One week ago I posted on this blog an item headed Lockerbie, the Lord Advocate and conflict of interest. It contained the following paragraphs:
“The Lord Advocate is the head of the prosecution system in Scotland. All serious (solemn) cases are brought in his name and prosecuted by him or one of his deputes (or, in the sheriff court, by a procurator fiscal who is a member of his department, the Crown Office and Procurator Fiscal Service). In the investigation of crime, the police are legally obliged to obey any directions given by the Lord Advocate or on his behalf.
“Police Scotland are currently investigating serious allegations of criminal misconduct in the course of the Lockerbie criminal investigation, prosecution and trial. The allegations are directed against, amongst others, police officers, Crown Office personnel involved in the prosecution, and forensic scientists instructed and called as witnesses by the Crown Office. The current investigation is a rigorous and professional one. It is likely to be concluded later this year.
“Under the current law the investigators’ report will be submitted to the Lord Advocate. Even if that report reaches the conclusion that there are grounds for prosecution, it is for the Lord Advocate to decide whether any prosecutions should in fact be brought. He could decide not to proceed.”
Here are comments that the present Lord Advocate, Frank Mulholland QC, is reported to have made about the allegations of criminal misconduct that are the subject of the ongoing Police Scotland investigation and about the people who made them: “without foundation”; “defamatory”; “conspiracy theorists”; (The Times, 21 December 2012); “During the 26-year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.” (The Times, 20 December 2014). Mr Mulholland has not challenged the accuracy of the remarks attributed to him in these reports in The Times.
It quite simply cannot be right in a civilised country which makes any claim to take the administration of justice seriously that the decision on whether criminal proceedings should be brought in a particular case should rest with a person who, or with a Department whose head, has already publicly expressed such views about that case.
As I wrote a week ago: “In these circumstances it is submitted that now, before Police Scotland’s report is ready for submission, the necessary steps should be taken to avoid the Lord Advocate finding himself in the embarrassing position regarding conflict of interest that the report’s landing on his desk would place him and the Crown Office in. The police report should rather be handed to, and the decision whether prosecutions ought to follow should be devolved to, an independent lawyer outwith the Crown Office. Our American cousins in analogous situations make use of a special prosecutor or independent counsel. This is one area in which we can learn from them. Why not start putting the mechanism in place now?”