25 August 2009

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.


  1. Little I disagree with there, but I have one thing bothering me that came up yesterday, and which I have written about on my blog previously. Do you think that he should have visited Mr Megrahi in prison when there was an outstanding application for release on compassionate grounds before him (particularly when there seemed to be no requirement to meet Megrahi in person under the PT treaty - and that PT application could be dealt with quickly due to the outstanding appeals in Megrahi's case)? This makes me uncomfortable due to the impression that could be conveyed (although I agree with the final decision reached).

    My concern is procedural not substantive (although of course the two merge into each other at points!)

  2. McConnell's no show is a fitting example of the petty nature and quite frankly deficient opposition that we have in Scotland.

    If the Megrahi case has shown anything is that the oppotion parties are unfit to govern a sandpit, let alone a nation.

  3. Scott,

    Procedurally, I can see the argument. In particular, it is easy to "read into" the compassionate release process comparisons from the criminal courts. Few would imagine, for instance, that it would be appropriate for a trier of fact - be they sheriff or jury - privately to meet with the accused while in the process of determining their guilt.

    However, I think it is easy too closely to draw the comparison. This isn't really an adversarial procedure, however at variance some of the consulted parties' views on the subject may have been. There being no cross-examination, and no exchange of arguments between viewpoints, I don't find it particularly problematic that MacAskill met Megrahi if he wanted to. Precisely because he wasn't in the same position as a sheriff hearing a case, however quasi-judicial he was feeling at the time.

    Your point about "requirements" does reiterate one of my points, neatly, I think. The absence of protocol can be risky for everyone involved. That said, I agree that one can have reservations about the transparency of the process. Equally, I think exploring the differences between what seems to have been the process and the judicial expedient I suggested indicates that to give a judge the power would be, materially, to alter the process.

    Then we would be in the realms of audi alteram partem.