Lockerbie bomber released on compassionate grounds

The Lockerbie bomber is to be released on compassionate grounds, the Scottish Government has announced.

The BBC reports: Abdelbaset Ali al-Megrahi, 57, was jailed in 2001 for the atrocity which claimed 270 lives in 1988.Scottish Justice Secretary Kenny MacAskill revealed that the Libyan, who has terminal prostate cancer, would be allowed to return to his homeland.

Let me explain what my opinion is on this:

1.  Al-Megrahi was convicted by a Scottish court and tried under Scots Law at a specially convened court in the Netherlands.

2.  Dealing firstly with the issue on the premise that he was rightly convicted.  Clearly, it is within the power of the Scottish Justice Secretary Kenny MacAskill, who admitted the correctness of both conviction and sentence, to order release on compassionate grounds.

3. Al-Megrahi committed an act of international terrorism.  The United States, the United Kingdom and many other forces from the coalition are currently fighting a war in Afghanistan to drive terrorism from our lives.  Men and women are being killed daily; giving their lives so we may be secure. That is the political premise on which the war is being fought – and whether you agree with that war or not, the fact of men and women dying in our name is clear and beyond doubt.  What sort of message does the early release of a convicted terrorist send to the ‘forces of evil’?, to the men and women on the ground in Afghanistan fighting in our name for our long term security?

4.  For my part – I agree with Carl Gardner – whatever the evidence of Al-Megrahi’s terminal condition – he should have served his full sentence in Scottish custody.

On the premise that he was wrongly convicted:

5. There are many who voice concern and discomfort that al-Megrahi may not be the person who committed this atrocity. Certainly, no-one else has been convicted.  This has been well documented and I need not rehearse the matter here

6.  If he was wrongly convicted, the proper process is to appeal.  Perhaps an appeal should have been allowed much earlier?  I cannot comment – I am not familiar with the processes of Scots Criminal Justice. He dropped his appeal earlier this week.

7. There are those who suggest that his release was political.  I agree with Carl Gardner and many others I suspect –  that if there is even a hint of political dealing for trade  here with Libya it would be shameful  – those responsible should be held to account and resign from their posts.  They are not, clearly, fit to govern our nation.

8.  I don’t have much interest in the purely emotive arguments being advanced in newspapers in this country and overseas – although the relatives of those who died, of course, have my sympathy.  This decision is about the rule of law and about nothing else. What value is criminal justice in such an appalling case of atrocity (in contra distinction to the early release of Ronnie Biggs?) when the law, already merciful in the sense that the death penalty has been abolished in our country) and the sentence of a properly constituted court is not carried out?    I don’t always agree with Carl on complex issues – but on this he is dead right – would the Scottish Justice Secretary be releasing al-Megrahi on compassionate grounds if most of those who died in that atrocity had been Scots?  It would be a political disaster for the ruling party in Scotland, I suspect.

9. This man is a proven and convicted killer of 270 people.  He is not a Ronnie Biggs.  I just hope this weakness on the part of the Scottish government – a view I hold and which I am entitled to hold – does not come back to haunt us, whether Scots, English, American, Canadian, European or other nationality.

As ever… your views and thoughts are most welcome in the comments section.

IMPORTANT UPDATE

If you would like to see a serious politicians view on this decision - Tom Harris MP, Labour member for Glasgow South – whatever your politics - please do read this… it is measured and very pertinent.  More particularly written by a Scot – albeit an MP in Westminster not the Scottish parliament. Tom Harris’s view may, I hope, be shared by many.

***

UPDATE 21st AUGUST

BBC – Lockerbie Bomber returns.

Here is the BBC Report… I just wonder, in the light of this report,  if  the Scottish Justice Minister still feels that he got it right?  The bomber appears to be being received as a  conquering hero….I could be wrong – but there are a hell of alot of very happy Libyans in the film….

Will the Scots Justice Minister feel quite so pleased with himself when he sees this? Compassionate Justice?  No… political grandstanding?  Beginning to look like it. A pretty shoddy lapse of judgement… well done Scottish Parliament – own goal, I think… but.. what do we mere citizens of the United Kingdom know? …. compared to the all seeing lawyer politician who runs Scotland’s Justice Ministry?  – rather depressing.

I have to say… not that I am a medical man…. that al-Megrahi looks rather well… will he do a Saunders (Guinness fiasco/farrago)? … will he rise like Lazarus from the dead? … to coin a rather old biblical metaphor.

Do read Tom Harris MP’s post – link above –  for a viewpoint from a politician from Scotland – I am not making a political point – I just think it would be worth doing so.

The Scots Justice Minister is a defence lawyer, so, one presumes, has some acquaintance with the law, concepts of justice, the rule of law, – but maybe he just doesn’t understand the appeal process in Scotland?…  the fact that judges should be independent and that politicians should not really meddle in the rule of law (or, indeed, at all) …or  the judicial process….  of course… I may have missed the point entirely, not being attuned to law across the border and that Scots Law can accommodate convenience without in any way being devalued and humiliating themselves on the world juridical stage.

Surely this cannot be about what Libya can do for Scotland? .. or is Alex Salmond  (or even our real UK wide politicians in Westminster – as opposed to what may as well be a local council masquerading as a proud parliament in Edinburgh) about to announce an ‘Arc of prosperity from Edinburgh to Tripoli”?  I  really do hope not

UPDATE 21st August

From blogger Loveandgarbage

A very well argued piece from a Scot about the Scottish Justice Secretary:  MacAskill: still unfit to be Justice Secretary

UPDATE

22nd August I am grateful to @ advoc_8 for this sane and sensible assessment of Lockerbie by Alistair Bonnington
Formerly of Glasgow Uni Law School’s Lockerbie Trial Briefing Team

US FBI Director highly critical - read his letter to Scots Justice Secretary

UPDATE

24th August

Jonathan Mitchell QC Megrahi’s release: Kenny MacAskill was right

35 thoughts on “Lockerbie bomber released on compassionate grounds

  1. I rather suspect the abandonment of the appeal against conviction was to clear the decks for his release. I once had a – much less dramatic – example of this type of problem. A man who had completed his sentence was kept in custody as he had an ‘outstanding case’ – namely his appeal against sentence!

  2. Pingback: StealthCereal | “Scotland Frees Lockerbie Bomber” and related posts

  3. The “compassion” being shown to Megrahi is in sharp contrast to the total lack of compassion shown for the victims of the bombing.

    Sufficient compassion would, I think, have been shown by allowing him contact and visits with family over his last months whilst he continued to serve his sentence in prison / hospital.

    If there are doubts about his conviction then that is a different issue – but unless and until an appeal has been succesful I don’t believe it is wise to effectively overturn the sentence in this way.

  4. This was his second appeal: he lost the first. The second appeal is due to the Scottish Criminal Cases Review Commission stating there were grounds for concern in his conviction.

    http://www.sccrc.org.uk/ViewFile.aspx?id=293

    I don’t think Megrahi was entirely innocent, but I don’t think he was the mastermind either. He’s a mid-level ‘baddie’. What I object to is the fact that he went through the Scottish judicial system, was found guilty (rightly or wrongly), was appealing his case again…and suddenly, because he’s ill, the goalposts change.

    Yes, he’s going to die, but why does that fact short-circuit the whole judicial system? Just because he knows he’s likely to die soon, why should that free him? We’re *all* going to die eventually: if you commit a crime (or are sentenced for a crime) you’re going to prison…and there’s always going to be a chance you’ll die there. Why does the certain knowledge you’re going to die soon trump the legal process?

    Maybe it’s our systems fault for taking 2 years from when the second appeal was referred…what the verdict of that appeal would have been, we’ll never know now. And he’ll go home and be treated like a hero (apparently on of Gadaffis sons was to pilot the jet he was going back in).

    Although at least he wasn’t released on the prisoner transfer agreement that was negotiated without the Scottish Governments knowledge / input!

  5. What, all we all of a sudden giving out FREE Lunches? Since when??? Under what premise? Did this guy learn his lesson? Who knows, right? Well I guess we’ll have to find out the hard way, maybe???

  6. @therealjovan – a very pertinent point…. inevitable, really. Did gaddafi’s son pilot the aircraft?

    Why were our politicians in Libya… Lord Mandelson… was he is Libya only recently… ‘not discussing this issue’…

    It would seem that Scotland (and I am a Scot) controlled British Foreign Policy on this issue…. this will, in my view, rebound on the Justice Minister in Scotland in a big way – I just hope that it doesn’t lead to Britain being perceived as weak on terror…. that, given the dead in Iraq, the dead in Afghanistan (All dead… not just ours) would be tragic….

    I do hope that it isn’t just grandstanding.. and I found it rather sad that some of my countrymen are glad because it pissed off the USA. I don’t like emotive argument. I am not interested in emotive appeals ‘as such’ from US Senators or political pressure from Clinton. I am interested in the rule of law and, I fear, the Justice Minister in Scotland has undermined his country’s Rule of Law and should resign. I don’t like political interference from the States.. but… we are allies and I do think this decision is very wrong.

    I think the Americans are right – and the Scots are wrong… but..hey.. I don’t get a vote in Scotland because I don’t live there.. but I can and will say that I am appalled by the actions of the Scottish Executive on this one…. they have made a bad error… i just hope that they, or anyone else, gets a taste of how bad their error is.

    I think their sanctimonious bollocks about ‘compassion within a justice system’ was an even bigger disgrace… that was political sleaze of the very worst kind…

  7. (From Twitter) Good summary – but how could one possibly support the release? Is there any information about why this man released him? And is it true that MacAskill once called the England football team ‘the great Satan’?

  8. I am a Scots lawyer who had family in Lockerbie on the night of the disaster. I think the process here was handled very badly by the Scottish justice secretary, but myself and my family (including my sister who is still being treated for PTSD having been under 12 at the time of the disaster) believe that release on compassionate grounds is appropriate.

    I wrote briefly on this and MacAskill’s handling of the process last night at http://loveandgarbage.livejournal.com/315121.html and will post again this evening/tomorrow on the final decision.

    Scott

  9. assuming he was the right man (and that smells like total nonsense) i am in favour of releasing him. let him die with his family. i hope i would feel that way if i had lost relatives in the bombing. i completely understand all those who did lose relatives and are dead set against release.

    the political element – given that it really can’t hurt the dead, is there not an argument that if it benefits the country as a whole (governments do these things not just so they look good – because this appears a ‘courageous’ decision a la sir humphrey) it is a sensible move? if it is going to win some hearts and minds in libya or elsewhere and that saves lives, well why not?

  10. (From Twitter)

    Can’t help but think Kenny Macaskill saw today as an opportunity to flex muscles on world stage, and go against US opinion. An odd decision.

    I only realised it was an odd decision when he was trying to explain it. Before that I though release seemed the only decent thing to do. The comparison between the compassion shown by each party was powerful.

    There is a big risk of egg on face if Megrahi receives hero’s welcome or makes indignant public speech. For that reason, the release was probably a mistake.

  11. Loveandgarbage and others… Thank you for posting your thoughts…. this is an important issue – and particularly helpful and interesting to get many views.

    I am worried that the appeal being dropped may have saved a few skins. The view that the first trial was unfair is important – now it will never be tested. But many, including those who lost loved ones in that disaster, are uncomfortable with the original trial/verdict…..

    It may well be, now, that we never get to the truth. Emotion is important in life – emotive argument, however, is not helpful. I am very persuaded by those who lost loved ones and yet are not convinced that Justice was done.

    I set out my views in clear numbered paragraphs for a reason – to set out a position without emotion. I am merely, as many are, an observer – but I am very interested in hearing from all who have a view, particularly those close to the atrocity and those who know the Scots Justice system…..and those from the USA where most of the victims came from.

    I have seen comments on political blogs about this – which, frankly, are politically inspired invective. This issue, as many of our issues these days are, deserves rational, objective and above all… honest analysis.

    I am not persuaded by Gung-ho US attitudes as expressed in various polemic blog posts and news commentaries – few are.

    Scotland has an independent legal system; a very old and thoughtful legal system – was the Scottish Justice Secretary right to make this decision?

    Was it politically inspired grandstanding? Was it a two-fingers to America as many ‘Bravehearts’ who are too myopic to see the reality of the issue ( a personal view having visited a few Scots blogs) have suggested?

    I have given my view without being emotive – but I don’t live in Scotland now, although as you know, I am a Scot. I am not close to it. I am not a Scots lawyer… was this decision right or wrong?.. from the standpoint of the rule of law in Scotland? Should this have been a British issue?.. or are we seeing a variant on the West Lothian question? I do hope not…. but I do worry that an MSP may have got himself – and us – into more than he should have been able to do?

    Once that question is answered… politics can take its turn. I don’t think that is an unreasonable line to take.

    Thanks to all who have put their views. Hey… this is a small blog…. and will only ever be that…. The Scots Justice Secretary won’t even hear about what we are saying here, let alone read about it… but… you know how to get in touch with him… should you wish to….. through the Scottish Parliament – and Scotland is a very old democracy!

  12. Those arguing for preferring the man’s appeal may not have allowed for the fact of his death in 3 months or so. Would the appeals process have been completed by then ? Or would it have continued past his death ? I doubt either.

    I am not arguing the case either way, just pointing up some practicalities.

    Alan Douglas

  13. I’m still gathering my thoughts on this as I don’t really know what I think but I’ll say this:

    How can it be right that the British* Government is locking up “suspected” terrorists and holding them indefinitely, without trial and in some cases without charge whilst at the same time releasing a man convicted of an act of terrorism on compassionate grounds. It seems perverse to me.

    *British/Scottish? I’m at a loss to how this works now.

  14. Alan – you make a fair point. That is why I asked if the appeal process could have been heard earlier. Some are suggesting that the appeal may have been successful and that embarrassing material would have been disclosed… I have no idea, of course, if that is the case – for now there will be no appeal…. he dropped his appeal… is that a full admission of guilt or was this expediency to ensure his return to Libya?

    Again.. I don’t know…? Any Scots lawyers able to cast light into this for the benefit of their English & Welsh colleagues?

  15. Here are some more thoughts on Megrahi release, because I have been left feeling decidedly uncomfortable about just how wrong Scotland’s Justice Minister, Kenny Macaskill, got this decision.

    I am in practice at the Scottish bar, often in the very building where the lawyers and judges who were involved in this case practice. The professionalism of all those involved means I have not a glimmer of inside information, but I do understand the fundamental principles our system operates under.

    By way of context, I do not accept any conspiracy theory that the conviction was motivated by anything other than a full and careful assessment of the evidence at trial, by three superbly able judicial minds. The whole culture within the Scottish judicial system is of fierce independence from political influence. Independence in general is a cornerstone of practice at the Scottish bar at all levels – from the most junior intrant to the highest judge.

    The question of whether Megrahi is guilty or innocent is a matter upon which many hold a view. However I do not, because I can not. I am not privy to a single piece of the evidence presented at the trial, nor are many of the commentators. It would be arrogant in the extreme for me to argue with the decisions taken by those who know infinitely more than me about the case. I simply cannot know.

    Whatever the true position, the appeal was dropped. There could be many reasons for this, but it looks to an outsider to have been a pragmatic decision based on the fact that Megrahi would not have survived to see the outcome anyway. Why proceed in these circumstances when there is a possibility of early release if the appeal is abandoned? I do not fully understand why it had to be dropped before release could be considered, although given that release is discretionary this requirement could quite logically be imposed as a pre-condition of considering the application.

    Sadly the outcome of the appeal will never be known. This is uncomfortable for many and means there will be little chance of satisfactory “closure”. This also means that the decision to release had to be based (as the Justice Minister purported to recognise) on the hypothesis that Megrahi was guilty and did indeed murder 270 people. It is necessary to pause and consider the magnitude of that for a moment. Think of a single family who lost their loved one. Put yourself in their position and consider just how robbed they feel every day. Then multiply that by 270.

    It is trite to recall that the imprisonment of criminals is intended to fulfil four functions – retribution, rehabilitation, deterrence and protection of the public. These are the considerations to be taken into account in deciding whether a particular sentence has fulfilled its purpose.

    In Megrahi’s case it can be assumed that he has been a model prison, that he is too ill to be a danger to the public (at least directly) and that rehabilitation is unnecessary given his short life expectancy. These factors therefore support the decision to grant early release. That only leaves the question of deterrence and retribution to be balanced against these favourable factors. The error in the decision appears to have come from the complete failure to given weight to these two remaining factors.

    Deterrence in the context of terrorism is of worldwide importance. Deterrence involves sending out a message to the world and, no matter how harsh it sounds, the message from society must be that terrorists who commit mass murder should not expect compassion. On a human level that is an uncomfortable think to say. If one focuses on the poor man who is Megrahi it seems unconscionably cruel. However if one thinks ahead to the next terrorist atrocity and the importance of keeping the message clear, then a harder line is more easy to justify. There is no evidence that the question of deterrence was given any weight or consideration.

    Finally, the big one – retribution. This is also an uncomfortable concept because of its comparison to revenge. A distinction can perhaps be made by saying that revenge is a personal desire, held by victims themselves, whereas retribution is imposed by society as a whole. It is, however, difficult to justify the need for retribution except as a manifestation of the need for vengeance felt by victims and, perhaps, those who may be victims in the future.

    In his speech, the Justice Minister made it clear that he did not consider the need of retribution to hold weight in his thought process. In fact he made it clear that the idea of “turning the other cheek” was more noble. That may be so in our individual personal lives. However the concept, however noble, cannot properly be applied on behalf of other people who do not wish their cheeks to be turned. In effect, by discounting this factor, he was making a value judgement that the victims should be expected to turn their cheeks when it was obvious that very many would be unable or unwilling to do so. Given the sheer number of victims, many of whom must have been affected in this way, the Justice Minister ought to have placed very great weight on this factor.

    Finally, it is difficult not to ponder over whether the Justice Minister truly proceeded on the basis that Megrahi was guilty, without taking account of the possibility that he might not be. That consideration (if relevant) could quite logically have tipped the balance in favour of release. I note that his SNP colleague Christine Grahame, MSP had visited Megrahi in prison, had declared her belief in his innocence and had actively campaigned for his release. We do not know what lobbying she did, or why the Justice Minister chose to follow in her footsteps by visiting Megrahi personally in prison. What we can say is that the reasons given for the early release do not demonstrate a good foundation for the decision.

    See article by Christine Graham MSP in today’s independent here – http://tinyurl.com/mwp9n4

  16. I wish to pick up on advot_8’s comment because I think the comments about the role of retribution in justice has been seriously overlooked and explains why America and Americans are so upset.

    I should say here that I am an American. I should also say that I believe myself to be much less a retributist than many other of my fellow citizens. The view from abroad of American attitudes towards crime and sentencing may be accurate, but I myself am rarely among the “string ‘em up” ilk. (Further, I believe that this current administration is also much less so than their Republican brethren.) Philosophically I much prefer to focus on the rehabilitative aspects of sentencing than the more vengeful. And yet even my sensitivities are offended by this turn of events.

    I point you first to this article about local reaction to the release in The Record, a newspaper for northern New Jersey, a suburb of New York City (where, for the record, I grew up and was living at the time of the bombing). Remember that Flight 103 was on its way back to New York. New York may be this large global metropolis, an entry point into America’s vastness, but for many of us it is the final stop. New York is our “home town.” When terrorism strikes New York it of course strikes America and the world, but for us it’s a kick in our gut, an injury to the heart of our local community.

    It’s a wound that needs salving. And that’s where the retributive argument comes in re: Lockerbie, because for all intents and purposes, it has not been.

    Or maybe we thought it was, but now it feels like the sutures are getting ripped out. We trusted Scotland to represent our interests in its proceedings against al-Megrahi. We HAD to. Libya refused, despite penalty of sanction, to extradite him to the US to face charges for the harm he was alleged to have caused us. We were faced with the practical choice of Scottish justice, or no justice at all. So we took the leap of faith in believing Scotland could adequately stand in for us in prosecuting where we could not.

    It would appear we were wrong. Because even without condemning the Scottish decision to commute the sentence (perhaps it really is consistent with Scottish law?) it shows that the only community capable to seeking redress for its own industry is the community itself. No one else can speak for it, for it isn’t just the result that matters (guilt or innocence, sentence or pardon) but the process of reaching that result. The very exercise of causing a defendant to answer to the aggrieved community, even if then exonerated, is what exorcises the injury. Moreover, even if America had on its own behalf reached the same result, a sentence commuted “in mercy,” it would have been OUR mercy to give. Instead, here Scotland has stepped in and unilaterally granted it on our behalf, yet against our will.

    I hear the arguments that the early release and repatriation is the Scottish way and consistent with the Scottish legal ethic. That may be, but Scotland was in an unusual position of needing to advocate for more than just itself. It certainly had its own interests at stake, but it also had America’s, and Scotland’s ease in canceling out the result of the proceeding America entrusted it to reach seems an abrogation of its commensurate duty to this other community.

    And not without consequence. Qaddafi now looks presciently brilliant to have manipulated the situation to get the trial in Scotland in the first place. What a “compromise” that turned out to be. What state sponsor of terrorism would ever refuse such a compromise in the future? But what chance is there for America to ever accede to such an arrangement again? The world often complains about America’s willingness to reach across the world to avenge its own injuries. But with this state of affairs America is learning that it may have no other choice.

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  18. Adcoc_8 and Cathy – thank you for providing a most useful appraisal from your own experiences and jurisdictions.

    I remain unconvinced by Scotland’s decision. The proper route, I repeat, for those who who protest or support innocence is the appeal process. That is what appeals are there for. Al-Megrahi chose to drop his appeal – ispo facto, he remains a convicted criminal and the only evidence worth hearing on the issue of innocence is evidence tested before a Scots appeal court.

    I share the views of lawyers who are critical of ‘experts’ and ‘mavens’ who were not directly involved in the original process – how can they possibly ‘know’ what went on unless they heard all the evidence?

    My own opinion on this – is dispassionate for this reason.

  19. The comments on this post have been absolutely fascinating.

    That Scotland ended up with jurisdiction was the consequence of a tragic accident. Minutes earlier and the plane would have been down in Cumbria. moments earlier it would have been down in the vicinity of a nuclear power station.

    While Americans were killed on an American plane there were many britons and those from other nations who died. 11 died on the ground. Many more could have – much of the body of the plane landed on one house which was demolished where my grandmother who lived foru doors away had a house that was untouched – the windows even remaining in place. Some of those who died were friends of my relatives. One of my dad’s work colleagues had a child in his garage in Sherwood Crescent fixing his bike, as the plane crashed and the boy’s family was killed instantly. No nation had a monopoly on grief.

    Agreement that the trial took place in Scotland seemed appropriate – but accepting that accepts every aspect of Scots law. It appears that this was not appreciated by the current head of the FBI.

    I am not sure that the understanding of compassionate release as expressed by Mr MacAskill reflected the general view of the legal community. I did not think it was automatic (otherwise why have discretion?). my concern now is identifying from macAskill when the discretion to release would not be exercised? What crimes would be of more gravity than this (as the gravity of the crime was no consideration in the decision – a decision I confess that i agree with).

  20. Loveandgarbage – thank you for sharing your measured and wise thoughts on this.

    It is a highly complex issue – and one, inevitably, that will breed debate some better informed and measured than others.

    For my part, I remain concerned about the issue of sanction for the very complex issue of international terrorism. The scenes at Tripoli airport were pretty appalling.

    While I am a Scot and familiar in very general terms with Scots justice – I am not competent to comment on the detailed workings of the system. I am not a Scots lawyer.

    The interesting thing is how Mr Swire and others are quite happy that the bomber has returned to Libya -some through the exercise of compassion, others, perhaps, because they have a niggle of doubt of his guilt.

    The important thing here is that with you and others coming on to comment and picking up on writing by Scots lawyers (Jonathan Mitchell QC et al) we are getting a clearer and more informed view than I have been able to find in the newspapers thus far.

    My parody in another post is, of course, just that.

  21. Of course, there was no “agreement that the trial took place in Scotland” – although it was held under Scots law, the trial was held in the Netherlands. (A very strange stipulation, I always thought, having consented to Scots jurisdiction and prison, why insist on transporting the court to a foreign country? Insisting on a foreign jury I could understand, or even foreign judges, although I can’t imagine it working – but why the physical location?) I presume that was a slip for “crime”, but I’m not convinced that’s really a viable assertion either. Anyway, with hindsight, accepting this was indeed a mistake, and I will indeed oppose any future application of Scots law to such crimes – despite having lived in Scotland for the majority of my life so far. Had there been any warning of the possibility of this outcome, though, I am quite certain the compromise of using Scots law would have been rejected (except, of course, by Megrahi’s side!) as absurd – and I would have agreed wholeheartedly.

    In the hypothetical extreme case where someone standing in one country causes a weapon in a second country to fire at someone in a third, who, mortally wounded, staggers across the border into a fourth country and dies there, in which country has the crime really been committed? In general, I would say the third, since the principal crime is inflicting the mortal wound, but of course the legal situation seems less clear.

    In this case, country 1 is apparently Malta, where Megrahi assembled and despatched the bomb; countries 2 and 3 would both be the United States in the form of the aircraft itself, and Scotland is country 4 if anything. The connection to Scotland, except for the 11 ground victims, was pretty tenuous; can anyone seriously say that if this had been a BA 747 flying from Mexico to Glasgow which exploded over the US, Libya would have agreed to a US trial rather than a Scottish one? Of course not: Scots law was chosen not as the logical choice or the fairest, but as a soft touch, almost certain to give a far lighter sentence than could ever be justified.

    I am opposed both to the notion of “compassionate release” and to fake “life” sentences: a sentence of “life”, particularly in cases like this, should mean the offender dies behind bars, whether that takes days, weeks or decades. If Megrahi were still in prison in perfect health, but I could somehow guarantee you that he would be dead in three months, would you want him released to enjoy three months of liberty? How about three years? A prisoner dying suddenly from a heart attack does not get to enjoy months of liberty beforehand, why should one who happens to get advance warning of their death?

  22. Some very interesting posts and comments here. Although I, like Mr Charon Q.C., am not a Scottish lawyer, I have blogged about what I see as the legal issues. The difficulty with this decision, it seems to me, is that Mr MacAskill was only entitled to release al-Megrahi on licence; and by allowing him to return to Libya, al-Megrahi has moved beyond the reach of the Scottish courts. A legal point, perhaps; but then this was (or should have been) a legal decision.

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  24. From Twitter –

    “K Macaskill, release of Megrahi is NOT in accordance with law of Scotland. Decision was discretionary one for you as Justice Minister!”

    Let me expand on this, given the constant stream of politicians and others who seem to be insisting that Scots law was responsible in some way for the decision to release.

    Here is the provision under which release was granted –

    Prisoners and Criminal Proceedings (Scotland) Act 1993, section 3 –

    “(1) The Secretary of State [now "Scottish Ministers"] may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.

    (2) Before so releasing any long-term prisoner or any life prisoner, the [Scottish Ministers] shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.”

    While there is guidance to indicate that prisoners with a life expectancy of less than 3 months can be considered for release, there remains a decision to be made about whether that release should be granted. That is obvious. If it were not so, the law would simply provide for automatic release for any prisoner whose life expectancy fell to the required level. The Justice Minister has repeatedly stated “The decision was mine, and mine alone”.

    The role of Scots law in this process is therefore this – to grant the Justice Minister the power and discretion to make a decision on whether a particular prisoner, in all the circumstances, should be released on compassionate grounds or not.

    To those who imply that Scots law assisted with the decision, please stop as it is giving the impression that the decision (if wrong) was as a result of a systemic failure within our legal system, rather than a bad judgement by a politician.

  25. I disagree with most people here. It was right to release al-Megrahi.

    Someone above said, “The “compassion” being shown to Megrahi is in sharp contrast to the total lack of compassion shown for the victims of the bombing.”

    I use this quote to illustrate where I’m going from. Yes, assuming he was truly guilty of this horrific crime, he showed no compassion when he committed the crime. But that is what separates us from the likes of him. Civilized society is able to show compassion to even the worst people. He did not. We rise above his level. He did not.

    To keep a man, no matter the crime, locked away when he has 3 months to live, is nothing but torture, plain and simple.

    “What sort of message does the early release of a convicted terrorist send to the ‘forces of evil’?”

    I would say if it sends any message, then it doesn’t send the one you think it does. Groups like al Qaeda don’t care what punishments Western governments have for the most part. Remember these are people willing to die for their cause. They don’t care that a terrorist has been released on compassionate grounds because he is dying.

    And do you really think that compassionate release acts against our forces over there, and mean terrorists are less willing to be deterred not to be terrorists? How many people ever get compassionate release in year? A handful. This is not a common occurrence. How likely to do you think it is that someone in Afghanistan is thinking “Well, I’ve just found out I’ve got cancer and therefore a few months to live, and because the UK are so lenient, I’m going to go blow them up!”? They won’t be thinking that, because if anyone is dying (AND HAS ALREADY BEEN RADICALIZED OR CLOSE TO BEING) then they will be thinking, “Well, I’ve just found out I’ve got cancer and therefore a few months to live, so I’ve got nothing left to lose, so I’ll go blow myself up!” Notice the difference. Never mind that those in Afghanistan and so forth will be more concerned with being hanged as their comeuppance.

    And this also totally misses what has (in recent in particular) been radicalizing people to become terrorists. Afghanistan. Iraq. Iran. Abu Ghraib. Guantanamo bay. Torture etc. The foreign policy of the US, the UK etc, and their dealings with those terrorists they have caught, has been the main recruitment tool for al Qaeda. To say that the release of one dying terrorist will have any affect compared to what they perceive as the injustices of the West against Muslims is absurd.

    You also say:

    “This man is a proven and convicted killer of 270 people. He is not a Ronnie Biggs.”

    So? How many deaths do you think it takes before compassionate grounds should not be allowed? Or do you think it takes just one death to deny them compassion, since you cite Biggs? If so, I completely disagree.

  26. I should explain – for the benefit of readers first visiting this blog – that *Charon QC* is a pseudonym – I am not anonymous, nor am I a *QC* I am an academic these days. My About section explains all – although, as here, I do write with a serious purpose occasionally on the blog.

    It has been good to see fellow bloggers and others from Scotland, England and elsewhere examine this issue in a rational and objective manner – I have learned much from the comments here and the writings and views of others who have written on their own blogs.

    It also demonstrates, in a very small way, that the views of experienced people who take time to write blogs and comment on blogs, are often more interesting than mainstream media – although we reach but a few people in comparison. I looked at the stats on this post out of interest – 22,341 views as at this morning as it also gets coverage on my serious online mag Insite Law and RSS.

  27. Pingback: 28 August: Charon after possibly too many glasses « Charon QC

  28. In my humble opinion this is more to do with lawyers who are used to convincing each other that their version of the ‘facts’ is correct.

    A great deal of what has been said displays an utter disregard for the views of the ‘common man’ who is completely divorced from the legal process in this country (hence the efforts to remove the right to trial by jury but that is another subject although not entirely unrelated).

    I can only say that I am not convinced that Megrahi was the guilty party. This does not imply that I am showing disrespect for the law. It should be considered healthy to question decisions made by what is an unelected body (the Scottish Judiciary) with enormous power. Are we to just meekly accept any decision made? Should we just do away with the appeal process lest we offend decision makers? I mean, it’s not like they never get it wrong is it…

    Much is made of ‘oh he was found guilty by a proper process’ etc.’ However Megrahi was not convicted by a jury. There is a lingering suspicion that the trial in Holland was, with the greatest respect to those involved, a ‘kangaroo court’. In no sense therefore was Megrahi convicted according to the normal rule of law in Scotland.

    It is only right that a politician was the decision maker in this process. The whole circus has been a political one from start to finish. Most of the criticism of Mr McAskill has been political and one must examine all of it with the proverbial pinch of salt.

    In any respect, surely showing this sort of compassion sets us apart from those who are supposedly seeking to destroy our way of life? I will never agree that this shows weakness. It shows strength. You must always show an enemy a way out no matter what or else you entrench a ‘Stalingrad’ mentality. By that I mean where the besieged Russians knew they might as well fight to the last bullet because they knew what was in store if taken prisoner.

    There are fanatics on both sides. Releasing Megrahi has pulled the sting from some of them. How does one point to an enemy and decry him when that same enemy has released a dying man to his home and family?

    I am fully aware that I may feel differently if a member of my family had been on that aeroplane. But I am sure that I learned that the basis of the rule of law is that justice is deferred to the state and is not left to the injured party. It is down that route that madness lies, not the release of a terminally ill man who no one really believes is guilty.

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