[The second part of Kenneth Roy's essay in the Scottish Review on the scandal of the Megrahi conviction has now been published. Part 1 can be read here. Part 2 reads as follows:]
Revealed: the fatal flaw that will go on obscuring the truth about Lockerbie
This week's political gamesmanship on the circumstances of Megrahi's release is a distraction from the main question – whether he should have been convicted and imprisoned in the first place. Only the publication of the Scottish Criminal Cases Review Commission's massive report on the case can determine the strength of the possibility that there was a colossal miscarriage of justice. Will this report ever be made public?
The last week has seen some remarkable developments with SR at the heart of them.
After part 1 of 'The Megrahi Scandal' in this magazine last week, the Scottish government issued a statement: "We have always been as open and transparent as possible which is why, following the announcement last December that the Scottish Criminal Cases Review Commission has been unable to secure the necessary consents to release its statement of reasons in the Megrahi case due to the constraints of the current legislation, we now intend to bring forward legislation to overcome the problems presented by the current consent provision.
"This will allow the Scottish Criminal Cases Review Commission to publish a statement of reasons in cases where an appeal is abandoned, subject of course to legal restrictions applying to the commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities."
A bit of background may be helpful. A year ago this month, on the initiative of the Scottish ministers, a new order came into force. Before then, it would have been a criminal offence for the commission to publish information provided to it in the course of an investigation. The new order removed that restriction. The justice secretary Kenny MacAskill said at the time that the order allowed the commission to disclose information it holds; according to Mr MacAskill it was up to the commission to decide what, if anything, it released.
This was an over-simplification of the position. The commission's chief executive, Gerard Sinclair, pointed out that the order only permits the disclosure of such information with the consent of those who have, directly or indirectly, provided the information.
For nine months, Mr Sinclair attempted to obtain that consent from the main parties involved – including the Crown Office, the Foreign Office, the police, Megrahi himself. 'It became obvious,' he said, 'that there was no likelihood of obtaining the unqualified consent required.'
Late last year, the commission's board decided to discontinue the discussions. But it added a potentially significant rider: 'The commission will be happy to revisit this matter if the order is varied and the requirement to obtain the consent of parties is removed.'
It is now 22 years since the Lockerbie disaster. It is now 10 years since the trial in the Netherlands produced a conviction for Megrahi that is widely believed to be suspect, if not downright unsafe.
Why did the Scottish government not act on this suggestion? Why did it, instead, decide to embark on the more cumbersome and time-consuming route of primary legislation? Professor Robert Black QC, the Lockerbie authority, told an audience in Glasgow a few weeks ago of his suspicion that the decision to legislate was simply another delaying tactic by the Scottish government. To vary the order, removing the requirement to obtain the consent of the parties, would take very little time. How long will legislation take? I asked the Scottish government. It replied that there is, as yet, no timetable.
Meanwhile, it is worth re-visiting the exact terms of the statement issued to SR. When I read it a second time, alarm bells started to ring. The qualifications seemed more than a little restrictive... "subject of course to legal restrictions applying to the commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities."
Thoroughly perplexed by this stage, I decided to seek an opinion from the commission itself. I emailed Gerard Sinclair and asked him to confirm that he agrees with the Scottish government's view that the primary legislation, when it is eventually enacted, will enable the full statement of reasons to be published at last.
His answer to this SR inquiry was commendably frank.
He does not necessarily agree that the new law will clear the way for publication of the report. It seems I was right to be concerned about the Scottish government's list of qualifications. In Mr Sinclair's opinion, there is so much sensitive personal information in the report that the requirements of data protection law may well prevent its publication.
I then contacted Robert Black in South Africa. He told me that, if the Scottish government tries to empower the commission by an Act of the Scottish Parliament, 'it may well be' that data protection restrictions will continue to apply. In contrast, the Criminal Procedure Act of the UK parliament allows data protection considerations to be over-ridden.
Could the situation be any more bizarre than this? It is now 22 years since the Lockerbie disaster. It is now 10 years since the trial in the Netherlands produced a conviction for Megrahi that is widely believed to be suspect, if not downright unsafe. It is now three years since the unpublished report of the Scottish Criminal Cases Review Commission which concluded that there were six grounds for believing that a miscarriage of justice may have occurred. It is now almost 18 months since Megrahi dropped his second appeal and was sent home to die.
Yet it seems from all SR has been able to establish in the last week that we are no nearer to getting at the truth.
[It is my view that the Scottish Government is manufacturing difficulties where none need exist. Why? The simple answer is that the Scottish Government's legal advisers (if not the Scottish Ministers) are only too well aware of how much damage they themselves would suffer if the Lockerbie can of worms were allowed to be opened.]