The Scottish Parliament - Justice Committee Report

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Bill Aitken (Convener)
Robert Brown
Bill Butler (Deputy Convener)
Angela Constance
Cathie Craigie
Nigel Don
James Kelly
Stewart Maxwell

1. On 21 December 1988, Pan Am flight 103 from London to New York exploded over the town of Lockerbie, killing all 259 passengers and crew on board, the majority of them US citizens, together with 11 people on the ground. It soon became clear that the cause of the disaster was the explosion of a bomb smuggled into luggage on board the aircraft. It was and remains the single worst terrorist atrocity committed in the UK and led to an extensive investigation undertaken by Scottish police and US and other international authorities.

2. In 1991, Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah, two Libyan nationals, were indicted for murder, but it was not until 1999 that Libya agreed to hand them over for trial, under Scots law, at Camp Zeist in the Netherlands. The trial began in May 2000, and the verdict was announced on 31 January 2001. The three judges unanimously acquitted Mr Fhimah but convicted Mr al-Megrahi of the murder of all 270 victims of the Lockerbie bombing.¹ He was sentenced to life imprisonment with a recommendation that he would serve a minimum of 20 years (backdated to 1999) before being eligible for release on licence.

3. The trial arrangements followed lengthy negotiations between the governments of the United Kingdom, the United States and Libya. The Committee understands that the basis of the arrangements reached was that the accused persons would be tried under Scots law before Scottish judges (albeit sitting as a specially convened court at Camp Zeist) and that, if convicted, their sentences would be served in Scotland. According to the UK Government, it gave no assurances to the US Government at the time relating to matters such as prisoner transfer or compassionate release, but the US Government and the US relatives understood that the full sentence would be served in Scotland. Both the US Government and the UK Government, in accordance with normal diplomatic practice, declined to provide copies of the diplomatic exchanges on these matters. Accordingly the Committee has before it no specific documentation on the matter to confirm the position one way or the other.

4. Mr al-Megrahi lodged an appeal against conviction, which was heard from 23 January to 14 February 2002. The five judges involved unanimously rejected the appeal on 14 March 2002.²

5. On 23 September 2003, Mr al-Megrahi applied to the Scottish Criminal Cases Review Commission (SCCRC) for a review of his conviction.

6. Following a change in the law in relation to life sentences, Mr al-Megrahi’s sentence was reviewed in November 2003 and a “punishment part” of 27 years (backdated to 1999) was applied. In December 2003, the Lord Advocate appealed against this sentence as being unduly lenient; in May 2004, Mr al-Megrahi appealed against it as being excessive.

7. After an investigation lasting nearly four years and costing over £1 million, the SCCRC announced on 28 June 2007 that it was referring Mr al-Megrahi’s conviction back to the High Court on the grounds that a miscarriage of justice may have occurred.³ Mr al-Megrahi subsequently lodged with the Court further grounds of appeal in addition to those identified by the SCCRC. Both Mr al-Megrahi’s and the Crown’s appeals against sentence were put on hold pending the outcome of this second appeal against conviction.

8. In October 2008, while preliminary proceedings in relation to his second appeal were taking place, it was announced that Mr al-Megrahi was suffering from advanced prostate cancer.

9. In November 2008, the UK and Libya concluded by treaty a prisoner transfer agreement (PTA).⁴ This provides for the transfer of a prisoner convicted by one of the parties to the PTA (the transferring state) to serve the remainder of his or her sentence in the other (the receiving state), subject to the following conditions (Article 3)—

10. The PTA with Libya was the first the UK had negotiated which did not make the prisoner’s consent a condition of transfer. The treaty was scrutinised by the Joint Committee on Human Rights in Westminster, which questioned whether there were sufficient safeguards for the human rights of prisoners subject to transfer. In a letter to the Committee, the Secretary of State for Justice (Jack Straw MP) said that, as part of the process for ensuring that the UK Government complied with its human rights obligations, “a prisoner would be advised of the Government's intention to transfer and would be invited to make written representations”.⁵

11. During the process of negotiating the PTA, the Scottish Government made representations to the UK Government proposing a specific exclusion for anyone involved in the Lockerbie bombing. Although the UK Government initially agreed to press for such an exclusion, the Libyans did not accept it, and it was not included in the final treaty. Mr al-Megrahi was at the time the only Libyan prisoner in a Scottish prison.

12. On 5 May 2009, the Libyan Government applied for Mr al-Megrahi’s transfer under the PTA. Under the Repatriation of Prisoners Act 1984, it is for the Scottish Ministers to decide upon any application for prisoners in Scottish prisons. Under Article 5 of the PTA, a decision on an application is to be made “normally within 90 days” of receipt.

13. On 24 July 2009, Mr al-Megrahi applied to the Scottish Ministers for compassionate release under section 3 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Under that section, the Scottish Ministers “may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence”, so long as they first consult the Parole Board for Scotland (unless it is impracticable to do so).

14. Although the 1993 Act gives no further guidance on the criteria to be taken into account in deciding on an application for compassionate release, the Scottish Prison Service (SPS) issued guidance for governors and managers in June 2005 setting out general principles and detailed criteria to be applied in relation to any application.⁶ The general principles are:

15. Where the application is on medical grounds, the guidance states that compassionate release “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 3 months may be considered an appropriate period” (paragraph 4.1).

16. In addition, various general criteria are listed that “always require to be considered”, namely:

17. Libya’s application under the PTA was considered by the Cabinet Secretary for Justice, Kenny MacAskill MSP. As part of that consideration, Mr MacAskill received advice from officials dated 27 May 2009 on a process for handling the hearing of representations on the PTA application. In consequence, Mr MacAskill heard representations (in person, by videoconference or by telephone) from representatives of the Libyan and US Governments, and from UK and US relatives of victims. Mr al-Megrahi was also offered the opportunity to make representations, and this led to a meeting between him and Mr MacAskill in HMP Greenock. This took place on 6 August 2009, shortly after Mr al-Megrahi had submitted his application for compassionate release which was by then also under consideration by the Cabinet Secretary.

18. At the meeting, Mr al-Megrahi was expressly invited to make representations on both the PTA application and the application for compassionate release. By contrast, the Cabinet Secretary had explained at most earlier meetings (with the UK families, the Libyan government and an unnamed relative), that he could only consider representations relating to the PTA (the only matter under active consideration at the time of those meetings).

19. Mr MacAskill’s consideration was informed by written advice from officials. The note of advice on the compassionate release application, dated 14 August, paraphrased the criteria for release on health and incapacity grounds from the SPS guidance, but did not make reference to the other mandatory criteria set out in an annex to the guidance (as mentioned in paragraph 15).⁷

20. On 12 August 2009, Mr al-Megrahi applied to the High Court to have both of his appeals – against conviction and sentence – dropped, and this was accepted by the Court on 18 August.

21. Mr MacAskill announced his decision on both applications on 20 August 2009.⁸

22. In his announcement, Mr MacAskill made it clear that he had proceeded on the basis that the case against Mr al-Megrahi had been properly investigated, that he had been lawfully convicted and a life sentence imposed. He paid tribute to the work of the Scottish police, the prosecution service and the judges involved.

23. The Cabinet Secretary rejected the prisoner transfer application on the grounds that it was clear from the representations made to him by the US Government and US relatives that they “either had an expectation, or were led to believe, that there would be no prisoner transfer and the sentence would be served in Scotland”, based on undertakings they said were given at the time Mr al-Megrahi’s trial at Camp Zeist was being negotiated. Mr MacAskill said he had been advised by the UK Government that it saw no legal obstacle to transfer, and that it had given no assurances to the US Government at the time, but that it had declined to provide any evidence to substantiate this position – something he said he regretted.

24. Mr MacAskill then gave his reasons for agreeing to release Mr al-Megrahi on compassionate grounds. He said that he had followed all the relevant procedures, and had based his decision on the opinions and recommendations of the prison governor, doctors and social work staff, the Parole Board and Scottish Government officials. He said that the clear medical evidence was that Mr al-Megrahi’s cancer was terminal, and that a three-month prognosis was “now a reasonable estimate”. He had ruled out the option of release to a location in Scotland, based on police advice that “the security implications of such a move would be severe”. Acknowledging the scale of the crime of which Mr al-Megrahi had been convicted and the ongoing grief of the families, Mr MacAskill said that the lack of compassion shown by Mr al-Megrahi to his victims was not a reason for not showing him compassion now: “In Scotland, we are a people who pride ourselves on our humanity. … Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served, but mercy be shown.”

25. Later the same day, Mr al-Megrahi was taken from HMP Greenock to Glasgow airport and was flown back to Libya. The reporting of his arrival in Tripoli showed scenes of crowds celebrating and waving Scottish flags.

27. Having announced his decision at a press conference while the Parliament was still in recess, Mr MacAskill then repeated it as a statement to the Parliament on 24 August.⁹ During questions on the statement, he promised to publish as soon as possible all the documentation relevant to his decision, subject to obtaining relevant permissions from others involved. Accordingly, a substantial volume of material was published on the Scottish Government website on 1 September.¹⁰ Further material was published on the same day by the UK Government on the websites of the Ministry of Justice and the Foreign and Commonwealth Office.¹¹

28. On 2 September, the Parliament debated a motion by Mr MacAskill inviting the Parliament to note his decision and endorse it as “consistent with the principles of Scottish justice”.¹² An amendment to the motion was moved by Richard Baker, together with amendments to that amendment by Bill Aitken and Robert Brown, all of which were agreed to. The resulting resolution of the Parliament (agreed to by 73 votes to 50 with one abstention) was as follows—

29. On 8 September 2009, Iain Gray (leader of the Labour group in the Scottish Parliament) wrote to the Convener inviting the Justice Committee to undertake an inquiry into the handling of Mr al-Megrahi’s release. Mr Gray referred to the concerns raised in the debate the previous week, including the medical evidence, the visit to Mr al-Megrahi in prison and the impact of discussions between the Scottish and Qatari governments, and suggested that a committee inquiry would allow the Parliament “to interrogate in detail the information released by the Scottish Government just hours before the debate”.¹⁴

30. The Committee considered Mr Gray’s letter in the context of a review of its work programme on 22 September. The Committee agreed, by division¹⁵, to undertake a short inquiry into the way in which the compassionate release application, and the application for prisoner transfer, were handled, rather than the merits of the final decision to release on compassionate grounds.

31. A remit for the inquiry was agreed at the Committee’s meeting on 29 September. As well as confirming that the inquiry would cover both applications but not the merits of the decision itself, this made clear that the inquiry would not consider the circumstances surrounding the destruction of Pan Am flight 103; the trial and conviction of Mr al-Megrahi, his subsequent appeals and the SCCRC review; or the circumstances surrounding the negotiation of the PTA. The inquiry process would consist of assessing the available documentation, taking evidence from Mr MacAskill and relevant officials and then deciding whether to continue the inquiry and whether to report to the Parliament.¹⁶

32. At its meeting on 3 November, the Committee reviewed the documentation published by the Scottish Government in order to decide whether any additional information was needed prior to taking oral evidence from the Cabinet Secretary. The Committee agreed that the Convener should write to the US and UK Governments to request any documentation or information that would establish whether an assurance was given, at the time it was agreed that Mr al-Megrahi would be tried at Camp Zeist, that he would, if convicted, serve the duration of his sentence in Scotland. Replies to the Convener’s letter were subsequently received from Richard LeBaron, Deputy Chief of Mission at the US Embassy in London, and from Ivan Lewis MP, Minister of State (Middle East and North Africa) at the Foreign and Commonwealth Office.¹⁷ These replies confirmed the UK position that there was no legal barrier to transfer, and the US position that, while its opposition to the transfer of Mr al-Megrahi to Libya was a matter of public record, it did not release the contents of its diplomatic exchanges.

33. On 1 December, the Committee took oral evidence for just over two-and-a-half hours from Mr MacAskill, Robert Gordon (Director General for Justice and Communities) and George Burgess (Head of Criminal Law and Licensing Division). The evidence involved the following main areas of questioning:

34. At the following meeting, on 8 December, the Committee agreed to conclude its inquiry without taking any further evidence, and to report to the Parliament.

35. There are a number of key issues arising from the inquiry on which the opinions of Committee members differ.

36. The PTA makes it a condition of transfer that there are no legal proceedings outstanding. At the time the PTA application was made, appeals were outstanding by both the Crown and the defence, and the Crown appeal against leniency of sentence remained outstanding at the time Mr MacAskill’s decision was announced. Five members of the Committee¹⁸ believe that the Libyan application was invalid from the start and should either have not been entertained or, at least, should have been dismissed on this ground alone. These members are surprised that the Cabinet Secretary did not refer to this matter in his announcement. They regret, in addition, that the Cabinet Secretary saw fit to criticise the UK Government despite having received a clear statement from it and despite it being in accordance with normal diplomatic practice that copies of the diplomatic exchanges between the UK and US Governments were not available to him. They believe that the only reasonable conclusion, in the absence of public documents on the issue, is that no agreement had been entered into which would restrict his decision on the PTA (or, indeed, on compassionate release).

37. According to the other three members of the Committee¹⁹, these points were fully addressed by the Cabinet Secretary in his evidence (cols 2376-81). Firstly, they argue, while the existence of an outstanding appeal was a reason why the Cabinet Secretary could not grant the Libyan application, it was not a reason why he could not consider it – and indeed he was obliged to consider it, as it had been properly made. In relation to the outstanding appeals, these members also point out that the appeals could have been withdrawn at any time and therefore it would have been unreasonable not to consider the application in these circumstances. These members also consider that, having then identified other factors that were sufficient by themselves to justify refusing the application, it was entirely proper of Mr MacAskill to set those out in his announcement as the basis for his decision. Given the absence of documents relating to the diplomatic exchanges between the US and UK governments, these members believe it is simply not possible to draw any conclusions about the presence or absence of any agreements between the two governments on this matter.

38. In a letter of 25 October 2008, the First Minister told the Libyan Chargé d’Affaires: “Given the decision making role played by Ministers under our systems of compassionate release and prisoner transfer, it would not be appropriate for Scottish Ministers to meet directly to discuss the details of any particular case”. Nevertheless, four members of the Committee²⁰ note that, as part of his series of meetings, the Cabinet Secretary met directly with Libyan Government officials on 6 July 2009.

39. Three members of the Committee²¹, however, point out that this issue was not raised in oral evidence with the Cabinet Secretary and believe therefore that it would be unreasonable to infer that his actions were inconsistent with the earlier position of the First Minister.

40. Five members of the Committee²² believe it was inappropriate for the Cabinet Secretary to visit Mr al-Megrahi in prison. These members are clear that Mr MacAskill was under no obligation in terms of the PTA process to offer a prisoner a face-to-face meeting, citing both the Cabinet Secretary’s own evidence on 1 December and Jack Straw’s evidence to the Joint Committee on Human Rights (that the obligation was only to offer an opportunity to make written representations). They are unconvinced by Mr MacAskill’s own explanation that he felt obliged to meet Mr al-Megrahi for consistency with the meetings (face-to-face or by videoconference) that he had already held with US Government representatives and relatives, given that these latter meetings were also his choice and not a requirement of the process. They argue that this approach has created an inappropriate precedent, which may be relied upon by other prisoners in the future. They also point to a lack of balance between the meetings with relatives, at which they were told that their views were being considered only in relation to the PTA application, and the meeting with Mr al-Megrahi, which also encompassed the compassionate release application.

41. The other three members of the Committee²³ point out that, since the meeting was set up in the context of the Libyan Government’s PTA application, it was necessary for Mr al-Megrahi to be given an opportunity to make representations. These members fully accept that, as the Cabinet Secretary himself made clear (cols 2381-90), he was not formally obliged to meet Mr al-Megrahi in person but felt it proper to do so given that he had – entirely appropriately, in their view, given the sensitivity of the case – already chosen to hold meetings with others who (unlike Mr al-Megrahi) had no right to make representations even in writing. They endorse the point made by the Cabinet Secretary in evidence (col 2385) that a refusal to give the prisoner an equivalent opportunity to make oral representations might have been subject to judicial review. These members reject the idea that this has set a precedent for future applications, given the unique circumstances of the case; and they point to the Cabinet Secretary’s evidence, in which he says that he has already considered a subsequent application in the normal way, without meeting the prisoner (col 2391). On the question of why the relatives were only given an opportunity to make representations about prisoner transfer, these members point out that this is simply a matter of timescale – the meetings with relatives took place before the compassionate release application was lodged, in early July, whereas the meeting in HMP Greenock took place afterwards, in early August.

42. At the meeting with Mr al-Megrahi, it was explained that the PTA application could not be agreed to so long as Mr al-Megrahi’s appeal remained active. According to one member²⁴, this allowed the impression to be created that Mr al-Megrahi was being encouraged to abandon the appeal or that some sort of deal was being offered. In this member’s view, this matter has to be seen in the light of the conditional nature of the original application made by Libya, which expressly recorded Mr al-Megrahi’s willingness to abandon his appeal if the PTA application was granted (through a signed undertaking that he would abandon his appeal “if the Libyan state and the pertinent authorities in Britain and the Scottish Government reached an agreement on my transfer to my home country”). The whole procedure, this member believes, created the unfortunate impression of at least implied negotiation over the matter. On such a sensitive case in particular, he believes that it is vital that justice be both done and be clearly seen to be done. Given that Mr al-Megrahi did not need to abandon his appeal in order to be eligible for compassionate release, and given that the PTA application was refused on other grounds, this member regards the abandonment of the appeal as regrettable, saying that it has denied the relatives an opportunity to see the grounds of appeal identified by the SCCRC tested in court.

43. However, three members of the Committee²⁵ simply refer to the Cabinet Secretary’s categorical assurance that neither he nor his officials put any pressure on Mr al-Megrahi to abandon his appeal, and that it was made clear throughout that that was a decision for Mr al-Megrahi alone (cols 2424 and 2426). These three members also note that the Scottish Government has no control over what negotiations the UK Government has with foreign governments.

44. Three members of the Committee²⁶ believe that the Cabinet Secretary failed to give due consideration to the views of victims’ relatives in reaching a decision on compassionate release. They believe it is clear from the documentation, the Cabinet Secretary’s announcement and his evidence to the Committee that the relatives’ views were only taken into consideration as part of the PTA process.

45. In response, three other members of the Committee²⁷ point to Mr MacAskill’s clear statement in evidence that, although the views of relatives were expressed in the context of the PTA application, he also took them into account in his consideration of the compassionate release application (cols 2414-5, 2422).

46. Four members of the Committee²⁸ question the Scottish Government’s interpretation of the criteria for compassionate release listed in the SPS advice. In particular, they believe that the full list of criteria implies a balancing exercise in which the compassion engendered by a prisoner’s circumstances (such as terminal illness) needs to be weighed against the gravity of the crime and the length of the sentence, so as to reflect the interests of victims in particular. They consider that it was inappropriate for these latter factors not to be mentioned in the official advice to the Cabinet Secretary despite the SPS guidance saying that they must be taken into account in every case. They are also not convinced by the argument that, because there is no statutory maximum or minimum sentence that precludes eligibility for compassionate release, the Cabinet Secretary was unable to give greater weight to a conviction for the murder of 270 people than he would have done to a conviction for a far lesser offence, such as fraud.

47. However, three members of the Committee²⁹ say that the Cabinet Secretary dealt fully with these points in his evidence (cols 2406-2413). In particular, they say, he explained that the SPS criteria are aimed at managers and governors, and were already reflected in the advice that went to the Cabinet Secretary. The Cabinet Secretary, they point out, could hardly have been unaware of the crime of which Mr al-Megrahi had been convicted or the length of his sentence, but was bound by the terms of legislation which does not make eligibility for compassionate release in any way conditional on such factors.

48. Four members of the Committee³⁰ believe that the advice about prognosis on which the Cabinet Secretary relied was lacking in detail and that, although it may normally be sufficient to rely on the opinion of a single SPS doctor, he should have sought a second opinion in this instance, given the particular sensitivities involved.

49. According to three members of the Committee³¹, however, the Cabinet Secretary explained the position fully in his evidence (cols 2393-5). They argue it was quite appropriate of him to base his decision on the advice of the SPS director of health and social care, which was itself informed by reports from relevant specialists, and that this fully complied both with precedent and with the documented procedures for such cases.

50. Five members of the Committee³² argue that, if Mr al-Megrahi was to be granted compassionate release, much greater consideration should have been given to the possibility of release to an address in Scotland rather than Libya (where there is no realistic prospect of enforcing the conditions attached to the release licence). This view, it is argued, is supported by the supplementary evidence provided by the Scottish Government, following the oral evidence session, that Mr al-Megrahi made only two visits from prison to hospital prior to release.³³

51. But the other three members of the Committee³⁴ believe Mr MacAskill was right to reject the option of release to an address in Scotland (cols 2395-2406). They cite the advice from Strathclyde police about the significant number of officers who would have had to be diverted from other duties to secure Mr al-Megrahi’s home and escort him on visits to hospital. They also support Mr MacAskill’s view that the impact on local residents and other hospital patients from the ensuing “media circus” would have been unacceptable.

52. Related to the issue of the medical evidence was the timing of the Cabinet Secretary’s statement. Five members of the Committee³⁵ believe that, although the decision itself was properly one for the Cabinet Secretary, it would have been desirable if it had been announced by way of Ministerial statement to the Parliament rather than at an international news conference. These members believe that the Scottish Government should make statements on matters of such importance to the Parliament wherever possible.

53. Three members of the Committee³⁶, however, point out that the decisions on the PTA application and Mr al-Megrahi’s application for compassionate release were taken during the Parliament’s summer recess and it was the decision of the Presiding Officer to recall the Parliament for a Ministerial statement at the earliest opportunity after the Cabinet Secretary’s announcement. These members respect the Presiding Officer’s decision.

54. Three members of the Committee³⁷ are also critical of the Cabinet Secretary for seeking and obtaining only oral assurances that Mr al-Megrahi’s arrival in Tripoli would be low-key, and not also obtaining such assurances in writing. They point out that the available documentation does not make clear when oral assurances were sought and obtained or what they consisted of.

55. However, three other members of the Committee³⁸ argue that, as the Cabinet Secretary said in his evidence (col 2420), he did not have the authority to negotiate a legally-binding obligation from Libya, and there is no reason to suppose that a written assurance would have been any more binding in practice than an oral one.

56. Firstly, we recognise that this was an extremely difficult and challenging decision and put the Cabinet Secretary in an unenviable position. Whether we agree or disagree with the decision itself, we all accept that Mr MacAskill’s decision was taken in good faith, and acknowledge the personal and political pressures that he has had to contend with as a result.³⁹

57. Secondly, the Committee takes the view that the publication of the background documents by the Scottish Government has been extremely helpful and that, in consequence of this and of the Committee’s inquiry, both the Committee and the general public have a much clearer idea of the course of events leading up to the decision to release Mr al-Megrahi and the considerations relevant to it.⁴⁰

58. Despite the Cabinet Secretary’s statement and his oral evidence, the Committee remains unclear as to the criteria which the Cabinet Secretary considered and whether or not he had either known of, or taken account of, the

annex to the SPS advice (given its omission from the advice note from his officials), and whether he considered that he was obliged to weigh the seriousness of the crime and sentence, or other matters referred to in that annex, as part of his decision. The Committee is also concerned at whether the process used on this occasion could have implications for the procedure required in future cases, and indeed for the merits of future cases. The Committee recommends that the Scottish Government conduct a full examination of the implications of these matters.⁴¹

59. The Committee finds the uncertain status of the SPS guidance unsatisfactory. We recommend that the Scottish Government should review the content and status of the guidance and make it clear for future cases what authority such guidance has, and hence the extent to which the criteria it sets out are binding on those advising the Cabinet Secretary and on the Cabinet Secretary himself. We believe it should be clarified for the future whether, as a matter of good process, the full SPS guidance should routinely be attached to the advice note considered by the Cabinet Secretary.⁴²

60. Any decision on compassionate release necessarily involves consideration and balancing of conflicting views and opinions. The SPS guidance lays down the criteria to be used in the stages before the Cabinet Secretary's decision. The Committee notes the advice of Scottish Government officials in evidence, but remains concerned at the suggestion that the length of sentence outstanding is only relevant where the remaining time is short enough to make the process substantially redundant. The Committee agrees that the way in which the criteria are expressed should make much clearer whether (and to what extent) such a balancing exercise is, or is not, intended.

61. The Committee agrees that the medical evidence in this case was considered in the normal way but notes that, in accordance with good practice, the Scottish Prison Service medical officer took additional opinions and advice from relevant experts in the process of coming to his decision on the advice to provide to the Cabinet Secretary. Given the acute sensitivities of this case, the Committee believes that consideration might have been given to obtaining a second opinion.⁴³

62. The Committee believes that it was inappropriate for the Cabinet Secretary to visit Mr al-Megrahi in Greenock prison. To support this view, the Committee cites both the Cabinet Secretary’s own evidence on 1 December and Jack Straw’s evidence to the Joint Committee on Human Rights (that the obligation was only to offer an opportunity to make written representations). The Committee notes the argument advanced by the Cabinet Secretary as to why he felt obliged to offer Mr al-Megrahi an opportunity to make representations in person. However, the Committee takes the view that such an issue need never have arisen if the matter had been considered on the basis of written representations in the normal way.⁴⁴

63. The Committee believes that the Cabinet Secretary should have disallowed the PTA application on the basis that, at the time of his decision, it failed to meet the PTA criteria since the Crown’s appeal against sentence remained outstanding.⁴⁵

64. The Committee acknowledges that there were significant resource and security implications attached to any compassionate release to an address in Scotland. However, the Committee believes that, if Mr al-Megrahi was to be granted compassionate release, much greater consideration should have been given to the possibility of release to an address in Scotland rather than Libya.⁴⁶

65. The Committee welcomes the fact that the Cabinet Secretary took full account of all points of view in this case, and in particular the views of the victims’ families, when coming to his decision.⁴⁷

66. In summary, the Committee is extremely concerned about some aspects of the process leading up to the decision, particularly the decision to allow representations in person by Mr al-Megrahi in Greenock prison, the reasoning behind the refusal of the PTA application, the lack of clarity as to the basis on which compassionate release was granted and the fact that the announcement of the decision was not made to the Parliament.⁴⁸

67. The Committee has agreed to publish this report to the Parliament in order to bring the results of its inquiry to the attention of other members.

Work programme (in private): The Committee considered a proposal by Iain Gray MSP that it undertake an inquiry into the Scottish Government's handling of the release of Abdelbaset al-Megrahi. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie, Paul Martin), Against 3 (Angela Constance, Nigel Don, Stewart Maxwell), Abstentions 0. The Committee agreed that it should be a short inquiry into the way in which Mr al-Megrahi's application for compassionate release (and Libya's application for prisoner transfer) were handled, rather than the merits of the final decision to release on compassionate grounds, and to consider a remit for the inquiry, in private, at its next meeting. […]

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Committee considered a draft remit for its inquiry. Subject to minor changes, the remit was agreed to.

Inquiry into decision on Abdelbaset al-Megrahi: The Committee considered whether further documentation was required to aid its inquiry. In the context of considering the process that led to the Cabinet Secretary for Justice's decision not to agree to Libya's application for transfer under the UK-Libya prisoner transfer agreement, the Committee agreed to write to the United States and United Kingdom governments requesting any documentation or information that would establish whether an assurance was given, at the time it was agreed that Mr al-Megrahi would be tried under Scots law at Camp Zeist, that he would, if convicted, serve the duration of his sentence in Scotland.

Inquiry into decision on Abdelbaset al-Megrahi: The Committee took evidence from—

Declaration of interests: James Kelly declared an interest in relation to the inquiry into the decision on Abdelbaset al-Megrahi, namely that Tony Kelly, Mral-Megrahi's solicitor, is his brother.

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Committee agreed to conclude its inquiry and to report its conclusions to the Parliament. It agreed to consider a draft report in private at future meetings.

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Committee considered a draft report. Some changes were agreed to, and the Committee agreed to consider a revised draft at its meeting on 19 January.

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Committee considered a revised draft report. Various changes were agreed to, one by division. The Committee agreed to consider a further revised draft at its next meeting.

Robert Brown proposed to insert paragraph 19. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Committee considered a revised draft report. Various changes were considered and decided on, one by division. The Committee agreed to consider a further revised draft at its next meeting.

The proposal was disagreed to by division: For 4 (Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 4 (Bill Aitken, Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0; proposal disagreed to on casting vote.

Inquiry into decision on Abdelbaset al-Megrahi (in private): The Convener referred to recent press coverage about the contents of the Committee's draft report and reminded members of their confidentiality obligations under the Code of Conduct. Each member and the clerk (on behalf of the clerking team) denied any responsibility for making available information about the draft report to the media in breach of the Code. The Convener said that he would refer the matter to the Scottish Parliamentary Standards Commissioner for investigation. The Committee then considered a further revised draft report. Various changes were agreed to, 12 by division, and the report was agreed for publication.

In paragraph 56, James Kelly proposed in the second sentence to delete “all accept that Mr MacAskill’s decision was honestly and sincerely taken and”. The proposal was disagreed to by division: For 4 (Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 4 (Bill Aitken, Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0; proposal disagreed to on casting vote.

In paragraph 56, Robert Brown proposed in the second sentence to replace “honestly and sincerely taken” with “taken in good faith”. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

In paragraph 56, Stewart Maxwell proposed to add at the end “It is clear, in relation to the SPS guidance, that the Cabinet Secretary followed the same procedure as all previous Justice Ministers when deciding on compassionate release applications and furthermore that he was entirely aware of all the circumstances of this particular case.” The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

Robert Brown proposed to insert paragraph 57. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

Robert Brown proposed to insert paragraph 58. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

In paragraph 59, Robert Brown proposed in the third sentence to delete “While we have no reason to suggest that the approach taken in this instance was any different to that followed on previous occasions”. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

In paragraph 59, Stewart Maxwell proposed to replace the third sentence with “However we acknowledge that the approach taken in this instance was no different to that followed by previous Justice Ministers.” The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

The proposal was disagreed to by division: For 3 (Bill Butler, Cathie Craigie and James Kelly), Against 5 (Bill Aitken, Robert Brown, Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

Stewart Maxwell proposed to insert the first sentence of paragraph 61. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Angela Constance, Nigel Don and Stewart Maxwell), Against 3 (Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

Robert Brown proposed to insert the second sentence of paragraph61. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

James Kelly proposed to insert the first two sentences of paragraph 62. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

Robert Brown proposed to insert the final two sentences of paragraph62. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

James Kelly proposed to insert paragraph 63. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

James Kelly proposed to insert paragraph 64. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions0.

The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

The proposal was disagreed to by division: For 3 (Bill Butler, Cathie Craigie and James Kelly), Against 5 (Bill Aitken, Robert Brown, Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

Stewart Maxwell proposed to insert paragraph 65. The proposal was agreed to by division: For 4 (Bill Aitken, Angela Constance, Nigel Don and Stewart Maxwell), Against 4 (Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0; proposal agreed to on casting vote.

Robert Brown proposed to insert paragraph 66. The proposal was agreed to by division: For 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Against 3 (Angela Constance, Nigel Don and Stewart Maxwell), Abstentions 0.

The proposal was disagreed to by division: For 3 (Angela Constance, Nigel Don and Stewart Maxwell), Against 5 (Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly), Abstentions 0.

The Justice Committee has agreed to undertake a short inquiry into the Scottish Government’s handling of:

The inquiry will focus on the process followed by the Scottish Government in considering these applications and announcing the Cabinet Secretary’s decision. It will not consider the question of whether the Cabinet Secretary was right to conclude that compassionate release was justified in the circumstances.

The Committee intends to conduct the inquiry, in the first instance, by assessing the available documentation (which may include information that has not so far been published) and then taking evidence from the Cabinet Secretary for Justice, relevant officials and others who contributed to the advice on which his decision was based. At that point, which it expects to reach by the end of 2009, the Committee will consider whether it is satisfied, or whether to extend the inquiry further. It will also decide at that point whether to report its conclusions to the Parliament.

Given this approach, the Committee is not at this stage issuing a general call for evidence.

Scottish Government’s handling of the release of
Mr Abdelbaset al-Megrahi

I am writing to ask that the Justice Committee undertake an inquiry into the handling of the release of Mr Abdelbaset al-Megrahi on compassionate grounds.

Last week Parliament overwhelmingly agreed it was not satisfied that the Scottish Government had followed due process. This failure on the part of the Government let down the 270 victims of the Lockerbie bombing, the Scottish justice system and damaged Scotland’s international reputation.

Concerns were raised in the debate – and have continued to be raised subsequently – about a number of serious issues. These include medical evidence, the Justice Secretary’s unprecedented meeting with a convicted murderer in Greenock jail and the impact of discussions held between representatives of the Scottish and Qatari governments. Unfortunately, the Scottish Government failed to address these concerns in the course of the debate and the people of Scotland have been left with more questions than answers.

A Justice Committee inquiry would allow Parliament to interrogate in detail the information released by the Scottish Government just hours before the debate, and would now seem the best available route for the people of Scotland to get the answers they deserve.

I hope you agree this is something the Justice Committee should undertake and I look forward to hearing from you soon.

Your letter of November 5, 2009 requests any documentation or information the United States Government is able to provide that would establish for the Scottish Parliament Justice Committee’s inquiry whether an assurance was given that Abdel Basset al-Megrahi would, if convicted, serve the duration of his sentence in Scotland.

The United States Government does not release the details or contents of its diplomatic exchanges, which are understood to be communicated in confidence. In accordance with this understanding, the United States Government is not prepared to provide information related to its inter-governmental exchanges.

The committee may wish to make use of publicly available United Nations and other documents on the matter.

The United States Government’s long-standing position that Mr Megrahi should serve out his prison sentence in Scotland and the opposition of the United States to his transfer to Libya is a matter of public record, as Secretary Clinton made clear in public remarks in the day before Scottish Cabinet Secretary for Justice Kenny MacAskill made and announced the decision to grant Mr Megrahi compassionate release and permit his return to Libya. The US position was communicated in government-to-government communications on this issue and was further reiterated in the public statements of senior US Government officials following Cabinet Secretary MacAskill’s announcement.

Your letter of 5 November 2009 requested further documentation from the UK Government that may assist the Justice Committee’s inquiry into the decision by the Cabinet Secretary for Justice (Kenny MacAskill MSP) to release al-Megrahi on compassionate grounds and Mr MacAskill’s decision regarding the application by Libya for the transfer of al-Megrahi under the UK-Libya Prisoner Transfer Agreement.

I refer you to my reply to Mr MacAskill of 3 August in which I re-iterated the advice previously provided to the Scottish Executive by my officials on 3 July. Both documents have been released into the public domain. As my officials set out previously, “The FCO does not consider that either the joint UK-US letter, UN Security Council Resolution 1192 (1998) or the accompanying discussions between the UK Government and the United States Government regarding implementation of the trial initiative as set out in the joint letter, present an international law bar to such a transfer under the Prisoner Transfer Agreement where it is consistent with Scots law”. This remains the considered assessment of the UK Government shared with the Scottish Executive under the terms of the Concordat on International Relations.

As my officials made clear, the UK Government’s assessment remains that while the US pressed the UK to provide a definitive commitment on the future place of imprisonment of the Lockerbie accused, the UK Government of the day declined to do this on the grounds that it did not wish to bind the hands of future governments. The then UK Government could equally not rule out the possibility that our relations with Libya may one day change, as indeed they have, allowing the conclusion of a Prisoner Transfer Agreement

The UK Government made it clear throughout that any decision to transfer al-Megrahi under the Prisoner Transfer Agreement was a decision solely for the Scottish Executive and Scottish Ministers to take. The Foreign Secretary’s statement to Parliament on 12 October made clear that it would have been wrong for the UK Government to intervene in this decision making process.

During your session on Tuesday 1 December, where I answered questions on the decisions about Mr Al-Megrahi, Ms Cathie Craigie MSP requested further clarification as to the number of times Mr Al-Megrahi was taken to hospital whilst he was at HMP Greenock.

I can confirm that during the period of his prostate illness, he made two visits to Inverclyde Royal Hospital. Naturally, there were numerous visits from staff based at the hospital to the prison.

¹ The trial judgment is available at: http://www.scotcourts.gov.uk/library/lockerbie/index.asp

² The appeal judgment is available from the same link cited above.

³ The SCCRC press notice giving details of the referral is available at: http://www.sccrc.org.uk/ViewFile.aspx%3Fid%3D293&ei=UJMfS6ieGcjLjAeu2L2ZBQ&sa=X&oi=nshc&resnum=1&ct=result&cd=1 &ved=0CAkQzgQoAA&usg=AFQjCNHRQ0---mjb5tYCnWjxT8lgc7vntQ

⁴ Cm 7540, available here: http://www.official-documents.gov.uk/document/cm75/7540/7540.asp

⁵ Joint Committee on Human Rights, 13th Report of Session 2008-09, Prisoner Transfer Treaty with Libya, Letter to the Chairman dated 27 March 2009, available at: http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/71/7102.htm.

⁶ The SPS guidance (21A/05) is available at: http://www.sps.gov.uk/MultimediaGallery/7de51399-f515-4f75-810f-19e49a838cb5.pdf

⁷ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁸ The text of Mr MacAskill’s announcement is available at: http://www.scotland.gov.uk/News/This-Week/Speeches/Safer-and-stronger/lockerbiedecision

⁹ The Official Report of the statement and subsequent questions is available at: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-09/sor0824-02.htm#Col18991

¹⁰ The material in question (which has since been supplemented with additional documents) is available at: http://www.scotland.gov.uk/Topics/Justice/legal/lockerbie

¹¹ Available at: http://www.justice.gov.uk/news/announcement010909a.htm and http://www.fco.gov.uk/en/news/latest-news/?view=News&id=20789408 respectively.

¹² The Official Report of the debate is available at: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-09/sor0902-02.htm#Col19021

¹³ From Minutes of Proceedings of the Parliament, 2 September 2009, available at: http://www.scottish.parliament.uk/business/chamber/mop-09/mop09-09-02.htm

¹⁴ The letter is reproduced in Annexe C.

¹⁵ Those voting in favour were Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and Paul Martin; those voting against were Angela Constance, Nigel Don and Stewart Maxwell.

¹⁶ The remit is reproduced in Annexe B.

¹⁷ The correspondence is reproduced in Annexe C.

¹⁸ Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

¹⁹ Angela Constance, Nigel Don, Stewart Maxwell.

²⁰ Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

²¹ Angela Constance, Nigel Don, Stewart Maxwell.

²² Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

²³ Angela Constance, Nigel Don, Stewart Maxwell.

²⁴ Robert Brown.

²⁵ Angela Constance, Nigel Don, Stewart Maxwell.

²⁶Bill Butler, Cathie Craigie, James Kelly.

²⁷ Angela Constance, Nigel Don, Stewart Maxwell.

²⁸ Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

²⁹ Angela Constance, Nigel Don, Stewart Maxwell.

³⁰ Bill Aitken, Bill Butler, Cathie Craigie, James Kelly.

³¹ Angela Constance, Nigel Don, Stewart Maxwell.

³² Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

³³ This supplementary evidence is reproduced in Annexe C.

³⁴ Angela Constance, Nigel Don, Stewart Maxwell.

³⁵ Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie, James Kelly.

³⁶ Angela Constance, Nigel Don, Stewart Maxwell.

³⁷ Bill Butler, Cathie Craigie, James Kelly.

³⁸ Angela Constance, Nigel Don, Stewart Maxwell.

³⁹ An amendment to this paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴⁰ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴¹ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴² An amendment to this paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴³ This paragraph (other than the final sentence) was agreed to by division (For 5, Against 3, Abstentions 0); the final sentence was also agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴⁴The first two sentences of this paragraph were agreed to by division (For 5, Against 3, Abstentions 0); the final two sentences were also agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴⁵ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴⁶ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.

⁴⁷ This paragraph was agreed to by division (For 4, Against 4, Abstentions 0; agreed to on casting vote) – see Annexe A for full details.

⁴⁸ This paragraph was agreed to by division (For 5, Against 3, Abstentions 0) – see Annexe A for full details.