Crown Office and the SCCRC: Publication of Megrahi miscarriage report

[This is the headline over a news item published this afternoon on the website of Scottish lawyers’ magazine The Firm.  It reads as follows:]

This is the text of the letter from the Lord Advocate to Mr Gerry Sinclair, Chief Executive, Scottish Criminal Cases Review Commission, released to the media this afternoon.

Abdelbaset Ali Mohmed Al Megrahi 
Publication of the Statement of Reasons 

I refer to your recent meeting with my officials at which you discussed once more publication of the Commission’s Statement of Reasons in this case. 

It was agreed that the Crown would undertake a further review of the Statement of Reasons to ensure that there was nothing contained within the document which would affect the ongoing criminal investigating if disclosed. I can confirm that we have concluded that further review and have not identified any issues which would hinder publication by the Commission. 

As you are aware, the Crown has made it clear on a number of occasions that it supports the publication of the Statement of Reasons by the Commission, albeit we also appreciate that there are some legal restrictions which the Commission must consider, some of which the Bill is intended to facilitate, before publication can take place. 

I appreciate that you are aware that as officers of the court, we take our responsibility to protect the confidentiality of the information very seriously. 

You will also be aware of the recent selective and misleading publication of extracts from the Statement of Reasons out of context in the media. 

Clearly the Crown was not responsible for the release of any of that information. 

This highly unsatisfactory situation is not sustainable. 

It has resulted in public criticism of a number of named individuals who have not seen the Statement of Reasons and therefore cannot draw on material that may be found elsewhere in the full document which provides balance to the selections which have been taken out of context. 

We are bound by the confidentiality which attaches to the document and are therefore also prevented from fully correcting the misleading reporting regarding the Crown and others. 

We regard it as inappropriate for any party other than the Commission to publish the Statement of Reasons. We would therefore urge the Commission to conclude its consideration of publication, in connection with the Criminal Cases (Punishment and Review) (Scotland) Bill, as quickly possible. 

As you know we have facilitated your efforts in this direction by responding positively and promptly to all that you have requested from us by way of assistance in removing any perceived barriers to publication. 

Further in this connection, we have of course considered the general offence of disclosure in section 194J of the Criminal Procedure (Scotland) Act 1995 which applies to current and former employees and members of the commission. We recognise that the Bill which is before the Scottish Parliament provides an additional exception from the prohibition against disclosure in section 194J. 

In the exceptional circumstances of this case and in recognition that the public interest is not served by selective and misleading reporting of the Statement of Reasons, we would wish to ensure that it can be made clear that the offence in section 194J is not perceived as a barrier to publication. Accordingly I am providing this written verification to you of the fact that it would not be in the public interest for any current member or employee of the Commission to be prosecuted in terms of section 194J of the Criminal Procedure (Scotland) Act 1995 in connection with any official publication of the Statement of Reasons. For the avoidance of any doubt, this decision does not apply to the appendices or any of the source material held by the Commission. [RB: Of course, the appendices and source material are just as important as, or more important than, the conclusions that the SCCRC drew from them.]

Contemporaneous statement from Kenny MacAskill:

"The Lord Advocate’s letter is a very good development, and hopefully a significant step forward in achieving publication of the SCCRC report – we are doing everything we can to enable publication of the report, as it is the Scottish Government’s aim that the statement of reasons is in the public domain as soon as possible. Recent media reports based on selective sections of the statement of reasons make it imperative that everyone is in a position to see the report in full.

"It is ultimately for the SCCRC to consider and be satisfied that they can comply with data protection legislation and we understand they are now doing so. Scottish ministers are clear that we want this report in the public domain." 


[A report on the BBC News website can be read here.]