[What follows is the text of a press release issued today by the Scottish Criminal Cases Review Commission.]
The Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009.
The Commission announced today that it had been unsuccessful in its attempts to reach agreement with the relevant parties to obtain their consent to the publication of the Statement of Reasons relating to the referral of the case of Abdelbaset Ali Mohmed Al Megrahi in June 2007.
The Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009, which came into force on 1 February 2010, only permits the Commission to disclose such information with the consent of those who have, either directly or indirectly, provided the information.
The Commission had agreed, in principle, that it would be prepared to consider the release and publication of the Statement of Reasons which were provided to the Appeal Court in Mr Megrahi`s case provided it could obtain the consent of the relevant parties.
Gerard Sinclair, the Commission’s Chief Executive, said:
“As I indicated at the time the above Order came into force, in order to release our Statement of Reasons the Commission would require the consent of those who had, either directly or indirectly, provided the information.
"Over the last nine months I have been in ongoing correspondence and, in some instances, discussion with a number of the main parties who were responsible, either directly or indirectly, for providing information to the Commission. I asked them if they were prepared to provide their consent, in writing, to the disclosure of the information contained within our Statement of Reasons. This included Crown Office, the Foreign Office, the relevant police authorities, as well as Mr Al Megrahi and his legal representatives.
"It has become obvious that there is no likelihood of obtaining the unqualified consent required in terms of the 2009 Order, and consequently the Board decided at its last meeting to discontinue the discussions at this time.
"The Commission will be happy to revisit this matter if the 2009 Order is varied and the requirement to obtain the consent of parties is removed.”
[As Mr Sinclair correctly indicates in the last sentence of his statement, the condition in the 2009 Order that the consent of suppliers of information had to be obtained is one which the Scottish Government in making the Order was under no legal obligation to impose. It CHOSE to do so -- one wonders why. Pressure should now be applied on the Scottish Government to vary the Order by removing this superfluous requirement.
The relevant portions of the primary legislation [Criminal Procedure (Scotland) Act 1995, as amended] under which the 2009 Order was made read as follows:]
194K Exceptions from obligation of non-disclosure
(1) The disclosure of information ... is excepted from section 194J [Offence of disclosure] of this Act by this section if the information is disclosed ... --
(f) in any circumstances in which the disclosure of information is permitted by an order made by the Scottish Ministers.
(4) Where the disclosure of information is excepted from section 194J of this Act by subsection (1) ... above, the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.
[The Scottish lawyers' magazine The Firm has just posted a report on this matter on its website.
The Scottish Government has issued the following statement:]
The Scottish Government welcomes the efforts made by the Scottish Criminal Cases Review Commission to secure the necessary consents to release its statement of reasons in the Megrahi case and has accepted that release has not been possible within the constraints of the current legislation. The Scottish Government has always wanted to be as open and transparent as possible, and so is now considering primary legislation to overcome the problems presented by the current consent provisions while retaining the necessary protection for any third parties potentially affected by the statement of reasons.
[As I have stated above, primary legislation is not necessary. All that is required is a further Statutory Instrument amending the 2009 Order. Is the Scottish Government resorting to delaying tactics in proposing primary legislation? Perish the thought!]