13/14 August 2009

MacAskill’s Two-Track Railroad: Part 8/10
14 August 2010

Note: The posts in this series are not conclusive, but rather what I was able to learn before the anniversary arrived, sporadically updated later. Any suggestions from knowledgeable readers to improve the content will be gladly appreciated.

<< Previous: 12/13 August
Next: 18 August >>

The previous post left off on 13 August with responses the day after Megrahi filed to drop his appeal. The same day, a BBC article suddenly expressed as fact that the convict was going to be released. The core information, included in the sidebar, was this short dispatch from Glenn Campbell, BBC Scotland political correspondent
I understand preparations for Mr Megrahi's release are being made in time for him to be home with his family in Libya by Ramadan, which starts next Friday. The Parole Board for Scotland has been asked to give its opinion on compassionate release. The Libyan authorities - who have held high level talks with the Scottish justice secretary in recent days - have also been advised to make plans to fly Mr Megrahi back to Tripoli. The Scottish Government is right to say "no decision has been taken" - but that should change in the next few days and the likelihood is Mr Megrahi will return to Libya by next weekend.

Elsewhere in the article it was said these talks were "over Megrahi's appeal against his conviction." This could mean the meeting of the day before where the Libyans were reportedly told Megrahi would have to surrender it before being released. (see 12 August) Any direct connection between the appeal and the imminent decision remained unstated in the article. But comparing two sections, the language reflects the kind of confusion Megrahi may have been experiencing at the very moment:

The Libyan man convicted of the Lockerbie bombing is likely to be freed on compassionate grounds next week, the BBC understands. [...] A prisoner transfer cannot take place if criminal proceedings are active, meaning Megrahi would have to drop his latest appeal against his conviction in order to be sent home.

And the whole article's premise was that someone with inside info he couldn't explain was sure that Megrahi would be sent home on compassion grounds - just as the appeal was surrendered.

One year ago today, on the afternoon of 14 August 2009, Kenny MacAskill received his “final advice from my officials” on the legal options for release/transfer. This came as two documents, one on prisoner transfer advice and one on Compassionate Release (CR), both penned by W. George Burgess of the Criminal Law and Licensing Division.

Both documents set out “mechanical criteria” and a longer section on legal, structural, and public relations considerations. All discussions with U.S. government counterparts and some points from the UK foreign Office are redacted. Both say for “timing: Urgent. This advice should be considered alongside advice on the Libyan Government’s application under the PTA.” The PTA advice document added between the sentences "the 90 day guideline in the Prisoner Transfer Agreement finished on 3 August 2009." The was reportedly extended (see 3 August) and if so, proved no barrier.

The CR document explains requests are usually passed through a ”prison governor” who considers all facts and then applies for the prisoner. But in this case Megrahi was allowed to lobby straight to the top, with Prison Services only consulted after. All were in agreement, however - the Governor, Medical Officer, and Prison Social Work Unit. All in all, Burgess found no reason to deny the request or even to keep Megrahi on Great Britain. Paragrahph 17 reasons he would not be allowed to travel freely outside the country, but Libya, instead of the UK, could be the country he'd have to stay in.

All the mechanical criteria for PTA had been met "bar the criterion of 'finality of judgment.'" Both appeals were in force, but "we understand that Mr Al-Megrahi has lodged a notice of abandonment." And yet, an incomplete sentence explains "the fact that this criterion on finality of judgment, in itself, is reason to refuse the transfer." The heinousness of the crime he was accepted as guilty of - extremely heinous - was itself reasoned to be no obstacle to a transfer. But his appeal surrender not being finished yet, and/or the Crown's appeal for longer sentence (due to heinousness), were sufficient. Bizarre.

Shockingly, Burgess also said the Crown's outstanding appeal for longer sentence was enough to bolock the PTA despite Megrahi's own surrendered appeal. Precisely the sharpest danger that faced the prisoner in the surrender process was recognized and suggested in this strategy paper.

The PTA advice section "public confidence in the justice system" is highly interesting. Its two points (paragraphs 15 and 16) address a “perception that the appeal and the PTA application are linked,” and pursuing the PTA “could be seen as influencing Mr. Al-Megrahi’s decision on whether to continue his appeal.” Burgess was happy with macAskill’s solution so far; “to avoid this, you have been at pains throughout the process to avoid discussion or consideration of the appeal,” while proceeding on a course that seems to have silently destroyed it. “Finality of judgment” is all that was ever mentioned, a phrase meaning all proceedings - including appeals – must be closed.

MacAskill's ongoing refusal or inability to decide against the transfer - when he would have to rule against it eventually - might constitute actual influence on Megrahi's decision-making, if managing to avoid the perception of it. Even after 12-14 August, Mr. MacAskill continued to put off the inevitable decision, as if he were waiting for some final piece to fall into place.

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