November 26 2020 — On November 24, a third appeal on behalf of the Libyan man convicted of the 1988 Lockerbie bombing began at the High Court in Edinburgh. The appeal was conducted via video link. The first day was utterly boring. Nothing happened whatsoever. The second day was even worse. On the third and final day, Advocate Depute Ronny Clancy QC argued against granting the appeal. The five judges will now retire in private and produce a written submission as soon as practicable. Follow us on Twitter: @INTEL_TODAY
Lockerbie — Three Decades of Lies: J’Accuse…!
QUICK NOTES — To make it easier for the readers to retrieve various chapters of my book, I have created a special page “Lockerbie” where all the links to the chapters will be listed with a brief description. You can access that page directly as it appears at the far right of the top bar of this blog.
On March 11 2020, the Scottish Criminal Cases Review Commission [SCCRC] decided to refer the Lockerbie case back to the High Court of Justiciary for determination. As a result of the Commission’s decision, Mr. Megrahi’s family was therefore entitled to instruct an appeal against his conviction. The first procedural hearing took place on Friday August 21 2020. The Appeal started on November 24 2020 and ended 3 days later.
Lockerbie — Three Decades of Lies: J’Accuse…!
The five judges are: Lord Carloway, Lady Dorian, Lord Menzies, Lord Glennie, and Lord Woolman.
The Advocates are: Gordon Jackson, QC, Claire Mitchell QC (Defence) and Ronny Clancy QC (Prosecution).
RELATED POST: Lockerbie Third Appeal — Day 1 (November 24 2020)
RELATED POST: Lockerbie Third Appeal — Day 2 (November 25 2020)
Day 3 (November 26 2020)
10.45 — Proceedings begin.
Advocate Depute Ronny Clancy QC is going through various pieces of evidence that he says helps corroborate the eyewitness testimony at issue in the defence case.
Clancy points out that the appellant had a false passport which he only used once to go to Malta the day before the bomb was dispatched and to leave the island the next day. This ‘coded’ passport was never used again.
“There is a significant chapter of evidence which supports the identification and indeed the involvement of Mr Megrahi in the conspiracy.
And that is his use of the false passport at a critical time. He was issued with this false passport in 1987.
In the course of 1988, it was used only once, for the trip to Malta the day before the plane departed with the bomb and he returned to Tripoli using the same passport shortly after the plane left Luqa carrying the bomb.
The passport was never used again.
From the evidence about the passport and the other incriminating evidence it was possible to infer that Mr Megrahi’s visit to Luqa on that date was connected with the planting of the device.
We say that was an entirely legitimate inference to draw, certainly well within the range of inferences open to a reasonable jury.
The trial court was fully entitled to make such inferences.”
Regarding the payment to Gauci, Clancy argues that this evidence actually had the opposite impact, in showing that the witness did not expect any compensation and so was not motivated by it.
“What this passage shows is that by June 1999, Tony Gauci was accepting of the position that he would not be compensated for the disruption to his life occasioned by the involvement in this case.
“In so far as it’s an expression of present intention, it’s the opposite of an interest in reward or compensation.
“It’s a sense of frustration that there will be nothing on the horizon.”
Clancy also told the court the trial defence team knew there was a danger of Mr Gauci firming up on his position if they had not taken a soft approach, so disclosure would be unlikely to have changed their strategy.
13.10 — Court rises for lunch.
14.00 –Proceedings resume.
The Advocate Depute is continuing his submissions on why, in his view, the appellant’s appeal should be rejected.
Clancy argues that 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.
Clancy tells the appeal that the judges at their trial were wrong to discard that simply because they had acquitted Fhimah.
“Fhimah’s diary had entries claiming he had acquired baggage tags which 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.
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.”
Clancy points out that the SCCRC discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta.
“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,”
16.20 — The Lockerbie Appeal hearing has ended.
The five judges will now retire in private and produce a written submission as soon as practicable. A written decision usually takes a few weeks.
The Case Against Megrahi
The initial charges against Megrahi are basically the following:
On December 7 1988 , Megrahi purchased a quantity of clothing and an umbrella in the shop premises known as Mary’s House at Tower Road, Sliema, Malta.
On December 20 1988, Megrahi — using a passport in the false name of Ahmed Khalifa Abdusamad — traveled to Malta with a brown Samsonite suitcase.
On December 21 1988 at Luqa Airport, Megrahi placed — or cause to be placed — on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport, Federal Republic of Germany the Samsonite suitcase, containing the clothing and umbrella bought on December 7 1988, and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 “Bombeat” radio cassette recorder.
The IED was programmed to be detonated by a Swiss electronic timer only supplied to Libya and the luggage was tagged as to be carried by aircraft from Frankfurt am Main Airport via London, Heathrow Airport to New York, John F Kennedy Airport, United States of America.
On December 21 1988, the IED exploded at 7:03 over Lockerbie, destroying instantaneously Pan Am 103 and killing 259 people on-board and 11 residents on the ground.
In its final submissions the prosecution dropped the charges of conspiracy and breach of aviation security and focused solely on the charge of murder.
Intel Today Analysis
In his book [The Lockerbie Bomber (2016)], former Justice Minister Kenny MacAskill wrote that the “clothes in the suitcase that carried the bomb were acquired in Malta, though not by Megrahi…”
For the first time ever, a top official admitted that Megrahi was not the person who bought the infamous clothes in Malta.
The description of the mysterious shopper is certainly not one that fits Megrahi.
It is certainly reasonable to expect that the judges will conclude that Megrahi was NOT the person who bought the infamous clothes in Malta.
The big question is this. Does it matter to the case?
On November 29 2017, following an interview with former justice secretary Kenny MacAskill on his show, Alex Salmond [First Minister of Scotland from 2007 to 2014] said:
“Is it possible for someone to be guilty, yet wrongly convicted? Yes it is.
Kenny MacAskill was correct, the forensic evidence complied by the Scottish authorities and the FBI clearly identified Libyan involvement and Malta as the place where the bomb was planted.
Mr Megrahi was a high ranking Libyan intelligence official on the scene at the time.
This supports the charge that he, acting with others, was part of the Lockerbie conspiracy.
However, his conviction was not just based on the strength of that evidence but on identification evidence which is, to say the least, open to question.”
As Richard Marquise — Chief of the FBI’s Lockerbie task force from 1988 to 1992 — has repeatedly pointed out:
“The conviction was not just based on identification evidence. It is the preponderance of the evidence that led to the conviction.”
For various reasons, the defence decided not to challenge the “significant chapter of evidence which supports the identification and indeed the involvement of Mr Megrahi in the conspiracy.”
As the Judges wrote after the Zeist trial:
“It is possible to infer that this visit under a false name the night before the
explosive device was planted at Luqa, followed by his departure for Tripoli the following morning at or about the time the device must have been planted, was a visit connected with the planting of the device. Had there been any innocent explanation for this visit, obviously this inference could not be drawn.”
The defence did not even try to provide an innocent explanation for Megrahi’s visit to Malta under a false name. The reader will draw his own conclusions.
PS — Oliver Cromwell died in 1658. His body was exhumed in 1661 to be hanged in chains. Later, he was decapitated and his head was displayed on a pole outside Westminster Hall until 1685. There is a pole waiting for Megrahi’s head.
Court reporter James Doleman — Tweeter
Lockerbie Third Appeal — Day 3 (November 26 2020)