The explosive report on the man convicted of the Lockerbie atrocity …why we are publishing it after five years of secrecy by Lucy Adams and John Aston
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.