Friday, 28 August 2009

A hero's welcome

Scotland’s First Minister says Abdelbaset Ali Al-Megrahi’s release ‘was the right thing to do in terms of the Scottish justice system’. But Scotland’s justice system did not release Mr Al-Megrahi, nor did it send him back to Tripoli.

While our law makes provision for the release of prisoners on compassionate grounds it’s a political decision whether to do so. Professor Alan Miller is right to call for an impartial tribunal to ensure that such decisions are no longer political.

I’m no expert on the Lockerbie case but I know one thing. Despite the claims that Kenny MacAskill was exercising a ‘quasi-judicial’ function, the decision to release Mr Al-Megrahi was not made in judicial language. If it had been it may have been difficult to fault.

After all, section 3 of Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the Scottish Ministers power to release a prisoner on licence if they believe there are ‘compassionate grounds’. But Mr MacAskill’s language went far beyond section 3.

He used this case to make a political speech to the world.

A speech about the ‘Government of Scotland’ and its independence; a speech which picked a fight with the UK Government on a premature application for prisoner transfer; a speech which conflated the legal test of ‘compassionate grounds’ with nationalist propaganda asserting compassion as a defining characteristic of Scots and Scotland.

This episode shows us why politics and judicial decision-making are dangerous bed fellows.

Some media commentators have suggested Mr MacAskill’s religious reference was a play to a US audience. Whatever it was, it was a serious lack of judgment to talk about a ‘sentence imposed by a higher power’ in the context of a terminal illness. What does this say to people dying from cancer?

For me the most contradictory part of Mr MacAskill’s speech was his rejection of the prison transfer request from the Libyan Government while authorising Mr Al-Megrahi to return to Libya.

Leaving aside the fact there was an outstanding Crown Office appeal standing in the way of that transfer application, our Justice Minister found that the American relatives of those killed in the Lockerbie bombing, and the US Government, ‘had an expectation or were led to believe’ any sentence would be served in Scotland. For that reason, he rejected the prisoner transfer request.

So why did he permit Mr Al-Megrahi to return to Libya?

A prisoner released under section 3 of the 1993 Act is still under sentence. He is only released on licence, subject to conditions, and liable to be recalled to prison if those conditions are broken.

In other words, upon release Mr Al-Megrahi continued to be subject to a sentence imposed by a Scottish court. According to our Justice Minister’s reasoning it would have been a disservice to the American families of the victims, and the US Government, to permit him to return to Libya.

So why did he authorise his return to Libya?

Why didn’t he require Mr Al-Megrahi to reside in Scotland, under licence, and in keeping with the international promise which he valued?

Remarkably, this option was dismissed with no explanation save one brief sentence: ‘Clear advice from senior police officers is that the security implications of such a move would be severe’.

How severe? Would it have been impossible?

Was consideration given to a move to another part of the UK? If not, why?

These questions require substantial answers.

Release on compassionate grounds did not mean allowing Mr Al-Megrahi to return to Libya.

The political naivety of our Justice Minister was available for the world to see when Mr Al-Megrahi was given a hero’s welcome on his return to Tripoli with saltires waving.

As the dust from this decision gathers into a storm, let us be clear about one thing. It wasn’t the people of Scotland or Scotland’s justice system that sent a convicted mass murderer back to a hero’s welcome.

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