High Court rejects final posthumous appeal against Lockerbie bomber’s conviction

Mr Megrahi was originally convicted of the murders of 270 people by a bench of three judges at a trial without a jury conducted at a sitting of the High Court of Justiciary in the Netherlands in 2001. The case was referred to the High Court by the Scottish Criminal Cases Review Commission for a second time in 2020 following earlier unsuccessful or abandoned appeal proceedings.

The appeal was heard by the Lord Justice General, Lord Carloway, and the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies, Lord Glennie, and Lord Woolman.

Riddled with deficiencies

The SCCRC reference provided two grounds of appeal; that the verdict of the trial court was one that no reasonable jury, properly directed, could have returned; and that the Crown had failed to disclose certain specific documents to the defence.

The first appeal ground was focused on whether the trial court had been entitled to find that Mr Megrahi had been the purchaser of certain items of clothing which had been in the suitcase carrying the bomb. In the reference, the SCCRC criticised the evidence of Toni Gauci, a shop owner in Malta who had sold the items and identified Mr Megrahi as the purchaser of the clothes.

Mr Gauci had originally identified the clothing as well as an umbrella as originating from his shop to the police in September 1989. In 1991, two years after the purchase, he picked out Mr Megrahi’s photograph from a spreadsheet of twelve, and he picked him out of an identity parade in 1999, both times as being similar to the purchaser. He identified Mr Megrahi in court as the purchaser of the clothes by saying: “He is the man on this side [of the dock]. He resembles him a lot.”

It was submitted that Mr Gauci’s evidence was “so riddled with deficiencies, contradictions and inconsistencies that no reasonable jury could have stamped it as reliable or credible”. His evidence about the date of purchase was unreliable and he had never made an unequivocal identification of Mr Megrahi, the identity parade having taken place after there had been worldwide publicity in relation to the identification of Mr Megrahi as the bomber.

Air of plausibility

Delivering the opinion of the court, Lord Carloway outlined the test for unreasonableness of a jury verdict per Smith v HM Advocate (2017), in which he said: “It is only in the most exceptional of circumstances that an appeal on this ground will succeed. A verdict will be quashed only if the court is satisfied that no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty.”

Evaluating the role of Mr Gauci’s evidence overall, he said: “The critical question for the trial court was not whether Mr Megrahi had been identified beyond reasonable doubt as the purchaser of the clothes. It was whether it had been proved beyond reasonable doubt that Mr Megrahi had participated in the deliberate delivery of the bomb onto the Frankfurt flight from Luqa, with the bomb’s eventual destination being on flight PA 103 from Heathrow. Mr Gauci’s identification of Mr Megrahi as resembling the purchaser was but one of several elements in that proof.”

He continued: “On the first occasion that Mr Gauci was shown a photograph of Mr Megrahi, he picked him out from a group of 12 images. He explained why he had done so under reference to several features of his face, which he described as ‘the same’. When it is noticed that Mr Megrahi was a person who visited the area where the shop was located, and did so on the night before the ingestion of the bomb at Luqa, this identification takes on an air of considerable plausibility especially as it was not disputed that the purchaser was, as Mr Gauci always said, a Libyan.”

Lord Carloway concluded on this appeal ground: “The court accepted [Mr Gauci] as a person who was trying to tell the truth. The court was well entitled to form this view having regard to the manner in which he gave his evidence and the caution which he applied to his identifications. In that regard, the vast experience of the particular judges in such matters is not without significance.”

Already the defence’s position

The second appeal ground contended that the Crown had failed to disclose specific documents to the defence. These included police documents relating to Mr Gauci’s identification of Mr Megrahi was well as the content of certain CIA cables relating to the testimony of Abdul Majid, an alleged double agent who defected from the Libyan intelligence service who testified that Mr Megrahi was a member of the Libyan security organisation JSO. It was contended that the disclosure of these materials would have created a real possibility of a different verdict.

Addressing the legal test for this appeal ground, Lord Carloway said: “The critical question was whether, after taking full account of all the circumstances of the trial, there was a real possibility that the jury might have come to a different verdict if the material, which ought to have been disclosed, had been available to the defence.”

Evaluating the documents relating to identification, he said: “None of the material provided grounds for objecting to either the parade or dock identifications beyond those already available to the defence. It had already been the defence’s position, relative to their plea in bar of trial on the basis of pre-trial publicity, that Mr Gauci had seen many images of Mr Megrahi prior to the identity parade.”

On the CIA cables, he said: “These cables were disclosed, albeit belatedly, at the trial. The Crown have explained why the gradual disclosure took place. The matter became academic since the court rejected the evidence of Mr Majid except in relation to the structure of the Libyan JSO, which was not challenged.”

For these reasons, both grounds of appeal were rejected and the appeal against conviction was refused.