7 June 2011
The judges at the trial of Abdelbaset Megrahi said that eyewitness testimony from the shopkeeper Tony Gauci was a highly important element in the case. The value of that testimony may be weakened by other evidence on age and height, mentioned but not discussed at trial.
The present article expands on brief descriptions of the evidence published in December 2010, which are to the author's knowledge the only places where the issues have been mentioned. Mr Gauci told police in September 1989 that the customer was about 50. At trial he said "...under 60...I don't have experience on height or age." The problem appeared to be that Mr Megrahi was only 36.
The trial judges said they had not overlooked the discrepancies. However, there was evidence suggesting the Libyan authorities thought Mr Megrahi looked younger than 36.
Mr Megrahi used, in addition to his regular passport, another issued in 1987 by the Libyan authorities in the name of Abdusamad. The trial transcript records that the birth year given in the Abdusamad passport was 1957. Mr Megrahi's real birth year was 1952.
Unless there was wrong information in the court transcript, or a mistake or lack of care by the Libyan authorities, it would seem that those authorising the passport in a false name thought it was a good idea to say he was five years younger than he really was.
If one purpose of a false identity document is to avoid suspicion, it might be especially incautious to put in details that contradict the holder's appearance.
One reason for giving some significance to the birth date evidence could be that the person(s) making such a judgement might well have done so after consideration, familiarity or both - having available such information as a variety of viewing angles; skin texture; how Mr Megrahi's body looked; how he moved; and how he spoke. Those might have been the kinds of things on which Mr Gauci would reasonably have judged age.
We might think that a plausible arrangement would be for a colleague who knew the person to give the fake details to the issuing authorities.
Similar considerations might be relevant to the question of whether to place faith in this evidence rather than judging the quality of an identification by how close a witness was to the actual age.
Some people do look clearly younger or older than their age. Suppose a witness' description accurately matched the age of the accused, but everyone (perhaps including the witness) thought the accused looked younger. That would not be the best evidence against the accused.
There appears to be no evidence suggesting Mr Megrahi looked old for his age.
It is possible for a person to use disguises, but in this case discrepant evidence was about height, skin colour, and perhaps neck and chest size as well as age. The buyer was described as having black hair, so perhaps the easiest kind of disguising of age was not done.
How likely might we think it was that the date was an oversight or other anomaly? The date 1957 is repeated several times in the transcript, including when the letter requesting the passport is produced.
At the least, no-one seems to have rejected the passport as being unusable due to an implausible birth year; after it was issued in June 1987 Mr Megrahi did use it until December 1988 without it causing serious problems.
For a mistake to have persisted to the point where the passport arrived in Holland, we might think that the requesting agency, and the External Security Organisation through which "coded" (fake name) passports were requested (if that was not the originating agency) and Mr Megrahi himself either did not notice or did not care. So the likelihood of the passport keeping the mistake would appear to be a function of both the likelihood of a mistake and the likelihood of non-correction.
If Mr Megrahi could plausibly pass for somewhere near 50 years old - and remember that Mr Gauci was saying that the buyer was older than himself who was 44 - it seems less likely that 1957 would have been deliberately written in the first place, and less likely that, if written by mistake, it would be left uncorrected.
Even if he plausibly looked 40 in 1987, is it likely that he would have been using a passport with a fake name, bearing in mind the kinds of activities which might have been envisaged for using such a passport, if it said he was 30?
Secondly - and this is presented as a lesser point - Mr Megrahi's height may have been slightly further from Mr Gauci's initial estimate of "about six foot or more" than the judges thought.
The figure accepted in court for Mr Megrahi's height was 5 feet 8 inches, taken from the identity parade in 1999. However, the trial transcript gives his height from both passports (issued in 1986 and 1987) as 1 metre 70, which is less than 5 feet 7 inches.
We might ask whether the person or people measuring the height at the ID parade knew about Mr Gauci's previous evidence about six feet, since they could have been influenced either consciously or unconsciously.
Measurements may vary due to general inaccuracy, and/or be rounded up or down. This particular discrepancy may be a small matter.
Mr Megrahi's expert Professor Valentine, in a report prepared for the second appeal, said that he understood the shopkeeper's own height to be 5 feet 3 inches.
Rounding up and/or down on two occasions, and variation in measurement and posture, could together make for some difference greater or smaller than an inch between the accepted 5' 8" and Mr Megrahi's true height.
If he were really shorter than 5'8", then that would mean he was nearer to Mr Gauci's own height.
Although Mr Gauci said in court that he had no experience of height or age, his varied accounts included such things as the customer coming back to the shop, and Mr Gauci fetching various items. We might conclude that his accounts did imply the two men being in a variety of physical positions relative to each other which would give good clues on whether one was much taller than the other, as well as making that kind of information more reliable than if there had been a very brief meeting.
People might reasonably be expected to judge others' height more accurately when dealing with people closer to their own. A small change in evidence to the effect that Mr Megrahi and Mr Gauci were of closer height than the judges thought, could make it a little less likely that it would be both true that Mr Megrahi bought the clothes, and true that, as in fact happened, Mr Gauci would describe a tall man.
Extracts from trial transcripts and judgement
The prosecution said,
"....these estimates [on age] have to be considered in the light of what happened on the occasion on which he picked out Megrahi in the photo spread. This was the statement of 15 February 1991...He said that the man that he picked out, who was Megrahi, was in his thirties and would have to look about ten years older to be the man who bought the clothes. As at 1988, Megrahi was 38 years old, so that that estimate, in relation to the photograph of Megrahi himself, was rather closer to the actual age of the man."
[trial transcript page 9452]
Mr Megrahi was in fact 36. Mr Gauci's statement on that occasion read in part:
"The first impression I had was that all the photographs were of men younger than the man who had 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 .....I would say that the photograph at number 8 is similar to the man who bought the clothing.....The man in the photograph number 8 is, in my opinion, in his thirty years. He would perhaps have to look about ten 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 number 8 resembles the man who bought the clothing, but it is younger."
The judges said in their Opinion, or judgement:
"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 five foot eight inches. 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." [paragraph 68]
"We have also not overlooked the difficulties in relation to description and height. 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." [paragraph 69]
In court a letter was produced from the the Libyan External Security Organisation requesting the passport in the name of Abdusamad, giving the details to be recorded (transcript page 7787).
Appendix 2: Previous publication of the basic
"....the Abdusamad passport said he was born in 1957 rather than 1952. If that was thought credible, then maybe he looked younger than 36 at the time, and Mr Gauci's initial evidence on age might weigh even more against Mr Megrahi being the purchaser."
"Mr Megrahi's height: At page 4585 [of the trial transcript] it is read from the 1986 passport as being 1 metre 70. That is under 5 foot 7 - so, less than measured at the ID parade and further from the "about six foot or more" mentioned by Mr Gauci to begin with.
One question is - did the person or people measuring the height at the ID parade know about Mr Gauci's evidence about six feet? I realise that measurements may vary and/or be rounded up or down, that the discrepancy may be a small matter and that it may be unfair and unnecessary to mention the possibility of even unconscious communication or influence.
But in any case, if he were really shorter than 5'8" (rounding up and/or down in two instances, and variation in measurement and posture, could together make for some difference greater or smaller than an inch), then that would mean he was nearer to Mr Gauci's own height.
Since people might reasonably be expected to judge height more accurately when dealing with people close to their own height, a small difference could make it appreciably less likely that Mr Gauci would describe a tall man."
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