material witness or witnesses are dead.
So, regrettably but inevitably it follows that not all people convicted of criminal offences actually committed them.
Hopefully, the percentage of wrongly convicted persons will be infinitesimally small.
But, on the other side of the coin, many of those who are acquitted of criminal charges, either at trial or on appeal, will in fact be guilty of having committed these offences.
CIVIL LAW LIABILITY
Applying a lower standard of proof, such as that used by our civil courts, namely "on the balance of probabilities", such people will often be found liable in damages.
In this way, a motorist acquitted of a criminal charge of careless or reckless driving may nevertheless be found liable in civil law and have to pay compensation to the other party.
REPAYMENT OF DAMAGES
It follows that it is quite wrong to say that, were Megrahi to be acquitted on this second appeal, it would follow that the damages paid to the relatives of the victims of the bomb placed on board Pan Am Flight 103 would have to be repaid.
Nor would it be the case that the damages paid by the Libyan Government in America would have to be repaid.
These are separate issues which could be litigated upon separately in due course.
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