The Megrahi case:
I must strongly recommend to all lovers of both sausages and laws that on no account ought they to observe the manufacture of either.
Attributed to Otto von Bismarck
Such is the current state of our criminal justice system that evidence, which by rights ought to have been introduced into the public domain by being presented before a court of fact over 11 years ago, is still being withheld from public exposure despite the fact that it was on the point of being revealed at an abandoned appeal.
Had it been used at Kamp van Zeist, it may have resulted in Abdelbaset Mohmed Ali al-Megrahi's acquittal of the murder of 270 people. Had it been used at his second appeal, it may have resulted in the quashing of his conviction. Is this justice being done? Is this justice being seen to be done? Where do the interests of justice lie in Scotland today?
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. Despite the obvious potential for diversion, it is fair to say that the hearing progressed in an orderly and constructive manner. This was due in no short measure to the way in which the convenor, Christine Grahame, herself a member of JFM, maintained discipline, balance and flow throughout. Indeed, it was also most refreshing to see that a justice white paper received the amount of press and media coverage that it did. There were, however, two points raised by justice committee members which the JFM delegation found perplexing. Before dealing with that though, readers may require some background to part 2 of the bill.
Obviously, as primary legislation, the bill could have implications upon many more cases beyond that of Mr al-Megrahi's. Nevertheless, 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 justice directorate confirms this. On 30 November 2011, the justice directorate specified some of the provisions which would be covered by the Criminal Cases (Punishment and Review) (Scotland) Bill that could allow the suppliers of evidence to the SCCRC to deny their consent to publication of the commission's statement of reasons for the al-Megrahi case. In these extracts we learn the following:
1. In determining whether it is appropriate to disclose information, the commission is required to notify and consult those affected by, or who otherwise have an interest in, the information being considered for release. This would include those who provided the information and those to whom the information relates. The commission is required to have regard to any material representations made to it by affected or interested parties as regards whether the information should be disclosed. However, the final decision about whether it is appropriate to disclose information is for the commission to make.
2. There is one exception to this, and that is where the information that is being considered for disclosure has been obtained by either the advocate or the commission from foreign authorities under international assistance arrangements. For this type of information, the consent of the foreign authority that provided the information is required before the commission can disclose that information.
3. Where the commission decides that it is appropriate to disclose information, the bill provides that the commission must advise the affected parties and interested parties prior to any disclosure and allow a period of six weeks to elapse before disclosure takes place. This would allow parties a further opportunity to take whatever steps they might deem appropriate, for example to raise a legal action.
4. The bill provisions require to be read within the devolved competence of the Scottish Parliament. In considering whether it is appropriate to disclose information that it holds relating to a case, the commission will still be required to ensure that disclosure of the information does not contravene relevant reserved statute. Statutory requirements contained in reserved legislation such as the Data Protection Act 1998 and Official Secrets Act legislation are not affected by the provisions in this bill.
5. Other potential obstacles to disclosure of information will also remain such as ensuring common law rights to privacy and confidentiality are respected and the European Convention on Human Rights is not breached.
At least three points stand out from this summary. Firstly, the commission is still obliged to inform the providers of evidence of their intention to publish six weeks in advance of publication, and, moreover, the bill goes further by seeming to invite the providers to contemplate legal action against the commission (hardly either supportive of the SCCRC or an enticement to publish).
Secondly, the bill provides red cards even to those directly or indirectly affected by the evidence provided. Len Murray, speaking for JFM, expressed his considerable and legitimate concern that Toni Gauci could be such a beneficiary. Finally, there is the issue of the Official Secrets Act and data protection.
With regard to the first two points, one could be forgiven for thinking that the Scottish Executive is here giving the impression that it is encouraging the commission's informers to take legal action against Scotland's independent arbiter responsible for referring cases for appeal in which it suspects a miscarriage of justice may have taken place. Surely they hardly need to be told that this option would always be open to them. Moreover, what kind of executive is it that appears to be embedding in law the right of a witness (without whose evidence Mr al-Megrahi would most likely have been acquitted) to block the publication of a statement of reasons which calls into question that very witness's credibility? This is profoundly worrying.
As it happened though, it was the final point (5) on the justice directorate list which appeared to be the most contentious, time-consuming and, not to mention, extremely perplexing during the 7 February session between JFM and the justice committee. To return then to the beginning.
The justice committee asked the JFM delegation if it would like to comment on potential conflict between the publication of the statement of reasons and the Official Secrets Act. Given that the senior legal officer at the SCCRC, Michael Walker, gave evidence before the committee on 31 January to the effect that he did not feel there to be any conflict on the ground that in his opinion nothing in the statement of reasons appeared to be in contravention of the act thus: 'Yes, but in our written submissions we state that we do not perceive the Official Secrets Acts as being relevant. There is no information in the statement of reasons that would be covered by the Official Secrets Acts', it was hard to see what JFM could hope to add.
Further to this, JFM was asked on several occasions throughout the session on 7 February whether they thought that publication might be seriously circumscribed by legislation on data protection. In fact, it could be said that this transpired to be the main focus of the hearing. If to members of the public watching the proceedings on the live feed or in the public gallery, not to mention to members of the justice committee asking the questions, the JFM delegation appeared to be somewhat puzzled by the constant references to the issue of data protection, the reason is quite simple: they were puzzled. Why so?
In preparation for the session, JFM entered a written submission to the justice committee as a primer to establish for the committee exactly what its position was vis-à-vis the Criminal Cases (Punishment and Review) (Scotland) Bill. In this submission, written by Professor Robert Black QC, JFM states clearly, in black and white, the following:
The reference in the written answer to convention rights and international obligations is entirely superfluous: such rights would continue to apply whether the consent requirement were removed by primary or secondary legislation. The reference to data protection is a complete red herring. Section 194K(4) of the Criminal Procedure (Scotland) Act 1995 (an Act of the UK Parliament) specifically provides that where SCCRC disclosure is permitted by a statutory instrument (inter alia) 'the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment)...' This means that UK data protection legislation, or any other legislative or common law obligation of secrecy, is no bar to disclosure. (The references in the 1995 Act to the secretary of state and to the UK parliament must now, by virtue of the general transfer of powers provisions of the Scotland Act 1998, be read as references to the Scottish ministers and the Scottish Parliament respectively).
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.
Robert Forrester is secretary of Justice for Megrahi and is writing on behalf of the committee