Beyond reasonable doubt in Scotland

Today, the Scottish Justice Secretary announced that Abdelbaset Ali al-Megrahi, the man jailed for the bombing of Pan Am Flight 103 was to be released “on compassionate grounds”. After serving years in jails in Scotland al-Megrahi, who has terminal cancer, will fly home to die.

Who coordinates how public discourse is shifted? The news of his release happened only today, but already it is well established by the media that we are not to discuss whether he committed the crime in the first place, and we are not to discuss whether he should have been imprisoned. We are not to discuss the huge holes in the evidence, and we are not to discuss the fact that even a cursory reading of the judges verdict would have led you to believe that this man should never have been convicted.

The only question we are apparently supposed to discuss is: should this dying man have been released “on compassionate grounds”?

To assess how reliable the conviction was, it’s instructive to go back over excerpts from the transcript of the original trial verdict.

One of the key factors in the conviction of al-Megrahi was his identification by a Maltese shopkeeper called Tony Gauci. Gauci gave evidence that al-Megrahi purchased clothing from his shop, later allegedly found in close proximity to bomb components from flight 103. From the trial verdict (with my emphasis):

A major factor in the case against the first accused is the identification evidence of Mr Gauci. For the reasons we have already given, we accept the reliability of Mr Gauci on this matter, while recognising that this is not an unequivocal identification

In other words, the judges acknowledge the crucial importance of the identification by Tony Gauci (a Maltese Shopkeeper) of the accused, and then go on to say that while it is not an “unequivocal” identification, the judges accept its reliability. And why do they accept its reliability? From earlier in the judgement, they explain the sequence of events (edited here) with Mr Gauci that leads to them judging this identification as reliable:

Gauci is first interviewed by police on 1st September 1989, where he describes the gentleman he sold clothes to as 6 feet tall or greater, with a big chest and a large head. On 13th September. Gauci clarifies the man’s age as “about 50”. On 14th September, Gauci is shown 19 photographs, and he indicates that one of the photographs (which was not al-Megrahi) is of a man who appears “similar” to the man who purchased the clothes, but is too young. On 26th September, Gauci is shown 24 more photographs, and he indicates that the man he sold the clothes to is not present, but that one man in the photographs has the same shape of face and style of hair, and three other photographs are of men of the correct age. On 6th December, Gauci is shown another selection of photographs, and does not identify anyone from them. Some time around the end of 1989 or the beginning of 1990, Gauci’s brother shows him a newspaper article about the Lockerbie disaster, which contains the word “bomber” across a photograph of the wreckage of Pan Am 103. In the article are also images of two men – one of which was also marked with the word “bomber”. Gauci thought that one of the photographs showed the man who had purchased the clothes from his shop – the man he identified in the paper was Abo Talb. On 10th September 1990 (a year after the first interviews), Gauci is again shown 39 photographs, and does not identify anyone from these pictures – stating that he has never seen a photograph of the man who bought the clothing. On 15th February 1991 (a year and a half after the initial interviews), Gauci is shown 12 photographs, and says none of them are of the correct age. When asked by police to look carefully and allow for age difference, he pointed out one of the photographs, saying the face was “similar to the man who bought the clothing”. He also said “It’s been a long time now, and I can only say that this photograph 8 resembles the man who bought the clothing, but it is younger”. The policeman concerned (DCI Bell) later gave evidence that the person in photograph 8 was al-Megrahi.

So this is the eyewitness that is “reliable” in the opinion of the judges – an eyewitness who after at least 6 separate interviews and identification sessions, and being shown over 94 photographs over a period of 17 months, is only able to say that a single face is “similar”, and “resembles” a man who bought clothing in his shop. On this account, the entire case hangs.

So how were the judges able to take this “reliable” account, and plug it in to a watertight prosecution case?

From the judgement again (with my emphasis):

From his [Gauci’s] evidence it could be inferred that the first accused was the person who bought the clothing which surrounded the explosive device. 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 Malta where he stayed until 9 December. He was staying at the Holiday Inn, Sliema, which is close to Mary’s House. If he was the purchaser of this miscellaneous collection of garments, it is not difficult to infer that he must have been aware of the purpose for which they were being bought. We accept the evidence that he was a member of the JSO, occupying posts of fairly high rank. One of these posts was head of airline security, from which it could be inferred that he would be aware at least in general terms of the nature of security precautions at airports from or to which LAA operated… 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.

In other words, al-Megrahi could be the person that purchased the clothing. And he was staying in Malta, close to the clothes shop. And if he bought the clothes that ended up in the bomb, he probably knew about the bomb. He might know about general security arrangements at “airports”. It’s possible his visit to Malta was connected with the planting of the device [bomb].

Do the words “beyond reasonable doubt” keep ringing in the ears of anyone except me?