Aug 24 2009

Megrahi’s release: Kenny MacAskill was right

If Megrahi was indeed rightly convicted of mass murder, which I doubt, it is not in doubt that he acted on the orders of the Libyan government. He was a senior member of its intelligence service. Yet both the UK and US governments have for some years been on friendly terms with the people who, they say, ordered the destruction of PanAm 103. They dine with them. They have cocktails with them when they meet at mutual friends. The week before Megrahi’s release, as reported in the Washington Post, a delegation of four American senators led by John McCain met with Colonel Gaddafi to discuss the sale by the US to Libya of military equipment. In April, Hilary Clinton welcomed another member of the Gaddafi family, the régime’s National Security Adviser, to Washington. She said “We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here.”

There is nothing wrong with prosecuting and jailing the foot-soldiers of terrorism. There is however something deeply wrong with claims that the foot-soldiers should die in prison, because their crimes are so serious, while their commanders should be forgiven, because the identical crimes have no continuing importance and because, as Republican senator Lugar says, “we need to ensure that more Americans are able to travel to Libya to do business“. The families are entitled to resent the release of Megrahi, while recognising that they can do nothing about the attitude of their governments. But British and American politicians are not. They sold this particular pass a long time ago.

When Tom Harris MP asks with such sickening sanctimoniousness “why was he considered for compassionate release when others whose crimes were, arguably, less (in quantative terms only; not in relation to the devastation caused to victims’ families) would almost certainly not be?” he might remember that his government, his party, believe that those whose criminality at least equal to Megrahi- those who gave Megrahi his orders- should be fêted.

When Iain Gray MSP claims, as he no doubt will again tomorrow at Holyrood, that if he’d been Justice Secretary he wouldn’t have released Megrahi1, a claim incidentally that is hard to believe of someone whose relationship with Westminster is that of glove-puppet to hand, he might ask himself how he distinguishes this particular murderer. “While one can have sympathy for the family of a gravely ill prisoner, on balance our duty is to honour and respect the victims of Lockerbie and have compassion for them.” ‘On balance’ indeed! Do we ‘honour and respect‘ them by wining and dining with those who ordered the bombing?

Historically, war criminals gaoled for their crimes have been held until the state holding them has moved on. Erhard Milch was responsible for tens (perhaps hundreds) of thousands of deaths. In 1947 he was sentenced to life imprisonment. In 1951 that was commuted to fifteen years. In 1954 he was released. A far more serious criminal than Megrahi, he was released because the British and American governments of the day had lost interest. He was not terminally ill; he lived another eighteen years. More recently, the Westminster government released seventy-eight murderers under the Good Friday agreement. Some served only weeks or months. There is no practice in Britain of treating such crimes as the Lockerbie bombing as uniquely disqualifying from compassionate release. In applying well-established principles to this particular prisoner, principles first introduced into our law by a Conservative government, Kenny MacAskill cannot be criticised for failing to follow tradition.

The attack on the release of Megrahi, made by people who turn a blind eye to the cosy UK/US relationship with his line managers, is deeply hypocritical. Thus the call to ‘boycott Scotland'; why not boycott Indiana, for Senator Lugar’s hard work, quoted above, to forge relationships between US and Libyan security? And much of it is just ignorant. FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor2. But then, as Professor Hector MacQueen points out in his comments on this “error-strewn letter“, “A fascinating little insight is also provided by Mueller’s opening comment that ‘only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.’ That rather suggests we don’t need judges, juries or defence lawyers in the criminal process.“. Geoffrey Robertson QC, who ought to know better, writesI have read the judgment of the Lockerbie court and the two appeal judgments upholding it…” . What second appeal judgment was that? He’s just inventing it; it was never written.

We return to the straightforward facts that Megrahi is terminally ill; he is going home to die. On the undisputed facts, he falls within policy, dating back to the McConnell administration, which provide for compassionate release following the 1993 Act. As Kenny MacAskill’s statement pointed out (and I haven’t seen this description challenged as inaccurate) “guidance from the Scottish Prison Service, who assess applications, suggests that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance dates from 2005“. So he had a legitimate expectation that that policy would be followed. Should that have been lost because Jack McConnell’s buddies don’t want attention to be given to their palling-up to Libya? Can Cathy Jamieson or Jim Wallace, who as justice ministers granted between them over twenty compassionate release applications, point to a single case in which an application for a terminally-ill prisoner was refused on their watch? I doubt it.

And policy in England doesn’t seem very different. In a very recent petition for judicial review, AS v Justice Secretary, 2009 EWHC 1315 (Admin), the court quoted the Secretary of State’s declared policy as follows:”(a) the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits 3 months may be considered to be an appropriate period for an application to be made to Lifer Review & Recall Section), or the lifer is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stroke; and (b) The risk of re-offending (particularly of a sexual or violent nature) is minimal; and (c) further imprisonment would reduce the prisoner’s life expectancy; and (d) there are adequate arrangements for the prisoner’s care and treatment outside prison; and (e) early release will bring some significant benefit to the prisoner or his/her family.

So, if Megrahi had been a prisoner in England, he would similarly have qualified for compassionate release.

Even in America, with no similar tradition, Megrahi would be eligible for compassionate release under recent guidelines which allow for compassionate release whenever a prisoner is “suffering from a terminal illness“.

Kenny MacAskill has been a fine Justice Secretary. The case against him is a failure to participate in hypocrisy and dishonesty, and that may be evidence of a lack of political realism. But good for him. He did the right thing for the right reasons.

  1. In fact what Iain Gray seems to be saying is that if he were First Minister he would have given unconstitutional orders to the Justice Secretary not to do so. [back]
  2. See now the following post. [back]
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14 comments published

14 comments published to “Megrahi’s release: Kenny MacAskill was right”

  1. [...] Mitchell QC Megrahi’s release: Kenny MacAskill was right Possibly related posts: (automatically generated)UK: Lockerbie terrorist to be freed on [...]

  2. [...] found this post by Jonathan Mitchell, QC.  It covers the law and some of the reactions in detail.  This is the [...]

  3. [...] Jonathan Mitchell QC >> Megrahi’s release: Kenny MacAskill was right http://www.jonathanmitchell.info/2009/08/24/megrahis-release-kenny-macaskill-was-right – view page – cached If Megrahi was indeed rightly convicted of mass murder, it is not in doubt that he acted on the orders of the Libyan government. He was a senior member of its intelligence service. Yet both the UK and US governments have for some years been on friendly terms with the people who, they say, ordered the desctruction of PanAm 103. They dine with them. They have cocktails with them when they meet at mutual friends. The week before Megrahi's release, as reported in the Washington Post, a delegation of four American senators led by John McCain met with Colonel Gaddafi to discuss the sale by the US to Libya of military equipment. In April, Hilary Clinton welcomed another member of the Gaddafi family, the regime's National Security Adviser to Washington. She said We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here. — From the page [...]

  4. bigrabNo Gravataron 26 Aug 2009 at 10:46 pm

    Fascinating blog and some of the most succinct and articulate writing I have found on Lockerbie. “MacAskill was right” is a brave and rather untypical conclusion from someone in the legal profession it seems.

  5. JMNo Gravataron 26 Aug 2009 at 11:09 pm

    @bigrab: Thank you, but I really don’t think there is anything either brave or untypical in this. There’s a reader poll yesterday in one legal newsletter, Scottish Legal News, which probably has a pretty good cross-section of Scottish lawyers:

    “We asked: “Was the Justice Secretary, Kenny MacAskill, right to release Abdelbaset Ali Mohmed al-Megrahi on compassionate grounds?”

    A total of 424 readers responded to the survey, with two-thirds (67.9 per cent) saying ‘Yes’, the minister made the right call. Nearly a third of respondents (32.1 per cent) disagreed with the decision. “

    A running poll in Firm magazine has 69% saying Yes to the question “Do you agree with the decision to release Abdelbaset Al Megrahi on compassionate grounds”, but the numbers aren’t clear and multiple voting’s possible in Firm polls; so by itself I wouldn’t put much store in this, but it corroborates SLN.

    Working in Parliament House, where this is of course the talk of the steamie, there seems to be a near-consensus among advocates I chat to that release was the only decision that could have been made.

  6. Ronan GallagherNo Gravataron 27 Aug 2009 at 3:25 am

    Superbly written, argued, and a deeply insightful piece here. I have long suspected that the release of Al-Megrahi suits those who so vociferously object to it more than they would like us to know. What is sickening and quite disgusting is the levels of hypocrisy they are willing to stoop to for their own political gain. Scotland and Mac Caskill have nothing to apologise for, indeed they are to be praised for doing the humane thing in the face of such hypocritical criticism. One remembers Mr Donald Rumsfeld hugging Saddam Hussein warmly in Iraq not long after the Iraqi leader had gassed thousands of Kurds, an atrocity which Rumsfeld and the US was fully aware of at the time but ignored because it didn’t suit their geo-political and economic agenda.

  7. bigrabNo Gravataron 27 Aug 2009 at 12:25 pm

    Thank you for clarifying that. It just goes to prove though that the law is open to interpretation even by experts. Perhaps more open in this case because of its unique nature.

    As a layman I tend to think that once the media hoo-ha has subsided that the justice minister’s decision will be widely seen as correct.

  8. [...] section in my original blog post) – Scottish lawyers and I have read the incisive views of Jonathan Mitchell QC, Professor Hector MacQueen and many others who commented on blog [...]

  9. More on Megrahi – Scottish Roundupon 30 Aug 2009 at 7:12 pm

    [...] at the decision. Lallands Peat Worrier takes a MacAskill-esque quasi-legal view of matters, while Jonathan Mitchell QC analyses the decision and concludes that MacAskill’s decision was the right [...]

  10. JGNo Gravataron 01 Sep 2009 at 1:17 am

    Why are all these legal folks so reluctant to actually talk about the findings of the SCCRC which led to Megrahi being granted leave to submit a second appeal? Compassion wasn’t actually needed. The Scottish Judiciary stands accused of nothing less than “scandalous” conduct by no less a person than the UN Observer at the original trial who also states that they were guilty of actually obstructing justice in repeatedly delaying hearing that second appeal. The findings of the SCCRC were considered powerful enough to lead to the original verdict being considered unsafe. How long ago was the appeal granted? June 2007. And even after the Scottish Judiciary knew Megrahi was almost certainly dying they delayed it again in April of this year, and then in May when some old judge needed heart surgery. A new date of October was mooted, then February 2010. It is disgusting. And here we have a QC saying McAskill was right. What about the Scottish Judiciary Mr QC? What about the material in the SCCRC report which strongly suggests we got the wrong man???? And why are you lawyers ignoring that, the sickest part of this whole mess?

  11. [...] Jonathan Mitchell, a Scottish QC, has a very good post on the release of Abdelbaset Al-Megrahi, which explains the background of releasing prisoners convicted of terrorism and/or murder in the UK: [T]he Westminster government released seventy-eight murderers under the Good Friday agreement. Some … [...]

  12. [...] Jonathan Mitchell, a Scottish QC, has a very good post on the release of Abdelbaset Al-Megrahi, which explains the background of releasing prisoners convicted of terrorism and/or murder in the UK: [T]he Westminster government released seventy-eight murderers under the Good Friday agreement. Some … [...]

  13. WardblawGNo Gravataron 10 Aug 2010 at 7:53 pm

    Scotland and Scots law needs to defend itself here. And what the Americans seem to be forgetting is that this atrocity was committed in Scotland’s air and on Scottish soil. Which means that jurisdiction over the matter is, unfortunately, the burden of Scotland. And the applicable law is also that of Scotland. Which means that Scotland is master of the relevant law, not the US. Of course the US has interest here, but does it have title? WardblawG fears that the international law issues go above its young head, but the consensus and the true position is that Scotland is master of its domain here despite and because of the evil of a terrorist.

  14. [...] the position on the appeal (see the position of one senior Scottish QC, Jonathan Mitchell at http://www.jonathanmitchell.info/2009/08/24/megrahis-release-kenny-macaskill-was-right/ ), & Megrahi’s decision to drop his appeal may have been tied to his government’s [...]

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