What should happen now

[My opinions about what should happen to Abdelbaset Megrahi now that he has been diagnosed with late stage prostate cancer are canvassed in a number of Sunday newspapers. What follows are my real views, expressed in my own words.]

Since 31 January 2001 -- the day the guilty verdict against Abdelbaset Megrahi was announced by the Scottish Court at Camp Zeist – I have made no secret of my belief in his innocence. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes, in my view, the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909 for the murder of Marion Gilchrist.

In this context it is highly relevant to note that one – by far the most important – of the grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Mr Megrahi’s case was its view that no reasonable court could have reached the conclusion that the Lockerbie court did on a matter absolutely central to its reasons for convicting. The SCCRC said:

“[T]he Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House [which were in the suitcase that also contained the bomb] took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.”

But even if there were not overwhelming grounds for doubting the justifiability of the court’s verdict, there are other reasons for pressing for his release from prison, given his recent diagnosis of late-stage, untreatable prostate cancer.

The first of these reasons is compassion and humanity. There is a practice – though not an invariable one -- within the Scottish Prison Service of releasing a prisoner who has only three months to live. We none of us know whether that stage has been reached in the progression of Mr Megrahi’s illness. But is it really necessary for those in whose power the decision lies, to wait until they are certain that that point has arrived? This particular prisoner finds himself incarcerated in a foreign country whose culture is alien to him. His sense of isolation at this time and the psychological strain on him must be greater than what would be suffered by a Scottish prisoner in a Scottish jail. Would it not be both appropriate as well as merciful for this to be recognized by the Scottish authorities?

Secondly, the delay in bringing Mr Megrahi’s current appeal to the hearing stage has been appalling. Had a measure of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. The submission made to them was, admittedly, a long and detailed one. But the issue of the trial court’s unreasonable findings, mentioned above, is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007.

More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it.

Abdelbaset Megrahi has been shabbily dealt with by the Scottish criminal justice system. The Scottish Government has an opportunity now to treat him with compassion and dignity. I, for one, hope that it has the moral courage to seize this opportunity.