Crown Office

In light of the nature of some of the public comments which have been made on prosecution decisions taken in the Shirley McKie case, the Lord Advocate Colin Boyd QC has today written to the Presiding Officer of the Scottish Parliament to set out the basis upon which all prosecution decisions are made, and the specific approach that was taken in this case.

The full text of the letter follows:

Mr George Reid MSP
Presiding Officer
Queensberry House
Scottish Parliament
Holyrood Edinburgh
EH99 1SP

17 February 2006

Dear George,

In view of the nature of some of the public comments that have been made in relation to the Crown's prosecution decisions in the Shirley McKie case, and because of the fundamental questions that such consideration raises, I thought it would be appropriate to explain to the Parliament the basis upon which such decisions are made and the specific approach that was taken in this case.

It is a fundamental principle that prosecution decisions are taken independently of Government or the Executive ¹ and that the Lord Advocate acts independently of any person. ² The principle of prosecutorial independence applies throughout the United Kingdom. ¹ The rationale for the principle is the importance of finality and fairness to a potential accused, to victims and to witnesses. ¹

As long ago as 1959, the then Prime Minister, Mr. Harold McMillan, explained the position of the Lord Advocate to the House of Commons, making it clear that the decision as to whether any citizen should be prosecuted, or whether any prosecution should be discontinued, should be a matter for the prosecuting authorities to decide on the merits of the case without political or other pressure. He stressed that it would be a most dangerous deviation from this sound principle if a prosecution were to be instituted or abandoned as a result of political pressure or popular clamour. ³

That principle is now enshrined in Section 48(5) of the Scotland Act 1998, which provides that any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person. In any case, prosecutors are obliged to consider the substantive law and the law of evidence which applies to the given set of circumstances in respect of each individual accused. Prosecutors also require to make judgements on the sufficiency of evidence, the credibility and reliability of witnesses and on the weight to attach to individual pieces of evidence bearing in mind the onus of proof on the Crown. They are also entitled to take account of other information placed before them, which may be confidential. If decisions on criminal cases are not taken privately, without the pressure of public scrutiny and on the basis of an independent assessment of the quality of evidence and credibility of witnesses, prosecutors could be inhibited from taking difficult decisions, which they must take in the exercise of an independent discretion. ¹

It has long been accepted that to put into the public domain the subject matter of prosecution decisions would be to expose persons to a form of public trial without giving them an opportunity to defend themselves. The only proper place for a person to be exposed to a criminal allegation by the Crown is a criminal court. Every person who is suspected or accused of having committed a criminal offence enjoys a presumption of innocence, which means that he or she is only to be taken to have committed the offence if the Crown has discharged the burden of proving his guilt beyond reasonable doubt, by the leading of evidence of the sufficiency and quality required by law, in a criminal court. ⁴

In all serious cases the duty of the Police is to report to the Procurator Fiscal and the Procurator Fiscal is responsible for completing the investigation of the case and reporting on the whole circumstances to Crown Counsel, who comprise the Lord Advocate, the Solicitor General and the Advocate Deputes. It is Crown Counsel who decide whether criminal proceedings are justified and appropriate.

The duty of the police is simply one of investigation under the supervision of the Procurator Fiscal. It is for the Crown and not for the police to decide whether the results of the investigation justify prosecution. ⁵ The reason for that, of course, is that prosecutors are able independently to apply their knowledge of the law and criminal procedure to the available evidence.

In cases involving alleged criminality by police officers the Area (formerly Regional) Procurator Fiscal is personally responsible for independently directing and completing the investigation and report of the circumstances to Crown Office for decision by a Law Officer - that is, the Lord Advocate or the Solicitor General. A similar approach is taken in relation to officers in a similar position (such as fingerprint officers).

In the case of Shirley McKie, the decision to prosecute her for perjury was taken by me in 1998, as Solicitor General, following a report by the then Regional Procurator Fiscal for

Glasgow. I am satisfied that the evidence available at the time justified criminal proceedings. The evidence against her was tested at trial. There was clearly sufficient evidence in law, because the case went to the jury, who ultimately acquitted her.

Subsequently, senior officers of Tayside Police were instructed by the Regional Procurator Fiscal for North Strathclyde to investigate possible offences of perjury and criminal conspiracy in relation to the trials of David Asbury and Shirley McKie and to report their findings to him in due course.

The Regional Procurator Fiscal completed his investigation of the case, including the careful examination of expert evidence and reported the full circumstances to me in 2001. As is normal practice in such a case, his report was also considered separately by the then Deputy Crown Agent, who submitted conclusions and recommendations to me as Lord Advocate. Following full and careful consideration of these reports, I concluded that there was insufficient reliable evidence to found a prosecution. I gave particular attention to the expert evidence which was presented to the court in both cases by the officers of SCRO. The decision to take no proceedings was explained to Ms McKie personally in September 2001 and announced publicly the same day.

Before any proceedings in respect of that evidence could have been contemplated I would require to have been satisfied that a court could accept beyond reasonable doubt not only that there was a misidentification, but that the evidence was given dishonestly and with criminal intent. In the light of the whole evidence available to me, including evidence from experts instructed by the defence which supported the SCRO evidence, it was clear that such intent could not be demonstrated. Since the time the issue arose in the trial of Shirley McKie there have always been, and there remain, conflicting expert views on the issue of identification of the relevant fingerprints. I concluded in 2001 that the conflict in expert evidence was such that there could be no question of criminal proceedings.

I shall be grateful if you would arrange for a copy of this letter to be placed in SPICe.

I am copying this letter to Pauline McNeill and Annabel Goldie in their capacity as Convenors of the Justice Committees.

Yours sincerely,

COLIN BOYD

Footnotes

¹ Statement of Lord Advocate's Position to the Dunblane Tribunal of Inquiry, 1996 (Report of the Inquiry, Appendix 3)

² Scotland Act 1998, s48(5)

³ HC Deb, 16 February 1959, col 31.

⁴ Report of an Inquiry into an Allegation of a Conspiracy to Pervert the Course of Justice in Scotland, Nimmo Smith and Friel, 1993, para 1.16

⁵Smith v HMA 1952 JC 66, 71-72, per Lord Justice-Clerk Thomson.

Note to Editors

1. The Justice Minister, Cathy Jamieson, has also today set out, for the Parliamentary record, the range of work undertaken in recent years to improve the practices and procedures of Scotland's fingerprints service. The text of this has been issued to the media in a news release from the Justice Department.

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