Reflections on Injustice - a look at the characters involved in this farce

"Access to justice for a defendant in criminal proceedings is entirely dependant on the trial process being fair. This extends not only to the judiciary and the prosecuting authorities but also the defence lawyers."
Maslen Merchant - from "Poor defence", published in The Solicitors Journal, Justice Gap series, 2012

In the Lies of the Law

Of the 12 professionals I spoke to about various aspects of the case, 6 told lies.
3 of these, perpetrated by minor officials, can be classed as misinformation.
The other 3, uttered by high profile professionals, were deliberate falsehoods.

Although the Criminal Justice System, as the Scottish Government calls it, claims that justice is its business, justice is seldom dispensed: it is more likely to be dispensed with.
The System takes the scattergun approach to justice, appearing to believe it is better that 10 innocents suffer in order to avoid 1 guilty person going free.
The System can sometimes work well, in which case you might get lucky and obtain justice as a fortuitous by-product.
But because the System's procedures are designed to perpetuate itself, they tend to be biased towards getting convictions rather than getting at the truth.
In my case, those procedures involved deceit and dishonesty, bias, lack of transparency and utter contempt for me, the Defendant.

The end result probably ticked all the legal boxes, but it was neither fair nor just.

A solicitor friend once advised me that without really good evidence, it would not be worth trying to clear my name.
This is because the Appeal Court quashes only a tiny proportion of the few cases that are referred to it.
Rationally speaking, trying to appeal my conviction would be a futile exercise.
He could not have properly understood that the strong drive to prove one's innocence pushes rationality into the back seat.
This drive is borne out by the Scottish Criminal Cases Review Commission's statistics, which are given in detail in this statistical footnote and summarised below:

60% of motoring conviction applications reviewed by the SCCRC were for minor offences such as defective or missing documentation, speeding, using a mobile phone and careless driving.
3% of all the applications to the SCCRC end up being successful at the Appeal Court.

What does this mean?
Well, the offences may be minor, the sentences trivial and the odds against a successful appeal overwhelming, but the applicants know they are innocent and are impelled to make every possible effort to clear their names.
The bureaucrats who operate the Scottish Justice System do not appear to understand this: believing in the fundamental soundness of their System, they imagine that people who protest their innocence are in denial.
Why would so many guilty people bother to play the system by trying to appeal their minor convictions when the chances of success are so vanishingly small?

The Crown's Witnesses

If I bear any ill will, it is directed towards the authorities for not protecting me from the conspiracy rather than towards the conspirators themselves (though 'conspirators' is really too grand a term for a gang of bullies).
Funnily enough, I am grateful to this gang, for these 3 reasons:
1 - I acquired an interesting life experience.
2 - The cost was low - the minor penalties imposed by the Scottish State are nothing compared to the suffering of innocent people wrongly banged up in prison.
3 - Psychopathic bullies like Peter Carnegie often do physical damage to their victims. He didn't and for that I am much relieved.

Motives

After his egregious tailgating, when I began cautiously to overtake him, Peter Carnegie had the opportunity to see my number plate and write it down on a scrap of paper.
If anyone in the courtroom thought this was a potentially risky action, they made no comment.
Writing down registration numbers on the move is unlikely to be the first thing that comes to mind when you've just had the shock, as he claimed, of being forced into the central reservation.
No - Carnegie was fuming with rage and even then was formulating a plan of revenge that involved a remarkable degree of dishonesty and deception.
I get that someone with tantrums he can't control might seek revenge by complaining to the police.
But to continue all the way to court would be so daunting to a normal person that they would surely call a halt before co-opting others into their warped world.

Why Russell Moir would want to get involved is less obvious. There was no discernible

motive, but this does not mean, as the authorities prefer to believe, that there was no conspiracy.
It simply means Moir's motives are unfathomable - and would be to any rational person. I have long since consigned them to a mental box marked 'improbable but not impossible' and given up speculating on what they might be.

And what of Catherine MacGregor, the phantom pillion?
The weakest member of the gang, the two leaders pushed her forward so they could stay in the background and pull the strings:  she alone gave a Precognition Statement and she alone complained to the Police about my post-trial investigations.
She may have believed she was being asked to bear false witness to a genuine incident and thought the end would justify the means.
Or she may be trapped in a controlling relationship, so will always do her boyfriend's bidding.
In a way, and with some reluctance, I admire her courage in going through with the entire, scary process.

The Police

Tayside Police showed that they work with the prosecution and are not impartial investigators.
Despite the seriousness of the charge, they did no investigation whatsoever and did not even take a statement from me.
It wasn't required, said my solicitor: there was "a sufficiency of evidence".
When I was charged, I told the officers that the accuser had tailgated me.
As an unplanned, un-premeditated remark, known as Res Gestae in legal circles, it might have helped my defence had it been given in court. But it wasn't: my solicitor was never told about it. He never asked me what I'd said to the police.
But another remark I made, that I was the driver, was given in court, because it helped the prosecution case.
After the trial, when I went to Aberdeen's central police station to report the perjury, the Desk Sergeant refused to accept it, smirking as he told me to go to the Procurator Fiscal.
He had small eyes set in a round, red face. He might as well have had an upturned nose.
Behind me, there were sniggers from an audience comprised of assorted addicts and riff-raff.
I was trying to report that I had been violated by someone else's actions.
Instead, I was humiliated.
Tayside Police, Traffic Division

Inspector Gordon Taylor, its chief, rang me to tell me about a Police Incident Log but made several inaccurate statements about it.
He said he couldn't interview the patrol officer because his name was not in the Log.
But it was.
He said I couldn't have a copy of the Log.
But I could.
With great reluctance, a redacted copy of the Log was produced.
It contradicted Insp.Taylor by indicating that the breakdown had happened elsewhere on the Kingsway.

My Solicitor from Hell

Crookswank considered himself an expert in road traffic law and was anxious to ensure I knew this.
He told me that courts (Summary Courts) are concerned with establishing credibility (from spoken evidence) rather than looking at facts.
But he contradicted this when he later remarked that Videotape of such incidents would make his job a lot easier.
This, unfortunately, was BD - Before Dashcams. So, no Videotape.
He told me my case was interesting, but not unusual.
But when I told him about the phantom pillion passenger, he said: "that's certainly something that hadn't occurred to me."
So the case was unusual: it was beyond his experience and, as it turned out, beyond his expertise.
To account for the gap in his knowledge, he assumed I was making it all up and accused me of lying.
Believing he had a straightforward case of a guilty driver claiming innocence, Crookswank thought all he had to do was go through the motions of defending his client, then hope to mitigate the inevitable sentence.
His bias against me - it was palpable - made him casual, complacent and careless in the courtroom. So much so that he did a better job at getting me convicted than the prosecuting solicitor.
She, the Fiscal Depute, must have felt the case slipping away from her when her star witness, Carnegie, fluffed his lines, claiming I'd overtaken him twice in succession. Crookswank didn't spot the error, but the Sheriff did and challenged the witness in his stead.
Fortunately for her, Crookswank then did something breathtakingly incompetent: he asked me how long I'd been at the wheel that day. He didn't know the answer, because we hadn't discussed it, mainly because he was more interested in talking about himself than about the case.
But the Sheriff was interested: looking for a reason to convict me, he speculated that my long hours at the wheel meant I would not have noticed the alleged obstructions on the road.
Crookswank was also a disobedient solicitor. His arrogance led him to ignore his client's wishes:
Before the trial, he'd proposed negotiating a Plea Bargain: "It would be a very suitable thing to do because of the risk of going to trial on a Section 2. There is a Section 3 which is a special category of ‘bugger all’ – I’ve got one, the Sheriff's got one, the Lord Chief Justice has one – we all commit careless driving. Careless driving is what I do all the time. It’s not considered very serious – you’d get penalty points".
I told Crookswank, in no uncertain terms, that I would never plead Guilty to something I hadn't done.
He appeared to accept this, but years later, when my file was handed over, I discovered that he had discussed just such a Plea Bargain with the Fiscal Depute (but she had declined the offer).
In court, after the guilty verdict, I told Crookswank he was not to make any Plea in Mitigation.
He ignored my instruction and approached the Sheriff with just such a Plea.
I mistakenly thought my solicitor would do his best for me, the client he was being paid to represent, but he was actually working hard promoting himself, his prejudices and his fanciful self-image.
At the debriefing, he declared: "If I'd been on the Bench I'd have found you guilty".

Click on the quotation marks to read more Crookswank sayings:

Two Opinions for the price of one

Moira C MacKenzie of the Faculty of Advocates had this to say in her Opinion of Counsel letter (my emphasis):
"In my opinion the factual narrative in this case does fall within the definition of careless driving, as specified in Section 3 of the Road Traffic Act 1988 ..."
A paragraph later, she remarked:
"The fact that his driving resulted in another driver having to swerve to avoid a collison could, in my opinion, have resulted in a conviction in terms of section 2 of the Road Traffic Act 1988."

Sailing close to the wind, without a moral compass

Mrs Betty Bott, the Procurator Fiscal, claimed my correspondence, including the initial Plea sent in August 2004, had not been received; she suggested, through her boss (David Howdle), that it might have got lost during an office refurbishment.
But this tall tale did not match remarks Bott made about the refurbishment to BBC Scotland on 3 March 2006: "Dundee district procurator fiscal Betty Bott explained that the work took place during the last six months of 2005".
So, not in 2004, then.
Was Bott lying or was she just a confused old lady?
She credulously accepted the evidence of her fake witnesses without asking for checks. She instigated the gratuitous prosecution of a serious offence without looking for corroborating evidence.
She did not treat me, the Accused, fairly: the Duty of Care that was given to the 'victims' of the alleged crime was not extended to me.
While the Code of Conduct for the English CPS states that, "Prosecutors must be even-handed in their approach to every case, and have a duty to protect the rights of suspects and defendants", there appears to be no such requirement in the Scottish COPFS's Prosecution Code.
Instead, a Joint Protocol between Police Scotland and the COPFS contains the rather more woolly statement that, "We will treat all suspects and accused persons fairly and ethically, and respect their rights under law."
Bott did not even manage to do this.
To complete her disdain for my human rights, she withheld the details of her case against me until the trial.

What if other professions were to follow the Procurator Fiasco in adopting her fast and loose attitude to the truth?
Imagine this scenario:
You are frogmarched to hospital by a police officer.
A doctor comes over and says: “several people have reported you for acting strangely in the street.”
“What have they accused me of?” you ask.
“Can’t tell you,” she says, unapologetically. “But you’ve obviously got a brain tumour. We’ll operate tomorrow.”
“Wait a minute," you cry. "What about a scan?”
“Oh we don’t have the resources to do scans or any investigative procedures. The witnesses have told us all we need to know.”
Later, after the operation, the surgeon stops by your bedside:
“I couldn’t find anything in particular but the reports tell me something must be wrong, so I took out a bit of your brain, the bit that gives you a sense of fairness. We've all had ours surgically removed, so why shouldn't you?”

The Area Procurator Fiddler

David Howdle believes that conspiracies to pervert the course of justice can only be perpetrated by people who live near one another: a naïve belief from an expert fiddler (musically speaking).

The Sheriff of Not Spotting Lies

"In this country we do not require documentary proof.
We rely heavily on oral evidence, especially from those who were
present when the alleged events took place. They [judges] are
guided by many things, including the inherent probabilities, any
contemporaneous documentation or records, any circumstantial
evidence tending to support one account rather than the other,
and their overall impression of the characters and motivations
of the witnesses."
Lady Hale, House of Lords, 2008

Sheriff Grant McCulloch is a man who spends his working life in summary courts where he is the sole decision maker.
He has seen it all, heard it all. He can distinguish truth from lies.
His court wasn't presented with any hard evidence but he didn't need it - his expertise, experience and intuition were enough to inform him who was telling the truth.
But without corroborating evidence, this can be a risky basis for making judgements: you end up assessing the probability / improbability of the events being examined - in effect making an informed guess.
McCulloch had to decide between two disparate stories, which are described in detail here and summarised below, chronologically.
The Crown's story:
Event 1 - I cut in front of Moir's motorbike, so he braked
Event 2 - I cut in front of Carnegie's Astra, so he hit the central reservation
Event 3 - I overtook Carnegie (again)
Event 4 - Moir overtook both of us
Event 5 - I undertook Moir - and then he looked back at me
Event 6 - Carnegie undertook Moir - and they exchanged thumbs-up signs
Event 7 - I undertook Moir (again)
Event 8 - Moir overtook me
The true story:
Event A - Carnegie tailgated me during a road rage incident, overtook, then slowed down
Event B - A motorcyclist, Moir, passed me and pointed at Carnegie's car

McCulloch appears to have forgotten about lex parsimoniae, also known as Occam's Razor, the principle that the simplest explanation for a phenomenon will usually be the correct one.
Events, the principle suggests, should not be unnecessarily multiplied, as they were in the Crown's fantasy scenario.
And, needless to say, a consistent explanation trumps one that is full of contradictions.
Mine should have been the more convincing because it was simpler and contained no contradictions.
But McCulloch was blind to all that.
Despite being occasionally on the ball - he spotted Carnegie's double overtaking error - he failed to spot all the other improbabilities in the Crown's story.
Still, to be fair to the Sheriff, it was my solicitor's job to point out deficiencies in the Crown's case, a task Crookswank utterly failed to accomplish.

Appeal Court 1

Lord William Nimmo Smith was, perhaps, too busy thinking about climbing his next Munro when he scribbled his hasty thoughts on my Extension of Time application.
As a result, the paperwork wasn't completed correctly.
The Solicitor General herself misunderstood what he'd written and had to admonish him.

Appeal Court 2

Lady Ann Paton took the time and trouble to give my second Extension of Time application due consideration.
For that, I applaud her.
But she gets no praise for being blind to the improbable nature of the Crown's case.