The key witnesses in the trial of Lockerbie bomber Abdelbaset al-Megrahi had initially refused to appear before the  Scottish Criminal Cases Review Commission (SCCRC), which investigates potential miscarriages of justice, according to a report just published.

The commission found that a miscarriage of justice may have been commited in the Lockerbie bombing case but it found no basis for concluding that evidence in the case was fabricated by the police, the prosecution, forensic scientists or any other representatives of official bodies or government agencies.

At the end of an 800-page report, the commission says: "In accordance with the principles set out at the beginning of this chapter the Commission has also considered whether, notwithstanding its conclusion that a miscarriage of justice may have occurred, the entirety of the evidence considered by it
points irrefutably to the applicant's guilt. The Commission's conclusion is that it does not.

"In these circumstances the Commission believes not only that there may have
been a miscarriage of justice in the applicant's case, but also that it is in the interests of justice to refer the case to the High Court. The Commission accordingly does so."

The commission says that its enquiry team visited Malta on five separate
occasions, mainly to interview witnesses. The initial visit, during which an
introductory meeting was held between representatives of the Commission, the British High Commission and the office of the Attorney General of Malta, took place in November 2004. In December 2004, a further visit took place in which a number of witnesses were interviewed, mainly in connection with points raised in the further submissions made by lawyers MacKechnie and Associates.

Further visits took place in May and November 2005 and August 2006.

The Commission sought at an early stage of its enquiries to establish whether
Anthony and Paul Gauci - who said they sold items to Megrahi from their shop in Sliema - would be willing to cooperate in its investigation. 

"It quicklybecame apparent that neither witness was prepared to do so."

In July  2004 the Commission was advised that it was unlikely that they would submit to interview in the absence of some means of compelling them to do so.

The then Maltese Attorney General of Malta Dr Silvio Camilleri at the meeting  in November 2004 said that although he was confident that the majority of witnesses the Commission sought to interview would cooperate, he did not believe that Anthony and Paul Gauci would do so.

It was explained to Dr Camilleri that under UK domestic law the Commission was not empowered to issue, or to have issued, letters of request to foreign judicial authorities to obtain their assistance in securing statements from reluctant witnesses. In these circumstances, Dr Camilleri was asked to what extent Maltese law and procedure might assist the Commission in securing the cooperation of reluctant witnesses. Dr Camilleri explained that article 649 of the Maltese Criminal Code  had recently been amended to allow the Attorney General to receive letters of request not only from foreign courts but also from “administrative” authorities.

Dr Camilleri seemed confident that the Commission could make some use of these provisions.

The commission that sought an agreement or understanding between the UK and Malta, the terms of which would permit the Attorney General of Malta to receive and act upon requests by the Commission under article 649(1) of the Code.

The issue was raised with the British foreign office in January 2005. After considerable correspondence and efforts by the Commission, the British High
Commission and the Foreign Office, the Understanding was finally signed on 6 June 2006

Finally, interview wwith both witnesses took place in Malta on 2 and 3 August 2006.

In January 2007, Paul Gauci provided a brief supplementary account in which he sought to clarify several aspects of his initial statement. Copies of both statements were sent to him and, subject to those clarifications, he confirmed that they reflected his position.

The Commission considered sending Anthony Gauci’s statement to him, but because he does not read English it was decided that the best means of confirming its contents was to arrange a further meeting with him. As they
had been interviewed separately the Commission also wished to avoid a situation in which Paul Gauci became involved in reading Anthony Gauci’s statement to him.

The Commission was informed, however, that Anthony Gauci was unwilling to attend a further meeting and accordingly the terms of his statement were not been approved by him.