Sunday, August 23, 2009

The Last Word On Lockerbie

Stop all the clocks, turn off the telephone, take 'Crimewatch' off the air and wind up 'Crimestoppers'.

The Tragedy of The Clipper Maid of the Seas continues to claim victims. One of its victims has been a Maltese shopkeeper named Tony Gauci, whose heroic response to the unbidden arrival of an almost cosmic kind of trouble on his doorstep has been to have his honesty and integrity impugned, actively and passively, by people with very much better bully pulpits than any he has had access to.

One of its future victims just might be a Scotsman who, as the result of perhaps the only principled decision taken by the soi-disant, ersatz 'Scottish Government', is now perhaps even more likely to be thrown to the wolves in order to keep the US State Department happy. Kenny MacAskill might not have had Gary McKinnon's fate in mind when he signed the release warrant; but that act's unintended and very likely real world consequence could be to help ensure that should the FBI ever get its hands on that naive and unworldly man, he will have any number of books thrown at him.

Tony Gauci identified Megrahi as the purchaser of clothing found wrapped around the bomb. His honesty and integrity have been impugned without fear of consequences because he was paid oh, oodles and oodles of dollars.

Yet the fact that he was paid does not of itself compromise the value of his evidence in any way. If it did, every conviction obtained for which 'Crimestoppers' has offered a reward should be considered unsafe. Anyone suggesting that in public? No.

His honesty and integrity have been impugned because he picked out Megrahi from an identity parade after having seen his picture in a newspaper which identified him as the person suspected of the Lockerbie bombing. I'm a bit rusty, I know, but I was unaware that the Scottish law of evidence contains a blanket ban forbidding potential witnesses to read newspapers. If it does, this would be a dramatic extension of the law that would surely have been the subject of comment in the media. Then again, I never was the world's most interested lawyer; maybe I missed it.

If this alone renders Megrahi's conviction unsafe, then every conviction obtained through the medium of Crimewatch, whether through its salacious crime-porn dramatisations or by the appeals of the photogenic WPC's saying breathlessly that 'This is X of Glasgow, and Strathclyde Police wish to interview him in relation to, etc', usually with the suspect's photograph filling the screen, must also be considered unsafe. Anyone seriously suggesting that? No. Again, I didn't think so.

Tony Gauci's sanity seems to be have been questioned by Lord Fraser of Carmyllie. This seems harsh, if only because I would have no idea just how going from being a small shopkeeper in Malta one day to finding myself as the star witness against an international terrorist the next would affect my own equilibrium. If Mr. Gauci's equilibrium has become unbalanced, it's possibly the result of the very great strain he would have been placed under - through volunteering to help Lord Fraser of Carmyllie.

He is alleged to have changed his story several times. Oh, he's obviously a paid perjurer!

Well, no, not necessarily, and those who accuse him of inconsistency should consider the following; it might also apply to them. The nature of my illness is such that there are times when I meet lots of new doctors. While the history I tell each of them is substantially the same, there are always minor differences. I forget one detail at one consultation, and another at the next. That does not mean that the history I'm providing is unreliable in its totality - that's just the normal operation of fallible human memory. That's why judges and juries must assess whether the evidence before them is credible and reliable; tests which the witness Gauci in the case of Her Majesty's Advocate -v- Al-Megrahi seems to have passed with flying colours.

Tony Gauci has done nothing to anyone other than have the life he had previously known ended by telling the truth. If the treatment he has received from the Scottish and British establishments has been anything to go by, it would not be surprising if he attempted to discourage everyone he knows from standing as a witness in a Scottish prosecution. If he did, I would only be able to applaud. The treatment he has received has been disgusting, and like all good witnesses, he's never answered back. For what he has done for us, for what he has given up for us, Tony Gauci deserves a medal and the public thanks of a grateful Scottish nation. He will never receive either. Wherever he is in the world now, he has my best wishes.

One wonders whether he also has the best wishes of Dr. Jim Swire. Dr. Swire apparently believes in Megrahi's innocence. He is free to believe this if he wishes, just as one is free to believe that the Moon is made of green cheese, and that the cow can jump over it, if one is so inclined. As my atheist friends, many of whom struggle with belief, keep telling me, you can believe anything you like; but that doesn't make it true.
He is now calling for a public inquiry. On 30 November 2000, he was quoted in 'The Guardian' as saying of Megrahi's trial at The High Court in The Netherlands that,
"We didn't come here looking for convictions or acquittals. We came expecting the court to decide ... and to get to the truth".
If Dr. Swire attended a criminal trial expecting it to deliver anything other than either a conviction or an acquittal, he was always going to be disappointed. Scottish criminal trials are not fishing expeditions. If he thought that a properly constituted Scottish criminal court, even one sitting in extraordinary circumstances and in the full glare of the world's media, would deviate from its function of determining the guilt or innocence of the accused on the basis of the evidence presented to it, one has to wonder whether he properly understood the nature of the process. Convictions and acquittals are what criminal justice is all about.
As someone who's spent quite a bit of their life in and around the law of Scotland, studying it, practicing it indifferently and talking about it, the aspect of the case which most disturbs me - and yes, I have to say most angers me - is the constant fuelling of the suspicion that Senators of the College of Justice, a body which only dates from, oh, 1532, just might have been the prime movers in a giant, multi-tentacled conspiracy to actively deny justice to an accused person. In 'The Spectator' of 17th August 2002, the country house Communard Tam Dalyell, by my calculations perhaps a near contemporary of Dr. Swire's at Eton, remarked that - well, as I wrote at the time -
"In the 'Spectator' of 17th August, Dalyell reports that the three trial judges reached an "absurd conclusion", and that the appeal judges "cannot have been unmindful" that sustaining the appeal "would have made the Scottish legal process the laughing-stock of the world".
(And many thanks to Jaco Strauss for keeping that piece online for so long).
The views Dalyell expressed in 2002 should be contrasted with those he aired in an error-riddled rant in 'The Scottish Mail on Sunday' of 16th August 2009; one which does not appear on that newspaper's website, but which Professor Robert Black has kindly transcribed onto his blog -
"I acquit the Scottish judges Lord Sutherland, Lord Coulsfield and Lord MacLean at Megrahi's trial of being subject to pressure, though I am mystified as to how they could have arrived at a verdict other than 'Not Guilty' -or at least 'Not Proven'"
I'm sure Their Lordships will all sleep better at night for having been acquitted by Tam Dalyell - but the idea that not one but three judges could have suffered a catastrophic loss of competence in the same place at the same time, without possessing even the limited excuse of having had the official arm put on them, and that their mates then covered up for them in order to stop every man Jack and Jill of them all from looking like a shower of wallies, is just nonsense; green biro, tinfoil hat nonsense of the most pernicious kind.
It is actively pernicious because it serves no purpose other than to undermine public confidence in the Scottish judiciary, intentionally or otherwise. For all of the law of Scotland's legion faults - the laws on the collection of municipal debt still remain barbarically mid-Victorian, for example, a state of affairs which a decade of devolution has done nothing to improve - Scotland's judges are clean. They have always been clean. I cannot bring myself to believe anything else; and for anything else to be said is, in my opinion, mischief-making. Dalyell's late father in law was once Scotland's second highest-ranking judge. Perhaps there is merit in the maxim that familiarity breeds contempt. It's certainly just as credible as stories of messages put on bulletin boards in the US Embassy in Moscow. That one has the distinctive pong of the 'No Dogs or Irish' canard about it. Evidence, please.
The now dead country house Communard Paul Foot had a hand in preventing the families of the Lockerbie victims from having peace of mind - as his mistaken and obsessive belief in the innocence of James Hanratty proved, this was something of a footprint. Foot, the product of the British establishment's most airless upper heights, was a professional thorn in that same establishment's side, through the bully pulpit of his investigative journalism in 'Private Eye'. One of his obituarists, I can't remember who and I can't be bothered finding out, noted that whenever he uncovered some factual clincher enabling him to publicise the misdeeds of someone usually less well-educated and less well-connected than himself, he would shout 'We've got the bastards!' Although he did good work, and yes, there are people who are now at liberty because of his efforts, Paul Foot was not always right. Perhaps those who practice investigative journalism are more prone to obsessiveness and monomania, more prone to an obsessive belief in the truth of their own beliefs, than the rest of us. In the case of Pan Am Flight 103, he didn't get the bastards; the Dumfries & Galloway Police got the bastard. Case closed.
Unless, of course, it was all a conspiracy; nudge, nudge, wink, wink, know what I mean? With some obsessives, there will always be one last bastard to get.
Now, there will be those who read this and think, 'Ah, Kelly, he's just a creature of the Scottish legal establishment! He's just an apologist! He's just a yes man!' To which one can only reply that those who say such things have no absolutely no idea as to the nature of my relationship with the Scottish legal establishment (precisely none at the moment, a state of affairs I am quite comfortable with and would be happy if it continued indefinitely), and that if I am a yes man, I am the least well paid yes man in the yes man business. Somebody throw me a brown envelope stuffed with untraceable used banknotes! Please!
In a way, one almost feels sorry for Kenny MacAskill. Almost. A sock-puppet with a skean dhu stuffed in it is still a sock, of course; yet the decision that The Copfighter-General had to take regarding Megrahi's release could not have been an easy one, and for just about the only time in his political career he'll get the benefit of the doubt from this quarter that a decision he has made has been right. He might have botched it by going to see Megrahi in prison; but I don't think he did. Scottish civic nationalism is not renowned for its principles - the SNP's preposterous adoption of the title 'The Scottish Government' to describe its minority devolved Scottish Executive is a particularly egregious case in point - yet when it was forced to act on principle, to stand up for the law of Scotland, it did. Faced with an impossibly high profile convict, medical reports from hell, Hillary Clinton, the Libyans, Christine Grahame putting in her typically vocal and unhelpful tuppenceworth and the sure and certain knowledge that the press and his political opponents would crucify him whatever he did, he took a difficult decision which under the law of Scotland only he could make. You might not agree with him (and I do agree with him - the TV images from Tripoli seem to show quite clearly that Megrahi is very unwell); but what he did took guts.
It is a pity that some still feel compelled to keep asking questions about what happened that night. One wouldn't ever wish to deprive them of their right to do so, of course, no matter how foolish and undignified they might make themselves look by so doing. Yet one cannot help but feel that such persistent questioning is rooted from a desire to know which is insatiable, incapable of ever being satisfied. No matter how many police man-hours went into the investigation; no matter how delicate and complicated the diplomacy that went into the suspect being surrendered for trial; no matter how public the trial and well-resourced the defence, there will always be some who will not believe the evidence in front of their eyes - that Abdelbaset Al-Megrahi blew up The Clipper Maid of The Seas; and dropped his appeal, never the actions of an innocent man no matter how ill, in order to return to Libya. He did it, and proved he can live with it. It's a pity that others can't.


Blogger James Higham said...

Seems pretty even, the devotees for both sides here. Well put.

24 August, 2009 14:36  
Blogger Martin said...

Thanks, James.

25 August, 2009 05:14  
Blogger pete said...

You're right that Tony Gauci always comes across as someone who was being careful to tell the truth. The problem with his evidence is that he never identified Megrahi as the purchaser of the clothes: the most he was ever prepared to say was that he resembled the man. In his earliest (and, arguably, therefore most reliably accurate) statements to the police he described the purchaser as six feet tall and aged 50-60, whereas Megrahi was 5ft 8in and aged 37. On several occasions Mr Gauci made the point that the men in the photographs shown him by the police were too young to be the man he had seen.

Mr Gauci also stated that while the purchaser was in the shop it began to rain, sufficiently that the man bought an umbrella. The meteorological evidence would make the 23rd November the most probable date of the purchase. Megrahi was not on the island on that day.

From the point of view of a logically-minded layman, it seems that the more we accept Gauci's honesty and integrity, the less we are entitled to infer Megrahi's guilt from his evidence.

01 October, 2009 20:46  
Blogger Martin said...

Nah, doesn't wash.

02 October, 2009 05:08  
Blogger pete said...

Tony Gauci identified Megrahi as the purchaser of clothing found wrapped around the bomb.

In February 1991 Tony Gauci picked out Megrahi from a photo-spread, saying “of all the photographs that I have been shown, this photo No 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.” Does that count as an identification? He said Megrahi was the best fit out of the photographs he had been shown, but also said that Abu Talb (whose picture he had seen in a newspaper) resembled the purchaser more. Further, at the photo-spread Gauci continued to assert that the purchaser had been in his fifties; in 1988 Megrahi was 36 and didn't look any older than that. And then there are the details of height and build, which aren't evident in a line-up of faces, but are the details Gauci, as a clothier, was strongest on. In previous photo-spreads, Gauci had picked out other men using very similar words, but as those men weren't suspects, they were recorded as non-identifications.

Gauci's later identifications were equally unclear. At the identity parade in 1999 he said “Not exactly the man I saw in the shop 10 years ago. I saw him, but the man who look a little bit like exactly is [Megrahi]”. And in court, "He resembles him a lot.”

In fact, the Men in Tights are of the same opinion: the Appeal judges wrote, "It is clear, and the trial court recognises, that Mr Gauci did not make a positive identification of the appellant." (para 293) The trial judges' opinion was that this non-identification, together with Megrahi's presence on Malta on 7/12/88, adds up to a positive ID. Now, the SCCRC considered that their Lordships' finding that the clothes were bought on the 7th of December rather than the 23rd of October was one which no reasonable jury, properly directed, could have reached. In that case, by their Lordships' own logic, there was no identification.

Yet the fact that he was paid does not of itself compromise the value of his evidence in any way.

Doesn't that depend on the circumstances? The Gaucis, particularly Paul, the more dominant brother, were alive to the possibility of a reward from the outset, and their business was struggling. Tony eventually received $2 million - a far cry from the odd thousand quid offered on Crimestoppers. I'm not accusing Tony of dishonesty - he could easily have said, "That's him all right", but didn't - but all the same he was aware (thanks to an article in a Maltese language magazine) that his original statement gave a description that didn't fit Megrahi and other details that didn't fit the alleged date of purchase, and in the witness box he made his account more compatible with the Crown's case. Surely the court should have been told of the prospect of a reward so that the judges could take it into account.

His honesty and integrity have been impugned because he picked out Megrahi from an identity parade after having seen his picture in a newspaper which identified him as the person suspected of the Lockerbie bombing.

Any witness, of however much honesty and integrity, can have his memory influenced by what he sees and reads. This wasn't a picture seen briefly in the paper: Tony had the magazine in question in his possession for several months. That could have made the parade and courtroom identifications inadmissible as evidence. Once again the Crown was aware of this but didn't tell the court.

He is alleged to have changed his story several times. Oh, he's obviously a paid perjurer!

The police interviewed Tony Gauci many times over the course of about two years, and details of his story changed repeatedly. It doesn't cast doubt on his integrity, but it does cast doubt on the accuracy of his later statements. If the judges had been made aware of this, they might have given more weight to his initial statement whenever his testimony in court was at variance with it.

29 March, 2011 22:52  
Blogger pete said...

Scotland's judges are clean.

Which doesn't make them incapable of making a mistake. If you want to convert a man to belief in God, get him to read Richard Dawkins's The God Delusion. If you want to convince him that Abdelbasset al Megrahi did not bomb Pan Am 103, get him to read the Opinion of the Court in the matter of HMA v Fhimah and Megrahi.

...and dropped his appeal, never the actions of an innocent man no matter how ill

I just don't see how you can say that. I'd like to think that if I were wrongly banged up I'd refuse to give up an appeal in order to be released. But if I were desperately sick and in a foreign country, if I'd been told I had only weeks to live, if my wife, children, parents and brothers all wanted me home, if I had no reason to trust the legal establishment, and if I believed the Justice Secretary wouldn't release me unless I dropped my appeal, then I think my perspective might be different.

29 March, 2011 22:53  

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