No legal justification for Megrahi extradition

The legal basis for Megrahi’s release from prison has not changed. In terms of his release on licence, the only threat to that was either reoffending by Megrahi or a breach of conditions should the authorities in East Renfrewshire be unable to establish contact with him. Reoffending has not occurred and they have now located him.

There have been calls from American politicians for Megrahi to be extradited and face another trial in the US, while UK politicians have called for a return to custody in Scotland. Neither of these courses of action is supported by the legal rules and international agreements that governed Megrahi’s extradition to face trial in Camp Zeist or the legislation that governed his release on compassionate grounds.

Underlying these comments, therefore, may be a lack of understanding of the long and protracted negotiations that finally resulted in the extradition of Al-Amin Khalifa Fhimah and Megrahi for trial. The level of negotiation that was involved in the original extradition of Megrahi for trial would make it clear to anybody that if you were to go down that path again, the sheer amount of time involved is something that Megrahi doesn’t have.

Discontent has been expressed by people in the US since Megrahi’s conviction. Some felt the original sentence was too lenient and, indeed, that anything short of the death penalty was unacceptable. Given this, it was no surprise that uproar followed his release on compassionate grounds. This reflects not only a difference in legal rules and process but also a culture within and beyond law.

Whilst, understandably, victims’ families pointed to the lack of compassion shown to their loved ones at the time of death, our legal system allows for those incarcerated with a terminal illness to be released on compassionate grounds. Megrahi has outlived the three months predicted. But it is evident he is terminally ill.

Release on compassionate grounds was also misrepresented as driven by commercial desires. Whilst there was anecdotal evidence that the “deal in the desert” between Tony Blair and Colonel Gaddafi was very much driven by commercial interests and opportunities, and entered into to facilitate the transfer of Megrahi, the only Libyan prisoner in UK custody, the same cannot be said of the rules governing release on compassionate grounds that pre-existed the case in question.

At the end of the day, if the transitional government is saying that no-one is being extradited, then that’s pretty much an end to it. Even if their position was different, and they might entertain such an application, it would raise issues of due process and fairness, given that trial conviction and sentence has already occurred. There’s a humanitarian concern and the practical issue of moving someone who is very ill and in the last stages of life.

l Clare Connelly is director of the Lockerbie Trial Briefing Unit at Glasgow University and a senior lecturer and commentator on Scots criminal law.