Megrahi may have been denied justice, the relatives of the dead certainly have been

[What follows is the text of an article by Paul Vallely that was published in The Independent on this date in 2009:]

There has been some very muddled thinking in the debate over whether the man convicted for the Lockerbie bombing should now be freed. Abdelbaset Ali al-Megrahi – the former Libyan intelligence officer who is serving life for murdering 270 people when a bomb exploded on Pan Am flight 103 in 1988 – has terminal prostate cancer. Some say he should be released early on compassionate grounds; others because he may well not be guilty of the crime anyway. Others insist he must die behind bars.

It is worth trying to disentangle the arguments here. A society imprisons criminals for a variety of reasons but the main four are: to exact retribution, to restrain villains from committing more crimes, to deter others, and to offer individuals the chance of reform and rehabilitation. Where a prisoner is dying, clearly the notions of restraint and reform can be discounted. That leaves retribution and deterrence.

The word retribution has pretty pejorative connotations in common parlance. It sounds primitive and vindictive. Yet it performs an important function even in a sophisticated community. Offences do not just harm individuals; they do some violence to the social fabric. Retribution is part of how a society restores the equilibrium which the offence disturbed. But in doing that it is important, as the philosopher Jeremy Bentham argued, that punishment must be proportionate.

The Lockerbie bomb was the worst terrorist atrocity ever committed in Britain. It is appropriate that the punishment for that reflects the abhorrence people felt at the outrage, and not just in the UK. It is interesting, therefore, that the most vehement reaction to the news that al-Megrahi might be freed has come not from the relatives of the Brits who died, but from the families of the American victims. Most of those who were blasted out of the sky at 31,000 feet were US citizens, which is perhaps why the blow to the American national psyche appears to have been greatest.

There is a political dimension, too, to the idea of deterrence in this case. "Freeing Megrahi," one relative said, "would send a message that terrorism is not being taken seriously." Demonstrating compassion would entrench in the minds of al-Qa'ida and other violent jihadists the idea that the West is soft and decadent and lacks the stomach for mortal combat. Releasing Megrahi could be misconstrued as a kind of weakness.

But there is a danger in confusing mercy with weakness. Justice and mercy are not always in tension. Compassion does not indicate indulgence toward evil or tolerance of injury. Rather it can be a demonstration of the civilised confidence of a society which does not respond to violence with violence of its own. Showing compassion to those who refused to extend compassion to their victims does not necessarily undermine justice. It may sometimes strengthen it.

If it is key to the concept of retribution that it should be proportionate – that the punishment should fit the crime – then there is a powerful argument for suggesting that the compassionate release of a dying man is part of that sense of proportion. Prisons are not hospitals and lack the medical and social facilities routinely available to those who are dying. To withdraw those from a dying prisoner is not to exact the punishment decreed by a court but in some way to extend it. A core element in retribution is the idea that the criminal gets what he deserves. Very few people deserve to die in a cage.

So the argument for releasing Megrahi early obtains even if he is indubitably guilty. He should be allowed home to die. Proportion is important here too. Permission for early release was denied when his lawyers first applied in 2008 after doctors told judges that, with adequate palliative care, Megrahi could live for several years. Early release requests are normally only granted where a prisoner has fewer than three months to live, and that seems proportionate too. If Megrahi is that close to death he should be released.

All this is quite separate from the question of Megrahi's protested innocence, and yet that is not entirely irrelevant either. There are potent arguments both ways on his guilt or otherwise, and differing views are held among individuals who have paid far closer attention to the case than have most of those now offering ready opinions.

It may sound more plausible, as some US intelligence reports have suggested, that it was not Libya behind the bombing but Iran; the Lockerbie bomb happened just five months after a US warship, the USS Vincennes, shot down an Iranian civilian airliner killing all 290 on board, many of them pilgrims bound for Mecca – prompting the Ayatollah Khomeini to announce that the skies would "rain with blood" in revenge. But those who have most closely scrutinised the detail of the case have formed polarised opinions.

On the one hand, a panel of three Scottish judges considered the evidence against Megrahi for 78 days and unanimously found him guilty. On the other hand, many of the British relatives of those who died, who have studied the evidence in most detail, believe Megrahi to be innocent. Jim Swire, whose daughter Flora was killed in the attack, has described the Libyan's conviction as "one of the greatest miscarriages of justice in history".

It now looks as though we may never know the truth. Megrahi has dropped his appeal against conviction, possibly to expedite his return to Libya, possibly because he is now too ill to fight on. Justice delayed is justice denied, the old legal aphorism has it. Abdelbaset Ali al-Megrahi may – or perhaps may not – have been denied justice. But the relatives of the dead certainly have been - for they have now lost the only remaining vehicle which might have brought them, 21 years after the event, somewhere nearer finding out who really killed their loved ones.