The Megrahi Scandal: part 1
by Kenneth Roy
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.
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.
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.
If the report remains unpublished, the suspicion will continue to fester – it will never go away – that there is something in this report that the legal and political establishments of Scotland would rather was never divulged.
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 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. The answer repeatedly given is that publication of the report is impossible without the permission of all the parties concerned and that all the parties have not consented. This has been the excuse for the last three years; it has only now started to weaken. Professor Black told the Glasgow meeting that the Scottish government would require only four weeks – I repeat, four weeks – to rescind this intolerable prohibition and allow the public access to the full report. It is scarcely worth pointing out, but I will point it out anyway, that since there are six weeks remaining of this parliament there is still time to do so. If it is not done, if the report remains unpublished, the suspicion will continue to fester – it will never go away – that there is something in this report that the legal and political establishments of Scotland would rather was never divulged.
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.
Tomorrow: Part 2 of The Megrahi Scandal
Kenneth Roy is editor of the Scottish Review