Lockerbie: Megrahi granted appeal
On 28 June 2007, the Scottish Criminal Cases Review Commission referred the case of Abdelbaset Ali Mohmed Al Megrahi to the Scottish High Court (see the Commission press release ).
On 31 January 2001, Megrahi was convicted of the Lockerbie bombing by three Scottish judges sitting in The Netherlands. His fellow accused, and fellow member of the Libyan intelligence service, Al Amin Khalifa Fhimah, was acquitted. In March 2002, Megrahi’s appeal against conviction was turned down by another five Scottish judges. He has now been granted a second appeal.
Megrahi’s conviction was an obvious
miscarriage of justice. That much was
clear from the written judgement delivered by the three Scottish judges on 31 January
2001 . In it, the judges related the prosecution’s
account of how the Lockerbie bombing might have been carried out – by
introducing an unaccompanied bag containing the bomb into the international
airline baggage system at Luqa airport in
It is inconceivable that the three intelligent men who put their names to the judgement believed that the prosecution had proved that Megrahi was guilty beyond reasonable doubt. As my pamphlet The Lockerbie trial: A perverse verdict  demonstrates, reasonable doubt leaps out of it all over the place. He should not have been convicted on the evidence put before the court.
The Scottish prosecuting authorities should never have indicted the two Libyans in the first place. They did so without investigating the credibility of Abdul Majid Giaka, the CIA asset who was their “star witness” and whose credibility was destroyed during the trial. Nevertheless, as an act of trade union like solidarity with their fellow Scottish legal professionals, who had made such a cockup of the prosecution of this case of geopolitical importance, the three Scottish judges convicted Megrahi. Five others turned down his appeal in March 2002.
A strange feature of Megrahi’s
appeal was that his lawyer did not contend that the three trial judges had
drawn an unreasonable conclusion from the evidence – which was obvious from
their written judgement (see my article Lockerbie
appeal lost ). The legal basis for the appeal was Section
106 of the Criminal Procedure (
“any alleged miscarriage of justice, which may include such a miscarriage based on … the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned”.
None of the grounds for appeal submitted by Megrahi’s lawyer invoked Section 106(3)(b) and contended that the verdict of the trial court was one that no reasonable jury could have returned. Why his lawyer failed to appeal on such obvious grounds is mystery. There was, of course, no guarantee that, had such an appeal been made, the five appeal court judges would have convicted their three trial court colleagues of having acted unreasonably in bringing in a guilty verdict. However, by specifically ruling out an appeal on these grounds, his lawyer ruled out that possibility. As the appeal court judges noted in their written judgement:
“We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.” 
The first ground
However, Megrahi’s lawyers did make submissions under section 106(3)(b) to the Scottish Criminal Cases Review Commission. One of those has now been accepted by the Commission as the first of four grounds for the referral of the case to the Scottish High Court:
“A number of the
submissions made on behalf of the applicant challenged the reasonableness of
the trial court’s verdict, based on the legal test contained in section
106(3)(b) of the Criminal Procedure (
The trial court’s finding that the purchase of the items from Mary’s House took place on 7 December 1988 – and not on another date – was a crucial step on the way to finding Megrahi guilty, for the following reasons.
It was established beyond doubt at the trial that the explosive device which brought down Pan Am flight PA103 over Lockerbie was contained in a Samsonite case and surrounded by clothes which were bought in Malta, at Mary’s House in Sliema (see the written judgement ). The prosecution sought to prove that the clothes had been purchased by Megrahi on 7 December 1988. In fact, as we will see, the evidence presented pointed to the purchase having taken place a fortnight earlier on 23 November 1988.
Tony Gauci, who owned Mary’s House along with his brother Paul, gave credible evidence that the clothes had been purchased shortly before Christmas 1988. He even recalled that he had been alone in his shop because his brother Paul had been at home watching football on television. This narrowed the possible purchase dates to Wednesday 23 November 1988 or Wednesday 7 December 1988 in the early evening. Crucially, Gauci also recalled that it was raining when the purchaser came into the shop and that he bought an umbrella, which he put up when he left the shop. (Evidence from the crash site indicated that a black nylon umbrella had been in the Samsonite case along with the bomb).
The rain in Sliema
Major Mifsud, Chief Meteorologist at
When I read the judgement for the first time, I was amazed that the judges had come to this conclusion, which ran counter to the evidence – and I was puzzled as to why they felt the need to conclude that the purchase date was 7 December 1988 rather than 23 November 1988. What difference did it make when the bomb was, allegedly, put on an aircraft at Luqa on 21 December 1988? Then in Paragraphs 87 & 88 the reason became clear:
“The first accused [Megrahi] travelled on his own
passport in his own name on a number of occasions in 1988, particularly to
“We have already accepted that the date of purchase of
the clothing was 7 December 1988, and on that day the first accused arrived in
The purchase date had to be 7 December 1988 in order to implicate Megrahi in the purchase.
As the judgement freely admits, Tony Gauci never made a positive identification of Megrahi as the purchaser of the clothes. At various times, he picked out from photographs three different people who, he said, resembled the purchaser.
So, if the judges had concluded in accordance with the
evidence that the purchase date was 23 November 1988 rather than a fortnight
later, it would have been very difficult for them to conclude that Megrahi was
the purchaser – since there was no evidence that he was in
And if Megrahi could not be identified as the purchaser of the clothes surrounding the bomb, it would have been impossible for them to find him guilty, since there was no other evidence connecting him to the bombing, after Giaka was discredited. The judges’ unjustified conclusion that “the date of purchase was Wednesday 7 December” was therefore crucial to their finding him guilty.
Over six years later, the Commission has now “formed the view that 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”, a conclusion that was obvious to any reasonable person reading the trial judgement on 31 January 2001. Meanwhile, Megrahi has spent an additional six and half years in prison.
(The Commission’s full statement of reasons for referring the case to the Scottish High Court extends to over 800 pages and is accompanied by a further thirteen volumes of appendices. The Commission has spent over £1.1 million on reviewing the case.)
The Commission’s second ground for referring the case to the Scottish High Court adds further weight to the conclusion that the purchase of the clothes in Mary’s House did not take place on 7 December 1988. It says:
“New evidence not heard at the trial concerned the date on which the
Christmas lights were illuminated in the area of Sliema in which Mary’s House
is situated. In the Commission’s view,
taken together with Mr Gauci’s evidence at trial and the contents of his police
statements, this additional evidence indicates that the purchase of the items
took place prior to 6 December 1988. In
other words, it indicates that the purchase took place at a time when there was
no evidence at trial that the applicant [Megrahi] was in
As I have said, Gauci never made a positive identification of Megrahi as the purchaser of the clothes surrounding the bomb. The Commission’s other two grounds for referral further undermine this already weak evidence of “identification”.
The Scottish prosecution authorities should never have indicted Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah in November 1991. They failed in their simple duty to ensure that their key witness was credible before they issued the indictments. This gross incompetence had consequences of geopolitical importance, leading as it did to economic sanctions being imposed on Libya for most of the 90s at the behest of the US/UK in order to force Libya to hand over the accused for trial.
(The indictment of the two Libyans
in November 1991 came as a great surprise.
Up to that point, it was widely believed that the Lockerbie bombing was
the work of Palestinians acting on behalf of
unjustified indictment of the two Libyans was followed immediately by
highhanded demands by the
the time, there were no extradition treaties in force between
Libyan authorities expressed a willingness to follow the latter course. The two accused were arrested and a Supreme
Court judge appointed as an examining magistrate to consider the evidence and
prepare the case against them. But the
Trial in a third country
1993, Robert Black QC, a professor of law at
Libyan government acted reasonably in this matter throughout. In 1991, they were happy to operate within
international aviation law as it then stood but the
The UN imposed economic sanctions on Libya were suspended in April 1999 when the two Libyans were handed over for trial in The Netherlands, but US-imposed sanctions remained in force and Libya was still on the US State Department list of states that sponsor terrorism. The extradition and conviction of Megrahi wasn’t a sufficient condition for the US/UK to allow Libya back in from the cold – in addition, Libya was required to accept responsibility for the Lockerbie bombing, to pay compensation to the families of its 270 victims and to renounce “terrorism”.
A deal was arrived at in August 2003,
key element in this formula was that
All the letter says about the Lockerbie bombing is
“has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103, and accepts responsibility for the actions of its officials” (Paragraph 3)
That doesn’t say anything
about the guilt or otherwise of Megrahi. It is generally believed that Megrahi and his
fellow suspect were members of the Libyan intelligence service and therefore Libyan
“officials”, but the letter doesn’t even admit that. For
The formula was a key
element in the settlement. It even appears in resolution 1506, which lifted
UN sanctions. Resolution 1506 welcomes
Foreign Office lies
statement of 15 August 2003 announced the
“In 1988, the worst
terrorist incident on
The last sentence is simply a
lie. But, happily for the Government, the press didn’t read the Libyan
letter to the President of the Security Council, which was appended to the
statement, and discover that McShane had told a lie. It was universally
Jack Straw repeated the lie in a press statement on 12 September 2003 , welcoming the passing of resolution 1506, and once more the press obliged by reporting the lie as fact.
The Government’s deception of the
public was successful thanks to the press, which printed what it was told
without question. Strangely, a few months later the Libyan Prime Minister,
Shukri Ghanem, lifted the
curtain on this deception in an interview on BBC Radio 4’s Today (see
BBC transcript ). In this interview, on 24 February 2004, he blurted out the awful truth that
As regards the Lockerbie bombing, he
Another concern in
A: Because it is a case that we came to a conclusion that we reached an agreement in which we feel that we bought peace. We, after a while and after the sanctions, and after the problems we have faced because of the sanctions, the loss of money, and we thought that it was easier for us to buy peace, and this is why we agreed on compensation. Therefore we said, let us buy peace, let us put the whole case behind us and let us look forward.
Q: So payment of compensation didn’t mean any acceptance of guilt?
A: I agree with that, and this is why I said we bought peace.
An interesting question arises: if,
as I expect, Abdelbaset Ali Mohmed Al Megrahi is acquitted on appeal, will
Labour & Trade Union Review
28 July 2007
 see www.fco.gov.uk
 see www.fco.gov.uk