Wednesday, 9 July 2014

Blushing with shame at the behaviour of the Crown Office

[This is the headline over a contribution by Len Murray, one of Scotland’s most distinguished solicitors, to today’s edition of the Scottish Review, written in response to an earlier article by the editor, Kenneth Roy. Len Murray’s piece reads as follows:]

Kenneth Roy's splendid article on the hapless Dr David Fieldhouse (11 June) makes a reader blush with shame at the behaviour of the Crown Office. That behaviour, however, should come as no surprise to any of us. 

I am member of Justice for Megrahi and indeed a member of the Committee of Justice for Megrahi. In September [2012] we wrote in confidence to the justice secretary Kenny MacAskill making certain allegations. Some 12 days later, before any reply had been forthcoming from the Justice Directorate, the Scotsman newspaper published a response from the Crown Office in which we were pilloried for having made 'defamatory and entirely unfounded... deliberately false and misleading allegations'.  The article went on to suggest that we had accused 'police officers [and] officials [of fabricating] evidence'.

That ill-tempered scandalous outburst has and had no foundation in fact whatsoever and it was made before any investigation had been made into what we said to the justice secretary.

To make matters worse – if that were possible – on 21 December [2012], the Times (Scotland edition) carried an interview given by the lord advocate to Magnus Linklater. Not only did the lord advocate, with a total disregard for the facts, repeat those scurrilous outpourings from the Crown Office, but he went on to add that we had levelled criminal accusations against the judges and/or the lord advocate of the day. We had done no such thing.

But that is not all. When the relatives of the victims – yes, the relatives of the victims, not Megrahi – lodged an application to the Scottish Criminal Cases Review Commission earlier last month, the Crown Office had the effrontery to say: 'The evidence upon which the conviction was based was rigorously scrutinised by the trial court and two appeal courts...'. Totally misleading. They know perfectly well that in the first appeal the court held that they were barred from considering the evidence in view of the grounds of appeal which had been submitted on behalf of Megrahi; whereas the second appeal never reached a hearing because Megrahi abandoned his appeal.

'Rigorously scrutinised'? Not even looked at as the Crown Office know perfectly well.

But even that is not all. It would appear that the application to SCCRC contains new evidence and new allegations which have never emerged before. One might expect, indeed one is entitled to expect from the Crown Office, a measured and considered response like: 'We shall investigate any new allegations thoroughly and put the result of our investigations before the Court'. Some of us might consider that their duty – but no, we get an outburst showing that closed mind which, it seems, is typical of our Crown Office when the name Megrahi is mentioned: 'We will rigorously defend this conviction when called upon to do so'. No mention of any investigation or even a look to see what is in the application, nothing but the closed mind.

When I was being interviewed more than 50 years ago by the court partner of the firm to which I would soon be indentured as a law apprentice, I remember being told: 'Find out the facts before you make up your mind'. What a pity that our lord advocate and his cohorts at the Crown Office apparently have still to learn that elementary lesson.


  1. That's not right. It happened in 2012, not 2013. The dates are all a year too late.

    (How time flies when you're having fun.)

  2. Thanks, Rolfe. I've now amended the text. While copying and pasting, I never noticed the error.

  3. Maybe someone needs to tell the Scottish Review?

  4. Dear All,

    I take full responsibility for providing Len with the dates, and, I can assure you that they were accurate to within the millisecond. They may be viewed on an earlier blog on this site, or perused at the end of this comment.

    It is a rare thing indeed to encounter the likes of Robert Black, Len Murray and the late, and much lamented, Jock Thomson (all JFM Committee Members). Individuals, who regard, and in Jock's case, regarded, the law as a service, a calling, and not simply political device. We should be immensely proud of these people.

    Where are their replacements? How much longer must we endure the likes of those apparatchiks who have run COPFS for far too long and developed a such a severely unhealthy relationship with the Justice Directorate that it reeks of mildew and much worse.


  5. Chronology of events, from 13th September 2012 to 20th February 2014, covering the police investigation of the Justice for Megrahi allegations levelled at Crown, police and forensic officials

    1. On 13th September 2012, JFM submitted a private and confidential letter to Cabinet Secretary for Justice Kenny MacAskill in which we lodged 6 outline allegations against Crown, police and forensic officials involved in the Lockerbie investigation and the Zeist trial of Mr al-Megrahi for the downing of Pan Am 103. We added that he give ‘serious thought to the independence of any investigating authority that’ he appoint, and that any such authority should be someone from ‘outwith Scotland who [had] no previous direct or indirect association with Lockerbie or its ramifications’. Furthermore, we stated that a document detailing the evidence to support our allegations would be supplied to whomsoever was appointed as investigator.
    2. On 25th September 2012, before any reply had been forthcoming from the Justice Directorate to our private and confidential letter to Mr MacAskill, the Scotsman newspaper published a response from the Crown Office in which we were pilloried for having made “defamatory and entirely unfounded ……. deliberately false and misleading allegations” and suggested that we had accused “police officers [and] officials [of fabricating] evidence”. At no time have we accused anyone involved in the Lockerbie investigation or any subsequent legal process of fabricating any evidence.
    3. On 8th October 2012, Mr Neil Rennick, Deputy Director of the Criminal Law and Licensing Division of the Justice Directorate, responded to our letter on behalf of Mr MacAskill. This response afforded us one choice, namely: to submit our allegations to Dumfries and Galloway Constabulary and, by dint of that, to COPFS for investigation. In other words, to two of the bodies that our allegations were being levelled against.
    4. On 09/11/2012, we handed over our detailed evidence for the, by then 8, allegations to Dumfries and Galloway Constabulary for the attention of Chief Constable Patrick Shearer, SIO for the case.
    5. Accompanying a letter dated 19th March 2013, an updated and expanded addendum to the allegations, which covered luggage positioning in container AVE4041, was received by DCC Shearer.
    6. On 21st December 2012, Lord Advocate Frank Mulholland gave an interview with Mr Magnus Linklater in the Times (Scotland Edition) in which he reiterated the COPFS criticisms of JFM published in the Scotsman (25th September 2012) adding that we had levelled criminal accusations against the Judges and/or the Lord Advocate involved in the Zeist process. It is plain from both our submission to Mr MacAskill and our subsequent detailed evidence that we had done no such thing.

  6. 7. It took until 16th April 2013, 5 months later, before we were invited to a preliminary meeting with Mr Shearer (DCC of Police Scotland by then). This meeting went no further than outlining the basic procedures that would be involved in the course of the investigation, ie: reading the evidence presented by JFM, information gathering, interviews etc. DCC Shearer also stated that we would not be privy to any report submitted by him to COPFS. For ourselves, we made it clear that whilst we would cooperate at all times with his investigation, we would be doing so under protest since we did not feel that the Police Scotland could be seen as a disinterested and independent authority in this matter. Moreover, we requested that we be supplied with regular updates on the progress of the investigation
    8. It took a further 4 months, with no intervening updates, before we received a second invitation to attend Cornwall Mount from DCC Shearer. The purpose on this occasion was to interview those of our membership who spoke to the individual allegations. These interviews were conducted on 16th and 19th August 2013. On the 16th August, DCC Shearer told us that having identified a possible conflict between our allegations 5, 6 and 7 and the Crown's 'live and on-going' investigation, he had consulted the Crown Office on the matter and received authorisation to drop them from our investigation for the time being. When we asked him what the apparent conflict was, he refused to provide this information. He was then asked who the SIO for the Crown's investigation was: he also refused to provide an answer to this question. JFM provided him with answers to the questions he posed regarding the evidence for our other 5 allegations.

  7. 9. In a letter to the Justice Committee of the Scottish Parliament, dated 24th September 2013, for a Justice Committee being convened to consider JFM Petition PE1370 held on the same date, DCC Shearer stated that he was “confident that the deferment [of JFM allegations 5, 6 and 7] [would] only be a matter of weeks as [he then understood] that the point of conflict with the live investigation [would] then be resolved”.
    10. In early October 2013, DCC Shearer retired from Police Scotland.
    11. On 4th November 2013, DCC Richardson informed the Justice Committee: “I have to advise you that the Senior Investigating Officer has confirmed to me that the conflict between the two investigations still exists and whilst no definite date can be provided when that situation will change, it is assessed as still being in weeks rather than months. The only undertaking that I can provide at this time therefore is to update you accordingly as and when that conflict has been resolved.”
    12. From the date of Mr Shearer’s retirement until 14th January 2014, when JFM telephoned Chief Inspector Sturgeon of the Professional Standards Department of Police Scotland to ascertain who had been appointed as Mr Shearer’s replacement as SIO, we received no updates from Police Scotland. At the time of the phone call, Mr Sturgeon was unable to confirm who had been appointed and that a meeting was due to take place the following day, 15th January, to discuss such an appointment.
    13. On 31st January, Chief Inspector Sturgeon received a 9th allegation and an addendum for allegation 8.
    14. On the 17th February 2014, JFM received notification from Detective Superintendent Stuart Johnstone that he had been appointed SIO of the JFM allegations. This he also submitted to the Justice Committee for the consideration of PE1370 to be held the following day, 18th January 2014. In his communication, he stated: “With regards to your [JFM’s] question as to whether there has been any change in relation to allegations 5, 6 and 7, I can advise that recent developments in the live investigation have resulted in the conflict previously highlighted by former Deputy Chief Constable Shearer remaining unresolved for longer than expected. It is currently anticipated the conflict will be resolved before the end of March.” Detective Superintendent Johnstone was also unable to supply any information regarding how many officers were currently working on the case or what stage the investigation was at. Nor was he confident of being able to provide us with definitive updates on these questions in the near future since these matters were under review.
    15. In a letter to the Justice Committee from Chief Constable of Police Scotland Sir Stephen House dated 20th February 2014, Sir Stephen stressed that the current estimate for a resolution of the conflict between allegations 5, 6 and 7 and the live investigation was “still an estimate based on current information and may be impacted on depending on what further developments emerge in the case.” He also stated that, in relation to how many officers [had] been working on the allegations since Mr Shearer retired “the reality is that no further investigation could take place because of the conflict with the live investigation.”

    2nd April 2014: Tulliallan Conference

  8. To be fair to Chief Constable of Police Scotland Sir Stephen House and his appointments of Deputy Chief Constable Livingstone, Detective Superintendent Johnstone and other officers, matters have now progressed in a manner which seem to have developed with Police Scotland previously not experienced in our dealings with with JFM's prior dealings with Scottish officialdom. Our relationship is more positive than ever before, and, we feel as if we are making constructive progress. The crunch, of course will come when any submission may have to be made to Chambers Street.


  9. "Our relationship is more positive than ever before, and, we feel as if we are making constructive progress. The crunch, of course will come when any submission may have to be made to Chambers Street."

    I regard you as anything else than naïve, so I hope you will succeed to punch a hole in my prejudice. Being right all the time can get boring, you know.

  10. Dear SFM,

    Oh, I have my moments, I can assure you.

    Overall though, during the intervening years since the founding of JFM in the latter half of 2008, I think we have achieved quite reasonable results in terms of keeping the issue alive.

    The attitude of COPFS and the Justice Directorate has certainly always been nothing more or less than predictable. To counter that, however, we have benefited hugely from our Signatory Membership and Friends of JFM. Furthermore, the parliamentarians on the Justice Committee and the Public Petitions' Committee have done us proud, sometimes at very awkward times indeed. Moreover, we are also most appreciative of the attention given to our cause by members of the Fourth Estate, editors and journalists alike: particularly those in Scotland.

    With respect to our relationship with the police, it is fair to say that our rapport with Mr Shearer was never an entirely comfortable one. Nevertheless, and call me a victim of naïveté, please do, whilst I always hope for the best, I invariably expect the worst in this game, particularly when it comes to COPFS, the Justice Directorate and the judiciary. My take has always been to trust folk until one can’t, ie: one chance. There is a basic principle implicit in the JFM Constitution: comply or die. Our opposition know that we don’t dance the Tango. This is not some casual threat for we have never hesitated to expel those who wish to disabuse or manipulate us for their own ends from our organisation. With great good fortune, there have only been two individuals who have failed to recognise this: with the inevitable result.

    We have some supremely knowledgeable and experienced people from both sides on the JFM/Police Scotland Liaison Group. For the first time, we now feel that Police Scotland fully appreciates that we are not going to go away and are in this for the long haul. My personal opinion of Sir Stephen House and his officers is that I trust them to do their duty openly and honesty.

    As I mentioned before, the crunch may come if Police Scotland identify grounds for charges and submit them to COPFS. Mulholland will then have to prove himself to be a contortionist of some considerable talent to fight his corner. Let’s face it, he is facing a total of nine allegations of criminality, PE1370 and a third appeal against conviction now.

    Please do not consider what I have written here as any form of criticism of what you, yourself, have written. It is purely intended to be my own personal perspective on the current situation.