Friday, 1 May 2015

No positive identification of Megrahi

[What follows is a report published in The Herald on this date in 2009:]

Appeal judges were told today there "no positive identification" of a Libyan intelligence officer by a crucial witness at the Lockerbie bombing trial.

A senior counsel said there were "striking discrepancies" in the evidence of a Maltese shopkeeper over the height and age of a man who had bought clothing from him with that of Abdelbaset Al Megrahi.

The clothes were found to have been in a suitcase which housed the bomb that blew Pan Am Flight 103 out of the skies over the Dumfriesshire town in December 1988 killing 270 people.

Margaret Scott QC told the Court of Criminal Appeal in Edinburgh that the testimony of shopkeeper Tony Gauci was at best "a looks like resemblance" between the man who made the purchases and Megrahi.

She said: "When one looks at the identification evidence it is incapable of sustaining a finding that the appellant was the purchaser of the clothing."

The finding was one of four critical inferences made by judges at Megrahi's original at Camp Zeist in the Netherlands in convicting him of murder in 2001.

Megrahi (57) whose health is "deteriorating" as he suffers from prostate cancer, is appealling against the conviction claiming he was the victim of a miscarriage of justice.

He was jailed for life following the guilty finding and ordered to serve at least 27 years for the mass murder.

Megrahi has previous unsuccessfully challenged his conviction, but his case has now been referred back to the appeal court by the Scottish Criminal Cases Review Commission, which examines alleged miscarriages of justice.

His counsel, Miss Scott, said that in 1989 Mr Gauci had described the man who bought the clothes as aged about 50 and six feet in height. Megrahi was aged 36 at the time of the purchase and stood five feet eight inches tall.

"The initial description given by the witness at the outset is substantially different to the appellant both in terms of height and age," she said.

She said Mr Gauci had been shown several photospreads by police on different occasions as they sought his help.

Miss Scott said that at the first which featured a photo of Megrahi, supplied by the FBI, there were aspects of procedure clearly different to the others.

She said initially Mr Gauci said the men featured were younger than the purchaser.

The defence counsel said: "In a sense he rejected the photos on the basis they were too young, but quite unlike before the witness was told to look at the photos again carefully and to try to allow for any age difference."

Miss Scott argued it was "a clear message that the witness needs to try again and a message that there is something there to be found".

She said it was only following this that Mr Gauci picked out the photo of Megrahi as being similar to the man who bought the clothing.

"In my submission, that is highly irregular and liable to introduce the risk of significant error in what he subsequently does," she said.

Miss Scott said that an identity parade held at Camp Zeist in 1999 with Mr Gauci in attendance was also flawed.

She said no other Libyans were part of the line-up and four of the participants were in their 30s and one was five feet three inches tall. "Four people were quite unreasonably young and one was unreasonably short," she told the court.

Mr Gauci picked out Megrahi at the parade as a man "who look a little bit like exactly" the clothes buyer.

The defence counsel said: "It is quite clear there has been no positive identification of the appellant as the purchaser. At best the witness makes a form of resemblance identification."

The hearing before five judges continues.


  1. This is all like kids, in their own fantasy world, making up the views that somehow fit with how they'd like it to be.
    Were they seriously discussing the real value of Gauci's identification?

    "Miss Scott said that an identity parade held at Camp Zeist in 1999 with Mr Gauci in attendance was also flawed."

    I clearly recall seeing a picture of Fhimah and Megrahi, on TV, while I still lived in Denmark.
    In other words, his picture has been out there for something like 10 years, broadcasted worldwide.

    Identification parades, with images known from earlier views on mugshots, are known to be highly problematic. People subconsciously 'identifies' something. How surprising.

    Just how many times have Gauci, at the time of that parade have seen, or had the chance of seeing Megrahi's picture?

    Making a parade in Zeist is simply laughable. Brainless. It should have been flatly rejected.
    Did his defense team sleep?

    You don't have to be a lawyer to understand how it works. It is not a matter if something genuinely constitutes evidence. The important thing is if it later can and will be interpreted, however absurdly, as evidence.

    - - -

    Reading the verdict clearly shows a case, where only two witnesses, both in close contact with the prosecution in a highly politically sensitive matter, implicated the person Megrahi.

    Discarding Giaki, we have left that the implication is that "this person bought clothes for the suitcase. Knowing what else we know about him means, that he must be knowingly associated with a plot to bomb a plane".
    Interestingly, this seems to be widely accepted, even in the Megrahi-supporters camp.
    What other circumstances justifies it? Is he known to be associated with bomb making? Did he move in criminal circles?

    There is a tendency to only dispute one critical issue, and not the assumptions leading to it. How certain can we be, that the clothes were bought on a day where there was football in TV, leaving two possible dates.
    Oh, that is what Tony recall, then it must be a fact. Because people wrongly associating two events with one particular day, that is of course an unknown phenomenon, right? No, trivially common.

    Even if the Luqa-Frankfurt-Heathrow link would be a fact, and "certainly done by Libya" do we have any answer to the question of "How many Libyans would have been on Malta when LM180 was about to take off?"

    If there would have been a hardcore Libyan bomb maker with deep links into the Libyan military, would we have reasons to think we would know?

    - - -

    One word characterizes the first trial:

    Giving into the needs of making (highly wanted) conclusions on a totally insufficient base, as it is all we have and will get.

    The hugeness of the disaster, the involvements of governments and investigative authorities, and enormous resources available blind nearly everyone.

    Most conspiracy theories I have ever looked into are, however rejectable, endlessly better founded than the conviction of Megrahi.

  2. That's a very thought-provoking post SM. We see conflicting and contradictory and confused evidence, and try to make sense of it by accepting the plausible parts as being true. So the story about the purchase being on the day of the football match and so on. But even that may be mistaken recollection. Tony wasn't asked about the purchase until nine months after the event. It was an unremarkable occurrence. It's surprising he remembered it at all, and probably delusional to imagine that even the plausible details are exactly as he says he remembers them.

    As far as the original identification goes, it's clear the police weren't actually trying to find out who bought the clothes. They were trying to elicit statements from Tony that could be represented as his having identified Megrahi as the purchaser. Any appraisal of how likely this was (for example whether Megrahi actually fitted Tony's original description of the purchaser) was conspicuous by its absence.

    It has been observed that anyone interested in the Lockerbie case could have picked Megrahi out of the identity parade without much difficulty, even if they'd never clapped eyes on him in person in their lives. The judges seem implicitly to have realised this, because the wording of the judgment s something like they believe that even though Megrahi was easy to pick out, Tony fingered him because he really believed he was the purchaser, not just because he was the was pick. It's unconscionable.

    The man who was implausibly small was the only man older than Megrahi in the line-up. He was still under 50. By Tony's original description, they should have been looking for a man in his early 60s by 1999. Several of the foils would have only been in their 20s at the time of the clothes purchase (one man who was rejected by the defence would have been only 14!) Several of the foils were Dutch police officers, for God's sake.

    And then we're back to this bloody "ezattament" word, which Herman Grech confirms is a filler word. Its use in this context, and its translation to "exactly", gives a spurious sense of positivity to what was in fact a non-identification response. "The man who look a little bit like" the purchaser is not an identification. Whatever "ezattament" means, it isn't an expression of a belief that he looked "exactly" like the man.

    Leave out the filler word, and you get, "Not the man I saw in my shop, but the man who looks a little bit like...." Given that we know Megrahi was easy to pick out of the line-up, It's arguable that Tony was saying, yes I know this is the man you want me to pick out, he's the one who looks a little bit like the man I saw in my shop but it's not the same man. Of course, if you'd pressed him on whether that's what he meant, I think he'd have back-pedalled, in view of the prospect of reward that had been dangled in front of him is Megrahi was convicted.

  3. I have read the expert reports on Identification in this case and conclude a Partial Identification is in no way shape or form a Positive Identification.
    Only in Scotland are partial Identifications admissible.
    If memory serves me rightly Gauci had a photo of Megrahi in his pocket when he appeared for the ID Parade which clearly shows his evidence is flawed.
    Even with this photo in his pocket he could not positively Identify Megrahi.
    What does this tell us aboiut the Identifiction evidence in this case ?

  4. He didn't have a photo of Megrahi in his pocket.

    He had had a magazine in his possession which contained a photo of Megrahi, but that was taken from him four days before the identity parade. He could have had it for several months before that though.

    So, wrong in exact detail, but pretty much right on the principle of the thing.