MacAskill is unfit to be Justice Secretary

Imagine it.

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)

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in lockerbie, scottish politics, Uncategorized. Bookmark the permalink.

11 Responses to MacAskill is unfit to be Justice Secretary

  1. judge_death says:

    Very interesting. Thanks.

  2. Anonymous says:

    A very welcome post, good to see you back!
    However, I’m afraid I think you are dead wrong.
    First up, I am not for one second suggesting the SNP are using this boost their profile. I just think it’s a lucky corollary of a decision Kenny MacAskill has taken in good faith.
    I’ve been careful to stress it that way and would appreciate no mis-characterising of my views.
    As for Harold Shipman and Luke Mitchell, the same rationale would apply.
    If someone is dying, if it is guaranteed that they have weeks on this planet left, they should be allowed home if they are deemed no risk to the public.
    I would think that Luke Mitchell would be a risk to the public and I would think that the public would be a risk to Harold Shipman so there might be a different conclusion but I would have no problems in seeing them released in the dying days of their life.
    Megrahi is dying. We can pontificate and philosophise but humanity must remain in place.
    I also think you are overplaying the meeting of the prisoner. It probably was a mistake but I don’t think it made much, if any, difference in the end. Indeed, I think people are focussing on that as a sloppy second as they know, deep down, that Kenny is making the right call.
    I suspect, given what you say about being personally involved in this case, that you would never be able to make peace with this result and that is understandable. It is why we don’t let victims decide the fate of the perpetrators because if that was the case Megrahi would have died a long time ago.
    Hillary Clinton spoke of knowing personally some of the families affected by the atrocity and that, I suspect, is fuelling her particular passion for this case.
    It is my understanding that compassionate release is a standard result for people in Al-Megrahi’s position and medical condition so to suggest MacAskill is no longer fit for being Justice Secretary is odd in my view I’m afraid.
    Still, good to see you posting again!

    • Re: disagree
      I’ve replied on twitter but useful to clarify my thoughts here for readers.
      MacAskill’s mistake in the visit to Megrahi is enormous in its consequences. This potentially tainst the process, potentially makes any decision reviewable, because there is a problem in appearance. To make such a basic error (and he’s a lawyer) is inexcusable and demonstrates he is not fit to hold the post.
      It would also be useful to clarify through FoI what official guidance was given to MacAskill. I know no lawyer who would have countenanced giving legal advice that this action was sensible. The SGLS has a lot of very good lawyers. I can’t believe that they advised him it was okay. Every lawyer I know (in a variety of sectors and branches of the legal profession – academic/public and private sector) thought the action at best naive or negligent. Who advised him to go? Either his own instincts are bad in accepting that advice or if he did not act on advice but make his own decision to go – then that is worse.
      Regarding the line
      “I suspect, given what you say about being personally involved in this case, that you would never be able to make peace with this result and that is understandable. It is why we don’t let victims decide the fate of the perpetrators because if that was the case Megrahi would have died a long time ago.”
      my problems here are with the treatment of those suffering mental illness in Scotland. The NHS provision is poor – people from Lockerbie had to travel to Aberdeen for adequate treatment (is that sensible?). It has not affected my view of Megrahi. I would like to know what happened – persuading someone to drop an appeal (which is what it looks like given that a man professes innocence for years then drops an appeal immediately after meeting a man who can decide whether or not to release you on parole) means that we won’t know what happened in court. This does not serve anyone. I was prepared to accept Megrahi’s guilt – if so found; or his innocence – if the appeal was upheld. I think he shold have been released on compassionate grounds which would have allowed the appeal to continue. My criticism is not of the decision (which I think right) but the process. And on the process in making the biggest decision of his life, Kenny screwed up.

  3. Anonymous says:

    that last comment was from Jeff at SNP Tactical Voting by the way.
    (stupid livejournal, what’s wrong with Blogger anyway 😉 )

  4. surliminal says:

    I agree with you that the visit makes it hard to put any but the worst interpretation on events. Less cautious than you by nature, I spent much time at party down south at weekend declaring that Scotland was now officially a banana republic..:(
    Discussing stuff with pal tonight,wanted very much to show him the documentary Bob helped make way back – is it available online, do uou know?

  5. Anonymous says:

    Who is going to review the decision?
    Megrahi is dying. After a few weeks or months he will have passed on. Why would anyone want to revisit this decision?
    I just think you’re overthinking this one.
    It may have been unwise to visit the prisoner (I’m still in two minds on it) but in my view it didn’t affect the final outcome one little bit so it’s insignificant.
    Even if it is an inexcusable error, thinking pragmatically, who would you have in Kenny’s place if you could choose someone?
    yes, there are better potential Justice Secretaries out there but I would say none of them are MSPs.
    As for the appeal, I think it’s far-fetched to suggest Kenny MacAskill asked Megrahi to drop his appeal in order to secure his release. I accpet Kenny has paved the way for that to be an option by visiting the man and maybe I’m just being naive, but it just seems a little imaginative.
    Megrahi put the request in for compassionate release in July, he knew he had a good chance of it, he knew that if he dropped his appeal those chances would increase, he knew how sick he was and how little merit there would be in trying to clear his name at such a late stage of his life. So he dropped it.
    For me, it’s simple as that.
    Jeff – snp tactical voting

  6. Anonymous says:

    Great post
    Despite chatting on Twitter, I’ve never actually got round to visiting your blog before. I’m very impressed with the quality of the few postings I’ve read and I’m just off to add you to my blogroll with apologies for not having done so before.
    I agree with you, as you’ve obviously gathered from reading my post.
    I found your description of the events of the night of the Lockerbie bombing very moving.

  7. Anonymous says:

    I, a dutchman with no connections to the victims whatsoever, am disgusted at just having seen this MacAs(s)kill announce the liberation of someone who will probably live another 30 years; shame on him!! Compassionate?? How about those 270 people who died?? How can a scottish government allow this or has it may be to do with another silent deal with this idiot Kadhafi, shall we never learn? How can we ever be proud of our countries, England or Holland?

  8. Anonymous says:

    Just heard the news of Megrahi’s release on “compassionate grounds”
    The comparisons with the other convicted murderers do cause one to pause and think. However isn’t it the uniqueness of this case that is the major problem?
    As a layman I would have to accept the opinion of legal people that MacAskill’s visit to Megrahi was folly. However for the blame to now fall on MacAskill for all the twists, turns intrigue and lies associated with the Lockerbie bombing does seem a little unfair.
    If Megrahi is genuinely terminally ill with less than three months to live then the only real difference now is that he’ll die in a Libyan hospital and not a Scottish one (thus I assume reducing the risk of dying of MRSA).
    If a deal was done by MacAskill with Salmond’s knowledge then they are both liars and deserve any hounding they get. I’m still puzzled as to why a deal would be done over the withdrawing of the appeal. What is the relevance here? Is it drawing a line under the affair?
    What if though there was no deal done. How are the two politicians mentioned above to clear their names?

  9. Anonymous says:

    The visitation point
    It seems that our esteemed Justice Secretary dealt with the issue regarding his visit to al Megrahi in his speech today.
    It transpires that the visit was related to the application by the Libyan government under the prisoner transfer agreement, where the protocol under the PTA states that prisoners must be given the chance to accept representations in the situation where the transfer is requested by a government. As Al Megrahi requested that he give representation in person, Mr MacAskill was obliged to visit him.
    It seems that this is a moderately plausible explanation for why he visited al Megrahi but no other prisoner seeking compassionate release, as no other prisoner seeking compassionate release was also contemporaneously the subject of a prisoner transfer request by a national government.
    Alternatively, it could be a very coherent piece of ex post facto justification put together by the Scottish Executive (I for one refuse to acknowledge the name change…!).
    You decide!

  10. Scott, hope you are well.
    I came back on livejournal tonight (for the first time in months!) to read your opinion on this matter.
    I wondered what your opinion was on whether there should be a public inquiry into the whole thing? As someone who is thoroughly confused by the whole situation, and who is not entirely convinced of megrahi’s guilt, I would welcome one (although I realise that it would not come to a conclusion about his guilt).
    Yet I can understand some of the reasons given by Alistair Bonnington for not having one (although I strongly object to his calling the bereaved relatives “outrageous, selfish and irresponsible” – I found those words just odious to read), that is the time and cost that has already been spent on the matter.
    But I value Prof Black’s opinion on the matter and he appears (from his blog postings) to be in favour of a public inquiry.
    Just wondered what your thoughts on that were.

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