Looking at Megrahi

I have the good fortune to know Kenny MacAskill and to count him as a friend; I am one of many in that position. I have not asked Kenny about the Megrahi case and he has not told me anything, I am no more informed than anyone else about it and perhaps less informed than some. What I can be sure of is that Kenny MacAskill will take the decision on how to dispose of the case before him based on the evidence he has about it and will do so by the book with neither fear nor favour.

I don't intend to try to judge the guilt or innocence of Abdelbaset Ali al-Megrahi, that's not within my grasp, nor do I intend to balance whether his case was proven or not proven - that's a matter for the court to decide based upon the evidence presented to it and the performance of the players who perform before the court. Courts don't, after all, get to the truth of the matter nor is justice dispassionate - human beings are involved. I'll wait, too, to hear what Kenny MacAskill has decided rather than seek to second-guess him.

A couple of things have grabbed my attention over the past few days of intense and fruitless speculation about this case, though, and I'd quite like to get them off my chest:

The speculation that the Scottish Government put pressure on Megrahi to abandon his appeal so he could go home: Firstly, if he's being sent home on compassionate grounds it doesn't matter whether there are outstanding legal proceedings. Secondly, Ministers would also have to persuade the Crown to drop its appeal against the leniency of his sentence in order to clear the decks. Thirdly, that course of action would require that his solicitors would be involved - they, after all, have a duty to protect their client's best interests and would have a personal financial interest in seeing the proceedings continue. In order for this tale to be correct there would have to be an awful lot of people not seeing what was in front of them - civil servants, Mr Megrahi's legal team and their staff, Libyan diplomats, Mr Megrahi himself, and, doubtless, his family. That, quite frankly, is taking the suspension of disbelief to ridiculous lengths.

There appears to be some whispers around the edges of this tale that this course of action is being taken to prevent embarrassment to the UK Government. I may be speaking out of left-field here, but I'm fairly sure that protecting the UK Government doesn't feature in the considerations of Kenny MacAskill in the usual course of events - and I'm not even persuaded when the obverse is argued by someone whose judgement I usually trust.

So the claim is that the Scottish Government in 2009 would put pressure on Abdelbaset Ali al-Megrahi to do something it doesn't need him to do, encouraging bizarre speculation and talk of "murky back-channels" by conspiracy theorists hoping for some limelight in order to protect the UK Government of 2001. Simply not credible, is it? Those who think they might have seen some evidence passing in the night should really bring that evidence out rather than just claiming to have seen it. They might otherwise be suspected of being more interested in getting their name mentioned in the media than in pursuing justice.

I have a strong suspicion that Mr Megrahi wants to abandon his appeal because his health is worsening, he wants to see his family before he dies, his government has made an application for prisoner transfer which can't go through while legal proceedings are in train, and his legal team think that this is in his best interests. I think that because his legal team put his worsening health in the public domain, it's fairly common public knowledge about the prisoner transfer request, there's a possibility that a dying man will want to see his family, and I trust most Scottish solicitors will work in their client's best interests - and they'll do so whichever side they're on.

Something disturbing also happened during these past few days, though, and it came from the USA. There's been a horror shouted across the Atlantic at the possibility that Mr Megrahi's case was being considered. There were those asking how it could be compassionate to release him, some were saying even considering it was "vile". It is, perhaps, possible to understand the relatives of victims feeling that he should not be released, but they were joined by the Obama administration, with Hillary Clinton getting on the phone to Kenny MacAskill to press for Megrahi to stay in jail. Prison has three purposes - punishment through deprivation of liberty; rehabilitation to serve society better in the future; and prophylaxis to protect society. Holding a dying prisoner inside during his final weeks cannot satisfy the prophylactic element unless the contention is that the dying man (or woman) intends to go out in a blaze of glory, there seems little point to rehabilitation of a dying person, and so we're left with punishment. The liberty of a dying person is about to be curtailed permanently - just what is the punishment element of keeping them in prison? Our American friends appear to have confused justice with vengeance, compassion is not a sign of weakness, it's a sign of strength, a sign that the system knows how to forgive as well as how to punish. Its use where appropriate shows a maturity and confidence in a justice system which indicates that it serves well in general; judging when its use is appropriate is the difficult task and should be a considered judgement, not a snap judgement. Our justice system should have no place for vengeance, no tit-for-tat, no frenzy of judgement by mob rule (or by what politicians might think the mob wants), it's there to protect and improve society.

Then there's the reaction of some politicians and political advisers. There's Paul McBride, former Labour member, now Conservative adviser, these days being touted as a "top QC", who suggested that Parliament should have been recalled to debate Mr Megrahi's position. If that suggestion had come from Richard Baker I would have understood that it came from a wee lad wanting to be a politician who spoke without knowledge on a subject without finding out anything about it, but this guy is a QC who should know the difference between a parliamentary debate and an issue which falls to be decided by a Minister in a quasi-judicial role. This isn't an issue for political knock-about, it's an issue which Kenny MacAskill has to consider in a fair and impartial manner - or it will, quite rightly, end up in a judicial review.

Likewise, the pomposity of opposition MSPs seeking some media coverage is appalling. The Lib Dems' Robert Brown, for example, also a solicitor, objected to the Justice Secretary meeting Megrahi on the grounds that Kenny MacAskill has to make the decision. Surely anyone having to make that decision should be encouraged to meet all of the interested parties, as he has done, from the families of the victims through representatives of the US and Libyan Governments to the legal teams. He'll be considering medical evidence and the status of Mr Megrahi and he'll be making a decision based on the evidence in front of him.

Some people appear to be hanging onto this case with calls to keep everything going until we know everything about the case, that we can't leave this as the biggest mystery in Scottish legal history. It's no bigger a mystery than the disappearance of, for example, Renee MacRae and her son or the Bible John case or, indeed, the World's End case. The consequences may be larger but the mystery isn't.

This isn't about finding truth - justice isn't - it's about one man having to take a serious decision about the final weeks of another man's life. I think Kenny MacAskill has carried himself throughout this with some dignity and reserve and has refused to allow himself to be dragged into the storm around it. I think that's the right way for the Justice Secretary to be and I applaud him for it. I may have some degree of bias in my judgement here, but he appears to be remaining focused on doing the job properly when other politicians seem intent on cheap headlines.

I'm confident he'll do his job properly and well, and I'd rather have him in post than any of those flinging in their ha'penny worth.