Sunday, 25 July 2010

A rather different perspective

On The Oligarch Kings blog today there is a post by David Macadam entitled "Lockerbie, the Scottish Bar and Libya: a different truth perhaps?". The last few paragraphs read as follows:]

The matter was referred to the Scottish Criminal Cases Review [Commission] whose own report, reluctantly oh so reluctantly, accepted that a miscarriage of justice had happened.

And Al-Megrahi appealed.

Scotland is a devolved country within the UK. Matters legal are dealt with by its own Justice Minister who is Kenny McAskill. Now Kenny is a nice guy. When he was in practise it was as a partner in a down home Mom and Pop law shop dealing with the daily concerns of ordinary people. He showed genuine concern and this lead him to politics where his calm manner and common touch have made him friends. But a diplomatic background or any international legal experience is not his.

This appeal had every likelihood of going ahead. If it did it would undoubtedly have been a disaster to the profession and to Scotland’s legal standing in the world.

Worse was to happen. Al-Megrahi fell ill with prostate cancer and a nightmare for the profession loomed. It was entirely likely that Al-Megrahi would be found innocent and it was just as likely, given the length of time the appeal would take, that he (an innocent man) would die a lingering death in a Scottish jail far from his home and family. Desperate for a way out of this quandary, did the profession do what it does best? Did it panic and send Kenny in to bat?

Kenny certainly does something really out of place for a justice minister. He turns up personally in the jail to negotiate with Al-Megrahi. The deal? We might speculate that it was to drop the appeal, and Kenny would invoke a little known part of a 1993 act which would allow him to release Megrahi as a compassionate act.

The appeal was certainly dropped and Al-Megrahi was back in Tripoli a fortnight later.

So, is Megrahi is back in Libya, not because BP were dealing with Libya, or any deal with the British Government but because the Scottish legal profession were terrified that the whole mess, which had been their one and only throw on the world stage, would come unravelled and their bar would end up looking like a bunch of backwood hicks and amateurs? It also entirely denies anyone ever being able to test Al-Megrahi’s arguments under court conditions. Did they put their own legal political expediency over justice?

It worked a treat boys didn’t it?


  1. Given that a lot of people didn't seem to want that appeal to see the light of day, I wonder what they'd have done if Megrahi hadn't developed cancer? I mean, he was only 56 when he was diagnosed. Rotten luck for more than him really. If it had only held off for another couple of years, everything could have been so different.

    Couldn't it?

    I wonder whether pressure was going to be put on him via the PTA to withdraw the appeal. That PTA is apparently the first one of its kind where not only is it the home state who has to apply to get its prisoner home, but the transfer didn't even require the consent of the prisoner.

    However, I imagine it was up to him whether or not he dropped the appeal, so in practice they couldn't have forced the issue. Unless they could have pressurised him in some way, which might not have been impossible. He was getting a bit desperate by last summer, which was understandable, but if the PTA had been on the table and he'd been perfectly healthy, would he have sat tight? Even if there were threats not to renew the offer if he lost the appeal? And how confident would anyone who had sat through Camp Zeist be that this time it would all be so different?

    Sorry, I seem to be of a conspiracy theory mindset tonight. Maybe I should post this on the original blog....

  2. If thee had been no cancer, well here's one quick thought FWIW:

    They were willing to handle the flak of a return home that I suspect they knew was early. They also were willing to make sure the appeal was surrendered on the way out. These facts could both suggest they had been prepared for a non-cancer related early transfer-cum-release (c'mon, Libyan jail?) and the flak THAT would cause.

    I note this article speculates about the Greenock meeting. I'm hopeful that with Mr. Berkley's help, someone will put up a comprehensive study of just what was said in that meeting and what it means, so people can make a better decision on all this.

  3. I think the notes of the meeting are all we're going to get.

    Different groups may have different interests in getting the appeal dropped. The UK government my care little for the reputation of the Scottish bar. The US government probably cares not at all. Except the US government was complicit with the Scottish bar in getting the conviction in the first place.

    Even if this is Kenny MacAskill's sole motivation, I have a fairly strong feeling that is not the only reason in the entire world for wanting the conviction to stand.

  4. My understanding is that the PTA required the absolute withdrawal of the appeal. Compassionate release did not.

  5. Even the PTA should not have required the appeal to be dropped before it could have been considered.

    The way Kenny was handling the PTA, taken in isolation, suggested that the prisoner must drop the appeal without having any idea what anyone else intended to do. So, he could have dropped it, and then had the application refused. Or he could have dropped it, and then the Crown declined to drop its appeal against sentence, again leaving him stuck in jail with his appeal denied him, and facing the possibility of an increased sentence.

    This is a complete travesty of justice, and if the agreement was really framed in that way, outrageous.

    Megrahi seems to have been treated like a mushroom (you know, kept in the dark and fed....), so that he eventually came to the conclusion he might as well drop the appeal since he wasn't going to live to see it concluded anyway.

    Which was also not true, because it would have been concluded by now if he hadn't dropped it.

  6. Do you think the appeal would have been heard? It had just been put back again remember because some judge needed a heart by-pass. I think they would have kept stalling.

  7. I'm not sure how much the judge's illness had to do with it. The appeal had a set timetable, and I have a feeling the November date was arranged anyway. Something about re-commencing in November, and concluding in February?

    My suspicious mind just wonders if there was an intention to twist Megrahi's arm to withdraw the appeal to allow the PTA to come into force, if the cancer hadn't superseded. Imagine. Apply for the PTA at the earliest possible moment (as was in fact done). (The appeal was actually before the court when that application was made, remember.) Decision has to be given within 90 days. Appeal won't be anywhere near concluded by then.

    So, it might be possible to tell Megrahi, this is your big chance. You might lose that appeal, and if you do we won't be re-applying for prisoner transfer. So you can either withdraw the appeal and go home under the PTA, or keep it going and hope you win. Given your experiences at Zeist, how lucky do you feel?

    One way of kicking the appeal into the long grass, even with a healthy prisoner. Or maybe I'm being too cynical?

    ETA: I think I already said that. Oh well.