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Friday, September 18, 2009, 14:27

Malta evidence in published Al Megrahi documents

Lockerbie bomber Al Megrahi is seeking to clear his name.

Lockerbie bomber Al Megrahi is seeking to clear his name.

The Libyan convicted of the Lockerbie bombing has started to publish documents which he claims will prove his innocence.

Central to his evidence, some of which had already been made public, is his rejection of the identification made by Maltese shopkeeper Tony Gauci before a Scottish Court and the claims that the suitcase carrying the bomb was loaded in Malta.

Mohmed Al Megrahi, who has terminal prostate cancer, was freed early on compassionate grounds last month from the life term he was serving at Greenock prison for the bombing.

Before his release, he dropped his second appeal against conviction.

Megrahi said in a statement: "I have returned to Tripoli with my unjust conviction still in place. As a result of the abandonment of my appeal, I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name."

In the documents on the identification by Mr Gauci, Meghrahi's lawyers said the inference that the appellant was the purchaser was pivotal to the conviction - without this conclusion he would have to be acquitted.

In its judgement, the Trial Court relied on three identification procedures involving Mr Gauci:

"(1) On 15th February 1991 the appellant's photograph was included in a spread of 12 photos shown to Tony Gauci. Initially Gauci rejected all the photographs because they showed men who were younger than the purchaser. He was then asked to discount age and to look again. Then he selected the photograph of the appellant saying it was "similar" but "younger".

(2) An identification Parade on 13th April 1999 was held at Kamp Zeist in the Netherlands. The defence made a number of objections that the parade was unfair. These were noted. The parade went ahead. Mr Gauci selected the appellant and said "Not exactly the man I saw in the shop. Ten years ago I saw him, but the man who looked a little bit like exactly is the number 5".

(3) In court at the trial, having been shown a press photograph of the appellant which identified him as the bomber, the witness was then asked if he saw the purchaser in court and he pointed to the appellant and stated "He is the man on this side. He resembles him a lot....That is the man I see resembles the man who came."

El-Megrahi's lawyers said the evidence relied upon was insufficient to entitle any reasonable trier of fact to conclude that the appellant was the purchaser, for the following reasons:

"1. There was no positive identification of the appellant;

2. The selection of the appellant made by the witness Tony Gauci at the various identification procedures was on the basis only of a resemblance and was so qualified as to be meaningless. This was not evidence that the appellant resembled the purchaser for specific reasons but rather that he resembled the purchaser in some specific respects but not in others. At best this was evidence that certain features of the appellant matched the purchaser but others did not. There was nothing about Gauci's evidence which pointed to the appellant as the purchaser as against countless possible others;

3. In any event the evidence was so poor that no reasonable jury could rely on it. There were significant factors present which were liable to produce a wrong identification and which undermined the reliability of that evidence. These included that:

* the amount of time which had passed between the purchase and the identification procedures was wholly exceptional (27 months to the photoshow; 12 years to trial);

* the purchaser was a stranger to Gauci;

* the initial description given by Gauci was wholly inconsistent with the appellant and the Trial Court said it constituted a ‘substantial discrepancy';

* there was extensive prejudicial publicity prior to the identification parade and the trial - such that the witness knew who the suspect was and whom he was expected to identify;

* the 15th February 1991 photo-show, the ID parade and the dock identification were conducted irregularly and those irregularities were liable to undermine the reliability of any selections made. By way of example, at the 15th February photoshow, the appellant's photograph stood out from all the others; following Gauci's response that these photographs were all ‘too young', he was prompted by the senior investigating officer to disregard age and ‘look again' at the photos. At the identification parade, the composition of the line-up was unfair; police officers involved in the investigation were present, contrary to the guidelines. And at trial, when Gauci was in the witness box, he was shown a photograph of the appellant before being asked to point the purchaser out in court."

It was argued that both individually and taken together, these factors rendered reliance upon the so-called identification unreasonable, the lawyers said.

They said there were no other facts or circumstances which could enhance or support the purported identification. In particular the fact that the appellant was staying in a hotel near to the Gauci's shop on the date of the purchase may have made it possible, but did not make it any more likely that he was the purchaser and could not support the purported identification evidence.

LOADING OF BOMB SUITCASE IN MALTA

The lawyers said there were significant problems with the evidence. First, there were opportunities for a bag to be ingested at Frankfurt and Heathrow and there were other unaccompanied bags travelling on PA103A between Frankfurt and Heathrow.

Secondly, there was an absence of evidence of infiltration at Luqa and an absence even of evidence as to how infiltration might be possible in light of the elaborate security and baggage reconciliation system which existed at Luqa Airport.

Finally, there was an inconsistency in the evidence about whether there was an unaccompanied bag on the flight from Luqa to Frankfurt.

While there were computer records from Frankfurt which could be interpreted as suggesting that an unaccompanied bag was loaded at Luqa, there was unchallenged evidence from records and witnesses from Luqa which suggested that this did not happen. Both could not be correct.

"It is not at all clear how the Trial Court reached its conclusion - how they reconciled the evidence or overcame the inconsistency or the basis upon which they considered and rejected the other possible sites of ingestion. Where there are clear inconsistent facts which require to be addressed before an important inference can reasonably be drawn, this ought to be addressed in the judgement. This was not done."

The lawyers said that in order to overcome the inconsistency presented by the evidence from Luqa, which suggested that there were no unaccompanied bags on the flight to Frankfurt, there would have to have been evidence, accepted by the Court, which made it reasonable to conclude that the bag went into the system at Luqa, in spite of what the records and witnesses from Luqa said.

It had been acknowledged by the Crown that the evidence of the Frankfurt records was not itself sufficient and the Crown relied for support on the evidence that the clothing came from Malta and that there were links between Luqa Airport, Libya and the JSO.

"On any view, such ‘connections' are not sufficient. For example, there is a gap in time between the purchase of the clothing and ingestion and there was no evidence about how or where the clothing came to be united with the IED; and there are links between the JSO and many other airports, including Frankfurt. There was no evidence which would properly allow the conclusion that ingestion was or must have been made at Luqa."

Mr Al Megrahi is due to publish more evidence next week.

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