January 31, 2001

LOCKERBIE VERDICT

Full text of the verdict against Abdel Basset Ali al-Megrahi of Lybia in the bombing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988.

IN THE HIGH COURT OF JUSTICIARY AT CAMP ZEIST

That bears to record one wagon of baggage from KM180, in position at 1248, arriving at V3 at 1301. Mr Schreiner’s evidence was that coding would generally begin three to five minutes after the arrival of the baggage at V3. Mr Schreiner also said that luggage was always delivered from one flight only. Mr Schreiner and Mr Koscha further identified production 1061 as a work sheet completed by a coder to record baggage with which he dealt. The name of the coder in question was Koca, who was not called as a witness. The relevant part of production 1061 is as follows:-

That record bears to show that one wagon of baggage from KM180 was coded at station 206 in V3 between 1304 and 1310. It was suggested that the figure for the completion of coding might be 1316, but Mr Schreiner preferred the reading 1310, which is more consistent with what can be seen on the document. There is also documentary evidence (prod1062) that the aircraft used for PA103A arrived from Vienna (as flight PA124) and was placed at position 44, from which it left for London at 1653.

[30] Mrs Bogomira Erac, a computer programmer employed at the airport, was on duty on 21 December 1988. She heard of the loss of PA103 during the evening of that day and realised that PA103A had departed during her period on duty. She was interested in the amount of baggage on the Frankfurt flight, and on the following morning she decided to take a printout of the information as to baggage held on the computer in case it should contain any useful information. She did not at once identify any such information, but retained the printout, which later was given to investigators. The printout is production 1060, and includes the following entry:-

The document itself contains no column headings, and those set out above are derived from the evidence showing how the printout is to be interpreted, by reference to the codes in operation at the time. The document therefore bears to record that an item coded at station 206 at 1307 was transferred and delivered to the appropriate gate to be loaded on board PA103A.

[31] The documentary evidence as a whole therefore clearly gives rise to the inference that an item which came in on KM180 was transferred to and left on PA103A. Evidence led in connection with KM180 established that there was no passenger who had an onward booking from Frankfurt to London or the United States and that all the passengers on KM180 retrieved all their checked-in baggage at their destinations. The Malta documentation for KM180 does not record that any unaccompanied baggage was carried. Defence counsel submitted that there was no evidence that baggage sent to the gate was actually loaded onto the flight, nor was there any count of the number of bags loaded. There was however evidence from Mr Kasteleiner that it could be taken from the documents that no baggage was left at the gate and it can be inferred that all items sent there were loaded. It follows that there is a plain inference from the documentary record that an unidentified and unaccompanied bag travelled on KM180 from Luqa airport to Frankfurt and there was loaded on PA103A.

[32] Defence counsel submitted that for a number of reasons that inference could not, or not safely, be drawn. In the first place, it was submitted that there was room for error because the computer time could diverge from real time and because the times entered by the operators could be inaccurate, either because the clock or watch relied on was inaccurate or because the entries were not correctly made. It was further suggested that recording of the place from which an item had come would have been of less importance to the operators than ensuring that it went to the right flight, and that the operators would have an interest to suggest that they had been fully occupied while the accuracy of the records was not a matter of material importance to them. It was also pointed out that the person who made the critical entry in production 1061 had not been called to give evidence, although his name was on the Crown witness list, and that there was no explanation for his absence. We accept that the possibilities of error exist, but the computer clock was reset at the start of each day (although the precise time at which it was reset was not stated) and there was an interest in accurate time-keeping since one of the purposes of keeping records was to be able to trace baggage consignments through the system. The records were records regularly kept for the purposes of the airport business, and can be accepted in the absence of some reason to doubt their accuracy. It was also argued that a very minor discrepancy in the time recording could mean that the inference which the Crown sought to draw would be erroneous, particularly since there might be errors the effect of which was cumulative. Again this is true, but the suspect case was recorded as being coded in the middle of the time attributed to baggage from KM180, so that the possible significance of such errors is reduced.

[33] A further point made by the defence was that the records themselves displayed errors which demonstrated that they could not be relied on. Counsel for the defence referred to two particular matters. The first concerned entries relating to interline baggage which arrived at V3 between 1221 and 1237 on 21 December 1988. It is recorded that four wagons of baggage came from LH669, a Lufthansa flight from Damascus. The worksheets in production 1061 record that one and a half wagons from that flight were coded at station 202 between 1258 and 1307 and one wagon was coded at station 207 between 1303 and 1309. There is no other record of coding of baggage from that flight, so that on the face of the records one and a half wagons are not accounted for. In view of the timing, it was submitted, it was possible that baggage from LH669 was being dealt with at the same time as baggage from KM180 and that the suspect bag might have come from the Damascus flight. The witness Joachim Koscha, however, referred to notes in the records which indicated that wagons of luggage from that flight had been taken to Customs, as happened from time to time, and gave evidence that wagons taken to Customs might be reloaded in different ways, which might account for the discrepancy. Reference was also made to a number of other instances in which the records showed small discrepancies in the commencing and finishing times entered for coding particular consignments, which on their face seem to show that baggage from more than one flight might have been coded at the same station at the same time. Reference was also made to another item in production 1060. In this instance, the entry is as follows:-

When interpreted in the same manner as the entry previously referred to, this bears to show that an item coded at a station in HM at 1544 on 21 December also was sent to PA103A, and reference to the coders’ records bears to show that baggage from flight LH1071 from Warsaw was being encoded at that station at that time. It was agreed that no passenger from that flight transferred to PA103A, so that the records seem to show the presence of another unaccompanied bag on that flight. In addition it was suggested that the records and other evidence showed, or might show, that additional items of baggage were carried on PA103A, besides those listed on production 1060. The total number of items listed on production 1060 is 111 but production 199, which is a printout of the passenger manifest for PA103A, bears to show that a total of 118 items were checked in. Further, Mr O’Neill spoke of 21 items of online baggage which arrived on a flight from Berlin and it was suggested therefore that there were additional items beyond those listed in the documents. Production 199 was not scrutinised in much detail in the evidence and the discrepancy in numbers was not explored. It can, however, be seen that 21 of the items on the passenger manifest are marked with the letters TXL, and in the course of questions with regard to one of those items, directed to a different issue, Monika Diegmuller read those letters as indicating that the item had come from Tegel Airport, Berlin. It seems likely, therefore, that Mr O’Neill’s 21 items are included in the 118 on the passenger manifest. The remaining discrepancy might be accounted for as late arrival luggage which, according to some of the evidence, might not go through the automated system.

[34] There were other comments on the operation of the system to the effect that there were indications that there might be informal working practices, such as one coder giving assistance to another which might lead to inaccurate recording. There was also evidence as to how individual bags which were found in the wrong place were dealt , which might have the same result. In this connection, emphasis was placed on the evidence of Lawrence Whittaker, an FBI special agent who was present when enquiries were being made at V3, and who observed a person, whom he described as dressed appropriately for the area, bringing a suitcase to a coding station and coding it in, but did not see any record being made. Mr Whittaker could not be absolutely certain that no record was made. Apart from pointing to the possibility of errors in recording, defence counsel drew attention to the fact that the records showed that a consignment of interline baggage for PA103A had been taken to the x-ray machine and examined before loading. If the Crown theory is correct, this consignment should have included the suspect item from KM180. It was submitted that the x-ray would, in all probability, have detected any explosive device in a case, particularly as the staff at Frankfurt were aware of warnings to look out for explosive devices hidden in radio cassette players. One such warning was issued after the Autumn Leaves operation in October 1988. Another, more limited, warning was issued because there was understood to be a threat that a woman from Helsinki would attempt to smuggle a device on board an aircraft. It was submitted that that examination would have revealed the presence of the radio cassette player and its contents, particularly in view of the fact that there had been a warning to look out for explosive devices hidden in radio sets. The x-ray operator, Kurt Maier, was not fit through illness to give evidence, but reference was made to statements by him to the investigators from which it appeared that he had x-rayed the consignment in question. One statement was spoken to by Naomi Saunders, one of the FAA investigators, the other by Hans Fuhl of the BKA. In both, Mr Maier explained that he had had some limited training in the use of the machine, but said that in the course of using it he had taught himself to distinguish various sorts of electrical equipment, and that he knew how to tell if explosives were present, from their appearance. Neither statement directly dealt with the question whether, and if so how, Mr Maier would detect explosives hidden in a radio cassette player. What he said was that the approach in dealing with electrical equipment was to see whether it presented a normal appearance, for example whether it had a plug. Other evidence, however, particularly that given by the witness Oliver Koch, Alert’s trainee manager at the time, shows that the standard of training given to Alert employees was poor. That was also the view of the FAA investigators who visited Frankfurt in 1989. Mr Maier’s description of what he looked for does not suggest that he would necessarily have claimed to be able to detect explosives hidden in a radio cassette player. There was no expert evidence as to the ease or difficulty of detecting such hidden devices. The x-ray examination is one of the factors to be taken into account but it is only one factor to be weighed along with the others.

[35] 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.

[36] Luqa Airport was relatively small. The evidence did not disclose the exact number of check-in desks but the photographs in production 871 suggest that there were not very many. Behind the check-in desks there was a conveyor belt, and behind it there was a solid wall, separating the check-in area from the airside area. Behind the check-in desks there were three glass doors, again between the public area and airside, but these were kept locked. There were other doors between the airside and the open area, but at Luqa these were guarded by military personnel, who also dealt with security at other entrances to the airside area of the airport. The conveyor belt carried items of baggage along behind the check-in desks and passed through a small hatch into the airside baggage area. The hatch was also under observation by military personnel and there were Customs officers present in the baggage area. The baggage area was restricted in size. As items of baggage passed along the conveyor belt they were checked for the presence of explosives by military personnel using a sniffer device. The device could detect the presence of many explosives but would not normally detect Semtex, although it might detect one of its constituents under certain circumstances. The only access from the check-in area to the sniffer area was through the hatch or through a separate guarded door.

[37] Air Malta acted as handling agents for all airlines flying out of Luqa. That meant that the check-in desks for all flights were manned by Air Malta staff. There were station managers and other staff of other airlines present at the airport. Some airlines insisted on the use of their own baggage tags, but Air Malta tags could be used for flights of other airlines, in certain circumstances. Whatever the purpose for which they were to be used, Air Malta tags were treated as a security item. They were kept in a store and supplies were issued to the check-in agents when a flight was due to start check-in. The same applied to interline tags. All remaining tags were returned to the supervisor after the check-in was completed.

[38] Luqa airport had a relatively elaborate security system. All items of baggage checked in were entered into the airport computer as well as being noted on the passenger’s ticket. After the baggage had passed the sniffer check, it was placed on a trolley in the baggage area to wait until the flight was ready for loading. When the flight was ready, the baggage was taken out and loaded, and the head loader was required to count the items placed on board. The ramp dispatcher, the airport official on the tarmac responsible for the departure of the flight, was in touch by radiotelephone with the load control office. The load control had access to the computer and after the flight was closed would notify the ramp dispatcher of the number of items checked in. The ramp dispatcher would also be told by the head loader how many items had been loaded and if there was a discrepancy would take steps to resolve it. That might require a check of the ticket coupons, a check with one or more check-in agents or, in the last resort, a physical reconciliation by unloading the baggage and asking passengers to identify their own luggage. Interline bags would be included in the total known to load control, as would any rush items. It was suggested by the Crown that there might at one time have been a practice of allowing the aircraft to leave in spite of a discrepancy, if the discrepancy was less than five items, but the records referred to by the Crown did not bear out that this was a regular practice and the suggestion was firmly denied by the Air Malta and airport witnesses. In addition to the baggage reconciliation procedure, there was a triple count of the number of passengers boarding a departing flight, that is there was a count of the boarding cards, a count by immigration officers of the number of immigration cards handed in, and a head count by the crew. On the face of them, these arrangements seem to make it extremely difficult for an unaccompanied and unidentified bag to be shipped on a flight out of Luqa. It was suggested that there were occasions, particularly when an LAA flight was being checked in, when conditions at the check-in desks were crowded and chaotic because a great deal of miscellaneous and unusual baggage was brought to the desks anbecause the queues were not orderly. It was therefore suggested that on such an occasion a bag might have been slipped onto the conveyor belt behind the desks without anyone noticing. Again, evidence was led that on occasions airline representatives, such as the second accused, would assist favoured passengers by helping them to obtain special treatment at the check-in and immigration desks and placing baggage on the conveyor. Evidence to that effect was given by Dennis Burke and Nicholas Ciarlo who worked as travel agents at the airport but none of the evidence went further than suggesting that a case might have been placed on the conveyor belt, from where it would have gone to the explosives check and the baggage area, but not escaping the baggage reconciliation system. The evidence of the responsible officials at the airport, particularly Wilfred Borg, the Air Malta general manager for ground operations at the time, was that it was impossible or highly unlikely that a bag could be introduced undetected at the check-in desks or in the baggage area, or by approaching the loaders, in view of the restricted areas in which the operations proceeded and the presence of Air Malta, Customs and military personnel. Mr Borg conceded that it might not be impossible that a bag could be introduced undetected but said that whether it was probable was another matter.

[39] As regards the flight itself, the check-in for KM180 opened at 0815 and closed at 0915. There were two other flight check-ins open during that period or part of it. Flight KM220 was checking in between 0835 and 0930 and an LAA flight, LN147, was checking in between 0850 and 0950. The records relating to KM180 on 21 December 1988 show no discrepancy in respect of baggage. The flight log (production 930) shows that fifty-five items of baggage were loaded, corresponding to fifty-five on the load plan. There was a good deal of evidence led in relation to the number of items noted on the ticket counterfoils for the flight, and especially in regard to the number of items checked in by a German television crew who travelled on the flight. It does not seem to us to be necessary to examine that evidence in detail. A discrepancy might have masked the presence of an additional item, but the evidence is inconclusive as to whether or not there was any discrepancy and in any event it is difficult to suppose that a person launching a bomb into the interline system would rely on such a chance happening. 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. Counsel for the defence pointed out that neither the head loader nor the other members of the loading crew were called to give evidence, and submitted that, in their absence, the Crown could not ask the court to draw any inference adverse to them. 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 case, and one which has to be considered along with the rest of the circumstantial evidence in the case.

[40] We turn now to consider what evidence there is to establish any involvement on the part of either or both of the accused.

[41] In relation to the first accused, there are three important witnesses, Abdul Majid, Edwin Bollier and Tony Gauci.

[42] Abdul Majid in 1984 joined the Jamahariya Security Organisation ("JSO"), later named the External Security Organisation. His initial employment was in the vehicle maintenance department for about eighteen months. In December 1985 he was appointed as assistant to the station manager of LAA at Luqa airport. This post was one which was normally filled by a member of the JSO. He gave evidence about the organisation of the JSO in 1985. In particular he said that the director of the central security section was Ezzadin Hinshiri, the head of the operations section was Said Rashid, the head of special operations in the operations department was Nassr Ashur, and the head of the airline security section was the first accused until January 1987 when he moved to the strategic studies institute. The second accused was the station manager for LAA at Luqa from 1985 until about October 1988. While Abdul Majid was only a junior member of the JSO, we are prepared to accept that he was aware of the hierarchy and that his evidence on these matters can be accepted. In August 1988 he contacted the US embassy in Malta, and indicated a willingness to provide them with information. His evidence was that he disapproved of Libyan involvement in terrorism, but the final straw was that he had been summoned back to Tripoli in connection with an incident at the airport involving an Egyptian woman. He said that at that stage he wanted to go to America, but he agreed to stay in position to give information to the Americans about terrorist activities. Thereafter he had regular meetings at about monthly intervals with his CIA handlers. Eventually during 1990 he returned to Libya when the Americans stopped making payments to him. In July 1991 however he finally left Libya for Malta from where he was taken on board a US navy ship. Over a period of about three weeks he was questioned by members of the US Justice Department and provided certain information to them. Since then he has been in America on a witness protection scheme. During the period in Malta when he was having meetings with the CIA, his handlers reported by cable to their headquarters the information he provided. These cables also dealt with the financial arrangements. Such information as he provided during that period does not appear to have been of much value, being mainly confined to the comings and goings of various people through Luqa. We do not find it necessary to go into much detail about his dealings with the CIA in Malta. What emerged from the evidence quite clearly in our view was that he endeavoured from the outset to give a false impression of his importance within the JSO in the hope of persuading the CIA that he was a valuable asset who might in the future be able to provide valuable information. Thus he initially told them that when he joined the JSO he was in the secret files section, when in fact he was in vehicle maintenance; he claimed to be related to King Idris, which he was not; he claimed long-standing friendship with Ezzadin Hinshiri and Said Rashid, and acquaintance with Abdullah Senussi, the head of operations administration. We are satisfied that these suggestions were at best grossly exaggerated, at worst simply untrue. 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. In addition to receiving a monthly salary, initially $1000 increasing to $1500, he also persuaded the CIA to pay for sham surgery to his arm with a view to preventing the risk that he would have to do military service in Libya, and tried to persuade them to finance a car rental business which at one stage he said he wanted to set up in Malta. 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. It is in this context that we turn to consider particular items in his evidence upon which the Crown sought to found.

[43] At an early meeting with the CIA in October 1988 he was asked if he knew anything of weapons on Malta. He said that he was aware of eight kilos of explosives which had been stored for months at the LAA office. He understood that they had been introduced some time in 1985 when Abd Al Baset Megrahi was in Malta. They were not kept in a safe, merely in a locked drawer in the desk. He had been asked to help in transferring them to the office of the Libyan Peoples Bureau. A further report shortly thereafter indicated that they were kept in the Valloffice. In July 1991 he added the information that the second accused was the custodian of these explosives, this being the first time the second accused was mentioned in connection with this matter. He further added that it was the second accused who told him that it was the first accused who had brought the explosives. Finally he said that at some stage the first accused told him to ‘look after’ the second accused, and to take control of the explosives when the second accused left his post as station manager. It is quite clear that the details of this story only emerged some two and a half years after the initial account, and contained a number of inconsistencies with the first account. It is also highly significant that the details only emerged at a stage when it had been made clear to him that unless he came up with some useful information, he was liable simply to be returned to Malta. Even taken at its best, the whole story sounds improbable, and in view of the late introduction of very material detail we are unable to place any reliance on this account. This was the only matter of any significance that was reported to the CIA by Abdul Majid prior to 21 December 1988. Another matter upon which the Crown founded was that in July 1991 Abdul Majid told investigators that he had seen the first accused and the second accused arriving at Luqa off the Tripoli flight some time between October and December 1988. This comparatively innocuous statement gradually enlarged until by the time he gave evidence he said that he saw them at the luggage carousel, that the second accused collected a brown Samsonite type suitcase which he took through Customs, that then he met the two accused who were accompanied by two other people one of whom was introduced to him by the first accused as Abougela Masoud, a technician, that Vincent Vassallo (an associate of the second accused) was also present having arrived in the second accused’s new car, and that they then drove off. As other evidence established that the date of delivery of the second accused’s car was 14 December 1988, it follows that if Abdul Majid’s story is true this incident must have occurred on 20 December. He maintained that he had told his CIA handlers about this incident at the time. The cables for this period disclose no mention of this incident at all, and the Crown made no attempt to support the proposition that the incident was mentioned at all prior to July 1991. If it had been mentioned, it would be quite inexplicable that the CIA would have failed to appreciate the significance of the information and failed to report it. Furthermore, Mr Vassallo in evidence said that on 20December he was not at the airport, and that in fact both accused came to his house that evening. We are therefore quite unable to accept the veracity of this belated account by Abdul Majid. A third matter on which the Crown founded was an account given by Abdul Majid of a conversation in about 1986 with Said Rashid in which the latter asked if it would be possible to put an unaccompanied bag on board a British aircraft. Abdul Majid said he would investigate, and asked his assistant Ahmed Salah, also said to be a JSO officer, if it could be done. Ahmed Salah later reported that it could be done, and Abdul Majid wrote a report to Said Rashid to this effect, sending the report through his superior, the first accused. He said that the first accused later visited Malta and this matter was discussed, the first accused saying "don’t rush things". In his evidence he accepted that he had never reported this to the CIA even when they asked him if he knew anything about the possibility of the bomb which blew up PA103 being sent from Luqa. He said that his reason for not reporting it was for personal security reasons. Once again, we are quite unable to accept this story when the information was supplied so belatedly. Putting the matter shortly, we are unable to accept Abdul Majid as a credible and reliable witness on any matter except his description of the organisation of the JSO and the personnel involved there.

[44] The next important issue is that relating to MST-13 timers. The evidence relating to this came essentially from Edwin Bollier, Erwin Meister, Ulrich Lumpert and those who supplied the circuit board components of the timers from Thuring AG, Zurich. MEBO AG was formed in the early 1970s by Edwin Bollier and Erwin Meister. In 1985 it had its offices in the Novapark Hotel (now the Continental Hotel) in Zurich. By then it had for some years supplied electrical, electronic and surveillance equipment. At that time, according to Mr Bollier, its principal customer was the Libyan Government and in particular the Libyan military security, and in connection with that business he made fairly frequent visits to Libya. Mr Lumpert was employed by the company as an engineer and in that capacity he was involved in the design and production of such equipment.

[45] We have assessed carefully the evidence of these three witnesses about the activities of MEBO, and in particular their evidence relating to the MST-13 timers which the company made. All three, and notably Mr Bollier, were shown to be unreliable witnesses. Earlier statements which they made to the police and judicial authorities were at times in conflict with each other, and with the evidence they gave in court. On some occasions, particularly in the case of Mr Bollier, their evidence was self-contradictory.

[46] Mr Bollier gave evidence that one Badri Hassan came to MEBO’s offices in Zurich at the end of November or early in December 1988 and asked the firm to supply forty MST-13 timers for the Libyan Army. Mr Bollier checked with Mr Lumpert whether they had sufficient material in stock to make that number of timers. Mr Lumpert, he said, advised that they had not and so, since timers were urgently required by the Libyan Army and Mr Bollier bought timers on the open market. He bought sixteen Olympus timers on 5 December 1988 and the balance of twenty-four such timers on 15 December 1988. On 16 December 1988 he booked his flight from Zurich to Tripoli and back. He flew to Tripoli on 18 December 1988, taking the timers with him. He expected to deliver them to Ezzadin Hinshiri in person on the day of his arrival. Instead, on that day he was taken to Hinshiri’s office and left the timers there. On the following day he saw Ezzadin Hinshiri in his office about 10.00am. Hinshiri said that he wanted MST-13 timers and that the Olympus timers were too expensive. Nevertheless, he retained the timers and directed Mr Bollier to go to the first accused’s office in the evening in order to get payment for them. From about 6.00pm Mr Bollier sat outside that office for two hours. While he did not see the first accused, he did see Nassr Ashur sitting at a meeting. On 20 December 1988 he again saw Ezzadin Hinshiri who repeated his view that the timers were too expensive, although he wished to keep them and to pay for them later. Mr Bollier however took the timers back and left Tripoli later on the same day, flying by direct flight to Zurich rather than via Malta (as he had expected) where he would have had to spend that night. It was submitted by the Crown that Mr Bollier’s visit to Tripoli and particularly his visit to the first accused’s office and the presence there of Nassr Ashur provided additional evidence in the case against the first accused. While we accept that Mr Bollier visited Tripoli between 18 and 20 December in order to sell timers to the Libyan army, because that is substantially vouched by documentary evidence and it was not challenged in evidence, we are not prepared to draw the inference that the Crown sought from this evidence. On his return to Zurich Mr Bollier claimed to have discovered that one of the timers had been set for a time and a day of the week which were relevant to the time when there was an explosion on board PA103. He showed this to Mr Meister who agreed that he was able to see a time and even a date which were relevant. We do not accept the evidence of either of these two witnesses about thalleged discovery. It was established, and Mr Meister was forced to accept, that the Olympus timer was incapable of showing a date. Moreover, the evidence of both witnesses about what they claimed to have seen and the circumstances in which they claimed to have made the discovery was so inconsistent that we are wholly unable to accept any of it.

[47] Similarly, we reject the evidence of Mr Bollier that outside his Zurich office on 30 December 1988 he met a mysterious stranger who Mr Bollier thought was a member of the security services (although of which country he did not specify), who seemed to know a considerable amount about his recent visit to Tripoli, and who encouraged him to purchase a typewriter with Spanish keys on which to type a letter to be sent to the CIA implicating two well known Libyan figures in the bombing of PA103. (Mr Bollier did in fact type such a false letter on a Spanish typewriter which he delivered to the US Embassy in Vienna early in January 1989 on his way to East Germany). This account given by Mr Bollier belongs in our view to the realm of fiction where it may best be placed in the genre of the spy thriller. The notion, also, that a rogue company in Florida was engaged in manufacturing fake MST-13 timers on the instructions of the CIA, to which Mr Bollier spoke in evidence, falls into the same category.

[48] Despite being examined before a Swiss Magistrate and being interviewed by police officers on several occasions before October 1993, it was only then that Mr Bollier admitted that MEBO had supplied any MST-13 timers to the Stasi (the East German intelligence service). At that time he said that in the late summer of 1985 he had taken two prototypes to the Stasi offices in East Berlin where he had delivered them. He accepted in evidence that he had said in a police interview conducted on 26 January 1994 that he had found in his desk drawer in Zurich in late 1993 an invoice dated 18 September 1985 indicating that seven MST-13 timers had been delivered to the Stasi in 1985. Recognising that this was a principal invoice and not, as one might expect, a copy, Mr Bollier sought to account for its presence in the drawer by saying that it had been put there by "the Secret Service". In any event, he said it was typical of the type of false document which he carried with him on his business journeys in order to get through Customs. This was the first time that Mr Bollier mentioned that a delivery of an additional five timers had been made to the Stasi. We do not accept that the invoice which Mr Bollier said he had found was genuine. Indeed, not even Mr Bollier appeared to have acknowledged it to be genuine.

[49] We do however accept certain parts of Mr Bollier’s evidence despite finding him at times an untruthful and at other times an unreliable witness. We have done so when his evidence has not been challenged and appears to have been accepted, or where it is supported from some other acceptable source. We accept, for example, that in or about July 1985 on a visit to Tripoli, Mr Bollier received a request for electronic timers from Said Rashid or Ezzadin Hinshiri and that he had had military business dealings in relation to the Libyan Government with Ezzadin Hinshiri since the early 1980s. The potential order was for a large number of such timers. Mr Lumpert was told of the requirements by Mr Bollier and proceeded to develop two prototypes. There is a dispute in the evidence between Mr Bollier and Mr Meister on the one hand and Mr Lumpert on the other about the colour of the circuit boards in these prototype timers. Mr Bollier said they were brown, Mr Meister thought they were grey or brown, whereas Mr Lumpert said that they were manufactured from the green coloured circuit boards supplied by Thuring. What we do however accept is that later in the summer of 1985 the two prototypes were delivered by Mr Bollier to the Stasi in East Berlin, whatever be the colour of their circuit boards. This is consistent with the evidence of Mr Wenzel who at the material time was a major in the Stasi and with whom Mr Bollier then dealt. Despite this evidence we cannot, however, exclude absolutely the possibility that more than two MST-13 timers were supplied by MEBO to the Stasi, although there is no positive evidence that they were, nor any reasons why they should have been. Similarly, we cannot exclude the possibility that other MST-13 timers may have been made by MEBO and supplied to other parties, but there is no positive evidence that they were. Equally, despite the evidence of Mr Wenzel that after the fall of the Berlin wall he had destroyed all timers supplied to the Stasi, we are unable to exclude the possibility that any MST-13 timers in the hands of the Stasi left their possession, although there is no positive evidence that they did and in particular that they were supplied to the PFLP-GC.

[50] The initial order placed with Thuring was for twenty circuit boards, solder masked on one side only, i.e. single sided. In fact Thuring supplied twenty-four such boards. In October 1985 MEBO placed a further order with Thuring for circuit boards but it was specified that they should be solder masked on both sides, i.e. double sided. Thirty-five such boards were ordered, but Thuring supplied only thirty-four. When the Scottish police visited MEBO’s premises in May 1991, CI Williamson received from Mr Bollier eleven circuit boards, having been shown twelve. Earlier, on 15 November 1990, following the interview by a Swiss Magistrate of Mr Bollier and Mr Meister, CI Williamson also took possession of two sample MST-13 timers. It is clear from this, therefore, that at least twelve of the circuit boards ordered from Thuring were not used in the manufacture of MST-13 timers. Of the number which CI Williamson took into his possession, four were single sided circuit boards. Of the circuit boards in the sample MST-13 timers recovered by CI Williamson, one was single sided and the other double sided. The MST-13 timer which the US authorities obtained from the Togo Government in September or October 1986 at Lomé (to which reference will later be made) also had a double sided circuit board. It follows that some of the circuit boards of these timers were single sided and some were double sided, and also that a number of the single sided circuit boards supplied by Thuring in August 1985 were not used. Mr Bollier therefore may well have been correct when he said that the Libyan order was met with the supply of timers which had circuit boards of both types. We also accept Mr Bollier’s evidence that he supplied the twenty samples to Libya in three batches. In 1985 he himself delivered five on a visit to Tripoli. In the same year he delivered another five to the Libyan Embassy in East Berlin. In 1986 he delivered the remaining ten personally in Tripoli.

[51] In September or October 1986 the President of Togo asked the US Government to send representatives to examine a cache of arms which had been discovered in that country. Three US government officials attended at Lomé. Amongst the captured equipment there were two MEBO MST-13 timers which interested the Americans because they looked particularly modern and sophisticated compared to the other items which seemed old and worn. The Americans received permission to take one of the two timers back in the diplomatic bag to the US. In June 1990 Mr Feraday attended at the Explosives Unit of the FBI HQ in Washington DC and examined it there. A preliminary examination by him determined that there were similarities between the circuit board of the Lomé timer and the fragment PT/35(b). On later examination he discovered that the Lomé timer had a double sided circuit board, whereas the fragment PT/35(b) came from a single sided circuit board. Further he observed that the board did not have the corners cut out, which indicated that it cannot have been boxed. An attempt had been made to scratch out the letters MEBO on the surface of a smaller circuit board contained within the timer. Counsel for the first accused drew our attention to the fact that amongst tequipment captured there were ammunition pouches which were recognised as pouches of East German design. In fact, there were, in addition, rifles and handguns of East German origin amongst the equipment, but the other items, including detonators, a length of fuse, a detonator box and ammunition, came from several different countries, including Bulgaria, the Soviet Union, France and West Germany. Counsel also reminded us that Mr Wenzel had given evidence that it was his practice to remove the MEBO name from products supplied by Mr Bollier. In these circumstances we cannot exclude the possibility that the source of at least one of the two MST-13 timers found in Togo was East Germany, but on any view there were material differences between these timers and the one used to trigger the explosion on PA103.

[52] The timer recovered in Togo which, as we have said, was one of two, was considered by the witness Richard Sherrow to be identical to one which was discovered in Dakar, Senegal, on 20 February 1988 within a briefcase found on board a passenger aircraft which had arrived at the airport there from Cotonou in Benin. It was recovered in October 1999 by CI Williamson from the French Ministry of Justice in Paris but was not examined forensically. It cannot therefore be said whether its circuit board was single or double sided. In the briefcase were found also nine metres of fuse, four blocks of TNT, two blocks of Semtex-H, nine electric detonators, a pistol with a silencer, a box of bullets, one empty clip and five discs for the silencer. Three persons were taken into custody from the aircraft – a Senegalese named Ahmed Khalifa Niasse, Mansour Omran El Saber who at the time was a member of the Libyan ESO, and one Mohamed El Marzouk. The evidence did not establish any connection between any of these three arrested persons and the briefcase and its contents.

[53] Mr Bollier gave evidence that he attended tests carried out by the Libyan military in the Libyan desert at Sabha which involved, inter alia, the use of MST-13 timers in connection with explosives and in particular air bombs. He said that the timers were brought by Nassr Ashur. Mr Bollier attended there as a technical expert. He thought that this was in 1986 after the last batch of timers had been delivered to the Libyan Government, but later he qualified this by saying that it might be in the middle or the fall of 1987. From the way in which he gave evidence about these tests we are persuaded that he did indeed attend such tests, although it is not clear when they were carried out or what was their purpose.

[54] We also accept Mr Bollier’s evidence, supported by documentation, that MEBO rented an office in their Zurich premises some time in 1988 to the firm ABH in which the first accused and one Badri Hassan were the principals. They explained to Mr Bollier that they might be interested in taking a share in MEBO or in having business dealings with MEBO.

[55] The third important witness is Mr Gauci. We have already referred to his evidence in connection with the sale of clothing. Mr Gauci picked out the first accused at an identification parade on 13 August 1999, using the words as written in the parade report "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". Number 5 in the parade was the first accused. He also identified him in Court, saying "He is the man on this side. He resembles him a lot". These identifications were criticised inter alia on the ground that photographs of the accused have featured many times over the years in the media and accordingly purported identifications more than ten years after the event are of little if any value. Before assessing the quality and value of these identifications it is important to look at the history.

[56] In his evidence in chief, Mr Gauci said that the date of purchase must have been about a fortnight before Christmas. He was asked if he could be more specific under reference to the street Christmas decorations. Initially he said "I wouldn’t know exactly, but I have never really noticed these things, but I remember, yes, there were Christmas lights. They were on already. I’m sure. I can’t say exactly". In a later answer when it had been put to him that he had earlier said that the sale was before the Christmas decorations went up, he said "I don’t know. I’m not sure what I told them exactly about this. I believe they were putting up the lights, though, in those times." He could not say what day of the week it was. He was alone in the shop because his brother was at home watching football on television. When asked about the weather he said "When he came by the first time, it wasn’t raining but then it started dripping. Not very -- it was not raining heavily. It was simply dripping…" As we have previously noted, he said the purchaser was a Libyan. He was wearing a blue suit. When asked about the build of the purchaser, he said "I’m not an expert on these things. I think he was below six feet….He wasn’t small. He was a normal stature. He had ordered a 16½ shirt". When asked about age he said "I said before, below six – under sixty. I don’t have experience on height and age." He also said the purchaser had dark coloured skin. On 13 September he went to the police station where he assisted in the compilation of a photofit (production 430.1) and an artist’s impression (production 427.1). He described the result of both as being ‘very close’.

[57] In cross-examination he had put to him a number of statements he had made to the police. He was first interviewed by the police on 1 September 1989. On that date, in addition to giving the police information about the clothing, he also gave information about the circumstances of the sale, the date of the sale, and the description of the purchaser. In the statement noted by DCI Bell on that date, Mr Gauci said that he had been working alone in the shop between 6.30pm and 7.00pm when the purchaser came in. The description of the purchaser as given to DCI Bell was that he was six feet or more in height. He had a big chest and a large head. He was well built but was not fat or with a big stomach. His hair was very black. He was clean-shaven with no facial hair and had dark coloured skin. His overall appearance was smart. He bought an umbrella and put it up when he left the shop because it was raining. Mr Gauci said that he could not remember the day of the week although he thought it was a weekday. In a further statement on 13 September he said that the man was about 50 years of age.

[58] On 14 September 1989 Mr Gauci was taken to police headquarters at Floriana, Malta, where he was interviewed by DCI Bell and Inspector Scicluna of the Maltese police. They took a statement from him and showed him nineteen photographs on two cards. Mr Gauci identified a photograph of a man in one of the cards. He said that he was similar to the man who had bought the clothing but the man in the photograph he identified was too young to be the man who had bought the clothing. If he was older by about twenty years he would have looked like the man who bought the clothing. He signed the front of the photograph of the man whom he identified as similar. He said in his statement that the photograph looked like the man’s features so far as the eyes, nose, mouth and shape of face were concerned. The hair of the customer was similar but shorter than that of the man in the photograph. DCI Bell revealed that the person whom Mr Gauci had identified was someone whom the Maltese Security Branch considered to be similar to the artist and photo-fit impressions which had been composed as a result of the description given by Mr Gauci. The man was later identified as one Mohammed Salem.

[59] On 26 September 1989 Mr Gauci again attended at police headquarters in Malta where he was interviewed by the same two police officers. He was then shown more photographs. He said that he did not see the man to whom he sold the clothing, but he pointed out one photograph of a man who had the shairstyle. He said that this was not the man he sold the clothing to as the man in the photograph was too young. The person he pointed out, according to the evidence of DCI Bell, was a person called Shukra whose photograph was included at the suggestion of the BKA, the German police force, who suggested that Shukra might be similar to the person whom Mr Gauci had already described.

[60] On 31 August 1990 Mr Gauci gave a further statement to DCI Bell and Inspector Scicluna at police headquarters at Floriana. He was shown a card containing twelve photographs. He examined these photographs and said that he could not see the photograph of the man who had purchased the clothing, and he told DCI Bell that the man’s photograph was not present. He pointed out one of the photographs of a man who was similar in the shape of the face and style of hair but it was not, he said, the photograph of the man whom he had described. He informed DCI Bell that three other photographs he was shown were photographs of men of the correct age of the man he had described. DCI Bell then opened another set of photographs, twelve in number. Mr Gauci examined each of these but could not see the photograph of the man who had purchased the clothing. DCI Bell gave evidence that in the first series there was included a photograph of a man Marzouk and in the second series a man named Saber. He could not however say which photographs represented either person.

[61] On 10 September 1990 Mr Gauci again attended at police headquarters. He was shown thirty-nine photographs on that occasion which were contained in an album. He however made no identification of anyone from these photographs which included a photograph of Abo Talb. Mr Gauci had been shown on 6 December 1989 a selection of photographs which included a photograph of Abo Talb, but he made no identification of anyone from these photographs. At about the end of 1989 or the beginning of 1990 his brother showed him an article in a newspaper about the Lockerbie disaster. As he recalled, there were photographs of two people in the article. Across the photograph of the wreckage of Pan Am 103 there was printed the word "Bomber". In the top right corner of the article there was a photograph of a man with the word "Bomber" also across it. Mr Gauci thought that one of the photographs showed the man who had bought the articles from him. When the Advocate Depute put to Mr Gauci in evidence at the trial that the man in the photograph looked similar to the man who had bought the clothes, Mr Gauci replied that it resembled him and he explained that the man’s face and hair resembled the person who had bought the clothes from him. The person whom he identified in that way was Abo Talb. By the time he gave his statement on 10 September 1990 Mr Gauci had been shown many photographs but he said in that statement that he had never seen a photograph of the man who had bought the clothing.

[62] On 15 February 1991 Mr Gauci again attended at police headquarters. He was asked to look at a number of photographs and a card of twelve photographs was put before him. He said: "The first impression I had was that all the photographs were of men younger than the man who bought the clothing. I told Mr Bell this. I was asked to look at all the photographs carefully and to try and allow for any age difference. I then pointed out one of the photographs." He said of the photograph of the person he had pointed out: "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 further to say: "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." He was asked by DCI Bell if what he said was true and that this photograph was the only one really similar to the man who bought the clothing if he was a bit older, other than the one his brother had shown him, and he said: "Of course. He didn’t have such long hair, either. His hair wasn’t so large." DCI Bell later gave evidence that the person shown in photograph 8 was the first accused, being apparently the same as the photograph in the first accused’s 1986 passport. He also said that before showing Mr Gauci the card of photographs he had all the other photographs dulled down to the same level of brightness as the first accused’s photograph. He said that he did that simply for fairness because the rest of the photographs were brighter and sharper than that of the first accused and he wanted them all to look the same. Counsel for the first accused submitted that DCI Bell’s attempts to make the quality of all the photographs similar had failed, but in our view this criticism has no validity.

[63] Finally, so far as police interviews were concerned, Mr Gauci was asked about a visit he made to Inspector Scicluna towards the end of 1998 or the beginning of 1999 after another shopkeeper showed him a magazine containing an article about the Lockerbie disaster. Towards the bottom of the page in the article there was a photograph in the centre of a man wearing glasses. Mr Gauci thought that that man looked like the man who had bought the clothes from him but his hair was much shorter and he didn’t wear glasses. He showed the photograph in the article to Inspector Scicluna and, as Mr Gauci recalled it, he said "Well now I said ‘This chap looks like the man who bought articles from me.’ Something like that I told him." He added that the hair of the man who bought from him was much shorter than that shown in the photograph and he was without glasses. The photograph was a photograph of the first accused.

[64] In cross-examination Mr Gauci was referred to a statement which he had given to DCI Bell on 14 September 1989. In that statement he said that the purchase of the clothing was made on a week day when he was alone in the shop. His brother Paul Gauci did not work in the shop on that particular afternoon because he had gone home to watch a football match on television. It was agreed by Joint Minute 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. Mr Gauci had also said in that statement that the purchaser walked out of the shop with the umbrella which he had purchased and that he had opened up the umbrella as it was raining. In his evidence he agreed that he had said this because it was raining at the time. When the man returned, the umbrella was down because it had almost stopped raining. There were just a few drops coming down. In a later statement he said that it had almost stopped raining when the man came back and there were just a few drops still coming down. It wasn’t raining, he said in evidence, it was just drizzling. In a statement dated 10 September 1990 which was put to him in cross-examination he said that just before the man left the shop there was a light shower of rain just beginning. As the man left the shop he opened up the umbrella which he had just purchased. "There was very little rain on the ground, no running water, just damp." He was also asked in cross-examination what he meant when he used the word "midweek" and he responded by saying that he meant a Wednesday. It was put to him that midweek meant a day which was separate from the weekend, in other words that the shop would be open the day before and the day after. To that Mr Gauci said "That’s it. Exactly. Tuesday and Thursday." But he then went on to say that for him midweek was Wednesday. It was not put to him that Thursday 8 December 1988 was a pubholiday, it being the feast of the Immaculate Conception on that day. That evidence was given on Day 76 by Major Mifsud in the course of evidence led for the first accused. We are satisfied that when Mr Gauci was asked whether the shop would be open the day before and the day after he was being asked what he meant by the word "midweek", and not whether the day after the purchase of the clothing was made in his shop, the shop was open for business.

[65] Major Mifsud was between 1979 and 1988 the Chief Meteorologist at the Meteorological Office at Luqa Airport. 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.

[66] Counsel for the first accused drew our attention to evidence which Mr Gauci gave that according to an invoice which he received, dated 25 November 1988, he purchased eight pairs of pyjamas about that time. Pyjamas sold well in winter and he used to buy stock "when it finished". According to a previous invoice dated 31 October 1988 he had at that time bought sixteen pairs. Since the purchaser of the clothing had bought two pairs of pyjamas and Mr Gauci had renewed his stock around 25 November 1988, counsel asked us to infer that the purchase of the two pairs must have been made on 23 November 1988. We are unable to draw this inference. In the first place it was not put to Mr Gauci in evidence that this may have been the sequence of events. Secondly, Mr Gauci was not asked what the state of his stock of pyjamas was on or about 7 December 1988.

[67] In assessing Mr Gauci’s evidence we should first deal with a suggestion made in the submissions for the first accused that his demeanour was unsatisfactory – reluctant to look the cross examiner in the eye, a strange and lonely man, and enjoying the attention he was getting. We have to say we find no substance in any of these criticisms. We are not clear on what basis it was said that he was strange and lonely, and as far as enjoying attention is concerned, he made it clear that his co-operation with the investigation was a source of some friction within his family. The clear impression that we formed was that he was in the first place entirely credible, that is to say doing his best to tell the truth to the best of his recollection, and indeed no suggestion was made to the contrary. That of course is not an end of the matter, as even the most credible of witnesses may be unreliable or plainly wrong. We are satisfied that on two matters he was entirely reliable, namely the list of clothing that he sold and the fact that the purchaser was a Libyan. On the matter of identification of the first accused, there are undoubtedly problems. We are satisfied with Mr Gauci’s recollection, which he has maintained throughout, that his brother was watching football on the material date, and that narrows the field to 23 November or 7 December. There is no doubt that the weather on 23 November would be wholly consistent with a light shower between 6.30pm and 7.00pm. The possibility that there was a brief light shower on 7 December is not however ruled out by the evidence of Major Mifsud. It is perhaps unfortunate that Mr Gauci was never asked if he had any recollection of the weather at any other time on that day, as evidence that this was the first rain of the day would have tended to favour 7 December over 23 November. While Major Mifsud’s evidence was clear about the position at Luqa, he did not rule out the possibility of a light shower at Sliema. Mr Gauci’s recollection of the weather was that "it started dripping – not raining heavily" or that there was a "drizzle", and it only appeared to last for the time that the purchaser was away from the shop to get a taxi, and the taxi rank was not far away. The position about the Christmas decorations was unclear, but it would seem consistent with Mr Gauci’s rather confused recollection that the purchase was about the time when the decorations would be going up, which in turn would be consistent with his recollection in evidence that it was about two weeks before Christmas. We are unimpressed by the suggestion that because Thursday 8 December was a public holiday, Mr Gauci should have been able to fix the date by reference to that. Even if there was some validity in that suggestion, it loses any value when it was never put to him for his comments. Having carefully considered all the factors relating to this aspect, we have reached the conclusion that the date of purchase was Wednesday 7December.

[68] Mr Gauci’s initial description to DCI Bell would not in a number of respects fit the first accused. At the identification parade the first accused’s height was measured at 5’8". His age in December 1988 was 36. Mr Gauci said that he did not have experience of height or age, but even so it has to be accepted that there was a substantial discrepancy. Counsel for the first accused also pointed out that when the witness having pointed to the first accused in court, and asked which of the two accused he was referring to, said "Not the dark one, the other one", and the first accused was the other one. When however he first saw a photograph of the first accused in a montage of twelve, he picked him out in the terms we have indicated above.

[69] 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. We should add that we have not made any attempt to compare for ourselves any resemblance between the first accused’s passport photograph and tidentikit or artist’s impression, nor with the first accused’s appearance in the video recordings of his interview with Pierre Salinger in November 1991.

[70] Prior to the start of the trial each accused lodged a Notice, in identical terms, which was treated as a Special Defence of Incrimination. The persons incriminated in the Schedule to the Notice were as follows:-

1. Members of the Popular Front for the Liberation of Palestine – General Command.
2. Parviz Taheri, crown witness 996."

[71] As with all special defences, this Notice does not in any way affect the burden of proof. That remains on the Crown throughout the trial and it is therefore for the Crown to prove beyond reasonable doubt that the accused committed the crime charged. There is therefore no onus on the Defence to prove that any of the persons referred to in the Schedule to the Notice were the perpetrators. The sole purpose of the Notice is, as its name implies, to give notice to the Crown prior to the start of the trial as to the possible effect of evidence which the Defence might lead in the course of the trial.

[72] In the event, such evidence was led and in his closing submissions counsel for the first accused made reference to it. In the first place, however, it should be recorded that at the end of his closing submissions counsel said that he was not suggesting that Parviz Taheri may have been responsible for the crime charged. That was in our view an inevitable concession given the evidence that we heard. Counsel for the second accused in his closing submissions did not in fact refer to those mentioned in the Notice at all, preferring to concentrate on the evidence that the Crown had relied on in relation to his client. In these circumstances we need say no more about Parviz Taheri.

[73] We turn next to the evidence in relation to members of the Popular Front for the Liberation of Palestine – General Command ("PFLP-GC"). No member of that organisation gave evidence but it was clear from other evidence that we heard, in particular from officers of the German police force, the BKA, that a cell of the PFLP-GC was operating in what was then West Germany at least up until October 1988. The evidence which we accept showed that at least at that time the cell had both the means and the intention to manufacture bombs which could be used to destroy civil aircraft. On 26 October 1988, after a period of surveillance, the BKA made a series of raids and arrested a number of individuals in an operation code-named Autumn Leaves. In particular they raided premises at Sandweg 28, Frankfurt and the home of Hashem Abassi in Neuss and they seized a car which had been used by Haj Hafez Kassem Dalkamoni, apparently the leader of the cell. In these premises they found radio cassette players, explosives, detonators, timers, barometric pressure devices, arms, ammunition and other items, including a number of airline timetables and seven unused Lufthansa luggage tags. From other evidence it appeared that one of the airline timetables was a PanAm timetable. There was considerable evidence of bombs being manufactured so as to be concealed in Toshiba radio cassette players. The models being used were, however, different from the RT SF-16 used in the PA103 disaster, and the timers were of a type known as ice-cube timers. These were quite different from MST-13s, much less sophisticated and much less reliable, and the intention was no doubt to use them in conjunction with the barometric pressure devices to detonate the explosive.

[74] While all this material was seized by the BKA on 26 October 1988 and the principal members of the PFLP-GC cell in West Germany were arrested on that date, the evidence was that most were released shortly thereafter. Dalkamoni, however, was not, and he was later convicted in relation to bomb attacks on a railway line in Germany in 1987 and 1988 and possession of the weapons found at Sandweg 28. He was sentenced to imprisonment for fifteen years. It is possible, of course, that the cell could have re-grouped and re-stocked with the necessary materials by 21 December. In April 1989 three further explosive devices were recovered at Hashem Abassi’s new address in Neuss, but the indications were that these were items which had formed part of the stock in October 1988. There was no evidence that the cell had the materials necessary to manufacture an explosive device of the type that destroyed PA103. In particular there was no evidence that they had an MST-13 timer. For the reasons given elsewhere, while a small quantity of such timers was supplied by MEBO to the East German Stasi, there is no evidence at all to suggest that any of them found their way into the hands of organisations such as the PFLP-GC. On the evidence which we heard we are satisfied that the explosive device which destroyed PA103 was triggered by an MST-13 timer alone and that neither an ice-cube timer nor any barometric device played any part in it. It is also to be noted that the cell’s principal bomb-maker was one Marwan Khreesat who was in fact an agent who infiltrated the cell on behalf of the Jordanian Intelligence Service. His instructions from them were that any bomb he made must not be primed. Moreover, while he himself did not give evidence, there was evidence of a statement given by him to FBI agents (production 1851) in which he said that he never used radio cassette players with twin speakers (such as the Toshiba RT-SF 16 had) to convert into explosive devices.

[75] There was also a suggestion that the PFLP-GC might have infiltrated a bomb on to PA103A in Frankfurt through the medium of Khaled Jaafar, a 20 year old US/Lebanese national who boarded PA103A at Frankfurt and then PA103 at Heathrow with the intention of visiting his father in the USA. He, of course, died in the disaster. The evidence that we accept was that he had come from Lebanon a few weeks before and had been staying in Dortmund with a man Hassan El Salheli, who had himself come to West Germany from Lebanon in 1986 and is now a German citizen. When Khaled Jaafar arrived he had two holdalls with him containing his clothing, and it was these two holdalls that he took with him when he left. El Salheli was present when his bags were packed and they contained nothing but clothing. There was something of a farewell gathering of Arabs at Dortmund train station to see Khaled Jaafar off to Frankfurt on 21 December 1988, but there was no evidence of anything being put in his bags there or of his leaving with an extra bag. At Frankfurt Airport the passenger manifest (production 199) bears to record that he checked in two pieces of luggage. In the queue to pass through passport control he was closely observed by another passenger, Yasmin Siddique (who travelled only to London) and was not seen to be carrying any luggage. The reason for leading the evidence of this other passenger was that she observed him, as she thought, to be acting somewhat suspiciously. The suggestion appeared to be that he was nervous and this might be because he had infiltrated something onto PA103A. We are quite satisfied on the evidence, however, that he only had two bags with him and these were checked into the hold for PA103A at Frankfurt. We are also satisfied that neither of these two bags contained an explosive device. After PA103 crashed the two bags were found close by one another. Neither had suffered any explosion damage.

[76] It remains to consider those named in paragraph 1 of the Schedule to the Notice. Only one of them gave evidence, namely Mohamed Abo Talb. His evidence was that he was born in Egypt and after a period in the Egyptian army he deserted and went to Jordan and, a few months later, to Lebanon. He said that while in Jordan, in about 1972, he joined the Palestinian Popular Struggle Front ("PPSF") and worked for them thereafter in what he described as military operations, and then security and latterly as bodyguard to the leader of the PPSF. During this period he was mainly based in Lebanon but moved to Damascus in 1982. In 1983 he left Damascus for Sweden where he has lived ever since. He said that after arriving in Sweden he did not belong to any Palestinian organisation and ceased all his activities in relation to Palestine. However, in 1989 he was convicted of a number of serious offences arising out of the bombing of targets in Copenhagen and Amsterdam in 1985 and was sentenced to life imprisonment. He is still serving that sentence.

[77] Abo Talb’s wife, whom he married in 1979, and their children also live in Sweden, in Uppsala. So do a number of members of her family and other Arabs with whom Abo Talb associated. In particular, when Abo Talb was arrested in 1989 in connection with the bombings in Copenhagen and Amsterdam (and also one in Stockholm of which he was acquitted) his wife’s brothers Mahmud and Mustafa Al Mougrabi were also arrested, as was a friend of Abo Talb’s, Martin Imandi (also known as Imad Chabaan). There was also some evidence that some of those in Sweden associated with members of the PFLP-GC cell in West Germany. At that time the PPSF and the PFLP-GC shared the same political objective, namely the complete liberation of Palestine involving the destruction of the state of Israel. They both saw the USA as Israel’s greatest ally. In 1988 Mohamed Al Mougrabi visited Hashem Abassi in Neuss and met Dalkamoni at a time when bombs were being manufactured there by Marwan Khreesat. Also there at the same time were two others (a brother and a cousin of Martin Imandi) who were later smuggled into Sweden by Mohamed Al Mougrabi. In addition, Ahmed Abassi, who also lived in Uppsala and knew both Abo Talb and Mohamed Al Mougrabi, was staying with his brother Hashem in Neuss at the time of the Autumn Leaves raids and was with Dalkamoni and Khreesat on an expedition to buy electrical components on 26 October when they were arrested by the BKA. There was also a suggestion that there had been a PFLP-GC cell in Sweden which had been investigated by the Swedish authorities in 1980, before Abo Talb went there, and Abo Talb said that a person called Hamid Al Wani, who owned a café in Uppsala, told him that he was a member of the PFLP-GC. We should also record that when Abo Talb’s house was searched by police following his arrest in 1989 a barometric device was found. Abo Talb in his evidence said that that belonged to his brother-in-law Mahmud Al Mougrabi, who lived in the same house.

[78] Abo Talb gave evidence concerning a number of journeys to various Mediterranean and European countries in the course of the period between the time he was granted right of residence in Sweden and given a Swedish travel document (1984/5) and 1988. He went on a number of occasions to Cyprus where he met other Arabs and relations of his wife. One particular trip was in October 1988. A somewhat strange set of circumstances led him from there to Malta. He was in Malta from 19 October to 26 October 1988 as in effect the guest of Abd El Salam (who is named in the Schedule to the Notice), initially staying at his flat and then in a nearby hotel. Abd El Salam was also known as Abu Nada and his flat in Malta was owned by the Palestine Liberation Organisation. While in Malta Abo Talb said he spent his time with Abd El Salam at the bakery business of which he was a director. This was known as the Miska Bakery, but Abo Talb denied that he knew it by that name and he said that he did not know any of the persons named in the Schedule to the Notice as former directors of the Miska Bakery. He did, however, meet Abd El Salam’s brother, Hashem Salem, while he was in Malta and agreed to take some of his clothing merchandise back to Sweden with him to see if he could find sales outlets for it. That came to nothing and the clothing was later found by the police in Abo Talb’s home.

[79] When Abo Talb left Malta on 26 October he flew to Sweden on an open return ticket to Stockholm, valid for one month. He explained that Abd El Salam had bought the ticket for him and that it had been a return ticket because that was cheaper than a single. He had no intention of returning to Malta and did not do so. He gave evidence that on 10 November 1988 he visited the Ministry of Labour in Stockholm in connection with his application for Swedish nationality, and on 5 December he consulted a solicitor in connection with the theft of his car, and there was some other evidence which might support that. On 9 December and 16 December he attended for medical treatment in Uppsala. These two appointments were agreed in Joint Minute 11. It was also agreed in that Joint Minute that shortly after midnight on 22 December 1988 his wife’s sister gave birth in Uppsala to a child, and Abo Talb said that he was at home looking after his own children at that time. On this evidence, there is some support for Abo Talb when he said that he remained in Sweden and did not return to Malta after 26 October 1988. He did accept, however, that during that period he was in contact with Abd El Salam both by telephone and by post.

[80] As we have said, none of the other persons mentioned in the Schedule to the Notice gave evidence, but certain facts about them and their activities were agreed in Joint Minute 11. These, however, do not in our opinion add anything of significance.

[81] Having considered the evidence concerning these matters and the submissions of counsel we accept that there is a great deal of suspicion as to the actings of Abo Talb and his circle, but there is no evidence to indicate that they had either the means or the intention to destroy a civil aircraft in December 1988.

[82] From the evidence which we have discussed so far, we are satisfied that it has been proved that the primary suitcase containing the explosive device was dispatched from Malta, passed through Frankfurt and was loaded onto PA103 at Heathrow. It is, as we have said, clear that with one exception the clothing in the primary suitcase was the clothing purchased in Mr Gauci’s shop on 7 December 1988. The purchaser was, on Mr Gauci’s evidence, a Libyan. The trigger for the explosion was an MST-13 timer of the single solder mask variety. A substantial quantity of such timers had been supplied to Libya. We cannot say that it is impossible that the clothing might have been taken from Malta, united somewhere with a timer from some source other than Libya and introduced into the airline baggage system at Frankfurt or Heathrow. When, however, the evidence regarding the clothing, the purchaser and the timer is taken with the evidence that an unaccompanied bag was taken from KM180 to PA103A, the inference that that was the primary suitcase becomes, in our view, irresistible. 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. The clear inference which we draw from this evidence is that the conception, planning and execution of the plot which led to the planting of the explosive device was of Libyan origin. While no doubt organisations such as the PFLP-GC and the PPSF were also engaged in terrorist activities during the same period, we are satisfied that there was no evidence from which we could infer that they were involved in this particular act of terrorism, and the evidence relating to their activities does not create a reasonable doubt in our minds about the Libyan origin of this crime.

[83] In that context we turn to consider the evidence which could be regarded as implicating either or both of the accus, bearing in mind that the evidence against each of them has to be considered separately, and that before either could be convicted we would have to be satisfied beyond reasonable doubt as to his guilt and that evidence from a single source would be insufficient.

[84] We deal first with the second accused. The principal piece of evidence against him comes from two entries in his 1988 diary. This was recovered in April 1991 from the offices of Medtours, a company which had been set up by the second accused and Mr Vassallo. At the back of the diary there were two pages of numbered notes. The fourteenth item on one page is translated as "Take/collect tags from the airport (Abdulbaset/Abdussalam)". The word ‘tags’ was written in English, the remainder in Arabic. On the diary page for 15 December there was an entry, preceded by an asterisk, "Take taggs from Air Malta", and at the end of that entry in a different coloured ink "OK". Again the word ‘taggs’ (sic) was in English. The Crown maintained that the inference to be drawn from these entries was that the second accused had obtained Air Malta interline tags for the first accused, 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. From another entry on 15 December (translated as "Abdel-baset arriving from Zurich") it appears that the second accused expected the first accused to pass through Malta on that day. In fact the first accused passed through on 17 December and missed seeing the second accused. In his interview with Mr Salinger in November 1991, the second accused said that he had been informed by his partner Mr Vassallo that the first accused had spoken to him and asked him to tell the second accused that he wanted to commission him with something. On 18 December the second accused travelled to Tripoli. He returned on 20 December on the same flight as the first accused. The Crown maintained that the inference to be drawn from this was that on that date the first accused was bringing component parts of the explosive device into Malta, and required the company of the second accused to carry the suitcase through Customs as the second accused was well known to the customs officers who would be unlikely to stop him and search the case. This would be consistent with the evidence of Abdul Majid. Finally the Crown maintained that in order for the suitcase to get past the security checks at Luqa on 21 December and find its way on board KM180, someone would have to organise this who was very well acquainted with the security controls at Luqa and would know how these controls could be circumvented. As someone who had been a station manager for some years, the second accused was ideally fitted for this role. Further, there was a telephone call recorded from the Holiday Inn, where the first accused was staying, to the number of the second accused’s flat at 7.11am on 21 December. The Crown argued that this could be inferred to be a call arranging for the second accused to give the first accused a lift to the airport, and also it could be inferred that the second accused was at the airport from the fact that the first accused received special treatment both at check-in and at immigration control before departing on the LN147 flight to Tripoli.

[85] There is no doubt that the second accused did make the entries in the diary to which we have referred. In the context of the explosive device being placed on KM180 at Luqa in a suitcase which must have had attached to it an interline tag to enable it to pass eventually on to PA103, these entries can easily be seen to have a sinister connotation, particularly in the complete absence of any form of explanation. Counsel for the second accused argued that even if it be accepted that the second accused did obtain tags and did supply them to the first accused, it would be going too far to infer that he was necessarily aware that they were to be used for the purpose of blowing up an aircraft, bearing in mind that the Crown no longer suggest that the second accused was a member of the Libyan Intelligence Service. Had it been necessary to resolve this matter, we would have found it a difficult problem. For the reasons we are about to explain however we do not find it necessary to do so. The Crown attach significance to the visit by the second accused to Tripoli on 18 December 1988 and his return two days later in the company of the first accused. As we have indicated, we cannot accept the evidence of Abdul Majid that he saw the two accused arriving with a suitcase. It follows that there is no evidence that either of them had any luggage, let alone a brown Samsonite suitcase. Whatever else may have been the purpose of the second accused going to Tripoli, it is unlikely that his visit was to hand over tags, as this could easily have been done in Malta. We do not think it proper to draw the inference that the second accused went to Tripoli for the purpose, as the Crown suggested, of escorting the first accused through Customs at Luqa. There is no real foundation for this supposition, and we would regard it as speculation rather than inference. The position on this aspect therefore is that the purpose of the visit by the second accused to Tripoli is simply unknown, and while there may be a substantial element of suspicion, it cannot be elevated beyond the realm of suspicion. The Crown may be well founded in saying that the second accused would be aware of the security arrangements at Luqa, and therefore might have been aware of some way in which these arrangements could be circumvented. The Crown however go further and say that it was the second accused "who was in a position to and did render the final assistance in terms of introduction of the bag by whatever means". There is no evidence in our opinion which can be used to justify this proposition and therefore at best it must be in the realm of speculation. Furthermore, there is the formidable objection that there is no evidence at all to suggest that the second accused was even at Luqa airport on 21 December. There were a number of witnesses who were there that day who knew the second accused well, such as Abdul Majid and Anna Attard, and they were not even asked about the second accused’s presence. The Crown suggestion that the brief telephone call to the second accused’s flat on the morning of 21 December can by a series of inferences lead to the conclusion that he was at the airport is in our opinion wholly speculative. While therefore there may well be a sinister inference to be drawn from the diary entries, we have come to the conclusion that there is insufficient other acceptable evidence to support or confirm such an inference, in particular an inference that the second accused was aware that any assistance he was giving to the first accused was in connection with a plan to destroy an aircraft by the planting of an explosive device. 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.

[86] We now turn to the case against the first accused. We should make it clear at the outset that the entries in the second accused’s diary can form no part of any case against the first accused. The entries fall to be treated as equivalent to a statement made by a co-accused outwith the presence of the first accused. If both accused had been proved by other evidence to have been acting in concert in the commission of the crime libelled, then these entries could perhaps have been used as general evidence in the case as against any person proved to have been acting in concert. As we are of opinion however that it has not been proved that the second accused was a party to this crime, it follows that the normal rule must apply and the entries cannot be used against the first accused. We therefore put that matter entirely out of our minds.

[87] On 15 June 1987 the first accused was issued with a passport with an expiry dof 14 June 1991 by the Libyan passport authority at the request of the ESO who supplied the details to be included. The name on the passport was Ahmed Khalifa Abdusamad. Such a passport was known as a coded passport. There was no evidence as to why this passport was issued to him. It was used by the first accused on a visit to Nigeria in August 1987, returning to Tripoli via Zurich and Malta, travelling at least between Zurich and Tripoli on the same flights as Nassr Ashur who was also travelling on a coded passport. It was also used during 1987 for visits to Ethiopia, Saudi Arabia and Cyprus. The only use of this passport in 1988 was for an overnight visit to Malta on 20/21 December, and it was never used again. On that visit he arrived in Malta on flight KM231 about 5.30pm. He stayed overnight in the Holiday Inn, Sliema, using the name Abdusamad. He left on 21 December on flight LN147, scheduled to leave at 10.20am. 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 when he departed for Prague, returning to Tripoli via Zurich and Malta on 16/17 December.

[88] A major factor in the case against the first accused is the identification evidence of Mr Gauci. For the reasons we have already given, we accept the reliability of Mr Gauci on this matter, while recognising that this is not an unequivocal identification. From his evidence it could be inferred that the first accused was the person who bought the clothing which surrounded the explosive device. 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. If he was the purchaser of this miscellaneous collection of garments, it is not difficult to infer that he must have been aware of the purpose for which they were being bought. We accept the evidence that he was a member of the JSO, occupying posts of fairly high rank. One of these posts was head of airline security, from which it could be inferred that he would be aware at least in general terms of the nature of security precautions at airports from or to which LAA operated. He also appears to have been involved in military procurement. He was involved with Mr Bollier, albeit not specifically in connection with MST timers, and had along with Badri Hassan formed a company which leased premises from MEBO and intended to do business with MEBO. In his interview with Mr Salinger he denied any connection with MEBO, but we do not accept his denial. On 20 December 1988 he entered Malta using his passport in the name of Abdusamad. There is no apparent reason for this visit, so far as the evidence discloses. All that was revealed by acceptable evidence was that the first accused and the second accused together paid a brief visit to the house of Mr Vassallo at some time in the evening, and that the first accused made or attempted to make a phone call to the second accused at 7.11am the following morning. It is possible to infer that this visit under a false name the night before the explosive device was planted at Luqa, followed by his departure for Tripoli the following morning at or about the time the device must have been planted, was a visit connected with the planting of the device. Had there been any innocent explanation for this visit, obviously this inference could not be drawn. The only explanation that appeared in the evidence was contained in his interview with Mr Salinger, when he denied visiting Malta at that time and denied using the name Abdusamad or having had a passport in that name. Again, we do not accept his denial.

[89] 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. However, having considered the whole evidence in the case, including the uncertainties and qualifications, and the submissions of counsel, we are satisfied that the evidence as to the purchase of clothing in Malta, the presence of that clothing in the primary suitcase, the transmission of an item of baggage from Malta to London, the identification of the first accused (albeit not absolute), his movements under a false name at or around the material time, and the other background circumstances such as his association with Mr Bollier and with members of the JSO or Libyan military who purchased MST-13 timers, does fit together to form a real and convincing pattern. There is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused, and accordingly we find him guilty of the remaining charge in the Indictment as amended.

[90] The verdicts returned were by a unanimous decision of the three judges of the Court.

Source: Scottish Court Service