Critical inferences not sufficiently supported by evidence

[The appeal permitted by the Scottish Criminal Cases Review Commission began at the High Court of Justiciary on this date in 2009, twenty-two months after the SCCRC reported and five years and seven months after Abdelbaset Megrahi’s application to the SCCRC was submitted.

A report in The Herald of 28 April 2009 reads in part:]

A previously-unseen witness statement is expected to undermine the identification of the man convicted of the Lockerbie bombing, the long-awaited appeal which begins today will unveil. (...)

These will include the previously unseen statement of David Wright, a friend of Tony Gauci, the Maltese shop owner whose identification of Megrahi was crucial to the conviction.

Mr Wright allegedly gave a "remarkably" similar description of a sale made at Mr Gauci's shop in Malta to the one used to implicate Megrahi. He gave a statement to English officers in December 1989.

A source said: "The new witness provides an account which is startling in its consistency with Mr Gauci's account of the purchase but adds considerable doubt both to the date of the purchase and the identification by Mr Gauci of Megrahi as the purchaser." (...)

The hearing before the Scottish Court of Criminal Appeal in Edinburgh, is due to sit for four weeks at a time with a month's break in between.

The defence team will question why the original trial excluded the incrimination of a terrorist cell that was operating in Germany shortly before the tragedy and why an inconsistent witness paid financial reward, could have been credible.

They will raise concerns about the trial's exclusion of the defence case to incriminate Abu Talb, who was subsequently convicted in Sweden of terrorist offences, and other members of the Popular Front for the Liberation of Palestine - General Command (PFLP-GC), the terrorist cell that was operating in Germany before the Lockerbie bombing.

They will argue that his right to a fair trial has been breached and that the original case was not proven.

The appeal will also scrutinise the trial court's finding that the suitcase carrying the bomb was put on the plane at Luqa airport in Malta.

The case was referred back to the appeal court in June 2007, following a long investigation by the Scottish Criminal Case Review Commission which concluded it may have been a miscarriage of justice on six separate points.

However, Megrahi, who is suffering from terminal prostate cancer, could be transferred home to Libya under an agreement being rushed through parliament by Jack Straw, the UK Justice Secretary. While he is keen to clear his name in court, there is concern that he may not survive the long appeal process.

[A report later the same day on the BBC News website reads in part:]

Abdelbasset Ali al-Megrahi, 57, who has prostate cancer, was not in court as his second appeal got under way.

However his QC, Maggie Scott, said he could follow proceedings via live video link to Greenock Prison.

She told the Court of Appeal that it remained Megrahi's view that he had suffered a "miscarriage of justice". (...)

Miss Scott said that because of his cancer Megrahi would need to take breaks due to the pain and was set to see doctors later this week for a new course of treatment.

She told the court: "The appellant's position is that there has been a miscarriage of justice.

"The trial court, on the basis of wholly circumstantial evidence, concluded beyond reasonable doubt that the appellant was involved in the commission of this crime.

"Our submission is it was wrong to do so".

She argued that the guilty verdict against Megrahi depended upon four "critical inferences" drawn at his trial at Camp Zeist in the Netherlands.

Miss Scott said these included that Megrahi was the buyer of clothing remnants of which were found in the suitcase containing the bomb and that the purchase was made on 7 December, 1988.

She said it was also inferred that the purchaser knew the purpose for which the clothing was bought and that the suitcase containing the improvised explosive device was "ingested" at Luqa airport in Malta.

The defence counsel argued that they were not sufficiently supported by accepted evidence and relied on defective reasoning.

She said: "In this wholly circumstantial case the critical inferences are not the only reasonable inferences that could have been drawn from the accepted evidence."

She said they were insufficient in law to support the guilty verdict returned against Megrahi.

The first part of his hearing is expected to last four weeks with further stages in the process taking it into next year.

"No reasonable basis in trial court's judgment for its conclusion..."

What follows is an item originally posted on this blog on this date in 2009:

Lockerbie investigators to travel to Malta to seek new evidence

[From an article by David Lindsay in the online version of today's edition of The Malta Independent. The full article can be read here.]

A delegation from the Scottish Crown is due to travel to Malta in the very near future to “actively seek the consent for disclosure” of sensitive documents that could determine a the outcome of convicted Lockerbie bomber Abdul Baset Ali al-Megrahi’s appeal, the High Court in Edinburgh was told on Friday.

The delegation will be looking for previously undisclosed documents related to statements given by a friend of Maltese shopkeeper Tony Gauci, David Wright, who in 1989 raised concerns over Gauci’s identification of al-Megrahi.

The news comes amid arguments presented by al-Megrahi’s defence team, which contended evidence given by the potential witness in the Lockerbie bombing investigation could have undermined the prosecution’s case, but had never been presented in court or given to the defence team. (...)

Gauci claimed that on 7 December 1988 he had sold the former Libyan intelligence officer the clothes later found inside the suitcase holding the bomb that brought down Pan Am flight 103 over Lockerbie in Scotland, killing all 270 people aboard.

Al-Megrahi’s defence team argued on Friday that evidence given by a friend of Gauci, a certain David Wright could very well have scuttled the prosecution’s case but the evidence had never been presented in court or handed over to the defence team.

Wright was said to have approached the Maltese police in September 1989 and the officers in England in December with a statement contradicting Gauci’s evidence.

Defence counsel Maggie Scot argued that Wright had given a “remarkably” similar description to that used by Gauci to implicate al-Megrahi in the bombing of another unrelated sale made by Gauci at his family’s shop, Mary’s House in Sliema.

But Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

Speaking in court on Friday, Ms Scott said, “Mr Wright gave statements to police in England saying he was a friend of Mr Gauci and that he had witnessed a transaction at Mr Gauci’s shop which bears a remarkable resemblance to the sale to the two men Mr Gauci described.”

Al-Megrahi’s defence is demanding that the previously undisclosed evidence it believes will help free their client be made available in time for the commencement of the appeal hearing, due to begin on 27 April.

Such evidence includes any documents related to Wright, as well as any documents showing Mr Gauci had been interested in a financial reward for his evidence.

Al-Megrahi’s lawyers are also asking for video footage of the identification parade in which Gauci had singled out al-Megrahi, as well as the details of those who had been selected to participate in the parade.

In addition to Malta, the Crown will also be approaching other foreign sources, but stressed some of the material being requested could have security implications in the respective countries should it be made public.

The call for documents related to Gauci’s interest in a financial reward for positively identifying al-Megrahi comes amid claims that Tony Gauci and his brother Paul were paid millions of dollars each by the US Federal Bureau of Investigation as a reward for their help in convicting al-Megrahi, claims the FBI vehemently denies. (...)

Al Megrahi was found guilty of the Lockerbie bombing in 2001 and although he lost a previous appeal against his conviction in 2002, the SCCRC in June 2007 referred the appeal back to court after it found six grounds that may have constituted a miscarriage of justice. Grounds mainly related to Gauci’s evidence.

In approving a new appeal, the Commission had found “there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House took place on 7 December 1988” as Gauci had claimed. 

Although it had been proven that al-Megrahi had been in Malta on several occasions in the month in question, it had determined that 7 December 1988 was the only date on which he would have had the opportunity to make the purchases from Mary’s House.

New evidence given to the Commission concerned the date on which Christmas lights had been turned on in Tower Road, Sliema near Mary’s House. Taken together with Gauci’s evidence at the trial and the contents of his police statements, the date indicates that the purchase of the incriminating items had taken place before 6 December 1988 – when no evidence had been presented at trial to the effect that the al-Megrahi was in Malta before the date.

Yet more new evidence given to the Commission indicated Gauci, four days before the identification parade at which he picked out al-Megrahi, had seen a photograph of al-Megrahi in a magazine article linking him to the bombing. 

The Commission found that Mr Gauci’s exposure to the photograph, so close to the date of the identity parade, “undermines the reliability of his identification of the applicant at that time and at the trial itself”.

From the archive: Lockerbie investigators to travel to Malta to seek new evidence

[During this fallow period for news relating to the Lockerbie case, here is an item originally posted on this blog four years ago on 22 February 2009:]

A delegation from the Scottish Crown is due to travel to Malta in the very near future to “actively seek the consent for disclosure” of sensitive documents that could determine a the outcome of convicted Lockerbie bomber Abdul Baset Ali al-Megrahi’s appeal, the High Court in Edinburgh was told on Friday.

The delegation will be looking for previously undisclosed documents related to statements given by a friend of Maltese shopkeeper Tony Gauci, David Wright, who in 1989 raised concerns over Gauci’s identification of al-Megrahi.

The news comes amid arguments presented by al-Megrahi’s defence team, which contended evidence given by the potential witness in the Lockerbie bombing investigation could have undermined the prosecution’s case, but had never been presented in court or given to the defence team. (...)

Gauci claimed that on 7 December 1988 he had sold the former Libyan intelligence officer the clothes later found inside the suitcase holding the bomb that brought down Pan Am flight 103 over Lockerbie in Scotland, killing all 270 people aboard.

Al-Megrahi’s defence team argued on Friday that evidence given by a friend of Gauci, a certain David Wright could very well have scuttled the prosecution’s case but the evidence had never been presented in court or handed over to the defence team.

Wright was said to have approached the Maltese police in September 1989 and the officers in England in December with a statement contradicting Gauci’s evidence.

Defence counsel Maggie Scot argued that Wright had given a “remarkably” similar description to that used by Gauci to implicate al-Megrahi in the bombing of another unrelated sale made by Gauci at his family’s shop, Mary’s House in Sliema.

But, Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

But, Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

Speaking in court on Friday, Ms Scott said, “Mr Wright gave statements to police in England saying he was a friend of Mr Gauci and that he had witnessed a transaction at Mr Gauci’s shop which bears a remarkable resemblance to the sale to the two men Mr Gauci described.”

Al-Megrahi’s defence is demanding that the previously undisclosed evidence it believes will help free their client be made available in time for the commencement of the appeal hearing, due to begin on 27 April.

Such evidence includes any documents related to Wright, as well as any documents showing Mr Gauci had been interested in a financial reward for his evidence.

Al-Megrahi’s lawyers are also asking for video footage of the identification parade in which Gauci had singled out al-Megrahi, as well as the details of those who had been selected to participate in the parade.

In addition to Malta, the Crown will also be approaching other foreign sources, but stressed some of the material being requested could have security implications in the respective countries should it be made public.

The call for documents related to Gauci’s interest in a financial reward for positively identifying al-Megrahi comes amid claims that Tony Gauci and his brother Paul were paid millions of dollars each by the US Federal Bureau of Investigation as a reward for their help in convicting al-Megrahi, claims the FBI vehemently denies. (...)

Al Megrahi was found guilty of the Lockerbie bombing in 2001 and although he lost a previous appeal against his conviction in 2002, the SCCRC in June 2007 referred the appeal back to court after it found six grounds that may have constituted a miscarriage of justice. Grounds mainly related to Gauci’s evidence.

In approving a new appeal, the Commission had found “there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House took place on 7 December 1988” as Gauci had claimed.

Although it had been proven that al-Megrahi had been in Malta on several occasions in the month in question, it had determined that 7 December 1988 was the only date on which he would have had the opportunity to make the purchases from Mary’s House.

New evidence given to the Commission concerned the date on which Christmas lights had been turned on in Tower Road, Sliema near Mary’s House. Taken together with Gauci’s evidence at the trial and the contents of his police statements, the date indicates that the purchase of the incriminating items had taken place before 6 December 1988 – when no evidence had been presented at trial to the effect that the al-Megrahi was in Malta before the date.

Yet more new evidence given to the Commission indicated Gauci, four days before the identification parade at which he picked out al-Megrahi, had seen a photograph of al-Megrahi in a magazine article linking him to the bombing.

The Commission found that Mr Gauci’s exposure to the photograph, so close to the date of the identity parade, “undermines the reliability of his identification of the applicant at that time and at the trial itself”.

[From an article by David Lindsay in the online version of today's (ie 22/02/09) edition of The Malta Independent. The full article can be read here.]

McLetchie makes it political and insults the Lockerbie dead

[This is the headline over an item posted today on Jim Swire and Peter Biddulph’s blog Lockerbie Truth. It reads as follows:]

Scottish Conservatives justice spokesman David McLetchie MSP has become the front-man for those who wish to conceal the truth about the Lockerbie trial. In doing so the Scottish Conservatives have politicised the Lockerbie disaster.

Is Mr McLetchie really aware that he is defending the following? -

1. Secret offers of huge rewards to the prosecution's main witnesses Maltese shopkeeper Tony Gauci and CIA double agent Majid Giaka were made throughout the two year police investigation. The records of these offers were concealed from the defence and judges by the combined actions of senior policemen, Crown officials, and members of the FBI.

2. Many of these policemen and FBI officers are named in the SCCRC report. 

3. The importance of keeping these offers secret was made clear in a memo dated 15th May 2007 written by DI Dalgliesh (Dalgliesh now, apparently, heads the Lockerbie police team).  In the memo Dalgliesh tells his colleagues of the danger of the information becoming public: "[there is] a real danger that if [the] SCCRC’s statement of reasons is leaked to the media, Anthony Gauci could be portrayed as having given flawed evidence for financial reward…”

4.  Flawed evidence for financial reward is exactly what Gauci did give.  

5.  At the height of the Lockerbie police enquiries, a new witness appeared.  David Wright gave a statement to the Dumfries and Galloway police suggesting that Gauci had been totally confused about the date of purchase of clothes, remnants of which had been found at Lockerbie. If Wright was correct, then Al-Megrahi could not have been the purchaser, since he was not in Malta when Wright had witnessed the actual purchase. 

6. If [Megrahi] was not the purchaser, then the main plank of the prosecution case would evaporate.  Al-Megrahi would most probably have walked free from the court. 

7.  The police quietly filed Wright's statement, and his existence was concealed from the Lockerbie trial. Both the investigating detectives and Crown lawyers knew of his existence but kept the information from the trial judges and defence.

8.  Wright and his statement were discovered only during a three-year inquiry by officers of the SCCRC.  He swore an affidavit reaffirming his original claims.  His evidence forms part of the so-far unpublished SCCRC report. 

9.  The existence of Wright and his statement and affidavit are another reason that the Scottish police, Crown office, and certain members of the FBI are afraid of publication of the SCCRC's report. 

10.  There were other important matters concealed from the judges and the defence, and we will comment on these at an appropriate time. 

This latest merging of attempts at concealment by the police and Crown office with the Scottish Conservative party is an insult to the dead of Lockerbie.

Lockerbie’s hidden witness

[I am grateful to Jim Swire and Peter Biddulph for allowing me to reproduce the following extract from their unpublished book Lockerbie: Unfinished Business.]

Not contained in Harry Bell’s diaries, but held on police files, was information concerning a David Wright, a second identification witness to the purchase of clothes in Gauci’s shop.

On 6th November 1989 the BBC Six O’Clock News showed footage which mentioned for the first time that a suitcase containing the bomb was introduced in Malta. Images of Gauci’s shop Mary’s House were displayed. The commentary mentioned fragments of clothes found at the crash site, and that they had been purchased from Mary’s House by an Arab man. Watching the programme was a regular visitor to Malta, Mr David Wright.

A week later Wright contacted Dumfries and Galloway police. One month later, on 18th December 1989 he signed a statement. He claimed that he was a frequent visitor to Malta and a friend of Tony Gauci. He would spend time in Tony’s shop. During one of his visits made between 28th October and the 28th of November 1988 he was in the shop when two men entered saying they were interested in purchasing some clothes. With Gauci offering guidance they proceeded to buy various items of clothing. They were smartly dressed, one wore a dark suit and he had swarthy skin. Both were aged over forty-five years. They spoke English, said they were Libyan, and were staying at the Holiday Inn. During the purchase, Wright recalls Gauci boasting that he could tell the size of people just by looking at them.

Wright gave descriptions of the two men, neither of which matched the accused al-Megrahi. He said that he subsequently recognised the younger of the two men from a TV programme when the man appeared as a spokesman for the Libyan government. Wright claimed that Gauci later described the two as “Libyan Pigs”. Wright told the police that when he spoke to Gauci around the time of the BBC News broadcast, Gauci appeared not to remember the event.

The SCCRC traced the police records of Wright’s contacts and interviews. His statement was initially flagged by the police for action on 18th December 1989, but changed to “filed” on 13th February 1990. Seventeen years later, on 5th December 2007 Wright was interviewed by officers of the SCCRC and signed an affidavit restating all of his previous account.

The key feature of Wright’s statement is the date of the purchase. The Crown made much of al-Megrahi’s presence in Malta on 7th December 1988. And that day was chosen by the judges as the most likely, seemingly on the premise that unproved inferences elsewhere in the Crown case indicated that al-Megrahi was the culprit. Yet if Wright’s statement is correct, the purchase must have been on a different day, possibly but not necessarily the 23rd November. Whatever day it was, al-Megrahi could not have been one of the purchasers, since his passport records showed that he was not in Malta on any of the days when Wright was present.

Wright’s statement was given to the Dumfries and Galloway police at the height of their investigations led by Harry Bell and DCI Gilchrist. “The most intense police investigation in Scottish legal history” was daily news throughout the force. It seems to me inconceivable that the police officer or officers recording Wright’s statement were unaware that it was a critical link in the chain of evidence. I have no doubt that they sought advice from senior officers.

There are, therefore, serious questions that must be put to those who recorded Wright’s statement and filed it. Who did you inform about the David Wright statement? Were they aware of its content? What instructions did they give you as to what to do with the statement? When the decision was taken to file the statement and not include it in the Lockerbie evidence file, who took that decision? Was that person Harry Bell or DCI Gilchrist? Unfortunately, without a second appeal or further inquiry into Lockerbie, these questions will never be addressed. The public and the judges will remain unaware of their significance, and yet another element of Scottish justice will remain corrupted.

Wright’s statement remained undisturbed in police archives for eighteen years. The trial and appeal judges and the defence team were unaware of its existence.* We can though be sure that if the defence had been aware of Wright’s statement they would have invited him to give evidence. And if credible he would have contradicted Gauci’s recollection of events. Stronger cross examination of Gauci would have followed which almost certainly would have changed the direction of the trial. Yet the information was never revealed by the Scottish Crown. It was a clear breach of the Lord Advocate’s duty to disclose the statement to the defence and the court, and raises serious doubts concerning the integrity of the entire investigation.**

*SCCRC disclosures and Grounds of Appeal page 143.
**Ibid pages 142 – 148.

Malta asked to support demands for UN inquiry on Lockerbie

[This is the headline over an article by Caroline Muscat in today's edition of the Maltese newspaper The Sunday Times. It reads in part:]

Maltese witnesses paid over $3 million - defence claims
The government has been asked to support an international attempt to request the United Nations to conduct an inquiry into the Lockerbie bombing.

The letter is signed by 20 people including the families of the victims, authors, journalists, professors, politicians and parliamentarians, as well as Archbishop Desmond Tutu - well-known for defending human rights worldwide. The government said it was considering the call for the inquiry.

The letter asks the UN to help remove "many of the deep misgivings which persist in lingering over this (Lockerbie) tragedy". Such an effort could also eliminate the Malta connection with the terrorist act.

Malta was brought into the case because the prosecution argued that Abdel Basset Al-Megrahi and Al-Amin Khalifa Fahima had placed the bomb on an Air Malta aircraft before it was transferred at Frankfurt airport to a feeder flight [Pan Am 103A] for Pan Am flight [103] which departed from London. (...)

The second appeal of the convicted bomber, Mr Al-Megrahi, was expected to produce evidence that had not been made available at the trial and remove doubts that continue to linger on the verdict.

But Mr Al-Megrahi, who is terminally ill, was released from Scottish prison in August on compassionate grounds and abandoned his appeal to return to Libya.

The convicted bomber has always maintained his innocence. In a bid to clear his name before he succumbs to cancer, he began publishing documents that were to have featured in the appeal on the website www.megrahimystory.net.

The papers, he insists, provided enough grounds to have secured his release on appeal, if it had not been dropped. The first 300-odd pages of documents refer to Malta and the testimony of Maltese shopkeeper Tony Gauci.

Mr Gauci had identified Mr Al-Megrahi as the man who bought the clothes from his shop in Sliema that were later found wrapped around the bomb. But, according to the documents, Mr Gauci's testimony was replete with inconsistencies.

Moreover, the published documents state that Mr Gauci was paid "in excess of $2 million", while his brother, Paul Gauci was paid "in excess of $1 million" for their co-operation.

Sky News reported last Friday that Tony Gauci was now living in luxury in Australia. The payment had not been disclosed at the original trial, nor had the documents related to it.

Excerpts from interviews conducted for the case that were revealed in the published documents quote former Police Commissioner George Grech and the former Head of the Security Services Godfrey Scicluna saying they were of the opinion that Tony Gauci "had become confused about things".

Yet, statements by representatives of the highest government authorities in Malta at the time were overruled in favour of Tony Gauci's testimony.

Another witness, David Wright, a regular visitor to Malta and friend of Tony Gauci, also filed a statement with the police in the UK saying that he was at the shop when the clothes were bought and that Mr Al-Megrahi was not the buyer. Yet, he was never called to testify.

Foreign Affairs Minister Tonio Borg yesterday told The Sunday Times: "Since 1988, successive governments have insisted that according to our records, the bomb did not leave [from] Malta. We are still firm in that conviction." (...)

Dr Borg said the letter to the UN requesting an inquiry was an interesting development that would be "deeply" considered, although he referred to complex issues surrounding the event.

"We cannot ignore that there were two judgments on Mr Al-Megrahi. The fact that the second appeal was initiated does show that doubts persist on the verdicts. Unfortunately, it was not concluded," Dr Borg added.

Hans Koechler, who was handpicked by the then UN Secretary-General Kofi Annan to monitor proceedings, said in his report following the original verdict that a "miscarriage of justice had occurred". Dr Koechler told The Sunday Times that oil interests and joint security considerations have prevented the truth from emerging.

The sentiment that political interests dominated the trial is echoed by Robert Black, the legal expert who was the architect of the original trial. He is one of the signatories to the letter demanding a full public inquiry.

Revealed: Scots link in $3m Lockerbie pay-out

[This is the headline over an article by Lucy Adams in today's edition of The Herald on the materials published yesterday on Abdelbaset Megrahi's website. It reads in part:]

Scottish police officers took an active role in seeking a $3m-plus reward for a key witness in the Lockerbie bombing trial and his brother, previously secret papers revealed yesterday.

The documents, which were never disclosed to defence lawyers working for Abdelbaset Ali Mohmed al Megrahi, also point to another potentially important eye witness whose evidence was never followed up by detectives.

Those revelations, published on Megrahi’s website, further undermine the credibility of Tony Gauci, the Crown’s main witness at Camp Zeist. (...)

It will fuel fears of a miscarriage of justice, and strengthen calls for an independent inquiry into Lockerbie.

A four-year investigation by the Scottish Criminal Cases Review Commission (SCCRC) found a number of documents which had not been shown to the defence. The non-disclosure would have been a key plank of Megrahi’s appeal, which he abandoned shortly before his release from Greenock Prison in August. (...)

The papers reveal that Tony Gauci received more than $2m after the trial and Paul, who never testified at Camp Zeist but “exercised considerable control over his brother”, received more than $1m. The family previously had financial problems.

Megrahi’s website summary [RB: I can find no trace of this summary on the website] states: “Tony Gauci and Paul Gauci had both expressed an interest in financial reward prior to giving evidence at trial. None of the documents in which references to the brothers’ financial interest or to the FBI offers of reward was disclosed and no mention of this was made to the defence. Many of the references . . . were in diaries kept by police officers. Parts of the diaries were missing and, most unusually, no police notebooks were kept. Letters written by the Scottish police to the US Department of Justice applying for a reward on behalf of the Gauci brothers were also recovered.”

Another section suggests Megrahi might not have bought clothes later found next to the suitcase carrying the Lockerbie bomb. A new witness called David Wright claims to have seen other men buying them in Tony Gauci’s shop in Malta.

In November 1989, Mr Wright called Dumfries and Galloway Police to say he had been in Mr Gauci’s shop when two Libyans bought similar clothing. He said Mr Gauci referred to them as “Libyan pigs”. But his statement was never followed up by police.

A Crown Office spokeswoman said yesterday: “All of these issues could have been raised during the course of the appeal which Mr Megrahi abandoned.”

[A further article by Lucy Adams in the same newspaper is headed "Is this man key to Lockerbie ...or was he just after the cash?" The following are extracts.]

Tony Gauci, a Maltese shopkeeper, became the Crown’s key witness in the conviction of Abdelbaset Ali Mohmed al Megrahi, and was the one man who linked the suspect to clothes found in the suitcase that harboured the bomb.

But new allegations published yesterday, which would have been tested in court if the appeal that began in April had gone ahead, have undermined both his credibility and reliability.

Papers on Megrahi’s website reveal that Gauci and his brother Paul were interested in financial reward from the start of the case, and that between them they received at least $3m (£1.88m) at the end of the trial.

Previously-secret police reports dating back to 1999 indicate “the frustration of Tony Gauci that he will not be compensated” and that “in respect of Paul Gauci, it is apparent from speaking to him for any length of time that he has a clear desire to gain financial benefit from the position he and his brother are in relative to the case.

“As a consequence he exaggerates his own importance as a witness and clearly inflates the fears he and his brother have.

“He is anxious to establish what advantage he can gain from the Scottish police.

“Although demanding, Paul Gauci remains an asset to the case but will continue to explore any means he can to identify where financial advantage can be gained.”

Offering witnesses financial remuneration is anathema to the Scottish system, and yet this information, uncovered by the investigation of the Scottish Criminal Cases Review Commission, was never disclosed to the defence.

Megrahi’s website states: “It is a matter of common sense, and it has long been recognised in Scots law, that the existence of a financial interest and/or the offer of rewards to a witness is of considerable importance in relation to the credibility of that witness.

“Depending upon the nature and degree of any such interest or reward, the law may exclude the evidence of the witness, or leave the effect of same on the witness to be weighed by the jury.” (...)

Megrahi’s website summary [RB: Again, I can find no trace of this summary] also states: “The documents also indicate that Tony Gauci had been visited by the Scottish police on more than 50 occasions – many, perhaps even the majority, of which were unrecorded.

“This information shows that the witness has significantly changed his position over time regarding the items sold.

“In addition there is a clear inference from the timing and context of these inconsistent statements that the witness has been influenced in his recollection by the police inquiries – either by being shown articles such as control samples or fragments or by discussion.”

Expert reports published for the first time on the website also question the validity of Mr Gauci’s identification of Megrahi.

$2m witness payment, bogus forensic evidence and Pentagon memo blaming Iran: How Lockerbie bomber appeal threatened Scottish justice

[This is the headline over a long and highly detailed article in the Mail on Sunday. The following are excerpts:]

In a submission to the Court of Appeal running to thousands of words, Megrahi’s lawyers list 20 grounds of appeal which include:

* Details of a catalogue of deliberately undisclosed evidence at the original trial.
* Allegations of ‘tampering’ with evidence.
* A summary of how American intelligence agencies were convinced that Iran, not Libya, was involved but that their reports were not open to the 2001 trial.

[Note by RB: I strongly suspect that what is being referred to is the submission made on Mr Megrahi's behalf in 2003 to the Scottish Criminal Cases Review Commission, not the Grounds of Appeal lodged with the Criminal Appeal Court once the SCCRC had referred the case back.]

The closely guarded submission was obtained by Ian Ferguson, an investigative journalist and co-author of the book Cover-up of Convenience - The Hidden Scandal of Lockerbie.

But the evidence will never be tested in open court after the dying Libyan abandoned it last week to spend his final days with his family.

Mr Ferguson, who has had 100 hours of unprecedented access to the 57-year-old former Libyan intelligence agent during his eight years in jail, claimed last night: ‘From the start there was a determination to try to prevent this appeal being heard.

'It opened but never got off the ground, with stall after stall as each month Megrahi weakened with the cancer that was killing him.

‘There was rejoicing in the Crown Office in Edinburgh when he was released and the appeal abandoned.

'There may well be political manoeuvres behind his release but at the heart was a decision to save the face of the Scottish judiciary - in particular the Crown Prosecution, who would have been shown to have been involved in an abuse of process by non-disclosure of witness statements.’

It took the use of the U.S. Freedom of Information Act to unlock the full intelligence documents which are now highlighted in the appeal submission.

They show memos from the U.S. Defense Intelligence Agency (DIA) which suggested the downing of Pan Am Flight 103, which killed 270 people in 1988, was in response to the shooting down of an Iranian Airbus by the American warship USS Vincennes five months earlier.

In a memo dated September 24, 1989, and reproduced in the appeal submission, the DIA states: ‘The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar Mohtashemi-Pur, Iran’s former interior minister.

‘The execution of the operation was contracted to Ahmad [Jibril], Popular Front for the Liberation of Palestine General Command [PFLP-GC] leader, for a sum of $1million [£600,000.

‘$100,000 of this money was given to Jibril up front in Damascus by the Iranian ambassador to Sy [Syria], Muhammed Hussan [Akhari] for initial expenses.

'The remainder of the money was to be paid after successful completion of the mission.’ (...)

The memos and reports, denied in full to the original trial, were available to the Scottish Criminal Cases Review Commission which, two years ago, cast doubt on the safety of Megrahi’s conviction based on six separate counts of the legal argument.

Their view opened the way for a second appeal. That report has never been made public.

Mr Ferguson said: ‘Megrahi was made the scapegoat for whatever reason and from that point everything went in reverse to try to make the crime fit.’

Central to Megrahi’s conviction was the evidence of Maltese shopkeeper Tony Gauci, who claimed that Megrahi had bought clothes allegedly found in the suitcase bomb.

Lawyers were due to claim that Gauci was paid a $2million reward for his evidence, which followed more than 20 police interviews, and that many of the often wildly conflicting statements taken on each occasion were withheld from the defence.

Mr Ferguson says that, although too late for the submission, lawyers were planning to spring a witness called David Wright, an English builder who was on holiday in Malta and who is said to have information about the clothes shop.

He would have produced evidence as to the date and buyer of the clothes, seriously undermining Gauci’s reliability and credibility.

It is now believed that Gauci has moved to Australia.

Other new evidence listed in the grounds for appeal would have called in new witnesses to prove that the fragment of circuit board from a timing device found near the crash and pointing to Libyan involvement simply could not have survived such an explosion.

Subsequent analysis carried out by an independent forensic scientist found no trace of explosive on the tiny piece. (...)

Also due to be called was a witness who would allegedly discredit the accepted account that the suitcase in which the bomb was placed had somehow travelled unchecked and unaccompanied from Malta to Frankfurt and on to the Pan Am flight.

Questions would have been asked as to how a fragment of cloth - believed to be from the clothing wrapped around the bomb - subsequently came to be packed with material linking it direct to the bomb.

Mr Ferguson added: ‘Had this appeal gone ahead and witnesses recalled and cross-examined, I believe it would be shown that some had most definitely perjured themselves or deliberately misled the court.

‘It is no wonder that some people were hoping Megrahi would die before certain witnesses were called.

'The release on compassionate grounds is a blessed release for them, as much as it was for him.’

Mr Ferguson, who now lives in France but continues to pursue ‘leads’ in the case, first met Megrahi in 2002 and says he was a constant visitor over the years as they went over every aspect of the evidence against him.

‘From the start I was struck by his total, unchanging, quiet protestation of his innocence.

'He readily admitted that his job was sanction-busting for the Libyan government but never anything more sinister.

‘He frequently said he knew his government were involved in many things but always looked me straight in the eye and said: "I am not a killer".

Despite seeing the by then frail and faltering Megrahi only four weeks ago as he waited to hear if he could be sent home, Mr Ferguson insists he did not press him on any political dealings which may have been going on behind the scenes.

He added: ‘Politics may have got him into prison but I believed it was only evidence that could get him out.

'I never believed, though, that he would give up the appeal after so many years of fighting for it. That was all we focused on in our meetings - his refusal to give up.

'At the end, though, I agreed with his decision because, otherwise, he would not have been able to get what he most wanted - to live out his last days with his family.’

Megrahi was diagnosed with terminal cancer in September last year.

Mr Ferguson, who saw him two months later, said: ‘He already looked very different. His complexion was drawn and he’d lost a lot of weight.

'He cried as he told me how he had been called into the prison governor’s office and learnt his cancer was inoperable and ultimately untreatable.

‘He called his wife and they were both crying for 15 minutes. He wasn’t embarrassed to cry in front of me.

'I’d had cancer myself in 2002, so I knew what he was going through.

'I contacted a psychologist specialising in this disease who I hoped would help him deal with it.’

Since Megrahi’s diagnosis, Mr Ferguson has seen him four times.

He added: ‘Our visits were shortened because he couldn’t sit down for too long before being in pain.

'Because he is so religious he wasn’t scared of death but he was desperate to have his name cleared before he died.

‘I felt he was being blackmailed but he never admitted it.

'The Crown wouldn’t agree to transfer him unless he gave up his appeal and the longer they stalled the more fragile he became physically. In the end he just couldn’t continue.’

He first met Megrahi and his lawyer in Glasgow’s Barlinnie prison - and quickly became convinced that he was innocent.

He said: ‘The first thing I asked him was if he had had anything to do with the bombing.

'He insisted he hadn’t and was convinced from the start his conviction would be overturned. He seemed smart and intelligent without being arrogant and very angry.

'The evidence was purely circumstantial and came at a time when the West wanted to implicate Libya at a time when it was politically inconvenient to accuse the real culprits.’

Over the months the pair reached a tacit understanding: ‘It was never spoken outright but Megrahi knew I would never jeopardise his trust by writing about our meetings.’

From The Sunday Times, Malta

The judges got it wrong

Ian Ferguson

In an article for The Sunday Times, British journalist and author Ian Ferguson, who has covered the Lockerbie case extensively internationally for TV, radio and newspapers, casts doubt over the Malta-link to Lockerbie.

A German expert has raised fresh controversy on a crucial piece of evidence in the conviction of Abdel Basset Al-Megrahi as the Lockerbie bomber.

The verdict relied heavily on the judges' acceptance of a brief computer printout of the baggage movements at Frankfurt airport. The prosecution had argued it proved an unaccompanied bag containing the bomb was transferred from Air Malta flight KM180 to the Pan Am flight 103 to London on December 21, 1988.

The expert who helped design the baggage system in place at Frankfurt airport in 1988 and familiar with the operating software has now said: "The Lockerbie judges got it wrong, they simply got it wrong."

In the original trial, the Crown could offer no evidence of how the bag got aboard the Air Malta flight in the first place. Malta had presented records showing that no unaccompanied baggage was on the Air Malta flight in question.

The baggage reconciliation system at Malta's airport did not only rely on computer lists. Personnel also counted all pieces of baggage, manually checking them off against passenger records. Maltese baggage loaders had been prepared to testify, yet they were never called as witnesses.

In spite of a lack of evidence that the baggage containing the bomb actually left Malta, the judges concluded that it must have been the case, based on an interpretation of the computer print out from Frankfurt.

The hotly disputed computer printout was saved by Bogomira Erac, a technician at Frankfurt airport. She testified at the original trial under the pseudonym Madame X. One of the reasons this computer printout was so controversial was that although Ms Erac thought it important to save, she then tossed it in her locker and went on holiday.

Only on her return did she hand it to her supervisor who gave it to the Bundeskiminalmt (BKA), the German Federal Police. The BKA did not disclose this printout to Scottish and American investigators for several months.

The German expert has now examined all of the evidence that related to the Frankfurt baggage system placed before the court in the original trial. The expert, who agreed to review this evidence on condition of anonymity, spent six months examining the data.

Although he demanded anonymity, he agreed that if a formal approach was made by Mr Al-Megrahi's lawyers or the Scottish Criminal Cases review commission, he would meet them.

He was puzzled when he saw how short the printout out was and explained that there was no need to print a very small extract from the baggage system traffic, as a full back-up tape was made. This would have shown all the baggage movements at Frankfurt airport that day.

When it was explained that the court heard that the system was purged every few days and that no back-up tape existed, he said: "This is not true."

"Of course it is possible no back-up tape was made for that particular day but that day would have been the first and only day in the history of Frankfurt Airport when not one piece of baggage or cargo was lost, rerouted or misplaced," he added.

He went on to say that FAG, the company that operated Frankfurt Airport, needed these tapes to defend against insurance claims for lost or damaged cargo.

The expert maintains that even with his expert knowledge of the system he could not draw the conclusion reached by the Lockerbie trial judges in 2001.

"They would have needed much more information of the baggage movements, not this very narrow time frame," he said.

Questions are now raised about why Mr Al-Megrahi's legal team at the trial in the Netherlands decided to accept and rely upon a report on the baggage system compiled by a BKA officer and not find an expert on the system. The Scottish police also did not seek to interview those people who designed and installed the system.

Jim Swire, whose daughter lost her life in the bombing and who has been campaigning relentlessly for the truth to emerge, explained there was a break-in at Heathrow airport, early on December 21, 1988, in the relevant area of Terminal 3. This was followed by the sighting (before the flight from Frankfurt had even landed) of an unauthorised bag within the very container where the explosion later occurred.

"What we need now is an equally clear explanation as to why the information about the Heathrow break-in was concealed for 13 years," he said.

Dr Swire added: "At last, the time has come to turn away from Malta and Frankfurt and look a lot closer to home at Heathrow airport for the truth, for that is what we still seek.


Scottish legal expert says Lockerbie verdict was flawed

'No evidence the bomb left from Malta'

Caroline Muscat, Mark Micallef

A former Scottish judge who was the architect of the original Lockerbie trial has told The Sunday Times there was never any evidence that the bomb which claimed the lives of 270 people actually left from Malta.

The trial held in the Netherlands under Scottish law led to the conviction in 2001 of Abdel Basset Al-Megrahi as the bomber who placed the explosive on Air Malta flight KM180 on December 21, 1988. It was said that the suitcase containing the bomb was transferred in Frankfurt to Pan Am flight 103A which then headed for London before continuing to the US.

"There is no acceptable evidence that the bomb left Malta. There never was. There was never an explanation given by the judges to contradict the clear evidence from Malta," Prof. Robert Black said.

Malta presented records at the original trial showing there had been no unaccompanied bags on the flight.

Prof. Black echoed comments made last week by a representative of the families of the British victims, Jim Swire, who lost his 24-year-old daughter Flora when Pan Am Flight 103 from London Heathrow to New York's JFK airport exploded over Lockerbie in Scotland an hour into the journey on December 21, 1988. All 259 people on board died as well as 11 locals on the ground.

The legal team representing Mr Al-Megrahi, who is eight years into a 27-year sentence for his part in the bombing, began appeal proceedings in Edinburgh on April 28. They are arguing that the evidence against him in the original trial was "wholly circumstantial".

Mr Al-Megrahi was told last year he is dying. Doctors discovered he has advanced and aggressive prostate cancer, which has spread to his bones. He has a few months left to live, a diagnosis confirmed by two cancer specialists.

The Maltese government yesterday told The Sunday Times it was monitoring the situation, while Air Malta said it had no comment to make.

The ongoing appeal was ordered by the Scottish Criminal Cases Review Commission in 2007, after a four-year investigation that concluded Mr Al-Megrahi may have suffered a "miscarriage of justice".

According to Prof. Black the appeal took so long to reach the court because the prosecutors and the British Foreign Office used delaying tactics.

"They refused the defence access to documents they were entitled to see and that were an important part of the conclusions reached."

Documentation sought by the defence team includes a fax they say questions the original testimony of key Maltese witness Tony Gauci, who said he sold clothes to Mr Al-Megrahi from his shop in Sliema. It was said the suitcase containing the bomb on the Pan Am flight included those clothes.

The evidence the defence team is seeking relates to contact between police and other investigators with another potential Maltese witness, David Wright. They believe Mr Wright may have material evidence that calls into question Mr Gauci's statement.

At the start of the appeal, the judges ordered prosecutors to hand over 45 key pieces of evidence to the defence in what was described by British newspaper The Herald as "an embarrassing setback for the Crown Office".

Prof. Black was not surprised: "The truth would be extremely embarrassing from the point of view of saving what is left of the reputation of the Scottish criminal justice system. Also, the truth would not place Britain's reputation in a very good light."

He insisted that it was in the interest of the British government that this appeal would "quietly go away".

"The easiest way for that to happen is for Mr Al-Megrahi to abandon his appeal and be transferred back to Libya."

Libyan authorities recently applied for Mr Al-Megrahi's transfer to Libya. It came after a prisoner transfer agreement was ratified by the UK and Libyan governments two weeks ago.

A few weeks earlier, the Westminister Joint Select Committee on Human Rights had called for the ratification of the agreement to be delayed, pending investigation into concerns over the content of the treaty. But Jack Straw, the UK Secretary of State for Justice, insisted the treaty must go ahead.

This prompted the campaign group UK Families Flight 103 to issue a statement accusing Mr Straw of hypocrisy, saying the agreement cleared the way for the man convicted of the bombing to return home before the truth emerged. But Kathleen Flynn, from New Jersey, US, who also lost her son John Patrick to the bombing, said she would be horrified if Mr Al-Megrahi is released to the Libyan government.

"This man is not a political prisoner, he is a murderer and there is a big difference... to me it is inconceivable how this idea could be entertained," she told The Sunday Times.

"He is likely to be received as a national hero in Libya," she added.

Unlike Dr Swire, she has full confidence in the guilty verdict: "The person responsible for a crime of this nature should serve his entire sentence, while given all the medical attention he needs."

Asked what would happen if the transfer is given the go ahead, she said: "I can assure you we will not just say au revoir... we have been successful in the past 20 years at making sure justice is done."

According to Scottish law, the application for transfer cannot be submitted while an appeal is pending, meaning Mr Al-Megrahi has to abandon his appeal before he can go home.

Although Mr Al-Megrahi is suffering from terminal cancer, his lawyers did not confirm whether he would choose to go home. If he does, he will remain a condemned man and Malta will remain implicated in a terrorist act that killed 270 people.

[The first of these articles can be accessed here; and the second here.]

The appeal begins

The first session of Abdelbaset Megrahi's appeal commences today. There is a preview report on the BBC News website. It can be read here. There is also a long article by Lucy Adams in The Herald, which can be read here. The following are excerpts:

'A previously-unseen witness statement is expected to undermine the identification of the man convicted of the Lockerbie bombing, the long-awaited appeal which begins today will unveil. (...)

'These will include the previously unseen statement of David Wright, a friend of Tony Gauci, the Maltese shop owner whose identification of Megrahi was crucial to the conviction.

'Mr Wright allegedly gave a "remarkably" similar description of a sale made at Mr Gauci's shop in Malta to the one used to implicate Megrahi. He gave a statement to English officers in December 1989.

'A source said: "The new witness provides an account which is startling in its consistency with Mr Gauci's account of the purchase but adds considerable doubt both to the date of the purchase and the identification by Mr Gauci of Megrahi as the purchaser." (...)

'The hearing before the Scottish Court of Criminal Appeal in Edinburgh, is due to sit for four weeks at a time with a month's break in between.

'The defence team will question why the original trial excluded the incrimination of a terrorist cell that was operating in Germany shortly before the tragedy and why an inconsistent witness paid financial reward, could have been credible.

'They will raise concerns about the trial's exclusion of the defence case to incriminate Abu Talb, who was subsequently convicted in Sweden of terrorist offences, and other members of the Popular Front for the Liberation of Palestine - General Command (PFLPG-C), the terrorist cell that was operating in Germany before the Lockerbie bombing.

'They will argue that his right to a fair trial has been breached and that the original case was not proven.

'The appeal will also scrutinise the trial court's finding that the suitcase carrying the bomb was put on the plane at Luqa airport in Malta.

'The case was referred back to the appeal court in June 2007, following a long investigation by the Scottish Criminal Case Review Commission which concluded it may have been a miscarriage of justice on six separate points.

'However, Megrahi, who is suffering from terminal prostate cancer, could be transferred home to Libya under an agreement being rushed through parliament by Jack Straw, the UK Justice Secretary. While he is keen to clear his name in court, there is concern that he may not survive the long appeal process.'

Lockerbie investigators to travel to Malta to seek new evidence

A delegation from the Scottish Crown is due to travel to Malta in the very near future to “actively seek the consent for disclosure” of sensitive documents that could determine a the outcome of convicted Lockerbie bomber Abdul Baset Ali al-Megrahi’s appeal, the High Court in Edinburgh was told on Friday.

The delegation will be looking for previously undisclosed documents related to statements given by a friend of Maltese shopkeeper Tony Gauci, David Wright, who in 1989 raised concerns over Gauci’s identification of al-Megrahi.

The news comes amid arguments presented by al-Megrahi’s defence team, which contended evidence given by the potential witness in the Lockerbie bombing investigation could have undermined the prosecution’s case, but had never been presented in court or given to the defence team. (...)

Gauci claimed that on 7 December 1988 he had sold the former Libyan intelligence officer the clothes later found inside the suitcase holding the bomb that brought down Pan Am flight 103 over Lockerbie in Scotland, killing all 270 people aboard.

Al-Megrahi’s defence team argued on Friday that evidence given by a friend of Gauci, a certain David Wright could very well have scuttled the prosecution’s case but the evidence had never been presented in court or handed over to the defence team.

Wright was said to have approached the Maltese police in September 1989 and the officers in England in December with a statement contradicting Gauci’s evidence.

Defence counsel Maggie Scot argued that Wright had given a “remarkably” similar description to that used by Gauci to implicate al-Megrahi in the bombing of another unrelated sale made by Gauci at his family’s shop, Mary’s House in Sliema.

But, Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

But, Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

Speaking in court on Friday, Ms Scott said, “Mr Wright gave statements to police in England saying he was a friend of Mr Gauci and that he had witnessed a transaction at Mr Gauci’s shop which bears a remarkable resemblance to the sale to the two men Mr Gauci described.”

Al-Megrahi’s defence is demanding that the previously undisclosed evidence it believes will help free their client be made available in time for the commencement of the appeal hearing, due to begin on 27 April.

Such evidence includes any documents related to Wright, as well as any documents showing Mr Gauci had been interested in a financial reward for his evidence.

Al-Megrahi’s lawyers are also asking for video footage of the identification parade in which Gauci had singled out al-Megrahi, as well as the details of those who had been selected to participate in the parade.

In addition to Malta, the Crown will also be approaching other foreign sources, but stressed some of the material being requested could have security implications in the respective countries should it be made public.

The call for documents related to Gauci’s interest in a financial reward for positively identifying al-Megrahi comes amid claims that Tony Gauci and his brother Paul were paid millions of dollars each by the US Federal Bureau of Investigation as a reward for their help in convicting al-Megrahi, claims the FBI vehemently denies. (...)

Al Megrahi was found guilty of the Lockerbie bombing in 2001 and although he lost a previous appeal against his conviction in 2002, the SCCRC in June 2007 referred the appeal back to court after it found six grounds that may have constituted a miscarriage of justice. Grounds mainly related to Gauci’s evidence.

In approving a new appeal, the Commission had found “there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House took place on 7 December 1988” as Gauci had claimed.

Although it had been proven that al-Megrahi had been in Malta on several occasions in the month in question, it had determined that 7 December 1988 was the only date on which he would have had the opportunity to make the purchases from Mary’s House.

New evidence given to the Commission concerned the date on which Christmas lights had been turned on in Tower Road, Sliema near Mary’s House. Taken together with Gauci’s evidence at the trial and the contents of his police statements, the date indicates that the purchase of the incriminating items had taken place before 6 December 1988 – when no evidence had been presented at trial to the effect that the al-Megrahi was in Malta before the date.

Yet more new evidence given to the Commission indicated Gauci, four days before the identification parade at which he picked out al-Megrahi, had seen a photograph of al-Megrahi in a magazine article linking him to the bombing.

The Commission found that Mr Gauci’s exposure to the photograph, so close to the date of the identity parade, “undermines the reliability of his identification of the applicant at that time and at the trial itself”.

[From an article by David Lindsay in the online version of today's edition of The Malta Independent. The full article can be read here.]