Harold Shipman didn’t kill himself in his prison cell. He survived, and years later in 2007 develops cancer. Dying, Shipman applies for compassionate release, and Jack Straw goes to see him prior to taking the decision.
How would we react?
Or let’s choose someone else, someone about whom there is a scintilla of doubt, convicted of murdering fewer people. Luke Mitchell is seriously ill in prison, his family calling for release on compassionate grounds on the basis that he will soon die. Mitchell has an appeal pending. There is media talk of evidence that suggests he may be innocent. And while the appeal is continuing, a government minister turns up at the prison, has a private meeting about which no information is made available and a week later Mitchell drops his appeal and is released on compassionate grounds soon after.
How would we react there?
For a government minister charged with a quasi-judicial role in reaching a decision on whether or not someone should be released, whose decision is to be based on a series of objectively determinable factors, would seem odd. People would question the appropriateness of the behaviour, query whether or not this sets a precedent. Who would be next to demand the ministerial visit when illness strikes? Robert Black? Ian Brady? Peter Sutcliffe? Peter Tobin?
It says a lot about the Scottish blogosphere that when our justice secretary made a visit to see a man convicted of the murder of 270 people there is scarely a peep. True it’s reported. But the tone is bizarre. Subrosa notes the visit; Leaves on the line defends the visit in strident terms, Jeff in a series of posts (latest here) ultimately argues that the decision making regarding Mr Megrahi is an opportunity to boost the SNP profile at home and abroad.
the Lockerbie case means a lot to me. My family and I were directly affected by it (see the tag) and we remain affected by it. While part of me would just like the matter coming to ane end, to avoid the constant raking over issues that remain emotionally sensitive part of me would like to see justice done. That requires a court making a decision as to whether or not Mr Megrahi is responsible. And with an appeal pending in the case where new evidence was to be discussed – which would put to bed one way or the other the arguments in relation to Megrahi’s guilt. There are those that have long argued for his innocence. There are those that support the decision of the original judicial panel at camp Zeist (and I know people who attended the trial at camp Zeist who are in each camp). I know that a decision of guilt by the appeal court in the appeal would not satisfy those long since convinced of Megrahi’s innocence and international conspiraces regarding states other than Libya - but ti would have satisfied me. It would have meant that (unlike the last appeal) the new evidence had been considered and tested before a court and due process would have been served.
But from the moment Mr MacAskill visited Greenock prison that modest ambition was scuppered.
So what are our known knowns here?
We know that mr MacAskill visited Mr Megrahi in prison. We know that officials were present. We know that Mr MacAskill has not met any other prisoner in person who has an application for compassionate release based on medical circumstances pending. We know that no other Scottish justice minister has met anyone in those circumstances. And we know why. Because the relevant justice ministers are acting in a quasi-judicial role. They deal with representations. they deal with medical evidence. They don’t verify this through casting their own highly trained medical eye over the prisoner and with a sigh of "well, he looks a bit peely wally so I’ll let him go". A meeting with Megrahi served no purpose in the context of the decisions that Mr MacAskill had to make. Will he reject the medical reports from three senior consultant surgeons if he felt Megrahi looked quite perky when he visited, so obviously then should stay inside? If MacAskill reached such a view in the face of medical evidence would he seriously expect not to be challenged?
We know that – following the meeting – a man that has protested his innocence for years, and has a case before the appellate court with new evidence and that has the backing of the Scottish Criminal Cases Review Commission, suddenly drops his appeal – thereby admitting his guilt.
We know that mr MacAskill will make a decision tomorrow.
And we’ve known since he visited Megrahi what that decision will be.
but of course we do not know what macAskill and Megrahi discussed.
However, there’s an old saying: if it looks like fish and smells like fish – it’s fish.
And in law there are series of principles that require transparency in the operation of justice.
Here we have something that looks like a deal, and smells like a deal: drop the appeal and we’ll let you go home. And Megrahi has dropped the appeal and we all expect Megrahi to go home either on compassionate grounds or under the prisoner transfer agreement. And it looks like a squalid deal that leaves a man that may have been innocent tainted with guilt (given the material before the High court of the Justiciary on appeal). Or a squalid deal that allows the release of the worst murderer in Scottish legal history.
When you hold a post with quasi-judicial powers you need to act in a judicial way. There must be no bias. There must be no appearance of bias. And conducive to establishing whether or not there is the appearance of bias is to act in a manner that does not involve a secret meeting with the person you’re judging. MacAskill has shown – through his handling of this case, through meeting Megrahi and opening up suspicions as to what was said and what was agreed (suspicions raging all the more becacuse of the out of character actions of Mr Megrahi that have followed the meeting) – that he did not act in a judicial way. He has shown that he is unfit to be the Justice Secretary.
And Lockerbie and those scarred by Lockerbie are left to try to forget, or to try to come to terms, still not knowing what really happened.
(ETA with thanks to Jeff who has asked that I clarify that his line – can I refer readers to his comments below)