Given the nonsense being spouted by US Senators about the release of Megrahi last year I thought I’d look at my original thoughts last year. In the midst of the media reporting I added a couple of comments to The Guardian website. I repeat them here:
"I have sat as a Scots lawyer, increasingly bemused by the series of theories argued in the media. The following is not a criticism of Mr White, but draws elements of a general misunderstanding of the legal position present throughout the London based media. Perhaps if the London media spoke to some Scottish lawyers (or read their commentaries) rather than asking English practitioners to comment on Scottish legal matters the media might be better informed.
It seems that there are 2 theories at play now.
In theory 1 – the UK government negotiated a prisoner transfer agreement which included Scotland when only 1 Libyan prisoner was in Scotland. The PTA was signed to further commercial interests. The PTA would allow the UK government to transfer the prisoner to Libya. The commercial deals would follow megrahi’s transfer. This seems to be the line trotted out by various Conservative politicians.
Problems with this theory? (a) the decision lay with the relevant minister responsible for criminal justice – in Scotland the Justice Secretary in the Scottish government. The UK government could not intervene in the decision. (b) while empowering the government of Scotland to make a decision Article 3 of the PTA precluded any transfer when there were outstanding appeals (and given one appeal was from the Lord Advocate (Scottish leading prosecutor) for an unfairly lenient sentence) nothing could be done until those appeals were dealt with – so even if Megrahi dropped his appeal (as he did) the Crown appeal continued (it was only dropped after the application for compassionate release was granted). Any suggestion that the UK government could promise release is suggesting that they would interfere with the independence of the Scottish prosecution service. (c) The idea that the Uk government could force an SNP minister to do something for Uk interests when the SNP were against the PTA (they even had an emergency statement in the Parliament on it when it was originally suggested) is laughable. The governments hate each other. (d) in any event the Uk had a formal undertaking in the run up to the Camp Zeist agreement that meant any sentence would be served in Scotland. See the comment appended to an excerpt from the Times article by professor Robert Black QC, the architect of the Lockerbie trial arrangement in his blog at http://lockerbiecase.blogspot.com/2009/08/britain-accused-of-breaking-promise-to.html (it gives references to the international material).
This theory though is used to explain Brown’s silence – eg one Tory PPC on twitter, Louise Bagshawe whose tactless comments on Lockerbie and the impact of people on the ground can be traced with a quick google blog search, argued that Cameron has commented so Brown should – and implied that brown’s lack of comment was because there was a deal. Well, if there was it was a peculiair politics to promise something that could only be delivered by a third party over whom you had no control (and ignoring the politics – where the independent prosecution system had an effective veto on anything happening by pursuing its appeal).
The second theory runs in anonymous parts of the legal system in Scotland (& is largely ignored down south).[note, Aug 2010 – this is now gaining more notice south of the border. of course the Paul Foot fans had long harboured this view] Megrahi’s conviction was dodgy. There was going to be an appeal that Megrahi would definitely win because the Scottish Criminal cases review Commission had clearly shown flaws in the reasoning underlying the decision of the 3 judges and had identified other grounds – including new evidence which was not before the court during the trial. In Scotland where the appellant in a criminal case dies, the appeal continues. The propsect of Megrahi dying in Scotland and the appeal then showing that (a) the judges screwed up in the original case; and (b) that an innocent man died when imprisoned for something he did not do thereby embarrassing the whole legal system was something that could not be countenanced by MacAskill – a liberal lawyer – or the legal establishment. Therefore Megrahi had to be persuaded to drop his appeal (if released on compassionate grounds his appeal could continue, but not if that appeal was dropped). And the price of dropping the appeal was his release. This theory has been backed by some because MacAskill went to see Megrahi in prison, and the appeal was dropped days later (when both before & after release Megrahi was protesting his innocence – although dropping the appeal admitted guilt). [I should say I think MacAskill was wrong to visit megrahi, but I think this rendered his decision challengeable by judicial review] [note AUg 2010, the notes of the meeting between Megrahi and MaCAskill show the dangers of the conflation of the two processes (PTA and compassionate release) – the former could have been dealt with very quickly on initial application – there is an appeal by the Crown and by megrahi therefore it is not competent at the moment; the latter then uncoupled could and should in my view have been dealt with separately.].
The problem with this theory is that a decision in support of compassionate release was almost inevitable whatever the position on the appeal (see the position of one senior Scottish QC, Jonathan Mitchell at http://www.jonathanmitchell.info/2009/08/24/megrahis-release-kenny-macaskill-was-right/ ), & Megrahi’s decision to drop his appeal may have been tied to his government’s view of the PTA.
In my view Brown’s silence in relation to a quasi-judicial decision is perfectly understandable for political and legal grounds. Legally, he did not have the information in front of him, and any political or socio-economic considerations are irrelevant considerations that would have rendered any decision reviewable. Accordingly the British government could not sensibly put forward a position in advance. Thereafter, any statement could be viewed as interference with the decision making process (and would have been seized upon to that effect by the SNP). Any comment after is irrelevant. condemning it risks the Uk government interfering in a quasi-judicial process, where the decision was likely to be the same whichever government took the decision (bear in mind the legislation empowering the release was an Act passed by the last Conservative government).
Would Cameron have condemned the decision if he had been prime Minister or would his officials (probably very sensibly) have told him to say nothing? The luxury of opposition is being able to open your mouth and let your belly rumble.
I should say I am ordinarily a Lib dem voter [note Aug 2010 I am reassessing that position obviously ] and hold no brief for the Labour party or SNP here. I think MacAskill made what he thought was the right decision, and if you looked at him in interviews and in parliament over the past couple of weeks he looks like this is something that he has truly agonised over. This was not a pat decision.
However, as someone who had family in Lockerbie on the night of the disaster and who as a teenager was there in the days after the tragedy being harassed by brainless hacks asking how serious we thought it was, I just wish that the politicians would quit playing political games with this. IN the Scottish Parliament that goes for the opposition parties with their nonsense about secure hospices, and Gray’s fatuous statements about what he’d have done if he was First Minister (which he can’t admit is nothing – because it wouldn’t have been his decision); and the SNP pulling on the shirt of compassion as a defining Scottish characteristic. And in Westminster the opposition parties with Hague, Davey et al wittering on about deals and trade and commerce. If that was the plan then whoever did the negotiating of the treay was a lawyer of the utmost incompetence to leave all the relevant powers with third parties the Uk government could not control.
Perhaps if the politicians remembered the 270 dead, took some account of the pain of the people of Lockerbie (to this day many won’t talk about their experiences as fire fell from the sky, their town littered with clothing and presents from the plane, the stench of kerosene, and the stream of vans pulling through the town removing bodies from the Park Place/Rosebank area), and dealt with this in a mature way rather than playing games of point scoring.
I wish they’d all grow up, or clear off and get a job which is better suited to their natures."
I’d pretty much stand by that and wish those playing political games with this (both pro and anti release) on both sides of the Atlantic would take note of the reply in Arkell v Pressdram.