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Scotland: Legal Basis for Release of Lockerbie Convict

(Aug. 27, 2009) The release from Scottish custody of the only person convicted of the 1988 Lockerbie bombing, Abdel Basset Ali al-Megrahi, to his native Libya, has sparked a great deal of debate. While some have criticized the move as political or economic in nature, Scottish Justice Secretary Kenny MacAskill has said Megrahi, who is ill with pancreatic cancer, was released solely for humanitarian reasons and that the move was not the result of outside pressure. “This was my decision and my decision alone. I stand by it and I will live with the consequences,” he said. (Minister Stands by Bomber Release, BBC NEWS, Aug. 24, 2009, available at

There are two legal bases for the decision, a law on conditions for the releases of prisoners and a treaty between Great Britain and Libya. The legislation in question is the Prisoners and Criminal Proceedings (Scotland) Act of 1993. This Act is self-described as:

An Act to amend the law of Scotland with respect to the detention, transfer and release of persons serving sentences of imprisonment etc. or committed or remanded in custody; to make further provision as regards evidence and procedure in criminal proceedings in Scotland; and for connected purposes.

The Act establishes compassionate grounds as a reason for release in article 3, section (1):

The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.

(Office of Public Sector Information, Prisoners and Criminal Proceedings (Scotland) Act, 1993, c. 9, UK STATUTE LAW DATABASE,
(last visited Aug. 25, 2009).)

The second relevant document is the prisoner transfer agreement between Great Britain and Libya, signed in London on November 17, 2008, and ratified on April 23, 2009. (Treaty Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Great Socialist People's Libyan Arab Jamahiriya on the Transfer of Prisoners, CM 7540, Foreign and Commonwealth Office website,
(last visited Aug. 25, 2009).)

Like the prisoner release itself, the ratification of the treaty is controversial, as some Members of Parliament have argued that it was rushed through the ratification process too quickly due to British business interests in Libya. A Conservative Member, the Earl of Onslow, said, “[t]his is not a good way to deal with matters of justice. One shouldn't allow whether one has a right to drill for oil in the Gulf of Sidra to have any influence on what is essentially a criminal matter.” (Ministers Rushed Through Lockerbie Treaty, Say MPs, The Lockerbie Case [a blog devoted to the case, quoting an article from THE NEW STATESMAN], Aug. 19, 2009, available at

The British Parliament's Joint Committee on Human Rights has also raised issues about the treaty, concerning such matters as guarantees of prisoners' rights to proper treatment. (See Prisoner Transfer Treaty with Libya, United Kingdom Parliament website, Apr. 15, 2009,