The development of Tony Gauci’s statements

[Regarding the Lockerbie case, Frank Mulholland QC, the Lord Advocate, has recently stated: “During the 26-year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.”  If this is so, then it is a truly shocking indictment of the Crown Office. The following section from Dr Kevin Bannon‘s PhD thesis, reproduced with his kind permission, demonstrates how grave the concerns should be about just one particular chapter of the evidence:]

The development of Tony Gauci’s statements from his first police interviews in September 1989 through to his testimony in court, reveal his recollections systematically developing in favour of the Crown narrative, in increasing contradiction of all his freshest recollections. This is transparently evident in the following compendium in which each subject of Gauci’s testimony in bold type is followed by actual or accepted facts summarised in italics, below which the essential statements are put chronologically:

1. Stature of the Purchaser:

The height and build of the purchaser. Al-Megrahi was 5’7” tall, average build.

1 September1989: ‘Six feet or more in height’ big chest, large head, well built.

26 September 1989: ‘around six feet or just under that in height’ and ‘broad built’.

11 July 2000 (Camp Zeist): ‘..below six feet’. ‘He wasn’t small. He was a normal stature’.

2. Purchase of clothing:

Slalom shirts. 2 Slalom shirts found at Lockerbie, one grey and one blue & white.

1 September 1989: No mention in statements of any shirts sold.

30 January 1990: ‘That man didn’t buy any shirts for sure’…‘I am sure I did not sell him a shirt’.

10 September 1990: I now remember that the man who bought the clothing also bought a beige ‘Slalom’ shirt and a blue and white striped shirt.’

11 July 2000 (Camp Zeist: asked ‘How many shirts did the Libyan buy?’): ‘Two’ shirts ‘Slalom, something Slalom’ one ‘blue checked’ and the other ‘greenish’. ‘It’s greenish and greyish. It’s more greyish…’

Pyjamas. 1 pair, striped, found at Lockerbie.

1 September 1989: ‘3 pair pyjamas’ (un-described).

11 July 2000: Did he buy any pairs of pyjamas? ‘Yes he did. He bought two pairs, striped’.

Cardigans. Fragments of 2 Cardigans found, one black and one brown.

1 September 1989: 1 cardigan (listed). Black and red colour.

11 July 2000: ‘..two pullovers.’ ‘They were cardigans.’ ‘One was blue, the other was a brownish colour’.

‘Babygro’ romper suit. Crash-site find had lamb’s head motif.

1 September 1989: Gauci said that the Babygro had a sheep’s face on the front.

13 September 1989: Gauci reiterated that the Babygro had a sheep’s head, even when shown the control sample with a lamb’s head, declaring that the sheep’s head design had been discontinued since he received it. Police subsequently established that the Babygro manufacturer had never produced a sheep’s head design.

4 October 1989: Gauci initially declared he was not sure about the sheep’s head design. Then said he was "fairly certain" that the Babygro sold to the purchaser had a lamb motif.

Payments for items sold. Gauci’s uncorroborated figures (in Maltese Pounds):

1 September 1989: Sale was £76.50, purchaser paid in £10 notes and received £4 change. Gauci later said the purchaser paid a total of £56 in cash.

19 September 1989: Second cardigan recollection; raises the sale to £88.

10 September 1990: Sale of 2 shirts raises Gauci’s recollected bill to £97 or £98.50.

11 July 2000: Purchaser gave him £80 for a total bill of £77.

3. Time and circumstances of purchase:

Rain. Meteorological evidence: 90% probability of no rain in Sliema on December 7.

1 September1989: ‘..it was raining’.

21 February 1990: ‘it had almost stopped raining, and it was just drops coming down’.

10 September 1990: ‘very little rain on the ground, no running water, just damp’.

11 July 2000, (Camp Zeist): ‘..it started dripping. Not very -- it was not raining heavily. It was simply -- it was simply dripping’.

11 July 2000: ‘It wasn't raining. It wasn't raining. It was just drizzling’.

Christmas lights/decorations. Decorations up and switched on 6 December 1988.

19 September 1989: ‘The decorations were not up when the man bought the clothes’.

10 September 1990: ‘There were no Christmas decorations up, as I have already said...’

11 July, 2000 (Camp Zeist): ‘..yes, there were Christmas lights. They were on already. I’m sure.

Date of purchase. Only December 7 fitted with al-Megrahi’s movements.

19 September 1989: ‘…I believe it…was at the end of November’.

8 October 1999 Precognition of Tony Gauci: ‘I remember it was the 29th of the month. I think it was November’. (Gauci recalled the date because he’d had a row with his girlfriend on that day).

11 July 2000 (Camp Zeist) : It must have been about a fortnight before Christmas. I don’t know whether it was a week or two weeks before Christmas’.

Second visit of Libyan customer. Al-Megrahi was not in Malta on September, 25 1989.

26 Sept 1989: Gauci said that the Libyan customer had returned to his shop the previous day (September 25) to buy dresses for a four-year-old child.

2 October 1989: (DCI Bell’s report of statement) Gauci said he was only 50% sure that the same Libyan had returned to the shop.

4 November 1991: Gauci said that the man who bought children’s dresses ‘really looked like’ [the purchaser]. Gauci seemed confused about the date of the visit.

18 March 1999 / 25 August 1999 (Precognition of Tony Gauci). Noted in DCI Bell’s words: ‘the man who bought the dresses looked like the purchaser but it was not the same person’.

Even minor details of Gauci’s testimony, including the collar sizes of shirts and the size of a jacket sold to the Libyan, drift consistently in favour of the Crown narrative.

It was not a secret that well before the Camp Zeist identification parade, Gauci had been exposed to newspaper articles featuring pictures of al-Megrahi including speculation about him as a suspect. In later SCCRC interviews, Gauci firstly admitted seeing the articles but could not recall specifics about them. Later he said that he could not recall seeing the articles at all, and later still he confirmed that he had not seen them - a transformation in the same, stepped fashion as most of his ‘recollections’ which at the very least, confirm his ineptitude as a witness.

Therefore, it is not merely the case (as has often been stated) that Gauci’s evidence was contradictory, but that in every aspect, it changed in favour of the Crown narrative, in some instances quite drastically. Gauci’s original, freshest recollections about the appearance of the Libyan purchaser and the time of his visit, would have, and should have, categorically eliminated al-Megrahi from suspicion.

Gauci’s testimony, the centrepiece of the case against al-Megrahi and, by implication, the principal Libyan connection to the crime, simply has no integrity whatsoever - nevertheless he was given a substantial financial reward for his latter evidence. These discrepancies render the entire case against al-Megrahi invalid. Of course this means that the considerable body of Camp Zeist testimony implicating al-Megrahi, such as the testimony of Majid Giaka, is false.

Megrahi: an unbreakable alibi

[Two letters about the Lockerbie case have been published in the press today. The first is from Dr Morag Kerr in The National and the second from Ruth Marr in The Herald:]

1.  Every article about Lockerbie seems to home in on one specific point, that of the contentious “timer fragment” which led the original police investigation to Libya back in 1990. Kathleen Nutt’s piece in your Monday issue is no exception.

The timer fragment is interesting, indeed fascinating, for many complex reasons.  Nevertheless the perennial implication that it is essential for this item to be a fabrication or a plant in order for Abdelbaset al-Megrahi’s conviction to be shown to be a miscarriage of justice is unfounded.

The Crown alleged that the bomb that destroyed Pan Am 103 was smuggled into the airline baggage system on the morning of 21st December 1988, at Luqa airport, Malta.  Megrahi was at Luqa airport that morning, caching a flight to Tripoli.  This was and remains the main substance of the case against him, together with the allegation that he was the mysterious customer who bought some of the clothes packed in the suitcase with the bomb.

The SCCRC’s 2007 report effectively destroyed the contention that Megrahi was the clothes purchaser.  More recently, long-held suspicions that the scene of the crime was not Malta but London have been shown to be correct.

In my recent book Adequately Explained by Stupidity? (Matador Books, 2013), I present a detailed analysis of the blast-damaged luggage and its arrangement within the baggage container which shows quite conclusively that the bomb was in a suitcase seen at Heathrow airport fully an hour before the connecting flight alleged to be carrying the “suitcase from Malta” arrived.  The Lockerbie bombing is a crime that occurred in London in late afternoon, at a time when Megrahi was verifiably in Tripoli.

The book is included as part of the 2014 submission to the SCCRC referred to in your article, and indeed it is believed that this is the first time a published book has been used in this way in an appeal application under Scots law.  The analysis it contains doesn’t merely cast doubt on the case against Megrahi, it provides him with an unbreakable alibi.

Maybe the timer fragment was planted, maybe it fell from the sky. Either way, Megrahi was a thousand miles away when the lethal suitcase was placed in the unattended baggage container.

2.  When Abdelbaset Ali Mohmed al Megrahi was first convicted of the Lockerbie bombing, I thought it strange that his co-accused and fellow Libyan agent should have been acquitted.

Surely agents worked in pairs?

That proved to be not the only question surrounding the Lockerbie tragedy which continues to haunt a great many people who believe that Megrahi's conviction was at the very least, unsafe. Indeed, on the evidence which was presented at his trial, it seems impossible to believe that a jury would have delivered a guilty verdict against him. Given the fact that the Scottish Criminal Cases Review Commission found six grounds which point to the possibility of Megrahi suffering a miscarriage of justice, it is incredible that the Crown Office should now declare that a review of the case "confirmed beyond doubt'" that Megrahi was the Lockerbie bomber ("Advice is sought on Lockerbie bomber conviction", The Herald, December 23).

I have grave doubts regarding Megrahi's conviction and I need to know the truth. More importantly, all those who continue to suffer the effects of the atrocity, especially the bereraved families, including the Megrahi family, and the town of Lockerbie, need to know. If there has been a failure in the Scottish Justice system, we all need to know.

A full public inquiry must be held to provide answers to the questions which will not go away, because no matter how inconvenient the truth may be, the victims and their families deserve nothing less.

Legal dispute over role of Megrahi family in Lockerbie appeal bid

[This is the headline over a report by Greg Russell on page 14 of today’s edition of The National. It reads as follows:]

Lawyer says dangerous situation in Libya is an obstacle but argues

support of victims’ families should be sufficient for appeal to go
ahead

A legal row is brewing after the Scottish Criminal Cases Review

Commission (SCCRC) asked the High Court in Edinburgh to

determine if an appeal against the lockerbie bomber’s

conviction can be pursued by relatives of some of those killed in the

atrocity. Libyan Abdelbaset al Megrahi died in his home country in
2012, still protesting his innocence.

He remains the only person ever convicted for the bombing of Pan

Am flight 103 over the south of Scotland on December 21, 1988. A
total of 270 people were killed.

Previous court decisions indicated that only the executor of a dead

person’s estate or their next of kin could proceed with such a
posthumous application.

But the SCCRC wants to determine if a member of the victims’

families – such as Dr Jim Swire, who lost his daughter Flora in the

bombing – might be classed as a “person with a legitimate interest
to pursue an appeal” if the case is referred back to the High Court.

It comes after solicitor Aamer Anwar submitted an application

earlier this year asking the SCCRC to review Megrahi’s conviction.

He said it was “extremely disappointing” for the victims’ families

to hear about the SCCRC’s latest move in the media.

SCCRC chief executive Gerald Sinclair said that since June it had

proceeded on the basis that Megrahi’s family was involved in the
present application.

However, he said: “Despite the Commission’s repeated requests,

the members of the Megrahi family have failed to provide
appropriate evidence to support this position.

“The commission has now reached the conclusion that the

current application is being actively supported only by the members

of the victims’ families, who would no doubt be prepared to pursue
an appeal if allowed to do so.

“The aim of the petition is to seek the advice of the court on

whether members of the victims’ families would be entitled to
pursue an appeal on behalf of Mr Megrahi if the commission
ultimately decided to refer the current application, as previous
court decisions have restricted this role to executors and the next
of kin of the convicted person.”

Anwar said: “With respect, we would submit that the commission

are wrong and that we remain instructed by members of the
Megrahi family as well as the British relatives.

“We have been in communication with the Megrahi family, both

via intermediaries and directly. Communication is hampered by

an extremely dangerous situation in Libya, a situation referred to

yesterday by the lord Advocate by way of an explanation for lack of
any progress in relation to investigations into the Lockerbie
atrocity.

“Put simply, if the Lord Advocate with all the resources of the state

cannot make progress, then it is highly unlikely that we can to
travel to Libya in the near future to obtain the necessary
documentation. Nor will we expect the Megrahi family to put their
lives unnecessarily at risk to provide the required documentation in
what can be termed as a ‘failed state’.”

Sinclair said there were “a number of preliminary matters that

the Commission needs to determine” before it can decide whether

or not to accept Megrahi’s case for a full review. “One of these is
the need for the Commission to be satisfied that, in the event of a
referral, someone with the right to do so will be willing and able to
pursue the appeal,” he added.

Anwar said the Megrahi family had spoken of the risks they face

and said they would try to provide the documentation as soon as

possible. “We will continue in our efforts to obtain what the SCCRC
requires and in the meantime we will prepare for the petition that
has been lodged,” he added.

He said the victims’ families had as much right to seek a referral to

the Appeal Court as Megrahi’s family. “We would submit that there
is a fundamental duty on the state to protect the rights of victims
of crime, which includes the national courts responsibility for the
administration of justice,” Anwar said.

“If the long struggle of Dr Jim Swire, Rev John Mosey and many of the British relatives has indicated anything, then it is that they should not have to go through unyielding confrontations with the police and Crown Office just to get the necessary information in their fight for justice. The families of the victims should not now be denied a referral to the Appeal Court when the SCCRC had already considered there was a significant basis for doing so.”

Anwar said that over the years, the Megrahi case had been described as the “worst miscarriage of justice in British legal history”.

“A reversal of the verdict would of course mean that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 26 years by imprisoning a man they knew to be innocent,” he said.

“There is also a very strong argument that, if there is a miscarriage of justice in a case, such circumstances ought not, for public policy reasons, to be exclusively for the appellant – or their family members in the event of death – to determine as to whether or not the Court of Appeal gets to hear an appeal and decide whether or not there has been a miscarriage of justice.

“In the present case, the appellant, having abandoned his appeal, has left the Scottish legal system in a situation where a not inconsiderable part of the population believe that there has been a miscarriage of justice in the conviction of the appellant.

Such views ought to be properly and openly tested in the Appeal Court. If the appellant is guilty, those who have concerns about it can have confidence that the matter has been impartially judicially considered and that the matter of guilt is beyond doubt.

“If the appellant is not guilty, the Appeal Court can restore confidence in the justice system by acquitting the appellant.”

Law officers should never close their minds

[A number of news media today have reports on yesterday’s announcement by the Scottish Criminal Cases Review Commission and Aamer Anwar’s response on behalf of the applicants for review of the Megrahi conviction. A typical example is The Scotsman’s Lockerbie families bid to fight Megrahi conviction.

A letter from Bob Taylor in the same newspaper today reads as follows:]

At first glance Lord Advocate Frank Mulholland seems to have struck a balanced tone on the question of continuing attempts to bring all those allegedly involved in the Lockerbie bombing to justice.

But many will be surprised at his remark that “not one Crown Office investigator or prosecutor has raised a concern about the evidence in the case”.

Miscarriages of justice have often been identified by the vigilance of writers and journalists rather than simply the rigour of the official legal establishment.

He and his law officers should never close their minds to information that might come to light from many sources within and outwith Libya.

Nor should he be inhibited by any complex geopolitical factors which might get in the way of the search for the truth.

The Lockerbie controversy has moved on in recent years, largely because of the downfall of the Gaddafi regime in Libya.

Whereas there is still some doubt as to whether Abdel Baset Ali Mohmed al-Megrahi was involved at all, the emphasis seems to have shifted.

Who were the other culprits in the Libyan hierarchy, it has been asked? This now seems to be the modus operandi of Mr Mulholland and his officers.

But while some doubt might remain about Megrahi’s guilt, he cannot let that matter rest.

The case for an international inquiry under United Nations supervision may still be the way to establish whether Libya and its intelligence service was involved at all and, if so, was Megrahi 
simply a soldier carrying out orders from a deadly chain of command?

Applicants' lawyer's response to SCCRC announcement

[What follows is the text of a press release issued by Aamer Anwar & Co in response to today’s announcement from the Scottish Criminal Cases Review Commission:]

It was extremely disappointing for the victim’s families to hear of the latest decision by the SCCRC through the media.

We understand that the Commission has now petitioned the High Court, in terms of s194D(3) of the Criminal Procedure (Scotland) Act 1995, to establish whether Dr Jim Swire or another member of the victims’ families might be classed as a person with a legitimate interest to pursue an appeal on behalf of Mr Al-Megrahi in the event that the Commission was to refer the case back to the High Court.

On 5 June 2014, the Commission received an application for a further review of Mr Megrahi’s conviction from my office. This application was lodged on behalf of two separate groups: the family members of the deceased victims of the Lockerbie bombing and 6 immediate family members of Mr Al-Megrahi.

The Commission stated today that since June it has:

“proceeded on the basis that Mr Megrahi’s family are involved in the present application. However, despite the Commission’s repeated requests, the members of the Megrahi family have failed to provide appropriate evidence to support this position. The Commission has now reached the conclusion that the current application is being actively supported only by the members of the victims’ families, who would no doubt be prepared to pursue an appeal if allowed to do so.”

With respect, we would submit that the Commission are wrong and that we remain instructed by members of the Megrahi family as well as the British relatives.

We have been in communication with the Megrahi family, both via intermediaries and directly.  Communication is hampered by an extremely dangerous situation in Libya, a situation referred to yesterday by the Lord Advocate, by way of an explanation for lack of any progress in relation to investigations into the Lockerbie atrocity.

Put simply, if the Lord Advocate with all the resources of the state cannot make progress, then it is highly unlikely that we can to travel to Libya in the near future to obtain the necessary documentation. Nor will we expect the Megrahi family to put their lives unnecessarily at risk to provide the required documentation in what can be termed as a ‘failed state’.

The Al-Megrahi family have advised of the risks that they face and that they will try to provide the documentation as soon as is possible. We will continue in our efforts to obtain what the SCCRC requires and in the meantime we will prepare for petition that has been lodged. 

If the documents that are required by the SCCRC from the Megrahi family are provided in advance of the petition being heard, this will render the petition unnecessary and academic, as the SCCRC will be able to assure itself that the instruction does come directly from the Megrahi family. 

Clearly the Court is unlikely to entertain a purely academic petition.

With regards to the rights of the victims’ families to pursue an appeal, we would submit that there is a fundamental duty on the State to protect the rights of victims of crime, which includes the national courts responsibility for the administration of justice.

If the long struggle of Dr Jim Swire, Rev’d John Mosey and many of the British relatives has indicated anything, then it is that they should not have to go through unyielding confrontations with the police and Crown Office just to get the necessary information in their fight for justice.

The families of the victims should not now be denied a referral to the Appeal court when the SCCRC had already considered there was a significant basis for doing so.

It is submitted that the families of the victims have as much right to make an application for referral as the family of Mr Al-Megrahi.

Finality and certainty in the Megrahi case is unlikely ever to be achieved unless a referral is made to the Appeal Court.  

Indeed, the Scottish Government has itself stated that this is the appropriate course to be followed (see http://www.heraldscotland.com/news/home-news/cia-interfered-in-police-probe-into-lockerbie.22954217?):

"Any issues raised in relation to the conviction itself must be a matter for a court of law - Mr Al- Megrahi was convicted in a court of law, his conviction was upheld on appeal, and that is the only appropriate place for his guilt or innocence to be determined.

As was made clear by the Justice Secretary in his statement to the Scottish Parliament last year, it remains open for relatives of Mr Al- Megrahi, or others, to ask the Scottish Criminal Cases Review Commission to refer the case back to the court for a further posthumous appeal which Ministers would be entirely comfortable with."

Over the years the case of Abdelbasset Al- Megrahi has been described as the worst miscarriage of justice in British legal history.

A reversal of the verdict would of course mean that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 26 years by imprisoning a man they knew to be innocent.

There is also a very strong argument that, if there is a miscarriage of justice in a case, such circumstances ought not, for public policy reasons, to be exclusively for the Appellant or (their family members in the event of death) to determine as to whether or not the Court of Appeal gets to hear an appeal and decide whether or not there has been a miscarriage of justice.

In the present case, the Appellant, having abandoned his appeal, has left the Scottish legal system in a situation where a not inconsiderable part of the population believe that there has been a miscarriage of justice in the conviction of the Appellant.

Such views ought to be properly, and openly tested in the Appeal Court. If the Appellant is guilty, those who have concerns about it can have confidence that the matter has been impartially judicially considered and that the matter of guilt is beyond doubt.

If the Appellant is not guilty, the Appeal Court can restore confidence in the justice system by acquitting the Appellant.