The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.