Culprits of Lockerbie a treatise Concerning the Destruction

Gauci was given the standard warning for British identification parades, that the array might not include the clothes buyer, but there were very obvious and disturbing shortcomings in the procedure.

“It’s been a long time now and I can only say that [number 8 – al-Megrahi] resembles the man who bought the clothing, but it is younger . . . I can only say that of all the photographs that I have been shown [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.”

On 9 April, 1999, three days before Gauci flew to Holland accompanied by Mario Busuttil, a Maltese police officer, he handed the officer the December 1998 edition of Focus magazine containing an article on the Lockerbie investigation. Pointing to a photograph of al-Megrahi, Gauci said “danshu,” a phrase in Maltese which translates as “that’s him.” Whatever reliance the Crown may have placed on this it remains unclear whether he meant any more than that the photograph depicted the man he had previously picked out as resembling the purchaser of the clothes. This is the classic conundrum where an identification parade is held by way of testing the validity for example of a “street identification” or the cold selection of a suspect from an array of still photographs, as where a witness is invited to look through a “rogue’s gallery” of known offenders selected on the basis of relevant criteria such as modus operandi, age, physical appearance, and ethnicity.

On 13 April, 1999, eight days after al-Megrahi was handed over by the Libyans, Gauci participated in a live identification parade at Camp Zeist in the Netherlands. Referring to number 5, al-Megrahi, Gauci initially said, “Not exactly the man I saw in the shop. It is ten years ago but the man who look a little bit like exactly is the number 5.” He then altered the words “it is” to “I saw him,” so the whole now read “Not exactly the man I saw in the shop. I saw him ten years ago, but the man who look a little bit like exactly is the number 5.” At his Crown precognition in Dumfries on 25 August, 1999, Gauci stated that he had picked out somebody as “resembling” the purchaser, adding that “his hair was different, not so full and was receding. He seemed narrower.” He mentioned that al-Megrahi “seemed very nervous at the parade” and this may well have caused him to draw attention to himself – always a fundamental problem with live ID parades.

Of the 12 men present to participate as foils only seven were chosen but eight of the twelve would have been in their 20s in 1988 and one would have been 14. Given that Gauci had stated (15.2.91) that al-Megrahi (36 years old in 1988) was too young (the purchaser being about fifty), selecting foils who would have been that much younger still was absurd. Of the three remaining foils, one, although al-Megrahi’s age, was a Dutch policeman, so presumably of different ethnicity. Another, though older, was much too short (5’3” – ie 9 inches shorter than the original 6 foot “or more” estimate). That left only one suitable foil! (See Clark, p.24.)

In July 1990, during his evidence at the trial Gauci was shown the December 1989 Focus article with al-Megrahi’s photograph and was asked to recall his having said “danshu.” He was then asked if he could see the man who bought the clothing and he replied, “He is the man on this side.” He then instantly watered it down with the qualification: “He resembles him a lot.” The invitation to Gauci to make an identification was of course a classic “dock identification” procedure, seemingly only allowed in this case because he had previously made a statement of resemblance. Yet to use as a prompt the Focus picture, carrying the clearest possible suggestion of al-Megrahi’s guilt, coupled with the reminder about his “dans hu” remark, is about as blatant and breathtaking an example of leading the witness as one might dare to imagine. Even then, the Crown failed to achieve the unequivocal identification for which they were no doubt looking.

The literality of the statement “he is the man on this side” was then further diminished when Gauci was shown Abu Talb’s photograph. About him, too, remarkably, Gauci stated “He resembles him a lot” and repeated this for emphasis.

At first blush this qualifier, coupled with the history of the resemblance competition between the two suspects, ought finally to have put paid to the identification issue. But other circumstantial evidence induced the court to plump for al-Megrahi as the likely candidate and, in effect, to make a finding that he was indeed the man who bought the clothes. This was essentially their finding that the sale almost certainly took place on 7 December, 1988, when al-Megrahi was in Malta staying at the Sliema Holiday Inn coupled with his visit to the island on 20 and 21 December, when, they found – in the teeth of evidence pointing to the contrary – that the Samsonite bag had begun its journey from Luqa. That will bring us shortly to the crucial issue of Anthony Gauci’s memory of the sale.

In addition to the Il Torca (7.03.99) and Focus articles there was of course considerable media coverage of the Lockerbie case between 1991 and 2000 with al-Megrahi’s image being frequently touted around (see the extensive list in Prof Clark’s report, p.4 and see also p.21). Of particular note are two Maltese TV broadcasts and two Maltese newspaper articles just over one week before the Camp Zeist identification parade (ibid). It is hard to exaggerate the suggestive impact which all this material must have had on Gauci. Citing a landmark study by Elizabeth Loftus and others (Loftus, E.F., Miller, D.G., and Burns, H.J., “Semantic integration of verbal information into a visual memory,” (1978) 4 Journal of Experimental Psychology: Human Learning & Memory, 19) Clark (p.33) makes the telling point that by the time he saw the photograph his memory of the actual event would have been weakest, because it must have faded over time, whereas the “post-event” input would have been strongest, because it was relatively recent. Prof Tim Valentine, the leading authority on forensic facial identification, in his report commissioned by defence solicitors for the second appeal observed to like effect: “Research demonstrates that memory distortion due to misleading post-event information and social influence can provide a plausible account for the changes in the witness’s memory” (para. 9.1.1). Gauci’s subsequent responses at the ID parade and at trial would have been based in part on his memory of the photograph he had picked out on 15 February 1991 and on the subsequent media material, including, prominently, the Focus picture. In other words, rather than making a judgment based purely on an uncontaminated memory of the purchaser’s appearance in 1988 he was likely, eleven years after the event, to be remembering the image of a face which he had, in 1991, unconvincingly judged to be similar and which was thereafter reinforced by repeated media depictions.

We now turn to the question of Anthony Gauci’s memory of the sale of items to the man the Crown alleged was al-Megrahi. As already mentioned he was first approached by police on 1 September, 1989, some 9 months after the alleged purchase of the clothes. He was shown a photograph album depicting various blast damaged clothing articles from the aircraft wreckage and he purported to remember the occasion when he sold a number of articles some of which corresponded to those which may well have been in the bomb suitcase and, as we have seen he claimed to remember the appearance of the customer.

He claimed to remember that he had sold the items to a man he described one evening during the winter of 1988 not long before the shop’s closing time of 7.30 pm, so probably around 6.30pm. The timing proved to be of some importance.

Gauci’s descriptions of the various items he claimed the customer bought changed significantly. In some respects the changes were self-evidently responses to his learning the descriptions of items identified as associated with the suitcase carrying the bomb.

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  three pairs of large size pyjamas similar to the only one of that type found at Lockerbie;
  
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  a size 42 imitation Harris Tweed men’s jacket which had been in the shop for about five years;
  
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  two pairs of Yorkie trousers (one dark brown checked, the other light brown herringbone);
  
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  a large size tartan cardigan (“we do not have any left but it had colours red/black. I cannot recall exactly”) ;
  
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  a blue babygro;
  
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  an umbrella.