"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...

Who ought to temper justice with mercy?

I was busy yesterday afternoon, so haven’t reviewed the learned submissions and arch assertions of our worthy tribunes on the Lockerbie Question and the righteousness or otherwise of Kenny MacAskill, the SNP’s Goldfish Orator. It does seem, however, as if the gannets which were circling seem to have dive-bombed into cooler water, and the prospect of some form of “no-confidence” motion in the Justice Secretary and by consequence, Salmond and shoal, seems at least deferred, if not entirely doused.

This, it is submitted, is only proper. Whatever one makes of the final decision, it is difficult to argue that it does not fall within a zone of reasonableness. Indeed, the emerging focus on the decision-making process seems to underline the falling political temperature. Unexpectedly, others seem to have navigated themselves into hot water. One would assume, after the high pitch of his howls from the wilderness of the weekend, the august personage of Jack MacConnell might dust off his razor and wobble into Holyrood for yesterday’s statement. Not a bit of it, apparently. Pretty rum stuff.

Equally, I’m astounded by the number of commentators - blithely, bullishly - suggesting that ministers – both Scottish and British – should have taken any number of illegal expedients to prevent the release. In the European Court of Human Rights, the United Kingdom has been taken to task more than once for invading the liberties of its citizens without a legal basis. Exerting power while relying on conventional norms, without law’s publicity, its sanction and precept, is executive arbitrariness defined. Other villainies may subsist in a fully regulated system, certainly. However, its not just trite stuff to caw for illegal “intervention”. Like U.S. “chickenhawks”, veins pulsing at the prospect of war, for the sake of a sad squirt of testosterone and the smug self-regard of the gloatingly outraged, thoughtlessly, the idea that we ought to live as a nation of laws is recklessly chucked. On which note, something about the legal regime, since this is a quasi-blawg. The relevant provisions on ministerially-ordered release are to be found in the Prisoners and Criminal Proceedings (Scotland) Act 1993, section 3:

3 Power to release prisoners on compassionate grounds

(1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.

(2) Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.

(3) The release of a person under subsection (1) above shall not constitute release for the purpose of a supervised release order.

Not a lot of law there, is there? That said, a few remarks. If opposition parties wish to do something “constructive” in response to the difficulties and procedural uncertainties surrounding what the decider in terms of compassionate release ought to do, they should consider reviewing the Act. Lack of parameters and the absence of a clear process is hard - both for the minister, and for interested parties. The oft repeated trope is that decisions under section 3 are “quasi-judicial”. I’m not a great fan of our politicians, metaphorically nabbing the wig, pulling on the scarlet robes and fumbling about for gavels. Equally, I believe that our judiciary is under politicised in certain crucial respects. A constructive response to this – perhaps most difficult of cases – is to follow through on the notion that having ministers make contestable decisions in terms of prisoner release may not be the most polite way of ordering the process. While it introduces a note of real responsibility to proceedings, given that the issues involved are actually relatively limited, relatively simple once you’ve set your mind to free the mortally ill, we should not be surprised Holyrood seems to have had little to say yesterday. It is in no position to interrogate the medical opinions. Does not seem to be objecting as such to the idea that those with an estimated three-month frontier to oblivion should be freed. All that is left is the process.

If this process has been so untidy, what might they do in response?

One obvious amending approach to the lessons of the Al-Megrahi decision is that the ‘quasi’ tag should be snipped off, and the power to order release relocated in one of Scotland’s courts. Given the nature of the applications, however, we’d have to be mindful of various things. Firstly, the problem of long appeals – and who has a right to appeal – would have carefully to be addressed. If such a reform became a political necessity, my own preference would be that a judge of the High Court of Justiciary hear submissions from interested parties on the compassionate release applied for, without appeal on the substance of their decision which might stay any ordered release. Brevity of process would be absolutely necessary. Similarly, the presumption in favour of release, predicated on medical estimations about the imminence of death, should strongly be defended against its detractors and retained. Some benefits associated with such a process would be an enhanced measure of transparency. For those who would prefer such issues were excised from the melee of party politics, foisting the choice on some old judicial darling in Edinburgh would go a long way to achieving that.

Alternatively, it may be that it is not possible to whittle down a sufficiently brisk court process. Given the relatively low number of releases, such a reform may seem unnecessary, ministerial judicial acting sufficient in the circumstances. But please, please – if you feel criticism is warranted, oh unhappy tribunes, be constructive for heavens sake! You'd have supporters, even the cosy surrounding architecture of a sound, principled basis for reform. Don’t just bore the hell out of everyone with your gloating critiques and the flattering supposition that all ills would be corrected, if only the august person of Richard Baker or Bill Aitken had been in the Justice Secretary’s office, or Iain Gray was tucked up in Bute House.

There is little point making the argument – nobody will believe you anyway.