Petitions
Corroboration (PE1436)
Item 3 is consideration of two petitions.
PE1436, by Collette Barrie, calls for the retrospective abolition of the requirement for corroboration. Are members content to consider the petition alongside our stage 1 consideration of the Criminal Justice (Scotland) Bill?
I wonder whether there is merit in the petition. How retrospective are we talking about making the application of the bill? It seems to me to be a proposition that will not go anywhere, so I wonder whether there is any point in considering it further.
On the other hand, among the submissions that we have received on the Criminal Justice (Scotland) Bill, there are requests to look at making it retrospective, particularly in the case of historic sexual abuse. There is therefore an opportunity to at least give further consideration to the issue.
I suggest that we can look at this at the end of the meeting when we consider our approach paper on the evidence sessions. We have already decided to take that item in private. We can have a full discussion on the matter at that point. We are certainly not closing the petition down. We will look at it then and continue it until we consider our evidence sessions on corroboration.
I am not entirely happy with that approach, because I think that the discussion should be in public. The petitioner is entitled to know what we are thinking.
I am happy to discuss the petition now if members want to do so. My view is that it certainly makes an interesting point and we could put the proposal to our various witnesses when they come along. Certainly, we should by no means close the petition; we should keep it open. As we all know, substantial difficulties are involved in retrospective legislation, but my view is that we should continue the petition and absorb it into our determinations on corroboration when we consider the Criminal Justice (Scotland) Bill. We can put the question and the petitioner can hear the arguments for and against.
If a majority of the committee is so minded, I will certainly not vote against that approach.
Are members content to continue the petition and absorb it into our consideration of the bill at stage 1, so that the petitioner can hear the arguments and we can report back? I certainly have no intention of closing the petition. Is everybody content?
Members indicated agreement.
Justice for Megrahi (PE1370)
PE1370, by the Justice for Megrahi campaign, calls for an independent inquiry into the conviction of Abdelbaset al-Megrahi. The petitioners have submitted further information on the police investigation into JFM’s claims of criminal actions during the investigation of the Lockerbie bombing. We may wish to consider the issue very carefully. I ask members to bear in mind the possible perception that the committee is becoming involved with a live police investigation.
I refer members to the letter that has just come in from Police Scotland. I believe that Justice for Megrahi has seen the letter.
If members will bear with me, I would like to take us through the petition stage by stage. It was lodged almost three years ago. I am not familiar enough with parliamentary procedure on petitions to know whether that is unusual, but it certainly seems a long time to me.
On the content, in June this year, the Cabinet Secretary for Justice wrote to the convener saying:
“The Scottish Government respects fully, and operates in accordance with, the separation of functions between Government and prosecuting authorities. We have no involvement with this process and no locus or intention to intervene or comment whilst it is on-going.”
That certainly seems reassuring. However, a matter of days later, the Crown Agent, Catherine Dyer, in response to the question whether the Crown Office and Procurator Fiscal Service would keep Justice for Megrahi informed of developments in its investigation of allegations, said:
“As indicated above The Police Service of Scotland is at this time conducting the investigation of the allegations made and any request for information in respect of that investigation would be for them.”
That tends to suggest a clear separation between the investigation and the prosecuting authorities. I just pose the question whether that is always the case, because it certainly is not my understanding of the relationship.
Ms Dyer went on to say:
“As indicated above The Police Service of Scotland is at this time conducting the investigation of the allegations made. COPFS has not instructed The Police Service of Scotland as to how that investigation should proceed.”
However, in a letter of 23 August from Mr Forrester, the secretary of Justice for Megrahi, we hear of a meeting with Mr Shearer, the deputy chief constable, who
“informed them that the Crown Office had instructed that he no longer investigate allegations 5, 6 and 7”.
It goes on to say:
“He was unable to give any further explanation and gave no indication if or when the investigation might be resumed and by whom.”
Convener, you are looking at me—do you wish me to stop?
No, I simply want to add to that by saying that, in the second paragraph of the letter that we received today, Mr Shearer refutes that. I just wanted to put that on the record.
Indeed. I will certainly come to Mr Shearer’s letter and the remarkable timing thereof.
The letter from Mr Forrester continues:
“The JFM representatives unanimously expressed their concern at these developments and made it clear that they only served to underline the relevance of their original request to Secretary for Justice Kenny MacAskill for an independent investigation free of Crown Office and Scottish police influence.”
I am aware that there are on-going live inquiries and I certainly wish to do nothing to intrude on them. JFM assures us that its allegations
“are aimed at UK nationals on the grounds of their having attempted to pervert the course of justice, committed perjury and been guilty of gross professional incompetence.”
I will miss out some of the other comments and suggestions about blocking and political interference, which some people might consider intemperate, although I think that they reflect an understandable sense of frustration.
The root of the issue is that, at this stage, we seem to have conflicting perceptions as to who was doing what at whose behest and why. I hope that the Justice for Megrahi people have received a copy of the letter from Mr Shearer, the gentleman who has been referred to, that came into my email box this morning. The most significant passage in it is in the third paragraph on page 2, which states:
“This passage is an accurate reflection of what I explained to ... Justice for Megrahi”.
So that endorses the position on that. Mr Shearer goes on to state:
“I am very clear that ultimately, the decision not to pursue these allegations at this time rests with me”.
Astonishingly, three paragraphs from the end, he goes on to say:
“I can add, however, that the background enquiries relating to allegations 5, 6 and 7 have been undertaken”.
I suppose that we could debate for ever and a day about the difference between inquiries, investigations and background inquiries, and who those inquiries are into. It is, however, clear that this level of understandable frustration on the part of JFM has resulted in the group making a formal complaint to the United Nations International Association of Prosecutors. I understand that Scottish prosecutors all sign up to that association’s principles.
I do not know where we go from here, convener. These people are looking to the Justice Committee to be honest brokers in a very important matter. I do not think that allegations are being thrown around carelessly. People of the highest integrity who are leaders in each of their fields are making serious accusations and I do not think that the Justice Committee can sit back and ignore that. At the very least, the petition must be kept open.
I am sure that we are all conscious that there is no wish to intrude on any live inquiries, but it is incumbent on us to ensure that we have some clarity about whether the police have been directed to stop inquiring into allegations 5, 6 and 7 and, if they have, from whom has the direction come? What is the difference between background inquiries and investigations? When there are legitimate concerns, they must be examined.
The key to this is the question about who guards the guards. The difficulty that we have here—questions have been raised in this committee previously by me and others—is whether the Scottish legal system, as it is now configured, has the wherewithal to address such a situation. It pains me to see that people feel compelled to go outwith the jurisdiction to look for justice, but I can understand why that is the case.
At the very least, therefore, we should keep the petition open and I would like the committee to institute further inquiries into how the authorities have responded to it.
John Finnie referred to a letter and we all have a copy that is marked “Restricted”. Is the letter on the website for people to see? It is important that we correct some of the allegations that have been made.
Yes. The answer is yes.
The police like to put stamps on things.
I want to put on the record what is in the letter. John Finnie mentioned how it says that the police were instructed not to investigate certain allegations. In the letter, which anyone can see on the website, there is the assertion that that allegation is incorrect. John Finnie also talked about the investigation being deferred, and there is an explanation in the letter:
“I can add, however, that the background enquiries relating to allegations 5, 6 and 7 have been undertaken and can be advanced at a time when there is no conflict with the live investigation.”
The next sentence is important. Read the next sentence.
It says:
“I am confident that this deferment will only be a matter of weeks as I now understand that the point of conflict with the live investigation will then be resolved.”
I think that that answers John Finnie’s question and if we wish to keep the petition open, that is one of the reasons why it could be kept open until we see what the live investigation is. It is important that all the letter is read out and that we do not just pick out certain issues.
I also want clarification from the clerks about the briefing that we got from the Scottish Parliament information centre, which is about the Scottish Criminal Cases Review Commission. It says:
“The Commission can also accept an application for a review of a conviction where the person who has been convicted has died.”
It also says that only the deceased’s family can make that application and goes on to say in the next paragraph:
“Therefore, where the person who applies to the Commission on behalf of a deceased person is not the deceased’s executor or a family member, before accepting the case for review, the Commission would normally seek the views of the deceased’s family and executor, if possible.”
Have we moved on on that point at all?
We have, actually. At this point I must declare myself as a member of the Justice for Megrahi campaign.
I wrote to JFM on the committee’s behalf on 5 September. I do not think that it just has to be a family member or executor who makes the application; it can be someone who can broadly show a locus and who goes back to ask the SCCRC to refer the case back to the Court of Appeal.
In my letter of 5 September, I asked:
“In advance of the Committee’s considerations, it would be helpful to know whether Justice for Megrahi is aware of any intentions to refer the conviction of Mr Abdel al-Megrahi to the Scottish Criminal Cases Review Commission for review.”
11:00
The response from the Justice for Megrahi campaign—all these letters are on the website—said:
“The short answer is yes. However, the situation in totality is infinitely more complex.”
In the third paragraph of that letter, the JFM campaign explains that bringing such a case to the SCCRC
“is very much circumscribed by two major factors. Firstly, the enormous cost implications and, secondly, the fact that they have expressed an unwillingness to submit an application without the consent and support of the al-Megrahi family.”
In other words, no one wants to go forward, apparently, without the support of the Megrahi family. The letter continues:
“with circumstances in Libya being as fraught as they are, it may be some considerable time for such approval to be forthcoming, if ever”.
That issue is in limbo, so we can park that. At the moment, no application to the SCCRC for a further review to be made to the Court of Appeal is in train. Frankly, such an application does not look very likely, if I may say so, from my reading of the letter. That is the answer to that question, but that is only one avenue.
I share many of the concerns that John Finnie expressed, but the letter from Deputy Chief Constable Shearer states that the live investigation should be resolved within “a matter of weeks”. Given that, for various reasons that I need not embellish for the committee, we really are circumscribed while those issues are on-going, I submit that we keep the petition open up until they have been resolved. We are told that that will be within a few weeks rather than just some time in the future. To me, “a matter of weeks” does not mean more than a month.
Are members content to keep the petition open until that is resolved?
Yes.
I agree that, as we are talking about a matter of weeks, that is a prudent way forward.
For the record, I want to correct something that John Finnie said. When he read from Patrick Shearer’s letter, he omitted the word “alone”—
To which paragraph are you referring?
In the seventh paragraph of his letter, Patrick Shearer states:
“I am very clear that ultimately, the decision not to pursue these allegations at this time rests with me alone.”
John Finnie omitted the word “alone”, but for the record the word “alone” should be included.
Convener—
Before we tussle about words, do members agree that we should keep the petition open until such time as that investigation is resolved? We can reconsider the petition once that inquiry is resolved.
If I missed out the word “alone”, I unreservedly apologise. Likewise, I say to Sandra White that my intention was not to read out the documents. In any case, as has been established, the documents are available for the public. I was not in any way seeking to do that.
For me, the crux of the matter is that, on the day of our committee meeting, we have received a letter from the person who is charged with investigating the issue. In that letter, he confirms—this information is in the public domain—that, in relation to the note about his meeting with the JFM campaign,
“This passage is an accurate reflection of what I explained to the Justice for Megrahi Committee members”.
The passage in question very clearly says that Mr Shearer informed the campaign that the Crown Office had instructed that he no longer investigate. However, we also have a letter from the Crown Agent, Catherine Dyer, who states:
“COPFS has not instructed The Police Service of Scotland as to how that investigation should proceed.”
Now, we could spend all day looking at how all those words fit together, but I would like the committee to establish some clarity around that. For me, the crux of the matter is that an issue of fundamental integrity is possibly being raised that could be resolved by a simple explanation from both parties.
First, regarding the letter from Deputy Chief Constable Shearer, we did not write to him, so he would have noticed that the petition was on our agenda only when the matter was published on the Public Petitions Committee website. I am not defending but explaining.
On the many other questions that you have raised, I ask that anyone who is paying attention to our discussion—including Deputy Chief Constable Shearer and others—respond to any of the statements that have been made. You have asked several questions, but I do not think that we can discuss the petition further until the particular issue has been resolved, which is due to happen within a few weeks. We can then come back to the petition. By no means is our consideration of the petition concluded.
Let me also say on record—the committee may rebuke me for this—that the Justice for Megrahi campaign has provided us with an overwhelming amount of paperwork, but it is quite difficult for members to follow all the submissions and additional submissions that have come in. I ask that the petitioners—I hope that the committee will agree with me on this—be a little more succinct, because a blow-by-blow account can be difficult for committee members to follow. Do members agree, or do they think that I have been unfair?
I agree.
Yes, that is right.
I say to the Justice for Megrahi campaign that I fully understand its wish to raise concerns, but in busy schedules we need things clearly and succinctly summarised so that we can continue to follow what is a very complex—and becoming more complex—situation and do justice to the petition.
Do we agree that the petition should remain open?
Members indicated agreement.
I suspend the meeting for five minutes.
11:06
Meeting suspended.
11:09
On resuming—