Chapter 25: Undisclosed protectively marked documents
25.1 In 2006 Crown Office informed the Commission of the existence of two protectively marked documents in its possession.
25.2 These documents were examined by a member of the Commission’s enquiry team whose notes are currently in the possession of D&G.
25.3 By letter dated 27 April 2007 Crown Office confirmed that neither of the protectively marked documents was disclosed to the defence. (…) It was also pointed out in the letter that “it has never been the Crown’s position in this case that the MST-13 timers were not supplied by the Libyan intelligence services to any other party or that only the Libyan intelligence services were in possession of the timers.”
25.5 On 27 April 2007 the Commission was informed by Crown Office that such consent could not be given without the permission of the relevant authorities of the country from which the documents originated. Although attempts were made on behalf of Crown Office to obtain the consent of those authorities, as at the date of issue of the Commission’s statement of reasons this had not been given.
25.6 In the Commission’s view the Crown’s decision not to disclose one of the documents to the defence indicates that a miscarriage of justice may have occurred in applicant’s case. In reaching this decision the Commission has taken into account paragraphs 49, 73 and 74 of the trial court’s judgment.
25.8 The Commission considered applying to the court for an order under section
194I of the Act requiring Crown Office to produce the documents. However, given
the need to finalise the review, and the fact that other grounds of referral had been
identified, the decision was taken not to do so.
In any event, even if an order had been obtained by the Commission under section 194I of the Act, in terms of paragraph 6(5) of Schedule 9A it would have been open to Crown Office to notify the Commission that onward disclosure might be contrary to the interests of national security.
In such circumstances, the Commission would have been bound to deal with the material in a manner appropriate for safeguarding the interests of national security. It is therefore
unlikely that the Commission would have been any less constrained in its ability to disclose the documents had it made use of its statutory powers.