Kenneth Roy: 26 March 1945 - 5 November 2018

I am saddened to learn of the death today of Kenneth Roy. As editor of the Scottish Review he wrote many articles about the Lockerbie case and the disgraceful conviction of Abdelbaset al-Megrahi, as well as publishing contributions by other Megrahi campaigners, such as Robert Forrester, Morag Kerr, John Ashton, James Robertson and me. A selection of these pieces can be found here. Although the Justice for Megrahi campaign and Ken Roy had occasional spats (he was a prickly character), his support for Megrahi and his advocacy of the case for the conviction to be overturned were unwavering.

At Ken's invitation, I spoke about the Lockerbie case on several occasions in the Young Scotland Programme organised by the Institute of Contemporary Scotland which Ken had set up. And on a memorable occasion in 2011, I shared a platform with him at the Celtic Connections festival in Glasgow. A recording of our conversation, chaired by Iain Anderson, can be found here. Scotland has too few journalists of the calibre of Kenneth Roy. I shall miss him.

Scottish justice must show that it is open to criticism

[This is the headline over an article by Bruce Gardner published in today’s edition of the Scottish Review.  It reads in part:]

Kenneth Roy's articles (2 May and 3 May) on our fatal accident inquiry system raise issues of public concern. This is especially so in relation to a substantial delay over the inquiry into the 2010 death of schoolgirl Natasha Paton, and a failure, to date, of the Scottish court system to deliver an outcome or satisfactorily explain the delay.

We read that Kenneth Roy's legitimate journalistic inquiry was countered on Twitter of all places, using the material that was forbidden to him for publication by one representing the Scottish court system. This is deeply worrying. To present a case by back-channel is a PR game, not respectful engagement. If Twitter be how press scrutiny is to be fielded today, obscurantism and populism become the oddest of bedfellows. (...)

The discourteous resort to social media might be giving a false impression of the justice system and someone may now come forward to apologise for the poor response to date, then do a better job. However, a few things require to be said.

First, the reputation of the Scottish justice system, post-McKie and Al-Megrahi, is shaky. Serious doubts continue to be expressed over the propriety and effectiveness of the whole system, latterly over the issue of corroboration, so that the instinctive pride which we Scots once expressed over our own justice system has lately taken severe knocks. Thus, the way the judiciary handles Kenneth Roy's complaint will be a crucial indicator of how incompetent and arrogant – or, conversely, of how reforming and humble – it currently is.

[A sterling example of this type of incompetence and arrogance is the kneejerk response of the Crown Office to the formal allegations made by Justice for Megrahi of criminal misconduct in the Lockerbie investigation, prosecution and trial.  They were immediately dismissed as “defamatory and entirely unfounded” and “deliberately false and misleading” by the very body to which the police investigating the allegations requires to report and which must decide whether any prosecutions should be brought.]

Iain Anderson in conversation with Kenneth Roy and Robert Black QC

I have just discovered that a recording of the discussion session involving Kenneth Roy and myself and chaired by Iain Anderson at the Celtic Connections festival in Glasgow on 25 January 2011 is available online. It can be accessed here.

Incidentally, it was eleven years ago today that the trial of Abdelbaset Megrahi and Lamin Fhimah opened at Camp Zeist in the Netherlands.

Blushing with shame at the behaviour of the Crown Office

[This is the headline over a contribution by Len Murray, one of Scotland’s most distinguished solicitors, to today’s edition of the Scottish Review, written in response to an earlier article by the editor, Kenneth Roy. Len Murray’s piece reads as follows:]

Kenneth Roy's splendid article on the hapless Dr David Fieldhouse (11 June) makes a reader blush with shame at the behaviour of the Crown Office. That behaviour, however, should come as no surprise to any of us. 

I am member of Justice for Megrahi and indeed a member of the Committee of Justice for Megrahi. In September [2012] we wrote in confidence to the justice secretary Kenny MacAskill making certain allegations. Some 12 days later, before any reply had been forthcoming from the Justice Directorate, the Scotsman newspaper published a response from the Crown Office in which we were pilloried for having made 'defamatory and entirely unfounded... deliberately false and misleading allegations'.  The article went on to suggest that we had accused 'police officers [and] officials [of fabricating] evidence'.

That ill-tempered scandalous outburst has and had no foundation in fact whatsoever and it was made before any investigation had been made into what we said to the justice secretary.

To make matters worse – if that were possible – on 21 December [2012], the Times (Scotland edition) carried an interview given by the lord advocate to Magnus Linklater. Not only did the lord advocate, with a total disregard for the facts, repeat those scurrilous outpourings from the Crown Office, but he went on to add that we had levelled criminal accusations against the judges and/or the lord advocate of the day. We had done no such thing.

But that is not all. When the relatives of the victims – yes, the relatives of the victims, not Megrahi – lodged an application to the Scottish Criminal Cases Review Commission earlier last month, the Crown Office had the effrontery to say: 'The evidence upon which the conviction was based was rigorously scrutinised by the trial court and two appeal courts...'. Totally misleading. They know perfectly well that in the first appeal the court held that they were barred from considering the evidence in view of the grounds of appeal which had been submitted on behalf of Megrahi; whereas the second appeal never reached a hearing because Megrahi abandoned his appeal.

'Rigorously scrutinised'? Not even looked at as the Crown Office know perfectly well.

But even that is not all. It would appear that the application to SCCRC contains new evidence and new allegations which have never emerged before. One might expect, indeed one is entitled to expect from the Crown Office, a measured and considered response like: 'We shall investigate any new allegations thoroughly and put the result of our investigations before the Court'. Some of us might consider that their duty – but no, we get an outburst showing that closed mind which, it seems, is typical of our Crown Office when the name Megrahi is mentioned: 'We will rigorously defend this conviction when called upon to do so'. No mention of any investigation or even a look to see what is in the application, nothing but the closed mind.

When I was being interviewed more than 50 years ago by the court partner of the firm to which I would soon be indentured as a law apprentice, I remember being told: 'Find out the facts before you make up your mind'. What a pity that our lord advocate and his cohorts at the Crown Office apparently have still to learn that elementary lesson.

A welcome, albeit grudging, change of tune

[On Tuesday, 6 November the following item appeared on this blog:]

In the (redacted) version of Justice for Megrahi’s letter alleging criminal misconduct in the Lockerbie investigation and prosecution that was released to the press on 23 October 2012, allegation no 1 reads as follows:

“1.  On 22 August 2000 the Lord Advocate, Colin Boyd QC, communicated to the judges of the Scottish Court in the Netherlands information about the contents of CIA cables relating to the Crown witness Abdul Majid Giaka that was known to members of the prosecution team [A B and C D] who had scrutinised the cables, to be false. The Lord Advocate did so after consulting these members of the prosecution team. It is submitted that this constituted an attempt to pervert the course of justice.”

A number of journalists have interpreted this paragraph as embodying an allegation that Colin Boyd attempted to pervert the course of justice. The latest of these is Kenneth Roy in an article in today's edition the Scottish Review headlined A High Court judge and an allegation of criminality.  This raises concerns about the standard of English comprehension amongst journalists, because the paragraph makes no such allegation -- indeed was very carefully drafted in order to avoid it. What the paragraph alleges is that two members of the prosecution team, A B and C D,  supplied to Colin Boyd information about the CIA cables which A B and C D knew to be false (because they had scrutinised the cables) and which they knew he was going to, and did, communicate to the court.  That is the perversion of the course of justice that is alleged.

I am disappointed when journalists attempt to explain or excuse their flagrant misinterpretation of a text by reference to its -- non-existent -- ambiguity. The paragraph quite simply does not say that Colin Boyd perverted the course of justice. To represent that it does is an error on the part of the reader, not the writer.

[In today’s edition of the Scottish Review Kenneth Roy’s article There is a greater tragedy this weekend than the disgrace of the BBC contains the following:]

Most recently, here in Scotland, we have had an allegation, published by the BBC, of criminal wrongdoing against a High Court judge; although the source of the allegation has assured this magazine that it did not intend to make any such allegation, and that it was based on a misunderstanding, we have seen no correction or clarification of it by BBC Scotland. How fruitily ironic that the man drafted in by George Entwistle to investigate the goings-on at Newsnight is none other than the director of BBC Scotland, who seems to be unaware of the need to correct an injustice on his own doorstep.

Megrahi - What Have The Scottish Government To Fear?

[This is the heading over an item posted today on the magnificent SubRosa blog. It reads as follows:]

Along with others, I can't understand the Scottish Government's insistence that the Megrahi conviction was sound. Nor can I understand why the Scottish Government's need for primary legislation to finally allow the publication of the Scottish Criminal Cases Review Commission's report on the Megrahi case when, according to Robert Forrester, the secretary for Justice for Megrahi, says that all that is required is 'to utilise the simple, relatively cheap, quick and effective expedient of an amending statutory instrument to remove the consent requirement in the 2009 statutory instrument'. source

The publication of semi-autobiographical book Megrahi: You Are My Jury, by author John Ashton, has returned the issue to the front pages once again.

Dr Jim Swire has, once more, felt compelled to plead his case against Megrahi's conviction and this week eloquently explained the evidence not provided to the defence before or even during the trial. Mr Forrester claims that the new legislation is so circumscribed by caveats and provisos that it will simply maintain the status quo whereby, under certain circumstances, providers of evidence to the SCCRC will still be in a position to block the publication of the document whilst it contains information which such persons have supplied to the SCCRC.

Kenneth Roy has broken the habit of a lifetime and joined something - the Justice for Megrahi Committee.  I'm not suggesting for one minute that Kenneth Roy's involvement will accelerate the Committee's progress, but it is another highly respected Scottish voice and the more the merrier.

What have the Scottish Government to fear about the SCCRC report? We now know that, although Megrahi withdrew his appeal, it would be possible for a posthumous one to be sought. 

Arguments over the power to hold an inquiry should be resolved in the public interest, but despite the Scottish Government's assertion that it would be willing to co-operate in a joint inquiry, the suspicion lingers that there is little enthusiasm for a process that could cast the Scottish judicial system in a poor light.  That may be so but it doesn't serve the interests of justice, the victims' families or the population of Scotland.

As I opined over a year ago, if the SNP plucked up some courage and forced the UK government to open an inquiry, it would be a very worthy and long-remembered legacy.

Abdelbaset Megrahi, Keith O'Brien and Kenneth Roy

[What follows is an excerpt from a special article published today on the Scottish Review website by the magazine’s editor, Kenneth Roy, under the headline The media assassination of Cardinal O'Brien:]

[T]here are many sound historical precedents for being instinctively suspicious of the sort of unholy consensus we have in the Scottish media today. I've never much liked the consensus: it so often tells a half-truth. So I intend to say a kind ungrudging word about Cardinal O'Brien, a man I've never met.

He and I shared a common interest in the case of Megrahi, who was convicted – probably wrongly – of the murder of 270 people at Lockerbie. We both signed a petition to the Scottish Parliament calling for the conviction to be re-visited and for a public inquiry to be instigated into the scandalous state of the evidence against Megrahi. It was not one of the more popular petitions ever submitted to the parliament. I seem to remember that it was signed by about 1,200 people, very few of whom were public figures. [RB: When the petition closed, having been offline for some considerable time, the number of signatures was 1646 -- one of the highest numbers achieved by any Scottish Parliament ePetition.]

Many who privately harboured doubts about the safety of the conviction preferred, in the Scottish manner, to keep their heads under the parapet. Keith O'Brien stuck his above it. I admired him for it. I thought it was the action of a brave and principled person. That does not make him any less of a hypocrite in his sexual conduct. But then we are all such a mass of contradictions. Only the journalists are squeaky clean. What's new?

Lockerbie relatives fated never to know truth

[This is the headline over an article by Magnus Linklater that appears in today’s edition of The Times. It reads as follows:]

After the death of Tony Gauci, the chief prosecution witness, those who could shed light on the tragedy are dwindling

One by one, the key players in the Lockerbie drama fade from the scene, taking with them its secrets. Abdelbaset al-Megrahi himself, prime suspect; Lord Fraser of Carmyllie, Lord Advocate, who brought the case against him; and now Tony Gauci, the chief prosecution witness, who died last week. As Kenneth Roy, the editor of the Scottish Review, noted in his obituary: “To say that all three left unanswered questions would be one of the under-statements of our time.”

Gauci, who owned a clothes shop in Malta, where, on some disputed day in 1988, a man came in to buy the items of clothing later found burnt and shredded around the bomb in Lockerbie, did not have a good press. An unsure witness at best, his testimony about when and by whom the clothes were bought, seemed to change each time he was questioned; and he was questioned a lot — 17 times by Scottish and Maltese police, many more by prosecuting counsel, and later by journalists. Was the man who ordered such an odd assortment of clothes — shirts, jackets, trousers, baby clothes, without checking on their sizes — tall and dark-skinned, as Gauci seemed to remember, or medium-built and light-skinned as Megrahi turned out to be? Did he come into the shop two weeks before Christmas, or in late November? Was it raining, or merely dripping? Were the Christmas lights on or not? Which football match was his brother watching on the day? Gauci tried and tried to remember, and each time seemed to retreat further and further from the truth.

All that has led his detractors to mock his evidence, and dismiss him as a witness of no worth. Lord Fraser notoriously once described him as “not quite the full shilling,” though he was more generous later on.

Those who believe Megrahi was innocent, and the prosecution a charade, point to Gauci as its weakest link. As chief witness for the prosecution, they claim that if his evidence falls, then the entire case collapses. One member of the defence team, hearing of his death, said that he went to his grave carrying responsibility for Megrahi’s wrongful conviction.

That is a dishonourable epitaph for a decent man. The more one re-reads Gauci’s evidence, the more one warms to him as a character. A simple man, the only things he really cared about were his clothes business, and his pigeons. When, on several occasions, he was taken to Scotland for his safety by police, he worried more about the pigeons, and who was minding the shop, than whether the scenery was beautiful, or his hotel comfortable. The one thing he was sure about was that the clothes found at the bomb site were bought from his shop, and on that he never wavered. Who could forget a man who bought such a strange assortment of clothes without bothering to check on their sizes?

Much has been made of the alleged rewards offered to him by police or intelligence agencies. No one, however, has been able to prove that money was a motive for Gauci. [RB: A more accurate account of Tony Gauci’s attitude towards “compensation” is to be found here.] His struggles to remember dates, times and descriptions may sometimes be laughable. But they are honest attempts, not those of a bribed man. Here he is, trying to remember whether or not he had had a row with his girlfriend on the day of the purchase: “We had lots of arguments. I am asked whether I had a girlfriend at the time of the purchase of the clothing. I do not recall having a girlfriend in 1988 but I am always with someone. It is possible that I had an argument with my girlfriend that day. My girlfriend would cause arguments by suggesting a wedding day or suggesting that we buy expensive furniture . . . it is possible that in 1988 I had a girlfriend, but I am not sure.” He is like that with days of the week, or the size of the man who bought the clothes. “I did not have a tape measure to measure the man’s height,” he complains.

For all his confused recollections, the trial judges liked him: “The clear impression that we formed was that he was in the first place entirely credible, that is to say doing his best to tell the truth to the best of his recollection, and indeed no suggestion was made to the contrary,” was their verdict. When the Scottish Criminal Cases Review Commission later came up with six reasons for suggesting that there were grounds for an appeal, they did not dismiss Gauci himself, but said that some of his evidence, and the circumstances in which it was given, were withheld from the defence. Whether that would have altered the outcome will never now be known.

In the end, what are every bit as important as Gauci’s evidence, are undeniable facts: Megrahi’s presence in Malta on the day before the bomb was loaded; his departure back to Tripoli the morning after; his use of a false passport supplied by Libyan intelligence — one he never used again; the large sums of money in his bank account; and now, the evidence uncovered by Ken Dornstein. [RB: If, as Dr Morag Kerr has conclusively established, the bomb suitcase was ingested at Heathrow, not Luqa Airport, none of this is of the slightest relevance.]

Mr Dornstein’s brother died at Lockerbie, and, after 15 years of investigations, he discovered that during his trips to Malta in the weeks leading up to the bombing, Megrahi was accompanied by a man called Abu Agila Mas’ud, a convicted terrorist, who today sits in a Libyan jail. Quite what he and Megrahi were doing there, only Mas’ud can reveal, though Abdullah Senussi, the former Libyan intelligence chief who is also languishing in jail, would be able to shed much light on it as well. [RB: Analyses of the revelations in, and omissions from, Ken Dornstein’s film can be found here and here.]

That light, however, is fading. One by one, the witnesses are disappearing. All that remains are the memories of those who lost loved ones at Lockerbie, and who are destined never to know the full truth.

[RB: What follows is extracted from a comment by Morag Kerr on Kenneth Roy’s Scottish Review article:]

It's odd how this type of article keeps resurfacing. Someone has died, who either told everything they possibly knew about it to the authorities years ago and who could not conceivably have remembered anything further, or who knew nothing at all about it in the first place. But now he's dead, oh the secrets he has taken to his grave!

Tony Gauci appears to have served someone connected to the bombing in his shop. His police statements and his evidence at Camp Zeist are in the public record. So too is the diary of Harry Bell, which recounts the (mis)handling of Tony as a witness and the money that was apparently dangled before his eyes. Three separate expert witness reports take this entire sorry episode apart forensically, but even so they only reinforce what common sense tells us - that a shopkeeper cannot possibly be expected to recognise a customer he saw once, for about half an hour, after the extraordinary lengths of time involved in this case.

We don't need Tony to realise that whoever the man was, it was not Abdelbaset al-Megrahi. Not only was the day of the transaction (almost certainly 23rd November) one when there is no evidence at all that Megrahi was on the island, the multiple discrepancies between Tony's initial description of the purchaser and Megrahi's actual appearance are glaring.

All this happened almost 28 years ago. Even if we had someone who was now alleged to have been that purchaser, and Tony Gauci was still alive, there is no chance whatsoever that a positive identification could be made. What else could Tony tell us? How much money he was paid? What he did with it? Could he give us any real insight into his thought processes when he repeatedly said Megrahi resembled the purchaser but declined to say he actually WAS the man? I doubt it.

So what has the case lost with the death of Tony Gauci? I'd say nothing at all.

Legacy of Lockerbie: part 2

[The following is taken from an article by Kenneth Roy, the editor, published today in the Scottish Review:]

The empty auditorium

On the subject of Lockerbie, we are not short of bar-room philosophers. When someone from the Sun phoned me last week for a quote, he assured me that, down at his local, most people were convinced that Megrahi should never have gone to prison. I told my new friend from the Murdoch empire that I was interested to hear it. I was tempted to add that if only his newspaper had supported the opinion of the boozing classes, the world would be a marginally fairer place. 

But where (I have been asking myself for the last fortnight), were all these bar-room philosophers when the facts of the Lockerbie disaster were first examined? I put this question with the hindsight of one of the strangest experiences of my professional life.

In December 1990, close to the week of the second anniversary, I turned up one morning at a psychiatric hospital in Dumfries. Part of the grounds had been converted into a mini-village, with its own 400-seat auditorium, administrative block, media centre and restaurant. I reported to the media centre and was issued with a badge, a desk and a telephone. 'Where is everybody?', I asked. There was no one in this centre; only rows and rows of empty desks and a long corridor of empty cubicles, each reserved for some famous newspaper or broadcasting organisation. 'Oh, there's never anybody here,' the security man replied casually. 'We haven't bothered to connect most of the phones'. He suggested that I should put my feet up, have a smoke, and listen to an audio feed of the proceedings. It was, he assured me, warmer in here than in the room with the 400-seat auditorium. 

I went to the room anyway. I was frisked at the door, emerging through a metal archway into a large, gloomy hall with a stage and municipal-green curtains, tightly drawn to exclude the little natural light. A third of the floor space had been penned off for bewigged counsel and their assistants – 28 of them. A team of three shorthand writers worked in 15-minute rotas. On the stage sat the impassive sheriff who was hearing the evidence. In the press benches, a handful of reporters. 

But the auditorium was deserted. Not one of the 400 seats in the public benches was occupied. During a break I asked an official if this was unusual. He told me that the highest attendance had been 10, on one of the early days. There had been no one for weeks. 

This was the fatal accident inquiry into Britain's worst peacetime atrocity, a terrorist crime which claimed 270 lives. 

Some accident. 

Only one person in this oppressively dim room was of more than passing interest. She sat incongruously in the pen reserved for the lawyers, but it was clear that she was not one of that lot. She was a woman in early middle age, beautiful, stylishly dressed. I observed that her concentration never wavered and that she never stopped writing; writing; writing. 

I discovered that her name was Marina de Larracoechea, that she was 43 years old, Spanish, an interior designer, that her sister Nieves, four years her junior, had been a flight attendant on Pan Am flight 103, and that she was here to represent her sister, murdered at 39. Legal representation did not interest Marina. She had to be in this unfamiliar town in person, in the depth of winter, resting her head heaven knows where, week after week, listening, writing, head down, writing. 

The airline's head of security – even for him there was no audience – gave evidence. I remember 22 years later that he spoke of 'bouncing off the walls in frustration' at his employer's lack of interest in his plans to improve the inadequate security. We did not know then about the Heathrow possibility. We knew very little. Megrahi was a free man. Tony Gauci was an obscure Maltese shopkeeper. Peter Fraser was just another of those jolly affable chaps at the Scottish bar, no one suspecting that he thought in such sophisticated imagery as a witness being an apple short of a picnic.

It was an inquiry taking place in the dark. Almost literally.

As she listened to the security man's evidence, Marina stepped up the pace of her ferocious note-taking. I didn't appreciate at the time the nature of this phenomenon; it took a while for my slow head to work it out. It was someone bearing witness. I hadn't seen the like of it before and I haven't seen the like of it since. It was a deeply impressive spectacle. 

At every new turn in the Lockerbie saga, I wondered what had happened to Marina. Maybe it was all that bar-room philosophy – to say nothing of all that speaking for Scotland crap – which finally drove me to make inquiries. It seems she is still alive and living in New York. 'I don't care about work any more,' she said some years ago. 'I can't do it any more. Personally I don't think I will ever be able to get back to many things in my life. All the rest is very minor compared to the fact that she is not around any more'.

Marina rejected a £4m payoff offered to each of the families. She said the money meant nothing to her and that all she wanted was the truth.

Marina requested that Nieves' name should be excluded from the Lockerbie memorial because neither truth nor justice had prevailed. I don't know whether this request was respected. 

Marina attended part of the trial in the Netherlands and left it convinced of Megrahi's innocence. She said at the time of his detention in Scotland: 'The fact that he is languishing in a Scottish prison is a source of great sadness to me and to many other relatives I have spoken to. He is nothing more than a scapegoat'.

Marina appealed to the Scottish judges to conduct an independent review of the evidence on the grounds that the full truth behind the bombing had been deliberately withheld. They rejected this request. She applied for permission to intervene and ask questions during the hearing of Megrahi's appeal. They rejected this application.

The most recent reference I have been able to source appeared in a Spanish newspaper at the beginning of last year. It was in the form of a personal statement.

Marina said:  I have worked hard with dedication and sacrifice, especially for truth and justice, in the case of the destruction of Pan Am flight 103 where my sister Nieves was murdered, along with 269 other equally precious and irreplaceable lives. This carnage, politically induced, announced and expected, occurred on 21 December 1988 over Lockerbie, Scotland. Others, mainly government officials, diplomats and big businessmen had precise prior knowledge that helped them to change their flights and save their lives. Silence reigns over this and other important aspects.

In the same statement, Marina pleaded for health to continue fighting with even more determination 'and a little good fortune to help us bear with dignity the enormous burden of these 22 years'.

Her dignity was never in doubt. I experienced it for myself that long-ago December day in the tightly-curtained room. I'm reading it again through the lines I've just quoted. 

For 270 of those 400 vacant seats there was a victim. Yet it seems that the powerful have won. The powerful have kept their secrets. The powerful have always depended on the emptiness of the auditorium.

[Part 1 of Kenneth Roy’s article can be read here.]

"I fear for what is happening to the administration of justice"

[The above is the first sentence of an article posted today on Ian Hamilton QC's blog. The full text reads as follows:]

I fear for what is happening to the administration of justice. I blame the SNP because they are the government. It started under Labour so an election will make no difference. Here are examples of what I fear.

In the Megrahi case it emerged after conviction that a foreign state had given massive bribes to a vital witness or to witnesses.

It emerged that a vital fragment of the fuse relied on for the conviction had never been tested for explosive residue, a vital test in any explosives case.

More recently, and in another case. A journalist heard of the existence of a recording. He bought it from the holder, who later gave evidence. Why were the police not told of the tape so they could get a warrant and seize and investigate it? Why was the journalist not rebuked for interfering with the administration of justice?

In the same case a recording of a police interview was handed by someone to the BBC who used it in a broadcast. Tapes of police interviews are always confidential; yet it appears there is to be no enquiry into how this tape got into BBC hands and why they used it. It was, I think, a production in a case. It is contempt of court to make off with a production and to reset it. Why are the BBC not to be prosecuted?

Lastly and most sinisterly of all is the crown office’s attitude to the press. We only have two reliable investigative journalists in Scotland. One is Kenneth Roy with his Scottish Review. He is pursuing the matter of the BBC recording into a wall of silence. Good for you Kenneth.

The other is Steven Raeburn, editor of The Firm. It is our only legal magazine. It is read by most of Scotland’s lawyers. A free and informed legal press is of vital importance in the preservation of a proper administration of justice. (I air my grievance. At 85 I shouldn’t have to be writing this. The Lord Advocate should have dealt with these matters as they occurred.)

Now here is the really frightening thing. The Crown Office is refusing to answer any questions from Steven Raeburn. They do not like what he writes. They are holding him incommunicado. The legal profession is thus kept in the dark about the things that matter most. The things that matter most in any government department are the things the department don’t want anybody to hear about.

I have been critical of Elish Angiolini’s culture of secrecy in the past. She is the Lord Advocate. She is a member of the government. I now make my accusation wider. I now accuse the Scottish Government of living in a cocoon of fear, a cocoon of its own making; a fear of its own making. Can Alex Salmond not control his Lord Advocate?

Why is the Lord Advocate silent? Why will she not permit her own department to speak to the only journalist who speaks to the whole legal profession?

Secret justice is fascist justice. Secret justice is a danger to us all.

[The influential media magazine The Drum features this story on its website. It can be read here.]

Lockerbie, Megrahi and the Scottish Review

[In today’s edition of the Scottish Review two articles on Lockerbie and the Megrahi case are published.  The first is from the pen of the journal’s editor, Kenneth Roy.  It reads in part:]

Here is a case of tragic loss. I mean – a real one.

A young woman, Flora Swire, is looking forward to spending Christmas 1988 with her boyfriend in the United States. She boards Pan Am flight 103 and very soon she is dead. Her father Jim has to make a fuss before he is allowed to see her body. He then, over a period of many years, pursues his own investigations, goes to Libya, prevails upon the colonel to do the decent thing and hand over any suspects.

Two men appear before a panel of Scottish judges at Camp Zeist. At the start of the trial, Dr Swire is convinced of Megrahi's guilt. By the end of it he is equally convinced of his innocence. When the verdict is declared, he faints. To the tragic loss has been added tragic irony.

Just before Christmas, Dr Swire returned to Libya. I had a long chat with him about his visit. He was able to see Megrahi, whom he considers a friend. What passed between them he will not disclose. When he left Megrahi's house Dr Swire was visibly upset. He does not expect to see his friend again.

Tragic loss; tragic irony – and now absolute farce. 

The truth about the Lockerbie prosecution is contained within a long report of the Scottish Criminal Cases Review Commission, whose own painstaking inquiries after the trial pointed to the possibility, putting it no higher, of a miscarriage of justice and the desirability of a further appeal against conviction. This report has never been published. 

The Scottish Government, in the face of sustained pressure to have it published, introduced an enabling bill. A year ago, this magazine warned that the bill was useless; that it would not achieve the desired purpose. This was not a piece of journalistic fancy on our part. It was based on a remarkably frank assessment given to the Scottish Review by no less an authority than the Scottish Criminal Cases Review Commission itself. The commission informed us that the bill would not remove one of the major obstacles to publication: the pre-condition that all the parties concerned must consent to its release.

As a public service, we gave heavy prominence to the commission's statement. The Scottish press evinced not the slightest interest in it. Nor, so far as we know, did anyone else in a position to do anything about it. The disastrous bill went ahead.

It would be relatively simple to make an order removing the consent requirement. Instead the Scottish Government has perversely chosen a legislative strategy which will result in the continued non-publication of the Lockerbie report. 

Why?

What does Scotland owe Tony Gauci that we are prepared to go on protecting this man? What does it owe any of the parties?

What do we have to fear from the publication of this report? 

What is the real agenda?

We do ourselves no favours with this obstruction of justice. We are fooling no-one – except possibly ourselves.

Let an order be placed before the Scottish Parliament removing the consent requirement. Let the order be placed and let the report be published. The reputation of Scotland demands no less. 

[The second article The Megrahi case: Smoke and Mirrors is by the secretary of the Justice for Megrahi campaign group, Robert Forrester.  It reads in part:]

At 10am on Tuesday the 7th of February 2012, the Justice for Megrahi (JFM) Committee delegation met before the justice committee of the Scottish Parliament to answer questions regarding their perspective on Part 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill currently under consideration at Holyrood. (...)

it is no secret that the Scottish Government claimed that part 2 of the bill was principally framed with a view to freeing up the Scottish Criminal Cases Review Commission's (SCCRC) statement of reasons for his second appeal for publication.

In 2009, the Scottish Government made a statutory instrument regulating the circumstances in which the material on which the commission reached its conclusions could be published. The wording of the Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009, was such that it rendered any chance of the statement of reasons and the material on which it was based ever reaching the public domain impossible without the express consent of those bodies and/or individuals who had provided evidence, either directly or indirectly, to the commission when putting together the document.

Having blocked publication of the statement of reasons for the entire duration of its first term in office and this first part of its second right up to the present day with this provision, the Scottish Government announced in the run-up to last May's general election in Scotland that it would remedy the situation by placing primary legislation before parliament to finally facilitate publication of the SCCRC document. Primary legislation? Why opt for primary legislation when all that is required is to utilise the simple, relatively cheap, quick and effective expedient of an amending statutory instrument to remove the consent requirement in the 2009 statutory instrument?

Following the government's confirmation of its intention to resort to the cumbersome, time-consuming and expensive process of primary legislation, on 4 August 2011, JFM wrote to the Scottish cabinet secretary for justice, Kenny MacAskill, and put the above question directly to him. The content of his reply was, to put it mildly, less than illuminating. He ended his response by saying:

'... primary legislation is needed to provide the flexibility required to ensure that an appropriate legislative framework is put in place. The proposed legislation will facilitate the release of a statement of reasons in circumstances where an appeal has been abandoned'. (Kenny MacAskill, 24 August 2011). Throughout his letter, however, he signally and studiously failed to address at any stage the question that was put to him.

Quite apart from the legislative process being employed by the government, in the view of JFM and many others, Part 2 of this new bill will be very hard pushed to do what the government claims it has been designed to achieve. The bill under consideration here is so circumscribed by caveats and provisos that it will simply maintain the status quo whereby, under certain circumstances, providers of evidence to the SCCRC will still be in a position to block the publication of the document whilst it contains information which such persons have supplied to the SCCRC.

Indeed, the [Scottish Government] justice directorate confirms this. (...)

In response to repeated questions from the members of the justice committee on 7 February, the JFM delegation referred its questioners to this statement. It is common in legal practice to talk in terms of 'finding the law'. Here it would appear that JFM has indeed found the law. Whether or not sufficient heed is being paid to the legislative references that JFM has made is open to question since we have yet to hear from any MSP, cabinet minister or, for that matter, any respondents to the bill, any specific and cogent argument which establishes that JFM's interpretation of the law is in error. All that seems to be being said is that there is a perceived issue with data protection; however, this perception is not being supported by reference to any contrary interpretation of the law. Under such circumstances, therefore, it is not unreasonable to assume that JFM is right to say that such a conflict is a 'red herring'.

This, of course, would not be the first time that JFM has demonstrated that its understanding of the law is accurate in contrast to its detractors within and without government. The public may recall that following months of claims by the Scottish Government that it did not have the power or remit to open an inquiry into Lockerbie/Zeist, the government had, finally and reluctantly, to accept that its interpretation of the 2005 Inquiries Act was in error and that JFM was correct.

Taking the above into account, it is the position of JFM that there would be no significant obstacle to the publication of the SCCRC's statement of reasons for Mr al-Megrahi's second appeal if the government simply employed secondary legislation to modify the 2009 order in such a manner that the consent requirements were disposed of and part 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill were dropped altogether. Surely, both the precious parliamentary time and taxpayers’ money could be far better utilised by directing them towards the health service, education policy, transport infrastructure and other pressing matters of state rather than wasting them on what is quite patently a bill which is both unnecessary and unlikely to achieve what the government claims it is setting out to do.

None of this is the fault of the justice committee, whose task it is to gather material from respondents, make assessments and present recommendations to government. Nor can parliament as a whole be held responsible. It is even questionable whether one can lay the blame entirely at the feet of the government. The problem here, more likely than not, lies in the unduly powerful influence that the Crown Office, the lord advocate and the civil service have over policy and decision making as it affects this case and other aspects of the law in Scotland today. It is time for both our executive and our legislature to listen much more closely to the advice and opinions of the wider legal profession in our country rather than the narrow self-interest of vested interests closer to hand.

The Megrahi Scandal: part 1

[This is the sub-heading over a leading article by Kenneth Roy in the Scottish Review. Part 2 is due to be published tomorrow. The article reads in part:]

During the public discussion between us in the Glasgow Concert Hall last week, Robert Black QC wondered aloud why the SNP, untainted by past association with the Megrahi case, had chosen not to confront this judicial scandal and attempt to correct it.

It is easy to overlook that, when Alex Salmond came to power in May 2007, not quite all his predecessors were removed from office. One unexpectedly clung on. Why the lord advocate, of all people, survived the demise of the former administration is a question for Alex Salmond and his memoirs. It feels in retrospect like one of his few serious political misjudgements: one made when his feet were only just under the table.

It is true that Elish Angiolini's re-appointment was not exactly accompanied by loud rejoicing. Mr Salmond made it clear that she had lost her place at the Scottish cabinet table. That felt like a demotion, for her or her office or both. From that moment, she became an arm's length chief law officer. But, in effect, the retention of her power base was all that mattered: this ultimate insider – lacking any significant experience of the world beyond the Crown Office – was never likely to pursue Lockerbie with the greatest zeal.

Ten years ago this week, a panel of Scottish judges, sitting in the Netherlands without a jury, convicted Megrahi of 270 murders. It says much for the quality of the judgement that, in its first sentence, it got the date of the disaster wrong. This was the first of many wrongs, few of which have ever been righted.

Since December 2010, the position of the Scottish government has become quite impossible. Here are two statements. I invited the lunchtime audience in Glasgow to reconcile them somehow. No one was bold enough even to try.

Statement 1
There are six grounds for believing that a miscarriage of justice may have occurred. It is in the interests of justice (their words, but my italics) to refer the case to the court of appeal.

Statement 2
Megrahi was convicted by a Scottish court, and Scottish ministers do not doubt the safety of his conviction (their words, but again my italics).

Statement 1 – slightly paraphrased in the interests of brevity – was the conclusion of the Scottish Criminal Cases Review Commission, an agency of the Scottish government, in 2007. Following this remarkable finding, after a long and painstaking investigation which turned up new evidence not made available to the defence at the trial, there were two years of unexplained delays while the prisoner's second appeal was prepared. For these delays, the Crown Office was largely responsible.

In the end, the appeal was never heard: the declared wish of the Scottish Criminal Cases Review Commission was thwarted and the interests of justice, as it saw them, were never satisfied. Megrahi, long frustrated by the impediments put in his way, dropped his appeal – it is generally believed as a pre-condition of his release – and, true to form, Mrs Angiolini and her mates in the Crown Office put up their hands and declared to the world that it had nothing whatever to do with them, guv.

Statement 2 is taken verbatim from a Scottish government briefing just before Christmas. The chief law officer may have had some hand in its wording; otherwise, why have a chief law officer?

Since Statement 2 flatly contradicts Statement 1, we must look for an explanation.

Has the Scottish government in general, Mrs Angiolini in particular, simply forgotten about the conclusion of the Scottish Criminal Cases Review Commission? It got quite a lot of attention at the time and has resurfaced periodically since, usually when people like Robert Black QC demand to know why the commission's report has never been published. (...)

It is, however, unlikely that the Scottish government has forgotten about the Scottish Criminal Cases Review Commission's potentially damning conclusion. It is much more likely, given the uncompromising terms of Statement 2, that the Scottish ministers with or without the assistance of the lord advocate have managed to convince themselves that the most expedient way of marking 10 years of the Lockerbie scandal is simply to affirm the infallibility of Scottish justice.

Mrs Angiolini retires as lord advocate in May, perhaps to become a senator of the college of justice. Before she goes, she should tell us to which statement she subscribes. Does she subscribe to Statement 1 with its frank acknowledgement that there may have been a serious miscarriage of justice, or does she subscribe to Statement 2, which denies any such possibility?

The chief law officer cannot logically subscribe to both. Nor can the Scottish government as a whole.

[From the Scottish Review today (Thursday, 3 February):]

Part 2 of The Megrahi Scandal has been postponed until next week to allow us to check out new information