[At its meeting on 21 April 2015 the Scottish Parliament’s Justice Committee resolved to write to the Lord Advocate enquiring how the Crown Office proposed to deal with the forthcoming Police Scotland report on Justice for Megrahi’s allegations of criminal misconduct on the part of police officers, prosecutors and Crown forensic scientists in the Lockerbie investigation, prosecution and trial. This arose out of the suggestion made on this blog that a special prosecutor or independent counsel might be required, in the light of the Lord Advocate’s publicly expressed views about the merits of JFM’s allegations and the character of JFM members.
The Lord Advocate replied to the committee’s inquiry in a letter dated 8 May: “I had anticipated this as a potential issue some time ago given my involvement in the investigation and the nature of the allegations which have been made. Arrangements were therefore put in place for an independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.”
JFM’s response to the Lord Advocate’s letter has now been posted on the Justice Committee’s website. It reads as follows:]
The Lord Advocate replied to the committee’s inquiry in a letter dated 8 May: “I had anticipated this as a potential issue some time ago given my involvement in the investigation and the nature of the allegations which have been made. Arrangements were therefore put in place for an independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.”
JFM’s response to the Lord Advocate’s letter has now been posted on the Justice Committee’s website. It reads as follows:]
Following the Lord Advocate’s 8th May response to the 28th April letter from the Convener of the Scottish Parliament Justice Committee, the Committee of Justice for Megrahi (JFM) wishes to make the following observations.
If the Lord Advocate is proposing a Crown Office advocate depute as an independent prosecutor to consider any Police Scotland report stemming from the investigation of JFM’s 9 allegations of criminality, known as Operation Sandwood, such a proposal falls well short of JFM’s concept of an independent, unbiased and constitutionally sound approach.
1. JFM has on several occasions drawn the attention of the Justice Committee to the unprecedented, highly irresponsible and prejudicial public outbursts in which both the Lord Advocate and the Crown Office as a whole have not only grossly distorted the content of our allegations but also vilified us for having had the temerity to level the allegations in the first instance. How can any representative of a body that has described, in the media, JFM’s allegations as being ‘without exception, defamatory and entirely unfounded’ and ‘false and deliberately misleading’ make a fair and unprejudiced consideration of any evidence presented by the police? We believe that by ‘going public’ these authorities, being fully aware of ‘Sandwood’, have destroyed their constitutional independence and have threatened the integrity of that enquiry.
2. It appears inevitable that these public interventions will have had an effect on potential witnesses. Witnesses are now expected to give evidence against a background of this very public ‘interference’ by Scotland’s senior prosecution authorities. Those authorities have consistently sought to dismiss the ‘conspiracy theorists’ behind the ‘Sandwood’ criminal allegations and to underline their opinion that Mr Megrahi and his accomplices are the only guilty parties in the case. We fear that certain Crown, Police and both expert and ordinary witnesses, encouraged by these statements, might seek to withhold or alter legitimate evidence which they could otherwise give to Operation Sandwood.
3. In his letter of 8 th May, the Lord Advocate gives the impression that he is disengaging from involvement in consideration of the final police report on the matter. However, if he is responsible for the appointment of the ‘independent Crown Counsel’, from the outset, he clearly plays a pivotal role in the outcome of the prosecutor’s consideration of the report. Any such counsel should be chosen by a person or body entirely outwith the Crown Office.
4. It is naïve to expect that an advocate depute in the Crown Office, appointed by the Lord Advocate and subject to his instructions, and whose tenure of that office depends entirely upon his decision, is likely to instruct proceedings of any kind and thus effectively say that the Lord Advocate was so publicly wrong. It is also extremely unlikely that he/she will easily set themselves against their colleagues in the Crown Office who have already made their position clear on several occasions. Equally importantly it is certain, no matter the decision reached, that in the minds of the protagonists on either side of the Lockerbie debate, the general public, the media and other commentators, justice will not have been seen to be done. It should be made clear that both the final decision on prosecution and the conduct of any prosecution rest with the independent (and independently appointed) counsel not tainted by any association with the Lord Advocate or any member of the Crown Office.
5. Moreover, given that the Lord Advocate is head of Scotland’s prosecution service, it would seem inevitable that any final conclusions arrived at by the ‘independent’ prosecutor he mentions would, by dint of his position, find their way onto the Lord Advocate’s desk for the ultimate stamp of approval.
6. Whilst JFM is, quite correctly, not privy to the operational detail relating to ‘Sandwood’, we have been most impressed by the diligence and professionalism of the officers working on the allegations. In the course of their investigations, Police Scotland have been working in tandem with an independent QC: how then will the Lord Advocate’s proposal fit together with the role already being played by Police Scotland’s QC?
It is plain to see from the unethical, prejudicial and ill-judged statements issued by the Crown Office that there is a straightforward conflict of interests with respect to any role which that body can play in this case.
The UK is signed up to the United Nations International Association of Prosecutors (IAP). In its pronouncements, the Crown Office has displayed a flagrant contempt for and disregard of the IAP principles as laid out in the IAP document Standards of Professional Responsibilities and Statement of Essential Duties and Rights of Prosecutors. Particularly, but not exclusively, these responsibilities include the duty of a prosecutor not to act in their own interest but always to serve and protect the public interest, be free from political interference, and generally be consistent, independent, impartial and transparent (as outlined in articles 1 through 4). The Crown Office is clearly in breach of these principles, and, as previously mentioned, no person currently in Crown Office can be impartial. The Report must be made to a totally independent person. http://www.iap-association.org/getattachment/34e49dfe-d5db-4598-91da-16183bb12418/ Standards_English.aspx
The UK is also signed up to the Council of Europe. In its document The Role of Public Prosecution in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6th October2000.
Article 1 states: ‘Public prosecutors’ are public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.’
Article 9 states: ‘With respect to the organisation and the internal operation of the Public Prosecution, in particular the assignment and re-assignment of cases, this should meet requirements of impartiality and independence and maximise the proper operation of the criminal justice system, in particular the level of legal qualification and specialisation devoted to each matter.’
Article 24 states: ‘In the performance of their duties, public prosecutors should in particular: a. carry out their functions fairly, impartially and objectively.’
Article 34 states: ‘Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.’ http://www.procuracassazione.it/procuragenerale-resources/resources/cms/documents/ COE_CM_20001006_Recommendation_2000_19_en.pdf
The Crown Office has turned Scottish justice into an embarrassing, laughing stock and developed this case into a running sore. We strongly believe that in order to acquire a fair, unprejudiced and truly independent reading of the final police report a special prosecutor must be appointed by a process independent of the Lord Advocate and the Crown Office, and must be seen to exercise his/her decision-making and prosecutorial functions without reference to the Lord Advocate and the Crown Office.
Since the Lord Advocate’s position and independence as head of the prosecution system in Scotland is enshrined in the Scotland Act, such a mechanism must be put in place by the Lord Advocate himself, failing which, the Scottish Government should seek from the UK Government a section 30 Order in Council to enable the Scottish Government to do so.
On 28th February 2007 the then Lord Advocate, Dame Elish Angiolini, in giving the inaugural KPMG Annual Law Lecture highlighted the position of the Lord Advocate in the 21st century by stating:
‘The fact that prosecution decisions are taken independently does not mean that they are taken unaccountably. It is for the Parliament to decide whether the Lord Advocate is carrying out that vital function to its satisfaction, not as a matter of party politics, but as a matter of sound administration.
‘The result is that the present system leaves an inefficient Lord Advocate, or an irresponsible Scottish Executive, nowhere to hide. If the prosecution system fails, then Parliament can hold the Lord Advocate, and the administration of which she forms a part, accountable for that failure.
‘As Lord Advocate, I exercise considerable powers, and carry great responsibilities. And no sensible Minister ever takes Parliament lightly. I note, in passing, that the Justice Committees of the Scottish Parliament routinely scrutinise the work of the Law Officers. That notion is also now being discussed at Westminster. I would like to make one further point, touching on accountability. The prosecutor's judgement in starting a prosecution is clearly justiciable in the courts. That is as it should be.’ http://www.publications.parliament.uk/pa/cm200607/cmselect/ cmconst/ 306/306we13.htm
This seems to be pertinent and timely advice to the present holder of this historic office. If the Lord Advocate is proposing a Crown Office advocate depute as an independent prosecutor to consider any Police Scotland report stemming from the investigation of JFM’s 9 allegations of criminality, known as Operation Sandwood, such a proposal falls well short of JFM’s concept of an independent, unbiased and constitutionally sound approach.
1. JFM has on several occasions drawn the attention of the Justice Committee to the unprecedented, highly irresponsible and prejudicial public outbursts in which both the Lord Advocate and the Crown Office as a whole have not only grossly distorted the content of our allegations but also vilified us for having had the temerity to level the allegations in the first instance. How can any representative of a body that has described, in the media, JFM’s allegations as being ‘without exception, defamatory and entirely unfounded’ and ‘false and deliberately misleading’ make a fair and unprejudiced consideration of any evidence presented by the police? We believe that by ‘going public’ these authorities, being fully aware of ‘Sandwood’, have destroyed their constitutional independence and have threatened the integrity of that enquiry.
2. It appears inevitable that these public interventions will have had an effect on potential witnesses. Witnesses are now expected to give evidence against a background of this very public ‘interference’ by Scotland’s senior prosecution authorities. Those authorities have consistently sought to dismiss the ‘conspiracy theorists’ behind the ‘Sandwood’ criminal allegations and to underline their opinion that Mr Megrahi and his accomplices are the only guilty parties in the case. We fear that certain Crown, Police and both expert and ordinary witnesses, encouraged by these statements, might seek to withhold or alter legitimate evidence which they could otherwise give to Operation Sandwood.
3. In his letter of 8 th May, the Lord Advocate gives the impression that he is disengaging from involvement in consideration of the final police report on the matter. However, if he is responsible for the appointment of the ‘independent Crown Counsel’, from the outset, he clearly plays a pivotal role in the outcome of the prosecutor’s consideration of the report. Any such counsel should be chosen by a person or body entirely outwith the Crown Office.
4. It is naïve to expect that an advocate depute in the Crown Office, appointed by the Lord Advocate and subject to his instructions, and whose tenure of that office depends entirely upon his decision, is likely to instruct proceedings of any kind and thus effectively say that the Lord Advocate was so publicly wrong. It is also extremely unlikely that he/she will easily set themselves against their colleagues in the Crown Office who have already made their position clear on several occasions. Equally importantly it is certain, no matter the decision reached, that in the minds of the protagonists on either side of the Lockerbie debate, the general public, the media and other commentators, justice will not have been seen to be done. It should be made clear that both the final decision on prosecution and the conduct of any prosecution rest with the independent (and independently appointed) counsel not tainted by any association with the Lord Advocate or any member of the Crown Office.
5. Moreover, given that the Lord Advocate is head of Scotland’s prosecution service, it would seem inevitable that any final conclusions arrived at by the ‘independent’ prosecutor he mentions would, by dint of his position, find their way onto the Lord Advocate’s desk for the ultimate stamp of approval.
6. Whilst JFM is, quite correctly, not privy to the operational detail relating to ‘Sandwood’, we have been most impressed by the diligence and professionalism of the officers working on the allegations. In the course of their investigations, Police Scotland have been working in tandem with an independent QC: how then will the Lord Advocate’s proposal fit together with the role already being played by Police Scotland’s QC?
It is plain to see from the unethical, prejudicial and ill-judged statements issued by the Crown Office that there is a straightforward conflict of interests with respect to any role which that body can play in this case.
The UK is signed up to the United Nations International Association of Prosecutors (IAP). In its pronouncements, the Crown Office has displayed a flagrant contempt for and disregard of the IAP principles as laid out in the IAP document Standards of Professional Responsibilities and Statement of Essential Duties and Rights of Prosecutors. Particularly, but not exclusively, these responsibilities include the duty of a prosecutor not to act in their own interest but always to serve and protect the public interest, be free from political interference, and generally be consistent, independent, impartial and transparent (as outlined in articles 1 through 4). The Crown Office is clearly in breach of these principles, and, as previously mentioned, no person currently in Crown Office can be impartial. The Report must be made to a totally independent person. http://www.iap-association.org/getattachment/34e49dfe-d5db-4598-91da-16183bb12418/ Standards_English.aspx
The UK is also signed up to the Council of Europe. In its document The Role of Public Prosecution in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6th October2000.
Article 1 states: ‘Public prosecutors’ are public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.’
Article 9 states: ‘With respect to the organisation and the internal operation of the Public Prosecution, in particular the assignment and re-assignment of cases, this should meet requirements of impartiality and independence and maximise the proper operation of the criminal justice system, in particular the level of legal qualification and specialisation devoted to each matter.’
Article 24 states: ‘In the performance of their duties, public prosecutors should in particular: a. carry out their functions fairly, impartially and objectively.’
Article 34 states: ‘Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.’ http://www.procuracassazione.it/procuragenerale-resources/resources/cms/documents/ COE_CM_20001006_Recommendation_2000_19_en.pdf
The Crown Office has turned Scottish justice into an embarrassing, laughing stock and developed this case into a running sore. We strongly believe that in order to acquire a fair, unprejudiced and truly independent reading of the final police report a special prosecutor must be appointed by a process independent of the Lord Advocate and the Crown Office, and must be seen to exercise his/her decision-making and prosecutorial functions without reference to the Lord Advocate and the Crown Office.
Since the Lord Advocate’s position and independence as head of the prosecution system in Scotland is enshrined in the Scotland Act, such a mechanism must be put in place by the Lord Advocate himself, failing which, the Scottish Government should seek from the UK Government a section 30 Order in Council to enable the Scottish Government to do so.
On 28th February 2007 the then Lord Advocate, Dame Elish Angiolini, in giving the inaugural KPMG Annual Law Lecture highlighted the position of the Lord Advocate in the 21st century by stating:
‘The fact that prosecution decisions are taken independently does not mean that they are taken unaccountably. It is for the Parliament to decide whether the Lord Advocate is carrying out that vital function to its satisfaction, not as a matter of party politics, but as a matter of sound administration.
‘The result is that the present system leaves an inefficient Lord Advocate, or an irresponsible Scottish Executive, nowhere to hide. If the prosecution system fails, then Parliament can hold the Lord Advocate, and the administration of which she forms a part, accountable for that failure.
‘As Lord Advocate, I exercise considerable powers, and carry great responsibilities. And no sensible Minister ever takes Parliament lightly. I note, in passing, that the Justice Committees of the Scottish Parliament routinely scrutinise the work of the Law Officers. That notion is also now being discussed at Westminster. I would like to make one further point, touching on accountability. The prosecutor's judgement in starting a prosecution is clearly justiciable in the courts. That is as it should be.’ http://www.publications.parliament.uk/pa/cm200607/cmselect/ cmconst/ 306/306we13.htm
Throughout all of this, it appears that the Crown Office, in pursuit of obtaining and maintaining convictions above any other principle, has lost sight of its most fundamental raison d’être: the service of justice.
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