Issue 46 September 2009 - Lessons from Lockerbie

This article was first featured in Holyrood magazine, August 28, 2009

The decision of the Justice Secretary has inevitably provoked heated debate and it is now time to consider what we can learn and do.
First, was it right for the Justice Secretary to give compassionate release to Megrahi? Yes, the decision was correct for three reasons.
First, it appears to have been in accordance with due process under Scottish law. Secondly, it reflected the values of compassion and human dignity. These are values of which we are proud in Scotland and are also shared universally.
The Preamble to the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in 1948, the 50th Anniversary of which was marked by our Parliament on December 10 last year, declares: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
This shared aspiration for all of humanity came directly out of the experience of the Holocaust, two World Wars and the Great Depression of the 1930s.
Thirdly, applying the rule of law and upholding such values - especially in times of adversity- is the most effective way to defeat
terrorism.
In light of the above Scotland will in fact win friends and respect around the world although of course the anguish of some of the victims’ families causes us all heartache.
However, if the decision was correct the same cannot be said of the process which led to the decision. It should not have been in the gift of any Justice Secretary to make such a decision. Allowing a politician to be the final decision maker over the liberty or detention of any individual is a serious weakness in the system. It unnecessarily and unhelpfully politicises the decision and the decision making process. In fact, political influence relating to the detention of prisoners has largely been removed from our legal system over the past decade. The events of the past few days and weeks have illuminated that the pockets of political discretion which remain are an unhealthy anomaly. A different politician may have made a different decision over compassionate release for Megrahi and that cannot be a satisfactory state of affairs.
Accordingly the exercise of such a decision should no longer be a “quasi-judicial” function but should become a proper “judicial” function. An independent and impartial tribunal or court would be far better placed to consider the evidence and make a decision and so depoliticise the decision and debate.
Secondly, have the human rights of the victims, their families and Megrahi been fully recognised and respected over the past two decades? No. The relatives of the 270 people who lost their lives are entitled to an independent and effective investigation into the circumstances of the tragedy - the state has a duty to investigate
the circumstances and prosecute those against whom there has been sufficient evidence discovered. Here is where the unfulfilled rights of the families meet the unfilled rights of Megrahi.
Compassionate release wasn’t recognition of his “human rights” as such; it was due process under Scottish law. His human right was to a fair trial, including his second appeal. But the UK Government has frustrated and ultimately denied both the families of the victims and Megrahi the full realisation of those rights, in part by its non-disclosure of documentation through a decision made by the Foreign Secretary. By preventing the release of potential key documents the UK Government has caused unnecessary delay in
allowing the appeal to proceed. The length of time taken to attempt to resolve the issue has contributed to the situation we have now reached where Megrahi’s deteriorating health has regrettably brought the appeal process to an end. The UK Government has denied both the relatives of the victims and Megrahi their rights with these actions and the public interest requires that all material documents are now released.
What also emerged during the pursuit of these documents is that Scotland didn’t have a system of dealing with the public interest
immunity certificates. The Scottish Criminal Cases Review Commission also raised questions about the workings of our criminal justice system, and consideration needs to be given to what changes may need to be made. The Scottish criminal justice system, any other, cannot be claimed to be perfect. Thirdly, accepting where we are, what can now be done?
Our Parliament should introduce legislation to make decisions on compassionate release a proper “judicial” function and so replace the politicised “quasi-judicial” function bestowed on us by pre-devolution legislation of 1993. The UK Government should drop its opposition to making public all material documentation. Those concerns about the working of our criminal justice system, as highlighted by the Scottish Criminal Cases Review Commission, should be revisited.
The key lesson from the Lockerbie case is that the human rights of all parties need to be at the centre of the legal process and decision making if the public interest is to be served, and if justice is to be done and be seen to be done.