07 Feb The Preclusive Effect of the Lockerbie Criminal Convictions
The Lockerbie trials continue to raise interesting issues of international law and practice. The latest wrinkle is whether the criminal conviction of Al-Megrahi by the Lockerbie court can have preclusive effect in the United States pertaining to plaintiffs’ ATA and TVPA claims. In a decision of first impression, a federal district court in Hurst v. Libya ruled that it could. Here is an excerpt:
Plaintiffs have moved for partial summary judgment against Al-Megrahi on the grounds that he has already been convicted by a court of competent jurisdiction of 270 counts of murder and thus that he should be estopped from denying responsibility for the deaths of the decedents. Under the doctrine of offensive collateral estoppel, or issue preclusion, a defendant may be prevented from relitigating identical issues that the defendant litigated and lost against another plaintiff….
As a threshold matter, the court must resolve the question of which law to apply in determining whether to give a foreign conviction preclusive effect. Ordinarily, a federal court applies federal law on claim and issue preclusion in non-diversity cases….. This court agrees with the majority of U.S. courts that have addressed the issue and concludes that it is appropriate to apply federal standards in determining whether to give Al-Megrahi’s conviction preclusive effect….
The remaining question for this court, then, is one of first impression in this circuit: Whether to provide preclusive effect to a foreign criminal judgment in a civil suit. Generally speaking, a “criminal conviction is conclusive proof and operates as an estoppel on the defendants as to the facts supporting the conviction in a subsequent civil action.” Several federal courts have permitted the use of a foreign judgment to estop relitigation of an issue if the judgment satisfies (1) the Hilton requirements for recognition of a foreign judgment and (2) the requirements for collateral estoppel. Although the D.C. Circuit has not reached the precise question of whether issue preclusion doctrine is applicable in a civil suit based on a foreign criminal judgment, it has applied a variant of the doctrine based on a foreign conviction in an administrative proceeding…. In Donnelly, the D.C. Circuit only approved of the use of a foreign criminal conviction to satisfy the lower standard of substantial evidence, not the higher burden of preponderance of the evidence. However, the reasoning of the Donnelly decision–applying the principles of Hilton and estoppel–is equally apropos here. Thus, the court will proceed to determine whether the judgment meets the requirements for recognition of a foreign judgment and issue preclusion….
The system under which Al-Megrahi was tried was based upon long-standing traditions of international and Scottish law and was designed pursuant to an agreement with the United States and Libya. He was given a full and fair trial in which he litigated the central fact sought to be used against him here–his central role in the Lockerbie bombing–and it would not be unjust to use his conviction to estop his denial of that fact. With preclusive effect afforded to the facts surrounding Al-Megrahi’s responsibility for the deaths of the 270 victims, Al-Megrahi is unable to provide evidence that would permit a reasonable jury to find in his favor. Accordingly, the court grants partial summary judgment in favor of Plaintiffs on the issue of whether Al-Megrahi is responsible for the deaths … which resulted from Al-Megrahi’s role in the terrorist attack on Pan Am Flight 103.
My gut reaction in reviewing the decision is that it is well-reasoned and makes sense. My only question would be whether the notion of mutuality/non-mutuality should have been given consideration. With civil litigation we can protect the non-prevailing party against the full impact of an adverse foreign judgment by rejecting the use of non-mutual collateral estoppel. But with a criminal conviction it would appear that the court is using the Lockerbie conviction for the benefit of all victims of the crime, without regard to any notion of non-mutuality. I say this as one who is not a criminal law expert, so perhaps others can provide insights about the nexus between criminal convictions and their preclusive effect in civil litigation.
The other interesting aspect of the case is that to the extent one views the Lockerbie trial of Al-Megrahi as a criminal conviction before an international tribunal, then this case has ramifications for our understanding of precisely how a federal court should give “respectful consideration” to judgments of international tribunals. As I have argued in this article, it is rare for a federal court to adopt a Hilton v. Guyot-style foreign judgment model to decisions of international tribunals. But it appears that is precisely the approach adopted by the Hurst court.
Professor Alford, I note that you have been far from positive about this (‘to the extent one views’), but is it not a bit far-fetched to think of the court in Her Majesty’s Advocate v. Al Megrahi as an international court? That court was, of course, the Scottish ‘High Court of Justiciary at Camp Zeist’ (see the appeals judgment here and a preliminary, i.e. pre-trial decision here). While it was certainly highly unusual, to say the least, for a Scottish court to sit outside Scotland, it would appear that the agreement between Libya, the UK and the US which gave rise to this extraordinary course of events accepted Scottish jurisdiction, and only modified its exercise, in terms of the place of the proceedings, and the absence of a jury. In all other matters, the proceedings were as Scottish as any held in the High Court building in Edinburgh, and Mr Al Megrahi was, as a matter of course, sent to a prison in Scotland following conviction. It might be said that the arrangement agreed between the three States was not particularly sensible, but reason would seem to have played less of a role than a simple desire to preserve the… Read more »
Tobias,
Yes I agree with you. I think the better argument is that the Lockerbie court was not an international tribunal, but a highly unusual Scottish criminal court proceeding. That’s why I qualified my comment as you noted. But some have described the Lockerbie trials as a hybrid version of an international tribunal.
Roger Alford