MacAskill’s Two-Track Railroad: part 2/10
5 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.
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One year ago today, Wednesday 5 August 2009, a much-speculated meeting occurred between "bomber" al-Megrahi and Scotland's Justice Secretary Kenny MacAskill. Held in Megrahi's cell at Greenock prison, it's been often described as a "secret meeting" - unprecedented, off-the-record and highly suspect. It was preceded, by mere days, with the prisoner's application for release on compassion grounds and the nearly-instant 3-month prognosis that made it more doable. And the meeting was followed a week later by the Megrahi filing to surrender his appeal, and another week on by his return home to Libya, on compassionate grounds.
It's been wondered if MacAskill used the unusual visit to set out the deal to the prisoner - drop the appeal or die in jail. It is a bit heavy and crude, but I more than half-believed just about that until shortly after hearing Magnus Linklater, publishing magnate, speak about it. He said on a radio show recently that he'd read the transcript of this meeting it said something like "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." 
I soon learned why Mr. Linklater was wrong, and that the transcript is not secret but freely available. The meeting was to solicit Megrahi's "representation," as part of the ongoing PTA process Mr. MacAskill had been unable to stop. The minutes are on pages 14 and 15 of a PDF of collected representations from all interested parties.  So the meeting dealt with transfer, not release, and that distinction changes the meaning of Linklater's recollection.
To start with, the date on the minutes is wrong – Wednesday Aug 6 2009 does not exist. It was either Wednesday the 5th, as scheduled , or else changed to Thursday the 6th and written wrong. Besides Megrahi and MacAskill, present at the meeting were two players from the Scottish Justice side and Mr. Megrahi's lawyer, Tony Kelly.
Regarding the PTA application, “Mr.MacAskill stressed that he could not give any indication as to his likely decision.” Mr. MacAskill explained that he was looking at compassionate release as well, and "was considering this application in parallel and he would aim to make both decisions at the same time." And the secretary stressed that “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.” 
Megrahi knew what this last meant, despite the indirect reference. Procedings means his appeal of conviction, granted by the SCCRC over two years prior. He complained about the "unduly" stalled process, which was slated to resume about as he was just slated to die - early November. But he followed this by affirming that he qualified for the PTA, suggesting he was open to dropping the fight.
There was also another appeal that was definitely not "a decision for Mr. Al-Megrahi and his legal team alone.” The Crown's standing appeal of sentence, demanding a longer term than the 27 years established, would also have to be withdrawn for the transfer to happen. If Megrahi dropped his own appeal, he faced a risk the Crown's would remain and bar his release anyway - guilty with no appeal and locked up for even longer, all while dying innocent and far from home.
Besides offering no tip as to whether he would grant a transfer, MacAskill was also unclear if he would choose compassion. It could have one or the other or perhaps neither. This unnecessary confusion may have led Megrahi to drop his appeal in preparation, when MacAskill already knew the reason the PTA could not be implemented.
When announcing the release just two weeks later, the Justice Secretary explained why he felt he must reject Libya/UK transfer option. "the American families and Government either had an expectation, or were led to believe, that there would be no prisoner transfer and the sentence would be served in Scotland."  This had been established for him at a meeting with American relatives on 9 July (see  pp 10-13), a month before this meeting where he misled Megrahi into believing it was a viable option and perhaps his ticket home.
But for his part, the prisoner's 3-page handwritten note (pages 16-18 in the PDF) insisted he was wrongly convicted, was hated by the victims but didn't hate them back, was dying, felt "desolation," wanted to see his family, and was ready to go under PTA or compassion. Mr. Megrahi's thinking is important to understanding what came next. The most important decisions weren't his, but he and his team were left with one ball in their court - would they keep the appeal open and block one possible way home, or surrender the fight to overturn that unjust verdict?
Having said and heard what he needed to, Mr. MacAskill thanked the prisoner for his own thoughts, and they parted ways again to consider what move to make next.