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How to Procure Injustice

The Solicitor General and other grown-ups

I began a lengthy correspondence with various parts of the criminal justice system.
Letters to the Government 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 a head made sore by much battering against brick walls and the incidental satisfaction of making 'them' work for me.
I gained the impression that once a conviction has been gained, the System finds it impossible to believe that it could be wrong, or that its hallowed procedures are faulty.

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 official 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 'Bashful' Bott, the PF, did not bother replying.
Eventually, I was advised by the Public Services Ombudsman to write to her boss, David Howndle, the Area PF for Tayside.
Howndle 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.
Howndle 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 was able 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) 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 Strathmartine in neighbouring streets.
The Area Procurator Fiscal's response to this revealing piece of information was a deafening 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.
There are 2 possibilities, both of which seem equally plausible:
One - she did not bother with the checks because she knew Scottish courts are not that interested in hard evidence - a couple of witnesses telling roughly the same story is all they need.
Two - she knew about the Police Incident Log but chose non-disclosure because it would have undermined her case.

Whichever is true, Bott prosecuted the case without caring that her evidence might be tainted.
Worse, she 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 cannot examine evidence with any rigour unless you, the defendant, are able to employ an advocate (barrister).
You are unlikely to do that if you do not know the nature of the case against you.
And that is something that Scottish prosecutors keep to themselves until the last possible moment.
The Procurator Fiscal's 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.

The case was brought because she happened to have a gaggle of witnesses, a convenient victim and superficially plausible evidence that the defence could not challenge because she kept it under wraps until the last possible moment.

Working to Procure Injustice - Alice prepares her case

This is my attempt to reconstruct the Procurator Fiscal Depute's (prosecution solicitor's) thought processes when she - let's call her Alice - was assigned the case.

The Complainant's Astra, Alice reads, was almost run off the road when another driver 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 bike's registration, a number that could only have been visible for a fleeting moment as 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.
Perhaps, Alice ponders, he was trying to cover up the fact that they knew one other. Nothing wrong with knowing your witness of course, but it makes the case quite a bit weaker.
The opposition is certain to ask if the witnesses were acquainted, so she'd better check.
And is relieved to note 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?
And then there's that bit in the PC's statement about examining the Complainant's car.
The driver must have claimed it was damaged when he hit the central reservation. Yet the officer could only find a scuffed tyre.
Well, reasons Alice, they all exaggerate. The problem is that small 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 - such a reckless driver might well have triggered a speed camera on the A90 and got a ticket - something she could use to ram home her advantage.
But no, it would take time and she might get a bollocking from Betty 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 appears to have 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) 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 look better on her CV.
Alice files a charge of Dangerous Driving and heads for the coffee machine.

For further information on how the Procurator Fiasco's office works, see this news item 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.”

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 Crookwank, were interested in doing good.
Their job was to make up the numbers, tick the boxes and draw their fee.
For their convenience I was expected to plead guilty.

The Law Society of Scotland

Promoting members' interests

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

Of greater interest in the Report were the statements given by Crookwank in response to my complaint.
To put it diplomatically, he denied saying the things he said.
I had a witness to support my side of the story.
He didn't.
The Law Society of Scotland does not call witnesses.
The Law 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 what was a moderately entertaining interlude.

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