The decision

The Cabinet Secretary for Justice has granted compassionate release. The separate prisoner transfer request by the Libyan Government has been refused because of the legitimate expectations held by the US Government and the US relatives, on the basis of undertakings allegedly given by the UK Government (but not admitted by that government) at the time of the initial agreement for the Zeist trial, that any sentence imposed on a person convicted would be served in Scotland.

Here is the full text of Mr MacAskill's statement:

STATEMENT BY KENNY MACASKILL, CABINET SECRETARY FOR JUSTICE

Mr Abdelbasit Ali Mohmed Al-Megrahi

Introduction

Good afternoon. I will make a statement and then take questions.

It is my privilege to serve as the Cabinet Secretary for Justice in the Government of Scotland. It is a post in which I take great pride, but one which carries with it great responsibility. Never, perhaps, more so than with these decisions that I now have to make.

On the evening of 21 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 has been submitted by the Government of Libya seeking the transfer of Mr Abdelbasit Ali Mohmed Al-Megrahi. The man convicted of those offences in the Scottish courts. He has also now sought to be released on compassionate grounds due to his prostate cancer that is terminal.

This crime precedes both the election of our Government and even the restoration of a Parliament in Scotland. I now find myself having to make these decisions. However, the applications have been lawfully made, and I am obliged to address them. Final advice from my officials was given late on Friday 14 August 2009. I have now had an opportunity to reflect upon this.

Let me be absolutely clear. As Cabinet Secretary for Justice in Scotland it is my responsibility to decide upon these two applications. These are my decisions and my decisions alone.

In considering these applications I have 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 have listened to many representations and received substantial submissions.

Let me be quite clear on matters on which I am certain. 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. They are to be commended for their tenacity and skill. 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. He was given a life sentence and a punishment part of 27 years was fixed. 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 are predicated on the fact that he was properly investigated, a lawful conviction passed and a life sentence imposed.

I realise that the abandonment of the appeal has caused concern to many. I have indicated that I am grateful to and proud of those who have served in whatever capacity in bringing this case to justice. I accept the conviction and sentence imposed. However, 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 co-operate in such an inquiry.

I now turn to the matters before me that I require to address. An application under the Prisoner Transfer Agreement and an application for compassionate release have been made. I now deal with them in turn.

Prisoner Transfer

Firstly, the prisoner transfer agreement.

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 a consequence Mr Al-Megrahi is 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 the 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 to hear their reasons for applying for transfer, and to present to them the objections that had been raised to their application.

I have 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, to which 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, and he chose to do so in person. Therefore I was duty bound to receive his representations. I accordingly met 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 in fact deputy Attorney General to Janet Reno at the time of the 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 that they 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 have declined to offer a full explanation as to what was discussed during this time, or to provide any information to substantiate their view. I find 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 appears 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 is for that reason that the Libyan Government’s application for prisoner transfer for Abdelbasit Ali Mohmed Al-Megrahi I accordingly reject.


Compassionate Release

I now turn to the issue of compassionate release.

Section three of the Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the 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 the grounds for compassionate release are, guidance from the Scottish Prison Service, who assess applications, suggests 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 time 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 24 July 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.

In order to consider the application for compassionate release, I was provided with reports and recommendations by the Governor of Greenock Prison, the doctors and prison social work staff. Also, as laid out in statute, I have consulted the Parole Board. This is the normal process for consideration of an application for compassionate release and my decision is in accordance with all the advice given to me.

It is 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. Consensus on prognosis therefore has moved to the lower end of expectations.

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 indicates 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 can only base my decision on the medical advice I have before me. That medical advice has been made available to the United States Government at their request and has been published on grounds of public interest.

It has been suggested that Mr Al-Megrahi could be released from prison to reside elsewhere in Scotland. Clear advice from senior police officers is that the security implications of such a move would be severe. I have therefore ruled that out as an option.

Conclusion

Having met the criteria, it therefore falls to me to decide whether Mr Al-Megrahi should be released on compassionate grounds. I am conscious that there are deeply held feelings, and that many will disagree whatever my decision. However a decision has to be made.

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. Their pain runs deep and the wounds remain.

However, 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 seek to uphold, and the faith and beliefs by which we 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 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 a people. No matter the severity of the provocation or the atrocity perpetrated.

For these reasons – and these reasons alone – it is 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.