Hugh McLachlan: Scots Law faces some serious charges

THE information publicised recently by WikiLeaks regarding the release from prison of Abdelbaset Mohmed Ali al-Megrahi suggests that, all along, the Scottish Government has been telling the truth. He was not released for reasons of commercial expediency. He was released on the grounds of compassion in accordance with what were considered to be the principles and practices of Scots Law.

However, to say that in terms of the prevailing relevant rules, the decision of Kenny MacAskill, the Minister of Justice, was impeccable is not to defend the rules.

Suppose that Mr al-Megrahi had been tried in the normal Scottish manner by a jury of fifteen people rather than by three Scottish High Court judges. Suppose that he had been found guilty by a straight majority of eight to seven or that he had been given a verdict of not proven. Imagine how astonished the global community would have been in such circumstances.

How, for instance, can we justify the Scottish rule that someone can be declared to be guilty beyond all reasonable doubt of a serious offence even if seven out of fifteen members of a jury think that he is innocent? If the doubt is not reasonable why do so many members of the jury have it?

Scotland would seem to be unique in appearing to have a three-verdict system in criminal trials while other jurisdictions have only two. We have guilty, not guilty and not proven. The rest have guilty and not guilty. In Scotland, as elsewhere, the accused person is either proved beyond all reasonable doubt to be guilty or the presumption of his innocence remains undisturbed. On the basis of logic, there seems to be the possibility of only two verdicts. That we have three terms when, logically, only two possible verdicts can be denoted is mysterious. That we persist with such an anomaly might appear to be unreasonably stubborn in the absence of convincing reasons to suggest that we are right and the rest of the world is wrong.

Much of the reaction within Scotland to criticisms of the release of Mr al-Megrahi seems smug and complacent. Rev Ian Galloway, convenor of the Church and Society Council of the Church of Scotland, expressed strong approval of the decision and its rationale. It is, he said, "really important for the fullness of our humanity that we remain capable of showing mercy." He echoed claims made by Alex Salmond and Kenny MacAskill that there is something particularly Scottish about the way the matter was dealt with.

When, one wonders, did this supposed characteristic compassion emerge in Scots Law? In the 16th and 17th centuries in Scotland, it was a capital offence to dabble with or even to purport to dabble with, sorcery, necromancy and witchcraft. Normally, convicted witches were strangled before they were burnt. They were rarely burnt alive. Should this be regarded as a manifestation of compassion?When, with the late Kirsty Larner, I did research on the history and sociology of witchcraft prosecutions in Scotland, I once came across a document that told of a man who was found guilty of having sex with a horse. They executed the man and killed the horse. That was hardly a manifestation of compassion. It was, rather, an awful example of fundamentalist, authoritarian, puritanical zeal.

I do not recognise the description of Scots Law as characteristically or distinctively compassionate. Nevertheless, I would not want our legal system to be more or less compassionate than any other.

Individual people should be merciful and compassionate toward each other and they should forgive those who trespass against them but it does not follow that the state should be lenient to criminals or fail to punish those people who kill other people.

That which can be a virtue in the personal relationships between individual people - such as, say, mercy, forgiveness and compassion - does not always translate into a virtue of public policy. For instance, it would be inappropriate to have a minister of defence who was forever turning the other cheek or, say, a minister of justice who, out of compassion, set all prisoners free. Furthermore, the fundamental virtues of a good legal system are justice, impartiality, fairness, dispassion and rationality. They can clash with compassion.

In order to morally justify an action, it is not enough to say that it was done for a moral reason. It must be the right moral reason and the action must be appropriate to it. Consider the parable of the Good Samaritan. This morally good behaviour was motivated by and was a suitable response to appropriate compassion. However, not all compassionate reactions are appropriate ones.

Suppose that the injured traveller had been an escaped convict and that he was guilty of raping and murdering children. Suppose that, out of compassion, some fellow traveller not only tended his wounds but also hid him from the authorities in order to prevent his apprehension and his return to jail. The compassionate but misguided fellow traveller might have had sufficient medical knowledge to judge correctly that the injured man was terminally ill and had less than three months to live. This would be no excuse. The compassionate action would be morally wrong.

Often, in public as well as private life, it is crucially important not only what we do but why we do what we do.It is perfectly reasonable to have a rule that gives a minister of justice the discretion to consider releasing prisoners if they are thought to be terminally ill. That is quite different from saying that, on the grounds of compassion, terminally ill prisoners should be released.

It would be shocking if an innocent person were imprisoned in order to further the commercial interests of the country that imprisoned him. However, I would not be shocked if a guilty person who was the citizen of a foreign country were, in unusual circumstances, returned to freedom in that country for powerful commercial reasons. I would find this to be understandable and excusable.

However, I do not find it understandable and excusable that someone who is assumed to be guilty of murdering two hundred and seventy people should be released from prison because he is terminally ill. This is a shocking injustice. The rules and procedures that lead to this outcome would appear to be wrong. At the very least, they require an elaboration and a justification.

If you murder two hundred and seventy people, no punishment will be enough. You will not live long enough to serve an adequately long prison sentence no matter how long you live. That, at some stage, you have only a few months to live would not be a justification for ending that punishment. Compassion would be an appropriate motive for giving you medical treatment if you became ill but not for setting you free.

If Mr al-Megrahi was wrongly convicted, he did not deserve to be in prison. He should have been released - but not on the grounds of compassion. He should have been released on the grounds of justice.

If, as Mr MacAskill's decision assumes, he is guilty of killing two hundred and seventy people, he deserves to be in jail whether he is terminally ill or not. His terminal illness is irrelevant to the justice of his punishment. To give him medical treatment is an appropriate compassionate response.

To release him from prison out of compassion is inappropriate. It is unethical.

When Scottish courts make what appear to be astonishing decisions or do what appear to be astonishing things, we should consider changing our rules and practices unless we can offer a convincing defence of them. That the precepts of Scots Law are characteristically and distinctively Scottish is not a justification of them. The point is to get things right.

• Hugh McLachlan is Professor of Law and Social Sciences, Glasgow Caledonian University