A tale of two governments

[This is the headline over an article published today on John Ashton’s website Megrahi: You are my Jury.  It reads as follows:]

On this, the 24th anniversary of the Lockerbie bombing, comes a remarkable story, courtesy of the BBC. It carries the encouraging headline Lockerbie bombing: Libyan government set to release files. The first sentence reads: ‘The new Libyan government in Tripoli is prepared to open all files relating to the Lockerbie bombing, the country’s ambassador to the UK has confirmed.’ 

There’s nothing especially new here: the Libyan government, and the National Transitional Council before it, have always made the right noises about cooperating with the Scottish police investigation. It’s the next sentence that is so surprising: ‘However, Mahmud Nacua said it would be at least another year before Libya was in a position to release whatever information it holds.’ The article explains:‘Mr Nacua told the BBC no formal agreement had yet been reached, but that Libya would open the files it holds on the case. He said that would only come when his government had fully established security and stability – a process he believes will take at least a year.’

Of course, the new government has to establish security and stability and, of course, it has other pressing priorities, but in a year’s time it will be almost two and a half years since the old regime fell. Locating and handing over whatever files exist should be a relatively quick and straightforward matter, which should not interfere with the nation building process.

Why, then, is the government stalling? In my view, the most likely explanation is that it has no evidence that the old regime was behind the bombing. If ever there was evidence, it would probably have been shredded a long time ago. I believe it’s rather more likely that there never was such evidence. While I doubt anyone in the new government will be prepared to say this publicly, there are plenty of senior officials who are aware that the case against Abdelbaset al-Megrahi was a sham (and, of course, as things stand, the case against Abdelbaset is the case against the Gadafy regime).

The new government is potentially in a very awkward position, as during the 2011 revolution the NTC played the Lockerbie card in the propaganda war against Gadafy. It would be very difficult for it to now admit that it had no evidence of the old regime’s involvement. And it would be especially embarrassing for former NTC chair Mustafa Abdel Jalil, who claimed to have proof that the dictator ordered the bombing. (It’s worth remembering that when pressed on BBC Newsnight about the evidence, the best he could come up with was that Gadafy’s government had paid Abdelbaset’s legal bills, a fact that was both widely known and, more importantly, completely non-incriminating. I have written more about Jalil’s and other Gadafy regime defectors’ claims here.)

That said, I have a good deal of sympathy with the Libyan government, which is caught in the middle of a mess that, for the most part, is not of its own making. I cannot say the same of the Scottish government, which continues to dig an ever-deeper hole for itself. The latest shovel load comes in a letter I received yesterday from the criminal law and licensing division of the government’s justice directorate, in response to a freedom of information request.

I made the request to get to the bottom of why the government has repeatedly gone out of its way to say that it does not doubt the safety of Abdelbaset’s conviction, even after the publication of the SCCRC’s statement of reasons, which, lest we forget, found six possible grounds for a miscarriage of justice. In response to my original request, the government confirmed that the justice secretary, Kenny McAskill, had read the statement of reasons and that Alex Salmond was provided with a briefing on its contents. You can read the response and the appended documents here. It contained the following statement:

It might be helpful for me to clarify Scottish Ministers’ position concerning the safety of Mr Al-Megrahi’s conviction. Scottish Ministers have stated repeatedly their view that as Mr Al-Megrahi was conyicted in a court of law, that a court remains the only appropriate forum for considering the evidence and determining his guilt or innocence. Following consideration of all relevant matters, only a court has the power to either uphold or overturn Mr Al-Megrahi’s conviction. It remains open for relatives of Mr Al-Megrahi or, potentially, relatives of the Lockerbie bombing victims, to ask the Scottish Criminal Cases Review Commission to refer the case to the court for a further appeal and Ministers have made clear they would be comfortable if this were to happen.

This prompted me to write back as follows:

Your letter points out that the government has stated that a court remains the only appropriate forum for considering the evidence and determining Mr Megrahi’s guilt or innocence. While this is true, it is also the case that the government has repeatedly stated that it does not doubt the safety of Mr Megrahi’s conviction. It is very unusual for a government to take a partisan stance on a conviction that has been referred to the appeal court. This issue was at the heart of my information request, yet is not addressed in your letter.

I would therefore like to know:
1) Why did the government consider it necessary to express the view that it did not doubt the safety of Mr Megrahi’s conviction, rather than simply stating that it was for the courts to determine the safety of the conviction?
2) Why did it consider it necessary to publicly hold to that view after the publication of the statement of reasons and the reading of the statement by Mr MacAskill?
3) Why does Mr MacAskill not doubt the safety of the conviction when the SCCRC found six grounds to doubt its safety?

In yesterday’s letter, which you can read here, the government could offer only the following shameful dissembling response:

As you will be aware, it is not a role of the Scottish Government to investigate allegations that there has been a miscarriage of justice. Any person who alleges that they have been a victim of a miscarriage of justice may apply to the SCCRC, which was established in 1999 to review cases where it is alleged that a miscarriage of justice has occurred, either in respect of a conviction or sentence. Where, following investigation, the SCCRC concludes that a miscarriage of justice may have occurred and that it is in the interests of justice to do so, it will refer the case to the High Court for determination. Mr Al-Megrahi, as you know, chose to abandon his appeal before it was determined by the High Court.

In general terms, in the absence of any court decision quashing a person’s conviction, it would not be appropriate for the Scottish Government to call into question the safety of any conviction which is why it was appropriate for the Scottish Government to state that it did not doubt Mr Al-Megrahi’s conviction as the conviction was at the time of such statements (and indeed continues to be) a matter of court record. We have also made clear that a court remains the only appropriate forum for determining Mr Al-Megrahi’s guilt or innocence and explained the process by which a further appeal could be heard by the court in this case.

This begs the question, if it would be inappropriate for the government to call into question the safety of the conviction, why does it consider it appropriate to state that it does not doubt the safety of the conviction? There is a world of difference between it saying that Abdelbaset’s conviction was a matter of court record, and it saying that it does not doubt the safety of the conviction. The former is a neutral statement of fact, whereas the latter is a highly contentious opinion, which, in my view, represents political interference in the appeal process (although Abdelbaset abandoned his appeal, as the government well knows, his family might launch a fresh application to the SCCRC).

Why did the Scottish government decide to nail its colours to the prosecution mast? In my view it’s because it daren’t admit that Scotland’s foremost independent institution, its criminal justice system (the prosecution arm of which is headed by McAskill’s cabinet colleague, the Lord Advocate), made a hash of the UK’s biggest ever murder case.