In summary, the prosecution's account of how the Lockerbie bombing was carried out is as follows:-Abdelbaset Ali Mohmed Megrahi and Al Amin Khalifa Fhimah arranged for a brown Samsonite suitcase containing the Lockerbie bomb to be put on to Air Malta flight KM180, which left Luqa airport in Malta for Frankfurt on the morning of 21 December 1998.
The suitcase was got on to the flight as unaccompanied baggage and tagged for onward transmission, first on to a feeder flight (Pan Am PA103A) from Frankfurt to Heathrow and then on to Pan Am flight PA103 from Heathrow to JFK in New York, the flight which was blown up over Lockerbie at 19.03 GMT that evening.
Fhimah, who had been station manager for Libyan Arab Airlines in Malta and therefore knew his way around Luqa airport, provided stolen Air Malta luggage tags for this purpose. The bomb itself was made out of Semtex and triggered by an electronic timing device (supplied and manufactured by a Swiss company, MEBO AG) and was contained within in a Toshiba RT-SF 16 radio cassette player. The suitcase also contained items of clothing purchased for this purpose from a shop in Malta (Mary's House in Sliema) by Megrahi.
The judges-Lords Sutherland, Coulsfield and Maclean-delivered their unanimous verdict on 31st January 2001, finding Megrahi guilty and acquitting Fhimah. Below, we present an analysis of their judgement, which shows that the verdict against Megrahi is not justified by the evidence as set out in the judgement itself.
The first 15 paragraphs of the judgement are taken up with details of the fatal explosion which took place on PA103. There is no doubt that the explosive device was contained in a Samsonite case and surrounded by clothes which were bought in Malta, at Mary's House in Sliema. Below we will examine the identification evidence presented by the prosecution that Megrahi was the purchaser, a key element in the prosecution case. The judgement also accepts the prosecution case that the explosive device was made of Semtex, and triggered by a MST-13 timer, manufactured by the Swiss company MEBO AG, and contained within a Toshiba RT-SF 16 radio cassette player (paragraph 15). The importance of this is that evidence was advanced to show that MST-13 timers were sold by MEBO AG to Libya (paragraphs 44-54) and therefore could conceivably be available to Megrahi as a senior figure in the JSO, which did not seem to be disputed. However, there was no evidence advanced of Megrahi being in possession of an MST-13 timer or of a bomb triggered by one, or even of a Samsonite suitcase, once Giaka's evidence was discredited.
(This is not relevant to the current analysis but evidence was also advanced that MEBO AG supplied at least a couple of MST-13 timers to the Stasi (paragraph 48-49). It was therefore possible that one of these could have found their way to one of the Palestinian groups, the Palestinian Popular Struggle Front (PPSF) or the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), whom the defence said were responsible for the bombing. In other words, it was possible to accept that the bomb was triggered by an MST-13 timer without necessarily accepting that it originated in Libya.)
We will proceed now to look at the evidence advanced by the prosecution connecting Megrahi and Fhimah with the bomb, beginning with Giaka and followed by the owner of the Mary's House. We will then examine the evidence that Megrahi and Fhimah were responsible for putting an unaccompanied bag with a bomb in it got on KM180 at Luqa airport and the evidence that such a bag passed through Frankfurt airport on to PA103A.
According to the judgement (paragraph 42), Giaka worked for Libyan Arab Airlines at Luqa airport in Malta from December 1985 and knew both Megrahi and Fhimah well. He worked for Fhimah who was the station manager for Libyan Arab Airlines at Luqa from 1985 to October 1988. His importance lay in the fact that he supplied the only eyewitness evidence connecting Megrahi and Fhimah to the bomb, which did not involve uncertainty about identification-since he knew them personally.
As the judgement recounts (paragraphs 42 & 43), he said he saw them arriving together in Luqa airport off a flight from Tripoli sometime between October and December 1988. The date was eventually pinned down to 20 December, the day before the bombing took place. Crucially he said that he saw them at the luggage carousel and that Fhimah collected a brown Samsonite suitcase, which he took through customs.
He also told the CIA that explosives (TNT, not Semtex) supplied by Megrahi had been stored for months in the offices of Libyan Arab Airlines under the control Fhimah. He had mentioned the explosives to the CIA before but it wasn't until July 1991 that he associated the two accused with them. He also said that in 1986 he had been asked by Said Rashid, a senior figure in the JSO, if it would be possible to put an unaccompanied bag on board a British aircraft at Luqa airport; he had, he said, reported back that it could be done and had later discussed the matter with the first accused, Megrahi. (In his evidence to the Court he admitted, under cross examination, that he had never reported this to the CIA prior to July 1991, even when they asked him if he knew anything about the possibility of the bomb which blew up PA103 being sent from Luqa).
The defence's access to the CIA cables about him enabled them to destroy his credibility as a witness and the judges were forced to conclude:-
'It is also in our view clear that whatever may have been his original reason for defection, his continued association with the American authorities was largely motivated by financial considerations. Information provided by a paid informer is always open to the criticism that it may be invented in order to justify payment, and in our view this is a case where such criticism is more than usually justified. Putting the matter shortly, we are unable to accept Abdul Majid [Giaka] as a credible and reliable witness on any matter except his description of the organisation of the JSO and the personnel involved there.'
Thus the evidence of the key witness had to be discounted. Of itself, his evidence did not amount to much. It certainly did not amount to direct evidence that the two accused were responsible for getting the bomb on to Air Malta flight KM180 at Luqa airport. But it did apparently show that the JSO had been thinking about blowing up an aircraft by putting an unaccompanied bag on board at Luqa and that there was a reliable method of doing so (though, strangely, the method was not described at the trial). And it did suggest that a brown Samsonite suitcase of the type which contained the bomb was in the possession of the accused at Luqa shortly before the bombing occurred.
The discounting of this evidence blew a very large hole in the prosecution case.
THE 'IDENTIFICATION' OF MEGRAHI
The only remaining evidence connecting Megrahi to the bomb was his 'identification' by Tony Gauci, as the person who bought the clothes which were in the Samsonite case along with radio cassette containing the bomb. Gauci was a partner in Mary's House, in Sliema, Malta, where according to the prosecution the clothes were bought. On the basis of the identification evidence by Gauci, the prosecution tried to prove that Megrahi did the buying (see paragraphs 55-69).
It should be emphasised, as the judgement freely admits, that Gauci never ever made a positive identification of Megrahi as the purchaser of the clothes. Yet the judges accepted his identification evidence as reliable, while acknowledging it was defective and excusing its defectiveness because of the lapse of time since the purchase occurred. This is not a joke. It is there in black and white in paragraph 69 of the judgement. It was on the basis of this defective identification evidence that Megrahi was convicted of mass murder. After Giaka was discredited, there was no other identification evidence connecting to Megrahi with the bomb. As the judgement recounts, in September 1989, nine months after the bombing, Gauci was first approached by police about the clothes. Amazingly, he said he remembered selling the clothes to a Libyan about a fortnight before Christmas 1988. He remembered the sale, he said, because the choice of clothes didn't appear to matter to the purchaser (paragraph 12). Gauci assisted the police in the construction of a photofit and an artist's impression of the purchaser (paragraph 56). At various times over the next eighteen months he was shown sets of photographs of individuals and invited to identify one as the purchaser and on two occasions he picked out a person who he said looked like the purchaser.
At about the end of 1989 or the beginning of 1990 his brother showed him an article in a newspaper about the Lockerbie disaster (paragraph 61). There were two photographs in the article. He thought that one of them was of the man who had bought the clothing from him. The photograph was of a Palestinian named Abo Talb, who was associated with the PPSF. However, it should be said that on one occasion when shown a set of photographs which included one of Abo Talb, he did not pick him out (paragraph 61).
On 15th February 1991 he was again asked to look a number of photographs (see paragraph 62), this time 12 in number and he picked out number 8 which was of Megrahi from his 1986 passport, saying:-
'Number 8 is similar to the man who bought the clothing. The hair is perhaps a bit long. The eyebrows are the same. The nose is the same. And his chin and shape of face are the same. The man in the photograph number 8 is in my opinion in his 30 years. He would perhaps have to look about 10 years or more older, and he would look like the man who bought the clothes. 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.'
He went on:-
'I can only say that of all the photographs I have been shown, this photograph number 8 is the only one really similar to the man who bought the clothing, if he was a bit older, other than the one my brother showed me.'
The one his brother showed him was, of course, of Abo Talb. Much earlier, on 14th September 1989 he picked out one Mohammed Salem from a set of photographs as similar to the man who had bought the clothing (see paragraph 58) and presumably if he had continued to be presented with sets of photographs of people who resembled the photofit and artist's impression, he would have picked out others.
That does not amount to a positive identification of Megrahi as the purchaser of the clothes surrounding the bomb. That was the state of play when he was indicted in November 1991. Before the trial began on 13th August 1999, Gauci picked out Megrahi at an identification parade at Camp Zeist. This was pretty meaningless because photographs of the accused had being published widely over the years. But even then Gauci did not say that Megrahi was the man who purchased the clothes in his shop. His exact words were:-
'Not exactly the man I saw in the shop. Ten years ago I saw him, but the man who look a little bit like exactly is the number 5' (paragraph 55) Number 5 in the parade was Megrahi. Gauci also identified him in Court, saying:- 'He is the man on this side. He resembles him a lot' (paragraph 55) Yet again not a positive identification in either case.
There is another matter which casts doubt upon Gauci's identification of Megrahi as the purchaser. When he was first interviewed by the police he said that the purchaser was six feet or more in height and aged 50 (paragraph 57). Megrahi is 5'8" in height and in December 1988 he was 36 years old (paragraph 68). The judges' conclusions from this (paragraph 69) are remarkable:-
'What did appear to us to be clear was that Mr Gauci applied his mind carefully to the problem of identification whenever he was shown photographs, and did not just pick someone out at random. Unlike many witnesses who express confidence in their identification when there is little justification for it, he was always careful to express any reservations he had and gave reasons why he thought that there was a resemblance. There are situations where a careful witness who will not commit himself beyond saying that there is a close resemblance can be regarded as more reliable and convincing in his identification than a witness who maintains that his identification is 100% certain.
'From his general demeanour and his approach to the difficult problem of identification, we formed the view that when he picked out the first accused at the identification parade and in Court, he was doing so not just because it was comparatively easy to do so but because he genuinely felt that he was correct in picking him out as having a close resemblance to the purchaser, and we did regard him as a careful witness who would not commit himself to an absolutely positive identification when a substantial period had elapsed.
'We accept of course that he never made what could be described as an absolutely positive identification, but having regard to the lapse of time it would have been surprising if he had been able to do so. We have also not overlooked the difficulties in relation to his description of height and age. We are nevertheless satisfied that his identification so far as it went of the first accused as the purchaser was reliable and should be treated as a highly important element in this case.'
The judges seem to have omitted one crucial fact in this treatise on the virtues of uncertain witnesses: Tony Gauci picked out, in one way or another, three different people who resembled the purchaser. But, most important of all, he wasn't sure that any of them was the purchaser. Because Megrahi looked like the purchaser, according to Gauci's evidence, and conceivably might have been the purchaser, the judges have elevated that possibility into a certainty and declared him to be the purchaser.
THE RAIN IN MALTA
The judges not only concluded that Megrahi bought the clothes in Mary's House, but also that he bought them on Wednesday, 7th December 1988 in the early evening (paragraph 67).
Tony Gauci said that the clothes were bought about a fortnight before Christmas and he also recalled that he had been alone in his shop because his brother Paul had been watching football on television (paragraph 56). Assuming the latter recollection to be accurate, this narrowed the possible purchase dates to Wednesday 23 November or Wednesday 7 December. Tony Gauci also recalled that it was raining when the purchaser came into the shop and that he bought an umbrella, which he put up when he left the shop (paragraphs 56 & 57). Fragments of a black nylon umbrella were also in the Samsonite case along with the bomb (paragraph 10).
Major Mifsud, Chief Meteorologist at Luqa Airport at that time, appeared as a witness for Megrahi at the trial (the first of only two witnesses called in his defence). Paragraph 65 of the judgement reports his evidence as follows:-
'He was shown the meteorological records kept by his department for the two periods, 7/8 December 1988 and 23/24 November 1988. He said that on 7 December 1988 at Luqa there was a trace of rain which fell at 9.00am but apart from that no rain was recorded later in the day. Sliema is about five kilometres from Luqa. When he was asked whether rain might have fallen at Sliema between 6.00pm. and 7.00pm in the evening of 7 December 1988, he explained that although there was cloud cover at the time he would say that 90% was no rain but there was however always the possibility that there could be some drops of rain, about 10% probability, in other places. He thought a few drops of rain might have fallen but he wouldn't think that the ground would have been made damp. To wet the ground the rain had to last for quite some time. The position so far as 23 November 1988 was concerned was different. At Luqa there was light intermittent rain on that day from noon onwards which by 1800 hours GMT had produced 0.6 of a millimetre of rain. He thought that the situation in the Sliema area would have been very much the same.'
So rain definitely fell at Sliema in the early evening of 23rd November. No rain fell at Luqa, 5 kilometres away from Sliema, on 7 December after 9am and in Major Mifsud's opinion there was only a 10% chance of even a few drops of rain falling at Sliema between 6.00pm and 7.00pm that day. So, in the absence of definite evidence to the contrary, 7th December is almost definitely ruled out as the purchase date, isn't it? The judges thought otherwise:-
'Having carefully considered all the factors relating to this aspect, we have reached the conclusion that the date of purchase was Wednesday 7 December.' (paragraph 67)
The only other factor apart from the presence or absence of rain was Gauci's recollection of how close the purchase date was to Christmas. He said it was about a fortnight before Christmas but as reported in paragraph 56 he gave various answers about whether or not Christmas decorations were up. His definite recollections were that his brother was watching football and that it was raining-which leads to the conclusion that the purchase date was probably 23rd November. However, the judges concluded that the purchase date was definitely 7 December. The evidence allows for a possibility that it was 7th December, but once again the judges have elevated a possibility into a certainty unjustified by the evidence.
Reading through the judgement for the first time, it was puzzling why the judges felt the need to conclude that the purchase date was 7th December rather than 23rd November. What difference did it make when the bomb was, allegedly, put on an aircraft at Luqa on 21st December? Then in paragraphs 87 & 88 the reason became clear:-
'The first accused travelled on his own passport in his own name on a number of occasions in 1988, particularly to Malta on 7 December where he stayed until 9 December...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.'
The purchase date had to be 7th December to implicate Megrahi in the purchase-because Megrahi was in Malta that day and not on 23 November.
There is another major hole in the prosecution case, which yet again the judges acknowledged but then ignored. It is an essential element of the prosecution's case that an unaccompanied brown Samsonite suitcase got on to Air Malta Flight 180 at Luqa airport bound for Frankfurt. Yet the prosecution failed to identify a route whereby any unaccompanied bag could have got on to any flight at Luqa.
(In 1993 Granada Television broadcast a dramatised documentary on the Lockerbie bombing, which showed the suitcase containing the bomb commencing its fatal progress by being loaded on to an Air Malta flight to Frankfurt at Luqa. Air Malta sued Granada for libel and in December 1993 accepted substantial damages in an out of court settlement.)
This issue is dealt with in paragraphs 36-39 of the judgment. In the usual way, before a flight took off from Luqa the number of bags loaded on it had to match exactly the total number of bags checked in for it and likewise the passengers. The prosecution tried in vain to establish that this rule was not always strictly adhered to but they failed to do so.
The judgment frankly acknowledges this hole in the prosecution case, saying:-
'If therefore the unaccompanied bag was launched from Luqa, the method by which that was done is not established, and the Crown accepted that they could not point to any specific route by which the primary suitcase could have been loaded'. (paragraph 39)
'As we have also said, the absence of an explanation as to how the suitcase was taken into the system at Luqa is a major difficulty for the Crown case but after taking full account of that difficulty, we remain of the view that the primary suitcase began its journey at Luqa' (paragraph 82).
The judgment says (paragraph 87) that Megrahi flew to Malta from Tripoli on 20th December using a passport in the name Ahmed Khalifa Abdusamad, staying overnight in the Holiday Inn, Sliema, using the same name, and leaving the next morning on flight LN147, scheduled to leave at 10.20am about the same time as KM180 to Frankfurt. Hetherefore checked in around the same time as passengers for KM180. If direct evidence existed connecting Megrahi to the bomb, then evidence of this kind, assuming it is true, would provide useful corroboration to the prosecution case. But of itself it doesn't prove anything, particularly since the prosecution failed to identify a mechanism whereby an unaccompanied suitcase could be got on any flight at Luqa.
So, there is no evidence that Megrahi got the suitcase on to the Air Malta flight KM180 at Luqa, and there is no evidence as to how any unaccompanied bag could get on to any flight at Luqa. How then can the judges continue to accept the prosecution case that the suitcase began its journey at Luqa ? The answer, such as it is, is that there is some evidence that an unaccompanied bag from flight KM180 from Luqa went through the computer controlled baggage handling system at Frankfurt airport (see paragraphs 26-35). What seems to be certain is that no passenger who came in on KM180 from Malta flew out of Frankfurt on PA103A to Heathrow. But baggage handling records seem to show that a bag which came in on KM180 from Luqa was entered into the baggage handling system for transfer to PA103A. A computer printout of all baggage which went through the system on 21 December 1988 was fortuitously available to investigators, because a computer programmer who realised that it may contain useful information about baggage loaded on to PA103A printed it the next morning and kept it (paragraph 30). The printout specified the flight on which each bag was loaded that day, but not the flight a transit bag came in on if it was a transit bag-only the destination flightneeds to be entered into the computer system in order to route a bag correctly.
So, what had to be done was to identify the bags which according to the printout were loaded on to PA103A that day and note the workstation at which each was entered into the system and the time this was done. Most of these bags had been checked in at Frankfurt and the rest were transit bags from flights into Frankfurt. To determine the flight on which transit bags came in required careful examination of work sheets filled in by hand at the workstations used for transit bags. There, the procedure was supposed to be to take a trolley of transit bags from a particular flight and enter them into the system, recording on the worksheet the flight they came in on and the start time and end time of the entry process. During that period, bags from a different flight were not supposed to be entered at the workstation, otherwise the work sheet would obviously be inaccurate. But there was nothing to stop baggage handlers doing this. And if it was done, the routing of baggage would still function properly, as long as the correct destination was entered into the computerised handling system. This means that it could have been a regular practice without coming to the attention of the airport management. Lawrence Whittaker, an FBI special agent who appeared as the second and last witness in Megrahi's defence, gave evidence that he had observed this happen when he was present in the baggage hall as a member of the investigating team in September 1989 (paragraph 34). The computer printout and the work sheets together appeared to show that a bag which came in on KM180 was entered into the baggage handling system for transfer to PA103A and since no passenger transferred from KM180 to PA103A, it looked like a piece of unaccompanied baggage. Of course, there was no way of telling if this was the Samsonite case with a bomb in it, tagged for loading on to PA103 at Heathrow.
The defence questioned this conclusion, pointing out that the baggage handling records at Frankfurt were manifestly inaccurate in many instances, which called into question any conclusion derived from them (see paragraphs 32-34). For example, the records appeared to show that a bag from flight LH1071 from Warsaw was entered into the baggage handling system that day for loading on to PA103A (paragraph 33). Since no passenger from LH1071 transferred to PA103A, this too seemed to be an unaccompanied bag and could equally well be a Samsonite case with a bomb in it, tagged for loading on to PA103 at Heathrow. The judges admit that this astounding conclusion can be drawn from the records-but never refer to it again.
There is another question mark against the prosecution's theory that the bomb went through Frankfurt as transit baggage from an Air Malta flight. It was Pan Am's practice to x-ray this transit baggage from other airlines-so-called interline baggage-at Frankfurt and there is evidence that interline baggage for PA103A was indeed x-rayed (paragraph 34). There is also evidence that staff at Frankfurt had been warned to look out for explosive devices hidden in radio cassette players, most recently in October 1988 after German police arrested a number of Palestinians and found bomb making equipment and radio cassette players (in the so-called Autumn Leaves operation). The unanswered question is why was the Lockerbie bomb not discovered, if as the prosecution postulated it went through Frankfurt airport in interline baggage. Again, the judges admit this problem with the prosecution's case, but explain it away by saying that evidence had shown that the operator of the x-ray machine (who was too ill to give evidence himself) was poorly trained.
Their conclusion about the evidence from Frankfurt is as follows:-
'The evidence in regard to what happened at Frankfurt Airport, although of crucial importance, is only part of the evidence in the case and has to be considered along with all the other evidence before a conclusion can be reached as to where the primary suitcase originated and how it reached PA103. It can, however, be said at this stage that if the Frankfurt evidence is considered entirely by itself and without reference to any other evidence, none of the points made by the defence seems to us to cast doubt on the inference from the documents and other evidence that an unaccompanied bag from KM180 was transferred to and loaded onto PA103A.' (paragraph 35)
It is true that the baggage handling records seem to indicate that an unaccompanied bag from KM180 was loaded on to PA103A. But the records are obviously not completely accurate and any conclusion drawn from them must be viewed with caution. The judges seem to accept that there is element of uncertainty, when they say that the evidence from Frankfurt must be considered with all the other evidence before a conclusion can be reached about the origin of the Samsonite case.
The trouble is there is no other evidence that its origin was Luqa airport. The prosecution did not present evidence to show that Megrahi put the case on KM180, or arranged to have it done. They couldn't even offer an explanation as to how any unaccompanied bag could be put on to any plane at Luqa. Without any other evidence, why should Luqa be preferred to Warsaw as the origin of the Samsonite case with a bomb in it, tagged for loading on to PA103 at Heathrow?
THE EVIDENCE AGAINST FHIMAH
Apart from Giaka's evidence, which the judges discounted, the only other evidence connecting Fhimah to the bomb was two entries in his 1988 diary, one on the page for 21st December 1988 and both apparently reminders to 'get' luggage tags from Air Malta (paragraphs 84-85). The prosecution maintained that the inference to be drawn from these entries was that he had obtained Air Malta interline tags for Megrahi, and that as an airline employee he must have known that the only purpose for which they would be required was to enable an unaccompanied bag to be placed on an aircraft in order to blow it up. There was, of course, no forensic evidence that Air Malta tags, as opposed to any other airline, were attached to the Samsonite case which contained the bomb.
But the judges couldn't make the leap of faith to convict him of being party to getting the suitcase containing the bomb on board KM180 and concluded:-
'There is therefore in our opinion insufficient corroboration for any adverse inference that might be drawn from the diary entries. In these circumstances the second accused falls to be acquitted.' (paragraph 8)
Paragraph 89 of the judgment says:-
'We are aware that in relation to certain aspects of the case there are a number of uncertainties and qualifications. We are also aware that there is a danger that by selecting parts of the evidence which seem to fit together and ignoring parts which might not fit, it is possible to read into a mass of conflicting evidence a pattern or conclusion which is not really justified.'
It appears that the judges didn't heed their own warning when they declared Megrahi guilty beyond reasonable doubt. Without Giaka's evidence, there was no positive evidence linking Megrahi to the bomb or that that Luqa airport was the origin of the Samsonite case containing the bomb which blew up PA103 over Lockerbie.