Exclusive by Lucy Adams and John Ashton
The explosive report on the man convicted of the Lockerbie atrocity ...why we are publishing it after five years of secrecy
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The Sunday Herald today publishes the full 800-page report detailing why the man convicted of the Lockerbie bombing could have walked free.
The controversial report from the Scottish Criminal Cases Review Commission (SCCRC) has remained secret for five years because, until now, no-one had permission to publish it.
The Sunday Herald and its sister paper, The Herald, are the only newspapers in the world to have seen the report. We choose to publish it because we have the permission of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, and because we believe it is in the public interest to disseminate the whole document.
The Sunday Herald has chosen to publish the full report online today to allow the public to see for themselves the analysis of the evidence which could have resulted in the acquittal of Megrahi. Under Section 32 of the Data Protection Act, journalists can publish in the public interest. We have made very few redactions to protect the names of confidential sources and private information.
The publication of the report adds weight to calls for a full public inquiry into the atrocity – something for which many of the relatives have been campaigning for more than two decades.
Megrahi has also sent a copy of the full report to Justice Secretary Kenny MacAskill, who released him on compassionate grounds in August 2009.
Jonathan Mitchell QC told the Sunday Herald: “From a data-protection point of view, it is questionable whether this report is the ‘personal data’ of anyone other than Megrahi.”
The Data Protection Act was described as “one of the most poorly drafted pieces of legislation on the statute book” by Tom Hickman, a barrister at Blackstone Chambers, on a UK Constitutional Law Group website.
Mitchell believes the Sunday Herald is not constrained from publishing the report. He said: ‘‘Section 32 of the Data Protection Act has the effect – putting it shortly – that processing (which includes publication) of personal data, even sensitive personal data, is exempt from the relevant data-protection principles if it is for the purpose of journalism and the newspaper reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, ‘publication would be in the public interest’, and also reasonably believes that compliance with data-protection principles such as non-disclosure would be incompatible with the journalistic function.”
The Herald revealed earlier this month that, according to the report, the Crown failed to disclose seven key items of evidence that led to the Lockerbie case being referred back for a fresh appeal.
The SCCRC rejected many of the defence submissions but upheld six grounds which could have constituted a miscarriage of justice.
The commission made clear that, had such information been shared with the defence, the result of the trial could have been different.
Its full report details why the conviction of Megrahi was referred for a second appeal.
Megrahi has said in his official biography by John Ashton, Megrahi: You Are My Jury, that he believed dropping the second appeal would improve his chances of returning to Tripoli before succumbing to terminal prostate cancer.
The Scottish Government has said it wants to release the document in the interests of transparency but cannot do so because it is covered by data-protection law, reserved to Westminster.
First Minister Alex Salmond said: "It is important that everyone is able to read the SCCRC report in its entirely, rather than the selective and partial accounts of its contents which have made their way into the poubic domain through various media reports."
When the SCCRC referred the case back for a fresh appeal in June 2007, they were only able to publish a summary of their findings. If they had published the full report, it would have constituted a criminal offence under the legislation which established the commission.
But on Friday the Crown Office in Scotland wrote to the SCCRC making it clear it would not prosecute the organisation or any of its members if it published the report.
The Crown office lifted legal restrictions just hours after the Sunday Herald had informed its press office we planned to publish the report ourselves.
In a press release issued on Friday the Crown Office criticised ‘‘selective and misleading reporting’’ of the SCCRC report in the media. ‘Notes to Editors’ attached to the press release said that any decision of the SCCRC to refer a conviction to the Appeal Court did not necessarily mean there had been a miscarriage of justice. Only the Appeal Court could declare there had been a miscarriage of justice and quash a conviction.
It added that the SCCRC was asked to look at more than 40 possible grounds for a referral to the Appeal Court in the Megrahi case. It had rejected the vast majority of these and referred the case to the Appeal Court on six grounds. And it stated the Crown ‘‘had every confidence in successfully defending the conviction in the Appeal Court for a second time.’’ A Crown ofice source was quoted in newspapers yesterday describing Megrahi’s grounds for appeal as having ‘‘more holes than a Swiss cheese’’.
The SCCRC has not so far published the report and is not expected to discuss the Crown Office advice until later this week. It declined to comment at this stage on the Sunday Herald’s decision to publish the report.
In an effort to get the report published, the Scottish Government has passed a statutory instrument – to slightly amend that legislation – which means it will no longer be a criminal act for the SCCRC to publish such reports. This was expected to come into force in May. The commission has written to the individuals mentioned in the report asking for their consent for publication. Consent was not given.
Megrahi said he would be happy to consent providing all other parties consented, but they did not. MacAskill has unsuccessfully written to UK Justice Secretary Ken Clarke several times to ask for an exemption under the Data Protection Act.
Megrahi was convicted of murder by Scottish judges sitting at Camp Zeist in 2001. He unsuccessfully appealed in January 2001. He dropped a second appeal shortly before the decision to release him on compassionate grounds in August 2009. He was expected to die from cancer within three months.