It is quite unprecedented and totally out of order for the Head of the FBI, Mr Robert Mueller to attack Scottish Ministers over the release of the Lockerbie bomber Abdelbaset Ali Mohmed Al Megrahi and to claim that their action “make a mockery of the rule of law”. At the end Mr Mueller’s letter, he asks “where, I ask, is the justice?”.
It is a good question.
Following all the anguish and distress over the release and the deluge of criticism and abuse directed at Scottish Cabinet Secretary for Justice, Kenny MacAskill from the USA and the UK , one simple fact seems to have been ignored – this was a quasi-judicial decision.
Mr MacAskill was acting under powers conferred on him by law – Part 3(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 – which states that the Secretary of State (now Scottish Ministers) may release a prisoner on licence if satisfied that there are compassionate grounds for release.
3 Power to release prisoners on compassionate grounds
(1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.
Mr Al Megrahi made such an application on 24 July 2009 and was entitled under the law to have it considered just like another other prisoner. There are two elements to such a decision. First, do compassionate grounds exist? Second, if they do, then should the prisoner be released?
On the first point, Mr MacAskill took advice from the Prison Governor at Greenock Prison where Megrahi was being held, from Social Work officials at the prison, from medical professionals and from the Parole Board. All these independent professionals stated that Megrahi qualified for compassionate release. Mr MacAskill did not decide that he was eligible – a number of highly qualified professionals acting with professional disinterest made that decision. The grounds therefore existed for Mr MacAskill to release Mr Al Megrahi if he chose to do so.
Which brings us to the second element – Mr MacAskill’s discretion in the matter. He has complete freedom to make the decision either way but is obliged to act in a quasi-judicial capacity. That is to say he has to apply his powers equitably, fairly and consistently. Under the law any prisoner submitting such a request has the right to be treated equally under the law – a fundamental tenet of justice in any jurisdiction. Since 2000, in Scotland, there have been 31 applications for compassionate release and of those, all but seven have been granted. Those seven were refused because they did not fulfil the criteria as judged by the relevant professionals. Mr Al Megrahi’s application was the sixth to come before Mr MacAskill as Justice Secretary and, like the other five, and like all the others that met the criteria, was granted on Thursday this week.
For Mr MacAskill to have refused a competent application would have been to treat Megrahi differently to other prisoners. Now much of US opinion appears to argue that Megrahi should have been treated differently because of the nature of his crime and that is understandable. It is an attitude, however, that fails to acknowledge that everyone, including prisoners such as Al Megrahi, are entitled to equality of treatment under the law. Moreover, given that the arguments against release were essentially political, it would have been even more unjust to have refused when justice is meant to be independent of political interference – an important characteristic of a democracy which US citizens would do well to remember.
Thus, there would have been more to worry about had Megrahi been refused compassionate release. Political interference in the judicial system is the mark of dictators such as Colonel Gadaffi. We don’t want it in Scotland and Mr Mueller is thus wrong to argue that the decision makes a mockery of the rule of law. It does precisely the opposite – it upholds the rule of law in the face of political pressure.