Working to Procure Injustice

"Most of what ails our criminal justice system lies in unwarranted certitude among police officers and prosecutors and defense lawyers and judges and jurors that they’re getting it right, that they simply are right. Just a tragic lack of humility of everyone who participates in our criminal justice system."
Dean Strang, quoted by Jon Robins in The Justice Gap, 3 February 2017

"I beseech you, in the bowels of Christ, think it possible that you may be mistaken."
Oliver Cromwell, 1650

I instigated a correspondence with various parts of the Criminal Justice System that would go on for years.
The front-line bureaucrats were, on the whole, polite and did their jobs efficiently. But they were not particularly helpful and their work was rife with mistakes.
The controllers, the people with power and authority, were mostly obstructive, dismissive and often incompetent.
There were a couple of exceptions:
1) the SCCRC's Information Officer was diligent and helpful, though he had no idea that I'd been convicted of a crime by his employer.
2) an Appeal Court judge who diligently examined all the documents. Although she came to the wrong conclusion, she went well beyond anything her colleagues were prepared to do.

The Solicitor General and other grown-ups

Letters to the Crown Office were efficiently forwarded by Nicol Stephen, my MSP, who otherwise performed no useful function.
The Solicitor General of the day, Elish Angiolini, signed many of the replies.
I achieved little, apart from the incidental satisfaction of making 'them' work for me.
I concluded that once a conviction has been gained, the System finds it impossible to believe that it could be wrong, or that its hallowed procedures might be faulty.
Cruickshank, my solicitor, told me on one occasion that Justice is about establishing credibility. It is not, he declared, interested in investigations that look for factual evidence.
On that point he was right: the authorities never troubled themselves to look for corroborating evidence and were not remotely interested in the Police Incident Log I unearthed.
It would have cast doubt on the Crown's version of events and that, I think, would have been a little inconvenient.

Dundee Sheriff Court

"It's Up To You To Prove Your Innocence"

This piece of advice from an officer at Dundee Sheriff Court appears to represent the official position.

Dundee Procurator Fiscal

A Deafening Silence

"The Procurator Fiscal in Scotland", declares the government website, "has an investigative role and can provide instructions and directions to the police in connection with their investigations."

I asked the Procurator Fiscal several times how much, if any, investigation had been undertaken.
Betty Bott, the PF, did not bother replying.
Eventually, the Public Services Ombudsman suggested writing to her boss, David Howdle, the Area PF for Tayside.
Howdle was courteous in providing me with responses to my queries, including one revealing comment that resources are not available to make even routine enquiries in summary cases.
The System will not, in other words, spend money on justice when it thinks it has a cut and dried case - one in which it knows the outcome before the trial.
Howdle also claimed that he was unable to comment on specific aspects of the case because the original papers had been dumped.
He wrote this only 19 months after the trial.
Nonetheless, he felt able to offer his view on the independence of the witnesses in the following terms:
"There is no evidence to suggest that the two witnesses in the first car [sic - it was a motorbike] knew the third witness. They do not live in the same part of the area. There is nothing to suggest that they might have colluded. Why would they?"
I replied telling him that they were born and brought up in a district of Dundee called Strathmartine: one in St Albans Terrace, the other a mile away in Bruce Road.
The Area Procurator Fiscal's response to this revealing piece of information was what I took to be an embarrassed silence: I never heard from him again.
And so, at the end of an exchange of seven letters and e-mails, I was none the wiser.

In particular, I still did not know when Bott had learned about the broken-down white van and whether she had ordered any checks on it.
I don't believe she did: since she didn't care that her witnesses might be liars, she had no need to check their story.
The witnesses had only to say they didn't know one another to absolve Bott from the bother of scrutinizing their statements; corroborating evidence would not be needed; and obvious flaws in their statements, supposing she noticed them, could be overlooked.
Bott overegged the accusations and exaggerated the charge; she knew the case rode on flimsy wheels but prosecuted it simply because she knew she would get away with it.
She could get away with it because Scottish summary courts will not examine evidence with any rigour unless you, the accused, employ an advocate (barrister) to defend you.
You are unlikely to do that if you do not know the nature of the case against you.
And that is something Scottish prosecutors keep to themselves until the last possible moment.

The Procurator Fiscal prepares a case

I have absolutely no knowledge of how a prosecutor puts a case together.
Even so, I offer this reconstruction of the Fiscal Depute's (prosecution solicitor's) thought processes when she - I shall call her Alice - was assigned my case.

Alice opens the box file and tips its sparse contents onto her desk. These few papers - mainly police and witness statements - are all she has to go on.
There is no statement from the Accused driver, just a report from the charging officer that he said he remembered another car tailgating him.
Her own witnesses - she is unlikely to meet them until the day of the trial - gave several statements and there are a couple from the investigating officer.
The Complainant's Astra, Alice reads, was almost run off the road when a driver in a Citroen cut in front of him.
Shortly afterwards, when a motorcyclist pulled alongside, he seems to have realised he had a potential witness.
Because he memorised the bike's registration number.
She notes that he also memorised the number of the Accused's car and wrote it down later on a piece of paper, presumably, she hopes, whilst stationary.
"Not bad going," she thinks. In her experience, witnesses seldom manage to accurately recall even a single registration number.
The Astra driver must have been so sure about his biker witness that he thought it worth memorising the registration, a number that could only have been visible for a fleeting moment before the bike sped off.
But why was he so sure? Nobody stopped at the roadside to exchange details, so was there any other form of communication between them?
Alice scans the bikers' statements. Yes! Both rider and pillion report giving a thumbs-up sign to the driver and receiving a sign back.
Unfortunately, when she looks through the Complainant's statement she can find no mention of him giving a thumbs-up sign in return.
In fact, he actually says he had no contact with the riders.
The opposition is certain to ask if the witnesses were acquainted, so she'd better check.
And is relieved to see a comment by the Astra driver that he did not know the people on the bike.
She continues reading through the statements, noting that the Complainant alone supplied the biker witness's details to the investigating officer.
"Curiouser and curiouser," thinks Alice.
Strange that the biker, after himself being dangerously cut up by the Citroen at the first roundabout and then seeing it perform such a reckless manoeuvre on the Astra did not stop and, of his own volition, call the Police.
Well, you would, wouldn't you?
Then at the end of their statements, the bikers remark that the Citroen undertook them near another roundabout, Strathmartine. Well, thinks Alice, drivers undertake all the time; hard to prove when you're near a roundabout. What the hell: she sticks it on the charge sheet anyway.
And then has a sudden thought: how did the motorbike come to be ahead of a car that was charging along the Kingsway at well over the speed limit? Held up by traffic perhaps, allowing the bike to slip through?
Or maybe the bike was speeding as well.
Maybe? Certainly, more like.
On the line above, Alice reads, the rider says he gave the Astra driver that thumbs-up sign.
She leafs through the papers looking for the Complainant's statement. He says he was shaken up by the incident. Anyone would be. So it's strange to find him zipping along the Kingsway, keeping up with the speeding bike, getting that thumbs-up sign.
Here's something else: this bit in the officer's statement when he examined the Complainant's car.
The driver claimed his car was damaged when he hit the central reservation. Yet the officer found only a slightly scuffed tyre.
Well, reasons Alice, they all exaggerate. The problem is that little lies often turn into bigger whoppers.
And if the defence were to home in on the lie, things could get tricky.
What to do?
For a moment the Depute's hand hovers over the phone as she thinks about calling Gordon in the Traffic Division to ask if anything was recorded on the day in question: the driver might well have triggered a speed camera on the A90 and got a ticket - something she could use to ram home her advantage.
And Gordon might also know something about the broken-down van that her witnesses saw at the locus and reported in their supplementary statements, the ones given to her clerk just after they were told about the Accused's Not Guilty plea at the Intermediate Diet.
But no, it would take too much time and she might get a bollocking from the Bett Bot for wasting it.
Alice sits back in her chair and considers the papers on her desk.
She is an intelligent woman and the case certainly has some odd, even improbable, aspects.
She has no idea what the Accused will say in his defence because the Police did not ask him for a Statement.
But, she reflects, it scarcely matters: her independent witness plus the bonus witness (the girlfriend pillion) will be quite persuasive in court and should make for a nice easy case.
There is just the question of whether it should be a Section 2a or Section 3.
"In for a penny, in for pound," she thinks. A Section 2 would also look better on her CV.
Alice files a charge of Dangerous Driving and heads for the coffee machine.

* For further information on how the Dundee Procurator Fiasco's office operates, see this news item about Fiscal Depute Morag Stuart in The Scotsman.

* See also this case in which a Procurator Fiscal prosecuted an innocent man despite being fully aware that at least one Crown witness must be lying: The trials of William Stirrat. The sentencing judge, Lord Emslie, had this to say in a document questioning the jury’s verdict: “at the outset, it is fair to say that throughout this trial serious questions arose as to the credibility and reliability of much of the evidence led by the Crown from officers attached to the Scottish Drugs Enforcement Agency.”

* See also this case in which Scotland’s Lord Advocate, James Wolffe QC, admitted in the Court of Session that the COPFS maliciously prosecuted several Rangers FC administrators: Former Ranger boss Charles Green was maliciously prosecuted.

My solicitors

A barrister in the Rachel Nickell case said, whilst holding back tears, "Despite what people think, we do this job to do good".
None of the solicitors I consulted - Alex Burn, Ian Woodward-Nutt or Thomas Cruickshank, appeared to be particularly interested in doing good.
It seemed to me they thought their job was to turn up, tick the boxes and collect the fee.
A guilty plea would have suited their convenience nicely.

The Law Society of Scotland

Protecting members' interests

The trade association for solicitors will receive complaints about its members and make a show of treating them seriously. I downloaded its badly designed form and submitted a lengthy complaint about Cruickshank's behaviour. Six months later came a detailed Report that found nothing wrong with his performance: it totally exonerated him. Most of the Reporter's reasoning cited the well-worn "on the balance of probabilities" argument. Unsurprisingly, the "probabilities" were never examined and the "balance" always favoured Crookswank.
This is a  link to an article  explaining who investigates Society members.

Of greater interest in the Report were the statements given by Cruickshank in response to my complaint.
To put it bluntly, he lied about what he'd said to me.
I had a witness to support my side of the story.
He didn't.
The Law Society of Scotland refuses to take witness statements.
The Society gives you the opportunity to appeal against the Reporter's conclusion, so I did.
Three months later, the inevitable confirmation of the decision was delivered, so ending a diverting if predictable interlude.

George Bernard Shaw was right:
"every profession is a conspiracy against the laity".

.