MEETING WITH SENATE DELEGATION - 16 SEPTEMBER 2010
Participants:
Nikki Brown, Deputy Director Criminal Law and Licensing, Scottish Government (NB)
George Burgess, formerly Deputy Director Criminal Law and Licensing, Scottish Government (GB)
Kevin Pringle, Scottish Government (KP)
Representative of the Office of Senator Robert Menendez, United States Senate ("Menendez's Representative" - MR)
Representative of the Embassy of the United States of America (observing)
NB: Meeting with officials offered as a courtesy by the Scottish Government to assist investigators working for US Senators to understand the background to the decision by the Cabinet Secretary for Justice to reject the PTA application and to grant compassionate release to Al-Megrahi. Officials not in any sense giving evidence to the Senate.
MR: Understand the devolved responsibilities of the Scottish Government. Recognition of Scotland as victims of the atrocity and noted that the Scottish Government has been dealing with the aftermath for a long time. Expressed the gratitude of the Senators: the heated rhetoric makes it all the more appreciated that the meeting has been offered. Expressed appreciation to Scottish Ministers.
Better understanding wanted of Scotland's perspective and mindset. Hope that a face to face discussion will engender a better understanding of the decision. Acknowledge the parameters of the discussion.
Want to focus on two issues: how Al-Megrahi was released? and why? Commercial concerns? BP involvement? Medical position?
Would like to understand the chronology of the process, starting in November 2008.
GB: Al-Megrahi made his application to the SCCRC in 2004. In May 2007, the possibility of a prisoner transfer agreement was being discussed.
KP: To be clear, Al-Megrahi was healthy at that point.
GB: The SCCRC concluded there might have been a possible miscarriage of justice in June 2007. By November 2008, Al-Megrahi was known to be ill. The PTA was still being negotiated. In May 2009, the PTA was signed. Interim liberation was refused by the Court.
GB: In relation to the letter of October 2008 received from the Libyan Government mentioning both trade and Al-Megrahi. That might have been what the Libyans asked for, but what they got was a meeting with officials to inform them of the possible processes relating to Mr Al-Megrahi. Trade was not discussed at that meeting.
MR: The note of the November meeting refers to interim liberation. That comes across as not just informing the Libyans, but encouraging them in a particular direction.
GB: The style of those meeting notes used diplomatic language e.g. they referred to a positive meeting. That doesn't mean that we agreed anything with the Libyans. The meeting set out mechanisms e.g. PTA or compassionate release, which were not constrained by the decision on interim liberation. No question of steering them in a particular direction. Although the meeting covered factual information, the Scottish Government's opposition to the PTA had been clearly and publicly expressed.
KP: It was clear that the words "process" and "procedure" were used routinely. The Libyans, like anyone else, were entitled to an explanation of the legal options. Care was taken to avoid compromising any PTA application, given the very public opposition from the Scottish Government from June 2007 onwards to the possibility of a PTA with Libya.
MR: And Al-Megrahi dropped his appeal?
KP: It was a clear requirement of the PTA - not of the compassionate release scheme - that no legal process could be outstanding.
MR: Was there any sense of what the Crown Office would do with their appeal against the sentence?
KP: The primary focus of Al-Megrahi's appeal was his guilt or innocence. The Crown appeal was on the length of sentence. We were unhappy at the PTA requirement that no legal process could be outstanding because we thought that this could bring appeals to a premature conclusion as a condition of PTA.
GB: The Crown's position was irrelevant to the decision taken by Scottish Ministers.
MR: At the meeting on 18 November 2008 it was suggested that the 3 month limit was not a hard and fast rule, whereas the SPS seems to stress that 3 months was important.
GB: The Libyans had seemed to confuse the two processes. The judicial process on interim liberation doesn't carry across to the Ministerial process. This is what was being explained to the Libyans. The decision would be based on the SPS guidance circular. It was difficult to explain the complexity to the Libyan Government.
KP: The compassionate release process is a very well established process with clear criteria. There is a requirement for a Parole Board report, a medical report and a report from the prison governor. This is in contrast to the procedure that was proposed for the PTA scheme, which other factors appeared to influence eg. BP.
MR: Provided that the criteria for compassionate release are met, it's an automatic "yes"?
GB: The Cabinet Secretary could refuse the application, even if the criteria were met, but in practice there has been no case of a Minister saying "no" where the criteria have been met. Our system has no exclusion relating to the gravity of a crime.
KP: You are correct that it was a Ministerial decision. The Minister could have said "yes" or "no". The position we would like to get to is one where critics accept that whilst they might consider that it was the wrong decision, it was taken under due process.
GB: Any Ministerial decision would be subject to judicial review. If an application for release were refused on spurious grounds, then the Court could overturn that decision.
MR: The nub of the matter is that the prognosis could be so wrong. Do you feel that the prognosis was wrong?
GB: No. The Cabinet Secretary's decision was based on the medical report. As the Cabinet Secretary said in his statement, Al-Megrahi may die sooner, he may live longer.
KP: It remains the case that Al-Megrahi is terminally ill. He may have lived longer than 3 months, but Dr Fraser produced his report in good faith. It would have been invidious and wrong for the Cabinet Secretary to have second guessed the medical report. The Cabinet Secretary was concerned to protect the integrity of the process. He followed the rules, and took the decision on the basis of the advice offered. To depart from that would have been an arbitrary process.
MR: I accept that he wouldn't want to interfere, but was that consistent with the medical evidence?
GB: There was one single report made to the Cabinet Secretary by Dr. Fraser.
MR: Was any other medical opinion commissioned by the Cabinet Secretary?
GB: No. SPS medical procedure was under the control of the SPS. This would include taking account of the range of expertise available. Dr Fraser then summarised the wide range of opinion in arriving at his prognosis.
KP: The procedure is that there is a single medical report. To do anything else would have been to create an arbitrary system.
GB: The Libyan medical opinion was discounted for that reason. We have a process that is followed in every case, irrespective of the prisoner.
MR: At what point does the 3 month estimate become unreasonable?
KP: The point is that it was an estimate.
GB: The prognosis represents a median survival time - by definition some patients would survive less time, some more.
MR: Your note of an internal meeting in July 2009 suggests that treatment options were discussed and a new treatment was mentioned.
GB: As information in the public domain indicates, chemotherapy could only be offered on a palliative basis, not as a cure.
MR: It is concerning that the possibility of chemo was discussed but not embarked upon.
GB: Another treatment had failed. Al-Megrahi needed a period to clear that out of his system before another treatment could commence. The chemo hadn't yet started.
KP: Dr Fraser could only report on the basis of the information and evidence available to him at the time. We can't speculate on what any other treatment may or may not do.
MR: There would be concern if chemo was started after his release. In 2004/2005 two studies showed that if a case is hormone resistant, a period of longevity around 17-19 months was likely.
KP: One of the oncologists has said that the report was reasonable on the basis of the facts.
MR: I would like to speak to him. Perhaps the medical report wasn't up to date.
GB: It is highly unlikely that the medical professionals would have been unaware of research of that kind. We have to remember that Al-Megrahi could have been at a different starting point from patients referred to in the studies.
KP: None of we amateurs can second guess the medical advice.
MR: What conversation with the Libyans was there about the manner of his reception?
GB: The quasi-judicial nature of the decision meant excluding all extraneous factors. Nevertheless, there was no reason not to seek assurances about the reception that he might receive.
MR: The timing of the notification to the US and UK governments?
GB: We confirmed 24 hours in advance.
MR: Should the oncologist not have been the final arbiter?
GB: It was Dr Fraser's report, and his prognosis on the basis of the totality of information available at the time of writing the report.
MR: There seems to be some uncertainty around the prostate diagnosis. Something changed to influence the primary care physician's diagnosis.
KP: Primary care is only one part of Dr. Fraser's overall assessment.
MR: The medical pieces are not adding up and that's what leads to speculation of the "why" e.g. commercial interests, or pressure from Westminster?
KP: Note that the Scottish Government does not have State foreign policy responsibility at the present time. Our Ministers are not politicians of the same persuasion as the UK government.
MR: It is the moral duty of Senator Menendez to get to the bottom of the medical evidence. It's that absence that fuels wild conspiracy theories. Understanding what happened in that critical week between July 23rd and August 3rd is fundamental.
KP: We have highlighted the transparency of the process. There is no doubt about his guilt. The process we have followed predates the current administration. This is enhanced by the decision taken by Dr Fraser and by publication of the all the papers.
MR: Would like to speak to the doctors. Would like to understand that critical week and the importance of chemo.
GB: We have no further information about what was observed in that week.
MR: Invitation stands to the Senate hearing on 29 September. Recognise that this has been an informal conversation. This is not an election matter for Senator Menendez. We hope to find a greater understanding.
KP: Can only reflect on what has been said.
ENDS