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Obituary: Hugh Prysor-Jones

Hugh Prysor-Jones’s voice was known to millions around the world and to night owl news-addicts in the UK as presenter of the BBC World Service 24 Hours rolling news programme in the late 1970s and then again, anchoring its successor, Newshour, during the turbulent 1990s.

On the BBC domestic services Hugh was a reporter on the radio current affairs strands, File on 4 and Analysis as well as contributing to Panorama and Newsnight and presenting a host of one-off radio series and single programmes during the 1980s and 90s.

I first met Hugh when we were paired as a reporter/producer team on the BBC Radio 4 current affairs strand, File on 4, in 1986. He was a remarkable colleague: witty, frighteningly intelligent, endlessly energetic and generous with his time and comradeship.

As a reporter he was completely comfortable behind the microphone whether in the studio or on the road. As a journalist, he understood strategy and when interviewing the powerful he could guide the audience through many practised smokescreens intended to hide their plans, ambitions and deceptions.

Hugh was born on 18th January 1949 in Liverpool, the first child of David and Ann Prysor-Jones, both doctors.

 From Bishops Court Prep School in Formby he won a scholarship to Downside Catholic school in Somerset. From there he secured a scholarship to Merton College, Oxford, where he achieved a First in History. He took a postgraduate BPhil in African Politics then spent two years, 1972-74, in the USA as a Harkness Fellow developing his interest in Political Science and African Studies.

Hugh joined the staff of West Africa magazine in the mid 1970s and from there was recruited to the Africa Service of the BBC. When the concept of rolling news emerged with the opportunities created by new communications technology Hugh was one of the three presenters recruited to anchor the World Service’s 24 Hours in 1978. It was a perfect fit for his talents and his passionate interest in international affairs.

On duty during the Falkland conflict in 1982 he spotted that a ‘positive news’ MOD briefing circulated to home journalists inadvertantly gave away some information that could have been of use to the Argentine air force. He made an urgent call to the MOD, While never acknowledged, the story was withdrawn, arguably saving lives and naval vessels from effective Argentine air offence..

Hugh could have been an accomplished academic but was drawn to journalism. He couldn’t resist taking a stick and stirring things up. He had an encyclopaedic knowledge of world affairs and a knack for spotting stories and issues when they were still on the far horizon.

David Levy, now Director of the Reuters Institute for the Study of Journalism at Oxford University, recalls from his time as editor of Analysis in the early 1990s commissioning Hugh and producer, Simon Coates to investigate the new phenomenon of Banking and Derivatives. “Hugh grasped the significance and exposed the risks within these innovative financial instruments more than a decade before they shook the entire western financial system. It was real pathfinding journalism.”

I made several Radio 4 series with Hugh in the 1980s and 90s both within the BBC in London and, after my return to Scotland, as independent productions. He loved testing and challenging the prevailing narrative on current issues.

All of this extraordinary professional activity might be enough for most people but Hugh was also carrying on the West Dorset equivalent of crofting. In 1980 he bought Manor Farm, a thatched farmhouse with a history dating back to the 11th century along with a dozen acres of ground in the village of Stoke Abbott. As projects go, with his partner, Ingrid Hull, it was a major endeavour to make the farm and house fit for the 20th century but without threatening its character or its place in the village.

There were many visitors and animated discussions in the kitchen.

Ill health forced Hugh to give up the bruising Newshour schedule in 1999 but with friends he set up a television production company called TNI and pursued a series of stories, sometimes alarmingly reckless, in the aftermath of the collapse of the Soviet Union and disintegration of the former Yugoslavia.

Hugh had both Welsh and Irish roots through his parents. He had an affinity with Wales and set about learning Welsh a decade or so ago.

He maintained a spectator’s interest in political developments in Scotland. He admired the efficiency of the election-winning machinery the SNP had built over the last two decades as much as he was perplexed at the loss of statecraft skills of the United Kingdom political class in dealing with it.

It’s a matter not of vanity on my part but pride in our collaboration to recall a review of one of our Radio 4 series. The eminent radio critic, Gillian Reynolds, wrote, “It is the names Forsyth and Prysor-Jones on a programme that draw you in.”

Hugh was the best of friends to have. There are many who found him standing shoulder to shoulder at times of difficulty. He was an inspiring colleague and his passing is a painful loss to family, friends and colleagues alike.

David Hugh Prysor-Jones, journalist and broadcaster, born 18th January 1949 in Liverpool, died 5th August 2015, Somerset.

Male suicide. Where’s the outrage?

The April 13th edition of BBC TV’s venerable current affairs programme, Panorama, was quite unusual. The edition was called “A death in the family”, presented by the Radio 4 Today programme’s business correspondent, Simon Jack.

Simon explained that he had proposed the programme to Panorama as he approached his 44th birthday and would be the same age as his father was when he committed suicide in 1989. His enquiry after 26 years was not simply into what brought his own father to take his life but also to try and make sense of the statistic he had discovered during his research that just under 5,000 men commit suicide each year in the UK – 100 men every week. Suicide is the biggest cause of death of young men under the age of 50. Close to 80% of all suicides are men.

It wasn’t a traditional Panorama,” Simon told me when I spoke to him a week after the transmission for his reflections not just on the making of the programme but in the response to it. “There was no big ‘reveal’ or an interview pinning down some wrongdoer at the end. “

What there was was a personal story, his own, finding out for the first time about the last weeks of his father’s life, but also a journalistic exercise in exploring whatever facts are available that might place his father’s actions in a bigger picture.

We’d never really talked about it as a family. What I discovered was that my mother was tougher than I thought. I also discovered I was more fragile than I thought. I had to remind myself that I was applying a reporter’s discipline to the story. I didn’t want it to be either a sentimental tale or a freak show.”

In my view he was successful in both those ambitions. As modern measures go, he added 1,000 twitter followers in the hours following transmission. He also received thousands of e mails – “not one nasty one out of 10,000”.

The figures for Scotland, (slightly confused by a recent change in World Health Organisation definition of suicide to include ‘death by undetermined intent’ which adds about 50 a year to the statistics) show a similar shape to the UK pattern but are proportionately worse by most measures. Both men and women have a higher suicide rate than their equivalents in England and Wales.

In 2013, on the old definitions, 570 (76%) of the 746 deaths by suicide were men. That’s between one and two a day. 82 of them in the single age cohort between 40-44.

Largely driven by a disturbing toll of suicides among young men in their teens and twenties in the late 1990s and 2000s, and nodding in the direction of ‘Trainspotting’, a public health initiative called Choose Life was set up by the Scottish Executive specifically to provide interventions to support the groups most at risk. Alongside the long-standing Samaritans phone line a separate helpline called Breathing Space was created within NHS Scotland.

In its most recent report, published last November, Choose Life reported the number of suicides had fallen by 19%, during its 10 years of existence. The numbers in those younger years has fallen by half in that time though suicides in the over 40s has continued to rise substantially.

It is manifest that suicide rates generally increase with increasing deprivation, with rates in the most deprived areas of Scotland significantly higher than the Scottish average.

I recalled I made a short series of programmes for BBC Radio Scotland in 1997 in a series I cheerily called “Dying for Scotland”. In my head I described them as a romp through the mortality statistics of the 20th Century. I have always been fascinated by how short the public memory is for the life we ourselves lived never mind our limited capacity for conceiving the ailments and catastrophes that invaded the homes of our parents and grandparents. The programmes were commissioned for a 15 minute lunchtime slot that existed then. For those with 13 minutes and 43 second to spare the 1997 programme is here: http://tinyurl.com/nmcxsj6

It was extraordinary to read through the newspaper cuttings of the 1920s, 30s and 40s to read detailed reporting of suicides of a sort limited only to ‘celebrities’ today but which was evidently on a general reporter’s beat then.

My wee programme also showed how easy it is for interesting statistics to lead to interestingly misplaced certainties. Sir John Sibbald delivered a paper on suicide in Scotland to the Royal Society of Edinburgh in 1902. Drawing on comparative suicide statistics from the Scottish counties and burghs in which the lowest rates were reported from the Highlands and the highest from Kincardineshire, Forfarshire, Midlothian and Linlithgow and Haddington Sir John confidently pronounced that this was evidence that “the Saxon is more likely to take his own life than the Celt.”

By 1955 those particular genetic lines on the graph had crossed. Perhaps Sir John was seduced by the statistics to ask the wrong questions. Or he underestimated the willingness of of some GPs to write suicide – or self murder as it used to be – on the death certificate knowing the effect that would have on the chances of burial in a kirkyard or a payout on a life insurance policy.

Which brings me back to animated debate brought on by Panorama.

The programme’s message was that it is important for men to talk more. Simon Jack’s mother said that they had had a very loving marriage. “I didn’t know all the problems he was having because he didn’t discuss it. I think he thought he’d dug a hole so deep he couldn’t get out of it.”

Reference was made to men’s “emotional illiteracy” and, several times to recent Samaritan’s research which identified their issues of “masculinity”, so often used a term of disdain it is probably time for sociologists to find another word if they want men to engage with it positively.

The last word in the programme went to Jane Powell, founder and Chief Executive of CALM – the Campaign Against Living Miserably – suggesting that men talking more about feelings would help. “And talk is free.”

Most of the social media responses picked on the shocking figure of 100 men a week putting an end to their life. Surely there could be nothing wrong with raising the profile of a phenomenon that reveals such despair among the individuals who gave up their struggle to survive but who also leave hurt and bewildered, and as Simon Jack acknowledged, angry family and friends behind.

However, the message drew a blistering blog attack by Karen Woodall, who works in the field of Parental Alienation. She wrote, “My second reaction was serious concern which grew into anger at the realisation that the sole idea that was being put forward in this documentary was a feminist construct that if men were more like women and talked about their feelings, their despair would not drive them to death. So let’s look at what talking about it does for the men who are most at risk of suicide in the UK. “

She then went on to list an A – Z of institutions, services and attitudes that actively ignore or discourage or even punish men who want to talk about the wrong things or in a way that doesn’t suit the prevailing narrative about relationships.

Comments posted to her blog [http://tinyurl.com/o55572u] gave specific examples of how an admission of depression had been used against the individuals in a range of situations from family court cases to employment and career progression.

So I went back to Jane Powell to ask for her response. I think it is fair to report that she was pleased with the Panorama for raising the issue of male suicide to millions of people but that her contributions “weren’t everything I would have wanted to say.” She has a lot to say so don’t expect a short phone call.

I suspect she and Karen Woodall have more that unites than divides them.

In the Panorama programme Joe Ferns, Samaritans’ Executive Director of Policy, Research and Development gave the hypothetical example of colleagues coming into work and finding a female colleague in tears at her desk. “Someone would automatically take her off to the toilets and find out what had happened and it would be seen as an opportunity to rally round and help.”

His example rather petered out but Jane Powell finishes the thought rather more robustly. “If people came in and found a male colleague in tears at his desk they’d be embarrassed. They’ll think he’s not fit for work. Send him home. And maybe he’s dangerous. ‘Fuck, he could do anything!’.”

That seems to be a better description of emotional illiteracy among everyone else rather than the individual man. For men to feel freer to speak they must be confident that they won’t be disadvantaged for doing so. Many have painful experience of the opposite.

Jane Powell says, “For the first 5 years of CALM I think most people thought I was an old bag with a bee in her bonnet. I still find it hard to persuade governments or public agencies to step beyond wringing their hands that this is a terrible shame to driving a gender specific strategy that meets men on the journey that they may be taking on the road to despair. We know that a real man hurts, bleeds, feels pain and fucks up. When they’re in distress and feeling trapped by their despair they may drink too much, drive too fast and behave badly. Not always but sometimes. But we also know they write poetry, sing songs and work communicate their feelings in a thousand ways. It’s not a strategy to tell them to behave more like women. We have been looking at the specific needs of women brilliantly for years. Why is there such resistance to doing the same for men?”

Professor Stephen Platt, recently retired, has been the leading figure in suicide research in Scotland for more than 30 years. He appeared in my 1997 programme explaining even then that there were three contributing factors that appeared to have a role in drawing more men towards suicide. They were psychology including the interaction between depression and alcohol-related illness; culture; and social wellbeing which included (un)employment and marriage breakdown.

Choose Life has associated itself with the decline in suicide figures during its first ten years. It had a target of reducing suicide by 20% so 19% is clearly encouraging. Stephen Platt says the development of ‘brief’ primary care programmes treating drug and alcohol abuse and depression has been a factor. But he counsels that there hasn’t been an independent “outcome evaluation” that would change an association to a cause.

Nor does he think there has been any academic research into the kind of actively disincentive factors listed by Karen Woodall and the sense of defeat that may lead to suicide.

To reflect the Panorama pay off I’ll also leave the last word to Jane Powell. “Until we come clean about what the experience of men who take their lives is we won’t convince them that we’re here to help. There’s no point in telling them to talk if there’s no-one to listen or worse tell them that they’re feeling the wrong sort of feelings for us to listen to. The last words of so many is that there’s no place in the world for them and that their friends and family would be better off without them. It’s a deep hole and we need to find all the ways possible to help them out of it, not tell them men should stop digging holes.”

A Death in the Family will be available for a few days more at: http://www.bbc.co.uk/programmes/b05rcrx0

Useful links:

www.thecalmzone.net

www.breathingspace.scot

www.samaritans.org

 

 

 

 

Punishing schedule for Scottish Sentencing Council

The Scottish Sentencing Council is due to be formally constituted in October. As a new feature on the criminal justice landscape, the council was created as part of the Criminal Justice and Licensing (Scotland) Act 2010. Legislatively speaking, that was hard on the heels of the equivalent body south of the border, the Sentencing Council of England and Wales. Their council was created in 2009 and began work in 2010.

For reasons that are not obvious the Scottish Sentencing Council has been in suspended animation for the best part of five years. Nevertheless it has been recently confirmed that all systems are now go. The council will be chaired by the Lord Justice Clerk, Lord Carloway. According to the statute, he will be joined around the Sentencing Council table by:

Five judges viz a judge of the outer house of the Court of Session or the High Court of Justiciary; one sheriff (not including a sheriff principal); two persons who hold the office of stipendiary magistrate or justice of the peace; and one other judicial member (including a sheriff principal). By my reckoning that means there will be a sheriff principal.

Three lawyers viz one prosecutor; one practising advocate; one practising solicitor.

Three lay members viz one police officer; one person with knowledge of the issues faced by victims of crime; and one other person not qualified for appointment as a judicial or legal member.

The Lord Justice General, Lord Gill, will be responsible for appointing the judicial and legal members of the council. Police Scotland and Victim Support will nominate their members. It looks like one place, the ‘one other person’, will be open to applicants through the public appointments channels.

It seems beyond challenge that the establishment of the council is a good thing. Its statutory objectives are to promote consistency in sentencing practice; assist the development of policy in relation to sentencing; and promote greater awareness and understanding of sentencing policy and practice. Who could be against any of those?

Delivering the Howard League Scotland lecture at Edinburgh University last October, Lord Carloway predicted that the result of the imminent council’s labours could be to render obsolete existing sentencing jurisprudence ‘such as it is’ – four of the most chilling words I’ve heard from a senior judge. And anything the council can do by way of explanation will be welcome if it helps dissipate the febrile atmosphere around sentencing in which it has become practice for news media to invite victims of crime or their families to explain on the steps of the court how outraged they are at the inadequacy of the sentence that has just been handed down in their specific case.

The direct victims and their families are entitled to feel what they do. I have less sympathy for the opportunism of other campaigns in exploiting the victims and monstering convicted persons for their own ends. In his recent book, ‘So You’ve Been Publicly Shamed’, Jon Ronson reminds us that very few of us are evil 24 hours a day, every day, but treating us as if we are and as if we are therefore beyond humanity rarely leads to a positive outcome.

Interestingly, when the legislation setting up the Scottish Sentencing Council was first passed in 2010, I interviewed the chairman of the English Council, a then little-known judge called Lord Justice Leveson, for a steer on what to expect. He drew my attention to an interactive exercise called ‘You be the judge’ which you can still find athttp://ybtj.justice.gov.uk. Lord Justice Leveson said: ‘We know that, if asked at a general level, public confidence about sentencing is low and the general assumption is that it is too lenient. However we have taken “You be the Judge” to court open days in different parts of the country. Members of the public can also try it online. It has been remarkable that when people get a chance to view the details of a prosecution and take all the facts into account the sentence that they suggest generally undershoots what the judge on the bench actually decided. I think we all have a responsibility to explain more about what we do and why we do it’.

There are differences between the councils on either side of the border. The fundamental difference of principle is that the English Sentencing Council does its research and analysis, thinks through the resource implications and publishes its guidelines. It has been busy. Its 2013-14 corporate report shows guidelines on six distinct areas of law completed or under way – including, last month, its second report in three years on sentencing related to dangerous dogs after the legislators defined new offences.

There will be an intermediary stage in Scotland. The Scottish Sentencing Council will make its recommendations to the Lord Justice General who will accept them all, or in part or not at all. The E&W corporate report throws up another difference in practice if not in principle. Its budget is just over £1.5m. The Scottish Government’s financial memorandum to the Criminal Justice and Licensing (Scotland) Bill 2010 in which the Scottish Sentencing Council is founded estimated the set-up costs for the Scottish Sentencing Council at £450,000 and ongoing costs at £1.1m.

The indecorously described ‘headcount’ in England and Wales stands at 17.7 full time equivalent posts. I was advised that staffing and administrative support for the Scottish Council would be supplied by the Scottish Court Service. Given that the Scottish Council is expected to be up by October and active by November, I asked the Scottish Court Service what staffing it had budgeted to provide but was advised this was a matter for the Sentencing Council and that staffing is yet to be settled. As is the per diem rate for members. No doubt that will all be settled in due course.

The eternal optimist in me has hopes that the council and its urging of consistency, if not uniformity, will have a positive contribution to make. The division of labour in recent years seems to have established that Lord Gill as Lord Justice General and Lord President of the Court of Session has been sorting out the organisation of the courts with the aim of fitting them for life in the 21st century. Whether it was intended this way or not, Lord Carloway has been addressing issues around what happens within the courts. Proposals for the abolition of corroboration (and news from the expert committee set up to review that can’t be far away) and admissibility of new forms of evidence in criminal cases bear his stamp. I think it is fair to say that both are impatient with the concept of ‘established practice’ as a guide to future justice.

Lord Carloway trailed the view he will take from the chair of the Sentencing Council in that lecture to Howard League Scotland. The full title was, ‘The Purpose of Sentencing – From Beccaria to the OLR [Order for Lifelong Restriction] and Beyond’. The ‘Beccaria’ of his title was an Italian whose ‘Treatise on Crimes and Punishment’, published in 1764, was pioneering in arguing against the use of physical punishment and torture and in favour of punishments that would ‘make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal’.

Lord Carloway indicated that the Scottish Sentencing Council would be less definitive than its southern neighbour – less intent on drawing up a grid that could be superimposed on each case before any judge. He concluded: ‘Perhaps the best thing that could happen is that a new Beccaria will emerge, who could guide us all forward towards the promised land. That country may be one in which, whilst the offender who is assessed as a continuing danger to the public should be subject to some relatively restrictive regime of incarceration and/or intense supervision in the community, all others should be paying back to, and learning in, the community and not removed from it and put behind the walls and barbed wire that future generations may regard, as we now do the practices prevalent in Beccaria’s day, as barbaric’.

I wish the Scottish Sentencing Council the best of luck when ‘death by careless driving’ reaches the top of its to-do-list.

UK Supreme Court reverses two more Inner House decisions

Update 12th March 2015

It’s not just a matter of keeping score. As a matter of superficial arithmetic, the United Kingdom Supreme Court decision on Wednesday March 11th in the case of Montgomery v North Lanarkshire Health Board was the fourth time it had overturned a decision of the Inner House of the Court of Session out of the last 6 occasions it had been asked.

It was followed within minutes by the UKSC’s decision in the case of Carlyle v Royal Bank of Scotland. That made 5 out of 7.

The circumstances in each of those five reversals are different and the narratives given by the Supreme Court judges for doing so have deployed a spectrum of language from incredulity to respectful finessing. It remains the case that more judgments have been upheld than reversed since the UK Supreme Court succeeded the House of Lords as the top court in the land in 2009 (see my blog www.lawfulbusiness.co.uk).

However, the blunt terms of the recent decisions must be a concern. Litigants and their legal advisers in Scotland need to have confidence in the predictability and consistency of decisions in Scotland’s highest courts when assessing whether to battle on, withdraw or settle.

Has the Inner House been trying to trace a distinctly Scottish view of cases that has brought it into collision with the thinking of the Supreme Court, notwithstanding the presence of two Scottish judges among its number? Or has the Inner House become inherently more cautious, arguably more conservative than either its own recent predecessors or its current Supreme Court contemporaries.  Has cautious and Scottish become one  on the Scottish bench?

In Montgomery v North Lanarkshire Health Board the UK Supreme Court overturned successive Scottish court decisions that had rejected Nadine Montgomery’s claim for damages following the birth of her son, Sam, at Bellshill Maternity Hospital in 1999.

As a result of complications during delivery Sam was born with severe disabilities.

The case hinged on whether the medical practitioners (who were employed by the Health Board) went far enough in advising Mrs Montgomery of all the potential risks of giving vaginal birth to her son rather than by caesarian section, given that she was slight in stature but Type 1 diabetic  –  often associated with delivering large babies.

The full judgment [https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0136_Judgment.pdf] sets out the unfortunate facts of the case which were not greatly in dispute.

The broadcast news bulletins understandably have concentrated on the large award,  previously agreed in the region of £5.25m, that has been secured by Mrs Montgomery for Sam’s care.

Of greater significance beyond Mrs Montgomery and Sam individually is that the UKSC took the opportunity to reset the balance between informed consent and medical negligence in tune with the times and current expectations of the relationship between a patient and a practitioner.

In their consideration of the issues  in Scotland, first Lord Bannatyne in 2010 and then an Inner House bench of Lord Eassie, Lord Hardie and Lord Emslie in 2013 stated they were following the approach laid down in the 1985 House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital. It has been the guiding case since and in some respects it may seem unfair to criticise unduly the Inner House for holding the line so clearly drawn 30 years ago by Lords Diplock and Templeman.

Except that it was 30 years ago. Sidaway used to be king. Now it is simply “unsatisfactory”.

Lord Reed asserted: “Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. “

Taking into  consideration the changing expectations of patients as consumers and the multiplicity  of sources of information available to them, most patients and most doctors now expect “dialogue” about the prospective benefits and risks inherent in a prospective treatment.

It is perhaps an indulgence enjoyed by judges at the very top of the pyramid to decide when the longstanding precedents are no longer fit for purpose. Indeed it is their job.

But a question for the Inner House to address was what had stopped it applying its own intellectual rigour to the Montgomery case and declaring  that its judgment was that Sidaway and associated ‘tests’ were out of date rather than appearing to dig in? Cautious or Scottish?

Lord Reed asserted in another part of the judgment that English courts have effectively been disregarding Sidaway for some time.  As in the 2010 Cadder case did the Scottish bench really not see the signs that the light at the end of a tunnel was a locomotive racing towards it?

Wednesday’s second  reversal of an Inner House decision, Carlyle v Royal Bank of Scotland, is in some respects more embarrassing.  The case itself concerns a dispute between Mr Carlyle, a property developer, and Royal Bank of Scotland over funding he believed had been agreed and confirmed in a phone call with a Ms Hutchison of RBS in June 2007 for the purchase and then development of some plots of land near Gleneagles Hotel in Perthshire.

However, the Bank decided  in August 2008 not to provide funds for building a property on the land for which it had provided a loan in the intitial purchase. Mr Carlyle’s plans foundered. The bank called in the loan and raised an action against him for close on £1.5m.

The judge at first instance in the Court of Session, Lord Glennie, heard witnesses and assessed the evidence and in 2010 gave judgment in favour of Mr Carlyle.

The bank appealed.  In September 2013 a bench of Lord Carloway, Lady Dorrian and Lord Bracadale in the Second Division of the Inner House overturned Lord Glennie’s decision, reinterpreting the evidence that had been heard and substituting its own view of the sustainability of Mr Carlyle’s proposition that he had been given a binding undertaking by the bank.

Wednesday’s Supreme Court decision was extraordinary in itself, verging on Alice Through the Looking Glass.

Lord Hodge said, “Were I deciding the matter at first instance and if the findings of fact record all the material evidence, I think that I might have shared the view of the Second Division (a) that the statement by Ms Hutchison on 14 June 2007 did no more than communicate to Mr Carlyle that the bank had reached a decision in principle to provide funding for the development of the two plots and (b) that the parties were required to take further steps to create a legally binding obligation on the bank to advance that funding.

“BUT”,  Lord Hodge continued,  sweeping the feet from under the Inner House, “deciding the case as if at first instance is not the task assigned to this court or to the Inner House. It is not appropriate to restate at any length in this judgment the dicta from prior cases which this court recently set out in McGraddie v McGraddie  and discussed in Henderson v Foxworth Investments Limited.”

In short, the Inner House might have been right but was only entitled to interfere if there had been an error in law by Lord Glennie or his interpretaton of the evidence was unsustainably wrong and if he was wrong in this case he wasn’t wrong enough so therefore he must be taken to be right: the evidence means what he said it means.

It was not the Inner House’s business to second guess the judge who had actually heard the witnesses.  The evidence means what he said it means

The UK Supreme Court went over this ground in McGraddie v McGraddie in July 2013. The Inner House decision in  Carlyle v Royal Bank of Scotland was delivered in September 2013. They should have known.

However, it may be that lessons are being learned.

In two recent decisions in the Inner House (Coyle v Lanarkshire Health Board, and Little v Glen) the decisions in McGraddie and Henderson were applied without hesistation, and the decisions of the Lords Ordinary (Tyre and Jones respectively) were not interfered with.

I’m told Sheriffs Principal now expect McGraddie to be cited as a reason for repelling appeals on a routine basis.

And slipped into Lord Hodge’s judgment in Carlyle was a masterpiece of understatement that may have gone some way to explaining how wires could have been crossed between a client and the Royal Bank:  “… it is notorious that the prudence which historically has been attributed to Scottish bankers was not always in evidence in commercial and mortgage lending in the years leading up to financial crisis in 2008.”

Carlyle v Royal Bank of Scotland is not entirely over. The Supreme Court did not reinstate Lord Glennie’s determination but set aside the interlocutors of the Second Division dated 12 September 2013 and 3 October 2013, and remitted the case “to a commercial judge in the Court of Session to proceed accordingly”. It may well be that Mr.Carlyle in winning this battle has not yet won the war.

Is there still a thing we can call Scots law?

There is certainly plenty of law taking place in Scotland. The Scottish Parliament has not held back on legislation since it opened for business in 1999. Our legal academics can trace the roots of a distinct conceptualisation of Scots law back through the centuries to the Low Countries and ancient Rome. Our politicians are still occasionally to be heard insisting our jurisdiction and its institutions are unique and regarded with envy round the globe.

The reason I pose the open question, however, is based on the recent run of decisions of the UK Supreme Court that have overturned three out of the last five decisions of the Inner House of the Court of Session, the tip of the conceptualisation pyramid in Scotland.

According to the Scottish Judiciary website: ‘The Inner House deals mostly with appeals…The Inner House is divided into the First and Second Divisions, [each of six judges], which have equal authority and are chaired by the Lord President and Lord Justice Clerk respectively’.

The Inner House contains our wisest judicial heads who serve as stewards of our law as it meets new challenges of fact and circumstance that turn up in the lower courts in Scotland. And it tidies up fumbles further down the pyramid. In the longer view, since the inauguration of the UK Supreme Court in 2009, it turns out the Inner House has had its decisions upheld more often than not – approximately in a 3:2 ratio.

A glance over the entire spreadsheet of UKSC business since it took over from the judicial committee of the House of Lords suggests at first glance that that’s as good a rate of UKSC endorsement as their colleagues from the English, Welsh and Northern Ireland courts. Possibly better.

There are two important qualifications to note. First, Scottish civil cases have a direct route to the UKSC that is not enjoyed by prospective appellants in the other jurisdictions. They must seek leave to appeal from their own courts and an assessment is made at that stage of what the issues are and whether there is a significant new legal point to be argued. If they are refused leave to appeal they can appeal that decision to the UKSC. Some do and many of those are refused again. The UK Supreme Court does not appear to be actively seeking work.

The UKSC statistics show that 43 of its 207 cases – 20% – in the three years from 2011/12 to 2013/14 came from Scotland.

In a two-part blog on the UKSC website in May 2013 advocate Aidan O’Neill explained the convoluted constitutional route that created this direct access from the 1689 Claim of Right through to the UKSC via the 1707 Treaty of Union and the House of Lords.
The Inner House success scorecard should therefore be viewed in the context that several Scottish appeals against its decisions would never have reached the Supreme Court at all if they had come from England and Wales.

Aidan O’Neill cited an observation from Lord Reed in a 2013 case of Upritchard v Scottish Ministers that ‘the appeal did not on examination raise any arguable point of law of general public importance’ and hearing it ‘was not an appropriate use of the time of this court’. The sentiment has been repeated in several cases since.

The second qualification, however, is that among the successful appeals against Inner House decisions are several that have stretched the UKSC judges to the limit to find diplomatic words to convey their incredulity at the decisions reached in Edinburgh.

In the interface between the criminal appeal process, previously assumed to end in Edinburgh, and the European Convention of Human Rights, justiciable at the UK Supreme Court, the cases of Cadder in 2010 and Fraser in 2012 induced apoplexy in first minister Salmond and justice secretary MacAskill, when the High Court of Appeal was overturned by the judges in London.

In the Cadder case, concerning the right of an accused person to legal advice before being interviewed by police, a decision by a seven-judge Scottish bench was overturned in brutal terms by seven judges of the Supreme Court. It was asserted in public by certain politicians and in private within Parliament House that this was an outrageous interference in Scottish criminal justice by representatives of an alien jurisdiction. For alien, read English, even though the law they were applying was European and would have reached the same decision even if the UK Supreme Court had been taken out of the loop.

It was a humiliating moment. The Scottish Government introduced emergency legislation at Holyrood. Solicitors threatened to boycott the ad hoc scheme dreamed up by the government and the Scottish Legal Aid board to plug the gaps in coverage of overnight arrests. In the end it does not seem that Cadder brought down the structure of Scottish criminal law.

But was there anything in the argument that maybe the Scots judges were more in touch with the Scottish public and the Scottish way was distinctive and worth arguing for? Or is the Scottish bench essentially conservative and resistant to the idea that sometimes they do do it better elsewhere?  Neither argument has been pursued for the benefit of the Scottish public.

The names of Cadder and Fraser in the footnotes of criminal law have been joined by similar broadsides in the family law cases of Principal Reporter v K and even NJDB v JEG in 2012. The latter is formally listed as an appeal dismissed and the Inner House endorsed but the terms in which the administration of Scottish family law was ripped to pieces led Lord Gill to set up a task force under Lord Brailsford in pursuit of the ‘culture change’ recommended by the Supreme Court.

Of the most recent five judgements in Scottish cases handed down by the UKSC since last December, three have overturned Inner House decisions.

The fourth, Moohan and another v The Lord Advocate, concerned an application by prisoners to be allowed to vote in last year’s indpendence referendum. The Inner House decision was that a referendum was not covered by the electoral law on which there has been a succession of European decisions declaring the blanket ban on prisoners voting in a general election non-compliant with the ECHR. Interestingly there were two dissenting opinions within the five-judge bench. This may yet turn out to be unfinished business.

The fifth was the Sustainable Shetland v Scottish Ministers appeal against Scottish Ministers’ decision to allow the construction of a wind farm in Shetland. It was one of those cases that relied on the unimpeded 1689 route. It didn’t delay the judges long.
Of the three appeals upheld against the Inner House, McGraddie v McGraddie at first sight concerned a dispute between a father and a son about property transactions. The first instance judge found in favour of the father and made his determination accordingly.

The Inner House upheld an appeal by the son. The Supreme Court took a very dim view not only that it had interfered with the decision of the lower court but had substituted its own view of the credibilty of the witnesses whom it had not heard.

It was a comprehensive criticism that ‘the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re-consideration of the whole evidence that an opposite conclusion should be reached’. Ouch.

The sequence appears to have been similar in the case of Greater Glasgow Health Board v Doogan and another. Two midwives sought to excuse themselves from any involvement with patients who are having a termination of pregnancy. They had argued that grounds of conscience which excused them from ‘participating’ in a termination should be extended to wider ward support of women admitted for termination.

Again a judge at first instance rejected their case but the Inner House intervened and allowed their appeal. And again the UK Supreme Court gave their legal justification very short shrift.

Finally, perhaps the most curious case of all – concerning Jackson v Murray and another. In a tragic incident in January 2004 a 13-year-old schoolgirl, Lesley Jackson, stepped out from behind her school bus on the Banff-Fraserburgh Road and was severely injured when struck by a car on the opposite carriageway. It was after school on a dark January afternoon.

After an extraordinary passing of time she was awarded some damages in the Court of Session by Lord Tyre who nevertheless determined that she was 90% responsible for the incident. The financial award was reduced accordingly. There’s law on contributory negligence even for 13-year-olds.

That attribution of contributory negligence to Lesley Jackson was appealed to the ‘extra division’ of the Inner House. Three judges, Lord Clarke, Lord Drummond Young and Lord Wheatley explained that it was a difficult matter to interfere with a decision made by a judge in an area that allowed considerable discretion. Nevertheless, they did and reduced that attribution of contributory negligence to 70%.

Their decision was appealed to the UK Supreme Court which in turn explained last month that it was a difficult matter to interfere with a decision of a judge in an area that allowed considerable discretion etc. Nevertheless, in his leading judgement, Lord Reed overcame his reluctance and with the support of Lady Hale and Lord Carnwath further reduced the liability to 50%.

Lord Reed said: ‘I cannot discern in the reasoning of the Extra Division any satisfactory explanation that the major share of the responsibility should be attributed to the pursuer…’. Eleven years later it appears to be the end of the road.

Lord Reed is one of the two Scottish members of the Supreme Court. The other is Lord Hodge who dissented with an opinion that accepted that the 70% finding of contributory negligence was indeed high but he didn’t think that it was correct for the Supreme Court to interfere.

Whatever the jurisprudential rights and wrongs of these decisions, or the sympathies that go to anyone mired in litigation for years and the financial and emotional stress that are part of the experience, it is difficult to detect any distinctive Scottishness or Scots lawishness at stake in these manifest disagreements between the courts in London and Edinburgh. Is the Inner House protecting or even developing Scots lawishness under its stewardship?

I return to my opening question. Is there still such a thing as Scots law? Is it distinctive? If it is, how is it distinctive? Is it better? If it is, how is it better? Is it in tune with the perceptions of modern civic Scotland? The arguments are not being made one way or the other. We really are entitled to know what the significance is of this sequence of reversals.

Right now, I have an open mind though I rather think if I have to ask then I probably know the answer.

A judgment will be delivered at the UK Supreme Court on Wednesday March 11th in the case of Montgomery v North Lanarkshire Health Board. The court has been asked to consider an appeal against and Inner House decision and its application over several decades of the Scots courts approach to medical negligence claims. It’s significance will be far wider than the direct interest of the parties.

Deaths behind bars.

My curiosity was prodded into life by an article in the Guardian last autumn about the number of prisoners in England and Wales who had committed suicide in the preceding 20 months. 130 men and 4 women had taken their own lives.

The narrative that appeared to be endorsed not only by prisoner pressure groups but also by governors and official watchdogs was that individuals struggling with mental health problems or were otherwise vulnerable were being missed by overstretched and undertrained prison staff.

I wondered what the comparable story might be in Scotland. The Scottish Prison Service publishes a list of “deaths in prison custody” on its website.That offered one step forward but another back on the way to getting a clear picture.

Anyone accessing the site can discover the name, age, ethnicity, date of birth and date of death of the 20 or more individuals who have died each year.

Limiting myself to a round 10 year period, since 2005-6 until January 30th this year the numbers are 214 men and 8 women who have died while ostensibly in SPS care.

I’ll come back to ‘ostensibly’.

But how many of those were suicides and does the proportion compare favourably or otherwise with the England and Wales toll? I can’t say.

There is a column in each spreadsheet headed Cause of Death but 75 of those 222 deaths are listed as Not Yet Determined. Clearly it takes time for the formalities to be completed even though the facts of some of them have been widely reported in the media. But according to the SPS spreadsheets there are still 3 of the 20 deaths in 2007-8 that have not yet been determined; another 2 of the 17 deaths in 2008-9; and another 3 of the 19 in 2009-10.

In total 29 deaths have remained Not Yet Determined in the years prior to 2012-13. 12 of the 18 deaths in 2012-13 remain to be determined – getting on for three years.

I can at this point give one comparable figure. In England and Wales all the prison deaths have been determined, in their term, ‘classified’, up to March 2010. Only 5 of the 383 deaths in the two years up to March 2012 remain unclassified. That’s a much smaller proportion than we seem to have achieved.

In passing, one of the truly shocking details that leap off the SPS pages is the number of prisoners – mostly men – dying of natural causes in their 20s, 30s and 40s. Another is the proportion of prisoners whose death has been ‘determined’ as suicide who were ‘awaiting trial’. Maybe they’d have been convicted. Maybe not.

It’s time to return to that ‘ostensibly’ qualification.

The Sudden Deaths and Fatal Accidents Inquiry (Scotland) Act of 1976 charges the Crown Office with the responsibility for investigating certain categories of death, principally deaths in the course of work or where there may be serious public concern following a sudden, suspicious or unexplained death.

The Act allows the Lord Advocate a certain amount of discretion in assessing that degree of “serious public concern”. An FAI has to be held in public and successive Lords Advocate have been challenged on their decisions against holding an FAI. It can’t be an easy task.

The third class of death specified in the Act as the trigger for an FAI is when the deceased is in “lawful custody”.

I was naive enough to think that was pretty tightly worded. But when I enquired at the Crown Office about those three ‘not yet determineds’ from 2007 it turned out that, “without going into detail”, two of them may have been serving a sentence but may not have been in legal custody at the time.

Speaking hypothetically, if a convicted person had been, say, on home leave or day release or even escaped and therefore not under the supervision of a prison officer then she or he could not be deemed to be in lawful custody.

Hypothetically that is why two of the 2007 cases never led to an FAI. And the Crown Office is mystified why the third 2007 case is still listed as not yet determined because an FAI was held and concluded in 2007. The sheriff’s findings are on the Scottish Court Service website.

So is it just a glitch within the SPS that they are recording as not yet determined 7 year old cases that have in reality been long concluded as far as the Crown Office is concerned?

I asked the SPS press office if they could explain from their side. I also asked if the SPS had a figure to match the England and Wales doleful statistic for the number of prisoner suicides per 1,000 prisoners. And I asked how the SPS finds out the cause of death if there is no FAI? And how does the SPS find out the result of an FAI? And how many FAIs they had in their diary for the next couple of months.

I assumed these would be items at the press officer’s fingertips but it turned out otherwise. I have no reason to doubt the explanation that these were questions never previously put and therefore, I was advised, they had been sent on my behalf the long way round through the Freedom of Information process. Answers, therefore, much later.

The job of the Crown Office is to hold the FAI, not to tell anyone about the sheriff’s decision even though they know it. It’s for the Scottish Court Service to publish judgments. And it appears neither of them have to keep the SPS in the loop.

But does it really matter if each of the agencies is doing its own job as well as possible? Well, it matters to those involved – both the family of the deceased as well as those charged with their care as well as their custody. It matters to the prison staff who had to cut down or mop up or retrieve the remains of the deceased.

And it matters to the rest of us where issues are identified in the management of prisoners that they are addressed and any recommendations are implemented.

While each of the agencies involved in the process is doing its job it does appear unnecessarily difficult to piece the fragments together to form a complete picture, the essential precursor of transparency and analysis.

So much of our current political discourse seems to depend on a tiresome questioning of the integrity of those who hold a different opinion or the motives of those who work within a system that is imperfect. The man rather than the ball. It wastes a great deal of energy and fuels a political culture of defensiveness that helps no-one.

I see no reason to question motives or integrity but I discover they do prisoner deaths very differently in England. It’s not perfect as the Guardian article makes clear but there is less likelihood that individual cases are left in the shadows.

Since 2004 The Prisons and Probations Ombudsman (PPO) has investigated all deaths in prisons, probation approved premises, immigration detention facilities and secure training centres. No if or buts.

It is informed immediately of all deaths and its staff have a deadline of 26 weeks to compile a draft report on the circumstances of each which goes both to the relevant coroner ahead of an inquest AND to the next of kin.

The Ombudsman’s website states that “the purpose of these investigations is to understand what happened, to correct injustices and to identify learning for the organisations whose actions we oversee so that the PPO makes a significant contribution to safer, fairer custody and offender supervision.”

As in Scotland, the report will not be published until any criminal investigation or proceedings are complete and until, in England and Wales, a Coroner’s Inquest has been concluded. However, when those proceedings are complete every Ombudsman’s report is published on its website. There is only one place to look.

Not only that but in England and Wales a range of other organisations including Inquest, the Howard League and Prison Reform Trust, are immediately advised of a death in one of these forms of custody. They are not always popular commentators as recent public tussles with the current Attorney General demonstrate but they are acknowledged within the system rather than guessing from without.

Inquest provides support for families affected by a prison death and has a forum of specialist lawyers who can provide representation at a Coroner’s Inquest if required.

In Scotland a fourth player appears in the form of the Scottish Legal Aid Board which holds the purse strings for funding representation for families of the deceased at an FAI or for challenging a decision not to hold one.

There appears to be a better triangulation of transparency south of the border.

Lord Cullen completed a report on reforming the FAI system in Scotland in 2009. Amongst his recommendations was an extension of the categories circumstances of deaths where an FAI would be mandatory to more closely follow the Egland and Wales approach.

Responding to some of Lord Cullen’s observations the Crown Office overhauled its own approach to FAIs, creating a specialist Scottish Fatalities Investigation Unit in 2013. The Crown Office spokesman explains the Unit has helped speed up its own procedures and while still aiming for further improvement is unlikely to be more than a couple of years behind the death except in exceptional cases.

The Scottish Government has introduced a Fatal Accident Inquiries Bill into its legislative programme for the current session though it hasn’t got to Stage 1 of its parliamentary progress yet. The Bill though builds on the Cullen recommendations and for the first time takes a tentative step towards requiring those to whom sheriffs direct recommendations at the conclusion of the inquiry to  ”respond”. That’s not the same as holding them to account if they fail to implement recommendations but it is a start.

The bill also looks to ease the bottleneck created by the shortage of court space to allow FAIs to take place in other premises.

There is unlikely to be much opposition in principle to any of the proposals in the Bill but it does not really address the fragmented system that underpins current decision making and reporting of FAIs in general or prisoner deaths in particular.

South of the Border they saw more than a decade ago the value to the public interest of building an independent eye into the process. We still seem to have a national allergy to that sort of scrutiny.

In the meatime, by the time this article is published Louise Park will have attended the final submissions to the sheriff in the FAI following the death of her brother, Thomas David Cameron, who threw himself from the fourth floor gallery of Barlinnie on the 27th March 2013.

Louise has no complaints about the Crown Office – “The fiscal was brilliiant with us the whole time” – but does feel the prison service lawyers and NHS staff lawyers had more time to prepare than her solicitor did while awaiting a SLAB decision. Perhaps she is overestimating the preparation time the other lawyers really did have.

But most of all she wants to know how her brother who was receiving medication for depression and pain came to be quartered on the 4th floor. “He wasn’t the first and hasn’t been the last to throw himself from the top floor. He was in for a serious assault and I don’t expect there’s much sympathy for him but he was my brother.”

Trial Without End

This was published first in the January 2015 issue of The Scottish Review http://www.scottishreview.net/index.html. SR is an independent online journal on life and events in Scotland. Please follow the link. SR takes its journalism seriously but without self advertisement. The simple questions are usually the best.

The financial accounting is trickling in for the protracted process of bringing Angus Sinclair to justice for his part in the rape and murder of Helen Scott and Christine Eadie – the 1977 World’s End murders.

SLAB, the Scottish Legal Aid Board, has accounted to the last penny for its expenditure in funding Sinclair’s defence at the first World’s End trial in 2007 – £ 530,932.24 – and then on his unsuccessful attempts last year to repel the Crown’s application to the High Court of Appeal to bring a new trial in terms of the new Double Jeopardy Act (2011) – £104,732.87.

The board has so far paid out £56,591.76 towards the defence costs in the retrial at Livingston High Court last November though the final reckoning is unlikely to to be less than in the first, 2007, trial. The legal team has four months to submit its invoices for fees and outlays. In passing, it is generally overlooked that these overall figures include VAT. The chancellor gets his cut.

The Crown Office, being responsible for all prosecutions in Scotland, does not generally publish a separate balance sheet on individual cases. It is clear though that no expense was spared in several years of preparation of the retrial. That covered not only the gathering of new evidence, reviewing of previous evidence, commissioning new experts and precognoscing old and identifying new witnesses to ensure there would be no nasty surprises in the trial itself.

There was also an enormous effort applied to making the evidence as comprehensible to its target audience – the 15 individuals in the jury box – as possible. There were animated representations of the bodies of Helen Scott and Christine Eadie that showed their injuries through several planes and through 360 degrees. The animations were effective representations of the injuries but also spared the jury and the families of the deceased from prolonged exposure in the courtroom to photographs of the two young women. Morain Scott, father of Helen, spoke with humbling dignity and modesty at the conclusion of the trial as he acknowledged the difficulty for him of sitting through yet another rehearsal of the last moments of his daughter but that it was his commitment to her and to his late wife that he would see it through to the end.

The financial accounting apart, this was a trial that the Crown could not afford to lose. The murders had taken place before the invention of DNA profiling in 1987. Professor (now Sir) Alec Jeffreys always saw the potential of DNA ‘fingerprinting’ as a means of proving innocence. The media preferred to focus on its potential for establishing guilt.

As in most developments in forensic science the early days of DNA analysis seem crude and limited in retrospect. Large, undegraded samples were required. The dangers of contamination were painfully learned. But it was the development of the science that allowed police and prosection to return from time to time to the unsolved World’s End case.

Eventually, Angus Sinclair and his brother in law, Gordon Hamilton, were identified through DNA profiling as suspects and that permitted in turn a traditional police investigation that appeared to establish their role as the last men to see Helen and Christine alive.

By this time, Hamilton was deceased. The Crown obviously was aware that Sinclair had already been convicted of previous murders and a succession of sex offences. In 2001 he had been convicted of the murder and sexual assault of 17-year-old Mary Gallagher in November 1978 – just over a year after the World’s End murders. There were several characteristics, particularly the use of a ligature round the neck, that were common to all three deceased young women. Sinclair was put on trial in August 2007. There were no admissions and no eye witness testimony. The Crown case, led by Alan Mackay QC, would rely on the scientific evidence that connected Sinclair to Scott and Eadie and the accumulation of circumstantial evidence against him.

Sinclair lodged his special defences that any sexual activity between him and the young women was consensual and that if there had been violence it must have been inflicted by Gordon Hamilton.

At the conclusion of the Crown evidence, Sinclair’s defence QC, Edgar Prais, stood up to make a ‘no case to answer’ submission to the trial judge, Lord Clarke. Prais argued that the Crown had failed to present any evidence that connected Sinclair with any crime against Scott and Eadie. Lord Clarke retired to consider his decision over the weekend and on the following Monday morning accepted Prais’s submission. Sinclair walked free – or at least he would have were he not already serving a life sentence in Peterhead.

All hell was let loose. The lord advocate, Elish Angiolini, publicly disagreed with Lord Clarke’s decision and insisted that there had been enough evidence to put to the jury. The Lord President, Lord Hamilton, criticised her for challenging the independence of the judiciary. There was an exchange of letters. The lord advocate declined to back off. In fact she was ‘invited’ by the presiding officer of the Scottish Parliament to explain what had happened. In what an MSP who was present described to me last week as ‘a seriously ill-judged presentation of evidential detail’ to a horrified full chamber, the lord advocate managed to blame the judge, the media and the law for the problems. But not the Crown Office. She was ‘disappointed’ that the trial had collapsed.

Rereading the official record it stands out that she completely blanked the only direct question, asked by Margo MacDonald, that the Crown had failed to lead evidence about what was found inside the ligatures that might have persuaded Lord Clarke that there was a case to answer.

The lord advocate insisted that decisions on what was to be led or not was a matter for the judgement of the prosecuting advocate, Alan Mackay, whom she fully supported. She demurred from suggestions put to her that the case was so important it should have been her, as lord advocate, or Frank Mulholland, as solicitor general, who led for the Crown. She insisted that pressure of work made that impossible for a law officer to take on. More than that, it was because Frank Mulholland had directed the early investigation into the case in his then capacity as area procurator fiscal that it would have been inappropriate anyway for him to conduct a prosecution based on his own investigation.

Elish Angiolini had only been in post for less than a year. It must have been traumatic for her not only as the first woman lord advocate but also the first to be promoted through the ranks of the Crown Office and Procurator Fiscal system. With a few more years experience of the top job she might have reacted differently.

The justice secretary, Kenny MacAskill, came under great pressure and instructed the Scottish Law Commission to review the law on ‘no case to answer’ submissions; the law on double jeopardy that prevented someone from being retried for an offence for which s/he had been acquitted; and the law on the admissibility of ‘similar fact evidence’.

The Law Commission buckled to its tasks. First it recommended that the law on no case to answer submissions be changed to allow the Crown a right to appeal. That was done in the Criminal Justice and Licensing (Scotland) Act 2010. Second, it recommended amending the law on double jeopardy to allow an application to the Court of Appeal for a retrial in a limited number of the most serious crimes and where it was established that the trial had been tainted – by witness intimidation for example – or where the acquitted person had made subsequent admisions or where there was new, compelling evidence that had not been available at the first trial.

The Law Commission however recommended any change in the law should not be retrospective. Fat chance. For Kenny MacAskill this was all about World’s End. The Double Jeopardy (Scotland) Act was passed in 2011. The Commission submitted its report and recommendations on overhauling the law on similar fact evidence in 2012 but it is still on a Scottish Government shelf. The Crown applied to the Court of Appeal to retry Angus Sinclair in March last year. It was given permission. The court’s 34-page reasoning could only be published after the trial was over in November.

The Crown had to establish that there was new evidence that was not available at the original trial. It focused on a new product called Crime-lite, owned by a company called Foster+Freeman hased in Worcestershire, that had been able to discover DNA in several areas of the clothing of Scott and Eadie and the ligatures that had bound them that had not been identified by the technology available in 2007. Ian Duguid QC for the defence argued that this was not new evidence but was exactly the same type of evidence that was available but not led at the original trial. He submitted to the three appeal judges that the Crown had never explained why it had not led evidence available to it at the original trial. Neither the Crown nor the defence brought Alan Mackay QC to the court to explain his decision on what evidence to lead and what to leave.

Giving the judgement, Lady Dorrian accepted that the discoveries achieved by the Crime-lite technology represented new evidence and along with other evidence therefore cleared the threshhold required by the Double Jeopardy (Scotland) Act.

What raised a few eyebrows in the judgement was the assertion that having accepted that a new trial could take place on the basis of new evidence it would also be permissible to lead other evidence that was available at the time at the first trial but was not led. The Crown was also able to introduce further evidence gathered after the Appeal Court decision.

After deliberating for less than three hours the jury in Livingston found Sinclair guilty last 14 November. Lord Matthews sentenced him to another 37 years.

So, credit where it’s due. Frank Mulholland took on this, the first prosecution under the new double jeopardy law. He could have ducked it. It would have been noticed but he stepped up. Setting aside his previous connection as area procurator fiscal with the original investigation and despite all his other law officer tasks, he found time.

Sinclair’s defence was essentially unchanged – that he admitted having rough and uncaring sex with the young women and then had gone fishing leaving them with his brother in law. There was no guarantee that the prosecution would succeed in establishing that the mountain of circumstantial evidence would be enough to convince the jury beyond all reasonable doubt that Sinclair was lying and that more than one person had subdued, assaulted and ultimately murdered Christine and Helen.

Is Crime-lite really the magic bullet in the prosecutor’s armoury? The floors of courtrooms throughout the country are littered with the spent cases of ammunition once regarded as infallible. A forensic scientist last week worried aloud to me that many cases now turn on ‘a contest between profilers who aren’t very good at statistics and statisticians who have never done a DNA profile’. There are competing software packages claiming to be the best at analysing the statistics derived from DNA analysis. They can’t all be the best.

In the meantime, I wonder if the lord advocate is aware that he is now in the product endorsement business? The Foster+Freeman website now boasts:

Under the intense narrow-band illumination of a Crime-lite, forensic examiners were able to locate previously undetectable traces of semen and saliva. The new evidence provided a direct DNA link between the prime suspect, Angus Sinclair, and the murdered girls.… Lord advocate Frank Mulholland, the most senior law officer in Scotland, later said of the Crime-lite, ‘without Crime-lite, there would have been no trial’. So impressed was he with the technology that he recommended the light sources be introduced to all Scottish forensic labs.

In the seven years between the two World’s End trials, the law has been changed on ‘no case to answer’ submissions and on double jeopardy because there were problems. The only institution that never held its hand up was the Crown Office. Could Sinclair have been convicted in 2007? We’ll never know. But in between, in finding the balance between independence and accountability, being ‘disappointed’ wasn’t enough.

50 seasons behind the dugout

In the early 60s I knew nothing about football.  Hard as it is to believe these days there was minimal TV coverage and in the era of black and white transmission everything looked as if it was taking place in a snowstorm anyway.

So when I turned up for the first time at Station Park in August 1964 I didn’t have a clear idea of what to expect.

The farmer up the road agreed to take me to the pre-season trial match between the Probables and the Possibles.

It was a beautiful  summer evening – though my mother made me take my heavy trench coat “just in case”.

I recall going through the turnstile and climbing up the steps, built out of retired timber railway sleepers, and getting my first view of the game already under way. I was stunned. I had no idea that the game was played by grown men.  In shorts.  I’d never seen the like.

But I was hooked from that moment.

In those days every sense was engaged in the match day experience.  The Mert was in daily action and, how can I put it, there was an odour of ordure in the air. On a rainy day suspicious looking brackish puddles used to gather in the cobbles under the railway bridge on the walk up to the ground. It was best not to step in them.

And whoever selected the pre match music had an interesting vinyl collection.  Scottish country dance tunes  alternated with Manfred Mann and Dusty Springfield over the PA.  It hasn’t been easy to explain to friends how a few bars of Dusty’s “I just don’t know what to do with myself” on some oldies radio station still whisks me back to the Station Park terraces.

And then when the teams came out the smell of embrocation caught the back of your throat.  Brilliant. The home strip was mostly green and white in those days. I prefer the dark blue and light blue hoops that have reappeared this season.

In those days the home dugout was to the right of the tunnel.  I don’t know when they swapped them round. But me and my school chum, Ian Smith, established leaning rights on the roof of the home  dugout and week after week ran through our repertoire of incredibly amusing (we thought) jokes about the team and the game and our observations about the playing skills and the moral character of the visitors.

We were so devastatingly witty that on one occasion one of the visitors, Ian McMillan, in the Airdrie dugout, asked the polis to have us removed from the ground or else he would remove us himself. He was nicknamed the Wee Prime Minister after Harold MacMillan who had been PM during McMillan’s heyday as captain of Rangers and Scotland.

The Loons weren’t too successful in the 60s. Our aspiration was to get out of Section 9 in the League Cup format that began each season. In those days there were 8 sections that pitched teams from throughout the two divisions (then) in groups of 4. I always thought it was an exciting format with smaller teams getting the chance of decent gates and a bit of giant killing. Section 9, however,  was the makeweight comprising the bottom 5 teams of Division 2.

I’ve seen a few terrific matches over the years but my favourite was a league fixture against Morton in the mid 1960s. The Greenock side had been relegated from the top division the previous season but were run away leaders under the managership of Hal Stewart.  Their captain was Jim Kennedy, only recently a Scotland cap. For all I know he went bright red every time he played but he looked as if he was about to explode as Loons’ winger Ian Wyles ran him ragged in what was probably his finest Forfar performance.   The whole side burst every lung and strained every sinew and we scored first. The home support in a handsome attendance went wild.  We lost 2-1 in the end but for sheer excitement it remains with me.

The players all seemed to be characters back then. None more so than Archie Knox. I recall a Scottish cup tie against Queens Park that was snowed off on the Saturday. In the days before Station Park floodlights the match was rearranged for the next Wednesday afternoon.

I took the afternoon off school (oops. sorry mum!). It was a good game but the conditions were arctic. The snow from the pitch had been piled up on the terraces.  I decided to take a walk round the pitch at half time to keep the blood flowing and met my headmaster walking round in the opposite direction. We agreed not to notice each other. The loons triumphed 3-2 with a late Archie Knox thunderbolt.

In season 68-69, my last year at school, I made it to every home match except one – the one in which we beat Stenhousemuir 9-1.  That just wasnae fair.

For the next years at university in Edinburgh I was more likely to get to away matches as far as Berwick and Stenhousemuir and, er,  Hibs 8 Forfar 1.

I started writing for football mags like Goal and Shoot and persuaded them to let me interview long serving club secretary, Jim Robertson, for a feature. I went to Jim’s house where within 30 seconds he punctured any overinflated opinion I might have of myself by saying, “Come on in. I mind o you. You used to write me letters telling me who I should pick for the team every week!” And what a waste of stamps that was.

When the miracle of the 70s and 80s happened and the remarkable Station Park ‘Boot Room’ was at its peak with the managerial baton passed from Knox to Rae to Hall and McPhee I was turning up to watch them at interesting football outposts. Yes, I was at Burslem for the pre-season friendly with Port Vale. On a dark winter morning in 1979 I drove 7 hours from London up to Innerleithen for a Scottish Cup tie with the local non-leaguers. It was the season we took Rangers to extra time in the League Cup semi final. What could possibly go wrong?  Beaten 4-1 by Vale of Leithen the 7 hour journey back with no heater or radio in the car was one of the less cheery chapters in my supporting career.

In 1982 I was working in Oxford and persuaded a couple of chums from Oxfam that we should take a day return on the train to attend the Scottish Cup semi-final fixture with star-studded Rangers at Hampden.

Now some remember that Saturday for the news that Argentina had invaded the Falklands but for me the abiding memory is that nothing – least of all the evidence – will persuade me we shouldn’t have had that late penalty that would have booked our return to the national stadium for the final.

Worse was to come. I was due to fly out the next day on an Oxfam assignment to civil war torn El Salvador. I can tell you it wasn’t easy to get the following Wednesday’s replay score in San Salvador in those days before the internet and texts. A friendly producer with one of the US TV channels got his Washington newsroom to find out for me.  1-3. Ach.

Over the years, under various pretexts, I’ve got Forfar into the Guardian, Observer, Independent, Scotsman, BBC Radio Sport on 4, the Food Programme, Radio 5 Live and anthologies of football quotations as well as soccer mags. It has been a bit of a mission.

Some would assume that you have to be brought up within the sound of the Station Park PA to be a genuine Loon but as the 1990s flew past I was not only able to introduce by sons to Station Park but also persuaded my mother that a season ticket was in fact an interesting retirement gift. She and her sister rarely missed a match for the next 25 years and in the less successful seasons of the 2000s we were on several occasions more than 2% of the entire attendance on our own.

My oldest son, Robbie, ran the Loons Mad fanzine for a couple of seasons and was probably the only student who managed to sell advertising as part of his school media studies project. 

It has been an interesting first 50 seasons. All human life has been seen at Station Park in that time. Football and Scottish football has changed in many ways. It is barely credible now to recall that we used to pay £40k transfer fees but I have always been impressed when I have bumped into former players who plied their trade at all points of the football compass that they almost all insist there was something special about being a Loon.

The achievements of the 1980s in building and developing a team over several seasons are unlikely to be repeated. It’s hard to do that when even top clubs only dare offer contracts for a year or 2 at most. But there’s just a sense that Dick Campbell is getting close to it again. Let’s just hope there’s no bloody foreign dictator planning to take the gloss off this year’s cup run.

Sweet intoxication of prejudice confirmed

I nearly drank some Buckfast once.

In the name of journalism I decided ten years or so ago I should find out for myself what it was about the brown-bottled concoction that had become shorthand among police, politicians and stand up comedians for street drunkenness and violence.

By reputation it provided the quickest route to daily oblivion for many Scots who didn’t want to take too long about it.

I got as far as taking a swig but couldn’t actually make myself swallow it. My gag reflex wasn’t that enthusiastic about what in the old days was called new journalism.

Nevertheless I remained curious how and why ‘Buckie’ had become individually identified as being particularly responsible for so much harm while remaining legal.

Along with everyone else I had heard the much cited Strathclyde Police statistic that it had been mentioned in more than 5,000 crime reports over a period of three years.

Wow, that was a lot. Or was it?

And what precisely did ‘mentioned’ mean?

Still in the name of journalism I submitted some FOI questions to Strathclyde Police last February that I hoped would elicit some explanation and context.

First, the context. The FOI answers clarified that in the three year period in question, 2007 – 2010, the force had recorded 955,708 crimes and offences.

“The term ‘Buckfast’ was found to appear in the free text summary field of 5,973 of these crimes and offences.”

Just over half of one per cent.

The FOI officer very helpfully explained the reference to ‘free text summary field’: “Crime reports contain a free text summary field which can be searched electronically. The field is short, with a maximum of 254 characters in length permitted. The summary field is necessarily a brief description of events and is searchable. This field was interrogated for the following terms ‘BUCKFAST’, ‘Buckfast’ and ‘buckfast’.”

I asked if the free text summary fields [just over a tweet and a half worth of text] had been searched for any other alcohol brands or generic terms.

“Other terms were also searched. Each was searched using UPPER CASE, Proper Case and lower case variants. These included ‘Alcohol’ (69,773 hits out of 955,708), ‘Vodka’ (2,339), ‘Whisky’ (820), ‘Beer’ (3,394), ‘Lager’ (6,023), ‘Cider’ (4,124), ‘Merrydown’ (141) and ‘Tennents’ (1,615).”

So lager actually came out ahead of Buckfast. I haven’t heard any calls for it to be subjected to additional controls or special (no pun intended) police attention being paid to those who sell it.

Of course, I note that the vast majority of the reports that mention alcohol do not specify any particular brand or generic product so there is no way of knowing whether the distribution of each of the above would be replicated across all 69,733 mentions. Or, thanks to confirmation bias, whether the notorious ones are disproportionately more likely to be specified. Their share of the 69,733 mentions might actually be less. That is, might police have been more likely to mention Buckfast because of its reputation?

I note also in passing my surprise that relatively few of the reports mentioned alcohol at all given the conventional wisdom that so much of crime in Scotland is alcohol related. 69,733 mentions is less than 7% of the total.

Given the above information, I was not taken by surprise yesterday when it was announced that Police Scotland had settled out of court the court of session case brought against it by Buckfast’s distributors, J Chandler & Co.

The Police apologised to Buckfast for the actions of an individual officer who tried to stop a retailer from stocking the tonic wine.

They also apologised for any “distress or inconvenience” caused to the shopkeeper and promised not to target Buckfast in this way again.

In a written undertaking, Assistant Chief Constable Wayne Mawson said the police “will not request licensed retailers, situated anywhere in Scotland, to cease stocking for sale Buckfast Tonic Wine”.

It will have been an expensive stand off for both sides and despite the decorous language by both parties the settlement is an embarrassment to Police Scotland.

It was a bit of a  misjudgment in the first instance by whichever officer it was who thought it was a good idea to search for Buckfast. It was a far bigger error by, presumably, more senior officers to ignore not only the results the search threw up but also the utterly flawed methodology of the search in the first place. The statistic should have been binned, not published.

I am more concerned by the willingness of so many commentators and politicians up to ministerial level to accept the wobbly statistic and repeat it. And even top it by advocating a new concept of product specific policing policy based on it.

It was as if a product that is believed on the streets to offer the quickest route to oblivion is the problem to be addressed rather than the desire for such speedy oblivion of so many of our citizens.

I know there are few experiences quite as intoxicating as a prejudice confirmed but I am concerned that so much of current Scottish political discourse is driven by beliefs in search of evidence.

My toast is for more curiosity, more scepticism and less desperation always to find someone to blame.

Lord Carloway takes on the criminal trial

Lord Carloway, Lord Justice Clerk, is no stranger to controversy as the author of the proposal to abolish the longstanding Scottish requirement for corroboration of evidence by  more than one independent source of evidence in a criminal prosecution.

Now he is setting his sights on the criminal trial itself and the associated rules of evidence that he suggests have trapped procedures in a structure that made sense in the 19th century and before but is no longer the guarantee of ‘best evidence’ in the 21st century.

It is a theme touched on before Christmas in a speech by Lord Judge who retired last summer as Lord Chief Justice in England and Wales in the context of slashing the number of children who are called to give evidence in court. But Lord Carloway has been thinking in far more radical terms.

I’m not sticking my neck out too far to predict that his latest intervention will cause no less apoplexy within the profession.

Speaking to me last week Lord Carloway said we need some “clear skies thinking” that will  make best use of technology in recording matters of fact and give more consideration to witnesses in offering their testimony at a time that is convenient to them rather than the diaries of paid lawyers and judges.

This idea that everybody comes together at the once place at the one time for a trial of the evidence is essentially borne out of the conditions that existed in the 19th century and before. There was no means then of accurately recording what people had said at the time of an incident. 

Equally there were no means of copying other than manually or recording the state of a “thing” – a production.  You had to have a system where the judge and the jury had to see and hear the witnesses personally. It was the only way it could be done. The ‘best evidence’ was to have the thing or the document or the witness ‘live’ in court in front of the judge and jury.

What I’m saying is that the system of justice should be putting in place systems for the gathering evidence that take advantage of modern technology. An eye witness could record what they saw  as soon as possible after an incident on a smart phone or similar. That is likely to be a more accurate account – reliable or not -  of what they they think they saw than a statement written down by a police officer which inevitably loses nuances and expression and which they may have to speak to a year or more after the event.

We should seldom require people to attend court when they could be giving their evidence at any time. Especially in relatively minor cases – though it would apply across the board – we could have a situation in which a witness can give evidence on video – even on a mobile phone at a time convenient to him or her and that would be accepted by the court as their evidence.

I’m not saying the current structure of the criminal trial isn’t by and large doing what it ought to do. I have faith in its general effectiveness but like all systems it has to change with the times. We could do better in the way we treat victims, witnesses and juries. Judges and lawyers are paid for their part in the process and have control over their diary. I think we need to give more consideration to the way the process affects the lives of the members of the public who are drawn in by chance and accident. Why doesn’t our system allow them to give their evidence when it is convenient to them and not when the legal professionals have fixed some dates in their diary that suits them?”

Lord Carloway suggests giving more consideration to the convenience of the witnesses may address some of the disruptions to prolong cases at inconvenience to all parties and at expense to court budgets: “Adjournments and postponements were not common features in the Victorian age but times have changed. Now trial diets are continued 3, 4 or 5 times when a witness or even the accused fails to turn up. Waiting time, which is fundamentally wasted time, is inherent and endemic in the current system and impedes rather than ensures justice in many cases.”

Lord Judge gave a speech at the end of last year saying that it is unsatisfactory that tens of thousands of children are called to give evidence and cross examined, sometimes for days, in court. Is that the best way of establishing the facts of their evidence? We are some years ahead in Scotland in that regard with the Children and Vulnerable Witnesses Act and the Victims and Witnesses Bill currently in Holyrood that allow for video-recording of  taking and testing of evidence ‘live’ but not necessarily at the same time as the rest of the trial. The video can be played to the trial.

The point I am making is that why should that not become the norm for all witnesses unless there is a strong reason for it to be done in court.”

Lord Carloway anticipates the predictable European Convention of Human Rights objection protecting the right to a fair trial. What, for example, about cross examination?

There is a right to examine witnesses. Article 6 of the ECHR sets out a right that has to be protected that an accused person – or indeed the prosecutor – has the right to examine a witness if that testimony is key or decisive. The fact that the right exists to challenge or test evidence does no specify that it should be done in a court room or carry with it the necessity that it is done at the same time as everything else.” 

News of Lord Carloway’s latest thinking caught Brian McConnachie QC rather by surprise. His first response was not enthusiastic.

Video recorded evidence has been available for child witnesses for some time. But children are the exceptions. I don’t think they represent a principle that has been demonstrated to be so successful it can be applied to all witnesses.

I am all in favour of using whatever technology we have to make life easier for people who find themselves cited as a witness but that is a long way from taking apart the criminal trial as we know it. Technology may be able to offer useful improvements but anything more far reaching than that should be sent to the Scottish Law Commission for detailed consideration.”

The reservations were echoed by Derek Ogg QC: “In my experience both as a prosecutor or defence lawyer live examination and cross examination in front of a jury and in the presence of the accused is best evidence. We now have systems of videolink for children and vulnerable witnesses but it is second best. That’s why the defence rarely object to it. We don’t want juries to watch evidence in the same way they’d watch reality TV.

The only law I’ve found infallible is the law of unintended consequences. We really need a royal Commission or similar to look at the whole of the criminal trial to make sure we don’t throw the baby – justice – out with the bath water.”