Sliema shopkeeper Tony Gauci was always going to be the prosecution’s most important asset in pinning guilt for the Lockerbie bombing on Libyan Abdelbaset Ali Mohmed Al Megrahi.
He was the only one to directly link Mr Megrahi to shards of clothing found at the bombing scene by identifying him as “the Libyan man” who went to buy clothes from his shop at around 6.30 p.m. on December 7, 1988.
Lockerbie investigators had concluded that the bomb on Pan-Am flight 103 was placed in a suitcase that contained clothing produced by Yorkie, a clothes manufacturer in Malta, and sold by Mary’s House in Sliema, which belonged to Mr Gauci and his brother Paul.
And Mr Gauci’s testimony proved to be the single most important element at the Lockerbie trial in Camp Zeist, The Netherlands, to help judges deliver a guilty verdict in January 2001.
But a fresh investigation by the Scottish Criminal Cases Review Commission, a body which investigates potential miscarriages of justice, has shed serious doubts on the credibility of Mr Gauci’s testimony.
The report, published for the first time in Scotland on the Sunday Herald’s website, provides an in-depth analysis of the evidence produced in Mr Megrahi’s trial and information that was withheld from the defence that could have been used to challenge Mr Gauci’s credibility.
The report also confirms media reports over the years, which were never challenged, that Mr Gauci and his brother Paul were compensated by the US State Department for the evidence that helped bring Mr Megrahi to justice.
It highlights excerpts of entries in a diary by Scottish police inspector Harry Bell, who took charge of the investigations in Malta, noting Mr Gauci’s interest in monetary compensation.
The commission found that none of the diary entries and memorandums Mr Bell authored, in which witness compensation was mentioned, were ever passed on to the defence.
Of particular interest was a memorandum Mr Bell drew up on February 21, 1991 for his superiors, six days after Mr Gauci had, for the first time, positively identified Mr Megrahi from a photo.
“During recent meetings with Tony he has expressed an interest in receiving money. It would appear that he is aware of the US reward monies which have been reported in the press,” Mr Bell wrote.
In a statement to the commission in 2006, Mr Gauci denied ever discussing compensation with the police, although he did admit awareness of the US reward money. He also alleged that former Libyan leader Col Muammar Gaddafi had also offered him a handsome reward, which he refused.
But the compensation issue also cropped up in 1999 in an assessment report by the Scottish police on including Mr Gauci and his brother Paul in a witness protection programme. It speaks of Mr Gauci’s “frustration” and Paul’s pushiness to get some form of compensation for the troubles they endured.
Without delving into the merits of whether talk of compensation could have influenced Mr Gauci’s testimony, the review commission said the information should have been disclosed to the defence. It concluded that the information could have been used to question Mr Gauci’s credibility and put into serious difficulty the prosecution’s case against Mr Megrahi.
But it is in Mr Gauci’s confusion over Mr Megrahi’s identification where the commission feels “a miscarriage of justice” may have occurred.
Pinpointing December 7, 1988 as the day when the clothes sale happened was crucial for the prosecution because it placed Mr Megrahi in Malta. Any other day before this would have exonerated the Libyan.
Mr Gauci’s testimony in this regard is anything but clear. The only consistent recollection is that on the day he was alone at the shop because his brother Paul was at home watching football.
The only football matches on TV at the time would have been transmitted on RAI, the Italian state television, and would possibly have been linked to European club football matches, putting the day down to a Wednesday.
The prosecution was dilly-dallying between December 7, a Wednesday, and a second day, November 23 – also a Wednesday. But Mr Gauci had also spoken of seeing Christmas decorations “being put up” in the street “a fortnight before Christmas”.
Subsequent research by the defence team, which was never used in the appeal for tactical reasons, revealed that in that year Christmas lights were lit up by then Tourism Minister Michael Refalo on December 6, which means the lights had been “put up” in the preceding weeks.
The court had believed Mr Gauci’s version, even if not solid, as pointing towards December 7 and so incriminating Mr Megrahi.
However, after considering all the evidence before the court on this matter, the review commission concluded there was “no reasonable basis” for the conclusion that the purchase took place on December 7.
The only evidence which favours that date over November 23, the commission said, was Mr Gauci’s account that the purchase must have been about a fortnight before Christmas and his confused description of the Christmas lights going up at the time.
“In light of the difficulties with those two pieces of evidence the commission does not consider that a reasonable court, properly directed, could have placed greater weight upon them than upon evidence of the weather conditions and of Mr Gauci’s statements – in which he said that the purchase had taken place in “November, December 1988”, “November or December 1988” and “at the end of November”. In the commission’s view, those factors taken together point, if anything, to a purchase date of November 23.”
But another question mark hangs over Mr Gauci’s visual identification of the bombing suspect and his early description in police statements of the Libyan as a man, aged “about 50” and of a height that is “about six foot or more”.
In December 1988 Mr Megrahi was 36 years old and measured five feet eight inches, marked discrepancies from Mr Gauci’s man.
But Mr Gauci had consistently, on various occasions in 1989 and 1990, when shown photos of potential suspects by the police, identified two different people: Abo Talb and Mohammed Salem.
It was only in February 1991 that Mr Gauci identified Mr Megrahi as the man who bought clothes from his shop but the prosecution rested heavily on an identification parade held in April 1999, in the months before the trial, when Mr Megrahi was officially indicted.
In the Netherlands, Mr Gauci had pointed to Mr Megrahi and in broken English told investigators: “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 is the number 5.”
The commission noted that an “extraordinary length of time” had passed between the date of purchase and the parade but of more significance was the fact that prior to the parade Mr Gauci was exposed to Mr Megrahi’s photograph in Focus magazine. This “raises doubts as to the reliability of Mr Gauci’s identification” of Mr Megrahi at that time, the commission said.
It did note though that in February 1991, there was no risk of Mr Gauci being influenced by media exposure of Mr Megrahi since no indictments had been issued yet.
“However, like those other identifications, the identification by photograph in 1991 was one of resemblance only and was qualified and equivocal.”
The commission concluded that in the absence of “a reasonable foundation for the date of purchase” and bearing in mind “the problems with Mr Gauci’s identification” of Mr Megrahi, it was of the view that “no reasonable trial court could have drawn the inference” that the Libyan was the buyer of the clothes.
The significance of this conclusion, the commission said, lay in the fact that such a finding “might be capable of undermining” the weight of other evidence against Mr Megrahi such as that relating to his presence at Luqa airport on the morning of December 21, 1988.
Investigators had argued that an unaccompanied suitcase carrying the bomb and containing the incriminating clothing was placed on board an Air Malta flight to Frankfurt, where it eventually made it to Heathrow before being loaded on to the fatal Pan-Am flight.