We need an open mind and a fresh start at the Crown Office

[This is the heading over an article in the online edition of the Scottish Review by its editor, Kenneth Roy. It reads in part:]

There is nothing to deplore
Part of the job of the Lord Advocate under the devolved settlement is to give legal advice to the Scottish Government; at the same time she is the chief prosecutor of Scotland, responsible for bringing the most serious charges to court. There has always been an inherent dichotomy between these two roles. How can the public prosecutor, committed to the pursuit of conviction, offer ministers impartial legal advice? The long years of the Lockerbie case have made this balancing act almost impossible. Lockerbie was big politics when Alex Salmond 'de-politicised' the post of Lord Advocate; it is bigger politics now; it is likely to remain a huge and troubling issue.

There is a suggestion that Elish Angiolini was not fully consulted, if she was consulted at all, about the justice secretary's decision to release the man convicted of the Lockerbie bombing – loosely described by the BBC and others as 'the bomber' – on compassionate grounds. Perhaps she feels aggrieved. Perhaps she is entitled to feel aggrieved. Whatever the explanation, last weekend she made a statement which indicated a loss of composure. She said she 'deplored' the attempt by Megrahi to challenge his conviction by releasing on the internet the papers he would have used in his abandoned appeal.

What is there to deplore? The case, from the point of view of the person whose behaviour is being deplored, is clear enough. He is in pain. He has been in prison for eight years. He says that he is the victim of a miscarriage of justice. He says that he is innocent of the crimes for which he has been convicted. He says that he has treated the judiciary of the country of his imprisonment with courtesy and respect at all times. But now, at the age of 57, he is dying. Who can tell when? Only God knows; or, in the absence of God, no one. The little gods of the media demand no less; within three months at that. His death will occur soon enough no doubt, with or without journalistic temptations of providence. He wishes to clear his name while there is still a little time left. That much should be understandable to any fully paid-up member of the human race.

The Lord Advocate declares that the appropriate forum for innocence or guilt to be decided is a court of law, and that it was Megrahi's decision to withdraw from the legal determination of his case. This claim ignores two realities of the situation. First, there have been too many grave miscarriages of justice in this country for the authority of the judicial system ever to be completely trusted. Earlier this week it was announced that, in the light of the release of Sean Hodgson after 27 years in jail for a crime he did not commit, DNA evidence having proved that he could not have committed it, no fewer than 240 murder and rape convictions are now being 'reviewed' in England and Wales. Second, the failure of Megrahi's appeal against conviction to be heard is not his fault, but the result of a succession of official delays which have never been satisfactorily explained.

Yet, audaciously, the Lord Advocate suggests that, in dropping the appeal, he has made his subsequent action deplorable. Consider the position in which he finds himself. He wishes to return to his own country, to his family, as any of us would wish to do. He believes that dropping the appeal will hasten this outcome. He drops the appeal. He achieves the desired outcome. But still he is anxious to tell the world what he would have said if the long-delayed hearing had ever gone ahead.

All this is simple humanity. It is how any of us might choose to defend the integrity of our life as it comes to an end. It is basic stuff. But I agree that it is essentially an emotional response, in the same way that Mrs Angiolini reached for a word of feeling, the word 'deplore'.

As it happens, however, it is not just simple humanity. It is not just basic stuff. The dying man's entitlement to do what he did last week is actually enshrined in a piece of legislation called the Human Rights Act 1998. Mrs Angiolini is more familiar with this act than most of us. In 1997, she ceased for a while to be a prosecutor in the criminal courts and joined the Crown Office as head of policy. One of her responsibilities was to prepare her department for the introduction of the Human Rights Act 1998. I imagine that, a brief 11 years later, she will not have forgotten what it says.

She will not have forgotten, for example, Article 10 on free expression. Free expression, to which you and I have a human right, is defined in the legislation as the holding of views or opinions, the speaking of them aloud or their publication in articles or books or leaflets, or the broadcasting of them on television or radio, or their communication through the internet. Under Article 10, you and I may use language which others find offensive or shocking, so long as we are not doing so in a racial or ethnic context. This means that, although you and I may find the Lord Advocate's use of language last Friday slightly offensive, she is perfectly entitled to use such language. But the dying man is equally entitled to express his opinions and the law specifically permits him to use the internet as a medium for doing so.

Since, then, the dying man is exercising his legal entitlement under the Human Rights Act 1998, I must put the question again: what is there to deplore? The use of the word tells us more about the Lord Advocate than it does about the case. It is possible that Mrs Angiolini is so exasperated by the constant questioning of the Crown Office's motives and conduct during her years as Solicitor General (2001-06) and Lord Advocate (since 2006) that she could restrain herself no longer. The questioning, however, continues; it will not go away. An essay in the current edition of the London Review of Books by her fellow solicitor, Gareth Peirce, concludes after a devastating forensic deconstruction of the Lockerbie prosecution that there has been 'a form of death in this case – the death of justice'. Such perceptions do serious damage. What follows 'the death of justice'? From Mrs Angiolini or her successor we should hear no more talk of deploring. We need an open mind, a fresh start, a spirit of humility. But beyond that, a structural change is required. It is time to separate the two functions of the office of Lord Advocate, disempowering the holder of the office from any responsibility for public prosecutions. This change has long been mooted; it has become overdue. If it is too late to save the reputation of Megrahi, it should not be too late to save the reputation of Scottish justice.