The Scottish Government today released a fair amount of background documentation on the decision to grant compassionate release to Megrahi (better indexed, I think, here on BBC Scotland). There are still a number of documents which for one reason or another haven’t been published, such as the representations made by the US government, for which the US Embassy refused permission.
The full text of Scottish Government policy on compassionate release has not however, I think, been made public. Thanks to a correspondent who sent me a copy of this, it is now published on this site. It is much fuller than the summary of the policy in the Justice Secretary’s statement, though I emphasise that the summary was fair and accurate.
The Prisoners and Criminal Proceedings (Scotland) Act 1993, section 3 is the enabling section (it will eventually be replaced by section 27 of the Custodial Sentences and Weapons (Scotland) Act 2007, but there is no real difference). This gives a wide discretion. The full policy is in this Scottish Prisons Service circular of June 2005. The general principles are in paragraph 4, which was quoted in Kenny Macaskill’s statement. It will be seen that it is a condition that there are specific arrangements in place for care and treatment on release, which knocks out the suggestions that there could have been release to a house in Newton Mearns, or a hospital in Glasgow, or indeed anywhere else in the UK.
As a comparison, there are similar provisions in England. The English policy is published here and is pretty much the same as ours; see part 12. It’s made under section 30 of the Crime (Sentences) Act 1997.
In each case, these are the totalities of the policies to be applied. There have been at least two legal challenges by prisoners in England (none that I know of in this country though) to a failure to release; R v Home Secretary ex parte Spinks  EWCA Civ 275 and R v Minister for Justice ex parte AS,  EWHC 1315 (Admin). Both were unsuccessful, because the minister had faithfully applied the policy to the facts. In Spinks, paragraph 16, it was pointed out that UK Government policy was to apply the published policy in all cases; there were no hidden exceptions. The decision in Spinks is encapsulated in this passage:
51. The Secretary of State is required to consider whether there are “exceptional circumstances” and “compassionate grounds”. The written Parliamentary answer of 15 February 1999 states the criteria which the Secretary of State uses in all cases. It is not suggested that these are inappropriate criteria or that they are incomplete. They include relevantly that the prisoner is suffering from a terminal illness and that death is likely to occur soon and that the risk of re-offending is past. Addressing “exceptional circumstances” and “compassionate grounds” against these and the other criteria necessarily demands a judgment of balance. It is for the Secretary of State to evaluate that balance. Where, as here, the Secretary of State has clearly given detailed consideration to Mr Spinks’ condition in the context of possible release, the court would not require the Secretary of State, by whatever particular order, to take the matter further unless the court concluded that the Secretary of State’s balance evaluation was plainly wrong.
52. There has to be added to this analysis consideration of Article 3 of the Human Rights Convention. If Mr Spinks’ continued detention amounted to a breach of Article 3, the Secretary of State would be obliged to take steps to stop the breach. It may be possible to stop the breach by means other than releasing the prisoner. If the only way of stopping the breach was to release the prisoner, the Secretary of State would be obliged to permit release. In the context of Section 30 of the 1997 Act, this may be seen as meaning that, if there is a breach of Article 3 and the only way to stop the breach is to release the prisoner, the balance of “exceptional circumstances” and “compassionate grounds” has to fall in favour of release.
Both countries have also short-term compassionate leave for prisoners, and in England between 1 December 2002 and 30 November 2004, 1,273 licences were granted on compassionate grounds for offenders serving sentences for murder.
The European Convention of Human Rights is also relevant, as the English Appeal Court pointed out in Spinks, particularly because the scheme of Scottish devolution is of course that the Scottish Government has no legal power to act in breach of the Convention. In one recent case, Aleksanyan v Russia,  ECHR 1745, the European Court summed up the caselaw thus:
136. The Court often faces allegations of insufficient or inadequate medical care in places of detention. In exceptional circumstances, Article 3 may go as far as requiring the conditional liberation of a prisoner who is seriously ill or disabled. Thus, in Farbtuhs v. Latvia, (no. 4672/02, 2 December 2004), the Court concluded that the detention of a disabled 79-year-old applicant was in breach of Article 3 on account of “his age, infirmity and health situation” (see also Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001).
137. In deciding whether or not the detention of a seriously ill person raised an issue under Article 3 of the Convention, the Court has taken into account various factors. Thus, in Mouisel v. France1, no. 67263/01, §§ 40-42, ECHR 2002 IX) the Court examined such elements of the case as (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant.
Thus, on the published facts of Megrahi’s case, had the Scottish Government refused to allow compassionate release in terms of a policy which had been applied by it and its Lib-Lab predecessors, and before them by Labour and Conservative Secretaries of State alike, it would have been open to legal challenge with excellent prospects of success (see, for discussion and expansion of this statement, comment below by FP Heur and my reply). That’s the way the law works; it doesn’t suddenly cease to operate because the person claiming its benefits is criminal, or a foreigner, or because release is politically undesirable. Still less because of the improbable suggestion that Americans will boycott Scotland and all its works if Scots law is applied impartially and judicially.
As another comparison, French law has since the law of 4 March 2002 (Code of Criminal Procedure, Article 720.1.1) provided for compassionate release “regardless of the nature of the sentence or the portion remaining to be served … where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital.” This, incidentally, followed a Report by the National Assembly which had criticised the failure to release the terminally ill in language equally true in Scotland, saying this:
The presence of [the very ill] in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches.
All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff.
There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained.
This approach to compassionate release is not unusual worldwide.
The Committee of Ministers of the Council of Europe, effectively representing European governments as a whole, said this in 1998:
The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.
I cannot imagine that the release of Megrahi will in a few years be seen as a worse decision than the UK Government’s decision to release seventy-eight murderers who had collectively murdered far more people than were murdered at Lockerbie; or the US Governments decision to release a murderer of (per his conviction) twenty-two after three and a half years house arrest; or the UK Government’s decision that Pinochet should never face murder charges because of his supposedly poor health.
But had the decision been to abrogate the law so that Megrahi would die in prison while Musa Kusa and Colonel Gaddafi himself are fawned on by Washington and London, that would, I think, have come to be seen as shameful.
I’ve been reminded of the Appeal Court’s decision on Megrahi’s bail application in November 2008,  HCJAC 68, when the Crown in opposing bail pointed out that compassionate release was an option for any convicted prisoner. Apparently the policy document was produced and referred to. The Court said this:
 The Scottish Ministers have a statutory power to release a serving prisoner on licence on compassionate grounds. Advice has been issued as to the exercise of that power. Broadly speaking, in the case of a prisoner suffering from a terminal illness, life expectancy of less than three months may be considered a condition appropriate to occasion early release. It is not suggested that the applicant presently meets that criterion.
 This court is not constrained by such considerations. It can take a much wider view of any compassionate considerations urged upon it. [...]
 The discretion conferred on the Court to admit a convicted person to bail pending the determination of his appeal is widely expressed. The Court may, subject to certain provisions which are not applicable here, so admit such a person “if it thinks fit”. In the judgment of the Court the most significant factor in the applicant’s favour is the state of his health. The Court is unsurprised that, notwithstanding that grounds of appeal were lodged in December 2007, no application for bail was presented before now. Absent the recent diagnosis, the prospects of success of such an application would have been remote. The critical question, as the court sees it, is, against the background of the atrocity of which the applicant stands convicted, whether the applicant’s health, present and prospective, is such that the Court should on compassionate grounds now admit him to bail. On balance the Court is not persuaded, on the information before it, that it should. While the disease from which the appellant suffers is incurable and may cause his death, he is not at present suffering material pain or disability. The full services of the National Health Service are available to him, notwithstanding he is in custody. There is, it appears, no immediate prospect of serious deterioration in his condition. The prognosis for its development is at present uncertain. If he responds well to the course of palliative treatment which he has now started, his life expectancy may be in years. If he does not respond well, that expectancy may be less good. While recognising that the psychological burden of knowledge of an incurable fatal disease may be easier to bear in a family environment than in custody, the Court, having regard to the grave nature of the conviction and taking into account the fact that a reference has been made and the fact that the appeal process is likely to be protracted, is not persuaded that the stage has been reached when early release is appropriate. If the applicant does not respond well to the treatment he is undertaking and the prognosis becomes both more certain and poorer, a stage may then be reached when a different disposal is appropriate.