An epistolary exchange (continued)

[On 6 September 2011 this blog featured a three-item correspondence between barrister and author David Wolchover and the Scottish Government under the heading An epistolary exchange. Here are two further items:]

4.  28 September 2011

Dear Mr Wolchover
‘Thank you for your further e-mails of 2 September and 12 September regarding earlier correspondence on the conviction of Abdelbaset Ali Mohmed al-Megrahi.

As we made clear in our earlier reply and you quoted in yours, "An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case."

This should be taken to mean exactly what it says. The Scottish Government does not doubt the conviction of Mr al-Megrahi.

Insofar as Ministers have ever had a duty in respect of possible miscarriages of justice, that responsibility passed in 1999 to the Scottish Criminal Cases Review Commission. This development has been widely welcomed both for further removing Ministers from involvement in the decisions of the criminal courts and for allowing greater scrutiny of cases than was formerly possible. Since its inception the SCCRC has referred over 100 cases, including that of Mr al-Megrahi, to the High Court.

Thank you for writing to us with your views.’

Lockerbie Team
Scottish Government

5.  29 September 2011

Dear Mr [...]

I thank you for your message. It is gratifying to discover that it took a feature article by me in that internationally renowned weekly, the Jewish Chronicle - an article which has "gone viral" on the internet - to elicit a response to letters which I was led to suspect were deliberately and therefore discourteously going unanswered in the belief that I would not bother to pursue the correspondence. How wrong you would have been! In fact I was in the process of drafting a further chaser (by way of capitalising on the article) when your message came in and I note with some surprise that you make no mention of the article, as if your response was a pure coincidence.

It is with some justice therefore that I described the Scottish Government's position as "stonewalling." 

I do not wish to get caught up in semantics but I am afraid that I am bound to disagree with the implications of your reasoning.

With respect, contrary to what you aver the admittedly defensible (if pusillanimous) position that "[i]t would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case" does not equate to the statement that the Government "does not doubt the conviction of Mr al-Megrahi." 

Incidentally, I think you meant "the safety of Mr al-Megrahi's conviction." Few doubt he was convicted.

As I pointed out in my previous letter, there is a principled difference between on the one hand the executive studiously regarding itself as constitutionally debarred from making a public judgment on a judicial decision (whether to agree or disagree) and on the other hand collectively making a positive avowal of agreement with it. The statement "I do not doubt" a certain proposition unequivocally expresses a value judgment. 

However, I concede the possibility that such judgment may be arrived at either by a personal consideration of the facts or vicariously. Thus, you (and the unidentified earlier spokesperson/correspondent) may have been meaning to imply that the government have adopted the following position: "We as a cabinet implicitly trust the opinion of the judges on this matter. They have asserted such and such is the case, and by reason of our absolute confidence in their authority, expertise and wisdom we do not doubt they are right though we have not studied the facts ourselves."

So I modify my original questions to you. 

1. Have the cabinet considered the facts of the case in depth?

2. If not, have they collectively resolved to express a vicarious confidence in the judges' decision?

3. If the latter, when was that determination made?

4. If they have not made such a resolution was the decision to pronounce confidence in the verdict made on behalf of the government by certain cabinet members (eg the First Minister, the Minister of Justice, the Lord Advocate) without consulting the rest of the cabinet? 

5. Was there any discussion over the question whether to go beyond simply stating that it was not the cabinet's place to make a value judgment on the merits?

6. If the decision to pronounce confidence in the verdict was made by the cabinet collectively was there nonetheless any dissent?

Please forgive my inquisitiveness, but the destruction of Pan Am 103 is a matter of such considerable international importance and the trial verdict now so controversial, if not widely discredited, that it is surely right to seek an account of the process by which the Government of Scotland came to make a pronouncement of confidence in the verdict.
 

Perhaps when the Libyan National Transitional Council becomes a little more confident it will no longer feel the need to kowtow to official Scottish amour propre and may begin to apply the sort of pressures to which I referred in my article.

David Wolchover