Agenda item 3, which is the main business of the day, is an evidence-taking session with the Cabinet Secretary for Justice and Scottish Government officials as part of our inquiry into the decision on Abdelbaset al-Megrahi. I welcome our witnesses: the Cabinet Secretary for Justice, Kenny MacAskill; Robert Gordon, director general justice and communities; and George Burgess, head of the criminal law and licensing division. Gentlemen, good morning to you.
I am happy to go straight to questions.
Let me open the questioning by asking about the general timescale for both the prisoner transfer application and the application for release on compassionate grounds.
The prisoner transfer application was received on 5 May 2009. Thereafter, we required to consider what evidence we would take and from whom, and we carried that out. We required to meet a variety of parties. Clearly, the 90-day timescale is not mandatory, although it is certainly desirable, and we indicated that we would try to meet it. The final decision was taken by me on 19 August and was announced on 20 August.
Was there a desire that both applications be dealt with more or less simultaneously?
Not initially, as the application for prisoner transfer came in on 5 May 2009 and the application for compassionate release did not come in until 24 July 2009, when we had already embarked on taking evidence from a variety of parties. Once the two applications had been made, there was some logic in dealing with some matters concurrently. That is why, for example, when I met Mr al-Megrahi, both applications were discussed even though the initial purpose of the meeting had been to do with the prisoner transfer application.
It seems—I think that you will agree with this—that different criteria applied in respect of each application.
That is accepted.
Therefore, I have no difficulty understanding the logic behind any wish to deal with the two applications simultaneously. The fact that different criteria applied to them is evidenced by the eventual decision, in which one application was refused and one was granted. Was Mr al-Megrahi influenced in any way to lodge another application on the basis that it was likely that the initial application for prisoner transfer would be rejected?
Not at all. The application for prisoner transfer was made by the Libyan Government, not by Mr al-Megrahi; the application for compassionate release was made by Mr al-Megrahi. The applications were not solicited in any shape or form by the Scottish Government. As I said, they were lodged by the individual and by his Government.
Are there any other questions on this issue?
Yes—first, I apologise for my voice.
It was always made clear to the Libyans that the abandonment of the appeal was a matter for them and them alone and that our decision would be made on the criteria before us. Our position is that the criteria specified that there had to be no proceedings outstanding—on that basis, an appeal would require to be abandoned. That said, the position of the Libyans and Mr Tony Kelly, the agent acting on behalf of Mr al-Megrahi, was that matters could be homologated—we could decide to release Mr al-Megrahi, which could then be homologated by their abandoning the appeal. That was not our interpretation of the law. We always made it quite clear that our interpretation of the law was that to deal with the prisoner transfer application there had to be no proceedings outstanding. Thereafter, it was a matter entirely for the Libyans whether they wished to abandon the appeal.
The question of the abandonment of the appeal seems to have underlain all the discussions and considerations from an early stage. I am struck by the fact of the later point at which all this happened and the choreography, if you like—in a way, it all seemed to fit into place at the end. I appreciate that you did not ultimately grant the prisoner transfer application, which perhaps gives an artificial look to the whole thing, but the appeal always underlay it. How were you able to deal with the prisoner transfer application without the abandonment of the appeal? That was the case until the very last minute, was it not?
We made it quite clear throughout the proceedings that our interpretation of the prisoner transfer agreement was that there could be no proceedings outstanding. That said, we made it quite clear that these were decisions that had to be made by the individual and his legal representatives. No pressure was or would be put on him, but our interpretation was different from that of Mr Kelly, the agent representing Mr al-Megrahi. We always made it quite clear that we were happy to consider the application. The application had been lodged. Thereafter, we required to see whether all criteria were met. One of the criteria that had to be met was the requirement that there be no matters outstanding.
But that is essentially my point—it was manifest from the beginning that at that stage the appeal was outstanding and the application could therefore not proceed. Why did you continue to consider it? Was it not made clear that unless and until the appeal was abandoned, the Scottish Government could not look at an application for prisoner transfer?
No. We could look at it. We were required to look at it. It had been properly and formally lodged. We could not grant it, however. We had to go through due process and we had to listen to the application. For that reason, we then carried out the appropriate procedure, which was to consider who had an interest on which they could make representations. Throughout the proceedings it was made quite clear that before we could come to a decision, if we were going to grant the prisoner transfer application, all the criteria that were laid down—including that of there being no matters outstanding in court—had to be met. Certainly, it was perfectly possible for us to consider the application, even though until such time as the appeal was dealt with—under our legal advice as opposed to that being given to Mr al-Megrahi—it could not have been granted.
The difficulty is that from the outsider's point of view, all of this looks a bit like negotiation. It would be much clearer, would it not, if you had made it very clear at the beginning—
I think what you are suggesting is that I should have refused the—
Let me finish the question, if you do not mind. It would be much clearer if you had made it clear at the beginning that the whole question of the prisoner transfer application could not be considered while an appeal remained outstanding. Would not that have been a clearer way to deal with it?
No. We believed that we could consider matters; we then made representations back to the Libyans. The decision about whether to continue with the appeal was entirely for Mr al-Megrahi to make. We felt that the application had been lawfully made and that, although not all the criteria had been met at that time, we were required to consider it. If you are suggesting that we should have refused the application on 5 May, I would argue that that view is certainly open to interpretation. If we had refused it then, we would probably have been subject to judicial review by the agents representing Mr al-Megrahi.
I will take you a bit further on that issue. With great respect, cabinet secretary, if the application was, in effect, not competently made because all the conditions were not met, how could you possibly be subject to challenge for indicating that it could not proceed while the appeal remained outstanding?
We had to consider whether all matters had been dealt with. As I said, Mr al-Megrahi's application was lodged, and we considered it and investigated matters. Our interpretation was that all elements had to be dealt with, and no legal matters could remain extant. That is—or was—disputed by Mr al-Megrahi, the Libyan Government and the agents representing him.
I will follow up on one or two points. You take the position quite firmly that absolutely no influence was brought to bear on Mr al-Megrahi or his legal advisers to drop the appeal.
Yes.
We have some contradictory evidence—it has not been examined by the committee, but, as you are aware, your party colleague Christine Grahame has said that it exists. Have you any comment to make in that regard? The two views cannot be reconciled.
I cannot speculate on that. We have also had comment from Mr Kelly—not Mr James Kelly MSP, who is here today, but his namesake, Mr Tony Kelly, who is the agent representing Mr al-Megrahi. Mr Kelly was quite clear that no pressure was put on Mr al-Megrahi by the Government, and the Libyan Government has made it clear that no pressure was brought to bear on it or on Mr al-Megrahi. We are quite clear that we acted according to due process.
My difficulty is that Ms Grahame has said in the press that she has seen e-mails to the effect that influence was brought to bear in respect of the dropping of the appeal. I take it that your position is that you have not seen any e-mails, and that you question their existence. As I see it, the two views cannot be reconciled, can they?
I have not seen any. I am here to give evidence, and cannot speculate.
I will press you again on the issue of the criteria for considering the application. It is clearly outlined in article 3(b) of the prisoner transfer agreement that the judgment must be final. When the application was lodged, Mr al-Megrahi's appeal was still live, and so was the Crown appeal.
The position with regard to both the Crown appeal and Mr al-Megrahi's appeal is the same, which is a point that was made by the agent for Mr al-Megrahi, Mr Tony Kelly, who is, I think, not unknown to you. It was made quite clear that those matters could be homologated: that is to say, a decision could be taken, and the appeals could thereafter be abandoned if desired. We refused the prisoner transfer application for a variety of reasons; you are quite correct to say that it could not have been granted because a matter—namely the Crown appeal—was still extant.
The question remains: why in your final statement is there no reference to the fact that the Crown appeal was still live?
Because I had decided to rule out the application after speaking to the relatives of the victims in the United States and, indeed, the US Attorney General Eric Holder, who seemed to me to be a very credible witness. Not only is he the serving Attorney General, but he was Deputy Attorney General when discussions about the transfer and the nature of the agreement with regard to the trial were going on. He made it clear to me—and this was to some extent corroborated and supported by the relatives of the American victims—that he had reason to believe that Mr al-Megrahi would serve his sentence in Scotland. That was why, although I granted consideration of the application, I accept that I could not have granted the transfer itself. However, I was satisfied that the American Government and the American families had been led to believe by the United Kingdom Government, if not given specific assurances, that the sentence would be served in Scotland.
Would it not have been competent and, indeed, comprehensive to include in your concluding statement the fact that the Crown appeal was still live?
I thought that the concluding statement was fairly comprehensive. As you might imagine, I have reread it for today's meeting; although I might slightly modify some of its terminology or whatever, it still makes clear two specific things: our refusal of the prisoner transfer application and our granting of the application for compassionate release.
With regard to the note of the 22 July meeting, which Robert Brown referred to—
It might be helpful if you gave the document reference number, Mr Kelly.
I was just about to do that; it is document 4c. You did not attend the meeting, cabinet secretary; it was a meeting with the Libyan Government that was attended by Mr Burgess and Dr Fraser. Paragraph 13 says:
As the cabinet secretary has made clear, in our conversations with the Libyan authorities we had discussed the criteria that would have to be met for the prisoner transfer agreement application to be granted, compassionate release issues and, on previous occasions, the application to the court for interim liberation. We had sought to draw a distinction between matters for the Scottish Government and matters for the courts. Mr Alobidi told us—on more than one occasion, I think—that he had a written undertaking from Mr al-Megrahi about abandoning the appeal, but we made it clear that that was a matter for Mr al-Megrahi, his legal advisers and the courts. It was not for the Scottish Government to receive that undertaking.
So is it fair to say that Mr Alobidi made the statement in the context of a discussion about the prisoner transfer agreement, the conditions regarding the application's competence and the fact that Mr al-Megrahi's on-going appeal would disallow it?
We had given an undertaking to the Libyan authorities that the Scottish Government would entertain an application under the prisoner transfer agreement, but we had discussed the fact that a number of factual criteria, including Mr al-Megrahi's Libyan citizenship, had to be met.
I will continue with the prisoner transfer application; with the convener's permission I will then move on to the cabinet secretary's meeting with Mr al-Megrahi.
Can you deal with them separately? It is probably tidier if you deal with the prisoner transfer application, then we will review the situation. You will get first cut when we move on.
I think that colleagues have dealt with any question that I would have had on the prisoner transfer application.
Right. Please proceed.
Cabinet secretary, it seems strange that you would decide to visit Mr al-Megrahi in prison. Indeed, from what I can see from the written material, it appears that the Government made that offer to Mr al-Megrahi. Can you give us any further comment?
We were obliged to make that offer. The Government did so because of the regulations in the prisoner transfer agreement that the United Kingdom Labour Government brought in. It specifically introduced the provision whereby an application could be made by the prisoner's Government rather than by the prisoner. It was clear that, in such circumstances, the prisoner had to be given the opportunity to make representations. For example, a prisoner might not wish to go, in which case it would be preposterous to transfer him or her.
I am sorry, but why were you obliged to act as you did? I have heard what you have said this morning, but can you point me to where it says in the legislation and the agreement that you, as cabinet secretary, were obliged to go and meet the prisoner?
When the matter was going through Parliament, Jack Straw made it clear that, because this was the first situation in which a Government made an application, the prisoner should be given the opportunity to make representations. That was made clear by Jack Straw as the matter went through the Westminster procedures south of the border—it did not go through the Scottish Parliament; to an extent it was foisted on the Scottish Parliament, if I may put it like that.
If I might, in order to assist. The undertaking to which the cabinet secretary referred was given by Jack Straw to the Joint Committee on Human Rights at Westminster when it was considering the prisoner transfer agreement, which was the first that did not require the prisoner's consent.
What number is that?
I am afraid that I do not know what number it is in the member's folder. The advice set out the process that we envisaged in dealing with this prisoner transfer application. As the committee is aware, we took evidence directly from many other interested parties, either face to face or by videolink, and at a higher level than we would have done in almost any other case. In those circumstances, it was considered absolutely appropriate for the cabinet secretary to give the same level of opportunity to the subject of the request.
There is no question but that evidence has been taken at a higher level than in any other case. However, as far as I am aware, nothing that Jack Straw said in support of the transfer agreement indicated that the Cabinet Secretary for Justice or Scottish ministers had to meet the subject of the request in person. Receiving representations can be quite different from meeting someone in person. The prisoner's consent can come in writing—a face-to-face meeting is not required. Do you regret the fact that a meeting took place?
Mr al-Megrahi was asked whether he wished to make representations. He made clear in writing that he desired to exercise the right to make representations; the items in question are available on the web and are doubtless with Ms Craigie, if she has not had the opportunity to consider them before embarking on her line of questioning. Once he had indicated his wishes, I felt that I was obliged to give him a hearing, as we would otherwise have faced the possibility of being judicially reviewed. First, the law made quite clear that he had the opportunity to make representations. Secondly, hanging over the Government was the possibility of being judicially reviewed if we did not act in a manner that accorded Mr al-Megrahi the same justice rights that have been accorded to others. Others have been given a hearing, so he was given the same opportunity. Had we not acted in that way, I have no doubt that Mr Tony Kelly, representing Mr al-Megrahi, would have taken some action.
Did Mr al-Megrahi request a meeting with you first, or was the meeting offered by your office?
He wrote asking to meet us.
He wrote—
We wrote to him offering him the right to make representations. He requested the right to do so and, as I recall, asked for a meeting. It was logical to hold such a meeting not with security guards in my office but at the prison, which would be more conducive to public safety.
Can you confirm that the Government's interpretation is just that—an interpretation—and that the agreement to meet Mr al-Megrahi had nothing to do with anything that Jack Straw had said? The transfer agreement provides for representations to be made by the prisoner; the decision to meet Mr al-Megrahi was based on the Government's interpretation of that agreement.
No, we were acting on what Jack Straw had stated to the Westminster committee.
Can you quote what he stated?
I do not know whether we have that with us but presumably it would be available in Hansard. Mr Straw certainly made it clear that as this was the first ever prisoner transfer agreement under which an application could be made by a Government as opposed to a prisoner, the prisoner had to be heard. It is a matter of interpretation. It is clear to us that the rights of representation meant that we had to ask Mr al-Megrahi how he wished to make his representations. It is part of how the Government has been set up that we are subject to judicial review. We have discussed in this committee on a variety of occasions the issue of not having protection, and we introduced the Somerville legislation to protect us from matters of which Mr Tony Kelly is well aware. We had to act in such a way that we would not be the subject of litigation.
Going back a little, I am with you on the issue of the logistics. Clearly, it was much preferable that Mr al-Megrahi be seen in Greenock prison than be brought to Edinburgh. I do not have any difficulty with that, nor do I have any difficulty with his right to make verbal representations as opposed to representations in writing. Where I am at odds with what you have said is that nowhere—in the terms of the legislation or in the prisoner transfer agreement—have I seen any mention that the Cabinet Secretary for Justice must see Mr al-Megrahi personally. This is a matter that could quite competently have been dealt with by, for example, Mr Burgess. He could have given you a report on his discussions with Mr al-Megrahi and, on that basis, you could have formulated a decision.
That is true. However, we had offered a courtesy to the relatives and to the Governments of Libya and the United States, and we would have left ourselves open to judicial review if we had not offered the same rights to the individual who was the applicant here. It is a matter for you, convener, but it may be that you are suggesting that Dr Burgess should have met or had videolinks with the relatives. That was not done. I met the relatives personally because I felt that the matter was of such significance and importance that that was how we should proceed.
Again, I am with you in part. It was entirely appropriate that you speak to various parties involved, especially given the sensitivity of the issue to the relatives of the deceased. However, I have difficulty in equating their rights and your actions with them with the fact that you went on to see the perpetrator of the deed that created all that grief. You seemed to be treating him equally to those who had been grievously wronged.
Mr al-Megrahi was treated in the same manner as everyone else. We have to do that in order to weigh on the scales of justice. He was given the opportunity to make representations, as were others. Those representations commenced with the US Attorney General, followed by the UK families of victims, the Libyan Government, the sister of the Spanish cabin crew member, the US families of victims, and families from the town of Lockerbie.
I recognise that there were sensitivities and that you went out of your way to accommodate them in so far as the relatives were concerned, but I do not believe that you have justified taking a parity of stance towards both the victims and the perpetrator of the crime.
It is perhaps worth remembering that, in fact, Mr al-Megrahi was the only person who had the right to make representations. As was dealt with in my advice of May, there was no requirement on the Government to take representations from anyone other than Mr al-Megrahi. As the cabinet secretary has explained, he decided to embark on a process that allowed representations from a range of interested parties and, in keeping with that, Mr al-Megrahi was given the opportunity to make representations on the same basis as the others. Had the cabinet secretary decided not to take representations from any other party, Mr al-Megrahi would have had more right than the families of victims to make representations.
I can understand, up to a point, the actions that were taken. I must be fair. I think that the cabinet secretary was entirely measured in his approach to the various diplomatic representations that were received and in taking the time and trouble to contact and interview the families of the Scottish and American victims. However, I do not believe that there should have been such parity between the biggest mass murderer that Scotland has ever seen and the families of his victims.
Nobody disputes the conviction and the opprobrium that rests with Mr al-Megrahi, but we live in a world in which legal procedures are subject to scrutiny, such as by this committee or by a challenge in court. Indeed, Mr al-Megrahi had a legal team and was represented in Greenock prison by Mr Tony Kelly, his solicitor, at his request. The scales of justice must be balanced, and it was important to ensure that we were not seen to prejudge. As a former justice of the peace, you will be aware that there would be something perverse if, having heard from the Crown, you then declined to hear from the defence, or if you said that, having led the Crown witnesses and heard oral evidence, you were prepared to accept only written submissions on behalf of the defence. That would be challenged in the High Court. Indeed, I do not think that you would have even considered doing that.
The situation that you referred to is not analogous. If I had done what you described, I would have been subject to appeal—and rightly so—but this case is somewhat different. In this case, al-Megrahi had been convicted and had an appeal refused by a Scottish court of criminal appeal. You were not dealing with an innocent man. Surely that would have been reflected—
We were dealing with an application—
Hear me out for a second. That would have been reflected in any application for a judicial review.
I think that you would be asking me to prejudge things. I had to consider two matters: first, the application for prisoner transfer that was made by the Government of Libya; and, secondly, the application for compassionate release. As you will be aware from the papers, compassionate release is considered not on the basis of the severity of the sentence or the nature of the offence but on the criteria that are specified in the Prisoners and Criminal Proceedings (Scotland) Act 1993. You would be asking me to prejudge the matter and come to a position that the man was of such evil intent that we could not possibly consider him.
If we took that to its logical conclusion, and we had a situation where Peter Tobin, Angus Sinclair or another such person developed terminal cancer and put in a similar application, would you go and see them?
I treat each and every application that comes before me on its merits. As you know, 33 applications for compassionate release have been made since devolution. Seven of those did not get to the justice secretary and the other 26 did. Each of those 26 applications was granted—first by Jim Wallace, secondly by Cathy Jamieson, and thirdly by me—once it got through the appropriate system.
We will come to that presently. In the meantime, I introduce Stewart Maxwell to the proceedings.
Thank you, convener. I want to clarify a point on which we have been going round the houses, about the rights of various parties to make representations to the cabinet secretary.
Yes. I assume that in many such cases—probably in most of them—that is what happens. However, as the convener said, this is no ordinary case. It seemed to me that, because of the sensitivities of the case—because of the trauma and loss to the families, who still grieve—we were obliged and necessitated to do what we did. Equally, because of the international significance, it would have been discourteous, to put it mildly, not to have listened to the views of the US Attorney General or indeed the Secretary of State.
I hear what you say, and I absolutely agree. I was trying to go to the logical conclusion of the argument and clarify the rules. In effect, you gave Mr al-Megrahi what was his entitlement, but you gave all the others—all the families of the victims—something that they were not entitled to. You went over and above what had previously been the position for the families of victims of released prisoners.
Yes. I felt that, in the circumstances, that was appropriate.
Thank you.
You felt that, in the circumstances, that was appropriate. That was a perfectly honest decision and I have no difficulty with your making it, but you were not required to make it.
I was not required to, but I have no regrets about meeting the families, taking the call from Eric Holder, the US Attorney General, or indeed taking the call from Hillary Clinton, the Secretary of State. To do otherwise would have been disrespectful and, with regard to the victims, hurtful.
Indeed, it would. However, I am still troubled by the inconsistency of approach. Although it may be consistent that you saw everyone, I do not think that the victims are in the same category as the perpetrator. We will have to agree to differ on that point and move on.
Cabinet secretary, you exceeded the requirements in meeting the families and in meeting Mr al-Megrahi in Greenock prison. Did you consider having a videoconference with Mr al-Megrahi, as you had with some of the relatives?
No. The reason for the videolink was that the relatives were in Washington and New York and it was easier to converse with them in that way. Scotland is a small country and, although we have videolinks in some prisons, frankly, it was simpler to meet Mr al-Megrahi in Greenock prison.
I refer you to the letter from the Libyan Government dated 5 May. Why did you not write back to the Libyan Government at that time, ruling that the application for prisoner transfer was incompetent because of the outstanding Crown appeal on the sentence? That would have saved all the visits, the videoconferences, the telephone calls and the other work that you had to do. It was an incompetent application.
It was not an incompetent application; it was a perfectly competent application, but it could not have been granted by me, once I had considered it, until such time as matters had been concluded. As Mr Tony Kelly, Mr al-Megrahi's agent, was keen to make clear—it was referred to in Greenock prison, but I do not have my notes from that meeting—those matters could have been, to use legal terminology, homologated. As I say, I was obliged to give the application proper consideration and, once I had come to a conclusion on it, if all the criteria had not been met, I was duty bound to refuse it. I did refuse but, as I said to Mr James Kelly, I did so because of the position of the US Government and the victims' relatives, who I felt had been entitled to believe that Mr al-Megrahi would serve his sentence in Scotland.
Let us be clear about this. Understandably, the Scottish Government and the justice department had a handling strategy for the particular issue, as a part of which you decided to meet, be interviewed by and communicate with the various relatives. Following that communication, you decided that it was necessary to meet Mr al-Megrahi. However, do you not accept that, when the thing began, you had an open book and could have dealt with it in accordance with all the precedents in such matters, by written representations from the prisoner, Mr al-Megrahi? You did not have to go through the whole business of meeting and communicating with everybody in sight about it.
I could have dealt with it in that way, by simply taking a written note from Mr al-Megrahi, but I do not think that it would have been appropriate for me thereafter to refuse to have a discussion with the US Attorney General. Given the nature of the case, that would have been inflammatory to say the least, not to mention hugely disrespectful to a country that is a friend and ally. Equally, I was conscious of the feelings of the witnesses. As Mr Maxwell said, we gave others significantly more than they would ever have had the right to receive in a strict interpretation of the requirements. Having done that, we had to recognise the right that Mr al-Megrahi had from the outset.
What possible ground could you have for refusing any future applicant, under either the prisoner transfer agreement or compassionate release, the right to meet the Cabinet Secretary for Justice of the day? Has a precedent not been set for other cases, and should you not have been clear about that at the time when you made the decision?
No, I do not believe that a precedent has been set. The case is exceptional and is accepted as being exceptional by almost everyone on the planet. We have not had such a case before in our nation's jurisdictional history, and everyone in Scotland hopes and prays that we never have another. In future, it will be possible for me or for any other cabinet secretary to deal with matters through the normal procedures. Mr Brown may be aware that there has been a recent case—I think that it was noted in the papers—of someone being granted compassionate release by me. That was done without any hearing; it was signed off on the basis of the evidence that I received. The person concerned did not seek any meeting with me and neither did anybody else.
My final question is about the ultimate decision. Notwithstanding a clear statement from the UK Government that it was not bound by any international agreements or anything of that sort, you went out of your way to disagree with the UK Government and to accept representations made by the US Government, which has also hidden behind diplomatic privilege in not revealing its correspondence on the subject, and you chose not to make your decision, as you were well entitled to do, on the basis that the outstanding Crown appeal prevented the application from being granted. Why did you go out of your way to make such a big issue of the dispute between the UK and US Governments, which many people might see as irrelevant to the decision that you were required to make on quasi-judicial grounds?
I did not do that. If you read the transcripts of my meetings with the relatives, you will see that what concerned them was what concerned the US Attorney General and the US relatives—that they had been led to believe that Mr al-Megrahi would serve his sentence in the UK. They did not say to me, "You must refuse his application on the basis of an outstanding Crown appeal." They said that they felt there had been clear assurances at the time of the agreement for the trial at Camp Zeist that the sentence would be served in the jurisdiction of Scotland. That was the basis on which they made representations to me.
If I may interrupt, there was a very clear statement from the UK Government as to what it understood the position to be. I fail to understand why on earth you want to put that Government in the position of making representations. You knew what the position was and there was no need to take the matter further.
That is not the case. I asked the UK Government to make representations. I mentioned earlier Eric Holder, the US Attorney General, who was Janet Reno's deputy at the time of the negotiations. He and the relatives made it clear to me that they felt there had been an agreement that Mr al-Megrahi would serve his sentence in Scotland and that no prisoner transfer agreement would be entered into. I asked the UK Government to comment on that and it simply said that the agreement had been political. I am unsure about what is meant by a "political" agreement as opposed to a contractual agreement. I asked the UK Government to comment on that, but it declined to do so.
Just for clarity, because we seem to be getting into rather muddied waters, you will be aware of Mr Ivan Lewis's letter to you. In his correspondence, he made it clear that
The United States clearly disagreed. I asked the UK Government to comment so that we could clarify matters. What Ivan Lewis was saying in that letter was juxtaposed with what the US Attorney General said. The Attorney General had the courtesy of a call from me; Mr Lewis, Mr Jack Straw, Gordon Brown or anybody else could have had the courtesy of a meeting. If they had agreed to that, we could have had the transcript of such a meeting before us. They declined to do so. Although I do not know why, I can say that what was in Mr Ivan Lewis's letter was not the US Government's interpretation of the position that was entered into a decade or so ago. Therefore, it was legitimate for me to ask—
Were you offered—
Let me finish the answer. It was legitimate for me to ask the UK Government to clarify matters. As you will see from my statement, which is publicly available, I simply said that it was a matter of regret that the UK Government would not expand on or clarify its position and would not accept the offer to make representations to me, which was taken up by the US Secretary of State and Attorney General and by the Government of Libya. Regrettably, that offer was not taken up by the Government in London.
I want us to be completely clear. Did the US Government offer you any documents in support of its position?
Yes, we received documents from the US Government that supported its position, but we are not at liberty to publish them. It is on that basis that we had conflicting views, one of which was supported by the documentation provided by the US Government and the other of which simply took the form of a letter from the UK Government, without any supporting documentation. That is why, as you will see, we made two attempts to elicit from the UK Government anything to back up its assertions. As the committee knows, the US Government has not given permission for the material that it provided to us to be released—it was supplied to us in confidence and we need to respect that confidence.
It is a little unfortunate that that documentation has not been released, as it would have clarified quite a number of points. However, I accept that the Scottish Government is not responsible for that.
It has been. We have released the medical evidence from Dr Andrew Fraser, who is the director of health and social care at the Scottish Prison Service. That is the document that was given to me and on which, along with the other documentation—namely, the reports from the governor of Greenock prison and from the Parole Board for Scotland—I based my decision.
Yes, but we require some reassurance that the medical evidence that was taken was as robust as it could have been. I know that it is difficult to estimate the life expectancy of someone with the illness in question. A life expectancy of three months is the normal criterion that needs to be met for compassionate release to be granted. Megrahi has now survived beyond that; we do not know what his current condition is. What we need from you is supporting evidence that, in all the circumstances, it was appropriate to assume that the prognosis of three months was accurate.
I acted on the report that was provided to me by Dr Fraser, the director of health and social care at the Scottish Prison Service, on 10 August, which has been made available to the committee and is in the public domain. It is clear that he considered the relevant medical reports that were available to him from urology and oncology clinicians. Dr Fraser is the adviser to whom I look on such matters and his report was quite clear about his view. It is not an exact science, but the prognosis was that Mr al-Megrahi's life expectancy fell within the three-month timescale. Thereafter, I concluded that Mr al-Megrahi qualified for consideration for compassionate release. That position was supported by the prison governor and the Parole Board. As I said, 26 applications for compassionate release have been made to justice secretaries since 1999 and all 26 have been granted. In every case in which the criteria are met, compassionate release is implemented. I have no reason to dispute the reports that were put before me.
As you will be aware, the identities of the other medical practitioners who were involved have been redacted from the papers that you supplied. To some extent, you have justified the reasoning for that, but can you confirm that all those medical opinions were provided independently of the Scottish Government?
They were provided by the doctors who treated Mr al-Megrahi in the health service in Scotland, who are not directed in any way by the Scottish Government. They were provided by the clinical staff who treated Mr al-Megrahi in the same way that anyone else would be treated.
It is not clear from the papers that there was a unanimity of view among the doctors. I appreciate that such matters are difficult and that, for the best of reasons, doctors sometimes have different clinical opinions based on different observations. Was there a firm consensus that the three-month prognosis was accurate?
Dr Fraser's report is quite clear about the deterioration that had been seen in Mr al-Megrahi's condition. In the third paragraph of the penultimate page of the medical report, he states:
Is it your position that you adhered to the requirements as laid down in the Scottish Prison Service circular "Early Release on Licence on Compassionate Grounds", dated 6 June 2005? The circular states:
Yes.
If members have no further questions on the medical evidence, we will move on.
We took the advice of the police—the note of a transcript of a telephone call has been lodged—who made it clear that 48 officers would have been required to protect matters in Newton Mearns where he would have resided. Significantly greater requirements would have been involved if he had been required to be taken to hospital for treatment, whether as an in-patient or as an out-patient. There would also have been significant additional requirements relating to the provision of firearms for the relevant police. In those circumstances, it seemed to me entirely inappropriate that a residential housing estate in Newton Mearns should have to deal with that international circus. Equally, to have inflicted that upon a hospital where he would obtain treatment—or, even more absurd, to have inflicted it on a hospice for the dying—would have been entirely inappropriate.
As I recollect, Mr al-Megrahi's family lived in Newton Mearns for quite some time prior to his release. Was that the case?
That was the case, although I think that the family had returned to Libya and the property was probably empty.
As far as the police were concerned, was there any difficulty in the period during which the family was resident in Newton Mearns?
Not that I am aware of. However, it is clear that circumstances would have changed if Mr al-Megrahi had been released there.
There is precedent for such a course of action, is there not? You will recall vividly the events of 1 July two years ago, when the terrorist outrage occurred at Glasgow airport. One of the perpetrators was seriously burned and was detained for many weeks in Glasgow royal infirmary. Were any problems attached to that?
Doubtless it meant logistical problems for the police, and you are quite correct to say that that was a matter of some significance. However, Mr al-Megrahi travelling to the Beatson oncology centre, Inverclyde royal hospital or Glasgow royal infirmary would have meant significantly greater problems. We had information from the police that 48 officers would have been required to secure the residence in Newton Mearns. The police indicated that additional resources would have been required to move Mr al-Megrahi every day, and I have indicated the difficulties that we had in transporting him on the short journey between Greenock prison and Glasgow airport. The requirement to do that regularly would have added to the 48 additional officers, never mind the additional resources that would have been required to go with them. Given that Mr al-Megrahi had been undergoing chemotherapy, which, in my experience, usually requires the patient to be an in-patient, imposing those requirements on a hospital or hospice in Scotland would have been unacceptable.
But they had been imposed on a hospital in Scotland. That was not your fault, or my fault; it happened because of the terrorist who blew himself up at Glasgow airport and who was in Glasgow royal infirmary for weeks. As you said, there would have been logistical problems, but the problems did not seem to be insurmountable to Strathclyde Police in that case, did they?
No. To be fair, Strathclyde Police did not say that the problems caused by Mr al-Megrahi would be insurmountable, and I have no doubt that the police would have risen to the challenge if I had imposed it on them. Strathclyde Police, as is the case with every police force in Scotland, does what is necessary to ensure public safety. However, 48 officers would have been required for one house; additional vehicles would have had to be brought in to enable us to protect Mr al-Megrahi from an attack; and police officers, Reliance officers, SPS staff and perhaps even medical staff would have had to consider wearing body armour or whatever else. That would not have been appropriate.
Indeed not, and heaven forfend that that should ever happen. Someone who was visiting a relative in the burns unit of Glasgow royal infirmary would not expect to see that either, but they would have seen it when the Glasgow airport terrorist was detained there until his death, would they not?
There was a difference in that although the Glasgow airport terrorist was not quite a cadaver—life was still extant— the security implications were much less because he was not conscious. He was just waiting to die, which he did. Mr al-Megrahi's position was significantly different, because he would have been living in Newton Mearns and moving to various treatment centres. On some occasions, he would have been resident in treatment centres. That is a vastly different situation from that of someone who is simply waiting to take their final breath.
But the solution could have been to detain Megrahi in prison until the final stages of his terminal illness—although, clearly, what we have seen since his release creates some difficulty in the minds of many people over when he is likely to die. One does not wish to be a ghoul in this respect, but in the latter stages of his illness it would have been possible to get a prognosis that he basically had two weeks left. If he had been released for that period to the house in Newton Mearns, neither the cost factor nor the other, logistical difficulties that you outlined would have been significant.
Two points arise. First, your suggestion assumes that, were he resident in HM Prison Greenock, Mr al-Megrahi would not have required any on-going medical treatment at a hospital or a hospice. However, the fact is that he would have required such treatment. We saw the consequences of simply transporting him from Greenock prison to Glasgow airport: the media scrum, the armed police officers, the outriders and the vehicles transporting officers, never mind the body armour. All that would have had to be replicated elsewhere and would have been imposed not simply on the police and the prison service, but on the national health service. To me, that was unacceptable.
Mr al-Megrahi's record would suggest that he is somewhat more of a threat than one who is threatened. Did the police indicate from which direction any potential threat might come?
Those are operational matters that I leave with the police, but I am aware that that is why the police took security precautions. I do not impinge on that. No doubt the threat could have come from a variety of sources.
But your natural curiosity in such matters did not lead you to inquire of the police what the threat might be.
I left that to the police. I had other important matters with which to deal with regard to Mr al-Megrahi. It was for the police to advise on security. A little bit of knowledge, Mr Aitken, can be a dangerous thing. I leave policing matters to the police.
But a lack of knowledge under certain directions can be much more dangerous. Had I been in your position, I would have made those inquiries in case they had some significance on a wider basis.
We lodged a full note in the public domain of a telephone call with a senior officer in Strathclyde Police narrating the police's view. That was their view; I stand by it because I have the utmost respect for them. I do not seek to second-guess that view or, indeed, to subvert it.
This all seems to be just a little bit casual. I do not underestimate how difficult the decision was—I accept that it was difficult. However, you were 95 per cent of the way down this particular road and you dealt with it by way of a phone call to Strathclyde Police; you did not have someone come to see you, and you did not go to see them. Are you sure that your researches into the matter were as thorough as they should have been?
I believe so. I think that the phone call was perfectly capable of giving us the necessary information. Indeed, a phone call was taken a few days later from the US Secretary of State, Hillary Clinton. In the modern world in which we live, we are perfectly capable of getting information in that way. We required information from those who would be charged with providing security and safety in Scotland: our police. The police gave the issue due thought and came back with a well-thought-out, reasoned position, which has been lodged in the public domain. As I said, I remain a great supporter of our police, who serve us remarkably well.
I find this whole part of the story really sad. It does not stack up and, like the convener, I find it hard to believe. The decision on whether to send the prisoner home to live out the rest of his life in Libya was really important. I do not accept the points that the cabinet secretary has made, nor, I think, will many members of the public who might be listening to him today. Given the information that we have received this morning and which is before us today, are you telling us that only the police were consulted on whether there could be an alternative place of safety for Mr al-Megrahi, in which he could live and receive his treatment?
We received information from medical officials on his current prognosis and the treatment that he was receiving. I do not get a second opinion on security implications from Group 4 Security or Brink's-Mat—I ask the police in Scotland for their view on the matter. It was appropriate that they should judge the security implications, on which they were asked to comment. I did not go to security at the Inverclyde royal infirmary or the Beatson because, at the end of the day, security at those places is dealt with by Strathclyde Police. That is why—regrettably, because of misbehaviour by individuals—there are police officers at Glasgow royal infirmary and elsewhere.
You asked only how the house in Newton Mearns could be kept secure.
No.
You just said that. You did not suggest the use of our open prison estate, which has a much more liberal regime and includes houses that Mr al-Megrahi could have used. Are you telling us that the house in Newton Mearns was the only place to which you considered he could be released and for which the police carried out an assessment of needs?
I am not aware of any other place to which he could have gone.
Did you ask whether there were any such places?
Let the cabinet secretary finish.
The police note refers to 48 officers but makes clear that a significant number of additional officers would have been required for movement to a hospice or hospital. Everyone saw the media circus that watched the cavalcade heading from HM Prison Greenock to Glasgow airport. We were required to get an additional vehicle to provide protection against nefarious activity and to employ Reliance Security officers, who had to be paid at an enhanced rate—albeit a modest amount—and to wear body armour. Mr al-Megrahi also wore body armour. All of those measures were thought to be necessary by the police, who were dealing with the transportation.
You mentioned again the media circus, to which you have already referred in response to a question from the convener. I agree that it was a circus, not only on the day of the release but in the run-up to it. It was clear that there had been a leak—in your department, the Scottish Prison Service or the Parole Board for Scotland—as people in the media knew about what was happening long before members of the Parliament knew about it. I am not surprised that there was such—
The media have reported twice that Mr al-Megrahi has died—perhaps that leak came from me, too. There was considerable speculation in the media about when and to where he would be released. Since he went back to Libya, I have twice been told—and seen it emblazoned on Sky News—that Mr al-Megrahi has died. I assure you that I did not put that information into the public domain. I do not know where it came from. I cannot comment on the speculation, but I can say that we should take with a pinch of salt the idea that somebody seems to be leaking information. The speculation around the case has been outstanding since the beginning.
The speculation in the days leading up to your announcement certainly proved to be correct, cabinet secretary.
And some was proved to be wrong—some people said that Mr al-Megrahi was not going to be released.
I would have thought that you would have wanted to follow that up. Are you saying that, if Mr al-Megrahi had been transferred from his home or some other place for treatment in Glasgow or elsewhere we would have seen the same media frenzy every day?
I think that we would have. I was simply not prepared to impose armed officers and the media circus that there would have been on those who work in such places, those who are there to spend their dying moments or their loved ones who want to visit them there. That is not what hospitals and hospices are for. You may disagree, but I stand by my decision not to put Mr al-Megrahi in a hospice. That would have foisted all those problems on those who were there to spend their final days, and I was not prepared to do that to those Scots who were afflicted and dying.
I have never suggested that you should do that. Did Mr al-Megrahi have to travel to hospital at any time when he was a prisoner in Greenock prison?
Yes.
Did we see that on Sky News? You seem to like that channel.
No, because the issue was not of the same significance at that stage. Nevertheless, I assure you that steps were taken by Strathclyde Police to ensure that appropriate security was in place. Once the issue became known about, it moved into a different orbit and, whether I liked it or not, preventing Sky News from filming outside Greenock prison when I went in or out was outwith my control. Similarly, I could not prevent snappers from standing outside St Andrew's house when I went there to announce my decision; nor could I prevent there being helicopters in the sky, taking photographs of the cavalcade as it left Greenock prison and departed for Glasgow airport. By that time, it had become a global news story that would have continued wherever Mr al-Megrahi had been placed. I felt that it would be inappropriate to make that a residential housing estate in Renfrewshire. Equally, I felt that it would be utterly appalling to impose that on a hospital or hospice.
So, prior to Mr al-Megrahi's release, he had been transferred from Greenock prison to hospital. Can you tell us on how many occasions that happened?
No, I cannot, but we could find out that information for you, if you wish. That would have depended on the clinical treatment that was necessary and it would have involved a variety of venues including the Beatson Institute for Cancer Research, Inverclyde hospital and, probably, Glasgow royal infirmary. I am sure that, if you want that information, we can inquire about it.
Okay, but that was done discreetly and compassionately, without a media frenzy.
It would have been done discreetly but with appropriate levels of security by Strathclyde Police. Although there was not the same media frenzy at that time, steps were taken to provide privacy for both Mr al-Megrahi and, especially, those who were in the institution that he was attending.
It would not be appropriate for us to ask you to provide that information for us today, cabinet secretary. I understand why it is not readily available. However, it might be useful if you could write to the committee, telling us how many times Mr al-Megrahi went to hospital from Greenock prison.
I have a slightly different question on compassionate release.
We will come back to that. Stewart Maxwell has a question under the same heading.
It is on the same issue and follows on from Cathie Craigie's comments. Can you tell us of any other cases in which prisoners have been released to another prison, open or otherwise?
No. My understanding—Robert Gordon or George Burgess may correct me if I am wrong—is that prisoners are either released to go back to their homes or they die in the hospital or hospice that they are in.
So, in all previous cases they have gone home, wherever that home might be, or, as you say, they have been in a hospital or hospice, where they have died.
Cabinet secretary, since Mr Megrahi's release I have heard much talk of the alternatives and, in particular, of secure hospitals and hospices. As we heard earlier, there is no such thing as a secure hospice. Unless I am wrong—you might wish to correct me—I am aware of only one secure hospital in Scotland, but people are detained there only on grounds of a mental disorder under either civil or criminal proceedings. Is it not the case that, with the best will in the world, even our secure hospital and, in particular, our prisons, which have medical facilities within them, cannot provide care to terminally ill cancer patients? Is it not the reality that no facility in Scotland would have provided both a place of safety to Mr Megrahi and the public and treatment for his terminal illness?
Yes, that is the case. Mr al-Megrahi would have had to go to an NHS institution or some other voluntary hospice. The only place that he could have received the treatment would have been outwith the prison. The nurses in Greenock prison, like the nurses in every other prison in Scotland, do a good job, but prison is a limited place—it is not a hospital. Nurses can carry out a variety of minor matters and can treat a variety of even major ailments but, once somebody has something such as terminal cancer, the ultimate treatment is to go where anybody else would go, whether they were a convicted prisoner or just an ordinary citizen. In this instance, that would have been the Beatson oncology centre, Inverclyde royal hospital or the Glasgow royal infirmary.
Many people who have terminal cancer of the type that Mr Megrahi has die in their own home supported by their family and by medical professionals who come to their home. It is false to say that somebody who has such a condition would have to be hospitalised: that is not how life is out there.
So he should have been put in Newton Mearns among my neighbours.
No. I would have looked at alternatives.
This is not a debate; we are questioning the cabinet secretary. Mr MacAskill, will you respond to Ms Craigie's point?
I defer to Ms Craigie's superior medical knowledge, but I have to say that the evidence before me and the information that we had was that Mr al-Megrahi would require on-going medical treatment such as chemotherapy, which is not available within the prison estate as it requires consultant oncologists and urologists, who are not resident staff within Gateside prison in Greenock or elsewhere.
I put it to you, cabinet secretary, that you and Ms Craigie are both correct in this respect. When palliative care has to kick in for someone who is terminally ill, it can be carried out at home and it frequently is. Indeed, it is your Government's policy, which is supported by all parties, that we encourage that.
It would have been perfectly possible for Mr Megrahi to receive no chemotherapy at all—that would have been entirely his choice. However, taking the palliative chemotherapy was the recommended course of action, and I know that the Scottish Prison Service looked at length at opportunities to do that at, for example, Greenock or another prison medical centre. The conclusion was that the only place where Mr Megrahi could have received the treatment that he required was in a hospital environment, not in prison.
I share other members' concerns that it was not until Friday 14 August that alternative options in the community were discussed with the police. Indeed, by that date, the media were already reporting that Mr al-Megrahi was going to be released. Did you conduct that discussion, cabinet secretary, or was it one of your officials?
It was George Burgess.
It was indeed an official who had the 14 August discussion as recorded. However, it is wrong to suggest that that was the first time that the possibility of Mr Megrahi's going to the house in Newton Mearns had been considered.
That discussion is recorded in note 4a. However, I wonder whether you can clarify what seems to be an inconsistency in the note, which says that searching and sealing the house would take
I think that the note goes on to say that 48 officers would be needed. Thirty officers would have been required to search and seal the house, but 48 officers would have been required to surround the house, which is in a residential area, to ensure that access was granted only through various streets and so on.
Given your limited knowledge in these areas, did you seek a breakdown of the £100,000 per week costs?
No, I did not.
Given the importance of these matters, did you not think that it would have been robust to get a breakdown of those costs and to ask your officials to investigate possibilities of reducing them?
Given that we had been prepared to spend millions on Mr Megrahi in conducting this case, I would rather have spent that £100,000 on other things, especially in the face of £500 million of London Government cuts. Every £100,000 matters.
As members have no further questions on release alternatives, we move on to the decision to release Mr Megrahi on compassionate grounds. In the course of this questioning, we will probably compare and contrast the decision with decisions on previous applications.
Most of us have great sympathy with the complexities of the decision-making process that the cabinet secretary had to go through, but I want to be clear about exactly what that was with regard to compassionate release. I direct my questions initially to Mr Burgess.
The document is Scottish Prison Service guidance, and it is principally for the Scottish Prison Service. The 2005 document replaced an earlier document, but I do not think that the criteria or the process changed to any great extent.
I am not clear how the type of offence, the supervision level and the length of the sentence outstanding are matters on which the prison governor, as opposed to the cabinet secretary, could have a relevant view.
I will explain why the length of the sentence outstanding is a factor. In some other cases in recent years, the prisoner was found to be terminally ill but was due to be released in three or four weeks' time. They were therefore not released on compassionate grounds but simply released when they would have been released anyway. That is the way in which the Scottish Prison Service takes such information into account.
It is fair to say that there are two levels. There are the more technical aspects such as risk and the other things that you mentioned, and then there are the broader issues, which also include the factors that the cabinet secretary told us about earlier, such as international opinion, the relatives' views and the options that might exist—in general, all the circumstances of the case. Is that fair? The cabinet secretary has a broader role than the prison governor, who gives him advice on those matters.
Those in the Scottish Prison Service prepare their advice using the guidance that is set out in the SPS circular—in fact, they use a template that is provided with it. When that advice came to us, the other factors needed to be considered, and those are the ones that are principally dealt with in my advice of 14 August. In that advice, I pick out the things that are principally for the cabinet secretary to consider at that stage, which means that I do not go into every factor that is mentioned anywhere in any bit of guidance.
I understand that, but I refer to your advice, in note 3c. It is notable that that advice contains no reference to the annex to the Scottish Prison Service document, which mentions criteria such as the
You will see that in paragraph 5 I refer to the Scottish Prison Service guidance and the factors that that guidance deals with in terms of the circumstances in which compassionate release can be given.
The annex to the SPS guidance mentions the factors that
As I said, that is SPS guidance, so it is principally for SPS. It informs the governor, the medical staff and the others in the SPS in framing their recommendations to the cabinet secretary. It is a perfectly normal process, which every other application for compassionate release will have gone through.
Is it fair to say that there is an element of balance—I think that most of us understand it to be present—between the compassionate desire to allow someone to die at home, and the broader issues of the horribleness of the crime that was committed, the effects on the victims and other such matters? In your view, were those factors relevant considerations for the cabinet secretary? I am talking about your advice to him.
On the issue of the heinousness of the offence, for example, it would have been possible for me to have included in the submission of 14 August on compassionate release advice to the effect that there is nothing in the operation of the 1993 act, nor in the guidance, that seeks to exclude any particular class of offender. That issue is dealt with in a similar way in the other advice that I provided—on the prisoner transfer agreement—in which the question of heinousness of offence was a significant issue. In a sense, those two pieces of advice run in parallel. I did not see any need to deal with the issue of heinousness again in the advice on compassionate release.
If I may say so, with respect, I find that staggering. We are dealing with two separate decisions, one of which has appeals as the background to it and one of which does not. Different considerations and pieces of legislation apply to the decisions, and yet you did not put into the advice on the second decision—on compassionate release—the references to the heinousness of the offence and so on, which are at the heart of the matter. From the advice that you gave, would the cabinet secretary have been justified in understanding that compassionate release was dealt with only in relation to the welfare of the prisoner and other such issues, and that the issues to do with the victims were irrelevant?
No, I do not think that that is right at all.
So why was that not in the advice?
It did not need to be in the advice; it was in the material that was issued by the Scottish Prison Service, which dealt with the issues of risk.
The Scottish Prison Service is instructed that certain factors always require to be taken into account: the type of offence, the length of the sentence outstanding, the effect on the overall sentence and so on. It is clear that those matters have a much greater relationship to the victim end of the matter, if I can put it that way, than to the welfare of the prisoner. They are irrelevant to the welfare of the prisoner, are they not?
The advice that I offered followed the same process as all other previously tendered advice on compassionate release. The question of the length of the sentence was not particularly relevant in this case because we were not dealing with circumstances in which Mr al-Megrahi was on the point of being released anyway, which is the sort of example—
I am sorry to intrude, but that is not what the guidance says. The guidance states that factors that always require to be considered include
It is not restricted in that way, but that is how the issue has been dealt with in previous cases.
That might have been what happened in certain aspects of previous cases.
I am not clear what you are suggesting my advice on that matter could or should have been. As I mentioned—
I am asking you to say whether it was appropriate that, in the advice from officials to the cabinet secretary, account was not taken of the need to balance the interests of the victims with the issue of compassion, which relates to the prisoner.
I suggest that my advice was considerably longer than most other previous advice to ministers on compassionate release. My advice covered a great range of factors that were drawn to the cabinet secretary's attention.
I struggle to find in your advice any reference to the balancing exercise that most of us understood lay behind the issue. Can you point me to anything in your advice that relates to that?
I think that it is a matter of judgment—a judgment that I had to take—on which matters I covered in my advice. I consider that the matters on which I put forward advice were appropriate.
Let me drag my attention to the cabinet secretary. Mr MacAskill, were you aware of the annex to the Scottish Prison Service guidance at the time when you made the decision?
Yes.
Did you know about the requirement to consider
Yes. However, the clear evidence was that the practice of my predecessors—which I followed—was to look at the individual more than at the offence. That practice is why early release on compassionate grounds had been granted to people of whom many had committed heinous offences. I fully accept that Mr al-Megrahi committed probably the most heinous offence ever inflicted upon Scotland, but there is no threshold: there is no offence too small to qualify and there is no offence too big to negate the possibility of qualification. That is why the then Minister for Justice, Mr Jim Wallace, who was a member of Robert Brown's party, released a prisoner who had upon conviction received a life sentence for child murder.
I am not challenging your right to release people: I am asking about the exercise that you went through. In your consideration, was any attention given to the interests of the victims who wanted Mr al-Megrahi to serve out his sentence and to see justice being done in that sense? Did you think that you had to conduct a balancing exercise between their interests on the one hand and the compassion issue on the other?
As per today, I applied considerable thought in considering the prisoner transfer application. The grounds for that application were clearly given consideration. I made known my view that the evidence suggested that the American Government and families had been given reason to believe that Mr al-Megrahi would serve his sentence in Scotland. Having made a decision on the prisoner transfer application—as I narrated in my statement both in Parliament and at St Andrew's house—I went on to consider the application for compassionate release.
I understand that, but with great respect—I am not trying to be difficult—my question is quite basic. I want to understand whether in your decision-making process, you felt that you were entitled to take account of the heinousness of the offence. If so, what weight did you attach to that in your overall consideration of the application?
My interpretation of the situation is that we do not set a minimum or a maximum sentence level for qualification for consideration for compassionate release. That is why people who have murdered children, for example, have been released on compassionate grounds.
I want to approach matters from a slightly different direction. Many of us look to the precedent that has been set to see how such matters will be handled in the future. Much play has been made of past compassionate release decisions by previous justice ministers, but it is fair to say that almost all the cases in question, bar three or four, related not to murders but to offences that are less serious in the overall scheme of things. One can obviously make judgments about the seriousness of those that related to murders. It is difficult to do that on the basis of the summary of information that we have been provided with, but none of them appears to be of remotely parallel seriousness with the Lockerbie bombing. Can you envisage future circumstances in which you or your successors in office could refuse an application for compassionate release or would feel it appropriate to balance the compassionate aspect with consideration of the interests of the victim and the nature of the offence, given that that has not been done in the case of the Lockerbie bomber?
I cannot bind my successor or speculate on what he or she may or may not do; that will be a matter for him or her. My decision was predicated on the fact that just as there is no minimum threshold—there is no crime that is too trivial to forgive—there must be no crime that is too severe to forgive. We must be prepared to forgive, even though we fully understand the backdrop, as we did in this case.
I do not want you to misdirect yourself. I think that it would be fair to say that other applications for compassionate release have been made that have been refused.
Those that do not meet the criteria do not come before the Cabinet Secretary for Justice. Applications that have not met, or will not meet, the criteria do not reach me. They did not reach my predecessors and they will not reach my successors. All valid applications that have been properly submitted and have met the criteria have been granted. Applications that do not meet the appropriate criteria do not come before the justice secretary for a decision.
Such applications have been made.
Yes.
I want to pursue the issue of the process that you followed. As you have said, you decided to meet, or to communicate with, various relatives and other people who had interests in the case. What was the point of that if the impact on the victims is not really relevant to your consideration of whether compassionate release should be granted, which I think is what you are telling us?
The impact on the victims was of course made quite clear in my original statement on the matter, Mr Brown. It may be best for me simply to refer to what I said on the question of compassionate release, which was:
Nevertheless, in the approach that you took, you ostensibly met most of the relatives specifically and only on prisoner transfer and not on compassionate release. Is that correct? Is not that stated in the minutes of most of the meetings?
Yes—although it is fair to say that the relatives were aware of the possibility of compassionate release, and their views on it were made quite clear. I did not feel it necessary to go and hear their views on that, given that they had expressed their position quite clearly. The formal application for prisoner release came in on 24 July. It is fair to say that it was noted in the meetings with the relatives that compassionate release was a possibility that was on the horizon. I therefore took account of the relatives' views on that.
Is not it slightly odd that the minutes note specifically that you said that you cannot discuss compassionate release? For example, the minutes of the meeting with the UK families—document 2c—state in paragraph 4:
No. I think that I heard their views. Their views were taken on the question of prisoner transfer, but their views were fairly succinct, so I knew where they were coming from. The Americans were quite clear that they did not wish Mr al-Megrahi to be released, full stop. The question of release on compassionate grounds was therefore a secondary issue, in a sense. The United Kingdom relatives were divided; clearly, Dr Swire has a different view from others. I met them collectively, and they are a lovely set of people. However, it is fair to say that they made it quite clear that there were differences in their views. Equally, the families from Lockerbie—I remember that part of my comments on forgiveness came from them—made it quite clear that they could never forgive, given the devastation that happened to their families. However, they understood that times move on.
Is there not an on-going echo in all this of the issue of the balance of the meetings about which we are talking? In that context, can you comment on the letter that was addressed to the chargé d'affaires of the Libyan Government from Mr Salmond, the First Minister, dated 25 October 2008, in the documents at exhibit 2d? He stated:
The answer is quite simple, and was made quite clear in further evidence. Once the applications were submitted, I was sitting in an almost quasi-judicial capacity. Back in October 2008, there was neither an application for prisoner transfer nor an application for compassionate release. Once the trigger was hit, on 5 May, with the application for prisoner transfer, it was made clear that the decision would be made by me alone. I then started working out the procedures, which takes us back to points that were made earlier. In October 2008, when there were no applications before us, when the Scottish Government was involved in discussions—if we can put it in that way—with the United Kingdom Government over whether there should be a prisoner transfer agreement, it was inappropriate for us to enter into bilateral discussions. However, when the trigger was hit on 5 May, I started to deal with matters in a quasi-judicial capacity and it was made clear by the First Minister then—as it has always been made clear—that the decision would be made by me alone, as it was. I had the advice and support of staff, but the decision was mine.
I am grateful for the confirmation, but that is not what the First Minister's letter says. He talks about the procedure under our system of compassionate release. In particular, he refers forward to what may happen should there be an application of that kind. We will leave that correspondence and the cabinet secretary's evidence to speak for themselves.
The Westminster Justice Committee considered the al-Megrahi affair at a recent meeting; Jack Straw was asked whether he had influenced your decision in any way. Members of that committee felt that some pressure might have been brought to bear on you. Was there any outside pressure on you?
No. There was no outside pressure: it was my decision alone. It was narrated by me and echoed by the First Minister. My decision was made following due process—the rules, laws and guidance that we have in Scotland—and without taking into account political, economic or diplomatic considerations. I cannot speculate about what others may have done, but I was not pressured into a decision. I made the decision myself, following the rules, on the basis of my understanding of the beliefs and values that we hold as a people.
Some of the points that have been borne out in recent exchanges perhaps get to some of the concerns about the issue of compassionate release. The cabinet secretary has outlined that no minimum or maximum sentence should be a factor in considering whether a person meets the criteria. Does he accept that the logical conclusion of that is that there is no differentiation, in considering the criteria, between someone who is guilty of fraud and someone who is guilty of the murder of 270 people?
According to the law, Tony Kelly would be entitled to seek judicial review if I or any other justice minister would not consider an application because the crime was X. In Scotland, all applications must be considered. So far, the experience under a Liberal Democrat justice minister, a Labour justice minister and me has been that 26 applications have been made and 26 releases have been granted. I authorised the release of Mr al-Megrahi on the grounds that I have fully explained. It would be for Jim Wallace or Cathy Jamieson to justify why they released other individuals. It is public knowledge that the killer of a child was released by Mr Jim Wallace.
That is fine. That confirms my view that the way in which you have looked at it did not differentiate between someone who was convicted of fraud and someone who was convicted of the murder of 270 people.
No—that is not true. One must consider the backdrop to such matters, and the first consideration is whether release is precluded by the rules or regulations because of the nature of the offence. In Mr al-Megrahi's case, the answer was that it was not. As you are probably aware, Tony Kelly or any other lawyer would seek a judicial review if we refused to consider an application for compassionate release on the basis that the crime was too heinous or too minimal. Each application must be considered.
You quoted from the conclusion to your statement of 20 August. In the first part of that statement, especially in the section on compassionate release, you set out the process that you went through, but I see no indication in the statement that there was any consideration of representations from the families of victims, apart from in relation to the prisoner transfer application.
I said in my statement:
It does not matter how many times you read out the statement, the families of victims have still had no formal input into the consideration for compassionate release. Indeed, the Parole Board for Scotland said that it
What the Parole Board was reflecting there is the state of the current law on victim representations. Under legislation that has been around for a couple of years, there are circumstances in which victims have a formal right to make representations. That does not include compassionate release. That is the basis for the Parole Board's statement.
Looking closely at the 20 August statement, I see no indication of consideration of the length of sentence served or the severity of the crime or any formal input with regard to the consideration of victims.
I followed due process, criticism of which might emerge in the committee's inquiry. I point out, though, that I inherited the process from my predecessors.
On a final point, it was clearly a matter of concern that when Mr al-Megrahi arrived in Libya he was greeted by a crowd of people waving saltires. What action did you take, either in setting licence conditions or in discussions with the Libyan Government, to try to prohibit that? I know that you were concerned about that issue. For example, according to paper 2c, which is the note of the meeting on 6 July 2009, you raised the issue directly with the Libyan Government, saying—and these were your words—that you did not want Mr Megrahi to
The assurances with regard to compassionate release were the same as those for prisoner transfer. The Libyans gave us undertakings that Mr al-Megrahi would not return in a triumphalist manner or to some sort of fanfare. As the First Minister and I have made clear in the chamber, it is a matter of regret that the Libyans did not uphold the assurances that they had given us. The same assurances had been sought by the UK and US Governments. As I have said, we made it quite clear that we were seeking assurances on the matter, we were given those assurances and we bitterly regret that they were not adhered to.
Were the assurances verbal or written?
They were verbal and were recorded in the notes of our meetings. As I say, we—and, indeed, the UK Government through the Foreign and Commonwealth Office—sought those assurances, and we had no reason to believe that they would be reneged on. It is a matter of considerable regret that the Libyans did not adhere to the assurances that they gave us and others.
Given the seriousness of the matter, do you think, on reflection, that you should have got those assurances in writing?
I am not aware of any treaty that would have been entered into by the Government of Scotland and the Government of Libya in that respect. In any case, if Mr Kelly checks the Scotland Act 1998, he will find that we are precluded from entering into such matters. When I deal with international issues, I tend to take people at face value, no matter whether I am talking to the US Attorney General, the Secretary of State, Jack Straw, or anyone else, and I bitterly regret that the Libyans did not adhere to their assurances.
So, you would agree that a disgraceful and deplorable situation arose.
We have made it clear—the First Minister spoke out immediately—that it was a matter of great regret.
As I am sure that you are only too well aware, it is difficult to separate the decisions on prisoner transfer and compassionate release.
If we had gone out and spoken to victims' families about compassionate release, Tony Kelly may well have had something to say on the matter. That is not what is done in those situations. The backdrop is that we obtained information. We also listened to victims' families and heard their views, specifically on prisoner transfer, although they made their views known on a variety of subjects, even when we made it clear that those subjects—court matters and compassionate release—were not under discussion.
Essentially, that is the position. As I said in my answer, the Parole Board for Scotland's comment reflects the position in law that, in dealing with compassionate release, there is neither an entitlement for victim impact statements to be provided to the board nor does it take into account those issues as a matter of practice.
There was no requirement by law and agreement for you to visit Mr al-Megrahi in prison, cabinet secretary. You have made it clear this morning that, by law and agreement, there was no requirement for you to speak to victims' relatives or other Governments, but you did that. The law did not prevent you from speaking to victims' relatives or taking account of evidence that you had on file—
But I did speak to victims' families. Indeed, very late on, I took a call from the United States Government Secretary of State, Ms Hillary Clinton, in which she expressed the views of her Government. Also, without giving anything away, Hillary Clinton had particular issues to raise as a former New York senator.
I understand that and I imagine that those conversations were difficult. I understand that you took careful account of the views and feelings of the victims' families when you were considering your decision on the prisoner transfer application. You told us that the families thought that Mr al-Megrahi should serve his sentence in Scotland and I think that you said that that was one of the reasons for turning down the prisoner transfer application.
I am sorry. I found it difficult to follow the train of thought in your question, which you started two minutes ago. Will you summarise your question?
You said that the reason for turning down the prisoner transfer request was that the victims' families thought that al-Megrahi should serve the remainder of his sentence in Scotland—
Can I respond to that?
However, it seems that when you agreed to the request for release on compassionate grounds, the opinion of the victims' families was not given the weight that it deserved.
I am happy to respond to that. First, I rejected the prisoner transfer application on the basis that it seemed to me that there was considerable evidence that an agreement had been entered into whereby Mr al-Megrahi, if he was brought to Scotland and sentenced, would serve his sentence in Scotland. That seemed to me to override the prisoner transfer agreement that was entered into by the Government of the United Kingdom and the Government of Libya, whatever the backdrop of that might have been—I do not speculate. There had been clear information and there was reason to believe that the United States Attorney General, the US Government and the US families believed that Mr al-Megrahi would serve his sentence in Scotland, so I refused the prisoner transfer application.
I imagine that applications for compassionate release must stand on their own merits, so we cannot truly compare the al-Megrahi case with the other 25 cases. However, I would expect the Cabinet Secretary for Justice to follow the guidelines on compassionate release, which state:
Yes. Robert Gordon will comment.
I will comment in the absence of Dr Burgess. The point that we are getting stuck on is that the length of sentence is essentially how little is left. The issue is about compassion being shown to someone who has a very limited time to live. The absolute length of the sentence outstanding is relevant in relation to its shortness rather than its extended length. The comments of the trial judge are relevant in relation to the risk assessment that needs to be undertaken against the possibility that the person released, even on compassionate grounds near the end of his or her life, would present a risk to the community into which he or she was released.
Right. This has been a lengthy process this morning. Are there any further points?
One of the difficult consequences of the decision-making process has been the abandonment of the appeal by Mr al-Megrahi, which presumably he thought he was required to do under the terms of the prisoner transfer agreement. As we know, for the prisoner transfer application to be granted, the appeal had to be got rid of. However, that was not the case for compassionate release, which was a different sort of issue. The consequence, of course, is that the relatives in particular have been denied the testing of the evidence that might have taken place.
The appeal was a separate factor. In each and every meeting that I had I made it quite clear that that was a matter for Mr al-Megrahi, his lawyers and the courts; it was not an issue that we would enter into, apart from when the final conclusion on the prisoner transfer application was reached.
It is astonishing how roundabout the cabinet secretary's answer was—in fact, he did not answer the question at all. My question was about the appeal issue, which was highlighted at almost every meeting with the Libyan Government. The minutes of the meeting at Greenock prison say:
Not at all. The statement to Mr al-Megrahi, the Libyan Government and everyone else was a matter of fact. We said that although we could consider a prisoner transfer application, we could not grant it if court proceedings were outstanding. That was a matter of fact. I say to Mr Brown that we always added the caveat that the decision about whether to appeal was a matter for Mr al-Megrahi and his solicitors; we would not interfere in any shape or form. I do not know why he made the decision that he did; others round the table might be closer to knowing than I am.
Bearing in mind the committee's remit, that is as far as we can go on that point.
That is the case. Given where Mr al-Megrahi was going, any special conditions that would normally be imposed in Scotland would have been of little relevance.
That could be accepted. You are therefore saying that the normal standard conditions apply. Have they been enforced?
That is a matter for the supervising social worker, but no adverse report has been made to me.
Fine. I have one or two final points to which you might be able to answer "yes" or "no" so that it is on record. You made the decision on your own without any interference from the UK Government.
Yes.
You made the decision independently, despite the fact that the Libyan Government brought out all the big guns firing.
So did the Americans, but yes, it was me.
You did not in any way prevail on or influence Mr al-Megrahi to withdraw his appeal.
No.
The statements made by Christine Grahame are wrong.
I have no knowledge of whether they are right or wrong. They are not known to me.
Did you carry out any inquiries in that respect?
I have not been shown anything. Inquiries into what—an e-mail that I have never seen and about which I do not know? What inquiries do you wish us to carry out?
You might have asked officials to look into her statements.
No. I was not aware of any such matter. Such statements are not within the Government's knowledge and I have never seen them. Whatever reason Ms Grahame had for saying what she said is a matter for her on which I cannot comment. I am not aware of any such matter.
Right. You are happy with the answers that you have given. You have been given every opportunity to expand on them if necessary.
Yes. As I said, I did not wish to make the decision, but it fell to me. I stand by my decision and I live with the consequences. I believe that it was the right decision for the right reasons and that I followed the right process.
I thank the cabinet secretary, Dr Burgess and Mr Gordon for their attendance this morning.
Meeting suspended.
On resuming—