BBC Scotland lawyer Alistair Bonnington, a member of Glasgow University's Lockerbie trial briefing unit, answers key questions about the case.
BBC Scotland lawyer Alistair Bonnington, a member of Glasgow University's Lockerbie trial briefing unit, answers key questions about the case.
What verdicts can the judges return?
The three Lockerbie judges have open to them three rather than two options as is the case in most legal systems throughout the world. These are guilty, not guilty and not proven.
What is 'not proven'?
This is sometimes described as a halfway house between guilty and not guilty. In fact, a not proven verdict is an acquittal. Like a case where a not guilty verdict is returned the accused cannot be tried a second time for the crime charged.
What happens if the judges return a guilty verdict?
There is only one charge left on the indictment, that of the murder of the 270 victims of the Lockerbie bombing. Under Scots law, anyone found guilty of murder is sentenced to life imprisonment.
If the judges return not proven or not guilty verdicts does the Crown have any grounds for appeal?
The Crown cannot appeal from either a not guilty or a not proven verdict. It could ask the Scottish appeal court to determine an interesting point of law from the trial, but that would not affect the acquittal already recorded.
We have three judges who are also acting as jury. How does this work?
In Scotland, a simple majority of jurors in favour of any one of the three competent verdicts is sufficient in Scotland. Normally an accused can be found guilty if eight out of the 15 jurors vote in favour of that verdict. By analogy only two of the three judges need vote for guilty in the Lockerbie trial for a conviction to result.
What would happen if either of the accused decided to challenge a guilty verdict?
They can appeal to the High Court of Justiciary. The appeal can be against conviction, against sentence or against both. Realistically the only likely appeal in the Lockerbie case is an appeal against conviction.
On what grounds could an appeal be lodged?
The only basis for an appeal under Scots law is that there has been a "miscarriage of justice". That phrase is not defined in statute and the courts have consistently refused to try to produce a definitive judgement of general application. So it is for the Appeal Court to determine the meaning of these words in the circumstances of every appeal case.
What could constitute a miscarriage of justice?
An examination of Scottish appeal cases shows that a miscarriage may occur firstly, where on the merits the appeal judges feel the conviction is unsafe. Concerns about the quantity or quality of the Crown evidence would be an example. Secondly, there can be a procedural miscarriage of justice. In such a case the merits are not necessarily examined. The appeal court examines some alleged procedural irregularity which, if sufficiently serious, may prove fatal to the conviction in the lower court. But by no means every procedural error will lead on to the quashing of a conviction.
It sounds like the appeal court judges have a fair degree of leeway. Is that the case?
Yes, the Scottish system allows the appeal judges a high degree of discretion in determining criminal appeals.
What happens if an appeal is thrown out. Is there a mechanism for a 'final appeal'?
Under the devolution settlement in which Scotland obtained its own parliament, the Judicial Committee of the Privy Council has a supervisory jurisdiction over constitutional matters within the UK. Failure by Scottish ministers to observe the terms of the European Convention on Human Rights can be taken to the Privy Council, which sits in Downing Street, London. It is by no means impossible that the final determination of the Lockerbie case could be made by judges sitting in London just next door to the prime minister's house.
When must an appeal be lodged?
An accused wishing to appeal his conviction must intimate that he intends to appeal to the court and the Crown within two weeks of the date of conviction. This notice of intention to appeal then must be followed within six weeks by the full note of appeal. This second document contains the grounds on which the appeal is based.
Would it not be difficult for the accused to argue against the judges' verdict?
Frequently, in the note of appeal the accused is arguing that the evidence against him was insufficient to justify conviction or that there was some procedural error. The Lockerbie case is peculiar in two respects. Firstly, because there is no jury they often-used ground of appeal that the judge misdirected the jury disappears. However, it would be possible, as in a civil case, for the accused to argue that the judges misdirected themselves in law. Secondly, because the European Convention on Human Rights has been in force as against the lord advocate from the beginning of the Lockerbie trial, human rights points can be raised on appeal.
How is leave to appeal granted?
The procedure is that the case goes to a single judge, who considers the note of appeal in chambers. He is known as the sifting judge, because he sifts out hopeless appeals. If the single judge rejects the appeal after considering the papers, the accused person still has the right to demand that the question of leave to appeal is considered by the full court of three judges. If either the single judge or the full bench of three judges grants leave, then the matter will proceed to a full hearing at a later date.
How many judges would hear the appeal?
Because the trial has been held by three judges, it would be necessary for five judges to hear the full appeal should that proceed. An accused person is guaranteed the right to attend an appeal hearing in Scotland, should they so wish. The Lockerbie case is not peculiar in that regard. The peculiarity, however, is that the accused person(s) will remain in custody at Camp Zeist after conviction if they appeal. The five judges would then travel to Camp Zeist to hold the appeal hearing there.