The release of the documents today regarding the decision making process applicable to the release of Mr Megrahi has generated plenty of publicity elsewhere (and rendered the Scottish labour party position which criticised the substance of the decision to release Megrahi virtually untenable). The legal issues I have raised earlier in relation to the procedure followed by Mr MacAskill remain.
My concerns relate to two issues: first, why was the application for release under the prisoner transfer agreement conflated with the application for compassionate release? second, why did Mr MacAskill take the unprecedented step of meeting mr Megrahi in person.
What light do the documents shed on this?
Well, some context to begin. During his initial press statement Mr MacAskill explained that he was bound to meet Mr Megrahi in terms of the prisoner transfer agreement. My earlier post on the topic has indicated that there was no legal requirement in terms of the agreement (althogh reliance on common law principles may be applicable). Mr MacAskill had presented a perfectly proper requirement to receive representations as an obligation to receive oral representations (when the passage expressly cited as the basis for his action -ie the letter from Jack Straw - said nothing of the sort and expressly referred to written representations). Having unpicked and dismissed that what was the reason?
When interviewed on Newsnight Scotland on the evening of the press conference announcing the decision to release Megrahi Mr MacAskill explained his reasons for the meeting. he referred to something called the "best evidence rule" – legalese but what does this mean? The basic idea is that in certain legal proceedings the best evidence available should be presented – so an actual document rather than a photocopy, a specific witness rather than hearsay evidence where one person reports what another said. The best evidence rule is subject to a variety of exceptions, but its application to administrative decision making by ministers (whether or not the decision is quasi-judicial) is not a default rule and indeed the Stair Encylopaedia title on Administrative law states (para 86),
"Natural justice does not require that a tribunal or public inquiry or other proceeding should observe all the rules of evidence that apply to criminal or civil litigation." There is then no legal requirement for the best evidence rule to apply. Unless this is a change of ministerial policy in relation to such decisions meaning that oral representations by the relevant parties will be heard in future then a justification based on the best evidence rule is a bit misleading.
So, what did he say in the Parliament when questioned last week?
In his statement he said,
"Prior to being ratified, the prisoner transfer agreement was scrutinised by the Westminster Joint Committee on Human Rights. It was the first PTA that did not require the consent of the prisoner. As a result, Jack Straw, the United Kingdom Secretary of State for Justice, gave a commitment that in cases in which applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr al-Megrahi had the opportunity to make representations and he chose to do so in person. That was his decision. It would have been outwith the tenets of natural justice to refuse that request; therefore, I was duty bound to meet him."
Now this is a change from his earlier position – in the formal decision. There he said,
"Jack Straw, UK Secretary of State for Justice, gave a commitment that in cases where applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr Al-Megrahi had the opportunity to make representations, and he chose to do so in person. Therefore I was duty bound to receive his representations."
There is one change from his earlier rationalisations MacAskill with a new line:
"It would have been outwith the tenets of natural justice to refuse that request;"
The implication here is that mr Megrahi demanded that he be heard in person – and MacAskill’s justification is that in relation to the prisoner transfer agreement the representations had to be received in person, because he had spoken to others with an interest in the decision. There is a superficial attractiveness to this argument. In the context of the unprecedented procedure a new mechanism needed to be developed. Natural justice is a well-established principle of administrative law (generally subsumed now into a question of procedural fairness).However, there are a few issues that relate to it. First, megrahi had another application before the justice secretary where no meeting was appropriate: an application for compassionate release where meeting megrahi could give no relevant information because the decision would be based on a series of reports (including medical evidence). Meeting megrahi risked compromising this outstanding application through the introduction of irrelevant considerations (what the minister sees or hears is not relevant to a medical assessment of Megrahi’s illness because he has no expertise and must rely on the medical evidence (which he did)), or by setting a precedent in relation to the right to make representations in person for other prisoner applications. Second, any meeting in person could give the impression to an objective third party that the impartiality of the decision maker is compromised. This is not to suggest that it is so compromised, but in a quasi-judicial process there must be no partiality, or appearance of partiality. Lord CLyde noted in 1957 that the test applied is not ‘Has an unjust result been reached?’ but ‘Was there an opportunity afforded for injustice to be done?" A private meeting with the prisoner runs the risk of the appearance that something was up (particularly given Megrahi’s subsequent conduct in dropping his appeal despite continued protestations of innocence). Third, why was there no press statement at the time indicating this was the basis upon which the meeting was taking place? Stating the legal basis at that point – at least anticipates the criticism that was bound to follow such an unprecedented meeting. I do not think there was any malice merely bad handling.
The conflation of the two applications then potentially causes problems for the Justice Secretary because it means that he becomes walking chinese wall – the considerations and factors he is encountering in relation to one process not necessarily being relevant for the others. How should this have been handled by the government – either by expediting one process to ensure the applications were dealt with separately; or – and I have not seen this suggested elsewhere – by providing that another minister make the decision on the other application. The power to decide was not specifically delegated to the Justice Secretary but to the Scottish ministers, so why not avoid the risk of confusion by having two ministers dealing with the two cases. This solution allows the teams relevant to each decision to work separately, and consequently ensures that procedurally there can be no conflation of processes.
iain gray asked Mr MacAskill
"Does he understand how astonished we were when he visited a convicted murderer in prison? He quoted Jack Straw to justify that, but what Jack Straw told the Joint Committee on Human Rights was that "A prisoner … would be invited to make written representations." I have the letter here. Will the cabinet secretary now admit that it was his decision and his alone to visit al-Megrahi? He had no obligation to do so. After that visit, al-Megrahi dropped his appeal. Will the cabinet secretary tell us whether there was any discussion of that in his meeting and—for the avoidance of doubt—will he publish his note of that meeting? "
MacAskill’s reply :
"On the decision, I did, as I said, meet Mr al-Megrahi. I did not put any pressure on him to drop his appeal. It was his decision and his alone. That was made clear to him, it was made clear to his agents, and it has been made clear throughout."
Tavish Scott asked,
"Why did Mr MacAskill visit al-Megrahi in prison? What was said and will the notes be published? Was an appeal discussed during the meeting? Above all, why did Mr MacAskill make the visit when not one, but two appeals were in progress? What advice did Mr MacAskill take from the Crown Office on that? We now know that Mr MacAskill did not need to visit al-Megrahi in Greenock prison as, despite what Mr MacAskill has said, a written representation was all that was required. How many prisoners can elect to have a minister visit them in their cell, even though they have a well-equipped set of lawyers who are perfectly able to write a letter?"
"I did not speak to the Crown Office, as that would have been entirely inappropriate. As Mr Scott should be aware, we have separation of powers and it would have been contrary to that and wrong for me to have approached the Crown Office. Therefore, I did not do so. On the papers and process, we are looking to release as much of the information as we can, but we must ensure that those who have written, co-operated and given evidence—perhaps not on the basis that the information would be released—are at least given the courtesy of being asked whether they wish their names and the testimony and information that they provided to be released. Mr Scott has an absolute assurance from me, as the Cabinet Secretary for Justice, that we will seek to provide the papers."
Richard Baker asked
"When will the cabinet secretary publish the advice that he received on his decision to meet al-Megrahi personally, given that it is clear that he was not required to meet him? How would it have been outwith natural justice to decline the meeting in person when, after all, the cabinet secretary did not meet personally the American victims’ families?"
"Mr Baker is quite right to say that I did not meet the American families personally. That was not possible. However, we had a simultaneous videoconference link with families in New York and Washington. We had an exchange, and I listened for over an hour to matters that they raised."
Nicol Stephen asked
"Does Kenny MacAskill now offer to meet every convicted criminal who seeks release on compassionate grounds, if they demand it?"
MacAskill did not address that point – but the question (as I ahve shown above) is a natural one to ask given that two applications were before Mr MacAskill.
Then, explanation number four from mr MacAskill. SNp member Gil Patterson asked
"With regard to his meeting with Mr al-Megrahi, can the cabinet secretary confirm the position of Jack Straw when the PTA was ratified: that the subject of a PTA has the right to put their case if that is requested? "
Now, as I showed in my blog post last week Straw said that there was a right to make written representations. Such a question was therefore not particularly helpful to MacAskill. he replied
"As I said, this was the first ever prisoner transfer application that could be made by a national Government without the consent of the prisoner involved. The application that came before me was made by the Government of Libya. Accordingly, I required to hear representations from the prisoner involved. Mr al-Megrahi chose to make those representations himself. I practised in the courts of Scotland over a period of 20 years and—except in an instance in which someone was seeking to harass a witness in a sensitive sexual offence case—I have never yet come across an instance of somebody who chose to represent themselves being refused that right and entitlement. Natural justice dictated it."
And now as an explanation for the natural justice requirement there is an explanation that mr Megrahi is representing himself in this matter, in relation to the prisoner transfer agreement. Ignoring the position that Straw’s statement was made in the context of a prisoner who did not wish to be repatriated under a prisoner transfer agreement (where Mr megrahi was a willing transferee) to suggest that Megrahi was representing himself is astonishing. Why so astonishing? Because MacAskill met megrahi in the presence of megrahi’s legal team, and he said so in Parliament in answer to Margo MacDonald’s question (see immediately below). It is an unusual instance of representing yourself when your lawyers turn up to hold your hand. This explanation therefore seems spurious.
margo macDonald (one of the perceptive members who realised asking general questions was useless) then asked
"What did the cabinet secretary say to Mr al-Megrahi in his prison cell and what did Mr al-Megrahi say in return? Has he made any effort to discover from Mr al-Megrahi’s counsel why he believed that Mr al-Megrahi would enhance his chances of returning to Libya if he gave up his appeal?"
" I made no such reference to Mr al-Megrahi, his counsel, whom I have never met, nor, indeed, his solicitor, who was with him throughout the meeting. No such suggestion was ever made; indeed, such a suggestion would have been entirely inappropriate. At the outset, I said that due process and proper guidance would be followed, and I made it clear that Mr al-Megrahi’s appeal was a matter for him and the courts. He made his decision without any interference from me."
And that was that pending the publication of the reports earlier today. I will turn to the papers relevant to the Megrahi – MacAskill meeting in my next post.