23 August 2011

"Send Megrahi back to chokey!"

Here's a shock. You can't just lock folk up without a legal basis. Well, I tell a lie. If you are a sturdy soul with an ambusher's low animal cunning, a ream of duct tape and a spare and empty man-sized cupboard, you could take up antemortem body-snatching in your spare time, but I doubt it'd avail you much at all.  As for the state and its agents, quite rightly, their powers of arrest and detention are governed and limited by laws. Article 5 of the European Convention on Human Rights exemplies this logic:

"... no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law".

So, whether or not they might wish it were otherwise, the polis can't just pounce on a fellow and toss them into an oubliette, there to rot away their days.  If you commit offences punished by a determinate jail term, and serve out your sentence, you cannot be swooped upon and returned to your cell.  If you are a life prisoner released on licence, there are processes of adjudication and deliberation on your condition.  For most, these are consoling thoughts. For Robert Halfon, the Tory MP for Harlow in Essex, however, it is otherwise. Says Halfron...

"The release of al-Megrahi marked the low point of Britain's appeasement of Gaddafi. We should make every effort to bring him back so he can spend the rest of his time in prison where he belongs. Or he should spend the rest of his life in a Libyan jail, or be extradited to the US. We should do everything in our power to make sure he is in jail, rather than living a life of luxury."

Our old friends, the American senators - joined by Republican would-be President, the ludicrous Mitt Romney - are hullabalooing for Megrahi's extradition to the United States. Says Mormon Mitt...

"It is my hope that Libya will now move toward a representative form of government that supports freedom, human rights, and the rule of law . As a first step, I call on this new government to arrest and extradite the mastermind behind the bombing of Pan Am 103, Abdelbaset Mohmed Ali al-Megrahi, so justice can finally be done..."

You'd think these American politicians had quite forgotten the Camp Zeist trial, which convicted Megrahi in early 2001 and the Fifth Amendment to the U.S. Constitution, which provides that "no person be subject for the same offense to be twice put in jeopardy of life or limb".  Ironically enough - not Mitt's strong suit, I suspect - the general prohibition on double jeopardy is recognised as a human right and and an important expression of the rule of law at work (albeit with creeping exceptions). Not only is it recognised in the American constitution, but is enshrined in key international human rights instruments. The International Covenant on Civil and Political Rights, for example, states that:

Article 14(7). No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

I don't know enough about U.S. law to take a decisive view of what the American Federal authorities can or cannot do, but the same considerations I outlined at the beginning apply.  If folk are to be imprisoned, the authorities require a basis in law to do so. Either that, or the government is forced to abandoned law, and turn kidnapper.  But what about the British prospects? Halfron seems to be labouring under the impression that all one has to do is present Megrahi at the portals of HMP Greenock, and the governor would immediately give the man his old bunk back and twist the key in the lock. Many folk have been discussed whether Megrahi should be returned to a Scottish jail. Few have asked the more basic question, can he be returned to prison anyway?

For an answer to that question, we have to dip into the Scots Law governing his release. Megrahi was released from jail under the Prisoners and Criminal Proceedings (Scotland) Act 1993, passed by the Tories at Westminster during John Major's premiership.  A few preliminary points of interpretation. Firstly, under the 1993 Act, a "short term sentence" is one less than four years, while a "long term sentence" is more than four years.  A conviction for a single murder nets you a mandatory life sentence. For obvious reasons, Megrahi's conviction for causing 270 deaths also subjected him to a life sentence.  Under section 3 of the 1993 Act, Scottish Ministers are empowered to release prisoners on licence "if satisfied that there are compassionate grounds justifying the release on a person serving a sentence of imprisonment". As we all know, Kenny MacAskill granted Megrahi's application in 2009, releasing him subject to these licence conditions.  For a life prisoner, the licence applies until their death [s11(2)], but the Minister can subsequently insert vary or even cancel conditions of licences.  But what if these conditions are breached by the released recidivist? What if Megrahi fled to some other address, or some other country, failing to have informed by contact in East Renfrewshire Council ahead of time? Under the 1993 Act, nothing necessarily. There is nothing immediate about licence breaches resulting in re-incarceration. Revocation of licences are governed by section 17 of the 1993 Act.  A superficial reading of 17(1)(b) in the context of the Megrahi case is liable to excite. Where...

"... a short-term prisoner has been so released, the Secretary of State may revoke his licence and recall him to prison if satisfied that his health or circumstances have so changed that were he in prison his release under section 3(1) of this Act would no longer be justified."

Here's where it pays to be pernickety. Remember, a short term prisoner is one sentenced to serve less than four years in prison. While Tommy Sheridan could be released from prison on compassionate grounds if he suffered from debilitating scrotal arthritis, and be recalled this section if his ailment cleared up, Megrahi cannot. Admittedly, this seems rather paradoxical, but there it is. So what about life prisoners? Their licences can be revoked under section 17(1)(a), which reads as follows. Where...

17 (a) a long-term or life prisoner has been released on licence under this Part of this Act, the Secretary of State may revoke that licence and recall him to prison— (i) if recommended to do so by the Parole Board; or (ii) if revocation and recall are, in the opinion of the Secretary of State, expedient in the public interest and it is not practicable to await such recommendation.

So the Parole Board might recommend to MacAskill that he recall Megrahi's licence. Absent such an intervention, it MacAskill could unilaterally invoke 17(a)(ii) citing the public interest to recall the licence, allowing Megrahi to be lawfully detained, returned to lock-up and considered "unlawfully at large" while roaming free. "Public interest" is clearly a broad and amorphous concept but notice that "and" in the middle of the provision. I cannot immediately envision the circumstances in which the speediness which justifies the minister o'erleaping the Parole Board would apply in Megrahi's case, but it could conceivably occur. What then? Unlike compassionate release, the Minister has rather less say about returning released prisoners to jail. Even if the Minister revoked his licence under this section, the parole board still gets the final say. The case is then referred to them, and the Minister is constrained to give effect to their direction. You could be a bitter, birching Tory Minister of Justice, minded to consign the prisoner to condign oblivion in your cells, but the final disposal is beyond your control. Where the Parole Board agree with the Minister, the recalled prisoner is returned to their cell. If not, they are re-released. 

What all this serves to demonstrate is that it isn't exactly straightforward to give effect to the desire to shove Megrahi back in prison. Even if Megrahi breached his conditions of licence in Libya, there is no automatic requirement that his licence be revoked. Human life is messy, after all. Even more so in a part of the world presently embroiled in turmoil and a political revolution. If Megrahi was arrested by Libyan forces and took up residence in a prison without telling his social worker in East Renfrewshire ahead of time, that would be in breach of his licence - but hardly a particularly just basis to revoke the liberty granted, is it?  Via Jonathan Miller QC's piece from 2009, I read with interest this Scottish Prison Service circular from 2005, on compassionate release...

"If a prisoner who has been granted compassionate release because of a terminal illness or other medical condition makes an unexpected recovery, consideration would be given to revocation of the licence and the prisoner's recall to custody."

However, not having perished is hardly a recovery, is it? The elementary fact is this, even if an unwilling Megrahi were hauled back to Scotland, you can't just deliver him back into jail like a letter popped through the letterbox.  There are process which, thankfully, are not subject to the whims and preferences of Robert Halfron or David Cameron. Whatever their demands, and the bilious burblings from across the Atlantic, it is perfectly plausible that Megrahi's more telling punishment would not be re-imprisonment, but being forced to live in Newton Mearns...


  1. You know something tells me that the anti-Gadaffi forces might just think the best thing they could do with Megrahi is to string him up on the basis that the sight the Americans want to see the most is his dead body hanging in the wind.

    We shall see.

  2. Thank you for what, as your readers always expect from you, is a clear yet detailed analysis of the issue. But this is one which none of the main stream media, nor indeed the baying politicians, seem to have applied their minds to.

    I sometimes wonder if (a) the law is so complicated that no-one other than people like you; our scone- and Martin Amis-obsessed friend; the eminent Professor Black; David Allen Green and Charon QC can actually understand it or (b) no one either in the media or politics actually cares about it.

    I have a horrible feeling that the latter is true.

    I was bemoaning the other day the lamentable standard of "legal" reporting in the Herald, but it extends wider (eg the BBC's bizarre insistence that 5 years was the maximum sentence for football related sectarian offences, for example).

    It can't be difficult to find someone with a modicum of legal know-how to comment or analyse issues that impact on the law - the Internet is rather busy with us!

    As far as the double jeopardy point goes, I do recall that Terry Nichols, the accomplice of Timothy McVeigh in the Oklahoma bombing was tried twice, the second time because the jury had not imposed the death penalty at the first trial.

    As per Wikipedia, he was convicted in 1997 of "conspiracy to use a weapon of mass destruction and eight counts of involuntary manslaughter for killing federal law enforcement personnel". He was later tried in Oklahoma on "state charges of murder in connection with the bombing, and was convicted in 2004 of 161 counts of first degree murder, first degree arson, and conspiracy".

    I suppose that leaves some possibility that a creative state or federal DA could come up with a charge that was not identical to that of murder for which Mr Al-Megrahi has already been convicted.

    The issues about his possible re-incarceration would be concerning enough if his guilt had been admitted, or established to general satisfaction, but with all the doubts that exist, then there is the added horror of a possibly innocent, and almost certainly terminally ill, man being returned to prison for a crime he did not commit.

    Kevin Williamson yesterday posited at http://bellacaledonia.org.uk/2011/08/22/the-fall-of-gaddafi-and-the-assassination-of-abdelbaset-ali-al-megrahi/ that Mr Al-Megrahi will end up dead very soon. As I commented, if he passes away from natural causes in the next few weeks, no one will believe that there was no "assistance".

    It reminded me of Francis Iles' novel "Malice Aforethought" written in the 1920's and dramatised in the early 1980's starring Hywel Bennett, where [Spoiler Alert] having successfully murdered wife no 1, and persuaded the court that she died from natural causes, his second wife dies of natural causes, but he is convicted of her killing anyway. I can't help imagining the CIA dressed in tweed as an English country doctor in the inter war years, having been condemned for the one offence they did not commit.

  3. I've got a better idea - how about Nato produce al Megrahi's boss Musa Kussa from wherever they're hiding him, and prosecute him instead?

    After all, a seagull couldn't shit in Libya without his say-so, and I imagine it was William Hague's decision to let Libya's top secret policeman/spymaster/terror supremo leave the country.

  4. So it's not as straightforward as the Hague etc think it is well another poke in the eye from Scotia.

    Last week in out house we had a discussion about the possibility / probability that Megrahi will be found dead.

    I then read Bella Caledonia who has an article about his "natural death" to come and thought aye.

  5. Much of the brouhaha surrounding al-Megrahi's release was in the sure fire knowledge of never having to act upon these words.
    The passage of time, and people with it, was the hope of many to draw a line under the tragic events of Pan Am Flight 103.
    That hope is carried by some in the Scottish legal profession, who will undoubtedly welcome the new debate regarding double jeopardy, extradition etc ... as much as they eschew the old ones.

  6. I still think that the most likely outcome is that he will be found dead or killed but in the event that the Americans do get hold of him I don't know why people seem to be assuming that they would follow due legal process. They didn't bother about that when it came to the terrorist suspects carted off to Guantanamo Bay did they? Provided he is still breathing perhaps another extraordinary rendition might be arranged.

  7. I have to say I have not a scooby about the legalities - wonder
    whatwould happen if the rebels just stuck him on a plane back to Scotland with a 'Return to Greenock' label?

    Kenny could be there to meet him greeting (in both senses).

  8. Edwin,

    In that event he would be returned from Britain as he does not have a visa to enter the country and would be an illegal entrant. This was confirmed in June by the Home Office Minister in the House of Lords.

    Unless he returned here and claimed political asylum...

  9. Paul,

    The tragic thing is: these legal issues aren't really all that complex. Sure, there are bits that require a bit of cross-referencing and careful reading but anyone with a legal background, with a bit of effort, should be able to cobble together a reasonably comprehensive understanding. For that reason, the failure of our public sphere to address legal issues intelligibly - not aided by folk like Robertson QC - is quite unnecessary, and as such, quite indefensible.

    On double jeopardy, as I noted, I don't know the surrounding American jurisprudence well enough to take a definitive view. Obviously the categorical terms of the constitutional provision may be misleading in practice. Prima facie, however, you'd think that someone enthusiastically canting about the rule of law might seriously consider the spirit of the rights set down in their constitution...

  10. FlyingRodent,

    Quite. I don't know enough about the area to take much of an informed view, but the pervasive hypocrisy which has characterised UK relationships with Libya, Gaddafi and his cronies - and Megrahi - speaks for itself.

  11. I have to say that the process of recall by Scottish Ministers is a lot swifter and more commonplace than you seem to think. Ministerial recall under Section 17 is now carried out about half a dozen times a month, with the Parole Board incresingly bypassed by politicians who continue to resent the removal of their powers to dictate who does and does not receive release on licence. I am indeed far from clear that the Minister involved the Parole Board in the Megrahi decision at all, as is customary given the terms of Sction 3 (2).

    In practice, though, most long-term and life prisoners released under Section 3 (1) have a matter of days to live. Megrahi is, I believe, the only one in the last decade to survive more than a month.

    I have to say that I simply do not understand Section 17 (1) (b). Until July 2005, it was not competent to release a short-term prisoner on licence; the only exceptions (and here we plough into the bog of dreadful drafting) might have been - (1) an extended sentence prisoner whose custodial part was less than four years, but whose total sentence exceeded four years and as such was released subject to the conditions of an extended sentence licence, and (2) a child sentenced to less than four years by virtue of Section 7 of the 1993 Act. I have to say I am unaware of any person in either category ever receiving compassionate release.

  12. the_voice_of_reason,

    You'll know much better than I! As I've noted before, I'm not a practitioner but have a sociologist's interest in the real practice of the law, rather than the understanding set in motion by a bare reading of statutes. On your point about compassionate release, I haven't investigated the extent to which MacAskill did indeed follow "due process of Scots law" in that regard. Will have to look into it.