Thursday, 16 February 2012

Lockerbie, Megrahi and the Scottish Review

[In today’s edition of the Scottish Review two articles on Lockerbie and the Megrahi case are published.  The first is from the pen of the journal’s editor, Kenneth Roy.  It reads in part:]

Here is a case of tragic loss. I mean – a real one.

A young woman, Flora Swire, is looking forward to spending Christmas 1988 with her boyfriend in the United States. She boards Pan Am flight 103 and very soon she is dead. Her father Jim has to make a fuss before he is allowed to see her body. He then, over a period of many years, pursues his own investigations, goes to Libya, prevails upon the colonel to do the decent thing and hand over any suspects.

Two men appear before a panel of Scottish judges at Camp Zeist. At the start of the trial, Dr Swire is convinced of Megrahi's guilt. By the end of it he is equally convinced of his innocence. When the verdict is declared, he faints. To the tragic loss has been added tragic irony.

Just before Christmas, Dr Swire returned to Libya. I had a long chat with him about his visit. He was able to see Megrahi, whom he considers a friend. What passed between them he will not disclose. When he left Megrahi's house Dr Swire was visibly upset. He does not expect to see his friend again.

Tragic loss; tragic irony – and now absolute farce. 

The truth about the Lockerbie prosecution is contained within a long report of the Scottish Criminal Cases Review Commission, whose own painstaking inquiries after the trial pointed to the possibility, putting it no higher, of a miscarriage of justice and the desirability of a further appeal against conviction. This report has never been published. 

The Scottish Government, in the face of sustained pressure to have it published, introduced an enabling bill. A year ago, this magazine warned that the bill was useless; that it would not achieve the desired purpose. This was not a piece of journalistic fancy on our part. It was based on a remarkably frank assessment given to the Scottish Review by no less an authority than the Scottish Criminal Cases Review Commission itself. The commission informed us that the bill would not remove one of the major obstacles to publication: the pre-condition that all the parties concerned must consent to its release.

As a public service, we gave heavy prominence to the commission's statement. The Scottish press evinced not the slightest interest in it. Nor, so far as we know, did anyone else in a position to do anything about it. The disastrous bill went ahead.

It would be relatively simple to make an order removing the consent requirement. Instead the Scottish Government has perversely chosen a legislative strategy which will result in the continued non-publication of the Lockerbie report. 


What does Scotland owe Tony Gauci that we are prepared to go on protecting this man? What does it owe any of the parties?

What do we have to fear from the publication of this report? 

What is the real agenda?

We do ourselves no favours with this obstruction of justice. We are fooling no-one – except possibly ourselves.

Let an order be placed before the Scottish Parliament removing the consent requirement. Let the order be placed and let the report be published. The reputation of Scotland demands no less. 

[The second article The Megrahi case: Smoke and Mirrors is by the secretary of the Justice for Megrahi campaign group, Robert Forrester.  It reads in part:]

At 10am on Tuesday the 7th of February 2012, the Justice for Megrahi (JFM) Committee delegation met before the justice committee of the Scottish Parliament to answer questions regarding their perspective on Part 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill currently under consideration at Holyrood. (...)

it is no secret that the Scottish Government claimed that part 2 of the bill was principally framed with a view to freeing up the Scottish Criminal Cases Review Commission's (SCCRC) statement of reasons for his second appeal for publication.

In 2009, the Scottish Government made a statutory instrument regulating the circumstances in which the material on which the commission reached its conclusions could be published. The wording of the Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009, was such that it rendered any chance of the statement of reasons and the material on which it was based ever reaching the public domain impossible without the express consent of those bodies and/or individuals who had provided evidence, either directly or indirectly, to the commission when putting together the document.

Having blocked publication of the statement of reasons for the entire duration of its first term in office and this first part of its second right up to the present day with this provision, the Scottish Government announced in the run-up to last May's general election in Scotland that it would remedy the situation by placing primary legislation before parliament to finally facilitate publication of the SCCRC document. Primary legislation? Why opt for primary legislation when all that is required is to utilise the simple, relatively cheap, quick and effective expedient of an amending statutory instrument to remove the consent requirement in the 2009 statutory instrument?

Following the government's confirmation of its intention to resort to the cumbersome, time-consuming and expensive process of primary legislation, on 4 August 2011, JFM wrote to the Scottish cabinet secretary for justice, Kenny MacAskill, and put the above question directly to him. The content of his reply was, to put it mildly, less than illuminating. He ended his response by saying:

'... primary legislation is needed to provide the flexibility required to ensure that an appropriate legislative framework is put in place. The proposed legislation will facilitate the release of a statement of reasons in circumstances where an appeal has been abandoned'. (Kenny MacAskill, 24 August 2011). Throughout his letter, however, he signally and studiously failed to address at any stage the question that was put to him.

Quite apart from the legislative process being employed by the government, in the view of JFM and many others, Part 2 of this new bill will be very hard pushed to do what the government claims it has been designed to achieve. The bill under consideration here is so circumscribed by caveats and provisos that it will simply maintain the status quo whereby, under certain circumstances, providers of evidence to the SCCRC will still be in a position to block the publication of the document whilst it contains information which such persons have supplied to the SCCRC.

Indeed, the [Scottish Government] justice directorate confirms this. (...)

In response to repeated questions from the members of the justice committee on 7 February, the JFM delegation referred its questioners to this statement. It is common in legal practice to talk in terms of 'finding the law'. Here it would appear that JFM has indeed found the law. Whether or not sufficient heed is being paid to the legislative references that JFM has made is open to question since we have yet to hear from any MSP, cabinet minister or, for that matter, any respondents to the bill, any specific and cogent argument which establishes that JFM's interpretation of the law is in error. All that seems to be being said is that there is a perceived issue with data protection; however, this perception is not being supported by reference to any contrary interpretation of the law. Under such circumstances, therefore, it is not unreasonable to assume that JFM is right to say that such a conflict is a 'red herring'.

This, of course, would not be the first time that JFM has demonstrated that its understanding of the law is accurate in contrast to its detractors within and without government. The public may recall that following months of claims by the Scottish Government that it did not have the power or remit to open an inquiry into Lockerbie/Zeist, the government had, finally and reluctantly, to accept that its interpretation of the 2005 Inquiries Act was in error and that JFM was correct.

Taking the above into account, it is the position of JFM that there would be no significant obstacle to the publication of the SCCRC's statement of reasons for Mr al-Megrahi's second appeal if the government simply employed secondary legislation to modify the 2009 order in such a manner that the consent requirements were disposed of and part 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill were dropped altogether. Surely, both the precious parliamentary time and taxpayers’ money could be far better utilised by directing them towards the health service, education policy, transport infrastructure and other pressing matters of state rather than wasting them on what is quite patently a bill which is both unnecessary and unlikely to achieve what the government claims it is setting out to do.

None of this is the fault of the justice committee, whose task it is to gather material from respondents, make assessments and present recommendations to government. Nor can parliament as a whole be held responsible. It is even questionable whether one can lay the blame entirely at the feet of the government. The problem here, more likely than not, lies in the unduly powerful influence that the Crown Office, the lord advocate and the civil service have over policy and decision making as it affects this case and other aspects of the law in Scotland today. It is time for both our executive and our legislature to listen much more closely to the advice and opinions of the wider legal profession in our country rather than the narrow self-interest of vested interests closer to hand.

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