Sunday, 4 October 2015

Colin Boyd resigns as Lord Advocate

[On this date in 2006, Lord Boyd of Duncansby QC (Colin Boyd) resigned as Lord Advocate, an office he had held since 24 February 2000, some seven weeks before the Lockerbie trial started at Camp Zeist. An article by Steven Raeburn headed A private life was published some time later on the website of Scottish lawyers’ magazine The Firm. It reads as follows:]

There are many polarising figures in the Scottish legal profession. Take Donald Findlay for instance – many adore him while others dislike everything he stands for. Former Lord Advocate Colin Boyd is another such figure. some consider his time as Lord Advocate as one of great leadership while others think quite the opposite. Steven Raeburn speaks to Boyd to talk about his time in charge and his return to private practice.
You could almost be forgiven for believing Colin Boyd had retired. Or emigrated. Or died. Such is the contrast in his public profile since stepping down as Lord Advocate in 2006, after a six year tenure that saw him dodging bullets on an almost daily basis, as the twin firestorms of the Lockerbie debacle and the Shirley McKie fingerprints fiasco unfolded in the glare of the public arena. His stint in the Lord Advocate’s role had been the longest in modern times, and instead of stepping down and onto the bench, suitably bewigged as a High Court judge – the traditional destination of retiring senior law officers – Boyd instead went into private practice as a solicitor with Scotland’s largest firm, Dundas and Wilson.
Such was the character of Boyd’s time as Lord Advocate that both the timing of his departure and his destination were themselves subject to criticism and accusation. Nowadays, away from the public gaze he can be found shepherding conferences on his preferred area of practice, public law, or quietly ensconced in his Edinburgh office. As the first former Lord Advocate to make this transition – precisely reversing the path of his successor into the role – how is he adjusting to ordinary life behind a desk?
“There are two shifts,” he says. “One is from being a law officer, Lord Advocate, and then from being an advocate to being a solicitor. Occasionally I think “What is happening”, and I used to enjoy some of the perks that went with the job. But I don’t miss being Lord Advocate.”
Unless you are a masochist with a particular love of front page criticism, it is easy to see his point. Six years in the role had given him ownership and responsibility for some of the most significant state legal decisions that any incumbent is likely to see, with the ripple effect still likely to be felt for years to come.
“I had done long enough as Lord Advocate. I would have gone earlier had it not been for certain events, and it was time for me to move on and change.”
“Certain events” is an interesting euphemism for the cumulative stains on Scottish justice left by events such as the outcome of the Surjit Singh Chokhar trial – following which two independent reports identified failings in the way the case was handled by the police and the Crown Office and Procurator Fiscal Service; the Lockerbie trial, returned to the High Court after the Scottish Criminal Cases Review Commission adjudged that a miscarriage of justice may have taken place; and the Shirley McKie crisis, which questioned not only the efficacy of the Scottish Criminal Records Office, but the integrity of the police and the entire Crown Office administration of justice, that seemed unable to admit the possibility of a mistake, whilst failing to bring in a solid conviction in the murder of Marion Ross. The disturbing links between the evidential processes in both cases raised deeper, more disturbing questions about accountability and decision making in the heart of the Scottish Justice system. Boyd was not in office at the genesis of these events, but was responsible for many of the key decisions and most of the execution as they unfolded.
Less noticed during his six years were the introduction of the Sexual Offences (Procedure and Evidence) Act 2002, which aimed to minimise the distress caused to victims of rape testifying against their attackers, and the Bonomy reforms to the High Court, which have largely been welcomed as their effects have filtered through the judicial process. The reforms to the administration of justice appear to be the aspects of his tenure he is most keen to reflect upon.
“When I took over in 2000, I was faced almost immediately with the Lockerbie trial, and that really consumed my first year or so as Lord Advocate,” he says.
“Thereafter, there was a clear need to set about restructuring and modernising the Crown Office and Procurator Fiscal Service. That took a period of time. Once we embarked, we saw it is an on going process. There will never be a time when you can sit back and say it is fixed.”
Notwithstanding the scale of progress achieved in this area, Boyd nevertheless raised a few eyebrows by choosing to enter private practice, rather than the traditional route to the bench at the expiry of his term. The move was perceived by some as an attempt to find a safe harbour while the twin storms of Lockerbie and McKie blew. Boyd acknowledges that the level of press interest was a prominent factor at this time.
“I was the longest serving Lord Advocate for over 100 years. The workload for the Lord Advocate had gone up markedly, and the degree of scrutiny to which I was subject had increased very considerably.”
“I didn’t want to become a judge at this stage, and I didn’t want to go back to the bar and start a practice again. It seemed to me to be a good move to revert to being what I started out in professional life, a solicitor.”
Boyd’s careful modifier suggests that a place on the bench may be an ambition of his that has been merely postponed, rather than cancelled, and it seems likely that a place amongst the elite of the High Court remains his most likely final berth.
“I have never ruled out being a judge as an option. For a variety of reasons – some of them personal and some of them to do with my public profile when I went – I didn’t think it was the right thing for me to do at this stage. [RB: Boyd’s appointment as a judge of the Court of Session and High Court of Justiciary was announced on 1 June 2012.]
“The days when a Lord Advocate could appoint himself as a judge have gone, so I would have had to apply to the Judicial Appointments Board. One of the inhibiting features of that is that, with the best will in the word, it might have got out that I had made an application whilst Lord Advocate, and that might have undermined my position as Lord Advocate. I didn’t think that that would be good. I have no plans to make an application at the moment, and I am fully committed to Dundas and Wilson. I would never rule it out as a possible option for the future.”
Whatever his future plans, it is likely that Colin Boyd will never escape the three pronged shadows of Lockerbie, McKie and Chokhar which are likely to form his legacy, despite his body of achievement and efforts at reform. His successor, Elish Angiolini has firmly established herself as a Lord Advocate of considerable reach and power, although it is too early in her tenure to draw conclusions on her overall impact. In retrospect, Boyd remains positive about his time in the role.
“I do take some pride in the achievements of the restructuring and reforms that we have made, and I came to a point that I thought it was time now that somebody else took up the challenge.”
As others see him
Colin’s wealth of experience and his reputation for innovation were of huge appeal to Dundas & Wilson. His background in planning law and expertise in constitutional law have proved to be an excellent fit with what we were already doing with the public law initiative, and allowed us to pool a wide range of knowledge into a specialist public law practice, capable of tackling very complex, cross-disciplinary infrastructure projects. To move from the Bar into private practice was seen by some as an unexpected change of direction, but it makes perfect sense for D&W and our clients, as well as providing a new challenge for Colin’s considerable talents. Mike McAuley, Chairman of Dundas & Wilson
I always liked him, though. He seemed consistently courteous and reasonable. He was so softly spoken and self-effacing that when he was Solicitor General and we met at some Law Society do, I thought he said he was with the Solicitors Journal. I said, "Solicitors Journal?" and he said, "Solicitor-General" apologetically, as though it was his fault I hadn’t heard him, and not my fault for failing to recognise a senior law officer. This form of modesty is rare at the bar and endearing. Anonymous
Colin Boyd tried to balance what was known to his prosecution team of the famous ‘CIA telegrams’ in the court at Zeist, in the knowledge that the ‘star’ prosecution witness (Giaca) was also a worthless CIA quizzling. His struggles to meet his clear duty to truth and justice and fair dealing with the court and the defence, made a ‘rabbit in the headlights’ look cool and sagacious. Meantime his predecessor in office had made the wise choice of lolloping off to the safety of a secure burrow in the nick of time. Dr Jim Swire
Colin Boyd is a lawyer of the greatest intellect, ability and integrity. He is a man of principle. Despite his understated and modest demeanour he really is a very radical lawyer, a moderniser with a challenging vision for the future of the legal system and for the profession in Scotland. Elish Angiolini, Lord Advocate
As far as Scotland is concerned, he might as well have had a Union Jack shell suit and bowler hat. When it came to the Skye Bridge, he maintained a false line by saying the tolling licence had been examined and found to be in order. It wasn’t found to be in order. He took us absolutely nowhere and didn’t penetrate my consciousness in any positive way. Robbie The Pict
Colin Boyd took a thoughtful approach to every part of his work, always seeking to uphold the fundamental principles of Scottish Justice while being prepared to promote radical changes to improve the day to day operation of the system. Colin was not one for self promotion, and his quiet manner sometimes hid a keen sense of humour. I am glad that I had the opportunity to work with him. Cathy Jamieson, Former Justice Minister
I believe that history will view Colin Boyd’s reign as Lord Advocate as a shameful period where the independence of the Lord Advocate was sacrificed to the will of his political masters.
Two cases dominated his tenure – the Lockerbie Bombing and the Shirley McKie case. In both cases he stands accused of weakness and vacillation in the face of political pressure and a complete failure to act as, ‘the watchdog for justice’ – the role assigned to him by Lord McCluskey.
His dramatic overnight resignation in October 2006 has been seen by some as the captain jumping ship to save his skin. I hope that this accusation will be thoroughly tested during the planned judicial enquiry into my daughter’s case and in any future enquiry into the Lockerbie disaster. Iain A J McKie

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