I remind members that I am a practising solicitor and a member of the Law Society of Scotland.
At the outset of the debate, my colleague Murdo Fraser, in speaking to the motion, used the word “incredible”. The contents of the subsequent debate and contributions of members from across the chamber have at times been, in the truest sense of the word, “incredible”. Let us recap some of the facts that MSPs have described—and facts are what they are, because I shall limit myself to the cases of Whitehouse and Clark. I shall describe nothing that was not accepted by the Lord Advocate in his statement yesterday, and will studiously avoid anything that has yet to be concluded.
Throughout the afternoon, we have heard that a pair of reputable professionals were engaged to do a high-profile and complex job that was wholly within their expertise and competence. However, in November 2014, they were taken from their homes in England, driven to Glasgow too late to appear in court, held in custody—apparently without a mattress and with the lights on all night—and checked hourly. From then until May 2016, the considerable weight of the Scottish criminal justice system was brought to bear on them.
We now know that not only did their treatment breach the European convention on human rights, but there was malicious prosecution. It was not a simple human error, or an obscure legal mistake, or an error of evidence that suggested a need for individuals to be taken through a criminal process to establish their guilt or otherwise. Our system of prosecution is admitting, unequivocally, that there was a malicious move to throw innocent men behind bars and destroy their reputations.
What does “malicious” mean? Adam Tomkins referred to the suggestion that we somehow have a malicious prosecution, but with no malice. As a result, as we heard yesterday, there was “no criminal conduct”. Whether or not “malice” means what the people of Scotland might popularly think it means, I muse simply on this, as an aside: malice is a personal act, and an organisation cannot be malicious. To draw his conclusions from the investigation that he instructed, the Lord Advocate must have identified one or more individuals with the requisite mens rea for the offence to conclude that the prosecution was malicious. That, as the Lord Advocate well knows, is per the dictum of Lord Justice Bayley in the case of Bromage v Prosser, which defined it as
“a wrongful act, done intentionally, without just cause or excuse.”
That, according to the case of Quinn v Leathem, is “proof of malice”. The Lord Advocate must have identified an individual who, in their duties, acted wrongfully and
“intentionally, without just cause or excuse.”
Misconduct in public office is a crime. The conclusion that there was no criminal conduct surely requires deep exploration by an inquiry, in order to retain public confidence.
In any event, innocent individuals who were carrying out their job lawfully have faced prosecution not because of a suspicion that they had done anything wrong, but because of malicious intent by agents of the state. To the best of my knowledge, there has never been another instance of malicious prosecution in Scots law but, as Murdo Fraser put it,
“we are still no closer to an explanation as to how and why those individuals became victims of a malicious prosecution; who authorised the action against them; or what the motivations behind that were.”
What we do know from the speeches that have been made this afternoon is that the Scottish taxpayer has already paid out about £24 million in damages and legal costs—a figure that I presume does not include the legal costs of the state. We also heard that it is not beyond the realm of possibility that that figure could rise to £100 million or more. Rhoda Grant noted that we do not yet know from which budget that money will be taken. As Liam McArthur stated, that is a “colossal waste” of public money, which, as he also rightly said, could have been spent on education, health or business support. It is truly “incredible”.
In any democracy in which the rule of law is respected, it is essential that there is full public confidence in the prosecution system. The Lord Advocate told me yesterday that
“in this case ... The normal processes that are routinely followed in every High Court case were not followed, but the public should take reassurance”
that
“the prosecution system in Scotland is robust, fair and independent, and is one on which they can rely.”—[Official Report, 9 February 2021; c 35.]
In a powerful contribution today, Daniel Johnson said that
“we have not heard why we should have confidence”
that the same thing cannot happen again. As he went on to say, “there are fundamental questions”. Indeed there are.
The Lord Advocate’s reassurance has been given, absent a forensic public inquiry into what went wrong, who went wrong and why. That is why it is necessary—in fact, it is imperative—that a public inquiry be set up to investigate and shine a light on what on earth happened, why it happened and on whose authority, and that it be full and comprehensive.
That is why we are persuaded by the Labour amendment. The inquiry should be judge led, but under a judge from a jurisdiction outwith Scotland. The Lord Advocate suggests that it is premature to conclude that it need not be a Scottish judge. I cannot agree. Public confidence is key and, as Rhoda Grant put it, it is imperative that there are no questions around legitimacy and independence, in order that the public are reassured that what we have seen can never happen again.
That cannot and need not wait, potentially for years, for all matters to be tied up. Shona Robison is not correct that an inquiry should await everything being completed. The extraordinary circumstances and costs of the scandal mean that it simply cannot wait—yet the indications are that the Scottish National Party disagrees. The SNP intends, I think, not to support the proposition that the state’s seeking to criminalise innocent individuals with malicious intent is a reason to conduct the fullest possible inquiry—an
“independent, public inquiry led by a judge from a jurisdiction outwith Scotland”.
The public demand to know why malicious prosecutions were pursued in defiance of evidence, as the Murdo Fraser motion craves.
To vote in any way other than in favour of the Fraser motion tonight would, indeed, be “incredible”.