PETITION PE1370 by the Justice for Megrahi group, calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988, has had its second hearing at the Petitions Committee today.
After a discussion on the petition, the Committee agreed to write to the Scottish Government, Scottish Criminal Cases Review Commission and the Crown Office and Procurator Fiscal Service seeking a response to specific points.
Justice for Megrahi Petition PE1370 Scottish Parliament 25 January 2011 (Click image below to view video)
The minutes of the Petitions Committee’s deliberations during its 25 January 2011 meeting follow :
Justice for Megrahi (PE1370)
The Convener: The next petition is by Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie, on behalf of Justice for Megrahi. Christine Grahame is here. Christine, would you like to address the committee and then we can go to questions?
Christine Grahame (South of Scotland) (SNP): Thank you, convener. I commend the members of the committee for their stamina in these late sittings. I do not know if I have it.
I refer to point 2 of the Scottish Government's letter of 7 January, which states:
"A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors."
The letter goes on to say that the petitioners invite the Government to do something that falls properly within the criminal justice system and that there are routes available within that system, so that should be an end of the matter.
If I may say so—and I am quite ready to challenge my own Government—those are not the facts. First, we know why Mr Megrahi abandoned his appeal, because Maggie Scott QC told the court why he did so. I will paraphrase, but she said words to the effect that her client, Mr Megrahi, believed that doing so would assist with his applications—plural—meaning his applications for prisoner transfer and for compassionate release. Prisoner transfer, of course, required abandonment of appeal and compassionate release did not. We can struggle over why he abandoned it and who said what to whom, but that is a fact and what he believed, so these are extraordinary circumstances.
We must then challenge whether there is a route open to Mr Megrahi within the criminal justice system other than a public inquiry. If members will bear with me, I will refer, I hope in a rather lawyerly way, to the legislation that was brought in recently to deal with people who were not being represented when they were charged. I will get the name of it in a moment—bear with me. I will just make my submission, then I will tell you the name of the act. Here we are. It is the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. If members recall, we dealt with the legislation all in one day, from stage 1 through to stage 3. There is a section in it that I tried to have deleted because it did something radical to the Scottish Criminal Cases Review Commission, which you will know is an independent body that was set up in 1999 to deal with miscarriages of justice independently of the courts and independently of us, thankfully. Section 7(3)(2) of the act does something strange in relation to the Scottish Criminal Cases Review Commission. It states:
"In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings."
For the Scottish Criminal Cases Review Commission, which is an independent body, to say that there might have been a miscarriage of justice is no longer good enough. It has to say, "We think there might have been a miscarriage of justice, but nevertheless, because of the need for finality and certainty, we are not going to refer it to the High Court."
However, say a case did pass the test and the commission referred it to the High Court. Previously, the High Court had to accept a referral with no ifs and no buts, but that also changed under the emergency legislation. The act states:
"In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings."
So we have the first hurdle, and if the SCCRC says that the case passes the test of finality and certainty and passes it to the High Court, it sets the test again—the very High Court that heard the case in the first place. To me, that is not a just system.
Going to the Scottish Criminal Cases Review Commission is no shoe-in. Many people apply but few get to the stage of a referral. However, referrals can be very successful. If we look at the commission's success rate, we see that it made four referrals on sentencing in 2010, two of which were successful and two of which are still being determined. For sentencing alone—obviously, if someone's conviction has gone, they have no sentence—there were four referrals, two of which were successful, one of which failed and one of which is still being determined. The commission does not make referrals willy-nilly, and they are quite successful.
My concern is that that route will no longer be open, not just to Megrahi but to others. My understanding is that, in certain circumstances, the SCCRC can make a referral even though an appeal has been abandoned.
The circumstances of the case are very strange and there are so many unanswered questions, whether for people who believe he is guilty, people who believe he is innocent or the victims' families. No line has been drawn in the sand on the matter.
The route that I mentioned has now been blocked. To give the cabinet secretary his due, he said when I raised the matter that he would review it. A panel of judges is reviewing the legislation and he will review how it operates.
I have taken the time to say that because, first of all, the Government is saying that Megrahi closed the appeal himself—well, we know why.
Secondly, the Government is saying that the criminal justice system has a route, but I think that the SCCRC has been neutered in many respects.
I wish the committee to continue to pursue the inquiry route, and not to close the petition. Convener, I suggest that you confirm with the SCCRC whether it can re-open an abandoned appeal on its own and I would also like to know the SCCRC's views on that limiting of its powers—if any—and when the review panel will report on the functioning of the legislation.
The committee may feel that that is not pertinent to the petition, but I feel that it really is. If members do not know about that bit, they do not know why people are pressing so hard for a public inquiry; it is because they have concerns that everything else is being shut down.
The statement of reasons has not been published, because the subordinate legislation says that if any third party has given evidence—even indirectly—and they do not want it published, it will not be published, so we will pretty well not get anything. This is the final court.
On the mace, it says that we will have justice, integrity and compassion. No wonder the petitioners call themselves Justice for Megrahi—frankly, at the moment, there has not been justice for anybody in this particular case.
The Convener: Okay, thank you.
Bill Butler: I suggest to colleagues that we continue, and I will delimit the way in which we do so. I was going to say that this committee had no further locus, because we have been told that the Scottish Government has again stated that it has no plans to initiate an inquiry on the issue and has clarified why it does not consider an inquiry to be necessary. Christine Grahame referred to that statement in the letter from the Scottish Government that we received.
We have to realise that this is simply a public petitions committee, and we certainly cannot make a judgment in a formal way. However, it would be at least worth while—I am not sure how colleagues feel about this—if we did two things.
First, we could, as Christine Grahame suggests, write to the cabinet secretary to ask whether he will review the application of the emergency legislation as he has promised. If that is his intention—which I do not doubt, because he told Christine Grahame, a member of the Parliament, that that was his intention—when will his review take place, and when and how will his decision in that respect be made known? Secondly, on another point that Christine Grahame raised, can the SCCRC open an abandoned appeal?
Those are the two questions. On the first, we hope that we know the answer, or part of it. On the second, we really do not. We can continue on those two specific points.
I must say this, however. Once we ask those questions, unless someone is ingenious enough to come up with other ways in which we could legitimately continue the matter as a public petitions committee—because the arguments and the controversy will continue—we will have to close the petition. However, I suggest to colleagues that it is worth while for us to continue by asking the fairly narrow questions that Christine Grahame has suggested we ask.
Cathie Craigie: I support what Bill Butler has said, particularly in his final summary. We must go back and ask for a further couple of points to be clarified. If we do not get anywhere, it is difficult to see where the committee can go.
Point 3 of the Government's letter refers to the Inquiries Act 2005. The Government's reason for saying that it cannot conduct a public inquiry is weak—I will not use the same words as the petitioners used in their submission. The Government is hiding behind an excuse. Every time the Government touches the Megrahi case, it seems to do something wrong and to move the goalposts.
I support my colleague Bill Butler's suggestions. We should see whether we can get responses before the next session.
I note the length of time that the Government took to respond to our previous letter on a Megrahi inquiry. I know that the convener has written to the First Minister about that. I am sure that a whole load of civil servants are familiar with every detail of the Megrahi case and could put their hands quickly to writing the response that we will request.
I do not know whether the clerk or the convener will write the further letter to the Government, but I suggest that we ask for a quick response, because we want to deal with the petition in this session.
Nigel Don: Once we have a response from the Government, there is little prospect that another response will be different, but banging on the door will do no harm. It occurs to me that—as far as I can recall—we have not yet written to the Lord Advocate. As the senior independent law officer, does she have from somewhere in the mists of time residual powers to investigate this, that and the other? That might be clutching at straws, but it is one sack of straws that we need to consider. Do the law officers have a residual power to investigate or reconsider a case in such circumstances? I would not even define the circumstances; we should just ask the Lord Advocate to think about what she might be able to do.
Robin Harper: Considering that the petition is extremely limited—it asks us
"to urge the Scottish Government to open an independent inquiry"—
and that we have been told at least twice that the Government has no intention of so doing, we have every right to close the petition. However, I have listened to Christine Grahame's arguments and I feel that, for the petitioners' sake, it is worth writing to ask the SCCRC for its opinion, which can be forwarded to the Government for a response. As it is seven weeks to dissolution, that process is extremely unlikely to be completed before dissolution, so we must think of the matter as part of our legacy to the next session's Public Petitions Committee.
The Convener: Do we agree to continue the petition in those terms?
Members indicated agreement.