[I am grateful to a reader of this blog who yesterday evening sent me the following message:]
You will be interested in tonight's Any Questions, if you didn't hear it. It's on the iPlayer here http://www.bbc.co.uk/iplayer/episode/b00t2y8r/Any_Questions_23_07_2010/
They begin with Megrahi, but you can go to 12 or 13 minutes in for the interesting bit. Magnus Linklater says he has seen a transcript of the meeting between Kenny MacAskill and Megrahi, and Kenny says "There is no question of you being released while there is still an appeal outstanding. The decsion as to whether you pursue that appeal is for you and your legal team."
Fergus Ewing has made it clear that the meeting was part of the provisions of the PTA and was about that application not compassionate release; however, that wording (if Magnus has remembered it correctly) seems very definite, if not threatening. One would need to know whether these were the exact words, and whether in context it was indeed referring purely to the PTA, but something smells very funny about this.
One can tell some things from the published information on this.
ReplyDeleteAs I wrote to the Scottish Parliament Justice Committee on 28 September (http://www.mattberkley.com/scotjustcom.htm or http://www.parlamaid-alba.org/s3/committees/justice/inquiries/Megrahi/20090928MattBerkley.pdf ):
".... At the prison, there were seven facts Mr MacAskill could have told the appellant on the relevance of the conviction appeal to the decisions:
a) he would have to drop it to be transferred;
b) he would not have to drop it for the Minister to refuse transfer;
c) he would not have to drop it for the Minister to release him;
d) if he did drop it, he could not be transferred unless the Crown decided to drop their sentence appeal;
e) the Crown would decide independently;
f) the Minister currently had no information on what the Crown would do;
g) the Minister would not find out in advance what the Crown would do.
Mr MacAskill appears to have mentioned only one of these - (a), that he would have to abandon the appeal to be transferred – while omitting both the possibilities which did not need the appeal to be dropped and the one which would defeat his stated purpose of doing so. This impression from the Department’s note is bolstered by Mr MacAskill’s statements in Parliament on 2 September in reply to Margo MacDonald, that what he said to Mr Megrahi was in the note and “no further matters beyond that were discussed.”.
ii) A statement to the prisoner on transfer conditions which, as recorded, was strictly speaking incorrect
The note of the meeting says, “Mr MacAskill stated it was necessary to highlight that when he makes his decision on prisoner transfer, he can only grant a transfer if there are no court proceedings ongoing. Mr MacAskill stressed that this was a decision for Mr Al-Megrahi and his legal team alone”.
A decision by Mr Megrahi was not the only decision which was relevant.
If the word “this” refers to the non-existence of court proceedings, then the statement would seem to be false, since in reality the Crown would also have to give up their appeal. It is not clear what the referent might otherwise be.
To the extent that Mr Megrahi took notice of it, in a context where Mr MacAskill arrived at the prison having already failed to make a decision within the target period, it might be reasonable to think that the message the prisoner understood was that if he dropped the appeal he would be likely to be transferred: “Mr MacAskill stressed that this was a decision for Mr Al-Megrahi and his legal team alone.... Mr Al-Megrahi stressed that he understood this point.... he felt he should be allowed transfer”. The question of what if any influence Mr Megrahi believed or hoped the Minister had with the Crown is a matter for speculation.
iii) A statement to the prisoner with no obvious basis: “Mr MacAskill stressed that he could not give any indication of his likely decision”.
The basis of this assertion in the note of the prison visit is not clear. This issue is discussed in the Appendix below. There are no grounds in the treaty for saying a Minister could not give an indication.
Mr MacAskill does not make clear whether his statement is a legal, quasi-legal, procedural, or moral point.
A basis for the first three of those is not apparent. Morally, if a prisoner states a desire to return home as the reason why they might drop their appeal, it is not clear why it would be against the interests of justice for a Minister to indicate that doing so would not, or would not be likely to, achieve their aim. The section above under "timeliness" concerning the intention of prisoner transfer agreements is relevant here. "
Robert, if you are going to give Linklater credibility on that point you might as well give him credibility for saying al-Megrahi is "perfectly well". The audience saw through that attempt at muck raking and Diane Abbot helpfully put him straight.
ReplyDeleteThe answer to your query is helpfully pasted Matt's reply. Linklater's 'transcript' is the above note which ensd on the same point.
The only thing that smells is the BS from Linklater's obsessive anti-SNP beliefs (no issue is beyond the pale for him and sadly some others who pose as journalists).
Quite frankly his attempts at a smear were confused as well as fantasy. He appeared to be grabbing at any criticisms to have a pop.
MISSION LOCKERBIE:
ReplyDeleteExisting facts get suddenly new meaning:
Published only in German language, for a professional translation we are grateful...
Bestehende Fakten bekommen plötzlich neue Bedeutung:
Die Freilassung des unschuldigen Mr Abdelbaset Al-Megrahi auf Grund seiner fortgeschrittenen Prostata Krankheit oder auf Druck eines angeblichen Oil Deals mit BP war/ist eine rafinierte Ablenkung "Augenwischerei", von den wahren Hintergründen !
Anfang August 2009 stand für die Scottish Justiciary ein "existentielles" Problem im Fokus; das Erfolg versprechende Appeal zugunsten al-Megrahi musste mit allen Mitteln vor der angekündigten Gerichtsverhandlung, am 2. November 2009, verhindert werden!
Ein Appeal Urteil als "Miscarriage of Justice", wie es die Scottish Criminal Cases Reappeal Commission (SCCRC) am 28. Juni 2009 in 6 Punkten als Möglichkeit verkündet wurde, hätte in Scotland bei Offiziellen, ein "Köpfe rollen" ausgelöst und in der Welt Entsetzen verursacht!
Dazu einige Fakts und Fragen zum Nachdenken:
Bevor der Ratifizierung des Prisoner Transfer Agreement (PTA) am 29. April 2009, al Megrahi has consistently maintained his innocence and vowed several times to stay in Scotland and win his freedom through the appeal courts.
Heute ist bekannt, dass Mr al-Megrahi seit dem 9. Juli 2009, 26 Tage vor dem Besuch von Secretary Kenny MacAskill wusste, dass sein Appeal nach einem Transfair nach Libyen normal fortgesetzt werden kann...
Frage: Wieso hatte al-Megrahi nach den Besuchen von Kenny MacAskill, ab 12. August 2009 sein Erfolg versprechendes Appeal zurückgezogen ??
Es gibt dazu eine berechtigte Nachfrage: Mit welchen markannten Fakts wurde Mr al-Megrahi genötigt, sein Appeal zurückzuziehen ??
Geehrter Secretary of Justice Kenny MacAskill Sie könnten mit grösster Wahrscheinlichkeit mit einer wahren Antwort, die fragwürdige Angelegenheit zu Ende bringen...
Bitte öffnen Sie zusätzlich, wie mehrmals versprochen, die Dokumente der SCCRCommission.
by Edwin and Mahnaz Bollier, MEBO Ltd., Switzerland
URL: www.lockerbie.ch
I think someone is stirring it in the hope of reducing the clamour for a full independent Inquiry into Lockerbie from start to finish. We must not get distracted. The fuss still being created in some quarters over the release seeks to focus only on that. Lockerbie, the trial, the conviction, the SCCRC findings and the appeal came before the release. They are far more important. There is space during any full investigation to look into exactly what McAskill said to Megrahi but there are other questions to be answered first.
ReplyDeleteI was the blog reader who sent that note to Prof. Black, and I also had an email read out on Any Answers. I wasn't aware the note of the meeting had been published, though a friend has since sent me the link. I agree with Norman that it seems Linklater was referring to the section of the note which reads, ".... he can only grant a transfer if there are no court proceedings ongoing. Mr MacAskill stressed that this was a decision for Mr Al-Megrahi and his legal team alone."
ReplyDeleteLinklater has thus been dishonest in two respects. First, he spoke as if he'd been shown something confidential, rather than read a document freely available on the internet. Second, he was paraphrasing very freely, especially in the use of the word "release" instead of "transfer". This is of course in addition to the rest of his dishonesty in for example declaring that Megrahi is "perfectly well".
His argument was indeed extremely confused, in that he swung wildly from lambasting the compassionate release, to apparently agreeing that Megrahi might well be innocent. Norman is of course right that anti-SNP obsession seems to be his main driving force.
Having said that, I read Matt's comment with great interest. Prof. Black has always opined that the dropping of the appeal was engineered by keeping Megrahi in the dark as to what method would be favoured to allow him to go home - if he was to be allowed to go. The entire document, which I have just read, certainly supports that reading.
ReplyDeleteThis was always difficult for me to understand, because anyone following the Scottish media, which I would presume includes Megrahi, should have realised that the Scottish government would rather pull out its own toenails than go the route of the Labour-negotiated PTA. Also, given the mich more cumbersome PTA logistics, with a judicial review possible I believe, this would seem an inappropriate vehicle to deal with a terminally-ill prisoner with a short life expectancy.
I think Matt's explanation clarifies a great deal. It seems from what he says that it was quite unnecessary for Megrahi to drop the appeal in advance of knowing the decision on prisoner transfer. And why should it have been? Why would anyone frame a law that would force a prisoner to drop an appeal "on spec", with the possibility that they might then be refused? What exactly is wrong with allowing a decision of "granted, so long as the appeal is dropped"?
However, there was another aspect which struck me at the time, and again on reading the notes of the meeting.
2. Mr MacAskill noted that he had also received Mr Al-Megrahi's application for compassionate release, and that he was considering this application in parallel and he would aim to make both decisions at the same time.
Why was he doing that? This is a course of action calculated to maximise uncertainty and make it as difficult as possible for any decision to be made by the prisoner. Given that some of the relatives had expressed their clear desire that the appeal should continue, and that given the SCCRC findings this was obviously in the interests of justice, what barrier could there have been to making the decision on the compassionate release first, to allow Megrahi to withdraw the appeal later if the compassionate release application failed?
This is all extremely unclear, but I still see nothing to persuade me that there wasn't a huge agenda going on to Get That Appeal Dropped, and I can't see why an SNP minister should have such an agenda.
Jo G said, I think someone is stirring it in the hope of reducing the clamour for a full independent Inquiry into Lockerbie from start to finish.
ReplyDeleteI take your point, but I think it's quite possible this current fuss can widen or be widened to encompass the important agenda.
First, there have been calls for a full enquiry into Lockerbie for over 20 years, and the relatives and others have been slapped back at every turn. How can they possibly suddenly announce an enquiry into the utterly trivial matter of the compassionate release, while at the same time continuing to refuse a full enquiry? (OK, they could, but it's an opportunity to shout pretty loud.)
Second, the more the argument about the circumstances of the compassionate release can be moved away from the BP irrelevancy and on to the question of the dropped appeal, the better. Many people were unaware there was even an appeal in progress, let alone the merits of the arguments. At least some of them are finding out.
It's very irritating to have been drawn into an argument on false premises by Magnus Linklater, but if it highlights the serious questions surrounding this aspect of the affair, it's not necessarily a bad thing.
Thanks people.
ReplyDeleteI´ve been meaning to write an article on this business of "CR and PT at the same time" since reading a discussion related to it on this blog a few weeks back. The treaty may be relevant.
Rolfe, I think your instinct is right. In response I´ve rattled off a few sentences which may do as a short article. References to be added.
.......
Why did Mr MacAskill deal with release and transfer decisions about Mr Megrahi at the same time, and was it wise?
First draft. References, and section on wisdom, to be added.
Matt Berkley
25 July 2010
George Burgess, Mr MacAskill´s main adviser on the decisions, told him that he must deal with them at the same time.
However, the prisoner transfer treaty does allow for the transferring nation to modify the sentence afterwards.
Therefore, unless somehow this provision does not apply to compassionate release, the following is true:
Mr MacAskill could have transferred Mr Megrahi, then released him on licence later.
Dr Burgess´ advice that he must consider both at the same time was, again unless there is something else to consider, wrong.
It is not clear why he gave this advice, or why anyone thought it was a good idea.
In the advice on compassionate release, he said it was urgent, and gave as the only detail that it must be considered with the other application.
I´m not sure that is a good reason for haste in an application for compassionate release.
……………………
It may be worth noting one particular odd theatrical element in Mr MacAskill´s announcement.
Suppose you as a minister make two decisions at the same time - to release a prisoner and not to transfer them.
There isn´t any prisoner to transfer.
Also, there isn´t any valid application to talk about. Once you decide to release them, there is no need, legal or otherwise, either to consider a transfer request or to make any statement about it.
Announcing the transfer decision first was, both from a purely legal perspective and in respect of his procedures and quasi-judicial functions, a waste of the audience´s time.
Needs a bit of work, of course!
ReplyDeleteMaybe I'm being overly simplistic here, but why all the complications? Even if the two applications were considered together (and there seems absolutely no reason they should be), why did anyone consider it necessary for Megrahi to drop the appeal before the decisions were finalised? Nobody actually says this at any point - it just somehow seems to be taken as read.
What was wrong with simply saying, I'm granting compassionate release not prisoner transfer, therefore there will be no need to withdraw the appeal. Or else, I'm refusing compassionate release but I will grant prisoner transfer, subject to the appeal(s) being dropped. And in the latter case, to allow Megrahi to wait until he knew that the Crown appeal had been dropped before he dropped his.
Even if there had been no compassionate release on the cards at all, was this any way to conduct a process of prisoner transfer? I can't believe the agreement said the prisoner had to drop an appeal without knowing the decision! Oh, you dropped your appeal, that's fine, application refused! How can that be in any way just?
This totally stinks.
And while we're at it, what was Megrahi's lawyer, Mr. Kelly, doing during all this? What advice was he giving his client?
Announcing the transfer decision first was, both from a purely legal perspective and in respect of his procedures and quasi-judicial functions, a waste of the audience´s time.
ReplyDeleteThat struck me as odd at the time, but I didn't quite realise why.
I haven't had time to weigh in on this yet, but I've been following the discussion at JREF, and did manage to hear (and record forreference) the show.
ReplyDeleteRight here I'm learning more - I also had no idea the meeting transcript was available.
Mr.Berkley: I haven'tread your first comment just yet, but on the second, such an article would be most useful. I tried to get around the idea of release-for-appeal with my article "Emotianal Blackmail," but it suffered from almost no knowledge of the two-track approach MacAskill took. It appears ...suspicious, anyway. One could wonder if the message was that he must meet the terms of both schemes in order to leave.
The timeline here is a little confusing - If I'm not wrong, the PROGNOSIS was made on Aug 3, but Dr. Fraser's report is dated Aug 10. Therefore...did Kenny know 3 months had been said? I've seen the meeting in question here reported as Aug 4, 5, or 6. variously, so in between these two dates.
Matt Berkley:
ReplyDelete"iii) A statement to the prisoner with no obvious basis: “Mr MacAskill stressed that he could not give any indication of his likely decision”.
The basis of this assertion in the note of the prison visit is not clear. This issue is discussed in the Appendix below. There are no grounds in the treaty for saying a Minister could not give an indication.
Mr MacAskill does not make clear whether his statement is a legal, quasi-legal, procedural, or moral point."
Excellent question. This part pops right out to me. He won't show his hand, basically, is what my gut says. It's something you do playing cards - that is, in a mental competition with someone, playing to win something.
Fine points aside, what happened is Megrahi made, as said here, his own decision to satisfy the terms of the PTA the meeting was all about. (Was that "BP's" PTA, by the way?) Kenny says AFTER this that he's considered nothing but compassion, but he "could not" tell Megrahi that ahead of time, as he was left hanging...
This can seem a mysterious situation from one Point of View, or fully logical from another.
You know, this really might be worthy of an investigation.
The "transferring" involves the PTA and was not an option. The SNP were opposed to the PTA as were many of us out here. It required the dropping of the appeal!
ReplyDeleteRolfe I agree with all you say in the above post and did not mean to suggest I did not. The "stirring" I refer to is from some in the media (Linklater included) who clearly want the pre-release issues, and they are the main issues as we know, buried. Linklater actually said during that programme that Megrahi was "perfectly well". I mean, good God, what a statement!
I also don't believe we should get distracted with the circumstances of who said what when McAskill met Megrahi. These things can be dealt with in a proper investigation but the big issue is to get an investigation into everything, the trial, the conviction, the SCCRC findings, the lot. The establishment may wish to take the , "The appeal is gone, the appeal is now irrelevant." approach. But it hasn't. The original announcement of the SCCRC, that there may have been a miscarriage of justice, remains on record. That is what I want the media to focus on because they can force the politicians into addressing the grave concerns associated with the whole subject.
I do not seek to criticise the quality of writing elsewhere but I genuinely believe that lengthy contributions about what was said to Megrahi are not helpful at this time.
The "transferring" involves the PTA and was not an option. The SNP were opposed to the PTA as were many of us out here. It required the dropping of the appeal!
ReplyDeleteYet MacAskill SNP was considering it, leading to all this, including a reason Megrahi MIGHT have to drop his appeal, just before he did so.
It's true that we won't get legally binding answers by hashing it out on the internet, but
1) There may never be an investigation
2) If there is, no problem with some smart people having already figured it out. It's not like it can only be figured out once.
:)
So that said, this being ahead of me a bit still, someone else should assembles a coherent, detailed (but readable) summary of what we can know and surmise about MacAskill's and others' decisions leading up to the appeal's assassination.
Mr. Berkley could perhaps work with one of the big papers and a reporter to make an almost scholarly breakdown, to eliminate some of the fog and shine bright lights on what needs it. I'd really like to hear Dr. Burgess' role explained in a bit of detail.
caustic_logic@yahoo.com
I appreciate Jo's point, and she's right to an extent of course. However, anything that gets the discussion to focus on the appeal rather than goddamned BP has to be a good thing.
ReplyDeleteThe medical examination was on 3rd August. Dr Fraser´s report (containing the statement that a three-month prognosis was a reasonable estimate) was dated the 10th.
ReplyDeleteTransfer agreements say that judgment must be final. They aren´t intended - at least ostensibly - to have anything to do with people dropping appeals. Nor are they necessarily anything to do with the welfare of the prisoner. The state applies for transfer, not the prisoner.