Complete email from Matt Berkley to Kenny MacAskill, 6 July 2009

 


Urgent: Problem in al-Megrahi case; possible solutions


 

 

Matt Berkley <matt@mattberkley.com>

6 July 2009 10:05

 

To: cabinetsecretaryforjustice@scotland.gsi.gov.uk

 

Dear Cabinet Secretary

Immediate problem in al-Megrahi case; possible solutions


Thank you for meeting UK relatives on Wednesday. 

I hope you will forgive my brevity in this letter  -  I make a suggestion you may wish to consider today. 

I am sometimes better at talking than writing.  I am available to discuss the contents and am currently in Edinburgh.  My telephone number is 07868 397699.

Yours sincerely,

Matt Berkley.


30a Dublin St,
Edinburgh
EH3 6NN



....



Summary and Introduction


The immediate suggestion is that you may wish to let Mr al-Megrahi know on the 6th of July if you are minded to refuse transfer, or have significant doubts about transferring him.

Otherwise he may abandon his appeal on or shortly after the 7th of July under a misapprehension.

Scottish Ministers have expressed a preference for the judicial process in the al-Megrahi case to continue.

However, he could drop his appeal at any time for any reason, well- or ill-founded. 

We do not know what he thinks his chances of transfer are in the event he drops the appeal. 
Nor do we know to what extent he might accurately be described as desperate. 

I would make general points that warning a prisoner in such circumstances could be ethically unproblematic and the just thing to do; and based on judicial rather than political grounds.

In this case, letting him know could be in the interests of justice for the prisoner and the relatives, and also in the wider interests of Scottish justice.

To give no indication might let political considerations have greater influence. 


......



You stated on Wednesday that you would not hint that transfer was guaranteed.   

I later wondered, and asked George Burgess, whether the same principle would apply if you intended not to transfer.

He said in effect, "we have thought about the hinting issue more in relation to a decision to transfer".

I said to Dr Burgess that if you wanted the judicial process to go on unhindered and so were minded to refuse the application, I did not see any ethical problem with telling the prisoner in advance, in the hope that he would not drop the appeal.

Since then I have thought that telling the prisoner could be fair and wise if a lesser criterion were met: if you Minister considered there was a significant risk to the prisoner that you would refuse. 

What would I count as significant?   I think I would imagine myself in his position, and make a decision based on what I thought was a fair risk. 




Why is this urgent?


Because the prisoner could drop his appeal very soon.

Mr al-Megrahi could have already instructed his lawyers to abandon the appeal immediately on the 7th if the judges decide to hear all the grounds.

George Burgess thinks the judges are likely to do that.




What are the risks of warning or not warning him?


The aim of transfer in this case, as we discussed, would be improved conditions for the prisoner.  We might say the point of transfer would be a better life. 

Therefore, it would seem that what the process should categorically not do is make conditions worse.  

That would be unavoidable if a receiving state's jail conditions deteriorated after transfer. 

But what is surely contrary to the intention of transfer agreements and legislation is for a prisoner to lose out by being induced by the prospect of transfer to drop an appeal, and then remain in the same country. 

For that to happen to a person who has been allowed an appeal because of the possiblity of a miscarriage of justice would be even more contrary to the intention. 

For it to happen to a person who is terminally ill would be even more so.





What if the Minister changes his mind?


A warning to the prisoner that there is a significant risk of refusal need not delay the process in the event the Minister decides to transfer.  

However, a question arises:  How would the prisoner then know that the Minister's previous warning no longer applies?

I am not sure that this is a problem of overriding importance.

One solution would be to make a second statement.  I am not sure that this raises the ethical questions of a guarantee of transfer being given at the start.  

Such a second statement could be viewed as inducement beyond the general inducement inherent in the implicit possibility of transfer.  However, in this case the function of the new statement would be to update a previous impression which was designed to help the prisoner to avoid worse consequences, rather than simply giving inducement. 

A reasonable answer is perhaps that the alternative - not telling him anything if you are minded to refuse -  seems worse.

The worst effect for him if you do not tell him - and we might bear in mind that the whole point of the transfer process in this case would be the welfare of the prisoner -  could be a dropped appeal and jail in Scotland. 

That would not only be worse for him, but also scupper the aim of letting the Scottish justice system run its course.  It might provoke anger beyond Libya. 

This area  -  regarding change of mind by a Minister - is an area where I might submit further thoughts.




What about the risk that the prisoner reacts to a warning by dropping the appeal?


George Burgess pointed out to me the following:

If the Minister refused transfer on two grounds  -  interests of justice from continuation of the appeal, and the appeal being ongoing  -  the prisoner might drop the appeal.  

If I understand Dr Burgess' point correctly, the risk is that the prisoner could thereby obviate those grounds for refusal, since those grounds are based on the possibility of the appeal continuing.  

A similar problem could apply to a warning.

The function of a warning must be as far as is predictable  - if this is the intention - to dissuade the prisoner from dropping the appeal.  



Possible decision of principle



One option, it seems to me, to discourage the prisoner from dropping the appeal following a warning intended to facilitate the continuation of the appeal  - or following a refusal  -  could be to take, and communicate, a decision of principle to an effect along these lines:

"In the interests of Scottish justice, if transfer is refused or a warning is given that it is likely to be refused, on grounds that the interests of Scottish justice are for the appeal to continue, then even if the prisoner drops the appeal, subsequent application for transfer in substantially similar circumstances will be refused".

It is not clear to me how this might be worse than the alternative.  

The worst proximate consequence from a Minister's point of view might be judicial review, which would not necessarily be unfavourable or an unsolvable problem. 

The situation would not arise if there were grounds for refusal which were not related to the existence of the appeal. 

This is another area where I might submit further thoughts.

Another option perhaps for later could be to refuse transfer and at the same time state the weight given to reasons.  The issues involved and possible solutions could be similar to those above. 




Who to warn?


Technically, as it is the Libyan Government which has applied, it could be more appropriate to warn it than the prisoner. 

But I cannot see anything wrong with saying:

"in the interests of justice, we are making this known to the prisoner because otherwise he may damage both his own situation and the chances of the judicial process which began with the charges eighteen years ago".




Would this be unethical?  Would it be allowing politics into the judicial process?


It is not clear to me how letting him know would be unethical or in any important sense political.  

To keep quiet could let Mr al-Megrahi form or perpetuate a misguided idea.  

The current situation - the decision being in your hands without an indication of your thinking - could act as a kind of inducement for the prisoner to drop the appeal. 

That might be especially likely if he thinks that the timing of the ratification was related to the start of the second appeal, or otherwise thinks that for political reasons the situation is special in his case.

At the moment it would seem that Mr Megrahi does not know what is in your mind, and you do not know what is in his.  For your part, you cannot know how long you have to decide. 

It would be unfortunate if the outcome for Scottish justice were to be decided by one prisoner's ill-informed gamble.

In these circumstances, it seems to me arguable that telling a prisoner he was unlikely to be transferred could lessen rather than increase the effects of political manoeuvring on justice.

The inducement to drop the appeal is still there even if the Scottish Government does not explicitly say "if you drop the appeal we will let you go to Libya".    The inducement is already implied by the situation, and not avoided by avoiding the explicit statement. 




Avoiding undesirable precedents


A concern might be that a Minister discussing intentions or probabilities might give rise to undesirable precedents.

However, this is a very unusual case, not just because of

a) the scale of the original event,

but among other things also because of

b) the SCCRC view that there was a realistic chance of a miscarriage of justice,

c) the prisoner's cancer and the possibility at some stage of compassionate release,

and

d) Scottish Ministers' and UK relatives' expressed desire for the legal process to continue.


.....



Concluding remarks



The appeal could be dropped at any moment, depending on Mr al-Megrahi's mood. 

It would seem unsurprising if 7 July had a high priority for him as a date for dropping it.
He seems not to expect to survive the appeal if the court hears all the grounds.

If you would like to see the appeal continue, then you must act while it is still live.
The only options seem to be decision, statement or delay. 


Communicating either

i) a decision-in-principle or

ii) what you are minded to do

to the Libyan Government and Mr al-Megrahi, or the public, could be legitimate, honourable, and consistent with the principle of separating justice from politics.


It seems to me that the situation regarding compassionate release could be relevant to action in respect of transfer.   I said to George Burgess that perhaps the fact that the SCCRC has said the prisoner may be innocent could give rise to a different attitude to compassion. 

In other words, a Minister might reasonably show more compassion towards a prisoner who was not agreed by all relevant organisations to be guilty beyond reasonable doubt. 

It might also be argued that if there is a significant possibility of innocence, the effects on the prisoner's health from various processes  -  including disagreement between the UK and Scotland over the PTA, the timing of the ratification of the PTA, the appeal process, and the fact of incarceration  - might be judged differently.


 

………..

 

 

Note 1: The comical reference to “brevity” is due to failure to express the idea of “brevity of expression”.  It was an attempt to excuse the lack of flowery language.

 

Note 2:  The statement on the Scottish Government web site that letters of representation would be published as permission was granted has not been true:   I gave permission on 1 September for this letter to be published, but there are no such letters on the web site. 

 

Statements in 2010 by the Scottish Government in the context of inquiries by US Senators to the effect that all significant documents have been released may be questionable, in the context of statements that the representations were considered at the time.

 

 

 

Placed on mattberkley.com 30 July 2010