15 January, 2021
Appeal against conviction following upon a Reference from the Scottish Criminal Cases Review Commission by Representatives of the late Abdelbaset Al-Megrahi v HMA  HCJAC 3
Mr Megrahi was convicted in January, 2001 of the murders of 270 people after a bomb was planted on a passenger plane which flew from London to New York. The plane disintegrated over the town of Lockerbie on 22 December 1988.
Mr Megrahi was convicted at a specially arranged trial which took place in the Netherlands before a bench of three Scottish judges sitting without a jury.
The case was unsuccessfully appealed in March 2002. Five years later, the Scottish Criminal Cases Review Commission (SCCRC) referred it back to the Appeal Court on grounds that there may have been a miscarriage of justice. This appeal was abandoned by Mr Megrahi in 2009.
In March 2020, the SCCRC referred the case back to the Appeal Court for a second time. This appeal is concerned essentially with two issues: whether the verdict was unreasonable having regard to the quality of the testimony of the witness Toni Gauci; and whether the disclosure of certain material would have created a real possibility of a different verdict i.e. acquittal.
The first ground of the referral was that the verdict of the trial court was one which no reasonable jury could have returned. It focused on whether the trial court had been entitled to find that it was Mr Megrahi who had bought clothes which were packed into a suitcase containing the bomb planted on the plane. The SCCRC were critical of the identification evidence given by Maltese shopkeeper Toni Gauci, who had sold the clothes on 7 December, 1988.
The second ground contended that the prosecution had failed to disclose certain documents to the defence. These mostly related to the reliability of Mr Gauci’s identification of Mr Megrahi as the person who bought the clothes, and included various police statements and reports, as well as the content of CIA cables.
The judgment, delivered by the Lord Justice General, Lord Carloway, makes clear that the appeal was not directly concerned with other persons or organisations being involved in the murder, except in so far as that involvement might exclude Mr Megrahi as a participant in placing the bomb onto the Air Malta flight to Frankfurt – from where it was transferred to London. The appeal judges stated that their role was not to retry the case but to determine whether the conclusion of the original trial was unreasonable or not.
The lawyers representing Mr Megrahi’s family argued that Mr Gauci’s evidence around identification had contradicted his police statements in relation to age and height and was so inconsistent that no reasonable jury could have regarded it as reliable or credible.
However the appeal judges rejected this argument. Mr Gauci’s credibility had not been challenged during the trial and it was reasonable to accept that his testimony was reliable. Evidence under oath mattered rather than police statements. Despite other inconsistencies, the witness had consistently described the man who bought the clothes in his shop as a Libyan. The evidence in relation to Mr Megrahi resembling the shopper was but one element of the overall picture. Other evidence included the purchase of the bomb detonating timers by the Libyan Jamahiriya (People’s Republic) Security Organisation – where Mr Megrhai was head of airline security; and information that Mr Megrahi was in Malta, and at the airport, using a false passport at the time the bomb was planted on the plane which travelled from Malta to London via Frankfurt. He had given no explanation as to why he was there.
The SCCRC referred the case to the Court on a second ground which related to documents not disclosed to the defence. The first document was a police report which stated that Mr Gauci had seen images of Mr Megrahi in a magazine in advance of an identification parade. The second revealed that, prior to the parade, Mr Gauci had seen a newspaper article in It Torca which had a photograph of the accused and discussed a potential threat to Mr Gauci who feared his shop may be bombed. The final documents related to the potential for the payment of a reward to Mr Gauci.
The counsel for Mr Megrahi’s family argued that these documents might have changed the way the defence handled the case and the failure to disclose them had denied Mr Megrahi a fair trial.
The Crown said that, at the trial, the defence had been working on an assumption that Mr Gauci had seen photographs of Mr Megrahi in the media many times and had been well aware of the offer of a reward. The documents would not have provided a valid ground to challenge the admissibility of the identification evidence.
Even if the Court had come to the view that the parade and dock identifications were unreliable, it would have been able to treat the earlier identification from police photographs as reliable. That identification, taken in conjunction with the other evidence which incriminated Mr Megrahi fitted together to form the same “real and convincing pattern” which the Court found established. It took account of the nature of what was a resemblance identification, the passage of time, and the care with which the witness expressed himself.
The appeal judges ruled that the content of the documents would have made no difference to the defence’s preparation or presentation of their case; or to the verdict reached by the Court.
The fact that Mr Gauci had been prepared to proceed with an identity parade and to identify Mr Megrahi at the trial in the face of perceived dangers to his life would have been seen only to strengthen that identification.
In relation to the reward documents, they had not indicated that Mr Gauci was motivated to testify, or to identify Mr Megrahi, because of the prospect of a reward, but rather the reports had described him as a person with a strong sense of honesty and decency.
The full judgment can be read here.