What would have been argued had Megrahi appeal not been abandoned

What follows is the text of an item published on this blog on this date in 2009:

More Megrahi materials released

A second batch of materials has been released on Abdelbaset Megrahi’s website. These take the form of Grounds of Appeal numbers 3.1 to 3.3 (which would have been argued at the second stage of the – now abandoned – appeal that had been due to start on 2 November 2009) along with two expert reports and the US Department of Justice publication Eyewitness Evidence: A Guide for Law Enforcement.

These materials relate principally to the evidence emanating from Malta.

1. The credibility and reliability of the evidence of “identification” of Megrahi by Maltese shopkeeper, Tony Gauci, is challenged by reference to (a) new evidence about the circumstances in which Gauci’s various “resemblance” statements came to be made, including improper conduct by investigators; (b) failure by the Crown to disclose to the defence statements by Gauci that undermined or contradicted his “identification”; (c) failure to disclose to the defence the existence of, and a police statement by, a witness who may have been present when the purchase of the clothes in Gauci’s shop took place; (d) the expectation of money from US official sources on the part of Tony Gauci and his brother, Paul, and its subsequent payment to them; (e) evidence from two leading psychologists and experts on facial recognition of the unreliability of Gauci’s “identification” of Megrahi.

2. The Lockerbie court’s acceptance of 7 December 1988 as the date of purchase of the clothes and other items in Tony Gauci’s shop is challenged. Even on the material before the court at Zeist, the Scottish Criminal Cases Review Commission had concluded that it was strongly arguable that no reasonable court could have reached the conclusion that this was the date. The materials released today disclose the existence of new evidence that confirms that the date of purchase was not 7 December 1988 (and hence that the purchaser was not Abdelbaset Megrahi).

The importance of this is, of course, that if the court at Zeist had not decided that Mr Megrahi was the purchaser of the clothes in Malta, they would not in law have been entitled to convict him.

A further matter expected to be adverted to in today’s materials, but which does not seem to be, is the SCCRC ground of referral based on documents in respect of which the UK Foreign Secretary has claimed public interest immunity and to which Mr Megrahi’s legal team still have not had access. Had the appeal continued, Megrahi’s lawyers would have argued that, without the information on which the SCCRC had referred the case back to the appeal court, he could not exercise his right of appeal and would accordingly have been denied fairness, contrary to Article 6 of the European Convention on Human Rights.