Compassion or justice? How our ministers make decisions

Published on Sunday 25 October 2009 21:06

JIM Wallace did it nine times when he was justice minister between 1999 and 2003. Cathy Jamieson also did it nine times, during her tenure in the post between 2003 and 2007. Neither of them can remember any of the compassionate releases they authorised of a dying prisoner getting into the news at all, far less generating a media storm. Certainly, nobody then kept a running tally of requests granted against those refused.

The compassionate release of Abdelbaset Ali Mohmed al-Megrahi in August on the authority of justice secretary Kenny MacAskill has generated an avalanche of comment on a procedure that virtually no-one knew existed two months ago.

Mr MacAskill has been in the firing line ever since and is acutely aware that his political standing is now inextricably bound to Megrahi's longevity. The minister will hear about it every day that Megrahi survives beyond three months.

Reflecting on their experience, both Jim Wallace, now in the House of Lords, and Ms Jamieson anticipate a steady increase in compassionate release applications as the prison population continues to grow and also includes more elderly prisoners serving long sentences.

Before the establishment of the Scottish Parliament in 1999, decisions on compassionate release were taken by the secretary of state for Scotland.

Lord Wallace says he hadn't particularly registered that this would be one of the jobs he would have to do. "In a general sense, I was aware there were a range of executive responsibilities that required the justice secretary to act in a 'quasi-judicial' capacity," he says.

"As a lawyer myself, I had a fairly good idea of what that meant in terms of duties and procedures. The reality was, though, in my first years the main call on my quasi-judicial judgment was approving release of murderers on life licence. That was a weekly occurrence, but the law was changed and those decisions are now, correctly, a responsibility of an independent tribunal of the Parole Board."

Cathy Jamieson wasn't a lawyer, but feels her experience as a social worker equipped her to make difficult calls. "I'd worked as a basic grade social worker and also as a social work manager," she explains. "It's a job where you have to be prepared to take life-and-death decisions – should a child at risk be removed from its parents, for example.

"When the decision is scrutinised, you have to be able to establish that you did it properly, as well as defend your judgment."

Both Lord Wallace and Ms Jamieson recall the decisions they took on the applications that came before them as demanding but not daunting.

Ms Jamieson says: "The procedure was mostly paper-based. You'd get a written submission applying for compassionate release. Sometimes it was from the prisoner's lawyer or on behalf or the prisoner's family, but they also came from the prison service itself, advising that it could no longer provide end-of-life medical care.

"The file would usually include only one medical report and the views of the prison service. You are free to call officials in or ask for further advice or opinion. But there's no passing the buck. It's up to you.

"I wouldn't say they were easy decisions. You have to think through the implications for the victim's family and also the family of the offender. But you need to draw on some degree of humanity."

Lord Wallace agrees. He says: "You were acutely conscious of the need to balance the interests of justice with the human situation that affected a number of people as well as the prisoner. I took the view in most cases that, no matter how heinous the crime, it was the prisoner who had committed it, not his family, and it is a compassionate move to allow their father or son or brother to die among them. Sometimes they were returning to a family home and sometimes a hospice place had been found close to it.

He continues: "The one that stands out in my memory was of a case in which death was so imminent that faxes were flying throughout the weekend. It was thought waiting until Monday morning might be too late."

While neither had any of their compassionate release decisions second-guessed by commentators, Ms Jamieson expects there may be more questions in the future.

"Sentences have been getting longer and the pursuit of more historic cases has meant more prisoners who are old at the time they are sentenced," she says. "I flagged up the issue some years ago with the then Prisons Inspector, Andrew McLellan, that the prison estate isn't equipped to provide end-of-life medical care or palliative care for elderly, frail, or ailing prisoners."

The Victim Notification Scheme may also be a factor in raising the profile of individual decisions. The scheme was introduced to alert victims of serious crime when the perpetrator is being released and will have to be activated even when the release is because of terminal illness.

Lord Wallace did feel some media backlash when, in September 2001, he rejected an application from Lithuania for the extradition of Antonus Gecas on war crimes charges on the grounds that he was too ill to stand trial.

Nevertheless, Nazi-hunters insisted that Gecas never showed compassion to his victims, so he should not be allowed to die in bed.

Even when a prisoner is released because death is imminent, it is only on a licence whose standard conditions spell out that, no matter how unlikely, he or she will not reoffend or travel abroad and will be supervised by a named criminal justice social worker.

In reflective vein, neither Lord Wallace nor Ms Jamieson has criticisms of the way in which Mr MacAskill went about making his compassionate release decision on Megrahi. They do not necessarily agree with his decision, but are perhaps more sensitive than most to just how exposed the justice secretary is when the buck stops.

Lord Wallace said: "It's unlikely there will ever be a release as controversial as Megrahi, but even in more everyday cases it may be difficult to avoid the suggestion that a decision is political in some way.

"Maybe there is a case for passing the decision to an independent body."

However, Cathy Jamieson adds: "At the end of the day, somebody has to make the decision and be accountable for it."