The Scottish Criminal Cases Review Commission have told The Firm that its statement of reasons for referring the case of Abdelbaset Ali Mohmed Al Megrahi to the court on the basis that a miscarriage of justice may have occurred is being held back because Mr Megrahi’s consent for its release is conditional upon the additional disclosure of all material held by the commission.

This would include material the nature of which would be unknown to Mr Megrahi or the other consenting parties, and includes material covered by Public Interest immunity.

SCCRC Chief Executive Gerard Sinclair revealed to The Firm that Megrahi’s consent contained qualifications far wider than were previously disclosed.

“As you are aware, we wrote to a number of the main parties, including Mr Megrahi, requesting their consent to releasing the Statement of Reasons for the referral,“ Sinclair told The Firm.

“We received a response from Mr Hamdi Fanoush, who is Mr Megrahi’s Libyan lawyer, indicating that Mr Megrahi was prepared to provide his consent, provided the Commission released all of the documents it had received from all of the bodies it had dealings with during the review. We did not consider this to be unqualified consent.

“You are no doubt aware that during our review of Mr Megrahi`s case we considered a vast amount of documentation, some of which was protectively marked. You will also be aware that some of the material is the subject of a PII certificate."

Mr Megrahi has publicly stated on his website that he wishes documents relating to him that he and his lawyers provided to be published, as part of his efforts to clear his name in the Pan Am 103 case.

However, the same statement goes on to say: “Mr Al Megrahi’s position has always been, and remains, that all information relating to the case should be made public.”

Today, the SCCRC told The Firm that they had interpreted this to mean that Mr Megrahi was referring more widely to material ingathered during the SCCRC investigations, and not solely the material in the statement of reasons.

The SCCRC wrote to Mr Megrahi’s Libyan solicitor on 13 July last year asking him to clarify if their interpretation of his position was correct.

‘Is Mr Megrahi’s consent to the disclosure of information in the statement of reasons and appendices contingent upon consent being given by the relevant authorities for the disclosure not only of what is said in chapter 25 [of the Statement of Reasons], but also disclosure of the ‘secret documents’ themselves?” they wrote.

“Does the same apply to other documents the Commission obtained but which are not contained in the statement of reasons and appendices?’

On 26 July 2010 the SCCRC received an email response from Mr Fanoush which said that Megrahi's consent “is contingent upon consent being given by the other parties, for the disclosure of what is said in chapter 25 and also, disclosure of the secret documents plus any other documents the Commission may have obtained but which are not contained in the statement of reasons and appendices.

“I hope that I have been able to clarify Mr Al Megrahi's views.” the email concluded.

“From this we concluded that Mr Megrahi was not consenting to the release of the SOR [statement of reasons], as the conditions he was attaching were conditions which the Commission were simply unable to comply with,” Mr Sinclair told The Firm.

Mr Megrahi’s initial statement is reproduced in full, below. The first clause states Mr Megrahi consents to the release of “documents relating to him”, whilst the third cause says Mr Megrahi wishes “all information” in the case to be made public.

The SCCRC had previously said that Mr Megrahi had not given his “unqualified” consent. Today’s revelation now states that the qualification explicitly requires all protected documentation to be disclosed.

Earlier this year the First Minister Alex Salmond told BBC Newsnight Scotland: “We will be introducing primary legislation to enable that report to be published in full.

“It was an investigation that took several years and I believe the full statement of reasons, if not answering every question about this affair, nonetheless will shed substantial light and give information that the families and indeed the general public are entitled to have.”

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Mr Megrahi’s statement of 30 June 2010

It has recently been wrongly reported, that Mr Al-Megrahi refused to give his consent for the Scottish Criminal Cases Review Commission to release documents relating to him, referred to in the Commission’s Statement of Reasons on his case, and its appendices, that he and his lawyers provided, either directly or indirectly, to the Commission.

The true position is that Mr Al Megrahi, through his Libyan Lawyer, made it clear to the Commission in a meeting on April 12th 2010 that he was happy for the documents to be released, providing all the official bodies that provided documents to the Commission agreed to the release of all of those documents. These bodies include the police, the Crown Office, the Foreign Office, and the intelligence service, or services, which provided the secret documents referred to in Chapter 25 sources of the Statement of Reasons.

Mr Al Megrahi’s position has always been, and remains, that all information relating to the case should be made public.