On Monday 24th August 2009, the Scottish devolved parliament recalled from its summer recess to discuss the release of Lockerbie Bomber Mr Abdelbasit Ali Mohmed Ali Megrahi on compassionate grounds following the statement last Thursday 20th August 2009 by the Justice Minister Kenny MacAskill ordering his repatriation to Libya.
Several key issues were discussed including whether Mr Al-Megrahi was pressured to drop his appeal in return for release, whether it was necessary to allow him to return home and a collective dismay was shown at the flying of the Saltire flag in Libya following the return of Mr Al-Megrahi to Tripoli.
The session started with the Cabinet Secretary for Justice reading the following statement:
Mr Abdelbasit Ali Mohmed Al-Megrahi
Presiding Officer. On 20 August I announced the decisions I had taken in relation to two applications in respect of Mr Abdelbasit Ali Mohmed Al-Megrahi. I will now repeat the substance of that announcement for the benefit of Parliament and then answer any and all questions which members may have.
On the evening of 27 December 1988 a heinous crime was perpetrated. It claimed the lives of 270 innocent civilians. Four days before Christmas, men, women and children going about their daily lives were cruelly murdered. They included 11 from one small Scottish town. That town was Lockerbie – a name that will forever be associated with the worst terrorist atrocity ever committed on UK soil.
A prisoner transfer application was submitted by the Government of Libya seeking the transfer of Mr Al-Megrahi. The man convicted of those offences in the Scottish courts. He also sought to be released on compassionate grounds.
This crime precedes both the election of our Government and even the restoration of a Parliament in Scotland. The decisions are a consequence of the post of Justice Secretary that I am proud and privileged to hold. The applications had been lawfully made, and I was obliged to address them. Final advice from my officials was given late on Friday 14th August 2009. I reflected upon that advice before making and announcing my decisions.
It was my responsibility to decide upon these two applications. They were my decisions and my decisions alone.
In considering these applications I strictly followed due process, including the procedures laid down in the Prisoner Transfer Agreement and in the Scottish Prison Service guidance on compassionate release. I listened to many representations and received substantial submissions. I have already published key material on both the applications for prisoner transfer and for compassionate release. I will now look to publish other relevant material. Some of this can only be done with the permission of others, which we are seeking.
The Scottish police and prosecution service undertook a detailed and comprehensive investigation with the assistance of the US and other authorities. I pay tribute to them for the exceptional manner in which they operated in dealing with both the aftermath of the atrocity and the complexity of a world-wide investigation. When Mr Al-Megrahi was brought to justice, it was before a Scottish court sitting in the Netherlands. And I pay tribute to our judges who presided and acted justly.
Mr Al-Megrahi was sentenced to life imprisonment for the murder of 270 people. When such an appalling crime is perpetrated it is appropriate that a severe sentence be imposed.
Mr Al-Megrahi has since withdrawn his appeal against both conviction and sentence. As I have said consistently throughout, that is a matter for him and the courts. That was his decision. My decisions were predicated on the fact that he was properly investigated, a lawful conviction passed and a life sentence imposed.
There remain concerns to some on the wider issues of the Lockerbie atrocity. This is a global issue, and international in its nature. The questions to be asked and answered are beyond the jurisdiction of Scots law and the restricted remit of the Scottish Government. If a further inquiry were felt to be appropriate then it should be initiated by those with the required power and authority. The Scottish Government would be happy to fully cooperate in such an inquiry.
The Libyan Government applied on 5 May 2009 for the transfer of Mr Al-Megrahi. Prisoner Transfer Agreements are negotiated by the United Kingdom Government.
Throughout the negotiations and at the time of the signing of the PTA with Libya, the Scottish Government’s opposition was made clear. It was pointed out that the Scottish Prison Service had only one Libyan prisoner in custody. Notwithstanding that, the UK Government failed to secure, as requested by the Scottish Government, an exclusion from the PTA for anyone involved in the Lockerbie Air Disaster. As consequence, Mr Al-Megrahi was eligible for consideration for transfer in terms of the agreement entered into by the Governments of the United Kingdom and Libya.
I received numerous letters and representations, and recognised that a decision on transfer would be of personal significance to those whose lives have been affected. Accordingly, I decided to meet with groups and individuals with a relevant interest. I met with families of victims: those from the United Kingdom who had relatives on board the flight, as well as those whose kinfolk were murdered in their homes in Lockerbie.; a lady from Spain whose sister was a member of the cabin crew; and I held a video conference with families from the United States. I am grateful to each and every one of them for their fortitude on a matter which I know is still a source of great pain.
I also spoke to the United States Secretary of State Hillary Clinton and the United States Attorney General, Eric Holder. I met Minister Alobidi and his delegation from the Libyan Government.
I noted and considered all the points presented, and also relevant written representations I received.
Prior to ratification of the Prisoner Transfer Agreement, it was scrutinised by the Westminster Joint Committee on Human Rights. This was the first PTA that did not require the consent of the prisoner. As a result 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. He chose to do so in person. That was his decision. It would have been outwith the tenets of natural justice to refuse this request. Therefore I was duty bound to meet him.
It was clear that both the United States Government and the American families objected to a prisoner transfer. They did so on the basis of agreements they said had been made, prior to trial, regarding the place of imprisonment of anyone convicted.
The United States Attorney General, Eric Holder, was deputy Attorney General at the time of pre-trial negotiations. He was adamant that assurances had been given to the United States Government that any person convicted would serve his sentence in Scotland. Many of the American families spoke of the comfort they had placed upon these assurances over the past ten years. That clear understanding was reiterated to me by the US Secretary of State Hillary Clinton.
I sought the views of the United Kingdom Government. I offered them the right to make representations or provide information. They declined to do so. They simply informed me that they saw no legal barrier to transfer and that they gave no assurances to the US Government at the time. They declined to offer a full explanation. I found that highly regrettable. I therefore do not know what the exact nature of those discussions was, nor what may have been agreed between Governments. However, I am certain of the clear understanding of the American families and the American Government.
Therefore, it appeared to me that the American families and Government either had an expectation, or were led to believe, that there would be no prisoner transfer and the sentence would be served in Scotland.
It was for that reason that I accordingly rejected the Libyan Government’s application for prisoner transfer for Abdelbasit Ali Mohmed Al-Megrahi.
I now turn to the issue of compassionate release.
Section three of the Prisoners and Criminal Proceedings (Scotland) Act 1993 gives Scottish Ministers the power to release prisoners on licence on compassionate grounds.
The Act requires that Ministers are satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment. Although the Act does not specify what grounds for compassionate release are, guidance from the Scottish Prison Service, who assess applications, suggest that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed limits but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance dates from 2005.
On July 24 2009 I received an application from Mr Al-Megrahi for compassionate release. He was diagnosed with terminal prostate cancer in September 2008. I have been regularly updated as to the progression of his illness. I have received numerous comprehensive medical reports including the opinions of consultants who have been treating him. It is quite clear to the medical experts that he has a terminal illness , and indeed that there has recently been a significant deterioration in his health.
I was provided with reports and recommendations by the Governor of Greenock Prison, the doctors and prisoner social work staff. Also, as laid out in stature, I consulted the Parole Board. They all recommended compassionate release.
The opinion of his Scottish Prison Service doctors who have dealt with him prior to, during and following the diagnosis of prostate cancer, and having seen him during each of these stages that his clinical condition has declined significantly. Assessment by a range of specialists has reached the firm consensus that his disease is, after several different trials of treatment, “hormone resistant” – that is, resistant to any treatment options of known effectiveness.
Mr Al-Megrahi was examined by Scottish Prison Service doctors on 3 August. A report dated 10 August from the Director of Health and Care for the Scottish Prison Service indicated that a 3 month prognosis is now a reasonable estimate. The advice they have provided is based not only on their own physical examination but draws on the opinion of other specialists and consultants who have been involved in his care and treatment. He may die sooner – he may live longer. I could only base my decision on the medical advice I had before me.
It had been suggested that Mr Al-Megrahi could be release from prison to reside elsewhere in Scotland. Clear advice from the Deputy Chief Constable of Strathclyde Police was that the security implication of such a move would be severe. A minimum of 48 officers would be required simply to allow Mr Al-Megrahi to live n Scotland. I therefore ruled that out as an option.
Having met the criteria, it therefore fell to me to decide whether Mr Al-Megrahi should be released on compassionate grounds. I was conscious that there are deeply held feelings, and that many would disagree whatever my decision. However a decision had to be made.
It was based upon the law of Scotland, and the values I believe we seek to uphold. It was not based on political, diplomatic or economic considerations.
It is a matter of great regret that Mr Al-Megrahi was received in such an inappropriate manner. It showed no compassion or sensitivity to the families of the 270 victims of Lockerbie. Assurances has been given by the Libyan Government that any return would be dealt with in a low-key and sensitive fashion. Advance notice of my decisions was given to the UK and US Governments so that they could seek similar assurances.
However my decision was made following due process, and according to the law of Scotland. I stand by the law and value of Scotland.
Scotland will forever remember the crime that has been perpetrated against our people and those from many other lands. The pain and suffering will remain forever. Some hurt can never heal. Some scars can never fade. Those who have been bereaved cannot be expected to forget, let alone forgive.
As I said, Mr Al-Megrahi now faces a sentence imposed by a higher power. It is one that no court, in any jurisdiction, in any land could revoke or overrule. It is terminal, final and irrevocable. He is going to die.
In Scotland, we are a people who pride ourselves on our humanity. It is viewed as a defining characteristic of Scotland and the Scottish people. The perpetration of an atrocity and outrage cannot and should not be a basis for losing sight of who we are, the values we week to uphold, and the faith and beliefs by which seek to live.
Mr Al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone live out their dying days. No compassion was shown by him to them.
But, that alone is not a reason for us to deny compassion to him and his family in his final days.
Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served, but mercy be shown. Compassion and mercy are about upholding the beliefs that we seek to live by, remaining true to our values as people. No matter the severity of the provocation or the atrocity perpetrated.
For these reasons – and these reasons alone – it was my decision that Mr Abdelbasit Ali Mohmed Al-Megrahi, convicted in 2001 for the Lockerbie bombing, now terminally ill with prostate cancer, be released on compassionate grounds and allowed to return to Libya to die.
Questions then followed from MSPs with fierce opposition and strong support being voiced against and for the controversial decision.
The need of the Justice Minister to visit Mr Al-Megrahi in prison in person was questioned by Iain Gray, the Labour member for East Lothian. It was suggested that Mr Al-Megrahi could have made his representation in a written format instead. MSPs such as Nicol Stephen, Liberal Democrat MSP for Aberdeen South, wondered whether the Justice Minister would be visiting any other prisoners to discuss their requests for release.
The Justice Minister insisted that Mr Al-Megrahi had the right to represent himself in person in the same way he could if appearing in court. Also, his right to make representations under the terms of the Prisoner Transfer Agreement was reiterated. Some MSPs seemed unsatisfied with this response and both Margo MacDonald, Independent MSP for the Lothians, and Pauline McNeill, Labour MSP for Glasgow Kelvin, questioned what was discussed at that meeting and whether Mr Al-Megrahi had been pressured to drop his appeal in return for compassionate release – as had been suggested by some newspapers.
The need to send Mr Al Megrahi to Libya to avoid the need for 48 police officers guarding a hospice was also questioned. One MSP suggested that the cost of 48 police officers was a small price to pay for the Scottish international reputation. It was also pointed out by Annabel Goldie (Conservative MSP for West of Scotland) that Mr Al-Megrahi would receive better palliative care in Scotland than in Libya and that the compassion shown by sending him back was questionable. Both Margaret Curran, Labour MSP for Glasgow Baillieston, and Elaine Murray, the Labour MSP for Dumfries, asked whether compassionate alternatives other than repatriation had been fully explored.
Annabel Goldie also questioned the “incomprehensible silence of Gordon Brown” in efforts to limit the damage to Scotland’s international reputation. Kenny MacAskill responded to much criticism by quoting the support of leading members of the clergy such as Archbishop Mario Conti, as well as statements on mercy from leading politicians of the past. This fanned the flames of many including Tavish Scott, Liberal Democrat representative for Shetland, and Nicol Stephen, Liberal Democrat MSP for Aberdeen South, who sarcastically quoted Kenny MacAskill’s religious use of the term “higher power” in his reasoning for the release of Al-Megrahi.
Lewis Macdonald, Labour MSP for Aberdeen Central, questioned whether the economic impact of Al Megrahi’s release had been considered before the decision was taken – referring to reports of Americans boycotting Scottish goods following the release of a man who murdered so many American citizens. Mr MacAskill replied “absolutely not”.
Mr MacAskill defended the practice of compassionate release saying that since 2000, no prisoner who had fulfilled the criteria for release had been refused by the Justice Secretary. He also defended the timeline of his decision making process and blamed early newspaper reports of his decision on speculations rather than a leak. Calls for a leak inquiry from Richard Baker (Labour MSP for North East Scotland) and David Whitton, Labour MSP for Strathkelvin and Bearsden, were not answered.
Bill Aitken of the Scottish Conservative and Unionist Party asked whether: “Did the First Minister or the cabinet secretary feel at any stage that, because of their naivety and inexperience in international affairs, they were being stitched up and used as pawns in a much bigger international game?” and suggesting that deals had been done behind closed doors.
Christine Grahame, Scottish National Party MSP for South of Scotland wanted full publication of the Scottish Criminal Cases Review Commission report into the Lockerbie Bombing, that named a resident of Washington DC as the bomber, in case there had been a miscarriage of justice which would not be investigated now that Mr Al- Megrahi’s appeal has been dropped.
Another interesting aspect of the Al-Megrahi case involved East Renfreshire council, which is now responsible for supervising Al-Magrahi while he is on licence. The released prisoner will have to appear by video link once a month. This led to a question from Ken Macintosh, the Labour MSP for Eastwood, about what would happen should Mr Al-Megrahi not show up for his videolink? The Justice Minister simply replied: “On the basis of the medical evidence given to me, I have returned him to Libya to die,” which displeased many MSPs in the chamber.