Culprits of Lockerbie a treatise Concerning the Destruction

In order to assess the validity of the RARDE two-category system for the purposes of al-Megrahi’s second, ultimately aborted, appeal Dr King with the collaboration of explosives expert Dr John Wyatt conducted a test explosion in 2008.

It may be that the blast-damaged clothes which were supposedly identified as having originated in Mary’s House, the shop in Malta whose owner professed recognise them as likely to have been purchased there, were finally classified by RARDE as Category 1 precisely because of that notional recognition and because they were not linked to anyone known to have luggage on PAN Am 103, rather than as a result of the application of any rigorous process of scientific reasoning. The process of linking particular items to a particular deceased depends for the most part on the help given by next of kin and can hardly be conclusive. The investigators were never able to account for all the clothes on the flight and it has never been disclosed either how many including how many blast-damaged items remained unidentified or (see Ashton, Megrahi, p.411).

Why and when exactly Abdelbaset al-Megrahi engaged the attention of the Lockerbie investigators as a potential suspect has never been entirely clear. It may have been the result of information from Edwin Bollier, co-proprietor of the Mebo company of Zürich (as to which see section V-5 below). Whatever may have been the trigger and when exactly al-Megrahi first came “on the radar” are not matters of key importance in this treatise, which is concerned primarily with the evidence in the case.

It was an important plank of the Crown’s case against Abdelbaset al-Megrahi that he had been an officer in the JSO, the Libyan secret service, in charge of airline security until 1987, when he moved to the Centre for Strategic Studies. The principal evidence for this came from the Crown witness Majid Giaka, a paid CIA informant who himself claimed to be a former JSO agent. Most of Majid’s evidence – in particular his claim that al-Megrahi had access to explosives and had previously discussed destroying a British airliner – was rejected by the court as not credible. However, they accepted his evidence of al-Megrahi’s membership of the JSO.

John Ashton’s book Megrahi: You Are My Jury is structured around al-Megrahi’s autobiography, including a detailed account of how his long career at Libyan Arab Airlines culminated in a brief nominal secondment to the JSO (see pp.13-18). He had originally joined the airline as a fight dispatcher after quitting a marine engineering course at a technical college in Wales and made rapid progress with promotions to Chief Flight Dispatcher and then Operations Controller, Tripoli airport, before securing appointment as Head of Training. He then left the airline to take a degree in geography after obtaining which he returned to the airline as Tripoli station manager and a member of the management committee.

Until 1985 LAA security was handled by the JSO but concerns had been raised among airline staff that on-board security personnel were committed to in-flight shoot-outs with hijackers in spite of the risk to aircraft. To resolve the dispute it was decided to transfer the travelling JSO agents to LAA and with his previous experience in training al-Megrahi was regarded as the natural choice for the airline’s Head of Security to oversee the transition. Although his salary was paid by LAA he was officially treated as on secondment to the JSO during the transition from January to November 1986 and it was that which induced the American and Scottish authorities to characterise him as a senior JSO intelligence agent, a claim which, as Ashton observes, has been “slavishly parroted by the world’s media ever since” (Megrahi, p.18). In January 1987 al-Megrahi was co-opted to serve as co-ordinator of the Centre for Strategic Studies, an appointment which he describes in detail as open and innocent (see Ashton, Megrahi, pp.18-21).

3. Origin of the Samsonite suitcase contents

(a) The first lead to the Mary’s House boutique in Malta

The dark-brown tartan “Yorkie” trousers The blast-damaged remains of clothing believed by RARDE to have been in the primary suitcase included four fragments of a pair of dark-brown check or tartan “Yorkie” brand trousers (described as having undergone “relatively close explosives involvement.”) One of the fragments (exhibit PT/28) included “the seat area and right hip pocket” (joint report). Found sewn into a seam in the material was the fragment of a damaged Yorkie label and printed in black on the underside of the hip pocket lining was the number “1705”. The latter proved to be an order number which eventually led the investigators to the retail outlet to which the trousers had been supplied.

Mary’s House, Tower Road, Sliema The retail shop was Mary’s House, a small clothing boutique on Tower Road in Sliema on the island of Malta owned by Edward Gauci and managed by his son Anthony. From the order number the police established that delivery to the shop had been made on 18 November, 1988 (see Ashton, Megrahi, pp.84-85 for the audit trail details).

(b) RARDE’s own criteria of allocation

negates link to Mary’s House

As we have now seen, by strictly applying of the RARDE two-category scheme, and discounting items of clothing caught by the illogical partition criterion, it would have been incorrect to attribute to the primary suitcase any of the items later linked to Mary’s House apart from a white T-shirt. Thus, it would have been inconsistent with the Crown’s own criteria to assert that the suitcase contained the dark brown checked Yorkie trousers, the very article which led the investigators to Mary’s House in the first instance.

Quite aside from that fundamental contradiction, however, troubling questions also arose out of the circumstances in which the attention of the investigators came to be focused on the label and the order number (see ibid, pp.168-169). Dr Hayes first examined PT/28 on 14 March, 1989 and a week later he showed it to DC Entwistle, the officer liasing with RARDE. At the same time he showed the officer the much larger fragment of the trousers, PI/221, and the officer noted that it was clear they had originated from the same garment. He also noted that Hayes pointed out the number 1705 but although the pocket was immediately adjacent to the seam in which the Yorkie label was sewn Entwistle in his statement made no mention of the label and, indeed, later added in the words “there were no other apparent marks of identification visible on either piece.” It was obvious he was unaware of the label because at the end of the month he and Det Insp George Brown began visiting various textile outlets, an exercise which would have been completely unnecessary had they been aware of its existence. Added to this curiosity DI Brown’s statement asserted that the Yorkie label was on PI/221, rather than PT/28 and DCI Harry Bell and DS Armstrong also stated that the label and the 1705 number were each on different fragments. When years later Entwistle was questioned by the SCCRC he insisted that he and Hayes had closely examined PT/28 and that it would have been impossible to miss the label. For his part Hayes was unable to explain how he could have missed it. The SCCRC attributed the omission to human error but such as error seems surprising given such an elementary exercise in basic detective work.

By a process of inference which can only be characterised as “strained” it was eventually contended that the trousers and other clothing alleged to have been in the suitcase with the bomb were sold by Anthony Gauci on a date when al-Megrahi was known to have been present on the island (7 December, 1988) and that al-Megrahi was in fact the purchaser. It was also discovered that he had subsequently visited Malta briefly on 20 and 21 December (using an officially issued Libyan passport under the alias of Abdusamad) and flew out from Malta’s Luqa airport on the morning of the 21st, returning to Tripoli. Proof that he was the purchaser was purportedly established by the Crown’s contention that the Samsonite suitcase had been “ingested into the system” at Luqa on the morning of the 21st and that it had been flown from there as unaccompanied baggage on Air Malta flight KM180 to Frankfurt. There, the Crown contended, it was transferred to the Boeing 727 operating Pan Am feeder flight PA103A to Heathrow where it was loaded on to the doomed aircraft.

The Crown relied on certain documentation relating to the automated baggage recording system in service at Frankfurt airport which on the face of it was susceptible to the possible interpretation that an unaccompanied bag had been transferred from KM180 to PA103A. However, full investigation during the trial of working practice at Frankfurt revealed a state of affairs which allowed for the real possibility that the item in question might well not have been transferred from KM180 but might have come from another flight (possibly from Warsaw).

Such a possibility was supported (a) by inquiries which accounted for all recorded baggage on KM180 and (b) by detailed scrutiny, during the trial, of the range of tight security measures in force at Malta’s Luqa airport, which are summarised later. The implication of assuming that the terrorists had nonetheless managed to smuggle the suitcase containing the bomb onto the aircraft at Luqa is that they had concealed their method so well that no trace of it was ever discovered by a single-minded and determined investigation covering all practicable possibilities. But such an assumption would surely fly in the face of an inquiry which effectively eliminated any realistic possibility that an unrecorded rogue bag could have been and was secreted on to KM180 in the first instance.

The result was that the Crown were at a complete loss to offer any feasible explanation as to how those procedures might have been subverted so as to permit the suitcase to be smuggled aboard KM180.The trial court acknowledged this obstacle for the Crown: “If therefore the unaccompanied bag was launched from Luqa, the method by which that was done is not established by the Crown. The absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 is a major difficulty for the Crown’s case” (para 38). Accordingly they acquitted Fhimah, who had been implicated primarily because he had previously been employed as Libyan Arab Airlines station manager at Luqa, was a close associate of al-Megrahi having travelled to Tripoli and returned with him on 20 December, and because of certain entries in his work diary from which the Crown sought to infer that he had obtained luggage tags from the airport and given them to al-Megrahi to attach to the Samsonite.

However, the court chose to conclude nonetheless that the perpetrators had managed in some unspecified, unexplained and ingenious way– although one presumably short of the diabolic –to get the bag on to KM180 at Luqa. They reached this finding by reference to certain evidence in particular relating to procedures at Frankfurt airport and by ignoring other evidence, also considered later.

The case for the prosecution was that a minute search conducted on the ground around Lockerbie produced sufficient fragments of evidence to show that the bomb was an improvised Semtex device built into in a Toshiba RT-SF16 BomBeat stereo radio-cassette player. There had been numerous sales of the SF-16 to Libya.

The Crown also relied on the fragment of a printed circuit board (PCB) identified as part of an MST-13 electronic timer manufactured by the Swiss company MEBO, a number of which had been supplied to the Libyan military. MEBO’s owner, Edwin Bollier, had close associations with the Libyan military and secret service and although the court dismissed much of his evidence indirectly suggestive of Libyan involvement in the bombing they did accept from him that al-Megrahi had associations with JSO personnel.

The evidence relating to the Toshiba and the timer fragment are discussed in detail later.

As already mentioned, al-Megrahi originally attracted attention because he was discovered to have been present in Malta on 20 and 21 December, 1988, using a “coded” passport in the name of Abdusamad issued under the authority of the Libyan Government. He departed back to Tripoli from Luqa at roughly the same time as KM180 left for Frankfurt. These facts were not disputed, and nor was an earlier visit made by him, from 7 to 9 December, when he had used a passport in his own name. On both visits he stayed at the Holiday Inn, Sliema, where he was well known. He had used the alias passport previously, including when staying at the hotel in 1987.As former head of airline security he was well-known at Luqa and could hardly conceal his presence there. On 20 December he claimed a Libyan Arab Airlines discount from the hotel in his own name and had entered the name of the hotel on his landing and departure cards, from which his true identity could easily have been established. In short, the coded passport was palpably a most unworthy instrument by which to conceal his identity. However, the court set store by the fact that it was never used again after 21 December, 1988. (See Ashton, Megrahi, pp.109-115, for al-Megrahi’s account of why he was in Malta on the relevant dates and for his possible explanation, ie leaving the passport in his own name at home in order to prevent his wife knowing he had gone to Malta and suspecting that it was for “immoral” purposes).

Having made the link to Mary’s House the police visited the boutique on 1 September, 1989, almost nine months after Pan Am 103 was destroyed. (The visit is described in Ashton, Megrahi, at pp.85-86.) He was shown a photograph album depicting the remains of various items of clothing said to have come from the bomb-carrying suitcase and purported to remember selling them to a Libyan man on a date which the court ultimately found to have been Wednesday, 7 December, 1988, coinciding with al-Megrahi’s three-day visit to the island. The issue over the purchase of the clothes proved to be the most crucial, contentious and vexed element in the trial. Without it there was no case against al-Megrahi. It has been suggested that Anthony Gauci’s credibility must have been compromised by substantial reward moneys paid by the authorities to him and his brother Paul for their assistance. (The issue is considered in detail in Ashton, Megrahi: You Are My Jury, at pp.308-314 and 367-368, and see also p.276). Whether such inducements were paid and if so may have diminished Gauci’s reliability a scrutiny of the manifest insubstantiality of his account of the sale of clothing and his evidence pointing to al-Megrahi as the purchaser provide reason enough to disparage the conviction. We shall examine that evidence in due course.

Although the trial court found that the Samsonite bag had been carried from Luqa on KM180 they did not find that al-Megrahi had been instrumental in getting it on board. Nor did they find that he brought bomb components to Malta on 20 December and they rejected the Crown’s contention that he had access to explosives in Malta. But they found that he was involved as some sort of accessory on the basis of a package of assumptions: (i) the MST-13 timer was a type which had been supplied, though apparently not exclusively, to the Libyan military/JSO; (ii) al-Megrahi was a member of the JSO; (iii) he bought the clothes in the suitcase from Mary’s House on 7 December; (iv) using a false passport for unexplained purposes he made a flying visit to Malta on 20 December, returning to Tripoli next day at virtually the same time as KM180 flew out; (v) although there was no evidence as to how the bag could have been placed on board KM180 at Luqa the Frankfurt evidence was consistent with the possibility that it was.

The court’s thinking seems to have boiled down to a most non-judicial circularity of assumptions. Having regard to al-Megrahi’s supposed connection with the JSO and the supply of MST-13 timers to Libya they chose to find that the bag had been put on board KM180 on 21 December because al-Megrahi (a) was the purchaser of the clothes on 7 December, (b) was in Malta on 21 December using a false passport with no explanation and (c) was, as they found, therefore “connected,” in some unspecified way with the planting of the bomb. How could they be sure he was the purchaser of the clothes on the basis of mere resemblance to the purchaser and his brief presence in Sliema on 7 December?

Oh, because the bomb had flown from Luqa on 21 December when al-Megrahi was at the airport (and he was therefore “connected” with those who planted it). But wait. How could they be sure it had started on its way from Luqa on the 21st? Ah, because he was found to have bought the clothes (although the false passport was a factor, too).

The implicit course of reasoning was completely circular. The trial judges purported to apply the principle of circumstantial evidence, an exercise which, in contrast with “smoking gun” allegations, normally involves drawing together a number of disparate strands of fact, each in itself established, neutral, and capable of proving very little, but when woven into an evidential net around the accused may be so tight as to permit no escape from a judgment of guilt. However, the actual principle they applied was petitio principii: assuming what is to be proved as a component of the would-be proof; in layman’s idiom: begging the question. A fundamental corruption of basic logic thus intellectually bankrupted the whole exercise. It was nothing short of an evidential feedback loop.

The circle will be broken if either or both of two propositions are not proved, or better still disproved. In the first place it can be shown that the fact that there is no explanation as to how it could have been smuggled aboard KM180 is entirely consonant with other evidence showing conclusively – as a stand-alone fact – that it did not arrive at Heathrow from Malta via Frankfurt, but that, contrary to the court’s judgment, it must have originated at Heathrow – that is ingested into the system there.

The other factor which will break the circle is demonstrating the unsoundness of the finding that al-Megrahi was the purchaser of the clothes. If that finding is wholly unsustainable the circle is broken and the other components prove nothing. The case against al-Megrahi depended in part therefore on the question whether there is a substantial case for contending that he was the purchaser. There is not.

IV. Who Purchased the Clothes?

We shall now turn to the matter of Anthony Gauci’s evidence as to the identity of the purchaser of the clothes. He made a total of 19 statements to the police, which, to quote Ashton’s eloquent and graphic description, together “reveal a man with an unremarkable constellation of excusable human frailties: uncertainty, suggestibility, eagerness to please, and, above all, inconsistency”; indeed in a number of respects “his accounts were so erratic that it beggars belief he became the lynchpin of the prosecution case” (Megrahi, pp.379 and 96). The key supposition implicit in Gauci’s evidence is that in spite of the lapse of ten months between the destruction of Pan Am 103 and the day he was first approached by police he claimed to remember the sale of the clothing in the suitcase and that was why he was able to remember and describe the purchaser. However, if his assertion that he had a true memory of the sale (rather than a reconstructed, contrived or imagined one) is not plausible, he would not have a memory of the purchaser. Yet even if he did have some memory of the sale it would not necessarily follow that he could have had a vivid memory of the purchaser. So it is proposed to look at the second question first.