Lockerbie bombing accused's further appeal refused

Scotland's Criminal Appeal Court has refused the further appeal brought on behalf of the man convicted of causing the bomb explosion on board flight Pan-Am 103 over Lockerbie in December 1988.

Five judges – Lord Justice General Carloway, Lord Justice Clerk Lady Dorrian, Lord Menzies, Lord Glennie and Lord Woolman – unanimously refused an appeal by the representative of the late Abdelbaset Ali Mohamed Al Megrahi, following a reference to the court from the Scottish Criminal Cases Review Commission.

The court rejected grounds of appeal that the trial court reached a verdict that no reasonable trial court could have, and that certain documents said to be relevant to the credibility and reliability of Toni Gauci, a Maltese shopkeeper who gave identification evidence linking Mr Megrahi with items established to have been in the suitcase carrying the bomb, should have been disclosed to the defence.

Mr Megrahi was convicted in 2001 of the murder of a total of 270 people by a specially constituted court, held in the Netherlands, of three Scottish judges. An appeal brought on multiple grounds was refused by a bench of five judges in 2002. An appeal following an initial reference to the High Court by the SCCRC was abandoned in 2009, after which Mr Megrahi was released from prison on compassionate grounds due to terminal illness.

Following a further request by his family, the SCCRC again referred the case to the High Court in 2020, on the two grounds argued before the court.

On the first ground, it was argued that Mr Gauci was one of three important witnesses, of whom the court had largely rejected the testimony of the other two. Mr Gauci's evidence had been "riddled with deficiencies, contradictions and inconsistencies", and no reasonable jury could have accepted it. There had been flaws in the investigation process during which he had identified Mr Megrahi, and his dock identification was of no value. 

On the second, the documents it was said should have been disclosed, concerned local Maltese newspaper reporting, and documents relating to the potential for the payment of a reward to him. It was argued that the former, which had carried photos of the accused as well as references to Mr Gauci and his shop, might have materially weakened his identifications; and that any information which would suggest that Mr Gauci was motivated by money would satisfy the test of being material to the proper preparation or presentation of the defence or likely to have been of real importance in undermining the Crown case or casting reasonable doubt upon it, such that failure to disclose had denied a fair trial in terms of article 6 of the Human Rights Convention.

Lord Carloway, delivering the opinion of the court, said on the first ground that the critical question at trial had not been whether Mr Megrahi had been identified beyond reasonable doubt as the purchaser of the clothes from Mr Gauci's shop, but whether it had been proved beyond reasonable doubt that he had participated in the delivery of the bomb onto a flight from Malta from which it had been transferred to flight 103. His identification in the shop was only one of several elements in that proof, and the evidence had to be looked at overall. It was only if it was impossible, or unreasonable in terms of the statute, to draw the relevant inference that it could be held that a miscarriage of justice had occurred. There was a circumstantial case against Mr Megrahi and the trial court had in fact left out of account as hearsay one item which was properly part of the res gestae and would have substantially strengthened that case.

The court had also examined Mr Gauci's evidence with care, recognising that there were "undoubtedly problems" with it, and was entitled to conclude that other evidence that conflicted with aspects of Mr Gauci's evidence regarding the date of purchase did not prevent it holding that Mr Megrahi was the purchaser. "On the evidence at trial, a reasonable jury, properly directed, would have been entitled to return a guilty verdict."

On the second ground, 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. The press reports did not provide grounds for objecting to Mr Megrahi's identifications beyond those already available to the defence; had they been available to the court, they would have made no difference to the verdict. The reward documents did not disclose that Mr Gauci was motivated by the prospect of a reward; "quite the contrary", Lord Carloway said.

"It is tolerably clear that the defence would have been aware of the existence of a potential reward at the instance of the United States’ government, but this was not pursued at the trial. This was no doubt advisedly so. All that would have been achieved would have been a strengthening of Mr Gauci’s credibility."

He concluded: "The contention that the Crown failed to disclose material which would have created a real prospect of a different verdict is rejected."

Click here to view the opinion of the court.