[Robin McAlpine Blog] Scotland has a problem with its prosecution service

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Scotland has a problem with its prosecution service

Scotland has a problem with its prosecution service, but I’m going to have to go through a fairly lengthy process of explaining why I can say this with confidence while not making any specific allegation of malpractice (other than those already acknowledged).

Here’s the summary; the most important characteristic a prosecution service should have is trust. If there is legitimate reason to doubt that trust is deserved you have a problem. It doesn’t matter if there is no confirmed basis for that doubt; it is enough if there is a legitimate reason to hold the doubt.

There are functions in society which are so serious (like the deprivation of liberty) that it is not enough that they can claim to be acting consistently, professionally and without bias, the service must be seen to be acting consistently, professionally and without bias. On all occasions. If a service hasn’t or can’t give a successful appearance of fulfilling these principles, you have a problem.

The problem with the prosecution system in Scotland is that there is prima facie reason to doubt it. It is led by a member of a political cabinet; the Lord Advocate is a post in the cabinet of the Scottish Government of the day and, as with the other members of the cabinet, it is appointed solely at the discretion of the First Minister.

It needs to be stated at this point that the Lord Advocate has recused herself from the Branchform case and so has taken no part in it. Yet she remains the boss of those who did and can help to progress or hinder their careers. You are never really, truly independent from your boss. You remain working in a prosecution service led by a member of a political cabinet. Be seen to be...

A politically-led prosecution service is a clear breach of the principle of the separation of powers between the ‘executive’ (the government of the day) and the ‘judiciary’ (the legal process of interpreting laws in specific instances). Charging and prosecuting people with a crime should not be carried out via a system or organisation which is led by a member of a political cabinet.

This is pretty universally understood to be a basic tenet of constitutional democracy and it is precisely what is being tested to its limits by Donald Trump in the US right now. In Scotland there has never been separation.

This was entirely illegal under European Union laws and while no-one bothered to raise a case against Scotland while we were EU members it is almost certain that an independent Scotland seeking to rejoin would be forced to split the role of Lord Advocate, which is both the primary source of legal advice to the Cabinet (entirely legitimate) and also the head of the prosecution service (which is not).

That this is constitutionally wrong hasn’t really been challenged by anyone. In Scotland the best way for the establishment to maintain dodgy practices is not to defend or make a case for them but to just not look, to pretend it’s not happening.

All of this is a problem which has been around for a long time. What makes it acute is that in recent years there have been a spate of investigations into and trials involving clear political conflicts of interest. Having a politically-led prosecution service is only problematic in academic, constitutional law terms –  until the point that it starts charging politicians and political figures falling on either side of a party political factional war.

If you have a perceived conflict of interest then any apparent pattern in who is being charged, how, on what basis, over what timescale and with what result is a real problem

That means that if you have a perceived conflict of interest then any apparent pattern in who is being charged, how, on what basis, over what timescale and with what result is a real problem. Do we have such a pattern?

I need to be really clear at this point; I have no legal education (other than in media law) and no real experience of the justice system. What I think does or doesn’t look like a prosecutable offence and what I consider ‘sufficient evidence’ means very little. What you think, what your auntie thinks – none of those things mean anything in legal terms..

That doesn’t mean that a risk of a perceived pattern of behaviour is just fine. It’s not; that is the ‘must be seen to be’ part. That’s the ‘this is why you don’t have a cabinet member running the prosecution service’ part. Let me show you a pattern of behaviour.

In the Salmond trial (a perceived ‘enemy’ of the cabinet) the case could only be pursued on the narrow ‘Moorov Doctrine‘ because the standard evidentiary basis (corroboration) was not met (which was particularly problematic given how many of the allegations related to public places with multiple potential witnesses).

More to the point, the entire case hinged on what was by far the most serious accusation by Woman H. The prosecution service must have known there was a mountain of evidence undermining her testimony (like the fact that she did not appear on CCTV cameras, was not signed into the building, was not on the catering list for the dinner and that there was a very reliable witness who testified under oath that she was not at the dinner she claimed to be or in the building she alleged to have been the location of the allegation).

The case went ahead and lost. Then there was the spurious prosecution of Craig Murray (perceived enemy of the cabinet) on a threadbare case making him the first person ever to be incarcerated based on the vague concept of ‘jigsaw identification’. Then there was the prosecution of Mark Hirst (perceived enemy of the cabinet) that was dropped by a judge in a minute or two so ridiculous was the charge.

Then there was the prosecution of Dave Llewelyn (perceived enemy of the cabinet) for an innocuous social media post (found guilty). All of those moved forward fast. A while back, political opponent of the then-Scottish Executive Tommy Sheridan won a civil case against the News of the World but within months became the first person in a civil trial ever to be investigated for perjury.

He was formally charged just over a year later, prosecuted in a few months and in jail within 18, again the only person in Scottish legal history before or since to be jailed for perjury in a civil trial. By contrast, an investigation into perjury based on the flaky evidence Woman H gave in trial which was roundly disproved was opened, what, four years ago. As far as I can tell it has never been closed.

Branchform is ongoing. I know of strong rumours of timing decisions which, if true, would suggest they had a political component. I have been told reliably that there were fairly unprecedented actions along the way. Equally unprecedented were police leaks that seemed to reveal strong frustration with prosecution service interference. But since a trial is approaching I shall simply say we’ve all seen what we’ve seen and so we’ll all have views on whether what we know would be enough to secure a conviction on the part of those not charged.

We cannot be left with reasonable doubt about the prosecution service, there cannot be real or perceived political conflicts of interest.

What isn’t contentions is that the investigation took a long time to be closed. I don’t know these things but I’ve spoken to more than one person who does who are very sceptical that this was a complex case. Complex financial fraud can take a long time to investigate where there are labyrinths of nested bank accounts, obscure accounting processes and money passing through multiple holding companies.

None of that applies in this case. There is a fairly strong consensus that this case has progressed at a strangely leisurely pace (Salmond was in court within about 18 months of being reported to the police), and it was an investigation into three people who are very much allies of the cabinet of the day.

I can’t say that any one of these decisions is wrong. I don’t know if any are improper or shouldn’t have been made. I said that about ‘the Rangers Case’ right up to the point at which the prosecution service admitted it was a malicious prosecution. So then I waited for the outrage and the fall-out, and to my genuinely amazement, there was none. They paid the big-money payouts amounting to probably £60 million of taxpayer money – and no-one ever spoke of it again.

I wonder if the Scottish establishment knows there is something thoroughly dodgy here. I don’t know, but as a former journalist the words ‘malicious prosecution’ on this scale screams out long-running scandal, public inquiries, heads rolling. Instead it seems that anyone who might have done or said anything about this was away playing golf or staring into the middle distance.

I want to close by offering a warning about what I have written; I know a lot of people who were deeply vested in the Branchform outcome. Personally I moved on a long time ago. It’s ages since I’ve cared whether Sturgeon ends up at a book festival or in Corton Vale, just as long as her thoroughly toxic political influence had gone.

By the time she has testified in court either for or against Murrell and has been aggressively cross-examined by a professional, or if Murrell pleads to avoid a trial, Sturgeon will be finished politically. I don’t care. I have much more significant concerns.

Others are more vested than me, and when people don’t get the outcome from systems they wanted, it is common to assume that the system is corrupt or failing. There are few systems in which they are more vested in the outcomes than a criminal trial. One way or the other, the prosecution and judicial service will leave someone feeling an injustice has taken place.

It is impossible to have a prosecution service which does not drag behind it a chain of unhappy people claiming malpractice. That trail of people are hurt and often deserve sympathy, but they are still sound and fury signifying nothing much. What I have written is just one version of what has happened and others will see it differently.

And that is why I have no reason to be confident that anything is wrong, and yet maintain the view that we have a real problem. The problem is not that anyone is necessarily doing anything wrong, it’s that we have a structural set-up in the prosecution service which makes it look like it is, and there enough in recent activities to raise concerns.

Many senior figures have raised some of these concerns in public meaning the rest of us have reason for doubt. That doubt is supposed to be engineered out of the system and in Scotland it isn’t. Yes it is Westminster who must change the law, but I doubt a Scottish Parliament that requested it would meet any resistance.

The dual roles of the Lord Advocate must be split. We cannot be left with reasonable doubt about the prosecution service. There cannot be real or perceived political conflicts of interest. For the sake of justice in Scotland it is that simple.

Source: Scotland has a problem with its prosecution service