NETHERLANDS: 'A spectacular miscarriage of justice'

Issue 

BY NORM DIXON

The terrible miscarriage of justice perpetrated on January 31, 2001 — when three Scottish judges in a juryless court pronounced Libyan citizen Abdelbaset Ali Mohmed al Megrahi guilty of the murder of 270 people in the December 21, 1988 Lockerbie air disaster — has been compounded by the rejection of Megrahi's appeal on March 14.

The appeal was heard in a special court in the Netherlands, presided over by five Scottish law lords. The judges dismissed the appeal unanimously despite hearing fresh evidence that further discredited the original judges' tenuous verdict.

Lawyers for Megrahi urged that the appeal judges overrule the guilty verdict because the prosecution had not proved beyond reasonable doubt that Megrahi had anything to do with planting the bomb that destroyed Pan American Airlines flight 103 over the Scottish town of Lockerbie.

The trial judges had uncritically accepted prosecution evidence that claimed to show that it was Megrahi, who was Libyan Arab Airlines' security chief at Malta's Luqa airport and a Libyan intelligence officer, had purchased clothing of the same type as forensics experts determined had been in the bag that contained the bomb.

The trial judges also accepted the prosecution's contention that Megrahi had, in some unexplained way, succeeded in having the unaccompanied bomb-laded suitcase transferred from Malta, via Frankfurt, to London's Heathrow airport, where it was loaded onto the plane.

Megrahi was convicted even though he was never positively identified as the purchaser of the clothing, and there was evidence that the items had been purchased on a day that Megrahi was not even in Malta.

'Reliable' witness

After the prosecution's "star witness", a Libyan CIA informer, was exposed on the witness stand as an outrageous liar and withdrawn, the state fell back on the testimony of Tony Gauci, the owner of Mary's House clothes shop in Malta, to convict Megrahi. At this point, every legal observer expected the court to acquit Megrahi

However, the trial judges in their final decision stated that Gauci's identification of Megrahi as the purchaser was "reliable" and "a highly important element in this case".

Just how "reliable" can be gauged by the fact that Gauci identified at least three different people as the possible purchaser before police nudged him to focus on Megrahi in 1991. One of the men he identified earlier was Abu Talb, a member of a Syrian-backed Palestinian group jailed in Sweden in 1989 for terrorist bombings.

In the shopkeeper's first interviews with police in September 1989, he described the purchaser as being "six feet or more" tall, well-built and about 50 years old. This description did not fit Megrahi, who is only is 5' 8" tall, of medium build and was 36 years old in December 1988.

On February 15, 1991, police showed Gauci 12 photos. He told police that all the men in the photos were younger than the purchaser. The police pressed Gauci to "allow for any age difference" and look again. He pointed to a photo and said it "resembles the man who bought the clothing... Of all the photographs I have been shown, this photograph is the only one really similar to the man who bought the clothing, if he is a bit older, other than the one my brother showed me [of Abu Talb]". The photograph was Megrahi's 1986 passport photo.

In 1998, Gauci approached police with a photo from a magazine article that named Megrahi as a suspect in the Lockerbie disaster. He told police that the photo of Megrahi "looks like the man" he sold clothes to.

On August 13, 1999, Gauci picked Megrahi from an identification parade, using the words: "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 [sic] is number 5".

At the trial, Gauci pointed to Megrahi and said he "resembles him a lot".

In their verdict, the trial judges admitted that Gauci "never made what could be described as an absolutely positive identification". They defended Gauci's "identification" with the incredible statement: "There are situations where a careful witness who will not commit himself beyond saying that there is a close resemblance can be regarded as more reliable and convincing in his identification than a witness who maintains that his identification is 100% certain."

Gauci could not state on what date he sold the clothes. On the witness stand, he agreed the date was either November 23 or December 7, 1988. The prosecution insisted it was December 7. The trial judges agreed.

In order to do so, the judges disregarded Gauci's testimony that it was raining when the purchaser entered the shop. They ignored testimony from the nearby Luqa airport's chief meteorologist that it did not rain on December 7, but did so on November 23. The prosecution did not contradict this evidence. This is significant because Megrahi was not in Malta on November 23 and therefore could not have been the buyer.

Last but not least, the trial judges uncritically accepted the prosecution's claim that Megrahi sent the suitcase on a complicated journey from Malta, even though no physical or documentary evidence linked Megrahi to the suitcase or the bomb components, and no evidence was offered to prove that the suitcase began its journey in Malta, let alone that it was Megrahi who sent it. Evidence showed that the suitcase could have more easily been loaded at Frankfurt or Heathrow airports was disregarded.

'Irrational' verdict

Robert Black QC, the highly respected professor of Scottish law at Edinburgh University who devised the concept of holding the trial in a "neutral" third country, told the BBC soon after the original verdict that the prosecution's case as "a very, very weak circumstantial case'.

Black said that for the trial judges to convict Megrahi they had to "adopt the posture of the White Queen in Through the Looking Glass, when she informed Alice, 'Why, sometimes I've believed as many as six impossible things before breakfast'."

In April, Professor Hans Kochler, the international observer appointed by UN secretary-general Koffi Annan, released his report on the trial. He stated that the trial was politically influenced by Washington and the guilty verdict was "arbitrary" and "irrational".

"Seen in its entirety, [the trial] was not fair and was not conducted in an objective manner", Kochler stated. He concluded by saying he hoped "that an appeal ... will correct the deficiencies of the trial".

The January 21 Glasgow Herald reported that Alan Dershowitz, the US famous defence attorney and law professor, had said that he was concerned that "not only had the legal standard of proof beyond a reasonable doubt not been met, but the wrong person may well have been convicted and the real mass murderer may not have been charged".

'Tony Lockerbie'

Two startling developments cast further doubt on the trial result in the months that preceded the appeal hearing.

On September 11, the London Daily Mirror reported that 16 hours before the doomed airliner took off, a padlocked door leading to the Pan Am baggage area at Heathrow airport was forcibly opened with bolt-cutters. Access to the area would have made it possible for someone to steal luggage tags and plant a bag among already x-rayed luggage.

Ray Manly, the guard who discovered the break-in, reported it to the police but it was not investigated before Pan Am 103 departed. The statement he made to police subsequently disappeared, as did the padlock, which was not fingerprinted. Manly was questioned just once, a month after the incident. The breach of security was never mentioned in the trial by the prosecution.

The January 27 Scotland Mail on Sunday revealed that police had regularly taken Gauci and four or five members of his family on lavish trips to Scotland over the past 11 years. He stayed at luxury hotels and enjoyed stays at expensive fishing and ski resorts. Gauci also said that on his first visit he was taken to Lockerbie to view the scene of the Pan Am crash. Usual Scottish police practice is not to show a witness a crime scene as it may influence their subsequent testimony.

The Mail on Sunday investigator found that Gauci, whose nickname in his home town Sliema is "Tony Lockerbie", clearly enjoyed his fame and feeling of importance that came with his association with the Lockerbie trial. Gauci disclosed that the police had to look after him well to keep "a bad man" in jail. He also stated that police took him to Scotland "to check the quality of my statement and make sure I am saying the same things".

Appeal rejected

The appeal judges simply brushed aside the arguments of Megrahi's lawyer. The lords reiterated that Gauci's evidence was "reliable" and "highly important" and again asserted that the magic piece of luggage began its deadly sojourn from Malta — not Frankfurt or Heathrow.

The defence's belief that the break-in at Heathrow showed that the bomb could have entered the plane at Heathrow was dismissed, even though one of the judges, Lord Kenneth Osborne, on February 7 stated during the appeal hearing that he found "it hard to follow" how the original trial judges concluded that the bag with the bomb was able to travel from Malta to London. "There is considerable and quite convincing evidence that could not have happened".

Megrahi will serve his 20-year sentence in Scotland's Barlinnie maximum security prison. The Libyan government has announced that it will take the case to the Scottish legal ombudsman, the Privy Council, the British House of Lords and the European human rights organisation. Robert Black has offered to help Megrahi's defence with further appeals.

Professor Kochler described the decision of the appeal judges as a "spectacular miscarriage of justice" and that the basic principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms "have been violated in the most serious and fundamental way ... in the Lockerbie case".

From Green Left Weekly, April 10, 2002.

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