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 at www.heraldscotland.com to allow the public to see for themselves 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 many of the relatives have been campaigning for for more than two decades.
Megrahi has today 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 last week 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.
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.
First Minister Alex Salmond said: "It is important that everyone is able to read the SCCRC report in its entirety, rather than the selective and partial accounts of its contents which have made their way into the public domain through various media reports."
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.
FORMER LORD ADVOCATE CRITICISED FOR FAILING TO DISCLOSE INFORMATION
The SCCRC report criticises the former Lord Advocate who led the landmark prosecution. Colin Boyd, QC, now Lord Boyd, was head of the team which has been accused of failing to disclose crucial information to Megrahi's defence team.
In its 800-page report, the SCCRC criticises Lord Boyd for his handling of CIA cables about a key witness.
The cables refer to Abdul Majid Giaka, an alleged double agent who was a Crown witness. Giaka identified Megrahi as a member of Libyan intelligence, but his subsequent evidence was rejected following revelations in the US intelligence agency's much-redacted cables that he had demanded and received reward money.
Lord Boyd originally told the trial there was no need for disclosure of the cables. However, the SCCRC said it was "difficult to understand" his assurances from August 22, 2000 that there was "nothing" in the documents relating to Lockerbie or the bombing which could "in any way impinge" on Giaka's credibility.
Lord Boyd rejected the commission's claim. He said: "I reject the suggestion that I or anyone else in the prosecution team failed to disclose material evidence to the defence. All of the relevant CIA cables were disclosed subject to some exceptions, principally to ensure that the lives of named individuals were not put at risk. They were disclosed as a result of a request from the court."
The SCCRC report refers to a number of occasions when it was not granted full access to security documents from the CIA. It was not allowed to disclose certain documents about the case – including one relating to timers found in Senegal which were similar to those thought to have caused the tragedy, and claims by former CIA staff.
The appendices contain a number of references to other CIA cables which have never been fully scrutinised.
The UK Security Services complied with all requests to share information with the SCCRC but said a number of documents could not be disclosed because of national security.
The six different grounds on which the SCCRC said Megrahi could have been a victim of a miscarriage of justice are:
Unreasonable verdict. Due to uncertainty over the date on which Megrahi was supposed to have bought clothes in Malta which were found among the plane debris.
Undisclosed evidence concerning the Gauci identification.
Undisclosed evidence concerning the date of the clothes purchase.
Undisclosed evidence concerning Gauci's interests in financial rewards.
Undisclosed secret intelligence documents –the documents' contents remain unknown.
New evidence concerning the date of clothes purchase.
The report refers to several documents which were not revealed to Megrahi's defence team.
Three of the undisclosed documents related to payments of around $3 million (£1.9m) made by the US Justice Department to Paul and Tony Gauci – key witnesses in the Crown's case.
Tony Gauci claimed Megrahi resembled the man who bought clothes in his Malta shop which were later found to be in the suitcase that contained the bomb which killed 270 people over Lockerbie in December 1988. His identification of Megrahi was critical to the prosecution case.
However, the defence did not know he had discussed and shown an interest in reward money before identifying Megrahi. If they had known, they could have challenged the credibility of the prosecution case. In its report, the SCCRC says: "Such a challenge may well have been justified, and in the commission's view was capable of affecting the course of the evidence and the eventual outcome of the trial."
The commission also found Tony Gauci had a magazine with a photograph of Megrahi stating he was the Lockerbie bomber three days before Gauci identified Megrahi at an identification parade in Holland. We now know that Gauci had it for several months prior to the parade.