On 24 October The Scotsman newspaper carried a story detailing all the prisoner compassionate release cases since the beginning of devolution in Scotland – 25 altogether. The Scotsman’s line was that Megrahi had already outlived five in terms of the numbers of days survived after release. For me, there were other points of interest. All of those released bar Megrahi and one other released on 18 September 2009 are dead. Three of those released apart from Megrahi had been convicted of murder. Seven were released by Lord Wallace, eleven by Cathy Jamieson and so far seven by Kenny MacAskill. (Six prisoners were released on compassionate grounds between 1993 and 1997 (when, if you remember, we had a Conservative Government and a Secretary of State for Scotland actually running things.) Seventeen of the post-1999 releases were because the prisoners in question had cancer. The longest liver lasted 271 days after release: other relatively lengthy survivals included periods of 182, 173, 168, 119 and (twice) 98 days (all therefore somewhat in excess of the three-month period mentioned in the Scottish Government policy guidelines on the subject). All but one of these relatively long survivors had cancer; the exception had AIDS.

On 12th Oct I have been invited to Dohar to debate and oppose the motion

‘This house deplores the return of the Lockerbie Bomber to Tripoli’

Incidentally I’m told the Doha debate will be broadcast on BBC World News:
on 24th Oct at 07.10, 15.10, 19.10 (GMT)
and 25th Oct at 00.10, 07.10, 15.10, and 20.10

I am much in tune with your comments re the compassionate release of Megrahi, and delighted that the poor guy is now at home with his much-loved family.

I strongly support his release and object to the casual use of the phrase ‘the Lockerbie bomber’. I am satisfied that he was not guilty as charged, and in view of the SCCRC findings, if nothing else, should be described at worst as ‘the man found guilty of the Lockerbie bombing’.

I would like to discuss the release issue with you if you can find the time, and it might well be that we would find some advantage in keeping in touch, specially as it begins to look as if the verdict may now have to be reviewed somehow, despite the withdrawal of his appeal.

For your interest, below is the text of what I said to MacAskill before the decision had been made.

Best wishes,

Jim Swire

Jim Swire, to Scottish Justice Secretary, Kenny MacAskill 1/7/09

Secretary,

The prisoner transfer agreement (PTA), which is among the subjects we will raise with you today was born in what the media have come to refer to as ‘the deal in the desert’ between Prime Minister Blair and Colonel Gaddafi.

We, relatives of some of those who died aboard the Maid of the Seas in 1988 come from a deeper darker desert of more than 20 years duration: the desert of loss in which we have searched for truth and justice. During those 20 years, time and again, we have been denied an inquiry by a whole succession of English Prime Ministers. Almost the only light to shine into that darkness has been those aspects of the truth which we have gleaned from study of the evidence led at Zeist. You will find us make common cause for the continuation therefore of the current appeal as being the only currently available vehicle for discovering more of that truth we crave, and to which we have an unalienable right.

I am grateful for the opportunity to put my personal views to you today, that is both a privilege and an honour. I know that within our group there is great hope that the current appeal will clear up the major doubts surrounding this verdict and throw some light on the truth we seek as to how our beloved families came to be unprotected, and whose was the hand that slew them. But today my plea is an individual one from the heart.

You have the great responsibility of deciding how to balance the needs of Scotland, her criminal justice system and her people, against what shall be the impact upon the prisoner Baset Al Megrahi, who till now has always maintained his innocence and his desperation to clear his name.

You have the new procedure of the Prisoner Transfer agreement (PTA) to consider, and the knowledge that Baset is dying in his prison cell and that his presence there adds nothing to the judicial process, any more than his release could further endanger the public.

I may speak only for myself, but for you to take any step that would abort the current appeal would be anathema to me and I believe to many other UK relatives. I realise that for Baset’s present appeal to continue, is an expensive option in terms not only of money, resource allocation and their Lordships’ time, but also raises the possibility that the decisions made by some of Scotland’s most eminent judges at Zeist, and the behaviour of the Crown Office and Scottish police might be called into question should the appeal succeed. Such possibilities will lead to pressure upon you as you make your decision.

On the other hand, to allow the appeal to be abandoned would be a body blow to the international reputation of Scotland and to domestic confidence in our judicial system for a generation. I suggest that the decision to use the PTA and so stop the appeal would, in the longer term, be even more dearly bought than to allow the appeal to continue.

Immediately following the issue of indictments against the 2 Libyans I went to see Colonel Gaddafi to plead that he allow his 2 citizens to attend trial before a Scottish Court under what I believed to be one of the most distinguished and fairest systems of criminal justice of any country. After the intervention of a number of eminent people around the world, the Colonel agreed, and I remained in court throughout, to listen to all the evidence.

I found that far from underlining their guilt the evidence convinced me that the two were simply not guilty as charged. That view has been amplified since by the spectacle of a number of international observers and jurists adding to a flood of public criticism about the lack of fairness of the trial, and by new evidence coming to light, especially that concerning the Heathrow break-in.

But we must look closer to home within our own Scottish borders for the most significant criticism of the trial process: to the SCCRC. As you know sir, they found that, partly on account of a failure by the Crown to share evidential material with the defence, there was a significant risk that a miscarriage of justice might have occurred. Hence the current appeal.

We are the inheritors of a justice system of which our great nation, Scotland, has been the proud protector for centuries, and over which you now have great influence. Faced with the spectre that Zeist may have been a miscarriage of justice by that great system, during what is arguably the most significant case it has ever handled, I feel sure that you will want to ensure that the name of Scotland and her justice emerge at the bar of history vindicated. For that to be evident to the historians of the future, our judicial system needs to be seen to have reacted responsibly from within its own resources to the challenge which this case has presented.

The SCCRC findings were but a first step in such a process of self examination. To continue that process we need to see our best legal minds re-evaluating the evidence, both original and new, to decide whether this verdict should stand. That seems to demand the continuation of the present appeal.

The news that there had been a break-in at Heathrow airport on the early morning of the disaster, and that information about it had remained unknown till after Baset had been found guilty, has led me to write personally to Elish Angiolini our current Lord Advocate, as a vital member of the existing Scottish justice system to ask her to do three things:-

1.) To discover whether the Crown Office had evidence of the break-in during the 12 years that it had remained hidden.

2.) If no such evidence could be found, to show why it had not been passed to the Crown Office by those who must have discovered it during their conduct of the criminal investigation.

3.) To consider whether a fresh Fatal Accident Inquiry(FAI) should be initiated in view of the misdirection given to the original one namely that the court was to presume that the explosive device must have come from Frankfurt.

It must be clear to any objective observer that the absence of this information influenced the fairness of the Zeist trial, and rendered the FAI unable to examine all factors which might have contributed to the deaths. The absence of an explanation for its having lain unmentioned for 12 years has led to grave accusations against the Crown Office by one of the UN’s appointed observers, Prof Hans Koechler, and no doubt these matters will be faced up to if the appeal continues.

My letter to the Lord Advocate of 5th June this year remains acknowledged, but as yet unanswered.

In a letter to our group’s co-ordinator, Jean Berkley, and dated 19th June this year, Jack Straw, your opposite number at Westminster wrote “As the (PTA) was the first …. to provide for the transfer of a prisoner without his or her consent… the Joint Committee on Human Rights requested additional time to consider the human rights implications of this….” Jack Straw then refused to allow that committee the full time that they had asked for, to consider those Human Rights implications.

You, Sir, however under the provisions of the PTA have at least 90 days from the date of the Libyan government application, to consider the balance between the prisoner’s rights, the needs of the Scottish public to have faith in their criminal justice system and the needs of the relatives of all nationalities to know the truth about who murdered our family members, and why they were not prevented from doing so.

I think that the eyes of those proud Scots who gave the world the Enlightenment and guarded our legal system so well will be upon your decision.

To use the PTA would be to stop the second appeal and would cost our country the best chance of showing that it can objectively assess its own past performance and if necessary be brave enough to correct it from within, even in the face of gross international pressures.

It would also grievously damage the search by innocent relatives for the truth concerning the murders of their dear families.

You have, Sir, an alternative which again appears similarly to carry no legally enshrined requirement on the part of the prisoner to initiate its use. That would be to grant him Compassionate Release (CR). The decision to do that could include provision to return him home just as soon as the PTA could, but without compromising the ongoing second appeal.

I began by pointing to Baset’s position, he has always maintained to me that he is innocent but that he did not wish to return home to his beloved family until his name, and that of his family for the future had been cleared. I acknowledge that for you the responsibility for resurrecting the good name of Scottish justice through the continuation of this appeal is a far greater issue than the needs of an individual convicted prisoner.

But I am here simply as a father who is determined to find out who murdered his daughter and why they were not prevented from doing so. I have a right to know these things, but as an individual I have never sought revenge, for vengeance must remain in the hands of a far greater Power than you or I Sir. Thus I have applauded the easing of the enmity between Libya and Britain, but I have also empathised with the fate of one man, now dying, and his family, whose continuing torturous separation serves no purpose in the administration of justice, beyond being a means of reducing the cries of outrage raised by those who set aside the precepts of human kindness.

Use of Compassionate Release(CR) would allow Baset home knowing that review of his case could continue. It would gloriously fulfil the Christian exhortation ‘love thine enemy’ for many I know regard Baset as such.

Use of CR would also mean that those innocent relatives who seek the truth and desperately hope therefore that the appeal can continue and reveal more of that truth would get their wish.

We or our descendents will be around to see how history judges the great decision which it falls upon you, Sir, to make.

I wish you wisdom, integrity and human kindness in making that weighty decision.

Dr Jim Swire, Father of Flora age 23, one of 270 people killed at Lockerbie 21/12/88.

[Since this was written the Crown Office have replied. Interestingly they both claim that they didn't know about Heathrow and claim that the Heathrow material wouldn't have made any difference had it been known to the trial court: amazing.]

Here’s a nice wee pic of the welcome party for Megrahi’s boss in Washington DC on 21 April this year: http://www.state.gov/r/pa/ei/pix/2009a/04/122021.htm .

The text says this: (http://www.state.gov/secretary/rm/2009a/04/121993.htm ):

SECRETARY CLINTON: I am very pleased to welcome Minister Qadhafi here to the State Department. 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.
NATIONAL SECURITY ADVISOR QADHAFI: Thank you.
SECRETARY CLINTON: Thank you. We’re delighted you’re here.
NATIONAL SECURITY ADVISOR QADHAFI: Thank you.
SECRETARY CLINTON: Thank you all very much.

I’m interested in how common compassionate release on the grounds of terminal illness is, in both Scotland and England. The figures you quote include short-term release. Do you also have more specific figures?

Both Scottish and English law have moved far in the last twenty years to recognition, as a ground of challenge to an essentially discretionary decision, of the proposition that the language of a policy, or indeed its actual operation, may give a person a right to complain that it is not being applied to them. The leading case is usually taken to be Coughlan, 1999 EWCA Civ 1871; see paragraphs 55 to 59 in particular. As a particularly striking example, I’d point to Rashid, 2005 EWCA Civ 744, where the Home Secretary was held to a policy although (a) he didn’t know he had such a policy and (b) the petitioner didn’t either (and yes, I know that sounds wrong, but it’s a fair summary). This has been applied in Scotland, e.g. AA, 2008 CSOH 83, which summed up Rashid as “inconsistent and therefore unlawful application of a policy“. I had a case a couple of months ago where the Home Secretary said “the language of my policy means X”; in itself, that was thoroughly arguable as the language was ambiguous, but on it being pointed out that the year before he had said it meant the opposite he put his hands up; he didn’t suggest that because it was his policy it meant whatever he said it did, but accepted that the inconsistency was necessarily unlawful; and he was right to surrender.

Had the Justice Secretary turned round last month and said “I know it’s never been the policy to allow the seriousness of the crime to trump terminal illness, but in reaction to this case I am changing that”, ex hypothesi retrospectively, he’d have been challenged by judicial review, and I repeat that I think the prospects of that challenge succeeding would in my opinion have been excellent.

This is not a full description, but a summary, of the law.