Scots Law News
| Pages | 1-15 |
| Author | Hector MacQueen,Scott Wortley |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| DOI | 10.3366/E1364980909000882 |
On 18 August 2009 the convicted Lockerbie bomber, Abdelbaset Al-Megrahi, abandoned his appeal against conviction and sentence. Two days later, on 20 August, Scottish Justice Secretary Kenny MacAskill announced his decision to release Megrahi on compassionate grounds. Megrahi flew home to Tripoli later on the same day. Mr MacAskill emphasised in his speech and subsequent media interviews that his decision reflected the compassionate values of Scots law and the Scottish people. He rejected arguments that a man convicted of killing 270 people did not merit such compassion; Scots law said that a convicted person with less than three months to live could be released on compassionate grounds. He also made clear that an application made under the Prisoner Transfer Agreement (PTA) between the UK and Libya (for which see
The US Government manifested its disapproval of the decision although President Obama's denunciation of it as “a mistake” was scarcely impassioned. Given that the release was not made under the prisoner transfer agreement, it was surprising to see the President suggest that Libya should place Megrahi under house arrest. FBI Director Robert S Mueller III sent an emotional letter of protest to Kenny MacAskill (see
The Scottish Parliament was recalled to debate the matter on 24 August, and a Scottish Government motion that the Justice Secretary's decision was taken in accordance with the Scottish legal system was defeated on 2 September with seventy three MSPs in favour of various opposition amendments, fifty Government supporters and one abstention. It was disappointing to see the votes (with two exceptions) go limply down party lines. In London the House of Commons debated the Megrahi release on 12 October. The Foreign Secretary made clear what was already obvious, that the UK Government did not wish to see Megrahi die in a British prison because of the damage this would do to the country's economic interests. But he insisted that no pressure had been placed on, or agreement reached with, the Scottish Government, whose sole responsibility the decision on the release had been.
What has been shown by the debates and public discussion? It seems clear that the Justice Minister's decision was political, but not, we think, for the reasons usually suggested by his critics in the political and media worlds. There was certainly no deal with the UK Government (although it has become clear, if it was not so already, that the UK Government did indeed want Megrahi released). But the SNP Government has consistently opposed the UK-Libya PTA, and was clearly no more minded than usual to bend to the will of Whitehall on this matter. On the other hand, for Megrahi to die in a Scottish prison might have unwelcome consequences for Scotland, whether in exposing the country to the possibility of “revenge” terrorist attacks (whether from within or without Scotland) or, possibly more likely, creating significant difficulties for Scottish businesses across the Middle East and perhaps further afield. Another consideration was that the decisions to be made were open to the possibility of judicial review. To refuse the application for compassionate release would certainly have invited that. Equally, a decision to refuse release under the PTA was potentially challengeable by Megrahi, while allowing release might have led to challenges from the USA, where there was probably a “legitimate expectation” that Megrahi would serve his sentence in Scotland. This explains the elaborate processes of hearing, not only the US victims’ families, but Megrahi himself, including the controversial visit made by Mr MacAskill to Megrahi at Greenock prison.
The decision to grant compassionate release was clearly one the Justice Minister was entitled to make under section 3 of the Prisoners and Criminal Proceedings Act 1993. On one view, the release was premature because the medical reports were not categorical about the likelihood of Megrahi's demise within three months, the period mentioned at para 4.1 of the Scottish Govennment's policy on compassionate release (last stated in 2005 and available at
On 24 October 2009
The Justice Secretary has made clear his acceptance of the judicial process and Megrahi's conviction. In no sense can his decision to release be seen as even covert recognition that Megrahi was not guilty; and since it was not the result of a deal with Megrahi or anyone else, it is also clear that the decision was not made to protect the Scottish legal system from embarrassment through continuing appeal processes on Megrahi's behalf. One suspects that the Justice Secretary was as surprised as anyone else by Megrahi's decision to drop his appeal. That decision by Megrahi is the least satisfactory aspect of the whole affair, and Alastair Bonnington's suspicion, that it was made under instruction from a Libyan Government thinking that this was the only way to get Megrahi home under the PTA, still seems the most likely of the explanations suggested so far. On 18 September and again on 2 October Megrahi published on a website (
On 25 October 2009 it became public that a new police investigation into the Lockerbie bombing was under way, following fresh lines of inquiry developed as a result of a “desktop” or paper review of the evidence in the case and consultation of forensic scientists. It is not thought that the investigation will lead to a departure from the Crown Office position that Megrahi's conviction was correct. Presumably, therefore, it is looking at the possible involvement of others.
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