Scotland: Review rejects key Lockerbie 'evidence'

July 14, 2007

The Scottish Criminal Cases Review Commission (SCCRC) ruled on June 28 that the 2001 conviction of Libyan citizen Abdelbaset Ali Mohmed al Megrahi — sentenced to 27 years' jail for allegedly bombing Pan Am flight 103, which exploded over the Scottish town of Lockerbie on December 21, 1988, killing 270 people — "may have suffered a miscarriage of justice". The SCCRC referred al Megrahi's case to Scotland's appeal court.

According to the commission's chairperson, Graham Forbes, the SCCRC's three-year, £1.1 million inquiry, resulting in a still-secret 800-page report, made its decision based on "new evidence we have found and new evidence that was not before the trial court". The commission interviewed 45 witnesses. That new evidence further discredits the testimony of the prosecution's key witness, Maltese shopkeeper Tony Gauci.

The original trial was held in the Netherlands but conducted according to Scottish law and presided over by three Scottish judges, known as law lords. The location was the result of an agreement between Libya and the US and British governments that finally allowed the trial to be heard in a "neutral" third country after a 10-year deadlock.

In their 2001 judgement, the law lords found that, despite "uncertainties and qualifications", "there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused [al Megrahi]". According to the lords, the prosecution's evidence convinced them that al Megrahi, Libyan Arab Airlines' security chief at Malta's Luqa airport, had purchased distinctive items of clothing from Gauci's shop, Mary's House, in Sliema, Malta, that matched those that forensics experts had determined were in a Samsonite suitcase that contained the bomb that destroyed Pan Am 103.

The lords accepted that al Megrahi had somehow succeeded in having the unaccompanied "item of baggage" loaded onto an Air Malta flight to Frankfurt, where it was transferred to a second flight to London before being eventually loaded onto the doomed aircraft (no evidence of how this was achieved was presented). They dismissed alternative, simpler and more plausible scenarios that the bomb was put aboard at Frankfurt or London.

Tortuous path

At the time of al Megrahi's conviction, respected legal observers — including the official UN observer at the trial, Hans Koechler, and Robert Black, the highly respected professor of Scottish law at Edinburgh University who first suggested the plan for a third country trial — were amazed that the law lords so readily accepted Gauci's partial and contradictory "identification" of al Megrahi as the person who had purchased the clothes. The prosecution's circumstantial, speculative and convoluted case, and the judges' guilty verdict, hinged largely on the shopkeeper's testimony.

In their verdict, the judges stated: "We are … satisfied that [Gauci's] identification so far as it went of [al Megrahi] as the purchaser was reliable and should be treated as a highly important element in this case." However, the tortuous path Gauci's "identification" of al Megrahi alone should have ruled out a verdict that al Megrahi was guilty "beyond a reasonable doubt".

Gauci was first interviewed by police on September 1, 1989, and described the purchaser as being "six feet or more" in height and well built. On September 13, he told police the man was about 50 years old. Megrahi is five feet, eight inches tall, of medium build and was 36 years old in December 1988.

On September 14, 1989, Gauci was shown 19 photos and identified a man as being "similar" to the purchaser but added that the purchaser was 20 years older. The identified man's photo — who was not al Megrahi — was included because police thought he resembled an artist's impression and an identikit portrait based on Gauci's description. On September 26, Gauci viewed more photos and pointed out another man. On August 31, 1990, Gauci was shown 24 photos and pointed out a man who, he said, had a face and hair like the purchaser. It was not al Megrahi.

On December 6, 1989, and again on September 10, 1990, Gauci was shown photos but did not identify anybody. Included were photos of Abu Talb, a Palestinian jailed in Sweden in 1989 for terrorist bombings. But Gauci told the 2001 trial that in late 1989 or early 1990 his brother had shown him a newspaper article about Lockerbie which included a photo of a man with the word "bomber" printed across it. Gauci said he thought it was either the man that bought the clothes from him or resembled him. The man was Abu Talb.

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 the man "resembles the man who bought the clothing … of all the photographs I have been shown, this photograph, eight, 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]." Photograph eight was al Megrahi's 1986 passport photo.

Towards the end of 1998 or the beginning of 1999, Gauci approached police after he was shown a magazine article about the Lockerbie disaster which named al Megrahi as a suspect. He told police that the photo of al Megrahi in the article "looks like the man" he sold clothes to.

On August 13, 2000, Gauci picked out al Megrahi from an identification parade with 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 al Megrahi and said he "resembles him a lot".

In their verdict, the judges admitted that Gauci "never made what could be described as an absolutely positive identification". The judges defended their assessment of 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 was also unclear as to when the items were purchased. On the witness stand in 2001, he agreed the date was either November 23 or December 7, 1988. The prosecution insisted it was December 7 and, in the verdict, the judges did too.

However, in his statements to police and in his testimony at the trial Gauci said that it had been, or was, raining when the purchaser entered the shop. The nearby Luqa airport's chief meteorologist testified that it did not rain on December 7, but did so on November 23. Gauci's brother had stated that the purchaser had entered the store while he was away at a soccer match, which definitely took place on November 23. The date was decisive because al Megrahi was not in Malta on November 23. However, Abu Talb, the convicted bomber first "identified" by Gauci, may have been.

New evidence

According to the SCCRC's June 28 summary of its main findings, "there is no reasonable basis in the [2001] trial court's judgment for its conclusion that the purchase of the items … took place on 7 December 1988". The SCCRC found that "new evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in the area of Sliema in which Mary's House is situated … taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates the purchase of the items took place prior to 6 December 1988 [when Xmas lights were illuminated] … it indicates that the purchase took place at a time when there was no evidence at trial that [al Megrahi] was in Malta."

The SCCRC also reported that additional evidence, not made available to al Megrahi's defence lawyers, showed that "four days prior to the identification parade at which Mr Gauci picked out [al Megrahi], he saw a photograph of [al Megrahi] in a magazine linking him to the bombing … evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of [al Megrahi] …"

Without providing details, the SCCRC also cited "other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of [al Megrahi] as the purchaser and the trial court's finding as to the date of the purchase".

Jim Swire, a spokesperson for a significant group of victims' families, said he hoped that the SCCRC decision and the subsequent court appeal, which may not be heard for more than a year, would open "a new chapter" in the search for the truth about the Lockerbie disaster. "I went into that court in Holland [in 2001] thinking I was going to see the trial of those who were responsible for the murder of my daughter", he told BBC Radio on June 29. "I came out thinking [al Megrahi] had been framed."

While the SCCRC upheld al Megrahi's defence lawyers' misgivings about the reliability of Gauci's evidence, it rejected most of the other grounds for an appeal presented by the defence. These included evidence that British and US authorities had planted and tampered with crucial evidence to implicate al Megrahi and Libya, rather than a German-based cell of the Popular Front for the Liberation of Palestine — General Command (PFLP-GC) — a group Abu Talb was associated with.

For more than a year, US, Scottish and British investigators were convinced that the Syrian-based PFLP-GC was the prime suspect. In October 1990, Washington and London suddenly began pointing the finger at Libya and started unearthing "evidence" out of the blue to justify this. It coincided with the US military build-up in the Persian Gulf following Iraq's invasion of Kuwait. In 1991, two Libyans — including al Megrahi — were formally indicted.

What changed between 1988 and 1991? Syrian dictator Hafiz Assad was an enthusiastic participant and key US ally in the 1991 Gulf War against Iraq, whereas Libya's leader Muammar Qadhafi opposed the war and campaigned for a peaceful settlement.

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