Lockerbie: If Megrahi can go free, why can’t a burglar dying of cancer?

One of the central issues in the release of the terminally ill Lockerbie bomber Abdelbaset al-Megrahi is whether, despite the heinous nature of the crime of which he was convicted – the slaughter of 270 people – he should be allowed to die at home with his family rather than in a Scottish jail. Both Gordon Brown and David Miliband are, we now know, among those who take this compassionate line, whatever their motives.

But the suggestion that Megrahi was being treated in any way normally is not supported by the facts.

The release of terminally ill prisoners on compassionate grounds is not at all common in Britain – a point illustrated by the case of Brett Duxbury, a Lancashire burglar diagnosed with inoperable lung cancer. Within a week of Megrahi's high-profile release in Scotland, the Justice Secretary for England and Wales, Jack Straw, denied Duxbury – for the second time this year – the chance to go home to his family.

Instead, the 36-year-old with three teenage children, remains in Preston Hospital, with guards from Lancaster Castle Prison at his bedside. Imprisoned for burgling the home – twice - of an 83-year-old man in 2007, he is not due for release until next January. In the meantime, his tumour has doubled in size according to the latest scan, and his family fear he will die in jail.

By August, Brett Duxbury was clearly in no shape to escape from anywhere

The rules about compassionate release are much the same in England and Wales as they are in Scotland. The secretary of state may consider release on compassionate grounds if a prisoner who poses no threat is expected to die within three months, is severely incapacitated, or has young children with nobody else to care for them.

Out of a total prison population of approximately 85,000 in England and Wales, 48 prisoners have been released on these grounds in the past five years - an average of under 10 a year. Yet figures from the Howard League for Penal Reform show that there were 94 non-self-inflicted deaths in England and Welsh prisons in 2008. Unless they all died from sudden heart attacks, this means it is far more common for the sick to die in jail than to be released on compassionate grounds.

Which is why Duxbury's family and friends, who have a Facebook group with 800 members urging his release, believe that high-profile prisoners stand a better chance than a small-time burglar like Brett.

They point not only to Megrahi's release but also to the recent case of the 'great train robber' Ronnie Biggs, who was allowed to leave prison last month, supposedly to die in the care of his son, Michael. Fighting for his release, Michael Biggs argued that his father might not even make his upcoming birthday. In the event, Biggs was photographed by the tabloids on the big day, and reported to be feeling remarkably better for his freedom.

After Megrahi's release, Duxbury's mother, 54-year-old Alison Whewell, told her local paper, the Accrington Observer: "It's one rule for one and one for another. I thought he [Brett] was coming home with me. I think it's because he's not a mass murderer and is just another prisoner trying to get out. We are gutted."

The degree of criminality is not supposed to be a factor in deciding on compassionate release, and nor should the profile of the prisoner be of any account. But Duxbury's family can hardly be blamed for believing that Biggs, part of a gang that stole £2.6m in 1963 (£40m in current money), and Megrahi, a man convicted of committing the worst ever terrorist atrocity on British soil, seemed to have something going for them that their man does not.

One reason given by Jack Straw for refusing Duxbury's first request in May was that he was seen as a medium-risk prisoner because he absconded from an open prison last year, which added an extra six months to his original five-year sentence for burglary. By August, Duxbury was clearly in no shape to escape from anywhere, but when he appealed again to be freed, Straw apparently had a new reason - that Duxbury wasn’t definitely within three months of death.

Yet according to his sister, Linzi Duxbury, writing on Facebook on July 30, a new scan showed that his tumour "has now doubled in size from 3in to 6in, growing inwards". A week later his mother claimed that the authorities at Lancaster Castle Prison had all agreed that he should go home. She said she also had a letter from his consultant stating that he should be released. For whatever reason, this did not persuade Jack Straw.

If Brett Duxbury makes it through to January, Straw's decision not to free him will doubtless be forgotten. But if Duxbury dies in custody in the next three months, Straw will find it to harder to avoid the accusation that when oil deals are involved, politicians can prove unusually compassionate. ·