Correction note December 8: "Gauci’s actual height" becomes "Megrahi's actual height"
I haven't added to this site or to Lockerbie studies since early 2011, off looking into allegations behind the Libya campaign, similar in Syria, and other places. This was, like many things, a passing intense interest, with only a mild long-term investment. Though Syria has really caught my attention solidly from 2012 to now, I tend to dig in, figure out, move on to figure out other things. It all adds up over time. And I do revisit things sometimes...
But as the 30th anniversary of the bombing of Pan Am 103 draws near, I was approached by the well-read Kevin Bannon to publish this essay on Abdelbaset al-Megrahi's conviction. It seems like a solid an informative analysis, focusing on the central identification evidence of the compromised and malleable star witness Tony Gauci. Of course this is not the only serious weakness in the case, but perhaps the most important one. And it's really, really weak.
Bannon's analysis of trial transcripts and other available evidence covers the issues thoroughly, adding some details I wasn't aware of, especially regarding the extremely flawed legal defense Mr. Megrahi received at the 2000 trial, and at what was then a first and only appeal in 2002. This becomes a second focus of the essay, with the flawed defense "laid bare" in its failure to tear Gauci's testimony apart like it really deserved.
After losing the appeal, Megrahi would have been doomed but for a new law in Scotland, allowing a second appeal under circumstances he was deemed to meet. He was pursuing this into 2009 - with new counsel and a new strategy - when cancer and unclear agreements entered the picture. Something disputed in that mix led Megrahi to abandon his promising appeal, and led Scottish authorities to set the "Lockerbie bomber' free. He was flown home to Libya to live his final 33 months (not 3 as predicted) amid celebrations, then the chaos of Libya's "humanitarian" ruination in 2011.
This is where I first stopped poring over this case so many others like my old colleague Morag Kerr (whose book is amazing, and well-illustrated), and Kevin Bannon here, have covered so well. I felt more needed elsewhere, but the struggle for proper justice continues. As the UN trial observer Dr Hans Köchler is cited explaining below, Megrahi was never given a fair trial, in large part because he lacked effective defense counsel. We can't say just what caused it, be it simple ineptitude or some level of conspiracy, but the defense was demonstratably flawed in some very serious ways. Certainly, with a case this important to the UK and US governments, and also this fragile and deeply-flawed, the stakes and likelihood of somehow compromising the judges and/or the defense should be seen as high enough to really wonder about. They certainly got to Tony Gauci, for one. But that's my own thought. Now I turn it over to one of those still on the case, for the details.
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How Abdelbaset Ali Mohmed al-Megrahi became convicted
of the 1988 Lockerbie bombing
By Kevin Bannon
Contents:
The bombing
Identification of al-Megrahi
From indictment to conviction
Supplementary evidence
A defence laid bare
The appeal
Petty cash and big money
Metamorphosis of testimony
A miscarriage
Postscript
The bombing
On 21st December 1988 a bomb exploded in the baggage hold of Pan Am Flight 103, a Heathrow-JFK bound Boeing 747, killing all 259 passengers and crew, plus 11 more people in the town of Lockerbie, Scotland where the largest part of the aircraft crashed. This was the biggest ever mass-murder in British modern peacetime history while the 190 American fatalities represented the largest number of US civilians murdered in a single peacetime incident prior to 9/11.
The aircraft exploded 31,000 feet above remote, mostly open countryside just after 7 pm in mid-winter creating a debris field of 850 square miles; ‘the largest crime scene in the history of law enforcement’ according to an FBI investigator.[1] Despite the challenges, within days, investigators found residues of high explosive on aircraft debris. They subsequently discovered that a radio/cassette recorder had enclosed the bomb device, which had been carried in a brown, Samsonite suitcase placed in the aircraft’s baggage hold. Fragments of clothing deemed to have been inside this suitcase were also found. In the scorched remains of a ‘Slalom’ brand shirt, investigators discovered a tiny piece of the bomb’s timing device, eventually identified as one of a batch of timers said to have been be supplied to Libya by a Swiss company. Surviving brand labels on clothing fragments were then sourced to a garment factory in Malta and their batch numbers appeared to link them to a clothing shop in Sliema, a suburb of the island nation’s capital, Valetta.
Identification of al-Megrahi
Nine months after the bombing, in September 1989, police investigators interviewed Maltese shopkeeper Tony Gauci for the first time. When they showed him photographs of clothing fragments found around Lockerbie, he remembered several such items being purchased from his shop nine months previously, by a customer with a Libyan accent. The police were particularly impressed when Gauci recalled that the customer was six feet tall and that it had been raining at the time of the purchase, prompting the man to buy an umbrella.[2] In interviews stretching over a year or more, Gauci reiterated that the man was aged about 50 and that the purchase had taken place in late November 1988, before the local Christmas street decorations were in place.[3]
Gauci helped the police build up a picture of the purchaser’s appearance with the assistance of both an artist’s drawing and a photo-fit. Over several subsequent months he was shown a succession of photo-spreads of men resembling the one he described, each including incidental pictures of potential suspects.
On 15th February 1991, Gauci inspected a card showing passport-type photographs of 12 men of similar, general appearance - one of which was of a Libyan of interest to police (see illustration; the photos were numbered left to right).[4]
[1] Richard A. Marquise, Scotbomb: Evidence and the Lockerbie Investigation (Algora, New York 2006) p. 19.
[2] Ashton, John ‘Megrahi: you are my jury. The Lockerbie evidence’ (Birlinn, Edinburgh, 2012) pp. 85-88.
[3] Ashton (2012) pp. 379- 389.
[4] Kamp Zeist court Production 436 (KZ pp. 4771-73).
This photo-session took place in the company of four police investigators, all of whom knew which photo was of the suspect. Furthermore, the images were spaced widely enough for observers to be aware which was being examined by the witness.[5] These are fundamentally improper conditions for such a procedure.
As the picture of al-Megrahi was greyer, police dulled-down the other pictures so that the suspect’s photo would not unduly stand out - but al-Megrahi’s picture remains the smallest and the most conspicuously marked.[6] Additionally, the thickness of the hair styles on some of the photos (no. 10 for example.) appear to have been graphically enhanced - perhaps another attempt to ‘equalise’ the photographs.*
Gauci said that all the men shown were too young but supervising police officer DCI Harry Bell suggested he look again and ‘allow for any age difference’ plainly undermining the independent choice of the eyewitness; Gauci then revised the images and declared:
‘I would say that the photograph at number 8 is similar to the man who bought the clothing. ...The man in the photograph number 8 is, in my opinion, in his thirty years [in his 30s]. He would perhaps have to look about ten years or more older, and he would look like the man who bought the clothes’. [7]
[5] Ashton (2012) pp 95-96. The photo-spread card is reduced but the relative spacing is unchanged.
[6] Kamp Zeist trial transcript (abbreviated ‘KZ’ hereinafter) pp 4877-78.
* This is merely reasoned speculation by the author.
[7] KZ p. 4772 – (Statement S4677R - in Ashton 2012, p. 385).
Investigators oddly regarded this as the clinching identification of Abdelbaset Ali Mohmed al-Megrahi and apparently saw no reason to arrange any further photo-sessions - despite that on previous occasions, Gauci had similarly identified at least two other men of interest to police - without prompting.[8] According to the attending Maltese police inspector, Godfrey Scicluna, DCI Bell’s prompt had specified that the man ‘could be ten to fifteen years older’ than those shown - but Bell has denied this.[9]
Al-Megrahi was 36 at the time of the purchase and both his passports recorded his height as 170 cm (5’7”).[10] He was not in Malta until December 7 in the relevant timeframe, a day when meteorological records showed that it was almost certainly not raining and when the Christmas street decorations outside Gauci’s shop were already up and switched on. On the basis of these details - Gauci’s freshest recollections serve only to confirm that the purchaser was not al-Megrahi but in later interviews he would modify his recollections in favour of what became the Crown prosecution case.
From indictment to conviction
The indictment of al-Megrahi and his co-accused, Lamin Khalifa Fhimah - issued jointly by Scottish and US prosecutors in November 1991 - charged that they had ‘..formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants’ on behalf of ‘Libyan Intelligence Services’.[11]
Concerning international civil aviation protocols, Libya, the UK, and the US were signatories of the 1971 Montreal Convention, which codified procedures under which those accused of criminal offences concerning international air transport could be arraigned. Under this convention, the state of residence of the accused, was obligated to deliver them to the jurisdiction of the principal offended state for trial - in this case either the UK or the USA. Failing this, the convention allowed for the accused to be tried in their home jurisdiction.[12] Abiding by the protocol, the Libyan authorities placed the indicted pair under house arrest in preparation for trial in Libya’s supreme court. However, the UK and US rejected this - in breach of the convention – and refused to release their extensive investigation evidence to Libya’s appointed examining magistrate.[13]
The US and the British authorities were surprised when the Libyan’s agreed in 1994 to an independent proposal for the accused to face a juryless Scottish criminal trial held in a non-involved country – but this too was rejected - the US preferring instead to impose sanctions on Libya. The matter remained unresolved until the US and UK finally conceded to such an arrangement in 1998.[14]
[8] KZ pp. 4828-29, KZ 4883
[9] Ashton (2012) Appendix 1, pp 385-86 (Supt. Scicluna’s statement S5262D).
[10] KZ pp. 4585 & 7788.
[11] KZ p. 18.
[12] 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; adopted in Montreal, Canada on 23 September 1971. Art. 14, p. 183.
http://treaties.un.org/doc/Publication/UNTS/Volume%20974/volume-974-I-14118-English.pdf
[13] International Court of Justice. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)
- Overview of the case. http://www.icj-cij.org/en/case/88 (accessed 29 April 2015).
[14] Grant, John P (ed.) The Lockerbie Trial: a documentary history (Oceana Publications Inc. New York 2004) pp.104-105 &pp. 109-118.
On 5th April 1999 al-Megrahi and his co-accused were flown into Scottish custody at Kamp Zeist, a disused US military base in the Netherlands. Their detention centre adjoined the purpose-built courtroom of ‘Scottish Judiciary’ which, for the duration of proceedings, would have an isolated extraterritorial status equivalent to that of a foreign diplomatic compound.[15] The rigours of an adversarial trial lasting several months under international media scrutiny would supposedly put paid to some stark contradictions in the prosecution evidence.
Facing a prosecution in an alien jurisdiction, al-Megrahi was of course dependent on the advice of his British lawyers. Remarkably, the defendants did not testify in their own defence, a strategy commonly applied in most Anglophone jurisdictions, in jury trials of persons accused of the most heinous murders and facing very strong prosecution evidence – colloquially ‘open and shut’ cases. The principle is simple: a jury is obliged to base its findings only on what comes before it in court - starve the jury of prosecution evidence and it may ultimately be just enough to oblige them to bring a not-guilty or an otherwise reduced verdict.
Any competent lawyer or jurist would regard It as suicidal for a defendant with a benign demeanour, without a criminal record and facing a prosecution based entirely on circumstantial evidence - not to testify on his own behalf in a juryless trial – but that was the legal advice given to al-Megrahi and his co-accused.[16] This was all the more surprising as they would face 227 prosecution witnesses, while just three appeared for the defence, to testify on peripheral issues only. Here was a broadcast to the world that the accused preferred to suppress any explanation as to their part in the Lockerbie bombing. This apparent, stubborn silence was arguably the most incriminating aspect about the defendants.
The cross-examination of principal Crown witness Tony Gauci at Kamp Zeist in July 2000 should have been a gift for a defence advocate, such were the glaring contradictions in his police statements. In Crown testimony, Gauci had described his Libyan purchaser as of “normal stature”.[17] In cross-examination, al-Megrahi’s advocate, William Taylor QC quoted Gauci’s first 1989 police statement about the height of the customer:
Taylor : - …let's look at the description. He was about six foot or more in height. Yes?Gauci : - I always said six foot, not more than six feet.Taylor : - Well, we'll see about that. In this statement you told Mr. Bell he was six foot or more in height. He had a big chest and a large head. He was well built, but he was not fat or with a big stomach. His hair was very black.... (KZ trial transcript pp. 4789-90).
Taylor promises to return later to challenge Gauci on his original six foot estimate of the man’s height – but he did not. Instead he launched a raft of superfluous questions about clothing sizes, the day of the week, the dates of Gauci’s police statements and his brother Paul Gauci’s absence from their shop, to watch a televised football match.
[15] In The High Court of Justiciary (Scotland) at Camp Zeist in causa Her Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah. Case No: 1475/99. Presiding Judge, Lord Justice Sutherland, May 3, 2000-December – 22 January 2000 (2000 J.C. 555; 2000 S.C.C.R. 177; 2000 S.L.T. 1393; 2000 G.W.D. 5-183; < scotcourts.gov.uk > ).Camp Zeist is known locally (in the Netherlands) as Kamp Van Zeist(or Kamp Zeist).
[16] Ashton (2012) pp. 259-60.
[17] KZ p. 4753.
Crucially,
Presently, another outstanding contradiction arose:
Taylor : - ...Carrying on with the information that you are giving the police, you say this: “He was about 50 years of age” and “I think the age of the man in the photo-fit is between 45 and 50, which would be - which is just about right.” Do you see that? So, in terms of the description, you've given a description as best you can and being as honest you can on the 1st of September of 1989, you were able to add two further details on the 13th of September, these details being the man's collar size and his age. And his age you describe as about 50 years of age.Now, on the same day, another statement, I think we'll find that three statements came on the same day, but on the same day a second statement was given by you, I think, to Mr. Crawford. And I am moving to Production 457, My Lords. (KZ pp. 4797-98).
Taylor quotes Gauci’s estimate of the age of the man depicted in the photo-fit he helped construct, actually reducing the customer’s possible age to 45 – and doesn’t even wait for Gauci’s response to his question - but instead changes the subject. After this excerpt, Taylor mentions the ‘50 years’ estimate a third time (KZ p. 4802.16) but again fails to confront Gauci on the discrepancy – nor does he specify the dates of these estimates, making them seem like repeated references to a single statement. Gauci had stated or implied the customer’s age to be about 50 in at least four separate police statements between September 1989 and March 1990 when his recollections were freshest – but this was not clarified by Taylor. Al-Megrahi’s actual age in December 1988 – 36 years - was not even mentioned during Gauci’s cross-examination, and cropped up only once – incidentally - in Taylor’s closing submissions.[19]
Al-Megrahi indeed visited Malta on December 7, 1988, by which time the Christmas decorations were known to be already hung and illuminated in the street outside Gauci’s shop – however, in his 1989-90 police statements, Gauci had asserted and repeated that the decorations were not up at the time of the Libyan customer’s visit - consistent with other aspects of his original testimony, including his belief that the visit had been in late November. Taylor’s cross-examination on this matter had a familiar, equivocal structure:
Instead of confronting Gauci on the absolute contradiction concerning the decorations, Taylor’s skips over it and asks a question about the hardly significant day of the week.Taylor : - [Quoting Gauci’s police statement] “...I've been asked to again try and pinpoint the day and date that I sold the man the clothing. I can only say it was a weekday. There were no Christmas decorations up, as I have already said, and I believe it was at the end of November. “Now, I am going to come back to that, in view of what you said in your evidence in chief, Mr. Gauci. But so far as trying to pinpoint the day is concerned, do you agree that you said to Mr. Bell, in September of 1990, that it was a weekday –Gauci: - I can't tell. I don't want to talk offhand, but if I don't have records, how can I say? How can I say yes or no? I have no records as to the date. .(KZ pp. 4802-03).
[18] Al-Megrahi was measured as 5’8”tall at Kamp Zeist on 13th April, 1999 (KZ pp. 4906-07) implying that he had been measured while wearing shoes.
[19] KZ p. 9924
Gauci then complains about his difficulty recalling events of 12 years ago – but the question is not about his courtroom recollection of such events - but about his logged 1989-90 police statements. Gauci says he can’t recall dates without records, but when it suits him - and repeatedly in testimony - he is so confident of his memory as to reject the content of his documented police statements when they are put to him. Taylor failed to emphasise this discrepancy.
The Christmas decorations issue arose again a couple of minutes later, after more vagaries had been addressed by Taylor:
Taylor : - [Quoting Gauci’s police statement] ...“At Christmas time, we put up the decorations about 15 days before Christmas. The decorations were not up when the man bought the clothes. I am sure it was midweek when he called.”Now, you've signed that statement, Mr. Gauci, and you appear to have said that to DC John Crawford in September of 1989. Do you see that? (KZ p. 4806).
Taylor once again avoids a specific challenge about the decorations by including – again - the day of the week, before asking Gauci to confirm his signature. Gauci’s eventual response was so befuddled as to confirm his inadequacy as a witness:
Gauci: - Yes. Yes, but I seem to remember that there used to be lights, because I used to have a policeman come for me, and I remember the lights. But it could have been after the gentleman came to buy the clothes. This is 12 years ago or 11 years ago, not yesterday, and I have no records. I don't take records of these events, dates and things like that.Taylor: - I understand that. Now, we've covered, I think, some of this ground...Gauci: - ...Because if I knew what was going to happen, I would have taken note of it, but I knewnothing. I don't know anything about dates and things like that. (KZ pp. 4809-10).
This was the second time in cross-examination than Gauci had confused the visit of the suspect customer in autumn 1988 with a police investigator’s visit a year later. Taylor noticed it the first time but made little of it.[20] This time he ignores it, preferring to change the subject, rather than exploit the fact that the testimony of the principal Crown witness was falling apart.
Taylor fudged around with this hopeless witness, and what should have been a swift annihilation of Gauci’s testimony, became lost in a complexity of irrelevant, petty details. When Tony Gauci’s recollections had been freshest, he had clearly identified a tall, 50-year-old man visiting his shop in late November 1988, rather than the somewhat short 36-year-old al-Megrahi – who was not then in Malta.
There were further discrepancies: in his first police interview on 1st September 1989, Gauci recalled – amazingly - that the purchaser’s bill came to £76.50, which was paid in £10 notes, while he got back £4 in change; in the same statement Gauci amended this sale price to £56. When referred in court to these figures in his police statements, Gauci rejected them, insisting that he had “always” said the bill was £77. [21]
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[20] See KZ p. 4804.
[21] KZ pp. 4787-93.
[22] John Ashton & Ian Ferguson, ‘Cover-up of Convenience; The Hidden Scandal of Lockerbie.’ (Mainstream, Edinburgh 2001) p. 314.
In 1990 Gauci had insisted: “That man [the purchaser] didn’t buy any shirts for sure” and he reiterated: “I am sure I did not sell him a shirt”.[22] However, in Crown testimony at Kamp Zeist, Gauci stated unequivocally that the man had bought two ‘Slalom’ shirts. It remains a mystery why this most crucial of Gauci’s contradictions was not raised in court at all. The only part of the Lockerbie bomb to be found - a 9mm square fragment of circuit board from its timer - was the central item of the forensic investigation. The fragment was recovered from the charred remnant of a ‘Slalom’ shirt allegedly bought in Gauci’s shop – supposedly the pivotal link between al-Megrahi, Libya the bomb and the prosecution case.[23]
An interesting aspect of Gauci’s testimony was his keenness to ingratiate himself with the court:
“…11 years are a long time for me, but in those days I told them everything exactly, didn’t I?” (KZp. 4740).“I did tell him the -- as far as I could help.”(KZ p. 4798)..”I am interested in nothing else except to help the investigation.” (KZ pp. 4798-99).“..I want to speak fair…I can’t speak off-hand. It’s not fair if I did. (KZ p. 4803).“I can’t remember all the dates because I don’t want to tell lies.” (KZ p. 4804).“Yes. Yes. but I am trying to help.”“I don’t want to give you a date or say it’s Friday. I don’t want to tell lies. You understand?” (KZp. 4811).“…I don’t want to give out dates if I am not that sure, sir.”“I always thank you, sir. I am here to help you, sir.”(KZ p. 4817).“I don’t want to cause confusion.”(KZ p. 4820).“…Where I can assist them, I do.” (KZ p. 4827).
Gauci’s persistent assurances to the court about how honest and helpful he was being, suggest a dubious, fawning demeanour, resonant of Uriah Heep in Dickens’s David Copperfield. Nonetheless, instead of giving Gauci short shrift, Taylor flattered him repeatedly:
…you were assisting them...to try to be as helpful as possible to them. (KZ p. 4800)…this is you doing your best to help the police officers; isn’t that right? (KZ p. 4789) …you were doing your best to help them, you were being honest, and you were telling them everything you could remember? (KZ p. 4795) …you've given a description as best you can and being as honest you can (KZ p. 4797)You were doing your best to help him .(KZ p. 4798) …I understand that and I thank you for it. ...and you did your very best...(KZ p. 4799)…I am grateful to you for that (KZ p. 4816). You've been very helpful to me, and I'm grateful to you for answering all of my questions (KZ p. 4821).
No other witness in the trial won such effusive praise - which seems to have made its mark on the judges: ‘The clear impression we formed was that [Gauci] was in the first place entirely credible, that is to say, doing his best to tell the truth to the best of his recollection’.[24]
This wholly inaccurate perception of Tony Gauci’s testimony confirms the ineffectuality of Taylor’s cross-examination of him.
[23] Ashton (2012) pp. 161-67.
[24] Opinion of the Court [2001 G.W.D. 5-177; 40 I.L.M. 582 (2001)] parag. 67 in Grant (2003) p. 268.
Supplementary evidence
Gauci’s testimony led investigators to conclude that the Lockerbie bomb must have been introduced at Luqa but they could not explain how this took place – nor its transfer through airside security at Frankfurt and again at Heathrow, without a record of either the suitcase’s check-in, or of any passenger accompanying it. The Crown sought to establish evidence of a security breach at Luqa, calling more witnesses on this issue than any other. There were testimonies from local police, travel agents, airline and airport staff and 24 of the 39 passengers who had travelled on flight KM 180, which theoretically carried the bomb to Frankfurt. However, the flight’s checked-in bags – 55 in all - had been re-counted during loading at Luqa - and all were properly checked-out at Frankfurt.[25] Luqa’s thorough security procedures were consistent with the ‘excellent’ verdict of a US Federal Aviation Authority (FAA) inspection of the airport in 1987.[26] After the bombing, Granada TV and the Independent newspaper had both disparaged security at Luqa, in reports during police investigations - but Air Malta successfully sued them.[27] Three separate inquiries had therefore confirmed that airside security at Luqa had been exemplary, an issue not emphasised by the defence teams.
Furthermore, such vigilance had an explanation: three years prior to the Lockerbie bombing, a hijacked Egypt Air plane whose passengers were held hostage by the Abu Nidal terrorist group, made a forced landing at Luqa. A subsequent, botched attempt by Egyptian Special Forces to break a stand-off resulted in a gunfight and explosions in which a total of 59 people, mostly passengers, were killed - the deadliest outcome of a terrorist act ever to take place at an airport.[28] Despite all the Kamp Zeist references to security at Luqa airport, the Egypt Air debacle, which had motivated Malta’s exceptional airport security procedures, was never once mentioned at either trial or appeal.
The Crown called Carmel Montebello - a police officer at the immigration office at Luqa airport - in an attempt to substantiate a notion that staff might assist certain familiar passengers to expedite their check-ins. It was assumed - but oddly never stated - that Montebello had been at the airport on December 21 - the morning of the supposed introduction of the bomb. However in court he agreed that it was not his police number that accompanied a departure stamp on the immigration card used by al-Megrahi (coded in the name Abdusamad). Montebello merely agreed that in a previous statement he had “confirmed” that the handwriting on the card “resembled” his but he was oddly not asked to update or strengthen these vagaries when shown the copy in Crown testimony. In cross-examination, Montebello said that he had “..no independent recollection of 21st December at all” and later declared: “I started in May in 1986, and I worked at the airport till February of 1988.” Montebello had therefore ceased working at Luqa 10 months before the critical date, but no-one in court appeared to notice.[29]
[25] Morag G.Kerr, ‘Adequately Explained by Stupidity? Lockerbie, luggage and lies.’ (Matador, Leicester 2013) pp. 10-12.
[26] KZ pp. 5209-12.
[27] Cit. Kerr (2013) pp 49-50. Also: ‘German police “hamper Lockerbie hunt” ’ p. 2, The Independent, 16th April, 1991.
[28] See: http://news.bbc.co.uk/onthisday/hi/dates/stories/november/24/newsid_4356000/4356024.stm
[29] KZ pp. 6223-29.
In his final submissions for the Crown, Alistair Campbell QC asserted that Montebello had “completed the details” on the immigration card and then followed his review of Montebello’s testimony with an Olympic jump to conclusions:
“..and from that evidence it may be concluded that Mr Megrahi, still operating as Abdusamad, attended at the airport at a time suitable to allow for the introduction of a suitcase to flight KM 180.”
(KZ p. 9499).
This was stretching credibility as it stood. William Taylor had noticed Montebello’s February 1988 end date by the time of his own final submissions, but went out of his way to call it an error, without explaining why:
“I say on that matter it’s plainly a slip of the witness’s tongue, and what he meant to say was he had worked at the airport from May of 1986 till February of ’89, because plainly he was there in December of ’88.” (KZ p. 10065).
It was hardly in al-Megrahi’s interests for his advocate to disqualify this testimony from a prosecution witness - testimony which the Crown itself had not sought to amend.
There was evidence from the Frankfurt baggage handling system of an unaccounted-for bag aboard flight LH1071 from Warsaw being loaded onto Pan Am 103A – the Frankfurt connecting flight to Pan Am 103 at Heathrow on the critical date.[30] The bag’s existence, had been more reasonably established than any such bag from Malta, despite the absence of police interest in Warsaw. In his closing submissions, Taylor summarised the documentary evidence covering the movement of this bag, with a list of rhetorical questions to the Bench:
1. Did the bag exist at all?
2. Did it come from LH 1071?3. Did it join Pan Am 103 in Frankfurt?4. Did it stay at Heathrow?5. Did it fly from Heathrow on Pan Am 103?6. Did it contain the improvised explosive device?7. Is this further proof of the hazard of reaching any conclusion at all in relation to the Frankfurt documents, which have been shown to be both inconclusive and, in my submission, unreliable?(KZ p. 9746)
It is very puzzling why this evidence - potentially exonerating al-Megrahi - was discredited by his advocate - a submission which might have been more appropriately made by the Crown. Such counter-productive defence efforts perhaps helped fertilise the development of a fantasy in the collective mind of the Kamp Zeist bench (my emphasis):
‘Proved?’ This conclusion flies in the face of fact – such a movement of baggage had absolutely not been ‘proved.’‘…we are satisfied that it has been proved that the primary suitcase containing the explosive device was dispatched from Malta, passed through Frankfurt and was loaded onto PA103 at Heathrow.’ (Cit. Opinion of the Court, parag. 82).
[30] Cit. Kerr (2013) pp. 32-34.
A defence laid bare
The silence of the Kamp Zeist defendants was most starkly emphasised in their ‘judicial examinations’. These are standard, pre-trial procedures in Scottish criminal cases and at Kamp Zeist they were heard in camera and under oath before Sheriff Principal, Graham L Cox, QC, who began by making clear to each of the accused, their legal rights and circumstances:
Sheriff Principal: ...I have to tell you that if you do not answer a question put to you here today, and at your trial you or any of your witnesses say something by way of defence or explanation which you could have said in answer to that question today then the fact that you did not answer may be noted at your trial by the judges or any of them, may be commented on by the prosecutor or by your co-accused. The failure to answer a question today therefore may go against you at your trial. Do you understand all that I have said to you?Al-Megrahi: According to my lawyer's advice, I have nothing to say for now.(KZ Day 72, pm, 20th November 2000)
As advised, Al-Megrahi, gave the same response to each one of more than 80 questions covering every aspect of the indictment, including the most devastating accusations ever uttered in a UK legal process:
Procurator Fiscal: Do you admit that between the same dates you did conspire with Fhimah and others to further the purposes of the Libyan Intelligence Services by criminal means, namely, the commission of acts of terrorism directed against nationals and the interests of other countries, and in particular the destruction of a civil aircraft and murder of its occupants?Al-Megrahi: According to my solicitor's -- sorry, according to my lawyer's advice, I have nothing to say at the moment. (Cit. KZ Day 72).
In Scottish criminal trials, these stock replies are the norm in the judicial examinations, so as to give no quarter to the Prosecution. The monotonous rebuffs followed even mundane questions such as how the accused would prefer to be addressed in court. The transcripts were read to the court, crucially after the completion of Crown testimonies, emphasising again al-Megrahi’s acute vulnerability in not having testified.
The hollow defence strategies were backed by some very dubious defence submissions. On day 73 of the trial, a request had already been made to the Syrian government pursuant of a document called the ‘Goben memorandum’ – which, defence counsel believed, held details about a link between the Lockerbie bombing and terrorist group known as the PFLP-GC (The Popular Front for the Liberation of Palestine – General Command). Under the so-called ‘special defence’ of incrimination, members of the PFLP-GC had been cited by the defence as the true perpetrators of the Lockerbie bombing.
In requesting an adjournment enabling more time for the Syrians to reply to the request, Taylor made an analogy with a 1996 court case concerning a rape accusation. In extensive and extraordinary detail he cited excerpts from the case notes, about the results of a medical examination following the accusation, including anatomical evidence of damage to the ‘private parts’ of the complainant. A pathologist giving evidence in the case had described a tear ‘towards the posterior end of the genitals…typical of a site where an erect penis would cause damage…’ and the counter-claim that this could have been made by fingers. Whether this had been with one or two fingers was considered and the degree of penetration was discussed; then the dispute as to whether this was in fact digital or penis penetration. Taylor acquainted the court with the record of subsequent aspects of the vigour, circumference and trauma of the penetration – an oration which continued for several minutes - and included details of the vulva, urinary outlet and the exact position of the injury ‘...the tear at the six-o'clock position in the private parts, albeit exterior, is more in keeping with the pushing and pressure that would be produced by an erect penis..’ the likelihood of damage to the ‘two-o’clock to the 10-o’clock position more frequently than they would damage the back or posterior part of the private parts.’ In Taylor’s, submission, the coverage of the sexual details runs through several pages of trial transcript.[31]
Psychologists might see something of a subliminal cry for help from Taylor in presenting this stunning digression to an undoubtedly embarrassed court. Perhaps the graphic details of a rape were some kind of metaphor for the defence’s predicament – but this is pure speculation, for want of an attempt to rationalise it.
Al-Megrahi would declare years later that neither he nor his co-accused had wanted to blame others for the bombing and that they were well aware of the flaws in such strategy. He had reluctantly agreed to it, believing that the suspicions about the PFLP-GC were based on evidence in possession of the police.[32] No such police evidence existed. The ‘special defence’ was finally discarded in Taylor’s closing submissions.[33] The UN-nominated trial observer Dr Hans Köchler noted:
‘the strategy of the defence team by suddenly dropping of the ‘special defence’, and cancelling of the appearance of almost all defence witnesses (despite the defence’s ambitious announcements made earlier during their trial) is totally incomprehensible; it puts into question the credibility of the defence’s actions and motives.’ (Köchler report no.1, parag. 9. In Grant (2004) p 284).
William Taylor’s final submissions covered a near all-time Scottish record of four trial days, during which the crucial contradictions in Gauci’s evidence and other matters crying out for clarification, were obfuscated further. Taylor read out tedious extracts of the trial transcript verbatim, revisiting virtually every point made by prominent witnesses, including Gauci’s innumerable contradictions. The crucial, outstanding anomalies became shrouded again in irrelevances.
Taylor began his recap of the Christmas decorations by describing Gauci’s testimony about the time of the suspect customer’s visit being “fraught with confusion”.[34] This is plainly false. The contradictions in Gauci’s evidence were not confusing at all but perfectly straightforward. The Opinion of the Court reveals that it was the judges who had been confused about Gauci’s evidence and it was primarily Taylor’s cross-examinations and submissions which had confused them. He had patently failed to establish the plain record of Gauci’s original police statements of 1989-90, which should have entirely eliminated al-Megrahi from suspicion. This could have been made crystal clear to the Kamp Zeist bench in a submission of forty minutes rather than four days.
[31] KZ pp. 8983-90.
[32] Ashton (2012) p. 211.
[33] KZ p. 9527.
[34] KZ pp. 9873-74.
The appeal [35]
Considering the advocacy al-Megrahi had received at Kamp Zeist it might have been hoped that matters would be righted at his appeal commencing 23rd January 2002 before a new set of judges. However, despite the defence having had most of a year to review its case, Taylor announced a crippling limitation to the scope of his appellant at the start (my emphasis):
“No submission of no case to answer was made on behalf of the appellant at the close of the Crown case. This appeal, therefore, is not about sufficiency of evidence. It is about, one, whether or not the Court has erred in its acceptance and interpretation of evidence; two, whether or not it has erred in the way that it weighed up or viewed evidence which was led before it; and third, whether it has dealt adequately with the submissions based properly upon the evidence advanced on behalf of the appellant;and fourth, whether it has resolved inconsistencies and contradictions in the evidence or adequately explained its reasons for resolving those inconsistencies and for drawing inferences from the evidence.”(KZ p. 10257)
Therefore whatever the basis of the appeal, the defence now agreed that the evidence against al-Megrahi – which had led to his conviction - had been sufficient! An absurdity per se - and on its own, a virtual capitulation.
If this was not enough, Taylor also submitted a lengthy argument in support of the withdrawal of his appellant’s application of Section 106 of the Criminal Procedure (Scotland) Act, 1995, featuring the right of appeal in the instance of an alleged miscarriage based on subsection ‘(3): (b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned’.[36]
The appeal was thus fatally disabled, enabling the audacious body of circumstantial evidence against al-Megrahi to stand un-challenged, indeed to stand unchallengeable. Taylor was left to argue that the trial judges had misdirected themselves; but even on this ground, in his opening submissions he seemed unsure where this might lead, contending “..that the Trial Court fell into some sort of error or misdirected itself in some way”.[37]
Taylor made yet another astounding announcement in the matter of Tony Gauci’s fidelity: “He was found to be a credible witness and no attack is made in the Grounds of Appeal in respect of that finding. The court acknowledged that reliability was a different matter”.[38] This is reminiscent of Taylor’s flattery of Gauci for his honesty at trial, and the judges’ subsequent opinion of Gauci as: ‘entirely credible…doing his best to tell the truth.’ Now at appeal, to suggest otherwise appeared to have become unthinkable.
With al-Megrahi’s defence rendered virtually impotent Taylor was left with the considerable challenge of presenting a credible appeal basis. Thus his predilection for detail was exercised with even greater vigour than at trial. On the matter of baggage movement records at Frankfurt airport alone, Taylor’s submission covers nearly 140 pages of transcript, without significant revelations.[39]
[35] Her Majesty’s Advocate v. Abdelbaset Ali Mohmed Al-Megrahi. No. 4, 2000 J.C. 99. (Presiding Appeal Judge: Lord Justice General Cullen. Kamp Zeist, The Netherlands 23 January 2002- 14 February 2002) KZ pp. 10242 – 12087.
[36] KZ pp. 10258-10286.
[37] KZ p. 10261.
[38] KZ pp. 10389-90.
[39] KZ pp. 10797-10935.
Other tedious issues such as Tony Gauci’s brother Paul’s absence from the shop to watch a football match and the rainfall outside the Gauci shop on the crucial date, were re-trodden with similar non-effect.
The appeal presented Taylor with further opportunity to exercise his penchant for citing cases, and he refers to at least 40, civil and criminal, corporate and individual, going back as far as 1919 and covering every subsequent decade into the new millennium. General references were also made to the ‘Diplock’ courts of Northern Ireland, acts of legislation and sources of legal authority. The appeal judges, who must have familiarised themselves with the original trial material, appeared unprepared for more interminable details from Taylor, who was notified several times on issues of length, relevance, repetition and detail:
Lord Justice-General Cullen (presiding): ‘…do we need to go into such detail on the matter ? ...I don’t think you need to read out a lot of information which is not really helpful.’ (KZ p. 10331).Cullen: ‘I get the impression, looking at this very quickly, that we don’t need to know all the facts.’(KZ p. 10621).Lord Osborne: ‘..I don’t think it is necessary that you go through this in great detail...’ (KZ p. 10918).Lord Nimmo Smith: ‘Didn’t you read all of this out to us last week Mr Taylor?’ (KZ p. 11070).Cullen: ‘I don’t think you need to go into this case, Mr Taylor, unless there is some particular point about it….’ (KZ p. 11084).Cullen: ‘I don’t think you need to repeat them, Mr Taylor. I think you read over the salient passages yesterday.’ (KZ p. 11091)
While reading through yet another case record near the end of the day’s proceedings on 30th January 2002, Taylor got his pages mixed up and was heard reading seamlessly from an entirely different case from the one he had begun. He was ploughing through it unperturbed before Lord Cullen interrupted to bring him to a stop. Taylor, apologising, said that it had been a long day and admitted “..I am slightly at a loss in my papers at the moment. I'll endeavour very quickly to get up to speed again.” The proceedings were brought to a timely close by the Lord Justice-General, who did not mince his words (my italics):
Clearly, the Bench was not thankful for Taylor’s long-winded discourses.Cullen: - I think, Mr. Taylor, perhaps, it has been a long day, no doubt. Would it be a convenient pointat which we break anyway?Taylor: - You are very kind. Thank you.Cullen: - We'll do that. And kindness doesn't come into it….but we’ll resume tomorrow at 10 o’clock.(KZ p. 11089).
The appeal court judgement delivered by Lord Justice General Cullen on 14th March 2002, was quick to address the limitations on the scope of the appeal:
‘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… (para.9). In our opinion this submission was misconceived. It is not sound in principle or supported by authority’ (parag. 10). [40]
[40] Appeal Judgement; Megrahi v. Her Majesty’s Advocate (2002 J.C. 99; 2002 S.C.C.R. 509; 2002 S.L.T. 1433; 2002 G.W.D. 1-335). Also in Grant (2004) p. 303.
Later, in its conclusion, the appeal judgment explained the constraints put upon the bench itself by the defence’s strategy:
The detailed report of UN-appointed, independent observer Dr Hans Köchler also noted profound problems with al-Megrahi’s defence strategies:‘...Mr Taylor stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence….Accordingly in this appeal we have not been required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgement.He also stated that he was not seeking to found on section 106(3)(b) of the 1955 Act…We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence’ (parag. 368) . [41]
‘One of the most serious shortcomings of the appeal proceedings (as of the trial proceedings) was that the appellant did not have adequate defense – a circumstance that weighs heavily in an adversarial judicial system where the fairness of the trial depends mainly on the equality of arms between prosecution and defense. Because of this situation, the requirements of Art. 6 (“Right to a fair trial”) of the European Convention for the Protection of Human Rights and Fundamental Freedoms were not met’.[42]
It is clear from Köchler’s report that he had been concerned that al-Megrahi’s trial and appeal should be fair. There was no reason why the defence should not have been glad to furnish Köchler with material for his impartial research in the interests of justice. On the contrary, Dr Köchler noted that ‘For unexplained reasons, the defence refused to give any information whatsoever.’ They withheld from Köchler the Grounds of Appeal and the defence submissions at the appeal hearings. There was - Köchler noted - ‘a total lack of transparency’ in the defence’s actions.[43]
‘..a reasonable jury could never have come to the conclusion of “guilt” in regard to the appellant on the basis of the vague and ambivalent evidence related to the supposed sequence of events in Malta. Furthermore, it can be reasonably stated that a determination of “guilty” under such circumstances does in no way meet the basic requirement under Scottish law that proof must be established beyond a reasonable doubt. The Appeal Court completely failed to deal with this basic issue of the case and preferred to effectively “put the blame” on the Defense’s omissions’.[44]
Dr Köchler wrote that if the defence failed to ‘play its antagonistic role in an adversarial system’ or chose ‘not to use the means actually available to it’ then the legal process effectively fails to function properly.[45] Evidently, this is exactly what took place.
In al-Megrahi’s own account of the immediate aftermath of the Kamp Zeist trial verdict, he described his defence team collectively as ‘shocked’ while William Taylor himself had been ‘angered’ by it.[46]
[41] Cit. Appeal Judgement ‘Conclusion’ in Grant, p. 433.
[42] Köchler report no. 2, point 9. Grant, p. 436.
[43] Ibid., point 5. Grant, p. 435.
[44] Ibid., Grant, p. 443.
[45] Ibid,, parag. (B). Grant, p. 445.
[46] Ashton 2012, p. 272.
Defence counsel are not obligated to believe in the innocence of their clients; in a high proportion of criminal trials such a position is hardly tenable. But an advocate has a duty to his client and al-Megrahi had clearly been given to understand that his advocate regarded him as innocent of the Lockerbie bombing – which is hardly refutable based on Gauci’s thoroughly flawed testimony. Therefore, what exactly Taylor appeared to be angry about remains unclear.
Petty cash and big money
In February 2009, al-Megrahi’s new legal team released the Grounds of Appeal upon which ‘the Lockerbie bomber’ had intended to base his second appeal before his illness and his release from Scottish custody obliged him to abandon it. The documents included police statements mysteriously unseen during the Kamp Zeist proceedings, revealing that by the end of Tony Gauci’s court testimony in July 2000, the development of his testimony to the Crown’s benefit had been even more thorough than the Kamp Zeist court could have known of.
Gauci’s early estimates of the purchaser’s bill, for example, did not end with the two figures - £76.50 and £56 - of 1st September 1989. On 19th September 1989 he recalled the sale of a second cardigan, raising the sale price to £88. A year later, his new recollection of the sale of two shirts - crucial to the police line of enquiry – was accounted for with a bill of £98.50, while in his (pre-trial) Crown precognition statements of 1999, Gauci is said to have listed a ‘wholly’ different set of items and prices.[47] The figures strongly suggest that the bills were being fitted-up to Gauci’s changing recollections of items sold.
The police had been aware of problems with Tony Gauci’s reliability as a witness. In 1990 they described him as confused and ‘difficult to believe’ but this was not disclosed in court. Nor was it revealed that they had become concerned with his suggestibility, observing that he had been ‘trying to please’ them – apparently with considerable success; as early as 28th September 1989, the FBI discussed with the Scottish Police an offer of ‘unlimited money’ as a reward for Tony Gauci, including $10,000 being made available to him immediately.[48] A memo from DCI Bell to DCS Gilchrist in February 1991 mentioned Tony Gauci’s interest in receiving money and that ‘if a monetary offer was made this may well change his view and allow him to consider a witness protection programme as a serious avenue’. One officer noted the need to keep up the witnesses enthusiasm: ‘It is therefore vital that they [the Gauci brothers] continue to perceive that their position is recognised and they continued to receive the respect their conduct has earned’ he wrote.[49]
After the failure of al-Megrahi’s appeal, the US Department of Justice paid Tony Gauci ‘in excess of $2m’ as a reward for his assistance with the investigation.[50]
[47] ‘Megrahi: my story’ Grounds of Appeal pp 60-231, 2009, 3.1.2 – ‘Previous inconsistent statements re the purchase’ pp. 74-75. http://www.megrahimystory.net/ (accessed 12th March 2012).
[48] Ibid., 3.1.7 – Financial interest and reward monies p. 153. It is not suggested that that Gauci had known of this discussion.
[49] Ibid., Impact Assessment Report, 12/1/01, by DCI McCusker, p. 151.
[50] Ibid., Financial interest and reward monies, p. 149.
Metamorphosis of testimony
Tony Gauci’s statements, from his first police interviews in September 1989 through to his testimony in court, developed systematically in favour of the Crown prosecution, undermining virtually all his freshest recollections. This is clear in the following compilation in which each aspect of Gauci’s testimony (in bold type) is followed by the actual or accepted facts summarised (in italics) below which, his logged statements are listed chronologically:
The stature and age of the purchaser:
Height and build of the purchaser. Al-Megrahi was 5’7” tall; average build.[51]
1 September1989: ‘Six feet or more in height... big chest... large head... well built’.[52]
26 September 1989: ‘around six feet or just under that in height...broad built’.[53]
11 July 2000 (Kamp Zeist): “..below six feet... He wasn’t small. He was a normal stature”.[54]
Age of the purchaser. Al-Megrahi was 36 in December 1988.
13 September1989: ‘He was about 50 years of age’.[55] – Later the same day Gauci recalled seeing a man ‘very similar to the customer’ (c June 1989) describing him as ‘around 50 years old’.]56]
26 September 1989: Gauci believed the Libyan had returned to his shop the previous day and still recalled him as ‘..about 50 years of age.’[57]
10 September 1990: ‘he was about 50’.[58]
(The estimates of the customer’s age were the only significant aspects of Gauci’s testimony to remain consistent).
The purchase of clothing:
Slalom shirts. 2 Slalom shirts found at Lockerbie, one grey and one blue & white.[59]
1 September 1989: No shirts mentioned on Gauci’s list of clothing items he recalled selling to the Libyan purchaser.[60]
30 January 1990: ‘That man didn’t buy any shirts for sure’…‘I am sure I did not sell him a shirt’.[61]
10 September 1990: ‘I now remember that the man who bought the clothing also bought a beige ‘Slalom’ shirt and a blue and white striped shirt’.[62]
11 July 2000 (Kamp Zeist): Crown advocate: ‘How many shirts did the Libyan buy?’ Gauci: “Two ...Slalom, something Slalom” one “blue checked” and the other “greenish... It’s greenish and greyish. It’s more greyish…”.[63]
[51] In both his passports covering the crucial period, al-Megrahi’s height is given as 1 metre 70 centimetres - slightly less than 5’7” : KZ pp.4585 & 7788.
[52] KZ pp. 4789-90.
[53] Ashton (2012) p. 88.
[54] KZ p. 4753.
[55] Ashton (2012) Appendix 1, p. 380 (Statement S4677B).
[56] Ibid., pp. 381-82 (Statement S4677C).
[57] Ibid., pp. 382-83 (Statement S4677F) - also noted in Ashton & Ferguson (2001) p. 220.
[58] Ibid., pp. 385 (Statement S4677Q) .
[59] KZ p. 3121.
[60] Grounds of Appeal (2009) 3.1.2.2 - (6) Shirts, p. 79.
[61] Lockerbie: Case Closed, TV documentary film by William Cran & Christopher Jeans. Network Features production for Aljazeera, February 2012:
[62] Cit. Lockerbie: Case Closed 2012. The word ‘beige’ was crossed out in the Scottish police handwritten version and absent from their printed copy. The Maltese police copy is of the unaltered, handwritten version.[63] KZ p. 4749.
Pyjamas. 1 pair, striped, found at Lockerbie. [64]
1 September 1989: ‘3 pair pyjamas’ listed (un-described).[65]
11 July 2000 (Kamp Zeist): Crown advocate: “Did he buy any pairs of pyjamas?” Gauci: “Yes he did. He bought two pairs, striped”.[66]
Cardigans. Fragments of 2 Cardigans found, one black and one brown. [67]
1 September 1989: 1 cardigan (listed). Black and red tartan.[68]
11 July 2000: (Kamp Zeist) “..two pullovers..They were cardigans.. One was blue, the other was a brownish colour”.[69]
‘Babygro’ romper suit. Crash-site find bore a lamb’s head motif. [70]
1 September 1989: Gauci said that the Babygro had a sheep’s face on the front.
13 September 1989: Gauci reiterated that the Babygro had a sheep’s head, even when shown a control sample with a lamb’s head, he declared that the sheep’s head design had been discontinued since he stocked it.
Police subsequently established that the Babygro manufacturer had never produced a sheep’s head design.
4 October 1989: Gauci initially declared he was not sure about the sheep’s head design. Then said he was ‘fairly certain’ that the Babygro sold to the purchaser had a lamb motif.[71]
Payments for items sold. Gauci’s uncorroborated figures (in Maltese Pounds):
1 September 1989: Sale was £76.50, purchaser paid in £10 notes and received £4 change. Gauci then amended the sale price to £56. [72]
19 September 1989: Gauci’s recollection of a second cardigan raises the sale to £88. [73]
10 September 1990: Gauci’s late recall of 2 shirts sold, raises Gauci’s recollected bill to £97 or £98.50. [74]
18 March & 25 August 1999 (Crown precognition) Gauci is recorded as giving ‘a wholly different list of items and prices’.[75]
11 July, 2000: (Kamp Zeist): “I never mentioned 56. I always said 77” [pounds]. [76]
Time and circumstances of purchase:
Rain. Meteorological evidence: 90% probability of no rain in Sliema on Dec. 7. [77]
1 September1989: ‘..it was raining’.[78]
21 February 1990: ‘it had almost stopped raining, and it was just drops..’.[79]
10 September 1990: ‘..very little rain on the ground, no running water, just damp’.[80]
11 July 2000 (Kamp Zeist): “It wasn't raining. It wasn't raining. ... just drizzling”.[81]
Christmas lights/decorations: The decorations were already in place and illuminated on 6 December 1988. [82]
19 September 1989: ‘..decorations were not up when the man bought the clothes’.[83]
10 September 1990: ‘There were no Christmas decorations up, as I have already said..’.[84]
11 July 2000 (Kamp Zeist): “..yes, there were Christmas lights. They were on already. I’m sure”.[85]
[64] KZ pp. 2509-10.
[65] Cit. Lockerbie: Case Closed (2012) .
[66] KZ p. 4741.
[67] KZ pp. 2525 & 2536 respectively.
[68] Ashton (2012) p. 97 (Statement S4677). Also in Grounds of Appeal 2009, p. 77.
[69] KZ p. 4747. Gauci had been particularly confused about the colour of the one cardigan. This is his first reference to a blue one. The police had previously shown him a control sample in blue. See Grounds of Appeal (2009) pp. 77-78.
[70] KZ p. 1421.
[71] Grounds of Appeal 2009, 3.1.2 - pp. 76-77.
[72] Ibid., p. 74. (Also, KZ transcript, p. 4788).[73] Ibid., 3.1.2.1(b) (Statement S4677A: CP454) p. 74.
[74] Ibid., 3.1.2.1(d) (Statement S4577Q: CP469) p. 75.
[75] Ibid., 3.1.2.1(e) Undisclosed information (e), p. 75.
[76] KZ pp. 4787-88.
[77] KZ p. 9203.
[78] KZ p. 4788.
[79] KZ pp. 4815-16.
[80] KZ pp. 4817-18.
[81] KZ p. 4816.
[82] Cit. Lockerbie: case closed (2012) . Dr Michael Refalo, then Sliema’s local MP and Minister of Tourism, switched on the Christmas lights at 5.30 pm on 6th December 1988 and showed the relevant entry in his diary.
[83] KZ p. 4809.
[84] KZ p. 4802. The date is confirmed at trial in Taylor’s closing submissions (pp 9873-74).
[85] KZ pp. 4802-03
Date of purchase. Only December 7 fitted with al-Megrahi’s movements.
19 September 1989: ‘…I believe it was at the end of November’.[86]
8 October 1999: Precognition of Tony Gauci: ‘I remember it was the 29th of the month. I think it was November’. (Gauci recalled the date because he’d had a row with his girlfriend on that day).[87]
11 July 2000 (Kamp Zeist): “It must have been about a fortnight before Christmas”.[88] “I don’t know whether it was a week or two weeks before Christmas”.[89]
Second visit of Libyan customer. Al-Megrahi was not in Malta on September, 25 1989.
26 September 1989: Gauci told investigators that the Libyan customer had returned to his shop the previous day (Sept. 25) to buy dresses for a four-year-old child.[90]
2 October 1989: (DCI Bell’s report of statement) Gauci said he was only 50% sure that the same Libyan had returned to the shop.[91]
4 November 1991: Gauci said that the man who bought children’s dresses ‘really looked like him’ [the purchaser] but he seemed confused about the date of the visit.[92]
18 March 1999 or 25 August 1999 (Precognition of Tony Gauci - noted in DCI Bell’s words): ‘the man who bought the dresses looked like the purchaser but it was not the same person’.[93]
Well before his first ‘live’ identification of al-Megrahi at a pre-trial identification parade at Kamp Zeist, Gauci had been exposed to newspaper reports featuring pictures of al-Megrahi alongside articles about him as a suspect. In SCCRC interviews, Gauci firstly admitted seeing the articles but could not recall specifics about them. Later he said that he could not recall seeing the articles, and later still he claimed that he had not seen them at all - a transformation in the same, stepped fashion as most of his ‘recollections’.[94]
The trial verdict cites crucial elements of Tony Gauci’s evidence as ‘accurate’ and ‘entirely reliable’ (Opinion of the Court paragraphs 12 & 67) - confirming again the extent of the misinterpretation of Gauci’s testimony.
Scotland’s former Lord Advocate Peter Fraser of Carmyllie, who authorised the indictments for the accused Libyans in 1991, would admit in 2005 that Gauci was “simple” and indeed “an apple short of a picnic”. He observed “..if you asked him the same question three times he just gets irritated and refuses to answer...You do have to worry...are you putting words into his mouth even if you don’t intend to?” [95]
[86] Grounds of Appeal 2009 (Statement S4677Q pro 469) p. 212 (see also KZ 4802).
[87] Ibid., p. 214. See also: Lockerbie: Case closed (2012) .
[88] KZ p. 4730 (Crown examination).
[89] KZ p. 4804 (cross-examination).
[90] Grounds of Appeal 2009 (Statement S4677F: CP459) p. 63.
[91] Ibid., p.64. Joint Intelligence Group fax 1438, 5th March 1991.
[92] Ibid., (Statement S4677T:CP471) p. 63. It was put to Gauci that he had previously dated the second visit as being on the 21st or 22nd of September, but he couldn’t explain the mix-up.
[93] Ibid. Attachment to JIG fax summarised in the dictated version of DCI Bell’s diary. p.64. [It is not explained how Gauci knew this was not the purchaser, as opposed to his other crucial identifications whence he merely identified a likeness].
[94] Ibid., p.118 – (in reference to: SCCRC Appendix: Interviews Vol.2).
[95] Ashton (2012) p. 299.
A miscarriage
It was Tony Gauci’s testimony alone which led to al-Megrahi’s indictment for the Lockerbie bombing. Al-Megrahi was subsequently convicted because his advocate failed to highlight the profound contradictions in Gauci’s testimony. The error was compounded by the defence’s destructive strategies in the appeal.
The principal critics of the Kamp Zeist proceedings, far from representing a fringe group of ‘conspiracy theorists’, include those with the most appropriate authority and expertise. Among these is Len Murray, now retired as one of Scotland’s most distinguished lawyers in both criminal and civil practice. He was legal adviser to Independent Television (ITV) in Scotland and vice-chairman of the committee recommending appointments of Magistrates to the Secretary of State for Scotland. He has also been a member of the Glasgow Bar Association and of the Royal Faculty of Procurators in Glasgow and Vice-Chairman of the Central Committee the Law Society of Scotland – for which he was media spokesman. Len Murray has represented the Joint Branch Boards of the Scottish Police Federation in civil, criminal and Police disciplinary matters, and served variously as Prosecutor, Sheriff and Chairman of Employment Tribunals.[96]
Murray regarded it as incomprehensible how, based on Gauci’s evidence, ‘the Court could hold that Megrahi made the purchase of the clothing’ and noted that without such evidence, ‘there was no case.’ He declared that the court’s finding that the purchase was made on 7th December ‘bordered upon the perverse’ and was similarly unambiguous about the appeal:
‘...in my respectful opinion two crucial errors were made, namely (i) a concession that there was sufficient evidence to convict; and (ii) a failure to argue s106(3)(b) of the Act...It is fairly trite to say that the verdict of the Appeal Court did not "back up" the verdict of the Court of first instance. The appeal was taken on the wrong points and the refusal of the appeal came as little surprise’.[97]
Robert Black QC, Professor Emeritus of Law at Edinburgh University, former head of its law school and co-editor of the The Laws of Scotland, Stair Memorial Encyclopaedia – was himself originally from Lockerbie. Robert Black has been described in the media as the ‘architect of the Lockerbie trial’ following his initiatives in liaising with Libyan officials to help devise and instigate the eventual trial arrangements under Scottish law, a task which the combined legal and diplomatic resources of the UK and US governments had proven largely unable to undertake. Professor Black has called the Kamp Zeist trial verdict a “disgrace and an outrage”.[98]
Gareth Peirce, hardly requires an introduction, being arguably the UK’s most famous defence lawyer, having uncovered the infamous miscarriages of justice which followed the deadliest IRA bombings of the mid 70s – resulting in the release and the eventual exoneration of several entirely innocent individuals, some of whom had served more than 15 years in prison. Ms Peirce has described the Kamp Zeist trial simply as ‘the death of justice’.[99]
Professor Hans Köchler of the University of Innsbruck and member of the Vienna-based think-tank and NGO the International Progress Organization, has made major contributions to international legal infrastructure including the Reform of the Security Council, the development of the International Court of Justice and the designation of international agreements on, for example, prisoner-of-war exchange. He is or has been a member of at least 20 international committees, boards, societies, advisory groups and academies and has published more than 400 books, papers and articles on human rights, criminal law, international law, and other topics. Professor Köchler, at the invitation of the United Nations Secretary General, attended the entire Kamp Zeist proceedings, analysing his findings in detailed reports. Köchler described the outcome of the trial and appeal as ‘a spectacular case of a miscarriage of justice’.[100]
Postscript
An interview with al-Megrahi appeared on the Reuters website on 3rd October 2011, whose introduction asserted that Megrahi ‘...said his role in the attack had been exaggerated and that the truth about what happened would emerge soon.’ This wording implies a confession whereas the verbatim quote from al-Megrahi in the article - reveals otherwise:
“The facts will become clear one day and hopefully in the near future. In a few months from now you will see new facts that will be announced…The west exaggerated my name”.[101]
As in previous statements, Megrahi had expressed his enduring faith that the truth would eventually prevail. Such was his English, he wrongly used the word ‘exaggerated’ - being unlikely to have familiarity with words like ‘sullied’ ‘blackened’ or ‘besmirched.’ He neither stated nor implied any role in the bombing, an accusation he had steadfastly repudiated for 20 years. Appearing at the climax of the Libyan uprising, the Reuters report described how rebels had invaded al-Megrahi’s home and mistreated him, smashing his front door and stealing his cars. In the interview he said: “I want to die in my own house, among my own family. I hope to god that I will see my country united, with no fighting or war. I hope the bloodshed will stop in Libya. I wish all the best for my country”.
The very misleading report of al-Megrahi’s ‘role’ in the Lockerbie bombing was copied widely by the international Anglophone news media on the 4th October. It was the last major international media portrayal of al-Megrahi, before his death on May 20, 2012.
Al-Megrahi was a kind, modest, deeply religious man as was obvious to those who got to know him and his family, including the spokesperson for the UK victims of the Lockerbie bombing, Dr Jim Swire, whose daughter Flora, died in the bombing. Al-Megrahi’s decency and good character was recognised by his prison officers, by Nelson Mandela - who visited him in prison – and by others who met him.[102] Such views are borne out in the Aljazeera film clips of al-Megrahi speaking from his sick-bed just weeks before his death among which, he imagined meeting Tony Gauci one day and described - in a frail voice - what he would say to him:
“If I have a chance to see him, I am forgiving him. I tell him ...I never ever in my entire life been in his shop.. I never buy any clothing from him...and I tell him that he dealt with me very wrongly.”“I am facing my god very soon. I swear with my god ...which is my god and his god as well...I swear .. I never been to his shop...I want him to know before I die, this is the truth”. (Cit. Lockerbie: Case closed (2012).
It would take either a particularly malevolent sociopath or cold-blooded mercenary to plant a time-bomb aboard a civil airliner intending the murder of all those aboard. There is no evidence that al-Megrahi had anything to do with the Lockerbie bombing and his conviction for the atrocity is transparently false. The process of putting this injustice to rights should not be stalled merely to protect the reputations of either individuals or institutions.
END
[96] See: http://www.lenmurray.co.uk/ (accessed 24 July 2018).
[97] Len Murray, Lockerbie case blogspot, Wednesday, 27 October 2010 (accessed 12 Feb 2013):-
[98] Hugh Miles, Inconvenient Truths, London Review of Books, Vol 19 no.12. June 21, 2007, pp..8-10. http://www.lrb.co.uk/v29/n12/hugh-miles/inconvenient-truths (accessed 27 Mar 2012).
[99] Gareth Peirce, The Framing of al-Megrahi, London Review of Books, 24 September 2009.
http://www.lrb.co.uk/v31/n18/print/peir01_.html (accessed 19 Sep 2012).
2011).
[100] Mahmoud al-Ghirbani, ‘Megrahi says his Lockerbie role exaggerated’ Reuters (3rd October https://www.reuters.com/article/us-libya-britain-megrahi/megrahi-says-his-lockerbie-role-exaggerated-idUSTRE79226V20111003 (accessed 27th Aug 2017).
[101] John Ashton, ‘The Lockerbie Bomber I Know’ p. 8, The Guardian G2, 19th August 2011 http://www.theguardian.com/uk/2011/aug/18/lockerbie-bomber-megrahi-libyan-conflict (Accessed 11 Oct 2011).
