Douglas J. Cusine: Observations on the proposed malicious prosecution inquiry

Douglas J. Cusine asks, among other things, why Justice Secretary Humza Yousaf has said nothing about the malicious prosecution scandal?

In his statement to Parliament about the prosecution of Whitehouse and Clark, the Lord Advocate made three observations. One was that there should be a judicial inquiry, and no one so far has dissented from that view; indeed, it seems to have a very large measure of support, including from Lord Mulholland, who was the Lord Advocate at the time.

The other two observations are more likely to give rise to differing opinions. The first was that the person appointed to chair the inquiry should be from outwith Scotland, presumably because such a person would be seen to be more independent than, say, a retired Scottish judge. I am not convinced, given the judicial oath. However, it is not only important, but imperative that the person who chairs the inquiry has a knowledge of, or gains quickly sufficient knowledge of, how the Crown Office and its prosecutors operate.

This is no criticism, but those of us who have experience of the courts but have not been prosecutors have to rely on experience gained from prosecutions, or information from those who have been prosecutors, or perhaps textbooks or articles. These are a poor substitute for knowing what it is like “at the coal-face”. For example, I do not know whether a newly-appointed advocate-depute would be given the papers for a murder, a rape, or a fraud case. (It is arguable that a murder case would be the least difficult of these.)

I assume that the new AD can go to a more experienced colleague for advice, but I do not know whether there is an established practice, or “pecking order”. Furthermore, I do not know in what circumstances an AD must, or should, consult with one of the Law Officers and whether following such a consultation, the AD remains responsible for the subsequent progress of the case, or whether that progress is directed/dictated by the Law Officer. What I do know is that whoever makes the decision or decisions is anonymous but I assume, but do not know, that there is a mechanism for identifying the persons involved. Anyone who had been an AD would know the answers immediately. No doubt there are many other things about the system of which I am ignorant, but for someone from another jurisdiction, I could imagine that the learning curve could be steep. Counsel could be appointed to assist the inquiry on this and other matters.

The third observation made by the Lord Advocate was that the commencement of the inquiry should be delayed until the outcome of other matters relating to the case. I am not convinced, particularly if these are civil rather than criminal cases. The case has cast an unfortunate shadow over our prosecution system and public confidence in it will have been shaken. There are those who no doubt, have a view that the system is corrupt: numbered among them will be those who have been convicted of an offence however trivial or serious. Leaving their views aside, what is vital is that the members of the public are told why this stare of affairs came about and are-assured on at least 2 matters: (a) that mechanisms are put in place as soon as is possible to ensure that what happened in the case never occurs again, insofar as it is possible to achieve that; (b) that those who instituted the prosecution, and those who continued with it, are identified and their roles and decisions made clear. It is essential also for those in the Crown Office, but who were not involved to have whatever cloud may be hanging over their reputations, removed. For me, these considerations outweigh any suggestion that there should be a delay.

Some may think that the Lord Advocate is trying to determine who chairs the inquiry and when it should start. It is not for the Lord Advocate to decide on anything other than an internal review. The responsibility for setting up an independent inquiry lies with the Scottish government and primarily with the justice secretary, who, as far as I know, has not yet made any public statement. Why? The government has the responsibility, among other things, to frame the terms of reference which has to be done with great care, decide on the person to chair the inquiry and when it should commence. It would be entirely unsatisfactory, and would frustrate the whole purpose, if the inquiry did not have the power to compel the attendance of witnesses and the production of documents.

In the view of some, the Salmond inquiry has been hampered by the absence of these two powers. It is not in the government’s interests and certainly not in the public interest for any hurdles to be put in place which would prevent the inquiry getting to the very bottom of this matter and to be able, if appropriate, to point the finger at whoever brought this unfortunate affair about. It would also be important that any recommendations for change are debated in Parliament as soon as possible after the inquiry has reported.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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