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Pan Am 103 -Lockerbie Appeal Judgement

AUTHOR:
Lord Justice-General, Lord Kirkwood, Lord Osborne, Lord Macfadyen, Lord Nimmo Smith

TITLE:
Appeal No: C104/01:OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION of ABDELBASET ALI MOHMED AL MEGRAHI Appellant; against HER MAJESTY’S ADVOCATE Respondent:

SOURCE:
The High Court of Justiciary at Camp Zeist

TEXT:

14 March 2002

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Introduction

[1] On 31 January 2001 the appellant was found guilty of a charge of murdering 259 passengers and crew on board Pan American World Airways ("PanAm") flight PA103 from London Heathrow airport to New York and 11 residents of Lockerbie on 21 December 1988. This Opinion is concerned with his appeal against conviction, which was heard at Kamp Van Zeist from 23 January to 14 February 2002.

[2] In view of the length of this Opinion it may helpful if at the outset we set out a list of its contents, by reference to its paragraph numbers, as follows:

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The charge of which the appellant was convicted

[3] The charge narrated that the appellant, having formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants in furtherance of the purposes of Libyan Intelligence Services, while acting in concert with others, did certain acts. These included the purchasing on 7 December 1988 of a quantity of clothing and an umbrella in shop premises known as Mary’s House at Tower Road, Sliema, Malta; entering Malta on 20 December 1988 at Luqa airport while using a passport with the false name of Ahmed Khalifa Abdusamad; residing overnight at the Holiday Inn, Tigne Street, Sliema, using this false identity; and placing or causing to be placed on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport on 21 December 1988 a suitcase containing said clothing and umbrella and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 radio cassette recorder and programmed to be detonated by an electronic timer, having tagged the suitcase or caused it to be tagged so as to be carried by aircraft from Frankfurt am Main Airport via London Heathrow airport to New York. The charge went on to state that the suitcase was thus carried to Frankfurt am Main Airport and there placed on board an aircraft of PanAm flight PA103 and carried to London Heathrow airport and there in turn placed on board an aircraft of PanAm flight PA103 to New York; and that the improvised explosive device detonated and exploded on board the aircraft while in flight near to Lockerbie, whereby the aircraft was destroyed and the wreckage crashed to the ground and the passengers, crew and residents were killed. The appellant’s co-accused, Al Amin Khalifa Fhimah, was acquitted of that charge.

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The general nature of the grounds of appeal

[4] In support of his appeal the appellant has tabled a considerable number of grounds of appeal. At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected certain parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction. A few of the grounds of appeal maintain that the evidence was not of such character, quality or strength to enable a certain conclusion to be drawn or to justify a particular finding. However, the great majority of the grounds are directed to the trial court’s treatment of the evidence and defence submissions. More specifically it is maintained that the trial court misinterpreted evidence, had regard to "collateral issues" and wrongly treated certain factors as supportive of guilt. It is also said that in regard to certain matters it failed to give adequate reasons. In many cases it is maintained that it failed to take proper account of, or have proper regard to, or give proper weight to, or gave insufficient weight to, certain evidence, factors or considerations. It is also maintained that the trial court misunderstood, or failed to deal with, or properly take account of, certain submissions for the defence. In one of the grounds of appeal the appellant seeks to found on the existence and significance of evidence which was not heard at the trial. Before coming to the grounds of appeal in more detail it is convenient for us to deal with two matters of general importance.

The basis of the appeal

[5] Section 106 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") makes provision for a right of appeal against conviction by a jury. Under subsection (3) an appellant may bring under review of the High Court:

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"any alleged miscarriage of justice, which may include such a miscarriage based on —

1. the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned."

In the present case only one of the grounds of appeal seeks to invoke paragraph (a) of section 106 (3). Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b). Accordingly, with the exception of that one ground, the appeal is based on allegations of "miscarriage of justice" within the generality of that expression in subsection (3).

[6] In this case the trial took place before a court of judges sitting without a jury ("the trial court"), constituted under article 5 of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 ("the Order in Council"). Article 5(4) provides:

It is clear that for the purposes of an appeal against the verdict of the trial court, the same provisions apply as in the case of the verdict of a jury, subject to the substitution of references to the trial court in place of references to the jury.

[7] Article 5(6) of the Order in Council provides that in the event of a verdict of guilty:

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In the case of a jury a miscarriage of justice may arise out of a misdirection of the jury by the judge in regard to a matter of law or a matter of fact (as to the latter, see e.g. Crawford v HM Advocate 1999 SCCR 674). The basis for such an appeal requires to be found in the charge to the jury, read along with their verdict. In the case of the trial court there is likewise scope for a conclusion that there has been a miscarriage of justice arising out of a misdirection of law or a misdirection of fact, that is to say a self-misdirection gathered from its written judgment.

[8] It is plain that a trial court could include in its judgment more than strictly "the reasons for the conviction." In the present case it is clear that the trial court included in its judgment not only factual findings and reasoning leading to conviction of the appellant, but also an account of evidence which it had accepted or rejected, the weight attached to certain evidence and the submissions made to it. It is thus possible for this court to know the basis on which the conviction of the appellant was arrived at, and hence it can determine, for example, whether or not the trial court has misdirected itself by misinterpreting evidence or failing to take evidence into account in arriving at its conclusions.

[9] At the outset, Mr Taylor submitted that a miscarriage of justice could be based on the failure of the trial court to give adequate reasons for its conclusions, including reasons of adequate clarity. This appeared to be without regard to whether or not the failure was a failure to comply with article 5 (6) of the Order in Council.

[10] In our opinion this submission was misconceived. It is not sound in principle or supported by authority. There is no ground for thinking that the perceived inadequacy of the reasons expressed by the trial court, whether performing its duty under Article 5 (6) or otherwise, is to be regarded as of itself establishing that it was not entitled to come to a particular conclusion. Mr Taylor referred to Petrovich v Jessop 1990 SCCR 1, in which a conviction for theft by shoplifting was quashed. It is true that the appeal court stated that the magistrate who convicted the appellant must have "stateable and defensible reasons for drawing the inference of guilt", but the point of the decision was that the meagreness of the reasons which he stated for convicting the appellant indicated that he had failed to consider and assess all the relevant evidence which bore on the question of guilt or innocence, including an alternative to guilt, namely that the appellant had simply forgotten to pay. Likewise in Ballantyne v McKinnon 1983 SCCR 97 a conviction was quashed where the sheriff’s account of the evidence did not provide a satisfactory basis for conviction. Reference may also be made to Jordan v Allan 1989 SCCR 202, in which the appeal court held that the findings in fact made by a justice could not be treated as made on the whole evidence as he had not stated whether or not he believed the appellant or what account he took of his evidence. We do not consider that the decision of the European Court of Human Rights in Hadjianastassiou v Greece (1992) 16 EHRR 219 is of assistance. As the Advocate depute pointed out, that case was concerned with a complaint that a denial of access to a finalised judgment within the time limit for the exercise of a right of appeal prejudiced the right of the losing party to "adequate time and facilities for the preparation of his defence".

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[11] Mr Taylor also placed reliance on a number of judgments of the Court of Appeal in Northern Ireland dealing with appeals against the decisions of judges sitting without juries in the so-called "Diplock Courts" in criminal trials under section 2 of the Northern Ireland (Emergency Provisions) Act 1973 and similar successive enactments.

[12] It is important to bear in mind that the question for the Court of Appeal in these cases was whether the conviction was "unsafe or unsatisfactory" in accordance with section 9 of the Criminal Appeal (Northern Ireland) Act 1968, now section 2 of the Criminal Appeal (Northern Ireland) Act 1980 (applying the explanation of that test in R v Cooper [1969] 1 QB 267 at page 271). It cannot be taken that there is a direct correspondence between the result of applying that test and the outcome of applying the Scottish test of a miscarriage of justice. Nevertheless the decisions are of some interest for present purposes since under section 2 (5) of the 1973 Act and the corresponding provisions of succeeding legislation, the judge had the duty to "give a judgment stating the reasons for the conviction."

[13] Mr Taylor founded on the observations of the Court of Appeal in R v Bennett and R v Wilson, both unreported but accessible in [1975] NIJB. However, an examination of the first of these cases shows that what the appeal court did was to examine the reasons given by the trial judge where there was virtually no evidence other than identification evidence and that evidence was contradictory and inconsistent. The true deficiency in that case did not lie in the judge’s reasons but in the evidence which he set out. The Court of Appeal stated (at page 5 of the transcript) that it found the identification evidence to be unsatisfactory in the absence of an adequate explanation by the trial judge. It concluded that it could not accept the evidence of identification as reliable. In the second of these cases the Court of Appeal pointed out that an examination of the reasons given by the trial judge showed that he had simply left out of account a body of exculpatory evidence.

[14] We consider that the Advocate depute was well-founded in submitting that inadequacy of reasons, of itself, did not constitute a misdirection and hence potentially extend the scope of section 106 (3). It might, on the other hand, provide the means by which a misdirection was detected, as in Petrovich v Jessop.

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[15] On the same subject of reasons, it is convenient to refer to a number of observations made by the Court of Appeal in Northern Ireland about the extent to which a judge is expected to explain his decision.

[16] In R v Wilson the court observed (at page 15 of the transcript):

In R v Thompson [1977] NI 74, in referring to the duty of the judge when giving judgment in a trial under the 1973 Act, the Court of Appeal said at page 83:

[17] In R v Thain [1985] NI 457 the Court of Appeal was concerned with the conviction of a soldier who had shot a man whom he had been pursuing. It was maintained in his appeal against conviction that, in reaching his conclusion that he had not shot him in self-defence, the trial judge failed to take into account that there was no easy alternative to hand. The Court of Appeal rejected this criticism. At page 478 Lord Lowry LCJ pointed out that in reaching his conclusion the trial judge must have been well aware, since he had so held, that the appellant did not shoot the deceased in order to effect his arrest. He observed on that page:

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[18] In our view these observations are relevant to a written judgment under article 5 (6) of the Order in Council by which, in similar language, the trial court is required to state "the reasons for the conviction". It is plain that reasons do not require to be detailed; that the trial court does not have to review every fact and argument on either side; and that reasons do not require to be given for every stage in the decision-making process.

[19] Before leaving this subject we would record that Mr Taylor founded on the terms of a report which the trial court provided in accordance with section 113 of the 1995 Act. In that report the trial court states:

Mr Taylor maintained that in these circumstances it could be taken that the trial court had taken the view that any item of evidence or criticism which was not mentioned in the judgment had been regarded by the trial court as not being of material importance. Assuming that this report requires to be read along with the judgment of the trial court, we do not consider that this means that items of evidence or criticisms which are not mentioned in the judgment were either ignored by the trial court or were regarded by it as being of no significance whatsoever. The judgment sets out, inter alia, the evidence which the trial court regarded as being of material importance in supporting the conviction of the appellant, along with criticisms to which that evidence was subjected. In neither case is the account to be understood as going into every detail.

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The function of an appeal court

[20] The second matter of general importance is the proper function of an appeal court in a criminal appeal, particularly where, as in the present case, the decision was that of a court of judges which has provided a written judgment giving the reasons for the conviction.

[21] Mr Taylor accepted that this court was not a court of review in the sense in which that expression is used in regard to civil cases. Thus he accepted that it was not open to this court to review all the evidence which was before the trial court in order to determine for itself whether that court had come to the correct conclusion. On the other hand, he submitted that it was open to this court to review the conclusions reached by the trial court in the light of the evidence which it (the trial court) considered to be material. In this connection he referred to a number of decisions in civil cases in which there was a discussion of the role of an appeal court in regard to reliability of evidence or the proper inference to be drawn from evidence. In Dunn v Dunn’s Trustees 1930 SC 131 Lord President Clyde observed at page 146:

In Duncan v Wilson 1940 SC 221 Lord President Normand at page 224 said:

Mr Taylor also cited a passage in the speech of Lord Reid in Benmax v Austin Motor Company [1955] AC 370 at page 376 where, after referring to the well-known passage in the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 at pages 487-488 (1947 SC(HL) 45 at page 54), he said:

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[22] This raises a fundamental point in regard to the role of the appeal court in criminal cases. It is plain that in the past the appeal court has never taken upon itself the role of resolving issues of fact, any more than the determination of guilt. In Webb v HM Advocate 1927 JC 92, more fully reported in 1927 SLT 631 to which we will refer, the Lord Justice-Clerk (Alness) stated at page 631:

At page 636 Lord Anderson said:

It cannot be doubted that in the case of an appeal against a jury’s verdict of guilty the same applies today. The alterations which have been made in the terms in which the right of appeal is expressed have not changed the role of the appeal court. It is not without significance that what is brought under review by means of a criminal appeal against the jury’s verdict is "any alleged miscarriage of justice", and that if the appellant has satisfied the court that there has been such an injustice the court may exercise its power to quash the conviction. So far, this would not be in conflict with Mr Taylor’s submission. However, his argument was that the fact that the decision to convict had been taken by a trial court which had supplied a written account of its reasons for convicting the appellant changed the position.

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[23] In our opinion this argument is not well founded. The respective roles of the appeal court and the court by which issues of fact are resolved and guilt is determined are not changed by the fact that the normal arrangements have been modified by the Order in Council, and in particular by the requirement that the trial court should deliver a reasoned judgment. While accepting that this court is not a court of review in the sense in which that expression is used in regard to civil cases Mr Taylor failed to recognise the full implications of that acceptance. Putting the matter the other way round, if he were correct that it was, for example, open to this court to review the inferences drawn by the trial court it would not be possible to stop short of the conclusion that this court could in effect substitute its own view of the evidence which was before the trial court, which is plainly wrong.

[24] These considerations are supported by inference from the terms of subsection (3) (b) of section 106 of the 1995 Act. While that provision has not been invoked by the appellant in the present appeal, its terms have a bearing on the scope of review by this court under the section. Subsection (3) (b), where it is invoked, entails that it is for an appellant to show that no reasonable jury could have been satisfied beyond reasonable doubt that the accused was guilty (King v HM Advocate 1999 JC 226). Mr Taylor argued that this provision could not apply to an appeal against the verdict in the present case, because in a jury case, as was plain from the decision in King, the appeal court had to consider the whole evidence which was properly before the jury. This did not make sense where the trial court had clearly rejected certain material evidence. We do not accept this argument. If that provision were invoked it would be for the appeal court to consider whether, having regard to the evidence which was not rejected by the trial court, the verdict was one which no reasonable trial court, properly directing itself, could have returned. It is implicit in this exercise that the assessment of evidence may legitimately give rise to differing views, and that evidence may be rejected simply because it is inconsistent with other evidence. That is the responsibility of those who are charged with the task of reaching conclusions as to what facts are proved (King v HM Advocate at pages 236 G and 238 B).

[25] The Advocate depute submitted, in our view correctly, that if, in order to demonstrate that there was a miscarriage of justice arising from the trial court’s verdict, an appellant had to go the length of showing that no reasonable trial court could have reached that verdict, it made no sense if the appeal court could, by applying a lesser standard in reliance on the general power to review any alleged miscarriage of justice, review the inferences drawn by the trial court or could set aside the trial court’s assessment of the reliability of evidence. In this respect he drew a parallel with the issue which was the subject of decision in Elliott v HM Advocate 1995 JC 95. We have no doubt that, once evidence has been accepted by the trial court, it is for that court to determine what inference or inferences should be drawn from that evidence. If evidence is capable of giving rise to two or more possible inferences, it is for the trial court to decide whether an inference should be drawn and, if so, which inference. If, of course, the appeal court were satisfied that a particular inference drawn by the trial court was not a possible inference, in the sense that the drawing of such an inference was not open to the trial court on the evidence, that would be indicative of a misdirection and the appeal court would require to assess whether or not it had been material.

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[26] We are satisfied that the fact that the trial court delivered a reasoned judgment does not affect the nature and extent of the role of an appeal court in reviewing any alleged miscarriage of justice. The initial question for this court is whether in arriving at its verdict the trial court misdirected itself either in law or as to a matter of fact so that it took a course which is was not entitled to do or failed to do what it should have done. If and to the extent that this has been shown, the further question would be whether a miscarriage of justice has resulted.

[27] As we have already noted, in this appeal it is not maintained that the evidence before the trial court, apart from the evidence which it rejected, was not sufficient as a matter of law to entitle it to convict the appellant. The grounds of appeal, in the main, are concerned with the trial court’s treatment of the evidence and defence submissions. We have also noted that in many of the grounds it is said that the trial court failed to take proper account of, or have proper regard to, or give proper weight to, or gave insufficient weight to, certain evidence, factors or considerations. In the course of this Opinion we will discuss each of the grounds of appeal. However, at this stage we would observe that, for the reasons which we have given above, where it is not said that a trial court has misdirected itself by ignoring something, the amount of weight which should be attached to it is a matter solely for the trial court, and not for the appeal court.

The judgment of the trial court

[28] The written judgment of the trial court, given in accordance with article 5 (6) of the Order in Council, was extensive. It contained 90 paragraphs. As will be seen, many of the issues of fact which were considered in it were not in dispute at the trial, and many of the trial court’s findings in fact are not affected by the grounds of appeal. In order that the matters raised in the grounds of appeal may be understood in their proper context, we propose at this stage to summarise the relevant law and the judgment, with particular reference to the issues with which we are concerned.

[29] At the trial, as in all criminal trials in Scotland, the burden of proving the guilt of the accused lay on the Crown, and so remained throughout the trial. In order to secure a conviction against either accused, the Crown had to succeed in proving his guilt beyond reasonable doubt. Corroboration, that is to say, evidence coming from at least two independent sources, was required to prove the essentials of the Crown case. In the present case these were, in relation to each accused, first, that the crime of murder had been committed and, secondly, that the accused in question was criminally responsible for its commission. Applying these tests, the trial court held that the guilt of the appellant had been proved, but acquitted his co-accused.

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[30] As the trial court explained in para [2] of the judgment, it was not disputed, and was amply proved, that the cause of the disaster was the explosion of a device within the aircraft. Nor was it disputed that the person or persons who were responsible for the deliberate introduction of the explosive device would be guilty of the crime of murder. The matter at issue in the trial therefore was whether or not the Crown had proved beyond reasonable doubt that one or other or both of the accused was responsible, actor or art and part, for the deliberate introduction of the device.

[31] Since the Crown case against both accused was based entirely on circumstantial evidence, it is appropriate at this stage to make reference to the requirements of proof by such evidence, and what approach to it was open to the trial court. The rule that proof of guilt requires corroboration was reaffirmed in Morton v HM Advocate 1938 JC 50. At page 52 the Lord Justice-Clerk (Aitchison), delivering the opinion of the court, described it as a firmly established and inflexible rule of our criminal law that (with certain statutory exceptions) a person cannot be convicted of a crime on the uncorroborated testimony of one witness however credible. On the same page, passages in Baron Hume’s Commentaries on the Law of Scotland Respecting Crimes, vol. ii, pages 383-4, were quoted with approval. In these passages Hume spoke of corroboration of the direct evidence of one witness by that of another, or by circumstantial evidence. He went on to speak of a case where all the evidence was circumstantial. In such a case, he said, it was not to be understood that two witnesses are necessary to establish each particular, "because the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts."

[32] So it was open to the trial court to hold the guilt of the appellant to be proved on the basis of circumstantial evidence coming from at least two independent sources. Before us, the Advocate depute relied on three cases in support of two further propositions which he advanced. The first proposition was that in a circumstantial case it is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself; what matters is the concurrence of testimony. The second was that the nature of circumstantial evidence is such that it may be open to more than one interpretation, and that it was precisely the role of the trial court to decide which interpretation to adopt.

[33] The first case relied upon by the Advocate depute was Little v HM Advocate 1983 JC 16. At page 20 the Lord Justice-General (Emslie), delivering the opinion of the court, referred to an argument for one of the appellants in that case, that "each of the several circumstances founded upon by the Crown was quite neutral", and said:

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[34] The second case was Fox v HM Advocate 1998 JC 94, in which the Crown had relied on circumstantial evidence as affording corroboration of the direct evidence of one witness. In the course of a passage disapproving of the decision in Mackie v HM Advocate 1994 JC 132 that circumstantial evidence is corroborative only if it is more consistent with the direct evidence than with a competing account given by the accused, the Lord Justice-General (Rodger) said at pages 100 -101:

This passage is, in our view, equally applicable where there is no direct evidence and the evidence is wholly circumstantial. In the same case Lord Coulsfield said at page 118:

[35] Thirdly, in Mack v HM Advocate 1999 SCCR 181, the Lord Justice-General (Rodger), in delivering the opinion of the court, said at page 185:

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[36] In our opinion these three cases, and the passages from them which we have quoted, support the propositions advanced by the Advocate depute, with which we did not understand Mr Taylor to take issue. To these passages we would add one from King v HM Advocate 1999 JC 226, a case to which we have previously referred in another context. At page 238 C-D the Lord Justice-General (Rodger), delivering the opinion of the court said:

The same applies to the trial court, which was entitled to reject evidence which was inconsistent with the guilt of the appellant precisely because it was inconsistent with circumstantial evidence pointing to his guilt which it had decided to accept.

[37] Although, as we have said, certain matters were not in dispute before the trial court, nevertheless it heard evidence, and proceeded to make findings in fact, about matters relevant to proof of commission of the crime charged as well as proof of the guilt of the appellant. In paras [3] to [15] the trial court considered the evidence which established that the cause of the disaster was indeed the explosion of a device within the aircraft. It referred to the police operation which led to the recovery of tens of thousands of items of debris which had fallen to the ground, and the examination of some of them by the relevant specialists. It accepted evidence which established that the detonation of an explosive device within the fuselage caused the shattering of an area on the port side of the lower fuselage in the forward cargo bay area, followed by the total disruption and disintegration of the aircraft. The port side forward cargo bay was loaded with luggage in containers. An aluminium container AVE 4041 was situated immediately inboard of and slightly above the shattered area of the fuselage. The trial court accepted evidence that the nature of the damage to the container led to the conclusion that the explosion occurred within the container. There were traces of chemicals used in the manufacture of plastic explosives, including Semtex. Evidence relating to the examination of fragments which showed various signs of explosives damage led to the further conclusion, which the trial court accepted, that the explosion had taken place within a brown hard-shell Samsonite suitcase of the 26" Silhouette 4000 range, which was thereafter referred to as "the primary suitcase". There was evidence also that the primary suitcase had been situated immediately above an American Tourister brand suitcase.

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[38] Examination of other fragments led to the conclusion, which the trial court also accepted, that the explosive device was contained within a Toshiba RT-SF 16 radio cassette player which had been within the primary suitcase. The suitcase also contained, at the time of the explosion, 12 items of clothing and an umbrella. Some of these items were identifiable by labels. This led to enquiries being made in Malta, and in particular a shop called Mary’s House, Tower Road, Sliema, which was a shop run by the Gauci family, Tony Gauci being one of the partners. The trial court accepted evidence from Mr Gauci that he had sold these items to a man, whom he recognised as being a Libyan, in 1988. This led the trial court to state, in para [12]: "We are therefore entirely satisfied that the items of clothing in the primary suitcase were those described by Mr Gauci as having been purchased in Mary’s House." The trial court also stated that it would return to Mr Gauci’s evidence in more detail in connection with the date of the sale and the identification of the purchaser. These issues are the subject of various grounds of appeal, which we will discuss in due course. As we read para [12], however, the trial court accepted Mr Gauci’s evidence that the purchaser was a Libyan, and we did not understand that finding to be the subject of any challenge.

[39] Another crucial item, as the trial court described it, that was found during the search of the debris was a fragment of green coloured circuit board which was extracted from a remnant of a shirt which had been within the primary suitcase. Subsequent enquiries led to identification of this fragment as coming from a timing device known as an MST-13, of a type which had a single-sided circuit board. The fragment originated from an area of the connection pad for an output relay of a circuit board of this type of timer. MST-13 timers were made by a Swiss company, MEBO AG, which in 1985 had its offices in an hotel in Zurich, and was engaged in the design and manufacture of various electronic items.

[40] In para [15] the trial court summarised its findings in fact up to that point in the following terms:

No issue was taken with any part of this passage during the course of the appeal.

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[41] It is convenient at this point to refer to certain findings in fact which were made by the trial court later in the judgment, and which were also not in issue before us. These were derived principally from the evidence of two witnesses, Abdul Majid and Edwin Bollier. Mr Majid had been a member of a Libyan organisation called the Jamahariya Security Organisation ("JSO"), later named the External Security Organisation ("ESO"). The trial court concluded its discussion of his evidence by stating that it was unable to accept him as a credible and reliable witness on any matter except his description of the organisation of the JSO and the personnel involved there. The trial court accordingly accepted his evidence about the organisation of the JSO in 1985, in particular in a passage in para [42] in these terms:

In December 1985 Mr Majid was appointed as assistant to the station manager of Libyan Arab Airlines ("LAA") at Luqa airport. This post, the trial court accepted, was one which was normally filled by a member of the JSO.

[42] Mr Bollier and Erwin Meister formed MEBO in the early 1970s. The trial court found Mr Bollier to be at times an untruthful and at other times an unreliable witness. It did, however, accept certain parts of his evidence. In particular, it accepted that in or about July 1985 on a visit to Tripoli Mr Bollier received a request for electronic timers from Said Rashid or Ezzadin Hinshiri and that he had had military business dealings in relation to the Libyan government with Ezzadin Hinshiri since the early 1980s (para [49]). It also accepted his evidence that he had supplied twenty samples of MST-13 timers to Libya in three batches, and that he may well have been correct when he said that the Libyan order was met with the supply of timers which had circuit boards of both the single-sided and the double-sided types. It accepted that in 1985 he himself delivered five of these samples on a visit to Tripoli, that in the same year he delivered another five to the Libyan Embassy in East Berlin, and that in 1986 he delivered the remaining ten personally in Tripoli (para [50]). It also accepted Mr Bollier’s evidence that he attended tests carried out by the Libyan military in the Libyan desert at Sabha which involved, inter alia, the use of MST-13 timers in connection with explosives and in particular air bombs. He said that the timers were brought by Nassr Ashur. Mr Bollier attended there as a technical expert. The trial court said in para [53]:

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In para [54] the trial court stated:

[43] In para [88] the trial court made findings in fact which were based on such of the evidence of Mr Majid and Mr Bollier as had been accepted, in these terms:

[44] In para [87] findings in fact were also made which, with one exception, were not the subject of challenge in the appeal. The paragraph is in these terms:

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In para [39] the trial court found that the check-in for LAA flight LN147 to Tripoli on 21 December was between 0850 and 0950 hours.

[45] The Crown case against the appellant depended on evidence relating to two matters. The first of these was summarised by the trial court at para [17] of the judgment in these terms:

The second matter relied on by the Crown, to which we shall return in due course, was the identification of the appellant by Mr Gauci as the purchaser of the clothing and the umbrella, and the related issue of the date of the purchase.

[46] As the trial court explained at para [16], consideration of the evidence relating to the provenance of the primary suitcase and the possible ways in which it could have found its way into container AVE 4041 involved consideration of the procedures at various airports through which it might have passed. This started with an account of practices relating to baggage checked in by intending passengers for carriage in aircraft holds. Each item of baggage had attached to it a tag bearing, ordinarily, the name of the airline, or the first airline, on which the passenger was to travel and the destination. Where the journey was to be completed in more than one leg or stage, the tag also carried the name of any intermediate airport. This enabled the baggage handlers at the airport of departure, at any intermediate airport and at the destination to deliver or transfer the item to the correct flight and to return it to the passenger at the final destination. Baggage checked in at the airport of departure was referred to as local origin baggage. Baggage which had to be handled at an intermediate airport was generally referred to as transit baggage. A distinction was normally made between two groups of transit baggage. Online baggage was baggage which arrived at and departed from an intermediate airport on aircraft of the same carrier. Interline baggage arrived on an aircraft of one carrier and departed with a different carrier. Baggage was intended to be carried on the same aircraft as the passenger to whom it belonged, but from time to time baggage was misdirected or delayed and had to be carried on a different flight. Such items were identified by an additional special tag, known as a rush tag, and were normally only sent in response to a request from the destination airport, following a claim made by a passenger for baggage which had not been delivered at the destination. It was normal to take steps to prevent items of baggage travelling on an aircraft unaccompanied by the passenger who had checked them in, unless there was sufficient reason to regard the items as safe.

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[47] Flight PA103 took off from Heathrow shortly before 1830 on 21 December 1988. Before its departure, the aircraft was parked at stand K14. Flight PA103A arrived from Frankfurt at stand K16. Some online baggage was unloaded from flight PA103A, on which it had been carried loose in the hold, into container AVE 4041 at stand K16. The container was then driven directly to stand K14 and loaded into the hold of flight PA103.

[48] The trial court considered evidence relating to the placing of baggage into container AVE 4041 and its movements before it was taken to stand K16. At Heathrow there were a baggage build-up area, where baggage checked in at Heathrow was sent before being taken to the aircraft when it was ready for loading, and the interline shed, which was a separate building, where interline baggage was taken after being removed from incoming flights. After being brought to the outside of the shed, it was carried into it by a conveyor belt. In the interline shed, interline baggage for a PanAm flight was identified, separated from other airline baggage and examined by x-ray before being placed in a container or set aside to await the outgoing flight. On 21 December 1988 John Bedford, a loader-driver employed by PanAm, was working with other persons in the interline shed. He set aside container AVE 4041 to receive interline baggage for flight PA103. The container was identified as the container for that flight by Mr Bedford, who wrote the information on a sheet which was placed in a holder fixed to the container. A number of items were placed in the container. The trial court considered in some detail evidence from Mr Bedford and other witnesses, which led them to accept that Mr Bedford placed a number of suitcases in the container. He then left the interline shed for a time. On his return, two cases had been added to the container. There was a conflict of evidence between Mr Bedford and the x-ray operator, Sulkash Kamboj, an employee of Alert Security, an affiliate company of PanAm, as to how these two cases had come to be added to the container. The trial court preferred the evidence of Mr Bedford that he had been told by Mr Kamboj that the latter had placed them in the container during the former’s absence. The trial court also accepted that in his evidence Mr Bedford adopted a prior statement in which he described one of the two cases as "a brown or maroony-brown hardshell Samsonite-type case". Flight PA103A was a little delayed. Mr Bedford finished work soon after 1700 hours, which was his normal finishing time. To wait for the incoming flight would have taken him beyond his normal finishing time. It was accordingly arranged that he should take the container to the baggage build-up area. Mr Bedford drove the container to a position near the baggage build-up area and left it there. It was from there that it was taken out to stand K16. Container AVE 4041 accordingly contained both baggage which had been placed in it in the interline shed, including the two cases referred to by Mr Bedford, and baggage which was loaded into it from flight PA103A.

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[49] At para [24], the trial court stated:

[50] Before reaching a conclusion about the possibility of the introduction of the primary suitcase into the airline baggage system at Heathrow, the trial court turned to consider the evidence relating to Frankfurt airport. At that airport, PanAm had their own security and baggage handling staff. There was a computer controlled automated baggage handling system. Each item of baggage was placed in an individually numbered tray as it was taken into the system. The trays were placed on conveyor belts and instructions were fed into the computer to identify the flight to which the baggage was to be sent, the position from which the aircraft was to leave and the time of the flight. The trays were dispatched to a waiting area where they circulated until an instruction was fed in to summon the baggage for a particular flight, whereupon the items would be automatically extracted from the waiting area and sent to the departure point. Local origin baggage was received at check-in desks, and passed into the system. Transit baggage was taken to one of two areas, known as V3 and HM, where it was fed into the system at points known as coding stations. There were seven coding stations in V3. The general practice was that baggage from an incoming flight was brought either to HM or to V3 in wagons or containers and would be directed by an employee called the interline writer to one or more of the coding stations. The proper practice was that each coding station should not deal with baggage from more than one incoming flight at a time. Normally there were two employees at each coding station. One would lift the items of baggage from the wagon or container and place each item in a tray. The other would enter into the computer, in a coded form, the flight number and destination for the outgoing flight, taking the information from the tag attached to the item. Records were kept identifying the staff working at particular stations, the arrival times of aircraft, the arrival times of consignments of baggage at HM or V3, and the station or stations to which the baggage from a particular flight was sent. The computer itself retained a record of the items sent through the system so that it was possible, for a limited period, to identify all the items of baggage sent through the system to a particular flight. The computer controlling the baggage handling system contained its own clock, which had a tendency to diverge from real time. It was reset at the start of each day, but by 1600 or 1700 hours the discrepancy might be as much as two or three minutes. Times entered in records not generated by the computer were obtained by the staff from the airport clock or from their own watches.

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[51] PanAm had x-ray equipment at Frankfurt, which was used to x-ray interline baggage. The practice of PanAm at Frankfurt was to carry out a reconciliation between local origin passengers and baggage and online passengers and baggage, to ensure that every such passenger who had baggage on the flight was accounted for, but there was no attempt to reconcile interline passengers and their baggage.

[52] The trial court considered in some detail documentary and other evidence relating to baggage unloaded from flight KM180, and baggage sent for loading onto flight PA103A. Flight KM180 reached its parking position at 1248 hours on 21 December 1988. It was unloaded by employees of the airport authority. According to the record, the unloading took place between 1248 and 1300 hours. Andreas Schreiner, who was in charge of monitoring the arrival of baggage at V3 on that day, recorded on the interline writer’s sheet (production 1092) that one wagon of interline baggage from flight KM180 arrived at V3 at 1301 hours. A coder, Yasar Koca (who was not called as a witness), was working at station 206 in V3. He completed a worksheet (production 1061) which bore to show that one wagon of baggage from flight KM180 was coded at station 206 between 1304 hours and a later time which the trial court held to be 1310. No passenger on flight KM180 had an onward booking from Frankfurt to London or the United States. All the passengers on the flight retrieved their checked-in baggage at their destinations. The Malta documentation for flight KM180 did not record that any unaccompanied baggage was carried. There was, however, evidence from which the trial court inferred that there was an item of baggage which was neither accompanied nor otherwise accounted for. A computer printout (production 1060) relating to baggage sent for loading onto flight PA103A bore to record that an item which had been placed in tray number B8849 was coded at station 206 at 1307 hours and was transferred and delivered to the appropriate gate to be loaded on board flight PA103A. Discussion of this and other evidence, along with the submissions of counsel, led the trial court to state at paras [31] and [35] that there was a plain inference that an unidentified and unaccompanied bag travelled on flight KM180 from Luqa airport to Frankfurt and there was loaded on flight PA103A. Flight PA103A departed for London at 1653 hours.

[53] The trial court then turned to consideration of evidence relating to Luqa airport. After a description of the arrangements for baggage there, it stated, in para [38]: "On the face of them, these arrangements seem to make it extremely difficult for an unaccompanied and unidentified bag to be shipped on a flight out of Luqa." After reference to the evidence of Wilfred Borg, the Air Malta general manager for ground operations at the time, the trial court stated: "Mr Borg conceded that it might not be impossible that a bag could be introduced undetected but said that whether it was probable was another matter." The check-in for flight KM180 opened at 0815 and closed at 0915 hours, and the doors of the aircraft were closed for departure at 0938 hours. At para [39] the trial court referred to documentary evidence which showed that there was no discrepancy in respect of baggage loaded onto the flight, the flight log and the load plan each showing that 55 items of baggage were loaded. It went on to state:

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[54] At para [40] the trial court turned to consideration of what evidence there was to establish any involvement on the part of either or both of the accused. In relation to the appellant, it stated that there were three important witnesses, Mr Majid, Mr Bollier and Mr Gauci. We have already referred to the trial court’s treatment of the evidence of Mr Majid and Mr Bollier. In discussing Mr Gauci’s evidence, at para [55] the trial court referred to an identification by Mr Gauci of the appellant at an identification parade on 13 April 1999 (not 13 August 1999, as stated by the trial court), using the words as written in the parade report: "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." Number 5 in the parade was the appellant. In court, Mr Gauci identified the appellant, saying: "He is the man on this side. He resembles him a lot." The trial court then turned to consideration of various issues bearing on the reliability of these identifications, which included a discussion of statements made and descriptions given by Mr Gauci on a number of previous occasions, as well as evidence given by him in court. This led in turn to consideration of a number of issues, which included the month in which and the day of the week on which the purchase from Mr Gauci was made, the weather at the time of the purchase, whether Christmas decorations had been put up in Tower Road, Sliema at that time, and a statement by Mr Gauci that his brother Paul (who was not called as a witness) did not work in the shop on that particular afternoon because he had gone home to watch a football match on television. After discussion of these issues, the trial court reached the conclusion, at para [67], that the date of purchase was Wednesday 7 December 1988. After further discussion of the reliability of Mr Gauci’s identification of the appellant, including reference to his demeanour when giving evidence, the trial court stated, at para [69], that it was "satisfied that his identification so far as it went of the [appellant] as the purchaser was reliable and should be treated as a highly important element in this case."

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[55] At para [70] the trial court referred to a notice lodged by each of the accused prior to the start of the trial, in identical terms, which was treated as a special defence of incrimination. As it observed, this notice did not in any way affect the burden of proof. There was no onus on the defence to prove that any of the persons referred to in the schedule to the notice were the perpetrators of the alleged offence. Its sole purpose was to give notice to the Crown prior to the start of the trial as to the possible effect of evidence which the defence might lead in the course of the trial. The only persons incriminated in the schedule to the notice to whom reference requires to be made were: "1. Members of the Palestinian Popular Struggle Front ["PPSF"] which may include Mohammed Abo Talb… 2. Members of the Popular Front for the Liberation of Palestine — General Command ["PFLP—GC"]." The trial court considered evidence relating to the PFLP-GC and the PPSF, of the latter of which Abo Talb was a member, as part of their consideration of the Crown case against each of the accused. It is clear from the discussion of this evidence that it did not lead the trial court to have a reasonable doubt about the guilt of the appellant (and it was not because of this evidence that the appellant’s co-accused was acquitted). No issue arises in this appeal as to the trial court’s treatment of this evidence.

[56] Because the terms of para [82] of the judgment were subjected to differing interpretations by counsel in the course of the appeal, we think it appropriate to quote it in full:

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[57] In considering the evidence which could be regarded as implicating either or both of the accused, the trial court bore in mind that the evidence against each of them had to be considered separately, and that before either could be convicted it would have to be satisfied beyond reasonable doubt as to his guilt and that evidence from a single source would be insufficient. After considering the evidence against the second accused, it expressed the opinion that there was insufficient corroboration for any inference that might be drawn from certain entries in his 1988 diary. Accordingly he fell to be acquitted.

[58] The trial court then turned to the case against the appellant. Since it had not been proved that the second accused was a party to the crime, it followed that the entries in his diary could not be used against the appellant and the members of the court put that matter entirely out of their minds. The trial court then went on to consider evidence to which we have already referred relating to the appellant’s visits to Malta from 7 to 9 December 1988, using his own passport, and on 20 and 21 December 1988, using the passport in the name of Abdusamad. It then referred to the identification evidence of Mr Gauci, the appellant’s position in the JSO, his involvement with Mr Bollier and a number of other matters. These included the appellant’s departure for Tripoli on the morning of 21 December "at or about the time the device must have been planted." It may be noted that elsewhere the trial court found that check-in for flight KM180 was from 0815 to 0915 hours, while check-in for flight LN147, on which the appellant travelled, was between 0850 and 0950 hours. In para [89] the trial court concluded with, inter alia, this statement:

The provenance of the primary suitcase

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[59] It was plainly an essential part of the Crown case that the primary suitcase containing the clothing and umbrella purchased at Mary’s House, Tower Road, Sliema, Malta, and the improvised explosive device, and appropriately tagged, was placed on board Air Malta flight KM180 from Luqa airport in Malta to Frankfurt am Main airport; that it then passed through Frankfurt airport, where it was placed on board PanAm flight PA103A, and that it was thus carried to London Heathrow airport, where, in turn, it was placed on board flight PA103 to New York.

[60] It is evident from numerous grounds of appeal that they focus, in different ways, on the several stages of the journey just described. In the interests of clarity, it is convenient to categorise them according to the stage or stages of the journey to which they relate and further, by reference to subject matter.

The Frankfurt evidence

[61] In regard to Frankfurt airport, a number of matters require to be considered. These are:

(i) the accuracy of Frankfurt airport records;

(ii) the interpretation of those records by the trial court;

(iii) the possible alternative explanations for the bag carried in tray B8849;

(v) the loading of baggage at Frankfurt airport on to flight PA103A; and

The accuracy of records

[62] This matter is the subject of the criticisms of the decision of the trial court focused in grounds of appeal B1 (a), (b) and (c), B1 (d) (iii), B2 (i), and C, in part. Grounds of appeal B1 (a), (b) and (c) are in the following terms:

1. No such presumption could be applied to coders’ worksheets (production 1061) in circumstances where portions thereof were illegible and where there was evidence that the times shown on those records could have been taken from a variety of sources and the author of the entries of relevance was not called as a witness to explain them or the practice he followed at work. Nor could it be applied to the computer printout (production 1060) since the evidence was that the time shown therein was prone to inaccuracy.

[63] In support of these particular grounds of appeal, Mr Taylor submitted that the trial court had erred in its approach to the evidence relating to Frankfurt airport and that the finding made in para [35] of the trial court’s judgment that an unaccompanied item of baggage travelled from Luqa to Frankfurt on flight KM180 and was there loaded on to flight PA103A was not supported on a proper view of the evidence. It was not the case that the appellant was simply submitting that the trial court should have taken a different view of the evidence. It was rather that the trial court had erred and that its errors had influenced it in making material judgments adverse to the appellant. The court had applied a presumption of accuracy in respect of airport business records relating to Frankfurt airport. Such a presumption was not applicable in a criminal case. While a "presumption of regularity" had been referred to, and taken into account, in criminal cases in limited circumstances, no presumption of accuracy of business records had been applied in any previous criminal case in Scotland. It was only in relation to acts of official or administrative bodies, where the matter in issue had not been challenged in cross-examination, that a presumption of accuracy had been taken into account. Neither of these factors applied in the present case. The Crown had not founded on any presumption, nor had it founded on any special status attaching to the documents by virtue of section 279 of, and Schedule 8 to, the 1995 Act. In any event, the basis on which the trial court had applied this presumption was flawed. In developing these submissions, Mr Taylor referred to the matters set forth in para [29] of the judgment. He drew attention to the contents of the interline writer’s sheet, production 1092. He also drew attention to production 1061, a worksheet completed by a coder purporting to record the coding of baggage from flight KM180, which had been carried out at coding station 206 in area V3. There was an issue concerning the interpretation of this document. He also drew attention to a computer printout, production 1060, generated on the initiative of Mrs Bogomira Erac, a computer programmer at Frankfurt airport. This document was discussed by the trial court in para [30] of its judgment. It was evident that the trial court had taken into account a presumption of accuracy of these records of Frankfurt airport "in order to allow it to reinforce the inference and overcome defence submissions which were based on the evidence in the case. In effect, in having regard to this presumption, the court cast a burden on the defence to satisfy the court that the records were not accurate." It was evident from the terms of para [32] that the trial court had applied a presumption. In that paragraph, it said: "The records were records regularly kept for the purposes of the airport business, and can be accepted in the absence of some reason to doubt their accuracy." The terms of that sentence, it was submitted, went beyond the drawing of an inference of fact from evidence.

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[64] In support of his submissions Mr Taylor drew attention to McIlhargey v Herron 1972 JC 38, Valentine v McPhail 1986 SCCR 321, Pickard v Carmichael 1995 SCCR 76 and Donaldson v Valentine 1996 SCCR 374, cases which demonstrated that in certain circumstances the court in criminal matters had had regard to a presumption of regularity. However, that process was limited to acts of an official or administrative nature. Such a presumption, it was submitted, could be relied upon only where the matter in issue was unchallenged in evidence. That meant that it could not be relied upon in the present case where there was active controversy relating to the matters in question. Further, the trial court had claimed that the records involved in the present case had been "regularly kept"; that was said to be demonstrably erroneous.

[65] Mr Taylor went on to seek to derive assistance from a number of other authorities. These included Alison, Principles and Practice of the Law of Scotland, ii, 599, Dickson on Evidence, third edition, paras 114 and 1225 and Walkers on Evidence, first edition, pages 54 to 55. Reference was also made to Erskine’s Institute of the Law of Scotland, as relied upon in Dickson.

[66] Mr Taylor next submitted that, even if the presumption which had been relied upon was generally applicable in criminal cases, it was not applicable in the particular circumstances of this case. In para [32] of the judgment the trial court made certain observations about the computer clock at Frankfurt airport. It stated that "there was an interest in accurate time-keeping since one of the purposes of keeping records was to be able to trace baggage consignments through the system". The trial court appeared there to take the view that these circumstances rendered the presumption applicable. He then referred to passages of evidence concerning the accuracy of the computer clock, the practice of coders and related matters, including evidence of Mrs Erac, Mehmet Candar, Joachim Koscha, Andreas Schreiner and Gunther Kasteleiner. It appeared that while the coders were, no doubt, told to be accurate in their work, the evidence was that they did not always succeed in this.

[67] Mr Taylor next made submissions in support of ground of appeal B1 (b). In this connection he drew attention to features of production 1061, image 100. There was a major problem in regard to the legibility of the time recorded as that of completion of coding of the baggage from KM180. The only witness who was asked to interpret the document, Mr Schreiner, interline writer, had been unable to make out the correct time. Yasar Koca, the man who made the entry in this document, did not give evidence. The result of that was that the time of the completion of the coding was uncertain. In addition the coder's method of time ascertainment was unknown. In these circumstances it was impossible to apply any presumption of accuracy. Such evidence as there was concerning methods of time ascertainment by coders came from Mr Koscha. He indicated that they might use their own watches or the coding hall clocks. That meant that errors could not be excluded. In regard to the computer printout, production 1060, Mrs Erac testified that the computer could be set at the start of each day by means of the use of a variety of other clocks. Accordingly the times which it recorded had been potentially inaccurate. Furthermore, the trial court had failed to recognise the importance of the fact that Mr Koca had not been adduced as a witness. Against that background the trial court should have been very slow to conclude that tray B8849 contained a bag from flight KM180. The trial court, while recognising that state of affairs, had not responded to the submissions made to it regarding its implications. On that basis it could be criticised, as appeared from Caledonia North Sea Ltd v London Bridge Engineering Ltd 2000 SLT 1123.

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[68] Mr Taylor next made submissions in support of ground of appeal B1 (c). It had been the appellant’s submission to the trial court that there had been demonstrated "omissions, mistakes and examples of records being completed out of sequence", as appeared from the evidence of Mr Koscha. He had acknowledged that mistakes had been made, that entries were not always chronological and that coders might forget timeously to complete entries and make them later. In para [33], the trial court itself referred to a number of instances in which the records showed that there were small discrepancies in the commencing and finishing times entered for coding particular consignments. This showed that baggage from more than one flight might have been coded at the same station at the same time. It was therefore difficult to understand why the trial court felt that it was permissible to apply a presumption of accuracy to the material entries. The records had not been regularly kept, in the sense of being accurately kept. This contrasted with the circumstances referred to in Dickson on Evidence, II, para 1225 of the compilation of mercantile and business books with care for the purpose of preserving a true record of transactions. Regularity was a pre-requisite of admissibility of evidence. In the circumstances the trial court had not been entitled to apply any presumption. In support of his contention concerning the unreliability of the records of Frankfurt airport, Mr Taylor drew attention to a number of examples of demonstrable inaccuracy in production 1061. Even the entry immediately preceding the crucial entry for flight KM180 was itself erroneous. The Crown could gain no comfort from the circumstances relating to the baggage of Karen Noonan and Patricia Coyle, elicited from Mr Kasteleiner. Those circumstances could cast no light upon the accuracy of the records made by the coder Koca at coding station 206. The mere fact that others might have done their jobs properly did not help the court to decide whether or not he had done so. Mr Taylor went on to make a number of further detailed submissions based on the evidence before the trial court, which he argued demonstrated the unreliability of the documentary records at Frankfurt.

[69] The Advocate depute in reply observed that the essential criticism of the trial court was that it had erred in law by applying a presumption of accuracy. He submitted that, when the reasons of the trial court were properly understood, it was plain that no such presumption had been applied by it. He argued that that became clear if the basis upon which the evidence concerned had been admitted was recognised and when the approach of the trial court to it was examined. The evidence had been recorded in a number of different types of document generated at Frankfurt airport. Most of the evidence given about these documents had been taken from witnesses who were not themselves their authors. In order that this documentary material might be admitted in evidence, the Crown had relied upon section 279 of, and Schedule 8 to, the 1995 Act. Paras 2 to 6 of the Schedule were concerned with the admissibility of evidence in the form of a statement as to fact contained within business documents. If the conditions specified in para 2 were satisfied, the statement as to fact contained within the document was rendered admissible as evidence. This did not necessarily mean that it provided conclusive proof of the fact. The condition set out in para 2(1)(b) could be satisfied by a certificate, as provided for by para 4. Otherwise the satisfaction of the conditions required to be established by direct evidence or by inference drawn from evidence. The underlying philosophy of these provisions was the recognition that, in view of the circumstances in which such documents were made, they were likely to be sufficiently reliable as to be an adequate substitute for oral evidence. The effect of these statutory provisions was that the content of the documents was rendered admissible as evidence. It then would fall to be assessed by the court in the same way as any other evidence. In particular the court would no doubt take into consideration the procedures in any particular business with a view to deciding the extent to which it could rely upon evidence so admitted.

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[70] In the circumstances of the present case, it had been clear from a very early stage that the Crown was intending to rely on records rendered admissible by these provisions. During the evidence of Wilfred Borg an objection had been taken to the admissibility of the documentary evidence which had been put to him. The objection related to the adequacy of the certification of the document concerned. After discussion, this objection had been repelled. Thereafter, there had been no further objection to the admissibility of any of the airport documentation. Nothing had been said in the closing submissions on behalf of the appellant to suggest that any individual document had failed to satisfy the tests set out in para 2(1) of Schedule 8.

[71] The Advocate depute next turned to examine the way in which he contended the trial court had treated the evidence concerned. He argued that, in considering the meaning to be attributed to the sentence concerning record keeping in para [32] of the judgment, it was necessary to look more generally at what the trial court said. In para [17], having correctly described the nature of the Crown case, the trial court observed that:

This demonstrated that the trial court had understood that it had to assess the evidence and that no question of any presumption arose. It had then gone on to examine the evidence that might vouch the inference. In paras [26] to [30] it provided a description of the procedures operated at the material time at Frankfurt airport and an explanation of the contents of the relevant documentary productions. The question for the trial court was whether or not it could draw an inference that an item of baggage which had come to Frankfurt on flight KM180 had been transferred to and left on flight PA103A. It did not appear to be disputed that, if the documentary evidence at Frankfurt was examined at face value, it appeared to show the transfer of an item of baggage from KM180 to PA103A. The question for the trial court had been whether or not that was an inference that could be drawn and whether or not that inference could be regarded as reliable.

[72] It was evident, the Advocate depute submitted, from the terms of para [33] that it adopted that approach. In that paragraph the trial court marshalled the various points of criticism of the reliability of the Frankfurt records that had been advanced. It specifically recognised that errors could exist. Having done so, it expressed itself in a fashion that was entirely inconsistent with the application of any legal presumption; the recognition of the possibility of error was inconsistent with the adoption of such a presumption. The sentence in para [32], to which such importance had been attributed by the appellant, had to be read in the context of the trial court’s description of the way in which it had approached the documentation at Frankfurt. In paras [33] and [34] it had given detailed consideration to the various points put before it concerning the documentary records, so far as relevant. In para [35] it had expressed its conclusion as to the weight to be given to the various points which had been made, which included the suggestion that baggage from some other source than KM180 was being processed at station 206 at the material time. Having regard to the way in which the trial court had expressed itself, it was apparent that it had properly understood the nature of the evidence concerned and had assessed that evidence in an appropriate way, namely, by looking at it in the way that it would look at any other evidence. It therefore followed that the criticism made in ground of appeal B1 (a) failed. Since paragraphs (b) and (c) presupposed that a presumption such as was mentioned in paragraph (a) had been relied upon, they also were unsound. Furthermore, it had to be recognised that none of the particular conclusions which were reached by the trial court had been criticised against the criterion provided by section 106 (3) (b) of the 1995 Act in these particular grounds of appeal.

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[73] The criticisms of the approach of the trial court proceed upon the basis that in para [32] the trial court applied a "presumption of accuracy" in respect of documentary records from Frankfurt airport, in circumstances where no such presumption was applicable. This contention was based almost exclusively upon that part of para [32] which is in these terms: "The records were records regularly kept for the purposes of the airport business, and can be accepted in the absence of some reason to doubt their accuracy." In assessing the validity of this criticism, in our opinion, it is necessary to look at the evidential background to the matter and to see how the trial court did in fact treat the documentary records relating to events at Frankfurt airport. First of all, it appears to us clear that the documentary records had been rendered admissible in evidence under the provisions of section 279 of, and Schedule 8 to, the 1995 Act. While at an early stage in the trial proceedings, objection had been taken to the admission of certain documentary evidence relating to events at Luqa airport, after discussion of the issue it had been recognised that the point taken had been misconceived and the objection had been repelled. Thereafter, during the course of the trial, documentary evidence from airports, and in particular Frankfurt airport, was treated as admissible under the terms of paragraph 2(1) of Schedule 8 to the 1995 Act. It is worth observing that in the present appeal there is no suggestion that the documentary evidence was wrongly treated as admissible. In these circumstances, the statements made in the documentary material were a source of evidence which fell to be evaluated in the same way as any other evidence in the case.

[74] As to the treatment of that evidence by the trial court, we note that in paras [26] to [28] the trial court describes the operation of the baggage control system at Frankfurt at the material time. In paras [29] and [30] it deals in detail with the particular events at Frankfurt which are crucial in this case. It there examines the contents of productions 1092 and 1061, which have already been mentioned. In para [30] the trial court considers the significance of production 1060, the computer printout generated by Mrs Erac. In these two paragraphs the court narrates what the documents bear to record. In para [31] the trial court expresses its view as to the inference which may be drawn from the documentary evidence as a whole. In para [32] it deals specifically with a range of criticisms of the reliability of the documentary evidence relating to Frankfurt which had been advanced on behalf of the appellant. In addition, it explains why it was not persuaded that those criticisms undermined confidence in the evidence. It is in this context that the trial court makes the observation concerning the records which is now the focus of the appellant’s criticism. In these circumstances, we consider that that sentence does not possess the significance sought to be attributed to it by the appellant. It appears to us to be an observation that the records were regularly kept for the purposes of the airport business, which we understand to mean no more than that it was an established part of the procedures followed at the airport at the material time that such records should be kept. In saying that those records could be accepted in the absence of some reason to doubt their accuracy, we consider that the trial court was simply saying that they could properly be regarded as reliable unless some specific reason existed to doubt their reliability. We consider that these statements by the trial court are no more than the expression of a conventional approach to documentary evidence rendered admissible in any case. For these reasons, we consider that the submission that the trial court applied a "presumption of accuracy" is unfounded.

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[75] As we have noted earlier, Mr Taylor for the appellant relied upon the cases of McIlhargey v Herron, Valentine v McPhail, Pickard v Carmichael and Donaldson v Valentine. These were all criminal cases in which issues arose as to whether certain inferences of fact could properly be made in the circumstances of the facts found established. We do not see them as laying down any general principles of the kind contended for. Nor do we find the passage from Alison relied upon by the appellant of any assistance in the circumstances of this case. It is concerned with certain categories of records which, unlike records of courts, do not prove themselves. However, where section 279 of, and Schedule 8 to, the 1995 Act apply, rendering documentary material admissible as evidence, the passage does not appear to us to assist. The passage from Dickson on Evidence para 114 appears to us to deal with a presumption which was not relied upon by the trial court in this case. As regards the passage at para 1225, we do not consider it to be of assistance, dealing as it does with issues of admissibility, as opposed to the weight which may properly be given to documentary evidence which has been established to be admissible. The passage in Walkers on Evidence, first edition, at pages 33-34, deals in our opinion with a presumption relating to business books, on which the trial court did not rely.

[76] In the course of argument on these grounds of appeal, from time to time, it was contended that in relation to certain matters of detail, the trial court had erred, was wrong, or had not adopted a proper view of the evidence. Having regard to what we have already said concerning the extent to which this court is entitled to interfere with a decision of fact by the trial court, we do not regard these criticisms as relevantly formulated. In these circumstances we reject grounds of appeal B1 (a), (b) and (c).

[77] We consider next the criticisms in grounds of appeal B1 (d) (iii) and B2 (i), which possess essentially the same subject matter. These grounds are in the following terms:

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[78] In support of these grounds of appeal, Mr Taylor referred to the submissions which he had made on this matter before the trial court. He drew attention to the problem that, even if the coders were faithfully checking their watches, it was difficult to be sure that they were using an accurate time source. The evidence of Mrs Erac was that, while she set the time in the computer system at the beginning of each day, once again the time reference was unknown. On account of the characteristics of the computer, by 1600 or 1700 hours the computer time might have varied by two to three minutes from real time. If the computer clock on 21 December 1988 at around 1300 hours had departed from real time by more than three minutes, that in itself would undermine the inference that tray B8849 carried a bag from flight KM180. Before the trial court, Mr Taylor had given examples illustrating this point. While he recognised that it was true that the scope for error had been reduced by the fact that the time recorded for the coding of the bag (1307 hours) was in the middle of the period recorded for the coding of baggage from flight KM180 at station 206, that did not mean that the risk was completely eliminated. He submitted that because of this the trial court’s approach to this matter was flawed. If error had taken effect in the way contemplated in his illustrations, the bag in tray B8849 could not have come from flight KM180, but would have come from flight LH1498, which, according to production 1061, image 100, had been coded between 1257 and 1303 hours on that day. There was also a significant possibility that luggage from flight LH669 had been being coded at the material time.

[79] Turning to ground of appeal B2 (i), Mr Taylor drew attention to para [35] of the judgment. The evidential basis for this ground of appeal had already been discussed. Mr Schreiner and Mr Candar had both given evidence concerning inaccuracies in the times used in coding. The trial court had not given proper weight to the possibility that errors in time recording had undermined the inference which the Crown sought to draw. Had the trial court done so, it would have been unable to reach the view expressed in para [35]. When challenged, Mr Taylor submitted that this formulation was appropriate in the context where a trial court had given reasons for its decision, and that it would not have been appropriate had there been a trial by jury. The trial court had brushed to one side all of the criticisms made of documentation and record keeping at Frankfurt.

[80] In reply to these submissions, the Advocate depute submitted that ground of appeal B1 (d) (iii) as formulated related solely to the weight of the evidence; it was claimed that the trial court had failed to have "proper regard" to certain inaccuracies. However, it was plain from the judgment of the trial court that it had been well aware of the criticisms made on behalf of the appellant which were founded on these inaccuracies. It had taken them into account when it had reached its conclusion. Accordingly, in these circumstances, this ground of appeal provided no proper basis for interference by an appeal court. The weight given to the evidence could have founded an appeal only if the appellant had sought to contend, in reliance on section 106 (3) (b) of the 1995 Act, that no reasonable trial court properly directing itself could have returned a verdict of guilty. This had not been done. It could not be said that the trial court had merely noted the submissions, but otherwise ignored them. In the light of para [32], it was clear that it had had regard to the possibilities of error as to time. The Crown’s primary position was that, the appellant not having based this ground of appeal on section 106 (3) (b) of the 1995 Act, there was no need for this court to consider a review of the evidence on the matter. However, the Advocate depute contended that, if such a review were conducted, it would be clear that the trial court had been quite entitled to deal with the matter in the way in which it had done; its approach to the matter had been a reasonable one. The point made in the last sentence of para [32] regarding the centrality of the time of coding of the relevant bag by reference to the period of time attributed to the coding of baggage from flight KM180 was a sound one. In addition, if one were to accept that the period of coding of baggage from flight KM180 ran between 1304 and 1316 hours, instead of 1310 hours, a possible reading of the relevant record, on the day in question, then there would be an even greater margin for the coding of the bag, unless one were to hold that other baggage had been coded at the same time, of which there was no record.

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[81] The Advocate depute submitted that it appeared that the appellant was seeking to demonstrate, either that the system at Frankfurt as a whole was incapable of providing sufficiently accurate information reliably to track the source of a particular item of luggage, or that the way in which the system was operated was compromised by the practices of employees. Evidence relating to the accuracy of the computer printout had been given by Mrs Erac. She said that, by 1600 or 1700 hours on any particular day, the time difference between the computer clock and real time might be two or three minutes. It was also pertinent to take into account the evidence of Mr Koscha, who explained the use made of coders’ worksheets. His evidence showed that the task of tracing an item of baggage from a coding station by the use of such records was commonplace. It could reasonably be inferred from this evidence that the system itself was capable of effectively performing the task expected of it. For example, it had been used by the appellant to demonstrate that a bag from flight LH1071 from Warsaw had been transferred through the baggage system to flight PA103A. It was also used to demonstrate the transfer of baggage from flight LH631 from Kuwait. Thus, in these two respects, the appellant himself had relied upon the accuracy of the system. In that context it was interesting to note that the bag from Warsaw and the bags from Kuwait had been processed about an hour and a half and two and a half hours after the bags from flight KM180. If the appellant’s point relating to the computer clock were correct, it ought to mean that the records would become less reliable as the day wore on. A further example of how the appellant’s general attack on the reliability of the system was unfounded came from the evidence relating to the baggage of passengers Karen Noonan and Patricia Coyle. They had travelled on flight LH1453 from Vienna to Frankfurt, where they had boarded flight PA103A. They had five pieces of luggage. Apart from the bag which appeared to have come from flight KM180, the computer printout of ingested baggage for flight PA103A showed that five other items of luggage had been processed in hall V3, as appeared from the evidence of Mr Kasteleiner. The computer printout showed that three of the five pieces were coded at station S0012 and the remaining two at station S0011 at times when the relevant coders’ worksheets showed that those two stations were processing baggage from flight LH1453. The remains of all of these five items of baggage were recovered from around Lockerbie. The fact that that baggage could be successfully traced through the documentation was of importance, since those items had been processed in the same hall as the baggage from flight KM180 had been, about half an hour earlier. The trial court had not thought fit to mention this particular evidence, but there was no obligation upon it to mention all of the evidence which was of significance.

[82] As regards the possibility that the system was compromised by the practices of employees, while it emerged from the evidence that errors or inaccuracies could be demonstrated on the face of some of the documentation, no attempt had been made to suggest that any deficiency or inaccuracy existed in the worksheet records relating to flight KM180. Much of the criticism which had been directed against the operation of the system had been based upon speculation. Against this background, it could be said that the trial court had properly understood the evidence and had been entitled to reach the conclusion which it did in para [32].

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[83] In regard to ground of appeal B2 (i) the Advocate depute pointed out that the ground was framed using the words "the court failed to have proper regard" to certain matters and that it had erred in reaching the conclusion which it did in para [35] of the judgment. In this connection, the Advocate depute repeated the criticism of the formulation of this ground which he had made in relation to ground B1 (d) (iii). He also reiterated the points made concerning the evidence in relation to ground of appeal B1 (d) (iii). In addition to those points, the Advocate depute referred to the evidence of Mr Koscha, which showed that even the coding of single items of luggage was recorded. That explained why in the case of some records, no finishing time for coding was recorded.

[84] In our opinion, it is important to recognise the terms in which these two grounds of appeal have been framed. Ground B1 (d) (iii) contains the words "The court failed to have proper regard to" the inaccuracies there mentioned. In ground B2 (i), it is said that "the court failed to have proper regard to the inaccuracy" of the records there mentioned. In our view, these particular formulations do not recognise the proper role of an appeal court, whether or not it had been provided with a statement of the reasons for the conviction of an appellant. It is not our function to substitute our own conclusions on the evidence for those of the trial court. The weight which it attached to different pieces of evidence, and in particular the importance which it attributed to the alleged shortcomings of the records kept at Frankfurt airport was, in our opinion, a matter for it. Only if the trial court adopted a view which no reasonable trial court could have adopted would we be entitled to interfere. However, that is not an issue in this ground of appeal, as we have already explained. Accordingly, in these circumstances, we do not consider that these grounds of appeal have been relevantly framed. In that matter therefore we agree with the submission made by the Advocate depute.

[85] It is quite plain from what the trial court says in para [32] that it took into account the possibility of the various errors founded upon by the appellant and reached its own conclusion upon the matter. Accordingly it cannot be said to have ignored the evidence or its implications. Looking at the evidence to which our attention was drawn, we are satisfied that the trial court was entitled to take the view which it did. In this respect, two aspects of the evidence impressed us as pointing towards that conclusion. The first of these is reflected in the last sentence of para [32], where it is observed that the suspect case was recorded as being coded in the middle of the time attributed to baggage from flight KM180, so that the possible significance of such errors as were founded upon is reduced. It appears to us that this point is rendered the stronger, if anything, by acknowledgement of the possibility that the end point in time of the coding of that baggage might be taken to be 1316 hours. The Advocate depute indicated that he was content to proceed upon that basis. If that is done, the margin of comfort as regards the effect of inaccuracies is enhanced.

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[86] In addition, the trial court had before it evidence in relation to the baggage of passengers Karen Noonan and Patricia Coyle. The fact that they flew from Vienna to Frankfurt on flight LH1453 was the subject of agreement by joint minute. They had between them five pieces of baggage, all of which were checked in at Vienna. The computer printout of ingested baggage for flight PA103A shows that five items of baggage were processed in hall V3. Three of those pieces were coded at station S0012 between 1239 and 1241 hours and the remaining two pieces were coded at station S0011 between 1240 and 1241 hours on the day in question. According to the coders’ worksheets, between these times each of those two stations was processing baggage from flight LH1453. The remains of these five items of luggage were recovered around the crash site. It appears to us that the submission by the Advocate depute, based on this and other material, that the documentary records compiled at Frankfurt could be used for the purpose of tracking baggage and that the results obtained could be relied upon, was well founded. In any event, in our opinion, the trial court was quite entitled in the light of such material to take that view. In all these circumstances we regard these grounds of appeal as without merit.

[87] We consider next the criticism of the trial court’s approach focused in ground of appeal C. That gr