1.2 NOTE OF APPEAL
Under the
Criminal Procedure (Scotland) Act 1995
To: Clerk of Justiciary
Name of Convicted Person: Abdelbaset Ali Mohmed Al Megrahi
Date of Birth: 1st April 1952
Prisoner in the prison of: Zeist, Camp Zeist (Kamp van Zeist), The Netherlands
Date of final determination of the proceedings: 31st January 2001
Crime or Offence to which the appeal relates: Murder
Court and names of judges: High Court of Justiciary in the Netherlands: Lords Sutherland, Coulsfield and MacLean.
Sentence: Life Imprisonment
The above named convicted person appeals against conviction on the following grounds:
It is contended that there has been a miscarriage of justice for the following reasons:
Al. The court erred in finding that the date of the purchase of the clothes from the shop at Mary's House, 63 Tower Road, Sliema, Malta was 7th December 1988.
a. The court misconstrued the terms of the joint minute read on day 31 as agreeing that "whichever football match or matches Paul Gauci had watched would have been broadcast by Italian Radio Television either on 23 November 1988 or 7 December 1988" (opinion para 64). That Minute only agreed that football was broadcast by Italian Radio Television at certain times on those dates. There was no basis on the evidence for inferring that these were the only matches broadcast on television in Malta between the relevant dates of 18 November and 20 December 1988. There was no evidence from which it could be inferred that Paul Gauci had watched football on television only on one or other of those dates. Paul Gauci (Crown witness number 596) did not give evidence and the only evidence that he may have been watching football on the day of the purchase came as hearsay from his brother Anthony Gauci.
b. There was no proper basis on the evidence for the finding at para 67 of the opinion that the date of purchase of the clothes was either 23 November or 7 December 1988.
c. The court accordingly erred in approaching the question of the date of purchase as a choice between only 23 November and 7 December 1988.
d i. The court failed to take proper account of the nature of the rainfall about which Major Mifsud gave evidence when he said there was a 10% chance of rain at Sliema between 6.30pm and 7pm on 7th December 1988. Such evidence was inconsistent with Gauci’s description of rainfall on the date of purchase which, he said, made the ground damp.
d ii. The court failed to have proper regard to the finding that the weather on 23rd November would have been wholly consistent with a light shower between 6.30pm and 7pm.
e. In relying on Gauci's evidence that the purchase was about the time that the Christmas decorations went up in Sliema, the court ignored or failed to have proper regard to the following factors:
i. that Gauci gave conflicting evidence as to whether the decorations were up or being put up at the time of the purchase.
ii. that in statements given to the police in September 1989 and September 1990 he had said that the decorations were not up at the date of purchase.
iii. that there was no evidence apart from a prior statement from Gauci as to when Christmas decorations were put up in Sliema.
iv. the confusion in Gauci's evidence as to whether the Christmas decorations related to the date of purchase or to occasions when he had been interviewed by the police.
f. In narrating the evidence of Gauci in para. 12 the court failed to take account of the fact that the terms of his prior statements demonstrated that he had not told the police in September 1989 that the sale had occurred about a fortnight before Christmas or that the Christmas lights were just being put up.
g. In relying on Gauci's evidence that the purchase was about two weeks before Christmas, the court ignored or failed to have proper regard to the following factors:
i. Gauci's evidence that he had no recollection of the day or date of purchase.
ii. his evidence that his recollection had been better when he had given statements to the police.
iii. the terms of those statements when he said on 1st September 1989 that the purchase had taken place in the winter of 1988 and 10th September 1990 when he said 'at the end of November' 1988.
iv. the evidence of the weather on 23rd November and 7th December 1988 which clearly favoured the former date.
h. The court erred in dismissing a defence submission (at paras 64 and 67) that it should have regard to evidence that Thursday 8th December 1988 was a public holiday when all shops in Sliema would have been closed. That evidence whether viewed in isolation or together with the evidence of Mr. Gauci that the purchase occurred midweek, by which he meant that his shop would have been open the day after, was available for consideration and should not have been ignored.
i. The court erred in dismissing a defence submission that it should have regard to the fact that eight pairs of pyjamas were ordered by Gauci on 25th November 1988 as raising an inference that the purchase of clothing, including pyjamas, had taken place prior to that date (para 66). That evidence was available for consideration by the court and the ability of the court to draw inferences from it did not depend on Gauci being asked about the sequence of events or the state of his stock on 7th December 1988.
A2. The court concluded that Gauci's evidence of identification by resemblance was reliable ''as far as it went" (para 69). In reaching that conclusion the court failed to have proper regard or to give proper weight to the following considerations:
i. the aspects of Gauci's initial description of the purchaser and his identification of a picture of Abo Talb and Mohamed Salem as resembling the purchaser which were inconsistent with the appellant being that person.
ii. the features in Gauci ' s evidence and previous statements which were consistent with the purchaser being substantially older than the appellant in 1988.
iii. that in picking out a photograph of the appellant in February 1991 (production 436) he was doing so 26 months after the purchase and that he qualified the identification by saying that the man in the photo would have to be ten years or more older to look like the purchaser.
iv. the difference in quality of the photograph of the appellant in production 436 from that of the other photographs.
v. that in picking out the appellant in court no explanation was advanced as to whether Gauci was making any allowance for the passage of 12 years since the purchase of clothes or whether the appellant, then aged 48, resembled the clothes buyer as he was in 1988.
A3. While the court noted at para. 55 the defence submissions on the prejudicial effect of pre-trial publicity, it failed to deal with those submissions and, in particular, failed to indicate whether those considerations affected the value to be attached to the identifications at Identification Parade and in court.
A4. The court failed to advance adequate reasons for preferring Gauci's identification of the appellant by resemblance of a photo, at identification parade and in court to earlier descriptions of the purchaser which did not match the appellant.
A5. The court failed to deal with and resolve the contradictions and inconsistencies in the evidence of Gauci regarding the date of the purchase and the identity of the purchaser.
A6. The evidence of identification was not of such character, quality or strength to justify a finding that the appellant was the clothes buyer. The court failed properly to take account of the significant body of evidence referred to above which pointed away from 7th December 1988 as the date of purchase. It failed to have proper regard to the factors which undermined evidence consistent with that date. The misinterpretation of the joint minute led the court into error on the issue of identification.
B1. The court misdirected itself as to the accuracy of the records from Frankfurt Airport from which it found that an inference could be drawn that an unaccompanied bag travelled on KM 180 from Luqa airport to Frankfurt and was there loaded onto PA103A.
a. The court misdirected itself as to the application of a presumption of accuracy in respect of records from Frankfurt airport (para 32). No such presumption was applicable in this case. In any event, the daily resetting of the computer clock did not eliminate inaccuracy and the employees filling out the worksheets did not have an interest in accurate time recording.
b. no such presumption could be applied to coders worksheets (production 1061) in circumstances where portions thereof were illegible and where there was evidence that the times shown on those records could have been taken from a variety of sources and the author of the entries of relevance was not called as a witness to explain them or the practice he followed at work. Nor could it be applied to the computer print out (production 1060) since the evidence was that the time shown therein was prone to inaccuracy.
c. any such presumption was in any event rebutted by evidence that the system of compiling records was liable to inaccuracy and that the records were themselves inaccurate in a number of respects.
d. the court misinterpreted, ignored or gave insufficient weight to the evidence undermining the accuracy of records of Frankfurt airport in respect that:
i. the evidence of Koscha did not account for one and a half missing wagons of baggage (para 33). Nor did that evidence explain an absence of any record of the encoding of those wagons.
ii. the court misinterpreted the evidence of Schreiner as to the time of the completion of coding on production 1061 at para 29.
iii. the court failed to have proper regard to the inaccuracy in respect of time of the computer print-out and the inaccuracy of the coders worksheets.
iv. the court misdirected itself in respect of the evidence of Whittaker at para 34 by requiring certainty from that witness that no record was made of the encoding of a suitcase which he had witnessed.
B2. The court erred in concluding in para 35 that none of the defence submissions cast doubt on the inference from the Frankfurt documents and other evidence that an unaccompanied bag was transferred from KM180 to PA103A in respect that:
i. the court failed to have proper regard to the inaccuracy of the computer record production 1060 combined with the potential inaccuracy of the times recorded in the coders worksheets production 1061 (para 32).
ii. the court failed to have proper regard to the evidence of Whittaker who described a single suitcase being encoded without seeing a record being made (para 34).
iii. the court failed to have proper regard to the finding that the evidence seemed to demonstrate that baggage from more than one flight might have been encoded at the same station at the same time (para 33).
iv. the court misinterpreted the evidence of Koscha in concluding that it accounted for the missing one and a half wagons of baggage (para 33).
v. the court failed to take account of the defence submissions (day 81 9715/6 and 9719/20) as to the effect of the evidence of Candar who indicated that he would as a matter of practice be prepared to encode a case for a colleague without knowing where it came from.
B3. The court misinterpreted the evidence of Kasteleiner at para 31 as indicating that it could be taken from the documents that no baggage was left at the gate. The court proceeded erroneously to draw an inference therefrom that all items sent there were loaded onto PA103A.
B4. The documents and other evidence from Frankfurt, properly construed, were not of sufficient strength, quality or character to enable the court to conclude that an unaccompanied bag from KM 180 was transferred to and loaded onto PA l03A standing the finding that it was 'extremely difficult' for such a bag to be shipped on a flight from Luqa, the fact that the documentation from KM 180 discounted any unaccompanied bag on that flight and the Crown's failure to advance a method of infiltration of such a bag at Luqa.
B5. The court erred in para 82 in having regard to collateral issues in concluding that the primary suitcase was dispatched from Malta in respect that it took into account that the purchaser of the clothes was Libyan and that the trigger for the explosion was an MST-13 timer.
B6. In dealing with the x-ray procedure at Frankfurt, the court ignored material parts of the evidence of Maier's previous statements to the effect that he could say that there 'was no explosives in the bags for flight 103 ‘; ignored the evidence of Koch that staff would have been able to recognise a radio cassette going through the x-ray machine; misinterpreted the evidence of FAA investigators when it found that they viewed the standard of training for Alert employees to be poor; and failed to deal with the defence submission that the x-ray procedure would have acted as a deterrent to a terrorist wanting to send a bomb from Malta to London.
B7. The court failed to have proper regard to the evidence of unaccompanied bags. In para 33 the court misunderstood the defence submission regarding baggage carried on PA103A additional to that shown on production 1060. The submission was that 21 online items of baggage from Berlin fell to be added to the total of 111 shown on production 1060 making 132 whereas only 118 items were shown on production 199, the passenger list, which did include the online baggage from Berlin. The explanation for the difference of 14 was that these items were or could be unaccompanied baggage. Further, the court failed to deal with the evidence relating to the unaccompanied bag from Warsaw in para 33. The existence of unaccompanied baggage on PA103A was a material factor of which the court failed properly to take account.
B8. The court failed properly to take account of the defence submissions as to the factors which would have deterred a terrorist from attempting to ingest a bomb bag at Luqa.
B9. The court misdirected itself in para 25 by finding that the suitcase described by Bedford 'might have been placed at some more remote comer of the container'. There was no evidence that more than one case matching the description of the primary suitcase was present in container AVE 4041 or recovered at Lockerbie. The case described by Bedford was one of not more than ten. It was for the Crown to lead evidence to demonstrate the existence of a bag which matched that described by Bedford additional to the primary case. It did not do so. Without such evidence the court were not entitled to speculate. In doing so the court erred in dismissing the significance of the suitcase described by Bedford as being the primary suitcase.
B10. The court failed to take account of the defence submission that the fact that the primary suitcase was located at or near to the optimum position to achieve its destructive purpose gave rise to an inference that the device was ingested at Heathrow airport.
B 11 There exists significant evidence which was not heard at the trial. Reference is made to the following documents copies of which are appended hereto.
1. Affidavit of Raymond Walter Manly 23/2/2001
2. Copy plan referred to therein, RWMl
3. Affidavit of Raymond Walter Manly 22/3/2001
4. Copy extract of CP2 logbook, RWM2
5. Copy extract of logbook, RWM3
6. Copy incident report, RWM4
7. Copy plan, RWM5
8. Copy statement of Raymond Walter Manly 31/1/1989
9. Affidavit of Philip Gordon Radley 23/4/01
10. Copy statement of Philip Gordon Radley 19/1/89
11. Unsworn affidavit prepared following an interview of Peter MacAleavey on 30/3/2001
12. Copy statement of Peter MacAleavey 2/2/89.
Said evidence is significant as it demonstrates that at some time in the 2 hours before 1235 am on 21 December 1988 a padlock had been forced on a secure door giving access to airside in Terminal 3 of Heathrow Airport, near to the area referred to in the trial as 'the baggage build up area'. Had said evidence been available at the trial it would have supported the body of evidence suggestive of the bomb having been infiltrated at Heathrow on which the defence founded.
There is a reasonable explanation as to why said evidence was not heard at the trial. The existence of said witnesses and evidence was unknown to the appellant's advisers who had no reason to think that this evidence might exist.
C. The court erred in failing to deal with defence submissions as to the effect on the Crown case of the Crown's failure to call witnesses Paul Gauci, Koca and Tuzcu (day 81/9725 to 9728 and 9741 and day 82/9893).
D. The court erred in ignoring the explanation advanced for the appellant's visit to Malta on 20th and 21st December 1988 and the evidence of the behaviour of the appellant inconsistent with terrorist activity at that time (para 88). That explanation and evidence was set out in the submissions for the appellant on day 83 pages 10043.21-10061.2.
E. The court erred in treating evidence of association with the witness Bollier and apparent involvement in military procurement as supportive of a finding of guilt (para 88 and 89).
F. In determining in para. 87 in relation to the Abdusamad passport that ‘there was no evidence as to why this passport was issued to him’ the court failed to take account of the defence submission that there was an inference to be drawn from the evidence of the witness Gharour which offered such an explanation.
Alistair J.M. Duff
Solicitor for the Appellant
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