The Sunday Herald today publishes the full 800-page report detailing why the man convicted of the Lockerbie bombing could have walked free.
The controversial report from the Scottish Criminal Cases Review Commission (SCCRC) has remained secret for five years because, until now, no-one had permission to publish it.
The Sunday Herald and its sister paper, The Herald, are the only newspapers in the world to have seen the report. We choose to publish it because we have the permission of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, and because we believe it is in the public interest to disseminate the whole document.
The Sunday Herald has chosen to publish the full report online today to allow the public to see for themselves the analysis of the evidence which could have resulted in the acquittal of Megrahi. Under Section 32 of the Data Protection Act, journalists can publish in the public interest. We have made very few redactions to protect the names of confidential sources and private information.
The publication of the report adds weight to calls for a full public inquiry into the atrocity – something for which many of the relatives have been campaigning for more than two decades.
Megrahi has also sent a copy of the full report to Justice Secretary Kenny MacAskill, who released him on compassionate grounds in August 2009.
Jonathan Mitchell QC told the Sunday Herald: “From a data-protection point of view, it is questionable whether this report is the ‘personal data’ of anyone other than Megrahi.”
The Data Protection Act was described as “one of the most poorly drafted pieces of legislation on the statute book” by Tom Hickman, a barrister at Blackstone Chambers, on a UK Constitutional Law Group website.
Mitchell believes the Sunday Herald is not constrained from publishing the report. He said: ‘‘Section 32 of the Data Protection Act has the effect – putting it shortly – that processing (which includes publication) of personal data, even sensitive personal data, is exempt from the relevant data-protection principles if it is for the purpose of journalism and the newspaper reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, ‘publication would be in the public interest’, and also reasonably believes that compliance with data-protection principles such as non-disclosure would be incompatible with the journalistic function.”
The Herald revealed earlier this month that, according to the report, the Crown failed to disclose seven key items of evidence that led to the Lockerbie case being referred back for a fresh appeal.
The SCCRC rejected many of the defence submissions but upheld six grounds which could have constituted a miscarriage of justice.
The commission made clear that, had such information been shared with the defence, the result of the trial could have been different.
Its full report details why the conviction of Megrahi was referred for a second appeal.
Megrahi has said in his official biography by John Ashton, Megrahi: You Are My Jury, that he believed dropping the second appeal would improve his chances of returning to Tripoli before succumbing to terminal prostate cancer.
The Scottish Government has said it wants to release the document in the interests of transparency but cannot do so because it is covered by data-protection law, reserved to Westminster.
First Minister Alex Salmond said: "It is important that everyone is able to read the SCCRC report in its entirely, rather than the selective and partial accounts of its contents which have made their way into the poubic domain through various media reports."
When the SCCRC referred the case back for a fresh appeal in June 2007, they were only able to publish a summary of their findings. If they had published the full report, it would have constituted a criminal offence under the legislation which established the commission.
But on Friday the Crown Office in Scotland wrote to the SCCRC making it clear it would not prosecute the organisation or any of its members if it published the report.The Crown office lifted legal restrictions just hours after the Sunday Herald had informed its press office we planned to publish the report ourselves.
[An editorial in the Sunday Herald under the headline The lessons of the secret Megrahi report contains the following:]
Today we publish on our website (…) the controversial report by the Scottish Criminal Cases Review Commission (SCCRC) which casts doubt on both the fairness of the trial of Abdelbaset Ali Mohmed al Megrahi and the guilty verdict it passed.
There is no shortage of parties eager to put on record their view that this report should be in the public domain.
The Crown Office has allowed the SCCRC to publish the report without fear of prosecution. The Scottish Government and the First Minister have strongly stated they want the report published. And the SCCRC has long been in favour of publication.
And yet it has remained secret for five years, until today.
There is a clear public interest in making the report available. The public has a right to know the nature of the SCCRC reservations and why it reached its conclusions.
Of course, publication of the report will not clear up the very many questions which remain unanswered in the wake of the Lockerbie atrocity.
As the Crown Office points out, the conviction can only be quashed in a court of law and there is at present no appeal in process.
But publication of the report inevitably makes the conviction seem less secure and casts doubt over the manner in which the Crown undertook the prosecution.
It also throws up interesting questions as to why the report has not been published before and about the role of the press in a free society.
One is the nature of data protection legislation, which has been continually cited as a block on disclosure. There are justified fears that this legislation is preventing the work of a free press.
The role of newspapers in publishing information contained in the SCCRC report and, today, publishing the report itself, is a strong argument against moves to limit the effectiveness of journalists being discussed in the wake of the Leveson inquiry into phone hacking. The media needs to make two points.
The first is that journalists who break the law should be prosecuted and punished in accordance with that law. The second is that a free press is essential to a functioning democracy. Without it we would not know of the MPs' expenses scandal; we would not know that the justifications for the war against Iraq were lies; we would not even have known about phone hacking itself.And we would still be waiting, after five years of silence, to learn the exact nature of the doubts over the trial and conviction of the man accused of the biggest terrorist atrocity ever committed in this country.
[A report on the BBC News website on the publication of the Statement of Reasons can be read here; and a post by David Macadam on his blog The Oligarch Kings can be read here. I refer to the latter not merely for its general good sense but for the following passage:]
They, the establishment in Scotland, the lawyers, judiciary, bar and politicians of all parties (for political Scotland is also small and clannish) then set about systematically ensuring that this embarrassment would never come out. Far better the establishment felt that Megrahi rot in jail than their deficiencies be exposed.
Luckily not everyone felt that way and through campaigning journalists and luminary legal experts such as Professor Bob Black, whose blog is the fount of all sense in this case, the pressure was maintained.