Sunday 6 September 2009

MacAskill under pressure to release Megrahi appeal files

[This is the headline over an article in today's edition of The Sunday Herald. It reads in part:]

Kenny MacAskill is under growing pressure to order the release of secret files which cast doubt on the conviction of the Lockerbie bomber. The justice secretary has the legal power to force the disclosure of material held by the Scottish Criminal Cases Review Commission (SCCRC) into the trial of Abdelbaset Ali Mohmed al-Megrahi, the Sunday Herald has learned.

Last night, Jean Couper, chairwoman of the SCCRC, confirmed the law which established the Commission allowed MacAskill to disclose hitherto confidential papers.

Professor Robert Black, a campaigner for greater openness on the case, said there was no excuse for MacAskill to hold back. The call coincides with fresh revelations about Alex Salmond's links to Qatar, the oil-rich Gulf state which lobbied for Megrahi's release.

Release of the SCCRC files could prove highly embarrassing for the Scottish legal system, which prides itself on the conduct of Megrahi's trial under Scots law at Camp Zeist in the Netherlands in 2000 and 2001. (...)

After a three-year investigation into the case, the SCCRC produced an 800-page confidential report with 13 volumes of appendices in 2007, which identified six grounds for believing Megrahi may have suffered a miscarriage of justice.

Only a 14-page summary was made public, but even that raised strong doubts about the reliability of the key eyewitness against Megrahi.

The full report was later used by Megrahi to lodge a second appeal against his conviction - his first was refused in 2002 - and some of the contents were due to be aired in the Court of Appeal later this year and next.

When Megrahi, terminally ill with cancer, dropped his appeal before his return to Libya on compassionate grounds last month, it seemed the SCCRC findings would remain secret. (...)

Under the Crime and Punishment (Scotland) Act 1997, material can be disclosed "in any circumstances permitted by an order made by the Secretary of State" using a simple piece of legislation called a statutory instrument.

Since devolution, the power has passed to the justice secretary. (...)

Black, of Edinburgh University Law School, said he had been unaware of the power, but there was no reason for MacAskill not to use it.

"You have a responsible independent body saying, In our view there may have been a miscarriage of justice'. I don't think you can overlook that."

[The actual statutory provision, as amended when the Scotland Act 1998 came into force, takes the form of a new section introduced by the 1997 Act into the Criminal Procedure (Scotland) Act 1995. It reads as follows:

'194K Exceptions from obligations of non-disclosure

(1) The disclosure of information, or the authorisation of the disclosure of information, is excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed —


(f) in any circumstances in which the disclosure of information is permitted by an order made by the [Scottish Ministers].


(5) The power to make an order under subsection (1)(f) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of [the Scottish] Parliament.']


  1. Subsection (5) of the 1997 Act appears to mean that Justice Secretary, Kenny MacAskill, may decide to release the SCCRC documents by means of a Statutory Instrument (SI), but he could be overruled by a vote in the Scottish Parliament annulling the SI.

  2. Patrick Haseldine's interpretation is correct.

    But there is a further serious problem. At least one (and perhaps two) of the grounds upon which the SCCRC found that Abdelbaset Megrahi's conviction might have constituted a miscarriage of justice involve documents in respect of which the UK Foreign Secretary has asserted public interest immunity (see and in respect of which the Criminal Appeal Court appointed a special, security-vetted, advocate (see rather than allowing Megrahi and his legal team access to them.

    Could, would or should the Scottish Ministers order disclosure to the general public of material that the UK Government claims should be exempt from disclosure "in the national interest" and that a Scottish court declined to order should be disclosed to the convicted man himself or his lawyers?