Masking justice with “mercy”

[This is the title of an article by barrister David Wolchover in the current issue of Criminal Law & Justice Weekly. Over nine pages it painstakingly dissects the evidence relating to the conviction of Abdelbaset Megrahi. The following is just one short section of the article:]

Although the trial court found that the Samsonite bag had been carried from Luqa on KM180 they did not find that al-Megrahi had been instrumental in getting it on board. Nor did they find that he brought bomb components to Malta on December 20, and they rejected the Crown’s contention that he had access to explosives in Malta. But they found that he was involved as some sort of accessory on the basis of a package of assumptions: (i) the MST-13 timer was a type which had been supplied, though apparently not exclusively, to the Libyan military/JSO; (ii) al-Megrahi was a member of the JSO; (iii) he bought the clothes in the suitcase from Mary’s House on July 7; (iv) using a false passport for unexplained purposes he made a flying visit to Malta on December 20, returning to Tripoli next day at virtually the same time as KM180 flew out; (v) although there was no evidence as to how the bag could have been placed on board KM180 at Luqa, the Frankfurt evidence was consistent with the possibility that it was.

Having regard to al-Megrahi’s membership of the JSO and the supply of MST-13 timers to Libya, they were able to find that the bag had been put on board KM180 on December 21 because al-Megrahi (a) was the purchaser of the clothes on December 7, (b) was in Malta on December 21, using a false passport with no explanation and (c) was, as they found, therefore “connected,” in some unspecified way with the planting of the bomb. How could they be sure he was the purchaser of the clothes on the basis of mere resemblance to the purchaser and his brief presence in Sliema on December 7? Oh, because the bomb had been flown out of Luqa on December 21, when he was at the airport (using a false passport) and he was therefore “connected” with planting it. But, wait. How could they be sure it had started on its way from Luqa on the 21st? Ah, because he was found to have bought the clothes.

The argument was completely circular. The trial Judges professed to apply the principle of circumstantial evidence, an exercise which normally involves weaving together a number of disparate strands of evidence, reasonably well established or even undisputed though in themselves capable of proving very little, to wrap the accused in a net so tight as to permit no escape from a judgment of guilt. But the actual principle the court applied was petitio principii: assuming what is to be proved as a component of the would-be proof. Thus, a fundamental corruption of basic logic intellectually bankrupted the whole exercise.

The circle is dependent on the soundness of the finding that al-Megrahi was the purchaser. If that finding is wholly unsustainable the circle is broken and the other components prove nothing. The case against al-Megrahi depends therefore on the question whether there is a substantial case for contending that he was the purchaser. There is not.