The dock identification of the man convicted of the Lockerbie bombing was carried out in “highly prejudicial” circumstances, a court has heard.
Appeal court judges have been told that at the trial of the late Abdelbaset al-Megrahi, shopkeeper Tony Gauci identified him as resembling the man who bought clothing in his shop – later found in a suitcase containing the bomb.
The bombing of Pan Am flight 103, travelling from London to New York on December 21 1988, killed 270 people in Britain’s largest terrorist atrocity.
Former Libyan intelligence officer Megrahi, who was found guilty in 2001 of mass murder and jailed for life with a minimum term of 27 years, was the only person convicted of the attack.
A third appeal against his conviction began on Tuesday at the High Court in Edinburgh sitting as the Court of Appeal.
She told the court: “The circumstances in which that dock identification was made was highly prejudicial, in my submission.
“The identification was made shortly after he had seen a photograph which he had of course seen before, of an article suggesting that Mr Megrahi may have been the bomber and the court will know that the photograph itself, I think the wording of it is who planted the Lockerbie bomb and underneath there is a photograph of the appellant (Megrahi).
“So I would respectfully submit that in this case the dock identification is virtually of no value.”
Megrahi’s trial was held at a special Scottish court sitting at Camp Zeist in the Netherlands.
Ms Mitchell said that in deciding the matter the trial court does not specifically say that it placed “critical weight” on the identification in the dock but that neither did it expressly take the view that it was not relying on the dock identification.
She said that the dock identification was “something no court could have placed any weight on”.
The court heard that Mr Gauci saw an article about the Lockerbie disaster in the magazine It Torca at the end 1998 or beginning 1999 which featured a photo of Mr Megrahi.
Mr Gauci contacted police in Malta and told them that the man in the photo looked like the man who bought the items in his shop.
The panel of five judges were told that Mr Gauci was shown many photos by police over the years and said that a number of people resembled the man who bought the clothes.
Ms Mitchell said that evidence in relation to identification was of “poor quality” and said that photographs could not give an idea of someone’s build and height.
Judges then granted his son, Ali al-Megrahi, permission to proceed with the appeal in relation to the argument that “no reasonable jury” could have returned the verdict the court did, and on the grounds of non-disclosure of documents by the Crown.
The appeal, which is taking place virtually, began on Tuesday and is being heard before five judges including Lord President Lord Carloway.
Megrahi’s first appeal against his conviction was refused by the High Court in 2002 and was referred back five years later after an SCCRC review.
He abandoned this second appeal in 2009, shortly before his release from prison on compassionate grounds while terminally ill with cancer.
Megrahi returned to Libya and died in 2012.