Lord Justice General

Lord Kingarth

Lord Wheatley

[2008] HCJAC68

Appeal No: XC524/07













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.