Professional Documents
Culture Documents
into an Allegation of a
Conspiracy to Pervert the
Course of Justice in
Scotland
To the Right Honourable the Lord Rodger of Earlsferry QC
Her Majesty's Advocate
By W A Nimmo Smith QC and
J D Friel, Regional Procurator Fiscal of North Strathclyde
EDINBURGH:
377
HMSO
In discharge of the remit set out in your letter to us dated 18 September 1992,
we have the honour to submit our Report herewith. A l t h o u g h it is submitted to
y o u , since it is intended for publication we propose hereafter to refer to y o u in the
t h i r d person. Y o u t o o k office on 22 A p r i l 1992, and accordingly when describing
events after that date we shall call y o u "the L o r d Advocate". References to "the
L o r d Advocate" p r i o r to that date are to y o u r predecessors in office.
Yours sincerely
W A N I M M O S M I T H QC
J D FRIEL
Edinburgh,
15 December 1992
THE REPORT O N A N I N Q U I R Y I N T O
AN A L L E G A T I O N OF A CONSPIRACY
TO PERVERT T H E COURSE OF
JUSTICE IN SCOTLAND
CONTENTS
Paragraphs
Page
Part 1
O u r Remit
1. 1 to 1. 17
Part 2
2. 1 to 2. 15
Part 3
3. 1 to 3. 7
13
Part 4
4. 1 to 4. 3
16
Part 5
T h e Resignation o f L o r d Dervaird
5. 1 to 5. 4
17
Part 6
i6. 1
to 6. 32
19
Part 7
7. 1 to 7. 13
28
Part 8
8. 1 to 8. 8
31
Part 9
9. 1 to 9. 6
34
Part 10
10.. 1 to 10. 33
36
Part 11
11.. 1 to 11. 19
53
Part 12
T h e O r r Report
12.. 1 to 12. 28
58
Part 13
Robert Henderson Q C
13.. 1 to 13. 22
66
Part 14
14.. 1 to 14. 22
72
Part 15
15.. 1 to 15. 24
79
Part 16
16.. 1 to 16. 43
85
Part 17
17.. 1 to 17. 16
96
Part 18
Conclusions
18. 1 to 18. 14
100
OUR REMIT
1. O U R REMIT
Authority
Y o u have been provided w i t h a copy of the leaked report to the C h i e f
Constable and previous relevant papers. There are several cases identified
i n that report and y o u may, w i t h m y authority, call for any case papers i n
relation to these reports. Y o u m a y also call for any papers w h i c h relate to the
allegations made in the report. Y o u further have my authority to interview
myself, the Solicitor General, any serving Advocate Depute and any member
of the staff of C r o w n Office and the Procurator Fiscal Service in connexion
w i t h these matters. Y o u m a y w i s h to interview other parties, b u t , as y o u
w i l l appreciate, for the most part I have no authority over other people and
I t h i n k such interviews could o n l y be arranged by agreement w i t h the
individuals. Should y o u meet w i t h any difficulty in this regard, I w o u l d like
to consider the matter again.
Remit
The basis of the allegations n o w made appears to be that decisions taken in
relation to the cases referred to were taken for improper reasons, namely
to prevent disclosure of information w h i c h w o u l d identify certain individuals
as homosexuals. T h e purpose of y o u r i n q u i r y is to seek to ascertain whether
there is any evidence to suggest that the decisions were taken for such
i m p r o p e r reasons. I w o u l d further w i s h y o u to consider the actions taken
by C r o w n Counsel and those in C r o w n Office and the Procurator Fiscal
Service w h o were aware of the allegations, w i t h a v i e w to establishing
whether there is any evidence to suggest that they were influenced by
improper considerations similar to those defined above.
Clearly y o u w i l l w i s h t o establish o n w h a t evidence the police report reached
its conclusions, and to explore that evidence to any extent w h i c h appears
to y o u to be necessary.
It is n o t , as such, part of y o u r r e m i t to comment on whether the j u d g m e n t
of C r o w n Counsel or Procurators Fiscal or deputes was correct on the merits
of the particular cases, although clearly y o u m a y require to take account of
such j u d g m e n t before y o u can decide whether the nature of any decision was
such as to indicate that it m a y have been reached for the improper reasons
w h i c h I have mentioned. N o r is it a part of y o u r r e m i t to enquire into whether
any individuals have engaged in homosexual practices, except in so far as
that m a y relate to the p r i m a r y purpose of the i n q u i r y .
Report
Once y o u have concluded y o u r review, I w o u l d b e grateful i f y o u w o u l d
report, in w r i t i n g , to me. If y o u conclude that there is evidence to support
any of the allegations, then the question of possible criminal proceedings
w o u l d arise and, to that extent, the possibility of publication w o u l d be
affected. Otherwise, I should w i s h to publish as m u c h of y o u r report as
possible, bearing in m i n d the principle that the C r o w n does n o t disclose
the reasons for certain decisions in relation to prosecutions of identifiable
individuals. I should accordingly be grateful if y o u w o u l d consider w r i t i n g
y o u r report in such a w a y that as m u c h as possible of it can be made public.
I should also like y o u to recommend w h i c h parts, if any, should be made
confidential.
Finally, w i t h the exception of the matters specifically excluded f r o m y o u r
r e m i t , I w o u l d n o t w i s h t o constrain y o u b y the terms o f this letter f r o m
extending y o u r i n q u i r y i n t o any area w h i c h y o u m a y consider relevant to
it. "
The terms of our r e m i t were made public on the same date.
OUR REMIT
Alastair C A M P B E L L , Advocate
Hector C L A R K , D e p u t y C h i e f Constable, Lothian and Borders Police
Isabel C L A R K , Procurator Fiscal Depute, E d i n b u r g h
The Honourable L o r d C L Y D E , Senator o f the College o f Justice
Stephen C O M E R F O R D , Constable, f o r m e r l y Detective Constable,
Lothian and Borders Police
Stephen C O N R O Y
Stephen C O N R O Y , Senior
H u g h C O R B E T T , Detective Sergeant, Lothian and Borders Police
Kevin C R A W F O R D
W i l l i a m C R O O K S T O N , Detective C h i e f Inspector, Lothian and Borders
Police
Frank C R O W E , Procurator Fiscal, K i r k c a l d y , f o r m e r l y Assistant Solicitor,
H i g h C o u r t U n i t , C r o w n Office
Leslie C U M M I N G , C h i e f Accountant, The L a w Society o f Scotland
Thomas D A W S O N Q C , Solicitor General for Scotland
Ian D E A N , formerly C r o w n A g e n t
Leeona D O R R I A N , Advocate
B r i a n D O U G L A S , Advocate
Kevin D R U M M O N D Q C
G o r d o n E L L I S , Depute C l e r k o f Justiciary
Christopher F E W , Police Constable, Northamptonshire Constabulary, form e r l y Detective Constable, Lothian and Borders Police
M a r k F I T Z P A T R I C K , Advocate
H u g h F O L E Y , Principal C l e r k o f Session and Justiciary
D a v i d F O R S Y T H , Reporter, "Evening N e w s "
The Right Honourable the L o r d F R A S E R O F C A R M Y L L I E Q C , Minister
of State at The Scottish Office, f o r m e r l y L o r d Advocate
Martin F R U T I N
Brian G I L L Q C , Keeper o f the Advocates' L i b r a r y
W i l l i a m G I L L O N , f o r m e r l y Depute C l e r k o f Justiciary
Michael G L E N
Richard G O D D E N , Solicitor, E d i n b u r g h
Robert H E N D E R S O N Q C
Thomas H E P B U R N , f o r m e r l y Detective C h i e f lnspector, Lothian and B o r ders Police
W i l l i a m H I D D L E S T O N , f o r m e r l y Detective C h i e f Superintendent and
Head o f C I D , Lothian and Borders Police
T h e R i g h t Honourable L o r d H O P E , L o r d President o f the C o u r t o f Session
and L o r d Justice General
A l l a n H U T C H I S O N , C h i e f Reporter, "The Scotsman"
Ian I R V I N G , Detective Inspector, Lothian and Borders Police
A l a n J O H N S T O N Q C , Dean o f the Faculty o f Advocates
D a v i d J O H N S T O N , Reporter, Radio Forth
Richard K E E N , Advocate
Robert L E E S , Regional Procurator Fiscal, Lothian and Borders
Robert L E I T C H , f o r m e r l y Detective Inspector, Lothian and Borders Police
Magnus L I N K L A T E R , E d i t o r , "The Scotsman"
Duncan L O W E , C r o w n A g e n t , f o r m e r l y Regional Procurator Fiscal,
Lothian and Borders
G o r d o n M c B A I N , Solicitor, E d i n b u r g h
Paul M c B R I D E , Advocate
T h e R i g h t Honourable the L o r d M c C L U S K E Y O F C H U R C H H I L L , Senator o f the College o f Justice
W i l l i a m M c D O U G A L L , H i g h e r Precognition Officer, Procurator Fiscal's
Office, E d i n b u r g h
N o r m a n M c F A D Y E N , Assistant Solicitor, Fraud U n i t , C r o w n Office
Kenneth M A C I V E R , Assistant Procurator Fiscal, E d i n b u r g h
Andrew M c L A U G H L I N
Elish M c P H I L O M Y , Senior Legal Assistant, C r o w n Office
Iain M c S P O R R A N , Procurator Fiscal Depute, E d i n b u r g h
OUR REMIT
M a r i a M A G U I R E , Advocate
Elaine M A T T H E W S
Hugh M A T T H E W S Q C
The Honourable L o r d M I L L I G A N , Senator o f the College o f Justice
John M I T C H E L L Q C
James M U I R , Solicitor, Shorts
John M U R R A Y Q C , D i c k s o n M i n t o Professor o f C o m p a n y and C o m m e r cial L a w , E d i n b u r g h U n i v e r s i t y , f o r m e r l y Senator of the College of Justice
Neil M U R R A Y Q C
Isabel N I C O L , f o r m e r l y Detective Sergeant, Lothian and Borders Police
Lawrence N I S B E T , Advocate
Derek O G G , Advocate
Charles O R R , Sergeant, f o r m e r l y Detective Sergeant, Lothian and Borders
Police
Roger O R R , C h i e f Inspector, f o r m e r l y Detective C h i e f Inspector, Lothian
and Borders Police
The Honourable L o r d P E N R O S E , Senator o f the College o f Justice, form e r l y H o m e Advocate Depute
Richard P R E N T I C E , Assistant C h i e f Constable, Lothian and Borders Police
James R E I L L Y , Advocate
Brian R E Y N O L D S , Sergeant, Lothian and Borders Police
The Right Honourable M a l c o l m R I F K I N D Q C M P , Secretary o f State for
Defence, f o r m e r l y Secretary of State for Scotland
Peter R O B E R T S O N , f o r m e r l y Detective Inspector, Lothian and Borders
Police
The Right Honourable the L o r d R O D G E R O F E A R L S F E R R Y Q C , L o r d
Advocate, f o r m e r l y Solicitor General for Scotland
Linda R U X T O N , Assistant Procurator Fiscal, Glasgow, f o r m e r l y Senior
Procurator Fiscal Depute, E d i n b u r g h
John S I M P S O N , Advocate
Robert S I N C L A I R , Depute C l e r k o f Justiciary
Walter Easton S M I T H
Michael S O U T E R , Inspector, f o r m e r l y Detective Inspector, Lothian and
Borders Police
D o n a l d S T E W A R T , Inspector, Lothian and Borders Police
The Honourable L o r d S U T H E R L A N D , Senator o f the College o f Justice
Sir W i l l i a m S U T H E R L A N D , C h i e f Constable, Lothian and Borders Police
Colin T U C K E R
Peter W A T S O N , Solicitor, Glasgow
John W A T T Q C
Thomas W E L S H , Advocate
Peter W I L S O N , Superintendent, Lothian and Borders Police
1. 10 Of the journalists we have spoken t o , we have listed o n l y those w h o m we
have interviewed in the sense that they have given information in response to
questions by us. We have had occasion to speak to a number of other journalists
w h o have been interested in the progress of our I n q u i r y . We have also spoken
to a variety of other persons, principally w i t h a v i e w to enlisting their help in
m a k i n g contact w i t h others w h o m w e wished t o interview. O n l y t w o persons
w h o m w e wished t o interview declined t o attend. These were T a r n Dalyell M P
and a rent b o y (or male prostitute) called "Jason". Mr Dalyell was k i n d enough
to explain to us by telephone that he remained "implacable" in his refusal to attend
for interview, and was amused by the consequent j u x t a p o s i t i o n of his name w i t h
that of "Jason".
1. 11 In approaching persons w h o m we wished to interview we had to resort
to whatever expedients seemed best suited to persuade each individual to attend,
b u t we ensured that a number of basic points were conveyed to each. These were,
firstly, that we were effectively to be regarded as the L o r d Advocate; secondly,
that our I n q u i r y was in substance a criminal investigation; t h i r d l y , that our sole
desire was to establish the t r u t h of the matters we were i n q u i r i n g i n t o ; and f o u r t h l y ,
that our interviewees could be assured of our discretion about their attendance
OUR REMIT
10
certain rules. Second, as they are the sole investigators, and no more than
investigators, it is their d u t y to p u t before the Procurator-fiscal everything
w h i c h m a y be relevant and material to the issue of whether the suspected
party is innocent or g u i l t y . We repeat, it is not for the police to decide w h a t
is relevant and material b u t to give all the information w h i c h m a y be relevant
and material.
Clearly in reporting the results of their investigation, the police must exercise
a power of selection. It w o u l d be absurd to suggest that all their results should
be submitted. B u t a cautious officer w i l l remember that he is not the j u d g e
o f w h a t is relevant and material and w i l l tend to err o n the safe side. I f he
is i n doubt, he should consult the Procurator-fiscal. H e w i l l also remember
that, as he and he alone has the o p p o r t u n i t y of the initial investigation in
the public interest, he must p u t the result of his investigations fairly before
the Fiscal in order that the C r o w n m a y have a fair basis on w h i c h to decide
whether or not to prosecute.
On the basis of the information provided by the police the C r o w n prepare
the precognition and carry out any necessary further investigation to enable
t h e m to decide whether to prosecute. If it is decided to prosecute, an indictment is prepared. "
2. 7 V e r y often the police w i l l have completed their investigation o f the crime
before the C r o w n becomes i n v o l v e d . One of the more senior officers w h o has
been involved i n the investigation, referred to as the Reporting Officer, w i l l be
allocated the task of reporting to the Procurator Fiscal. For that purpose he prepares
a report to the Procurator Fiscal summarising the circumstances. In the case of
serious crime the Procurator Fiscal w i l l carefully consider the available evidence
and i f he considers that proceedings are appropriate w i l l b r i n g the accused before
the Sheriff on petition. Thereafter the police w i l l be required to submit witness
statements to the Procurator Fiscal and may also be required to carry o u t further
investigations. T h e Procurator Fiscal w i l l subsequently carry o u t his o w n investigation by t a k i n g precognitions f r o m the more important of these witnesses and
other witnesses identified in the course of precognition. He m a y of course treat
witness statements taken by the police as adequate w i t h o u t precognition, particularly in the case of signed statements by police witnesses. He m a y again at that
stage direct that further investigations be carried out by the police. W h e n the
process o f precognition is complete the Procurator Fiscal w i l l submit the precognitions together w i t h his o w n s u m m a r y and assessment of the evidence, and his
conclusions and recommendations, to C r o w n Office.
2. 8 These papers w i l l be seen i n the first place b y an Advocate Depute. I t is
impossible t o predict i n advance w h i c h Advocate Depute w i l l see the papers
because all Advocates Depute w h o are not engaged in court attend each m o r n i n g
for the purpose of m a r k i n g papers and take the papers in each case at r a n d o m f r o m
among all the papers w h i c h have reached C r o w n Office that day. A n y papers not
so marked are marked later that day by the d u t y Advocate Depute, w h o attends
for d u t y according to a w e e k l y rota w h i c h frequently changes. T h e Advocate
Depute w h o marks the papers m a y instruct further investigation before m a k i n g
a decision, b u t otherwise w i l l decide whether o r not there should be a prosecution,
w h i c h person or persons should be prosecuted, and on w h a t charge or charges
they should be prosecuted. The Advocate Depute w i l l also decide i n w h i c h court
the prosecution should be brought, b u t for present purposes we shall assume that
the decision is t o prosecute i n the H i g h C o u r t . T h e Advocate Depute w i l l give
a w r i t t e n instruction t o the H i g h C o u r t U n i t . T h a t U n i t w i l l thereafter consider
the case in detail and prepare a draft indictment setting out the proposed charges
and lists o f productions and witnesses. The draft indictment w i l l thereafter be
forwarded to the Procurator Fiscal for revisal. F o l l o w i n g revisal the H i g h C o u r t
U n i t w i l l prepare the final indictment and allocate the case t o a sitting o f the H i g h
C o u r t before the final indictment is signed by an Advocate Depute and served
on the accused. In cases where the accused has been in custody since his first
appearance on petition all of this requires to be done w i t h i n 80 days f r o m the date
o f full c o m m i t t a l , so that the accused can be b r o u g h t t o trial w i t h i n 110 days. I f
11
the accused has been allowed bail he must be brought to trial w i t h i n one year after
his first appearance on petition.
2. 9 One of the Advocates Depute is appointed by the L o r d Advocate to be H o m e
Advocate Depute and has the responsibility of co-ordinating the appearances of
Advocates Depute at various sittings of the H i g h C o u r t throughout the country.
V e r y often it is not possible to predict u n t i l near the time of the sitting w h i c h
Advocate Depute w i l l be free t o prosecute the cases set d o w n for a particular
sitting. M o r e o v e r , sometimes there are n o t enough of the regular Advocates
Depute available to prosecute at all the sittings, in w h i c h event the C r o w n A g e n t
w i l l engage a suitably experienced practising Advocate t o serve as an ad hoc
Advocate Depute for the duration of a particular sitting. Incidental instructions,
for example instructions excusing witnesses f r o m attendance, w h i c h require to
be given in the period p r i o r to a trial m a y be given by any Advocate Depute w h o
happens to be available, and not necessarily the Advocate Depute w h o is to
undertake the prosecution. The papers for the cases w h i c h are to be prosecuted
at any sitting are usually made available to the Advocate Depute w h o is to undertake the prosecution o n l y a relatively short t i m e , at most about ten days, before
the start o f the sitting. That w i l l be his o r her first o p p o r t u n i t y to f o r m an
impression of the strengths and weaknesses of each case. Even after a sitting has
started, if there is more than one Judge sitting, cases m a y be switched f r o m one
court to another at short notice.
2. 10 A f t e r an accused has appeared o n petition he w i l l n o r m a l l y have obtained
the services of a solicitor w i t h the benefit of legal aid. A f t e r service of the indictment
w i t h lists o f productions and witnesses the solicitor w i l l arrange for precognitions
to be taken f r o m at least the more important witnesses. Sometimes the C r o w n
w i l l have made a witness list available t o the accused's solicitor at an earlier stage,
so that he or she can take precognitions before service of the indictment. The
solicitor w i l l take steps to instruct counsel to appear o n behalf o f the accused. Once
the precognitions are available and counsel has had an o p p o r t u n i t y to consider
them there w i l l be a consultation between the accused and his counsel and solicitors,
at w h i c h the accused can give instructions as to the position w h i c h he proposes
to adopt in relation to the charges in l i g h t of the evidence disclosed by the precognitions. As a result, in the period immediately before the t r i a l , counsel for the accused
is often instructed either to tender a plea of g u i l t y to the charges in the indictment
or, more often, to attempt to negotiate w i t h the Advocate Depute a plea or pleas
w h i c h w i l l be acceptable to the C r o w n .
2. 11 In assessing the strengths and weaknesses of a case C r o w n Counsel are able
to use their experience in deciding on the impression w h i c h any evidence is likely
to make on a j u r y . A b o v e all they are in a position, by v i r t u e of the commissions
they h o l d , to take account of the public interest in deciding h o w best to proceed.
In this respect their position is entirely different f r o m that of the police. In deciding
whether or not to accept a plea proposed by counsel for the accused an Advocate
Depute m a y speak to the Reporting Officer w i t h a v i e w to being satisfied on any
matters where the v i e w of a police officer w o u l d be of assistance. B u t the decision
whether or n o t to proceed on any particular charge is taken by the Advocate
Depute o n his or her responsibility alone. The Advocate Depute w i l l often seek
the advice of the Procurator Fiscal or his representative w h o has prepared the case
for t r i a l , b u t again any decision is the responsibility of the Advocate Depute alone.
Once a decision has been taken i t w i l l be reflected i n the appropriate formal
procedure in court. As we have already stated, the Judge has no part to play in
the t a k i n g of any such decision.
2. 12 W h i l e we have described w h a t n o r m a l l y happens, there are m a n y cases in
w h i c h other steps are taken. Where a v e r y serious crime, particularly a murder,
has been c o m m i t t e d , the Procurator Fiscal w i l l be involved f r o m the earliest stages
o f the investigation. The police w i l l also seek the assistance and direction o f the
Procurator Fiscal i n m a n y other cases o f difficulty, c o m p l e x i t y o r sensitivity.
The Procurator Fiscal m a y report to C r o w n Office at any stage, either for the
information o f C r o w n Counsel o r w i t h a v i e w t o obtaining C r o w n Counsel's
instructions. An Advocate Depute m a y decide to refer a particular p o i n t to a L a w
Officer for a decision w h i c h is then made the subject of an instruction by C r o w n
12
THE
LORD
ADVOCATE'S
INQUIRY
13
3. HOMOSEXUALITY A N D THE
CRIMINAL LAW
14
(2) T h e need f o r preventive prosecution directed at the male trade in p r o s t i t u t i o n w i t h use o f section 4 6 o f the C i v i c Government (Scotland) A c t 1982.
(3) T h e restriction o f prosecution o f the client o r older m a n t o those
situations demonstrating in particular a clear breach of trust, or the
o v e r c o m i n g o f w i l l b y drugs, threats etc.
(4) T h e treatment of homosexual and heterosexual acts of indecency on an
equivalent basis.
(5) T h e use of statutory provisions rather than c o m m o n l a w charges
wherever possible.
3. 5 T h i s background paper was discussed at a meeting held on 29 A p r i l 1991
attended b y , a m o n g others, L o r d Fraser, the L o r d A d v o c a t e , A l a n Rodger, the
Solicitor General, Duncan L o w e , the C r o w n A g e n t , and A l f r e d Vannet, the
D e p u t y C r o w n A g e n t . I n the course o f the discussion the L o r d Advocate suggested
the w r i t i n g o f a letter t o the Association o f C h i e f Police Officers o f Scotland. I n
due course a letter dated 1 J u l y 1991 was w r i t t e n by the C r o w n A g e n t to Sir
W i l l i a m Sutherland, C h i e f Constable of L o t h i a n and Borders Police, as H o n o r a r y
Secretary of A C P O S . This letter stated that the L o r d Advocate wished to ensure
that prosecution p o l i c y in relation to homosexual offences was based on a careful
analysis of where the public interest lay and that there was a clear understanding
o f the type o f conduct r e q u i r i n g the i m p o s i t i o n o f a c r i m i n a l sanction. I t continued:
" I t w i l l clearly be necessary f o r police r e p o r t i n g practice t o reflect that p o l i c y
and C h i e f Constables w i l l no d o u b t w i s h to consider a consistent enforcement
approach. "
It concluded by stating that the L o r d Advocate was currently reconsidering
elements of prosecution p o l i c y in this area.
" I t is of importance that this exercise takes i n t o account any special features
of police p o l i c y and practice w h i c h y o u regard as pertinent to this issue and
the L o r d Advocate w o u l d be pleased to consider the v i e w s of the Association
before finalising his instructions in the matter. "
Sir W i l l i a m replied by letter dated 30 A u g u s t 1991 referring to guidelines w h i c h
had been issued by a previous L o r d Advocate on 1 February 1981 and discouraging
any change in existing prosecution practice. The letter also suggested that a "careful
analysis of where the public interest lies" was a matter for Parliament.
3. 6 Consideration was given to the views of A C P O S as w e l l as those of other
persons w h o had communicated w i t h the L o r d Advocate. There was also press
coverage of the matter. In due course C r o w n Office Circular N o . 2025 dated 28
N o v e m b e r 1991 was issued to Procurators Fiscal. T h i s circular stated that the
L o r d Advocate considered that the public interest was n o t served by r o u t i n e l y
prosecuting all persons w h o participated in those consentual homosexual acts
w h i c h remain u n l a w f u l . It then set o u t guidelines w h i c h included the f o l l o w i n g :
"Where b o t h of the participants are over 16 years b u t one or b o t h are under
21 years and the act has taken place in private and where there are no
circumstances p o i n t i n g t o exploitation, c o r r u p t i o n , o r breach o f trust,
prosecution w o u l d n o t be appropriate. "
3. 7 T h e terms of the circular became public and extensive p u b l i c i t y and correspondence w i t h the L o r d Advocate ensued. The L o r d Advocate apparently t o o k
the v i e w that there was public misapprehension about the significance of the
r e v i e w w h i c h he had undertaken, w h i c h was fuelled by speculation that he intended
to effect a unilateral change in the l a w on the age of consent; that was not his
intention, as such a change in the l a w w o u l d be a matter for Parliament. T h e
circular was, however, reconsidered and on 20 December 1991 a n e w C r o w n
Office Circular N o . 2025/1 was issued to Procurators Fiscal. This circular made
reference to the c o n t i n u i n g review, and set out n e w , provisional directions by the
L o r d Advocate w h i c h replaced the directions contained in the previous circular.
These directions included:
" 1 . Where b o t h of the participants are over 18 years b u t one or b o t h are
under 21 years and the act has taken place in private and where there
are circumstances p o i n t i n g to exploitation, c o r r u p t i o n , or breach of
trust, prosecution w o u l d be appropriate. Where the Procurator Fiscal
15
16
4. HOMOSEXUALITY A N D THE
H O L D I N G OF J U D I C I A L OFFICE
5. T H E R E S I G N A T I O N OF L O R D
DERVAIRD
18
C O L I N T U C K E R ' S S T A T E M E N T OR
"LIST"
19
6. C O L I N TUCKER'S STATEMENT OR
"LIST"
20
C O L I N T U C K E R ' S S T A T E M E N T OR "LIST"
21
22
C O L I N T U C K E R ' S S T A T E M E N T OR "LIST*
23
file on his business dealings, w h i c h he kept at his home and also in a safe at
another location, containing information w h i c h w o u l d " r o c k the establishment",
information of a k i n d w h i c h w o u l d have the reporters "salivating all the w a y
to the telephone". We have of course pressed Robert Henderson about these
statements. At one interview he said that he was referring o n l y to the leaked O r r
Report, of w h i c h he had a copy in his briefcase at the t i m e , but at a subsequent
interview he explained the matter in a different w a y , w h i c h we n o w summarise.
6.18 W h e n certain aspects of Robert Henderson's financial affairs first came
under investigation, as we discuss in part 13 of this Report, he t o o k certain
precautions. A c c o r d i n g to h i m , he expected that the police w o u l d arrive w i t h a
search warrant to search his house for documents. He accordingly prepared a
photocopy of certain documents w h i c h he intended to hand to the police in such
an event, and he gave the principals in a manilla envelope, to Leeona D o r r i a n ,
Advocate, for safekeeping. She has been a friend as w e l l as a colleague of his for
m a n y years. She t o o k receipt of the envelope on 18 A u g u s t 1989, a date w h i c h
she w r o t e on it herself, and retained it in her possession continuously u n t i l , by
arrangement w i t h Robert Henderson, she exhibited the envelope and its contents
to us. Robert Henderson had no access to the envelope in the meantime. We looked
t h r o u g h the papers and are satisfied that they relate solely to his financial affairs.
There is no question of the envelope's containing a " l i s t " or any other document
relating to the alleged homosexual behaviour or any other aspect of the private
life of any person. We have no reason to suppose that anyone else holds papers
on behalf of Robert Henderson. In particular we are satisfied that one Elaine
Matthews, to w h o m we refer in part 7 of this Report, does n o t h o l d and never
has held any such papers. O u r conclusion must therefore be that Robert Henderson
has chosen to let it be believed that he is in possession of information of a k i n d
w h i c h he does not possess.
6.19 It is n o w appropriate to mention other actings of Robert Henderson in
relation to his typed copy of Tucker's Statement. As we have already stated, he
retained possession of it after the conclusion of Tucker's t r i a l . As it happens, the
investigation w h i c h the police called "Operation Planet" and w h i c h culminated
in the prosecution of Duncan and others started on 24 January 1990. D u r i n g the
course of the investigation Duncan L o w e , w h o was then Regional Procurator
Fiscal in E d i n b u r g h , instructed Detective Superintendent George Ritchie that
C o l i n Tucker should be interviewed. Duncan L o w e , w h o is n o w C r o w n A g e n t ,
is n o w unsure as to the circumstances w h i c h led to his g i v i n g the instruction,
although he is certain that he w o u l d have discussed the matter w i t h the then C r o w n
A g e n t , Ian Dean. H i s reasons for g i v i n g the instruction were either because the
police felt their inquiries w o u l d be incomplete w i t h o u t Tucker's being seen, as
his name tended to crop up in connection w i t h homosexual matters, or because
there was a request f r o m C r o w n Office, possibly as to whether Tucker had
information in relation to that case w h i c h w o u l d have involved Judges. It should
be emphasised that at such an early stage in the "Operation Planet" investigation
it was n o t k n o w n w h a t evidence m i g h t come to l i g h t about any person, and
r u m o u r and speculation about the alleged homosexual behaviour of Judges other
than L o r d Dervaird were rife at the t i m e . Detective Superintendent Ritchie, w h o
later, as a Detective C h i e f Superintendent, became Head ofthe C I D , unfortunately
died on 6 A u g u s t 1991, so we have been unable to obtain his evidence. Duncan
L o w e does recall that Ritchie was reluctant to carry o u t the instruction. The
Reporting Officer in "Operation Planet" was Detective Inspector Peter
Robertson, stationed at West E n d Police Station in E d i n b u r g h , w h i l e Ritchie had
overall responsibility for the investigation. Ritchie was particularly sensitive about
the possibility of evidence being discovered about the possible involvement of
prominent lawyers in the "gay scene" in E d i n b u r g h and in particular of possible
relationships between prominent lawyers and "rent boys", ie male prostitutes. He
accordingly maintained a degree of personal involvement in the steps w h i c h then
ensued.
6.20 A l t h o u g h Duncan L o w e is unclear in his recollection of the origins of his
g i v i n g the instruction, we t h i n k it l i k e l y that he acted on a request f r o m C r o w n
Office rather than on his o w n initiative. This is consistent w i t h the recollections
24
of L o r d Fraser and Ian Dean, and it is intelligible that the then L o r d Advocate
should have instructed that T u c k e r be interviewed. Duncan L o w e is m u c h more
confident in saying that the instruction he gave was n o t to obtain Tucker's " l i s t "
or any existing document, b u t rather to take a statement f r o m Tucker w h i c h m i g h t
be of relevance to the current investigation. Robertson has t o l d us that w h e n
Ritchie repeated the instruction to h i m , he understood that the instruction was
to obtain the "list". We are not convinced that that was in fact his understanding
at the t i m e , because we can find no support for it in the evidence of either Tucker
or D a v i d B l a i r - W i l s o n . A f t e r unsuccessful approaches had been made to Tucker,
D a v i d Blair-Wilson informed Robertson that Tucker w o u l d be at D a v i d BlairWilson's house one Sunday. Ritchie and Robertson accordingly w e n t to D a v i d
Blair-Wilson's house, a r r i v i n g there j u s t as John W a t t left. As we understand i t ,
there had been a consultation about the f o r t h c o m i n g disciplinary proceedings
against Tucker as a solicitor. A c c o r d i n g to Tucker, all that the police asked h i m
was whether he k n e w anything about the rent b o y scene in E d i n b u r g h , and he
said that he did not. He was not asked for the "list" or any other document. In
any event, if the police wanted to obtain any document f r o m Tucker, they d i d
not succeed.
6.21 A few days later Robertson happened to meet D a v i d B l a i r - W i l s o n at court
and referred to his failure to obtain information f r o m Tucker. D a v i d Blair-Wilson
made some suggestion that Robert Henderson m i g h t be able to help. H i s explanation for this is that if in doubt he w o u l d always refer a matter to Senior Counsel
for a decision. Robertson had met Robert Henderson previously because Robert
Henderson had played g o l f on a number of occasions w i t h Detective Constable
Stephen C o m e r f o r d and on one occasion Robertson had been a member of a
foursome w h i c h had been entertained by Robert Henderson at M u i r f i e l d . Because
C o m e r f o r d k n e w Robert Henderson better than Robertson d i d , Robertson
decided to use C o m e r f o r d as a go-between in m a k i n g an approach to Robert
Henderson. C o m e r f o r d arranged for Robert Henderson to meet t h e m for lunch
in D u b h Prais Restaurant in the H i g h Street in E d i n b u r g h a f e w days later. We
have n o t been able to fix the date of this lunch, b u t it was in about February or
M a r c h 1990.
6.22 At lunch arrangements were made for Robertson and C o m e r f o r d to go to
Robert Henderson's house in Gullane that evening, and they d u l y d i d so. There
he entertained them for a t i m e . A quantity of w i n e was consumed, as it had been
earlier in the day, and C o m e r f o r d fell asleep. Before Robertson and C o m e r f o r d
left Robert Henderson handed over to Robertson his typed copy of Tucker's
Statement. He had no authority f r o m Tucker to do so. In Robert Henderson's
w o r d s , w h a t he d i d "can't be reconciled w i t h my duties to Tucker". W h e n we
t o l d Tucker w h a t his Senior Counsel had done he said he was appalled.
6.23 Robert Henderson's explanation for having handed over his copy of
Tucker's Statement was that he d i d so in " w i d e r interests". A c c o r d i n g to h i m ,
Robertson had indicated that his i n q u i r y included the possibility that Judges,
w h o m he named, m i g h t be i n v o l v e d , and he handed over the Statement in order
to convince Robertson that that was not so. We do not find this a convincing
explanation. Robertson himself has made it clear to us, and we are able to verify
f r o m the case papers, that there was never any mention of any particular Judge's
name in the "Operation Planet" investigation or at the time of the subsequent trial
of Duncan and Others, and so there was no need for Robertson to be persuaded.
In any event, given Robert Henderson's o w n statement to us that Tucker had
more information at his disposal than was contained in his w r i t t e n Statement,
handing a copy of that Statement to the police w o u l d not have resolved the matter.
We are forced to the conclusion that Robert Henderson handed it over because
he perceived that by d o i n g so he m i g h t gain some personal advantage.
6.24 The preceding narrative of the handing over of the Statement requires
further explanation. As it happens, we first interviewed Robertson before we
first interviewed Robert Henderson. Robertson at that time t o l d us that Robert
Henderson had handed h i m the copy Statement, b u t he omitted f r o m his account
any involvement of C o m e r f o r d or the fact that the three of t h e m had had lunch
together. He claimed instead that he met Robert Henderson at court and arranged
C O L I N T U C K E R ' S S T A T E M E N T OR "LIST"
25
26
though that was n o t in fact the case. The Statement contained no information
w h i c h was of relevance to Robertson's "Operation Planet" investigation. We do
n o t of course have the benefit of Ritchie's evidence as to w h y he kept the copy
w h i c h Robertson had obtained f r o m Robert Henderson, b u t we are satisfied that
he d i d so w i t h o u t disclosing to the C r o w n that he had possession of it for a period
of almost a year. We are satisfied that he d i d n o t show it to Duncan L o w e w h e n
it first came into his possession. T h i s reinforces us in the v i e w that Duncan L o w e
had not given a specific instruction that Tucker's " l i s t " be obtained. If he had
given such an instruction he w o u l d have been bound to ask Ritchie about the
outcome, and w o u l d have been t o l d in 1990 that the copy Statement had been
obtained.
6.28 We discuss in part 10 of this Report allegations made by Stephen C o n r o y
against Douglas A l l a n , f o r m e r l y Regional Procurator Fiscal at E d i n b u r g h and
n o w Sheriff at Lanark. A f t e r these allegations had been set out in a m e m o r a n d u m
dated 21 February 1991 f r o m Detective Inspector Souter to Detective C h i e f Superintendent Ritchie, Assistant C h i e f Constable Richard Prentice telephoned Duncan
L o w e , at thattime Regional Procurator Fiscal a t E d i n b u r g h . He arranged a meeting
w i t h Duncan L o w e w h i c h t o o k place in early M a r c h 1991 and was attended
by Ritchie, Souter, and Detective C h i e f Inspector ( n o w Superintendent) Peter
W i l s o n . At this meeting copies of Souter's m e m o r a n d u m and an earlier m e m o randum dated 6 December 1990 by Detective Constable Christopher Few to
W i l s o n were handed to Duncan L o w e . There was no discussion of the Tucker
Statement. We are convinced that if Duncan L o w e had been aware of it at that
time he w o u l d have mentioned it to see if there was a possible connection between
it and those aspects of Conroy's allegations w h i c h related to the investigation into
the financial affairs of Burnett W a l k e r .
6.29 As we shall more f u l l y narrate, after that meeting Duncan L o w e met the
then C r o w n A g e n t , Ian Dean, and thereafter the then L o r d Advocate, L o r d Fraser,
w h e n it was decided w h a t instructions should be given about Conroy's allegations.
It was o n l y after those instructions had been carried out, and C o n r o y and his
former partner K e v i n C r a w f o r d had been interviewed on tape by other police
officers, that later in M a r c h 1991 Ritchie called on Duncan L o w e and gave h i m
a copy of Tucker's Statement. He refused to disclose h o w he had obtained i t .
Ritchie simply t o l d h i m that the Statement was something w h i c h he thought he
ought to see. He was to have possession of it for a few days before, as Ritchie
insisted, it was to be returned to h i m .
6.30
D u r i n g those few days Duncan L o w e t o o k the Statement and showed it
to the C r o w n A g e n t and the L o r d Advocate. It was decided that no further action
was required in light of the information contained in the Statement. W h e n the
copy was returned to Ritchie, Duncan L o w e d i d not keep a copy of i t . Thereafter
Ritchie allowed Detective C h i e f Inspector ( n o w Superintendent) Peter W i l s o n to
see the Statement because he was the Reporting Officer in the case against M a y
and Tucker (see part 15) and as it m i g h t have had relevance to that case. In fact
W i l s o n d i d not find it to be of any relevance. Some police officers had the impression that the Statement had originally come i n t o the possession of the police f r o m
a Procurator Fiscal. We believe that this impression can be explained by the above
narrative.
6.31 In addition to the original manuscript we n o w have in our possession the
f o l l o w i n g copies of the Tucker Statement:
(a) a copy w h i c h John W a t t printed for us (see para. 6.7);
(b) a copy w h i c h John W a t t prepared at D a v i d Blair-Wilson's request, and
w i t h Tucker's permission, d u r i n g the course o f our I n q u i r y , w i t h a v i e w
to obtaining legal advice about their respective positions f r o m G o r d o n
M c B a i n , solicitor, E d i n b u r g h , and w h i c h the Jatter handed to us;
(c)
Souter'scopyofthecopywhichRobertHendersonhandedtoRobertson;
(d) a copy of (c) prepared for our use, w h i c h the C h i e f Constable handed
to us; and
(e) another copy of (c) prepared for the use of C h i e f Superintendent G i l m o u r ,
w h i c h he handed to us, along w i t h (c).
C O L I U T U C K E R S 5 , T ^ T E M E M T C>^ "iLVS/r"
11
John W a t t , acting on Tucker's instructions conveyed to h i m by D a v i d BlairW i l s o n , has deleted the relevant file f r o m his computer disk. A n y other copy still
in existence must be a copy made or kept for questionable purposes by a police
officer w i t h o u t Tucker's authority. A t a n appropriate time w e shall c o m p l y w i t h
Tucker's request to us to destroy his manuscript and the above copies.
6.32
Before leaving the question o f C o l i n Tucker's Statement we should mention
that we have made a point of raising w i t h every witness w h o has read it the question
of w h a t m a y be taken f r o m it as to its contents and the effect that publication
thereof m i g h t have on the Scottish legal establishment, and all such witnesses
concur w i t h the description w h i c h we have given in paragraphs 6.3 to 6.5 above.
28
7. RUMOURS A B O U T MEMBERS OF
THE LEGAL ESTABLISHMENT
7.1 Since the motive for the alleged conspiracy to pervert the course of justice
is said to have been the desire to prevent the exposure as homosexuals, or as having
engaged in homosexual activities, of prominent members of the Scottish legal
establishment, we have thought it a necessary part of our investigation to consider
whether the reasons for such a m o t i v e m i g h t exist. To that end we have asked
witnesses, where appropriate, to repeat to us rumours or allegations they have
heard about the homosexual behaviour of such persons, so that we m i g h t consider
whether there was scope for investigation w i t h a v i e w to discovering whether
such persons were compromised.
7.2 The rumours w h i c h have come to our notice are many and varied. A r u m o u r
can of course be invented by anyone w h o is disposed to do so, and thereafter passed
on and embellished by those w h o are likewise disposed to do so. By its nature,
therefore, a r u m o u r m a y gain currency w i t h o u t its having any foundation in fact
or an identifiable source, and gain w e i g h t by repetition.
7.3 The rumours about Tucker's " l i s t " after L o r d Dervaird's resignation were
associated w i t h rumours to the effect that a number of other C o u r t of Session
Judges were similarly compromised by homosexual behaviour. The L o r d
President, L o r d Hope, considered, and where appropriate investigated, these
rumours and was satisfied that they were all unfounded. He has made it clear to
us that he remains satisfied that these rumours were unfounded. He is also confident
that if any C o u r t of Session Judge felt that he had been compromised by his sexual
conduct then that Judge w o u l d seek an interview w i t h h i m and w o u l d make a
full disclosure o f the relevant facts. Thereafter such consequences w o u l d f o l l o w
as w o u l d be appropriate. I t w i l l be remembered that i n the case o f L o r d Dervaird
his resignation followed frank admissions by h i m . No attempt was made to protect
h i m or to prevent his resignation, b u t instead the L o r d President discussed the
matter p r o m p t l y and f u l l y w i t h the Secretary of State and the L a w Officers. We
have no reason to suppose that any other Judge w h o was similarly compromised
w o u l d receive different treatment.
7.4 It is of importance to note that, although we were reminded of the rumours
w h i c h were current in early 1990, n o t one single person to w h o m we spoke
attached any credence to t h e m . There was no suggestion that any of them was
capable of substantiation, or that the L o r d President was w r o n g in h o l d i n g himself
satisfied that there was no substance to any such r u m o u r . We have carefully
considered whether any useful purpose w o u l d be served by the repetition of these
o l d rumours in this Report, and have concluded that we should n o t repeat them
in a w a y w h i c h w o u l d in effect revive t h e m or relate them to any identifiable Judge.
A p a r t f r o m anything else, the rumours of w h i c h we have been reminded were
so various, so far-fetched, and related to so manyjudges that it w o u l d be impossible
to treat t h e m seriously.
7.5 We have spoken to some of the Judges to w h o m the rumours related. T h e y
have all denied that there was any t r u t h in the rumours relating to t h e m . Otherwise
their reaction to the rumours and to recent press stories of a "gayjudges scandal"
has ranged f r o m anger and distress to expressions of ridicule. N o n e of them has
been able to make any conjecture as to w h y he should be the v i c t i m of rumours
and as to h o w rumours relating to h i m should have originated. Quite apart f r o m
the rumours relating to individual Judges, it should be appreciated that in a small
c o m m u n i t y of t w e n t y - f o u r Judges every r u m o u r , for example about a "gayjudges
scandal", w h i c h is reported in the press, and w h i c h fails to identify any individual,
taints every individual and consequently causes deep resentment. Those w h o
circulate and publish such unfounded rumours are at best ignorant of or indifferent
29
to the effect on all the Judges; and at w o r s t are motivated by malice of the most
evil k i n d .
7.6
We have spoken to no Judge w h o w o u l d , if he believed a fellow Judge to
be compromised, do anything other than leave h i m to face the consequences.
Indeed, we are sure that if a Judge believed a fellow Judge had engaged in such
unambiguous behaviour as sodomising a teenage rent b o y he w o u l d not hesitate
to report his belief to the appropriate authorities. O u r I n q u i r y has disclosed no
evidence of homosexual behaviour w h i c h m i g h t be capable of c o m p r o m i s i n g any
Judge in his h o l d i n g of judicial office. We are confident in the conclusion that no
serving Judge has been compromised.
7.7 In addition to rumours about Judges, we have had to consider rumours about
the present L o r d Advocate. Detective Sergeant Charles O r r t o l d us that James
Bethell, a reporter employed by "The Sunday Times", had approached h i m for
help in tracing a w o m a n , Elaine M a t t h e w s , w h o was believed to be a witness to
an incident in the N e w C l u b in E d i n b u r g h w h e n Robert Henderson had threatened
A l a n Rodger. A c c o r d i n g l y , we decided to ask Bethell to attend for interview.
7.8 At interview Bethell t o l d us that the "general theory" was that Robert
Henderson had in some w a y acquired c o m p r o m i s i n g material relating to A l a n
Rodger and had used the material to protect himself f r o m criminal investigation.
Of the alleged incident in the N e w C l u b , he said that the story was that Elaine
Matthews witnessed a meeting in w h i c h a folder of c o m p r o m i s i n g material "was
apparently brandished by Henderson in the N e w C l u b foyer." A c c o r d i n g to this
story Robert Henderson and A l a n Rodger were sitting together w h i l e the witness
was some distance away. It was her assumption that the occasion was one of
blackmail. Bethell said: "I've been t o l d this t h i r d person believes this scenario was
one in w h i c h Henderson was blackmailing Rodger." This was his reason for
w i s h i n g to trace Elaine M a t t h e w s . He did n o t profess any belief in the story, or
claim that there m i g h t be any evidence to support it apart f r o m w h a t Elaine
Matthews m i g h t say.
7.9 Bethell gave us no assistance as to the origins of the story. We found that
it was a story k n o w n to other journalists, t h o u g h in one version the story differed
in that Elaine Matthews d i d not feature as a witness to the alleged incident but
nevertheless was understood to be able to give information about i t .
7.10 We have investigated the story and found it to be entirely untrue. As it
happens, Robert Henderson and A l a n Rodger appeared against each other as
counsel in an appeal w h i c h was heard on 7 and 8 N o v e m b e r 1991. Richard Keen,
Advocate, was A l a n Rodger's Junior Counsel. The hearing of the appeal finished
before lunch on the second day. The three counsel walked f r o m Parliament House
t o the N e w C l u b for lunch. A t the N e w C l u b they had lunch together w i t h L o r d
Grieve, a retired Judge, followed by coffee, after w h i c h A l a n Rodger returned
to C r o w n Office. We t h i n k it likely that he left before either Robert Henderson
or Richard Keen. No clear recollection survives of the conversation at lunch,
t h o u g h it is certain that there was no dispute of any k i n d . Robert Henderson d i d
not have a file of papers and indeed brought n o t h i n g w i t h h i m f r o m Parliament
House. He had arranged to call on Elaine Matthews that afternoon. She has been
interviewed by us and is able to confirm f r o m a diary entry that he d i d visit her
on that date. She remembers that he was late and that he gave as his reason for
the delay that he had been having lunch in the N e w C l u b w i t h A l a n Rodger and
Richard Keen. She t o l d us that he said n o t h i n g that w o u l d support James BethelFs
story.
7.11 It is impossible to t h i n k h o w the untrue story should have originated. Elaine
Matthews d i d not witness and was not t o l d of any such incident. We have no
reason to believe that she has ever said otherwise. We cannot understand w h y
journalists should believe that she has information about the story.
7.12 We w o u l d have been content to let the matter rest at that if it were n o t for
further statements t o u s w h i c h w e must n o w discuss. A t interview w i t h Robert
Henderson we t o o k up w i t h h i m the alleged incident in the N e w C l u b . He denied
that any such incident had taken place. He then, however, w e n t on to say that
shortly after 23 October 1991 Peter Watson of L e v y and Macrae, Solicitors,
Glasgow, t o l d h i m that Scottish Television had damaging information relating
JO
31
SCANDAL"
8.1 The information contained in this part of our Report is derived solely f r o m
stories in the "Evening N e w s " and f r o m interviews w i t h Ian B u r r e l l , f o r m e r l y
C r i m e Reporter and n o w Assistant N e w s E d i t o r , and D a v i d Forsyth, Reporter
on the staff of that newspaper. A c c o r d i n g to B u r r e l l , w h e n the police investigation
k n o w n as "Operation Planet" started in January 1990 he learned about it f r o m
police sources. He began to l o o k into background information w h i c h could be
published after the t r i a l . As the investigation progressed "more and more people
were in the frame" and the size of the story was such that Forsyth was b r o u g h t
i n t o help h i m . B y w a y o f background research, according t o B u r r e l l , contact was
made w i t h a male prostitute or rent b o y w h o m i g h t provide general background
material for a "colour piece". A g a i n , according to B u r r e l l , Forsyth arranged for
Burrell and Forsyth to meet this rent b o y one evening, perhaps in about mid-1990.
This rent b o y was not apparently familiar w i t h the "rent b o y scene" in E d i n b u r g h ,
b u t said that he k n e w somebody else w h o operated in E d i n b u r g h and was on the
rent b o y scene. At the request of B u r r e l l and Forsyth this first rent b o y arranged
for them to meet the person in question. This person's real name is not "Jason",
w h i c h is a pseudonym, b u t we have no other means of identifying h i m . As we
understand w h a t we have been t o l d by Forsyth, he w o u l d regard Burrell as having
been more instrumental in arranging the meeting w h i c h t o o k place w i t h "Jason",
b u t he agrees w i t h Burrell that such a meeting t o o k place.
8.2 A c c o r d i n g to B u r r e l l , there were in total three meetings w i t h "Jason", a first
meeting at w h i c h they b u i l t up his confidence in t h e m , a second meeting at w h i c h
they obtained his story f r o m h i m and a t h i r d meeting w h i c h they p u t to h i m the
results of points w h i c h they had attempted to check. There is substantial agreement
between the journalists, neither of w h o m has kept his notes, as to w h a t "Jason"
t o l d t h e m . M o s t of w h a t he t o l d them is contained in a story published in the
"Evening N e w s " of 13 February 1991. That story was published on the same page
as extensive coverage of the outcome of the case against Duncan and Others, in
w h i c h the accused w h o had plead g u i l t y had by then been sentenced. In that story
"Jason" was described as being 18 years o l d , brought up in Manchester, " b l o n d haired", and an habitual rent b o y or male prostitute. He claimed that one of his
first "punters" in E d i n b u r g h picked h i m up in a car near Regent Road and drove
h i m to Waverley Station where he bought condoms and then drove h i m out of
the c i t y centre to a b i g house, near w h i c h he made "Jason" duck d o w n out of sight
in the front seat of the car. "Jason" was taken into the house where he was left
to w a i t in a r o o m lined w i t h books, in w h i c h he saw a photograph of the "punter"
on the w a l l s h o w i n g h i m wearing "some sort of l o n g robes". Thereafter he was
taken into a bedroom where the "punter" sodomised h i m .
8.3 We have of course pressed Burrell and Forsyth for further detail of "Jason's"
story. A c c o r d i n g to them the car was red, and according to Burrell "Jason" thought
that it m i g h t be of a Japanese make, large b u t not particularly expensive. T h e y
b o t h said that according to "Jason" the "punter" said that the house they were
g o i n g to belonged to the "punter's" sister. Forsyth said that according to "Jason"
the house was set back f r o m the street and was large, b u t "Jason" was otherwise
unable to describe i t . T h e y b o t h said that according to "Jason" he n o r m a l l y w o r e
spectacles, b u t was not w e a r i n g them on that evening, except w h e n he was left
alone in the r o o m where the photograph was. Neither of them was able to repeat
any description w h i c h "Jason" could give of the layout of the house or the nature
of its furnishings. B u r r e l l described an attempt to take "Jason" by taxi to retrace
the route f r o m Waverley Station to the house, but said that they became "stuck
in George Street". A c c o r d i n g to B u r r e l l "Jason" was able to describe the "punter"
32
as being maybe 5'9" tall, t h i n , perhaps in his 50s, and balding. He showed "Jason"
some photographs, b u t Jason was unable to come up w i t h any plausible identification. Neither B u r r e l l nor Forsyth was prepared to say to us that they understood "Jason" to be describing a person w h o was a Judge.
8.4 In the O r r Report the f o l l o w i n g passage appears in the section headed "4.
O P E R A T I O N P L A N E T T H E R E N T B O Y CASE":
" D u r i n g the initial appearance of the accused rumours began to circulate concerning the existence of a rent b o y whose identity was k n o w n to the press and
w h o had been interviewed by them. This individual later became k n o w n by
the pseudonym "Jason". He is alleged to have detailed being uplifted in the
c i t y centre by a respectable male in a large car and being driven to a spacious
house in Queensferry Road and w h i l s t apparently awaiting his client he saw
a photograph of the client dressed in w h a t are described as l o n g red robes.
This information was published along w i t h certain other articles f o l l o w i n g
conviction of the principle (sic) accused."
We are not aware of any source of information about the "Jason" story, p r i o r to
the leaking of the O r r Report, apart f r o m the "Evening N e w s " . There are,
however, t w o items of information in the O r r Report w h i c h are not derived f r o m
the "Evening N e w s " story. These are, firstly, that the house was in Queensferry
Road and, secondly, that the l o n g robes were red. These items appear to be police
embellishments of the original story as there is no other source for them. If B u r r e l l
and Forsyth had had these items of information they w o u l d have investigated
them further and w o u l d have included them in their story.
8.5 A f t e r the leaking of the O r r Report and the beginning of our I n q u i r y the
"Evening N e w s " carried a story in its edition dated 25 September 1992 by D a v i d
Forsyth and another reporter headed "Every W o r d is T r u e " and sub-headed
"Pledge by Rent B o y in Gayjudges Scandal". The story started w i t h the paragraph
"The rent b o y at the centre of the gayjudges scandal, today broke his 19-month
silence to say: "I stand by everything I said"." T h e last three paragraphs were
clearly intended to l i n k the "Jason" story w i t h certain events w h i c h happened at
the time of the case against Duncan and Others w h i c h we discuss in part 16 of this
Report. The t h i r d paragraph states: " N o w in his early 20s Jason t o l d h o w a wealthy
client t o o k h i m to a plush E d i n b u r g h house where he saw a photograph of the
man dressed in l o n g red robes." Forsyth was able to give no clear explanation for
describing "Jason" as being "the rent b o y at the centre of the gayjudges scandal".
As we have said, according to b o t h B u r r e l l and Forsyth there was no evidence,
apart perhaps f r o m the mention of l o n g robes, w h i c h m i g h t identify the "punter"
as a Judge. Forsyth accepts that the description of the l o n g robes as being red was
derived f r o m the O r r Report and was an error on his part because it was not derived
f r o m any information given to the reporters by "Jason".
8.6 A l t h o u g h the story of 25 September 1992 was based on a fresh interview
w i t h "Jason", Forsyth t o l d us that "Jason" had n o t h i n g to add to the information
contained in the original story of 13 February 1991. The information available to
us f r o m the original story as published and f r o m Burrell and Forsyth does not
lead us to the v i e w that there is any evidence to support the conclusion that the
"punter" was a Judge. L o n g robes, including those w h i c h are w h o l l y or partly
red, are of course w o r n by clergymen and academics as w e l l as by lawyers. The
robes w o r n b y Judges o f the C o u r t o f Session and H i g h C o u r t o f Justiciary for
c i v i l and criminal business respectively are partly red. T h e y are never w o r n w i t h o u t
either a short or a l o n g w i g . If a Judge was photographed wearing robes we w o u l d
expect h i m to be wearing a w i g as w e l l . No mention is made of a w i g in the "Jason"
story. The evolution of the story f r o m its original publication t h r o u g h the O r r
Report to its more recent publication serves rather as an illustration of the w a y
in w h i c h an originally tenuous story can become embellished t h r o u g h a failure
to pay proper attention to questions of detail.
8.7 At best w h a t we have been able to learn f r o m the "Evening N e w s " and its
reporters represents hearsay evidence. We are prepared to believe that Burrell and
Forsyth d i d interview a person claiming to be a rent b o y w h o gave them the
information reflected in the story of 13 February 1991. The best evidence of that
story w o u l d , however, come f r o m "Jason" himself. If we had had an o p p o r t u n i t y
33
14
9. M I C H A E L JUNIOR'S STORY A B O U T
A "JUDGE"
35
36
10. A L L E G A T I O N S B Y S T E P H E N
C O N R O Y A G A I N S T SHERIFF
DOUGLAS
ALLAN
10.1 Douglas A l l a n had a career in the Procurator Fiscal Service w h i c h c u l m i nated in his serving as Regional Procurator Fiscal in E d i n b u r g h f r o m A p r i l 1983
u n t i l he was appointed Sheriff of Lanark on 1 A u g u s t 1988. The grave allegations
w h i c h were made against h i m by Stephen C o n r o y related to the time w h e n he
was a Regional Procurator Fiscal. We are not aware of any allegations against h i m
relating to the period since he became a Sheriff. There is accordingly no need for
us to say anything more about h i m in that latter capacity. We should emphasise
at the outset that we have n o t found a shred of evidence to support any allegation
against Douglas A l l a n . A l l those to w h o m we have spoken w h o had personal
knowledge of h i m d u r i n g the period w h e n he was Regional Procurator Fiscal
spoke h i g h l y of h i m in b o t h personal and professional terms. Even those w h o
thought that the allegations were such as required to be investigated spoke h i g h l y
o f him.
10.2 Stephen C o n r o y has been employed by several different firms of solicitors
as a court runner and in similar relatively inferior capacities. A c c o r d i n g to h i m ,
he entertained for a time an a m b i t i o n to become a solicitor. Thereafter he was
engaged in various business ventures u n t i l he was c o m m i t t e d in custody on 9 A p r i l
1992 on a petition containing several charges of fraud. F o l l o w i n g a plea of g u i l t y
he was sentenced on 20 J u l y 1992 to six years' imprisonment. C o n r o y appears
to us, f r o m the papers we have read, f r o m information we have received f r o m
others, and f r o m our o w n experience of i n t e r v i e w i n g h i m in prison, to be a
man w h o is not o n l y prepared to be deliberately dishonest, b u t also to have an
imagination over w h i c h he has o n l y intermittent c o n t r o l . We found that w h e n
he makes an effort, and remains calm, he can give t r u t h f u l answers to questions.
B u t he easily loses control of his imagination and becomes v o l u b l e . At such times
he pours o u t his fantasies, particularly about people he claims to be homosexuals
in positions of influence. The w o r d "photograph" readily acts as a trigger for the
o u t p o u r i n g of his fantasies. W h e n we pointed o u t to h i m that t w o accounts he
had given, w i t h i n a few minutes of each other, of photographs w h i c h he claimed
to have seen (and w h i c h w o u l d n o t in any event been of relevance to our I n q u i r y )
were m u t u a l l y inconsistent, he appeared almost frightened by the w a y in w h i c h
his imagination had led h i m to speak. Consistently w i t h his former a m b i t i o n to
become a solicitor, he is inclined to fantasise about being himself a figure of some
consequence in the legal w o r l d and associating w i t h prominent lawyers. Richard
Godden, w h o was f o r m e r l y an advocate and is n o w a solicitor, and M a r k
Fitzpatrick, Advocate, have b o t h described to us an occasion on w h i c h they found
C o n r o y wearing a g o w n in Parliament H a l l and t o l d h i m he should not do so.
In addition to these characteristics he is correctly described by others w h o have
had dealings w i t h h i m as being devious and manipulative. In all, it is hard to see
h o w his allegations ever came to be taken seriously.
10.3 Conroy's allegations against Douglas A l l a n came to the notice of the police
in the f o l l o w i n g circumstances. For a time C o n r o y and K e v i n C r a w f o r d were
partners b o t h sexually and in business together. T h e y appear to have r u n a number
of shops in the course of their business. In early 1990 b o t h their sexual and business
relationships came to an end. C r a w f o r d was thereafter harassed by C o n r o y ,
according to h i m , and decided to make a complaint to the police. He w e n t to
Police Headquarters on 5 December 1990, where he saw Detective Constable
Christopher Few ( n o w a Constable in Northamptonshire Constabulary). C r a w f o r d made a number of allegations against C o n r o y , w h i c h Few recorded in a
m e m o r a n d u m dated 6 December 1990 to Detective C h i e f Inspector Peter W i l s o n ,
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
37
The m e m o r a n d u m proceeds:
" A t 0900 hours on M o n d a y , 11th February, 1991, K e v i n C r a w f o r d
telephoned the reporting officer at the Fraud Squad and related an incident
INQUIRY
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
39
40
in the letter f r o m Tarn Dalyell to the C h i e f Constable and in the O r r Report. Since
the O r r Report was, according to its author, largely based on information supplied
by Souter and B r o w n , it is impossible to avoid the conclusion that either Souter
or B r o w n or b o t h have been, directly or indirectly, the source or sources of
information at every stage about the alleged l i n k .
10.10
The photographs w h i c h were shown by Souter and B r o w n to C o n r o y ,
as recorded in the m e m o r a n d u m , and w h i c h were referred to in subsequent
interviews by police officers of C r a w f o r d and C o n r o y , are n o w in our possession.
Of the t w o s h o w i n g Douglas A l l a n , one is a colour photograph taken at a Burns
Supper at Police Headquarters, s h o w i n g Douglas A l l a n in a k i l t , the C h i e f Constable, SheriffWilliam Christie and the D e p u t y C h i e f Constable. The other is a poor
photocopy in black and w h i t e of a photograph taken on the same occasion,
s h o w i n g at least 13 persons, of w h o m Douglas A l l a n is t h i r d f r o m the r i g h t and
a police officer is fifth f r o m the left. There is little apparent resemblance between
these t w o apart f r o m the fact that they are b o t h wearing glasses. Sheriff A l l a n has
expressed resentment to us at the use, for the investigation of allegations of criminal
behaviour by h i m , of photographs taken at a private social occasion at Police
Headquarters.
10.11
On receipt of Souter's m e m o r a n d u m W i l s o n discussed its terms w i t h
Ritchie and they decided that, however incredible the allegations against Douglas
A l l a n m i g h t seem, it was necessary to take the matter to Duncan L o w e , the
then Regional Procurator Fiscal. A c c o r d i n g l y Assistant C h i e f Constable Richard
Prentice telephoned Duncan L o w e and arranged a meeting, w h i c h t o o k place in
early M a r c h 1991, and was attended by Ritchie, W i l s o n and Souter. Copies of
the memoranda by Few and Souter were given to Duncan L o w e . No mention
was made of the Tucker Statement. There was a b r i e f discussion, d u r i n g w h i c h
Duncan L o w e said that he wanted to consider the matter further. He d i d n o t tell
the police officers w h a t he intended to d o . W h a t he in fact d i d was to arrange to
see Ian Dean, the then C r o w n A g e n t , and to show h i m the Souter m e m o r a n d u m .
T h e y discussed the matter at length, and it was decided that the C r o w n A g e n t
w o u l d arrange for the L o r d Advocate, L o r d Fraser, to see the Souter memorandum
and discuss it w i t h Duncan L o w e . A meeting was accordingly arranged w i t h the
L o r d Advocate, w h i c h was attended by Ian Dean and Duncan L o w e . There was
a full discussion of the m e m o r a n d u m . The meeting concluded w i t h a decision that
C r a w f o r d and C o n r o y should be interviewed on tape by police officers.
10.12 A f t e r the meeting w i t h the L o r d Advocate, Duncan L o w e instructed
Ritchie to have C r a w f o r d and C o n r o y interviewed on tape. The instructions were
given by telephone on 8 M a r c h 1991 and were recorded in a file note. T h e i r terms
included instructions that the interview should be carried out by different officers
f r o m those previously involved because of the o n g o i n g criminal i n q u i r y , and that
the statements should be specific as to whether C r a w f o r d and C o n r o y were
alleging criminal conduct by Douglas A l l a n . Ritchie accordingly instructed Detective Inspector Ian I r v i n g and Detective Sergeant H u g h Corbett, b o t h members
of the Serious C r i m e Squad, to carry o u t the interviews. For that purpose they
were given use of copies of the memoranda by Few and Souter and of the p h o t o g raphs w h i c h we have described.
10.13
C r a w f o r d was interviewed on 12 M a r c h 1991, and again, on a matter w h i c h
is n o t relevant for present purposes, on 22 A p r i l 1991. C o n r o y was interviewed on
17 A p r i l 1991. W e have transcripts o f these interviews. W h i l e they are lengthy,
n o t h i n g of substance was added by either C r a w f o r d or C o n r o y to w h a t they had
already t o l d Souter and B r o w n . In order for the quality of the evidence to be
understood we t h i n k it appropriate to quote certain passages.
10.14
In the transcript of the interview w i t h C r a w f o r d on 12 M a r c h 1991 the
f o l l o w i n g passage appears:
"DI
C o u l d y o u please express i n y o u r o w n w o r d s w h a t y o u k n o w
about the former Regional Procurator Fiscal and n o w Sheriff of
Lanark. I w o u l d suggest that y o u start f r o m the beginning possibly w h e n y o u first heard or met h i m r i g h t up u n t i l this last time
that y o u saw o r met h i m s o i f y o u j u s t relax and j u s t tell m e h o w
y o u k n o w or w h a t caused y o u to make these allegations and
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
SUSPECT
41
DI
W h o said this?
SUSPECT
DI
SUSPECT
T r y i n g t o w i n d m e u p basically.
DI
SUSPECT
Yes aye.
Standing beside me in the disco the person w h o I am led to believe
is the Procurator Fiscal standing smiling over n o w the chaps never
spoke to me but he has always k n o w n w h o I am and I have always
k n o w n or led to believe w h o he is he never ever speaks to anybody
42
DI
SUSPECT
DI
I n relation t o what?
SUSPECT
DI
SUSPECT
DI
SUSPECT
He was p h o n i n g .
DI
I n that office.
SUSPECT
DS
SUSPECT
DS
D o y o u k n o w w h a t number h e dialled?
SUSPECT
N o n o t o f f hand n o .
DS
SUSPECT
DI
SUSPECT
DS
SUSPECT
DS
SUSPECT
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
43
DI
SUSPECT
SUSPECT
DS
SUSPECT
N o , not at all.
DS
SUSPECT
DI
DI
SUSPECT
DI
SUSPECT
DI
DI
SUSPECT
SUSPECT
DI
SUSPECT
DI
SUSPECT
No.
DI
W h o w o u l d k n o w w h o that y o u n g is?
SUSPECT
Stephen C o n r o y or D a v i d Blair W i l s o n .
DI
T h e y w o u l d k n o w w h o i t was?
SUSPECT
Mmhh.
DS
SUSPECT
A n d i s i t j u s t the t w o o f them?
As far as I am led to believe it was the o n l y the t w o that the was
o n l y o n l y name mentioned by Stephen was D a v i d Blair W i l s o n . "
10.15
A n o t h e r passage we t h i n k we should quote f r o m the transcript of C r a w ford's interview is as follows:
T h e can y o u describe to me the man y o u k n o w as a Procurator
"DI
Fiscal?
The best description I could give y o u of h i m is John M a j o r the
SUSPECT
Prime Minister that's w h o he reminds me o f j o h n Major's height,
b u i l d , looks, hair, glasses.
DI
W h a t height do y o u t h i n k he is?
SUSPECT
(sniff) 5'8"5'6" ehh sorry 5'8 6 f t .
W h a t sort o f build?
DI
M e d i u m b u i l d he is a man of say late forties ehh stocky b u t t r i m
SUSPECT
he is not fat he is not a heavy he is j u s t t r i m g u y ehh glasses.
W h a t sort of glasses does he wear?
DS
ff
44
SUSPECT
DI
Does he smoke?
SUSPECT
No.
DI
SUSPECT
DS
SUSPECT
DI
Was it v e r y grey?
SUSPECT
DI
SUSPECT
No.
DS
SUSPECT
DS
Mmhh.
DI
SUSPECT
DI
SUSPECT
10.16
I t w i l l be understood f r o m the passages w e have quoted f r o m the transcript
of the interview w i t h C r a w f o r d that the o n l y direct evidence w h i c h he was
able to give related to seeing a person w h o m he believed to be Douglas A l l a n .
E v e r y t h i n g else about this person was hearsay.
10.17 The transcript of the i n t e r v i e w w i t h C o n r o y on 17 A p r i l 1991 is impossible
to summarise. We shall quote some of the more significant passages. One passage
reads as follows:
"DI
C o u l d y o u please express i n y o u r o w n w o r d s w h a t y o u k n o w
about the former Regional Procurator Fiscal and n o w Sheriff of
Lanark, I w o u l d suggest y o u start f r o m the beginning possibly
w h e n y o u first heard or met h i m r i g h t up u n t i l the last time y o u
saw o r met h i m . N o w d o y o u understand that?
SUSPECT
Yes I d o .
DI
SUSPECT
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
45
46
SUSPECT
DI
Ehmm.
SUSPECT
DI
SUSPECT
10.18
C o n r o y then w e n t on to describe meeting Douglas A l l a n in Queensferry
Street and g o i n g out for dinner w i t h h i m in the H o w a r d H o t e l in Great K i n g
Street. We n o w quote another passage f r o m the transcript:
"DI
C o u l d y o u describe h i m t o m e please?
SUSPECT
A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N
47
SUSPECT
Yeah.
DS
W o u l d k n o w h i m either?
SUSPECT
DI
SUSPECT
Forties (sigh).
DI
SUSPECT
DI
SUSPECT
DI
SUSPECT
DI
SUSPECT
DI
SUSPECT
DS
Or that one but that one's a b i t it's cause I can't see this ones face
more I've seen clearer photos of y o u r colleague.
Have y o u ever?
W h i c h I have identified.
Ever seen that that photograph this particular one?
I've been s h o w n one similar to that.
W h o showed y o u it?
Y o u r colleague M r Souter.
That's okay. R i g h t sorry yeah n o w in that photograph that y o u r
indicating to a person that y o u k n o w as Mr A l l a n it appears
to be the t h i r d person along f r o m the r i g h t hand side of the
photograph.
SUSPECT
DS
SUSPECT
B u t I couldn't see.
DS
SUSPECT
Yes it is.
DS
SUSPECT
DS
Yeah.
T h a n k y o u . C o u l d I ask y o u about the photographs that y o u
mentioned there y o u say that ehh a person or one of the persons
in the photograph was Mr A l l a n , is that correct?
SUSPECT
DS
Ehmm.
Y o u have seen these photographs?
SUSPECT
DS
SUSPECT
DS
SUSPECT
A b o u t four o r f i v e .
A r e they polaroid or are they been developed?
T h e y looked I w o u l d n ' t k n o w the difference really e h m m they
are b i g photos y o u k n o w they are maybe about this size A 4 .
DS
48
DI
SUSPECT
A b o u t five or six.
DI
Five or six.
DS
SUSPECT
Black and w h i t e .
DS
SUSPECT
DS
SUSPECT
DS
Right."
He also stated that the persons in the photographs were all male and were naked.
We see no need to quote further f r o m his descriptions of the photographs.
10.19
In reporting on these interviews to the Procurator Fiscal b o t h I r v i n g and
Corbett described C o n r o y as devious. Robert Lees succeeded Duncan L o w e as
Regional Procurator Fiscal at E d i n b u r g h on 1 A p r i l 1991. Before then Duncan
L o w e had made h i m aware of the terms of the Souter m e m o r a n d u m . A f t e r
C r a w f o r d and C o n r o y had been interviewed and the transcripts and report were
available there was a meeting at C r o w n Office attended by the L o r d Advocate,
Duncan L o w e , w h o was by then the C r o w n A g e n t , and Robert Lees. It was
decided that D a v i d Blair-Wilson should be interviewed about those aspects of
Conroy's allegations w h i c h suggested that Douglas A l l a n m i g h t have been c o m promised. Robert Lees accordingly arranged a meeting w i t h D a v i d B l a i r - W i l s o n ,
w h i c h t o o k place on 10 M a y 1991. Kenneth Maciver, Assistant Procurator Fiscal,
was also in attendance. At the meeting D a v i d B l a i r - W i l s o n said that he had never
met Douglas A l l a n , had not seen h i m in any of the premises referred to by C o n r o y ,
and denied any knowledge of the photographs referred to by C o n r o y . He stated
that w i t h his familiarity of the "gay scene" he w o u l d have k n o w n if Douglas A l l a n
was a homosexual, and had heard n o t h i n g to that effect. A c c o r d i n g to Robert
Lees, D a v i d Blair-Wilson said: " I f you're g o i n g to base any case on C o n r o y ,
double and triple check i t , he is a liar." Robert Lees gained the overall impression
that D a v i d Blair-Wilson was telling the t r u t h . Thereafter Robert Lees returned
to the C r o w n Office to report to the L o r d Advocate and the C r o w n A g e n t . He
t o l d them his views about his meeting w i t h D a v i d B l a i r - W i l s o n and it was decided
that because there was no evidence of the existence of the photographs referred
to by C o n r o y there was accordingly no evidence to j u s t i f y taking the i n q u i r y
further.
10.20 A newspaper called "The Sunday Scot" appeared as a publication for a
short time. In its edition of 12 M a y 1991 there was an item entitled "Gay B o y and
the Sheriff' w h i c h repeated Conroy's allegations, b u t w i t h o u t n a m i n g Douglas
A l l a n . W h i l e it is possible that either C o n r o y or C r a w f o r d gave the story to the
newspaper, another distinct possibility is that it came f r o m a police officer w h o
k n e w of the contents of Souter's memorandum of 21 February 1991 and was
dissatisfied w i t h the steps w h i c h had been taken. Sheriff A l l a n was aware of the
publication, b u t decided that because he was not named in it there was no action
w h i c h he could usefully take. His attitude to further newspaper stories published
since the time that C o n r o y appeared in court in July 1992 has been that he expects
the t r u t h to emerge in our Report.
10.21 At an early stage of our investigations it became apparent that Conroy's
position in relation to his allegations against Douglas A l l a n m i g h t be materially
different f r o m w h a t it had been eighteen months previously. On 22 September
1992 C o n r o y telephoned Police Headquarters f r o m prison and said that he wanted
to see Detective Inspector Michael Souter as he had information for h i m . It was
decided that he should be seen, n o t by Souter, b u t by Detective Inspector I r v i n g
and Detective Sergeant Corbett, w h o had previously interviewed h i m on tape.
T h e y interviewed h i m , again on tape, at HM Prison, Glenochil, on 23 September
1992. We have a copy of the transcript. W h a t C o n r o y had to say to the t w o officers
was even more incoherent than it had been or. the previous occasion, b u t we quote
briefly f r o m i t . At one point he said:
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11. O T H E R A L L E G A T I O N S A G A I N S T
SHERIFF D O U G L A S A L L A N
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11.4 D u r i n g the course of the interview Glen t o l d us that there was a photograph,
w h i c h he had seen, s h o w i n g Douglas A l l a n and Stephen C o n r o y sitting on a settee
w i t h a coffee table in front of t h e m . M a r k Fitzpatrick was also in the photograph.
He d i d not suggest that the photograph d i d other than show Douglas A l l a n and
C o n r o y in a context of some familiarity w i t h each other. He insisted that the
person shown in the photograph was Douglas A l l a n , w h o m he claimed to have
seen in person. Glen said that the photograph belonged to C o n r o y but was
currently i n the possession o f A n d r e w M c L a u g h l i n , w h o was "playing silly b u g gers" because he t h o u g h t it m i g h t have some value and was reluctant to return
it to Glen. We asked Glen to attempt to arrange the return of the photograph by
Andrew McLaughlin.
11.5 We made contact w i t h Glen some days later to ask h i m w h a t progress he
had made. He t o l d us that he had arranged to go to Livingston at 6 p m the f o l l o w i n g
day w h e n he expected A n d r e w M c L a u g h l i n to let h i m have the photograph
w i t h o u t more ado. We arranged to call at n o o n the day after that at a shop w h i c h
Glen was having fitted out in C o c k b u r n Street, E d i n b u r g h , so that he could hand
the photograph to us. W h e n we w e n t there, he was there, but said that he d i d
not have the photograph because he had gone to the house in L i v i n g s t o n as
arranged b u t found no one there despite having waited for t w o hours. He said
that he had tried telephoning w i t h o u t success. He said that he w o u l d continue
to make efforts to contact A n d r e w M c L a u g h l i n w i t h a v i e w to recovering the
photograph f r o m h i m . A f t e r we had left Glen we telephoned the house and
spoke to Michael M c L a u g h l i n . He t o l d us that A n d r e w M c L a u g h l i n had gone to
E d i n b u r g h for the weekend. We w e n t back and t o l d Glen this, and he said that
he w o u l d l o o k in various public houses where A n d r e w M c L a u g h l i n m i g h t be
found. He telephoned one of us the f o l l o w i n g day to say that he had tried that
w i t h o u t success.
11.6 We left the matter for a few days before g o i n g to speak to Glen again in
C o c k b u r n Street. He had done n o t h i n g more, and seemed content that we should
pursue the matter ourselves. We d i d so. We attempted to telephone A n d r e w
M c L a u g h l i n at his employers' premises b u t were t o l d that he could n o t be found.
T h e n we w e n t to L i v i n g s t o n and found Michael M c L a u g h l i n at his house. He was
f u l l y co-operative. He said that there had been no contact w i t h Michael Glen of
w h i c h he was aware apart f r o m a message on his telephone answering machine
m e n t i o n i n g the L o r d Advocate's I n q u i r y . He was sure that his brother A n d r e w
w o u l d not w i s h to speak to Michael Glen. He gave us directions to his brother
A n d r e w ' s place of employment. Just as we were leaving A n d r e w M c L a u g h l i n
came to the house in a h u r r y , having been t o l d that someone f r o m C r o w n Office
had been t r y i n g to contact h i m . This was a reference to our earlier telephone call
to his employers. He intended to telephone C r o w n Office to find out w h a t was
wanted. He was f u l l y co-operative w i t h us and readily agreed to be interviewed.
He made it clear to us that he k n e w n o t h i n g of any photograph and could n o t
understand w h y Glen was claiming that he had possession of one. The o n l y
photograph he had was one of C o n r o y alone, w h i c h he showed to us.
11.7 We w e n t back to E d i n b u r g h , found Glen, and arranged for h i m to attend
for a further interview the f o l l o w i n g day. On that day he caused a friend to
telephone us to say that he was otherwise engaged, b u t w o u l d telephone to arrange
a fresh appointment. W h e n he d i d n o t do so we telephoned h i m a few days later
and arranged to see h i m the f o l l o w i n g m o r n i n g in C o c k b u r n Street. W h e n we
saw h i m we pressed h i m for further information about the photograph. He said
that it had come into his possession in a flat in Thistle Street along w i t h other
belongings of C o n r o y and A n d r e w M c L a u g h l i n . He claimed to have shown the
photograph to "a chap f r o m 'The D a i l y Record' w h o verified it was Douglas
A l l a n . " He declined to name this person to us. He said he had not sold the
photograph to "The D a i l y Record" because " i t w o u l d n ' t come up w i t h the r i g h t
figure." He was unable to give an intelligible account of h o w the photograph had
left his possession and had got into A n d r e w McLaughlin's possession. He insisted
that he had made contact w i t h A n d r e w M c L a u g h l i n . We t o l d h i m we had seen
A n d r e w M c L a u g h l i n ourselves and that, since there was n o t h i n g to support Glen's
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account, Glen appeared to be a liar. He then invited us to leave the premises, and
so we left. We have heard n o t h i n g more f r o m Glen.
11.8 At one point Glen t o l d us that he believed that Karen B r o w n , the licensee
of "The Tree" public house in Gorgie Road, E d i n b u r g h , had had possession of
some of Conroy's photographs, w h i c h m i g h t be interesting, b u t they had been
stolen f r o m her car. We have spoken to Karen B r o w n . She t o l d us that for a time
in early 1992 she looked after t w o bags of clothes, and perhaps other possessions
belonging to A n d r e w M c L a u g h l i n , all of w h i c h she returned to h i m by arrangement in about June 1992 in the car-park at Saughton Prison, after he had visited
C o n r o y there. N o t h i n g of his has ever been stolen f r o m her car, though her car
was stolen, w i t h its contents w h i c h were her property, some months ago. She
k n e w n o t h i n g about the existence of allegedly compromising photographs. She
resented the w a y in w h i c h Glen had involved her in our I n q u i r y .
11.9 We have referred to our dealings w i t h Michael Glen at some length because,
although he is not the k i n d of man in whose evidence we w o u l d readily have
suspended disbelief, he has helped to keep alive the story of the existence of
allegedly compromising photographs of Douglas A l l a n . A recent press report of
the supposed existence of such a photograph is, we believe, attributable to Glen's
activities. O u r I n q u i r y failed to b r i n g any such photograph to l i g h t . We have no
reason to believe that it has ever existed. We are sure that if such a photograph
ever had existed it w o u l d have been sold to a newspaper l o n g ago.
11.10 Walter Easton Smith ( c o m m o n l y k n o w n as T e r r y Smith) was convicted
of an indecent assault on 3 July 1992 and was sentenced to four years' i m p r i s o n ment. At an early stage in our I n q u i r y he was granted i n t e r i m liberation pending
an appeal against his conviction. We propose to say n o t h i n g about the c i r c u m stances of his conviction or his grounds of appeal. We became aware, however,
that he had made public statements b o t h in and o u t of court w h i c h suggested that
he m i g h t be in possession of information w h i c h w o u l d be relevant to our I n q u i r y .
We accordingly invited h i m to attend for interview. There was some delay because
the solicitors he had instructed to act for h i m in connection w i t h his appeal were
concerned that it m i g h t not be in his best interests for h i m to be interviewed by
us u n t i l after his appeal had been disposed of. Eventually, after some discussion,
he d i d attend for interview at a late stage in o u r I n q u i r y and before his appeal had
been disposed of.
11.11 At interview Smith made a number of claims, principally relating to
Douglas A l l a n . He claimed that he k n e w C o l i n Tucker and that he had knowledge
of Tucker's "list". He said to us that Tucker had t o l d h i m that the "list" included
three presently serving Judges, and gave their names. W h e n we asked h i m w h e n
Tucker had t o l d h i m about this "list", he gave contradictory evidence of the date,
describing first an occasion w h e n the affairs of Burnett Walker WS were first being
investigated in 1988 and second an occasion after Tucker's trial and the resignation
o f L o r d Dervaird in 1989, by w h i c h time of course there were a number of rumours
current about Judges, including the Judges in question. For the reasons we have
already discussed in part 6 of this Report we are satisfied that Tucker said no such
t h i n g to Smith and that S m i t h was accordingly l y i n g to us. For w h a t it is w o r t h ,
Smith d i d n o t claim more than hearsay knowledge of the homosexuality of any
C o u r t of Session Judge.
11.12 As we have said, Smith's principal claims related to Douglas A l l a n . He
made it clear that he had a grudge against Douglas A l l a n . Smith t o l d us that after
leaving the A r m y some years ago he t o o k an interest in the welfare of homosexual
soldiers and became involved in an organisation called "RankOutsiders Scotland".
He t o o k to m a k i n g complaints about the alleged ill-treatment of homosexual
soldiers by the M i l i t a r y Police. This was at a time w h e n Douglas A l l a n was
Regional Procurator Fiscal in E d i n b u r g h . A c c o r d i n g to S m i t h , Douglas A l l a n was
involved in the devising of a scheme to stop h i m f r o m l o d g i n g complaints. He
spoke of having had a heated telephone conversation w i t h Douglas A l l a n about
one particular complaint. A c c o r d i n g to h i m , the upshot was that a letter was sent
to h i m f r o m Lothian and Borders Police w i t h the permission of Douglas A l l a n
stating that they w o u l d not investigate any further complaints that he made about
the police, and accordingly "disqualified h i m of his legal rights". We have not
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12. T H E O R R R E P O R T
T H E ORR REPORT
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60
T H E ORR REPORT
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62
T H E ORR REPORT
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64
T H E ORR REPORT
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Whoever leaked the report must presumably have been someone w h o disagreed
w i t h the views of these senior officers. His leaking of the report was n o t o n l y an
act of deliberate disloyalty w h i c h was calculated to undermine the authority of
his superior officers, it must also intentionally have been done w i t h a v i e w to
undermining public confidence in the i n t e g r i t y of the Scottish legal system by
a l l o w i n g credence to be given to rumours and allegations w h i c h had the apparent
stamp of authority by being set out in a report signed by a senior police officer.
The C h i e f Constable himself has publicly described the leaking of the report as
"an act of wickedness".
12.28 W h i l e it was appropriate for the C h i e f Constable to obtain information
to enable h i m to reply to T a m D a l y e l l , it seems to have occurred to no one w h o
was involved in the preparation of the O r r Report that the rumours w h i c h reached
T a m Dalyell came f r o m the v e r y persons w h o gave information to O r r . The result
was that all the report achieved was to re-cycle those self-same rumours. The
combination of this muddled t h i n k i n g and the leaking of the report has made it
possible for it to be claimed that there must be something in the rumours if there
is a police report on t h e m . The C h i e f Constable's instruction to shred the O r r
Report serves as an eloquent demonstration of its true value.
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13. R O B E R T H E N D E R S O N Q C
13.1 Robert Henderson is, and has at all material times been, a practising
Advocate w i t h the rank of Queen's Counsel. This part of our Report is concerned
n o t w i t h his professional conduct b u t w i t h a decision by the C r o w n not to prosecute
h i m in respect of certain business transactions not directly connected w i t h his
professional practice. Beyond identifying the subject matter of the investigation
w h i c h preceded this decision as being these business transactions, we intend to
give no further information about them except such as m a y necessarily be inferred
f r o m the narrative w h i c h follows. This approach is consistent w i t h the terms of
o u r remit and w i t h our previously stated p o l i c y of not reporting on prosecution
decisions in such a w a y as w o u l d facilitate public debate about their correctness.
13.2 On 5 December 1985 Kenneth Pritchard, the Secretary of the L a w Society
o f Scotland, w r o t e t o the then L o r d Advocate, L o r d Cameron o f L o c h b r o o m Q C ,
reporting on a number of matters w h i c h had come to his notice, including certain
business transactions in w h i c h Robert Henderson had been involved. On 9
December 1985 the L o r d Advocate instructed an urgent investigation into these
matters and on the same date Duncan L o w e , w h o was then D e p u t y C r o w n A g e n t ,
w r o t e to Douglas A l l a n , the Regional Procurator Fiscal in E d i n b u r g h , enclosing
a copy of Kenneth Pritchard's report. He instructed that the police, w h o were
currently investigating associated matters, be made aware of the allegations contained in the report and asked for a preliminary report w h i c h w o u l d enable h i m
to reply to Kenneth Pritchard.
13.3 On 28 January 1986 Douglas A l l a n replied, enclosing an i n t e r i m report by
Detective Inspector ( n o w Detective C h i e f Inspector) W i l l i a m C r o o k s t o n . This
report, taken w i t h Kenneth Pritchard's report, led the D e p u t y C r o w n A g e n t to
w r i t e , in a note dated 29 January 1986, to the L o r d Advocate:
"The police report w h e n read in conjunction w i t h the earlier material sent
b y the L a w Society makes dismal reading f r o m M r Henderson's point o f
v i e w . I w o u l d recommend that no attempt should be made to treat h i m
as a case apart, and that the investigation should proceed along normal
lines."
13.4 On 3 February 1986 the L o r d Advocate gave an instruction that the i n q u i r y
should not proceed separately f r o m the remaining inquiries. The investigation of
Robert Henderson's business transactions was accordingly conducted as part of
a w i d e r investigation affecting other persons as w e l l . We do not propose to discuss
further the overall investigation so far as it related to other persons, some of
w h o m were prosecuted and some not. At this stage the investigation of Robert
Henderson's business transactions was left in the hands of the police.
13.5 The investigation was continued by C r o o k s t o n , w h o conferred f r o m time
to time w i t h the C r o w n Office Fraud U n i t . His w o r k was w e l l advanced by the
time that he interviewed Robert Henderson at Police Headquarters on 20 February
1987. Crookston was to be transferred to Livingston the next day, and the interv i e w was attended by his successor in the investigation, Detective Sergeant ( n o w
Inspector) Donald Stewart. Despite his transfer C r o o k s t o n w e n t daily to Police
Headquarters to help w i t h the w o r k of the Fraud Squad. Stewart was o n l y posted
to the Fraud Squad f r o m about September 1986 to about M a y 1987. W h i l e he
carried on the investigation himself f r o m February to M a y 1987, he d i d so to a
large extent on the basis of information he received f r o m C r o o k s t o n . In M a y
1987 he submitted to C r o w n Office a report relating to Robert Henderson and
containing three charges.
13.6 On receipt of this report in C r o w n Office it was decided to allocate the case
for further investigation to the C r o w n Office Fraud U n i t , to be investigated along
ROBERT H E N D E R S O N QC
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w i t h other, possibly related, cases. The pressure o f w o r k on these cases was such
that no material progress was made on the case against Robert Henderson for
some time thereafter. O n 22 September 1988 the case was allocated for initial
precognition by M r s A Fisher of the Fraud U n i t , and on that date N o r m a n
McFadyen, Senior Procurator Fiscal Depute in the Fraud U n i t , w r o t e a note of
suggested lines of i n q u i r y . In January 1989 the case was reallocated to M r s A
N o r t o n o f the Fraud U n i t i n the absence o f M r s Fisher o n maternity leave. O n
20 January 1989 the then Reporting Officer, Detective Inspector Michael Souter,
submitted a further report w i t h t w o further charges against Robert Henderson
for consideration.
13.7 On 23 February 1989 N o r m a n McFadyen and M r s N o r t o n made a detailed
preliminary report to C r o w n Counsel reporting on the inquiries to date and
recommending that in order to advance the investigation a direction be made
under section 51 of the C r i m i n a l Justice (Scotland) A c t 1987 n o m i n a t i n g N o r m a n
McFadyen and an officer of Inland Revenue j o i n t l y to exercise special powers.
On 1 M a r c h 1989 the H o m e Advocate Depute, George Penrose QC ( n o w L o r d
Penrose), instructed that a direction be sought and that the L a w Officers be made
aware of the background. On 3 M a r c h 1988 N o r m a n McFadyen reported to the
L a w Officers as instructed. On 8 M a r c h 1989 the then Solicitor General, A l a n
Rodger, gave an instruction narrating the agreement in principle of the then L o r d
Advocate, L o r d Fraser, w i t h w h a t was proposed and that there should be a further
report after discussion w i t h the Inland Revenue. On 20 M a r c h 1989 N o r m a n
McFadyen reported to the L o r d Advocate submitting a nomination order for
approval. On 21 M a r c h 1989 the L o r d Advocate gave a direction n o m i n a t i n g
N o r m a n McFadyen and an officer of Inland Revenue to investigate the affairs of
Robert Henderson and another under section 51 of the 1987 A c t .
13.8 In the period f o l l o w i n g the g i v i n g of that direction extensive interviews,
searches and examinations were carried o u t . The investigation produced v o l u minous documentation, w h i c h we have seen. N o r m a n McFadyen t o l d us that the
quality of the evidence of certain witnesses to essential matters of fact appeared
t o h i m t o deteriorate d u r i n g the course o f precognition. He discussed the case w i t h
C r o w n Counsel f r o m time t o t i m e .
13.9 Meantime there was ill-informed discontent w i t h i n the police about the
attitude of the C r o w n to this and other cases. On 29 M a y 1990 Detective C h i e f
Superintendent Charles B o u l t o n w r o t e a m e m o r a n d u m to Assistant C h i e f Constable Richard Prentice d r a w i n g his attention to certain matters. The m e m o r a n d u m
contained the f o l l o w i n g passage:
"Outstanding Cases at the Crown Office
A s w i l l be seen f r o m the A p p e n d i x attached to this report, there is a list
of outstanding cases w h i c h have been submitted by officers of the Fraud
Squad over recent years. I t w i l l be noted that the w o r s t o f these crimes is
some t w o years o l d , and at best and if normal procedures had followed,
even if a warrant was issued t o m o r r o w it w o u l d take several more months
before a trial commenced. Further, it is w e l l to remember that in most, if
n o t all cases, some of the witnesses concerned w o u l d have been interviewed
by police officers weeks if not months p r i o r to the submission of the police
report. As a consequence of the above it seems that witnesses m a y w e l l be
facing a gap of some 3 years or more before they are called to C o u r t to give
evidence. These prevailing circumstances are surely unsatisfactory to all
concerned.
I wonder at the apparent necessity for a complete re-investigation of these
types of cases by C r o w n Office on receipt of a police report. It w o u l d appear
that i n not a few cases, the C r o w n Office w i l l instruct the precognition o f
most, if not all witnesses before a decision is made on w h a t charges to
prosecute, although there m a y be a number of good reasons w h y the C r o w n
should feel it necessary to re-examine in depth some aspects of the case,
I w o n d e r whether there is an implication that the police are not capable of
properly investigating the matter in the first place. It w o u l d seem to be a
gross waste of time for professional police officers to undertake extensive
enquiry merely to find that the witnesses w h o m they have interviewed are
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examined, substantial progress had been made in establishing the extent of W a l ker's dishonesty, and Tucker had co-operated by a d m i t t i n g the part he had played
in certain transactions. We w o u l d also emphasise that Leitch was content to leave
the investigation in the hands of Leslie C u m m i n g and his staff, w h o had far more
experience than he d i d in the inspection of solicitors' books.
14.8 As we have already indicated, we believe that Douglas A l l a n must have
been aware of the investigation f r o m about the time w h e n the police first became
involved. He no longer has a clear recollection of his subsequent involvement,
although he can say that it was o n l y incidental. He remembers that Fraud Squad
officers w o u l d drop in f r o m time to time to see h i m . Leitch t o l d us that v e r y early
in his investigation he found a note on his desk saying that Douglas A l l a n had
asked to see h i m , so he w e n t to see h i m and Douglas A l l a n asked h i m to keep
h i m up to date as the investigation progressed. He thought it unusual for the
Regional Procurator Fiscal himself to be in touch, b u t had no difficulty in accepting
that interest of this k i n d w o u l d be appropriate w h e n evidence was emerging of
the dishonesty of a prominent lawyer such as Ian Walker. Such interest w o u l d
be particularly understandable i f , as m a y have been the case, Leitch w e n t to see
Douglas A l l a n in the period after Walker's death. In fact, we can say f r o m our
o w n direct experience that such interest by a Regional Procurator Fiscal w o u l d
be quite usual.
14.9 On 10 June 1988 anonymous information reached Leitch to the effect that
documents relevant to his investigation could be found in the b o o t of Tucker's
m o t o r car. Leitch t o o k steps to discover where the car was. Detective Sergeant
Isabel N i c o l obtained a search warrant f r o m a Justice of the Peace. The search
warrant was technically inept because it was granted on the basis that the documents in the car had been stolen f r o m Burnett Walker's office, and Tucker could
hardly steal documents f r o m his o w n office. Be that as it may, Leitch and Isabel
N i c o l w e n t w i t h the warrant to Burnett Walker's office, saw Tucker and t o l d h i m
that the warrant had been granted. He made a telephone call to his solicitor, D a v i d
B l a i r - W i l s o n , and then w e n t w i t h the police officers to his car and handed over
to t h e m a quantity of documents w h i c h were in its b o o t . T h e police officers t o o k
the documents to Police Headquarters. Shortly afterwards D a v i d Blair-Wilson
telephoned Leitch and said, as noted by Leitch:
"Tucker says that the documents found in his car n o w means that the police
have everything that can be related to h i m in the i n q u i r y . "
T h e documents were indeed used as productions in the subsequent prosecution
o f Tucker.
14.10
It is not possible to establish w i t h confidence w h a t contact there was
between Leitch and Douglas A l l a n on 10 June 1988, because neither of t h e m
appears to have attached any particular significance to such contact on that date.
It seems l i k e l y , however, that Leitch d i d telephone Douglas A l l a n to tell h i m about
the granting of the search warrant and the recovery of documents f r o m Tucker's
car, as Douglas A l l a n does have a recollection of a discussion about documents
w h i c h had been removed f r o m Burnett Walker's office and about a search warrant.
We also t h i n k it l i k e l y that there was discussion between t h e m as to whether steps
should be taken to search Burnett Walker's office, and that Douglas A l l a n said
that he d i d n o t require such a search to be carried out. This w o u l d make sense
w h e n related to the facts that, as b o t h Leitch and Douglas A l l a n were aware, the
L a w Society inspection of Burnett Walker's books was already w e l l advanced,
Walker, whose dishonesty was principally responsible for the losses of clients'
funds, was dead, and there was no reason to suppose that after the recovery of
documents f r o m Tucker's car there was anything more to discover about Tucker's
part in the movement of funds. B o t h Leitch and Isabel N i c o l have made it clear
to us that they d i d n o t regard Douglas A l l a n as being obstructive in any w a y w h e n
the question of a search of Burnett Walker's office was under consideration, and
that they have no reason to believe that a search of Burnett Walker's office
w o u l d have yielded documents w h i c h were relevant to their investigation or of
importance to the subsequent prosecution of Tucker.
14.11 A l t h o u g h the officers w h o were engaged in the investigation were satisfied
w i t h the day's events, other members of the Fraud Squad t o o k a somewhat
75
different v i e w . I t w i l l be recalled that Souter and Reynolds were the police officers
first involved in the i n q u i r y , though by 10 June 1988 they had not been involved
for some time and were not abreast of the w o r k w h i c h had been done, particularly
the results of the L a w Society's inspection. Nevertheless w h e n Leitch and Isabel
N i c o l returned to the Fraud Squad's Office at Police Headquarters w i t h the
documents recovered f r o m Tucker's car Souter and Reynolds t o o k an interest in
w h a t had happened and j u m p e d t o certain conclusions. O f the t w o , w e m e n t i o n
Reynolds first. Reynolds insisted to us at t w o interviews that on 10 June 1988 he
understood that Tucker was under arrest and that he was released after a telephone
call had been made by Leitch and Souter to Douglas A l l a n . He felt critical of
the decision to release Tucker because "he was obviously t r y i n g to dispose of
evidence". We reject Reynolds's evidence because there is no question of Tucker's
having been under arrest on that date, n o r was his arrest even considered u n t i l
a petition warrant was issued by the Procurator Fiscal on 12 December 1988.
14.12
Souter's evidence is of more importance because of the v i e w w h i c h he
subsequently t o o k of the day's events. He t o l d us that he t h o u g h t that Leitch's
inactivity in the period p r i o r to 10 June 1988 was strange, and related it to an
instruction Leitch had received f r o m the Procurator Fiscal. He was aware that the
L a w Society inspection was still under w a y and was not able to give us any reason
w h y that should not have been regarded as a satisfactory means of examining
Burnett Walker's books for evidence of dishonesty. He t o l d us that w h e n Leitch
and Isabel N i c o l came back to the office w i t h the documents he asked Leitch
whether Tucker had been arrested and w h e n Leitch said that he had not he
suggested that he should have been. He t o l d us that he felt that it was w r o n g that
Tucker should still have access t o his office. He said that he asked Leitch whether
the office had been searched and Leitch said that he had been in touch w i t h the
Procurator Fiscal and was t o l d that he should proceed as he had done. A c c o r d i n g
to Souter he felt that the police were in an exposed position and that he t o l d Leitch
that he should get corroboration that that was w h a t he had been t o l d to d o .
A c c o r d i n g l y he telephoned the Procurator Fiscal's Office, asked for Douglas
A l l a n , and gave the telephone to Leitch. Leitch then spoke to Douglas A l l a n w h o
reiterated w h a t he had said to Leitch about n o t searching Burnett Walker's office.
This incident does not seem to have stuck in Leitch's m e m o r y as it has in Souter's,
nor does H e p b u r n have any recollection of i t , even t h o u g h he shared an office
w i t h Leitch at the time.
14.13
Souter t o l d us that he felt that by instructing Leitch to leave the i n q u i r y
to the L a w Society and n o t to search the office himselfDouglas A l l a n was somehow
keeping control of the i n q u i r y , and that there was something n o t quite r i g h t about
i t , " n o t that it was w r o n g , but that it wasn't r i g h t " . We pressed h i m about this
and he repeatedly said that he j u s t had a feeling that there was something w r o n g ,
a feeling of disquiet, a doubt, b u t no reason to t h i n k anything was drastically
w r o n g . He was able to give us no rational explanation for this feeling. Since
Souter's thoughts and behaviour on that day were irrational, and since he was n o t
himself engaged on the i n q u i r y w h i c h culminated in Tucker's prosecution, it
w o u l d be easy to dismiss Souter's "feeling" as of no consequence were it not for
the l i n k w h i c h he subsequently made between that day's events and Conroy's
allegations against Douglas A l l a n , w h i c h we have already discussed. Since those
allegations were untruthful, and have been expressly w i t h d r a w n by C o n r o y , we
are left w i t h Souter's "feeling" as the o n l y basis for his m a k i n g a l i n k between
various cases in the w a y w h i c h came to be reflected in the O r r Report.
14.14 For w h a t the matter is w o r t h , Detective Sergeant ( n o w Sergeant) Peter
B r o w n d i d n o t tell us that he thought that anything u n t o w a r d had happened after
10 June 1988, although he became the Reporting Officer in the case after Leitch's
retirement. He t o l d us that he had no evidence of documents being destroyed.
"Others were closer to the i n q u i r y at the t i m e " . We understand h i m to have
referred to the officers w h o were engaged on the i n q u i r y rather than to Souter.
14.15 We can give a briefer summary of events up to the time of the trial in
December 1989. On 15 June 1988 Leslie C u m m i n g was appointed i n t e r i m Judicial
Factor u p o n the estates o f the f i r m o f Burnett Walker and the partners i n the firm.
The effect of this appointment was to p u t all the firm's property and assets under
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his safekeeping for the time being. There continued to be liaison between h i m
and Leitch and he continued to help Leitch w i t h the police investigation. Leitch
completed his investigation and made a report to the Procurator Fiscal at E d i n b u r g h . On 12 December 1988 a petition warrant was obtained and issued by the
Procurator Fiscal for Tucker's arrest. The warrant was executed on 20 December
1988, w h e n Tucker appeared at E d i n b u r g h Sheriff C o u r t , was c o m m i t t e d for
further examination, and was granted bail. Douglas A l l a n had become Sheriff at
Lanark on 1 A u g u s t 1988, so that by December 1988 the Regional Procurator
Fiscal was Duncan L o w e . He instructed that bail should not be opposed. B r o w n
t o l d us that he disagreed w i t h that instruction because he regarded Tucker as "a
bogus w o r k m a n in a suit", b u t he d i d not suggest to us that there was anything
sinister in the instruction.
14.16
Thereafter the case was allocated to Isabel Clark, Procurator Fiscal Depute
at E d i n b u r g h , for precognition. B r o w n became the Reporting Officer after
Leitch's retirement on 31 December 1988 and attended to a number of m i n o r
inquiries instructed by her. On 4 A p r i l 1989 the precognition was reported to
C r o w n Office. C r o w n Counsel referred the case to N o r m a n McFadyen, Assistant
Solicitor in the Fraud U n i t , requesting his views as to sufficiency of evidence,
f o r u m of proceedings, and draft charges. N o r m a n McFadyen returned the case
on 15 June 1989 w i t h advice on these matters. On 23 June 1989 C r o w n Counsel
referred the case to the then Solicitor General, A l a n Rodger, for a decision on
whether or n o t proceedings were to be taken against Tucker and if proceedings
were to be taken, the f o r u m thereof. N o r m a n McFadyen met the Solicitor General
over the period f r o m 26 June to 6 July 1989, and on the latter date referred the
case to the C r o w n Office H i g h C o u r t U n i t , c o n f i r m i n g that the Solicitor General
had instructed H i g h C o u r t proceedings. A draft indictment was prepared in the
H i g h C o u r t U n i t and on 1 N o v e m b e r 1989 it was sent to the Procurator Fiscal
for revision w i t h instructions as to further precognition w o r k w h i c h was required.
On 3 N o v e m b e r 1989, after a discussion by telephone about the terms of the
draft indictment, the indictment was printed. On 6 N o v e m b e r 1989 the signed
indictment was sent to the Procurator Fiscal, E d i n b u r g h , for service. Tucker was
then indicted for a sitting of the H i g h C o u r t at E d i n b u r g h on 11 December 1989.
14.17
In the meantime preparations were being made for Tucker's defence. We
have already given an account of these preparations in the course of our discussion
of Tucker's Statement in part 6 of this Report. On 4 December 1989 there were
received at C r o w n Office a notice by Tucker that he intended to incriminate Ian
W a l k e r (deceased), and a list of defence witnesses. In the period immediately p r i o r
to the trial a Joint M i n u t e of Admissions was entered into w h i c h was in extensive
terms and made it unnecessary for substantial parts of the C r o w n evidence to be
led. It appears that B r o w n , the Reporting Officer, was not aware of this Joint
M i n u t e or of its consequences in terms of reducing the evidence w h i c h the C r o w n
w o u l d require to lead.
14.18
The trial began on 11 December 1989 before L o r d M c C l u s k e y and a j u r y .
The Advocate Depute was D a v i d Burns ( n o w Q C ) . Tucker's counsel were Robert
Henderson QC and John W a t t ( n o w Q C ) , and his solicitor was D a v i d BlairW i l s o n . Isabel C l a r k was n o t in attendance on the Advocate Depute because she
was absent f r o m w o r k t h r o u g h ill-health. N o t h i n g of particular note happened
d u r i n g the leading of evidence for the C r o w n . L o r d M c C l u s k e y indicated to us
that in his v i e w there was a degree of confusion because the t w o charges were
in the w r o n g chronological order and by leading evidence in the chronological
order in w h i c h the charges appeared in the indictment the evidence was not as
clear to the j u r y as it m i g h t have been. Indeed he made that point in his charge
to the j u r y . B r o w n t o l d us that he was surprised that he was the o n l y police officer
w h o was called to give evidence, although several had been cited to attend as
potential witnesses, and that all he was asked to speak to was a suicide note left
by W a l k e r , part of w h i c h he was asked to read o u t to the j u r y . B r o w n seems to
have concluded f r o m this that the presentation of the C r o w n ' s case was defective,
b u t this v i e w was reached in ignorance of the terms of the Joint M i n u t e of
Admissions and of the matters w h i c h were being challenged by the defence as the
evidence progressed. B r o w n was in fact called at the request of the defence because
77
they wanted part of the suicide note to be read out and B r o w n was a convenient
witness for that purpose. U n k n o w n to B r o w n , in addition to having entered i n t o
the Joint M i n u t e of Admissions, the defence d i d not seek to dispute evidence that
Tucker had played a part in the movement of clients' funds.
14.19
On any v i e w of the matter by the close of the C r o w n case the C r o w n had
either secured admissions or had led evidence sufficient to entitle the j u r y to find
Tucker g u i l t y o f the t w o charges o f embezzlement, apart f r o m t w o m i n o r matters
in respect of w h i c h the Advocate Depute m o v e d to amend the indictment at the
close of the C r o w n case. There was a defence submission to the court that the
accused had no case to answer, b u t this submission was resisted by the C r o w n
and was repelled by L o r d M c C l u s k e y . Thereafter defence evidence was led. It had
not been apparent to either the Judge or the Advocate Depute up to that p o i n t
w h a t defence to the charges Tucker m i g h t have. H i s defence, such as it was,
emerged s l o w l y in the course of his evidence. He d i d not dispute that clients'
money had been taken, b u t said that it had gone to Walker, and that he had o n l y
participated because Walker had some hold over h i m . He said in cross-examination
that he d i d n o t tell anyone because he was frightened. W h e n asked w h a t made
h i m frightened he said: " M r Walker had some hold over m e . " W h e n questioned
by L o r d M c C l u s k e y at the end o f h i s cross-examination he said that he d i d w h a t
he d i d partly because Walker had some h o l d over h i m . It was o n l y at the end of
a b r i e f re-examination that he said that the hold over h i m was that W a l k e r had
personal information about h i m , that he was homosexual.
14.20
In the course o f h i s address to the j u r y the Advocate Depute argued that
w h a t Tucker had said was a " h o l d " over h i m d i d n o t amount to a " h o l d " at all.
This was not disputed by Robert Henderson, w h o concentrated, in his address
to the j u r y , on the major part w h i c h Walker had played in the embezzlement of
clients' funds. In his charge to the j u r y L o r d M c C l u s k e y gave a direction that
Tucker's evidence d i d not amount to a defence of coercion, b u t since Tucker had
asserted that he had no intention to make o f f w i t h the money and was getting
n o t h i n g o u t of it for himself, it was for the j u r y to decide whether he had the g u i l t y
intent necessary for the crime of embezzlement. A f t e r retiring to consider their
verdict the j u r y returned majority verdicts o f not g u i l t y o n b o t h charges. F o l l o w i n g
the acquittal Tucker was discharged. John W a t t and D a v i d Blair-Wilson b o t h t o l d
us that j u s t as Tucker was leaving court t w o middle-aged female j u r o r s came up
to h i m . One of t h e m touched Tucker on the arm and said: " Y o u ' l l be all r i g h t
n o w " , or "It's all r i g h t , son, you're all r i g h t n o w " .
14.21
No one w h o was present in court w h e n Tucker was acquitted by verdict
of the j u r y on 19 December 1989 is of the v i e w that that acquittal was achieved
otherwise than by the votes of members of the j u r y w h o had heard the evidence
and the addresses of counsel and had been charged by the Judge as to the applicable
l a w . It is n o t for us to express any v i e w as to whether the verdict was perverse.
We are quite satisfied that it was n o t achieved by any improper means. Even
t h o u g h talk was current by then of Tucker's so-called "list", we find it impossible
to see h o w that could have influenced the j u r y . The C r o w n had done all that was
required in the w a y of leading evidence and it had resisted a submission that there
was no case to answer. For that matter the Judge had repelled that submission.
No one has suggested to us that either L o r d M c C l u s k e y or D a v i d Burns had any
motive other than a desire to play the usual parts of Judge and Advocate Depute
respectively in a trial conducted in open court.
14.22 We have already commented on O r r ' s failure to speak to Leitch w h i l e
w o r k i n g on his report. In his report he w r o t e that the decision not to search Burnett
Walker's office "effectively allowed T U C K E R to continue w o r k i n g and to
attempt to defeat the ends of justice by r e m o v i n g evidence beyond the reach of
the investigators". There is no evidence whatever to support this statement and
indeed Leitch and Isabel N i c o l have b o t h said the opposite. For that matter, B r o w n ,
w h o became the Reporting Officer at a later stage, has not spoken to us in terms
w h i c h w o u l d suggest that that is his v i e w . O r r w o u l d of course insist that the
information w h i c h was reflected in this part o f h i s report was derived f r o m b o t h
Souter and B r o w n , b u t we have o n l y Souter's evidence about his "feeling" to assist
us, and we have already discussed that. The O r r Report states that " i t was alleged
78
at the time that T U C K E R ' S acquittal had been facilitated by his possession of the
'list' and the potentially c o m p r o m i s i n g nature of its content w h i c h w o u l d be
exposed should he be found g u i l t y " . A n y such allegation must have been made
w i t h o u t any reference to the actual events of the trial and to the j u r y ' s verdict.
We have said all that we need to say in part 6 of this Report about Tucker's socalled "list" and about Tucker's o w n attitude to the use of information in his
possession. Neither Souter nor B r o w n has professed any belief in the possibility
that Tucker was acquitted for any improper reason, w i t h the result that O r r
appears to have repeated an allegation w h i c h was unattributable as w e l l as incapable
of substantiation. O r r ' s report has also repeated a number of criticisms of the
conduct of the prosecution by the C r o w n , b u t since not one single person has
suggested that the Advocate Depute was i m p r o p e r l y motivated we need say no
more about these criticisms.
15.
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AND ARTHUR
COLIN TUCKER
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81
82
1991, the last straw for h i m came w h e n Daniel Teague conceded in evidence that
M a y was entitled to a sum of the order of the sum w h i c h had allegedly been
embezzled from the C o m p a n y . This evidence is recorded in his assistant's noteb o o k . I n Alastair Campbell's v i e w the evidence o f Spyrou d i d n o t h i n g t o i m p r o v e
the C r o w n ' s position. He accordingly came to the v i e w , on the evidence that had
been led up to that p o i n t , and taking account of the relatively m i n o r contribution
that w o u l d be made by the evidence that had n o t yet been led by the C r o w n , that
it w o u l d n o t be in the public interest for the trial to continue.
15.14
Meanwhile, as L o r d M i l l i g a n explained to us, he was becoming irritated
because it seemed to h i m that "the C r o w n wasn't getting anywhere." He r e m e m bers that he made a remark to that effect to his clerk, and that it was conveyed
to the Advocate Depute. There were t w o Depute Clerks of Justiciary at the sitting,
Robert Sinclair, w h o was there f r o m the beginning u n t i l M o n d a y 13 M a y 1991,
and G o r d o n Ellis, w h o was there for the last t w o days. B o t h of t h e m remember
L o r d Milligan's remark, and that they passed it on to the Advocate Depute. Alastair
Campbell is adamant that this d i d no more than reinforce the v i e w w h i c h he had
already reached. We should make it clear that we understand that L o r d M i l l i g a n
was motivated solely by a desire n o t to take up more of the court's t i m e , and
particularly the j u r y ' s t i m e , than was necessary. L o r d M i l l i g a n stated to us:
" A n y suggestion that there was any shortcoming on the prosecution side
is as far as I am concerned complete and utter and total rubbish."
The p r o b l e m , as all are agreed, lay in the quality of the evidence.
15.15
On 15 M a y 1991 Spyrou's evidence continued. W h e n he had the opport u n i t y , the Advocate Depute telephoned the L o r d Advocate, L o r d Fraser, w h o
was in L o n d o n . A l t h o u g h it w o u l d have been open to h i m to w i t h d r a w the libel
w i t h o u t reference to the L o r d Advocate he was aware of the rumours w h i c h had
f o l l o w e d Tucker's previous acquittal and he was concerned about the risk that
a decision n o t to proceed further against M a y and Tucker m i g h t be misinterpreted.
He explained to the L o r d Advocate his v i e w of the evidence and referred also to
w h a t he had heard f r o m the Judge's clerk. He and the L o r d Advocate agreed that
the o n l y reason for continuing w i t h the trial w o u l d have been to avoid possible
criticism and that was not a proper reason. The L o r d Advocate accordingly agreed
w i t h the Advocate Depute's decision on the basis of the evidence that it w o u l d
n o t be in the public interest to continue w i t h the prosecution. W h e n counsel
returned to court for the resumption of the trial after lunch that day the Advocate
Depute t o l d defence Counsel of his decision. T h e y had no p r i o r knowledge of
it and were accordingly somewhat surprised. W h e n the court sat the Advocate
Depute w i t h d r e w the libel and L o r d M i l l i g a n instructed the j u r y to return a formal
verdict of n o t g u i l t y . In discharging the j u r y L o r d M i l l i g a n said that the decision
taken by the Advocate Depute was "entirely proper and certainly on the evidence
was fair; it seemed a v e r y proper decision; the Advocate Depute acted impeccably".
15.16 W h i l e Isabel C l a r k shared the v i e w of other persons we have mentioned
w h o were present in court about the quality of the evidence w h i c h had been led,
she disagreed w i t h the Advocate Depute's decision to w i t h d r a w the libel. She
w r o t e a note to the Procurator Fiscal dated 24 M a y 1991 in w h i c h she stated that
she was v e r y disappointed about w h a t had happened and was extremely upset
about i t . She stated in the note, and repeated to us, that there had been direct
communication between Alastair Campbell and L o r d M i l l i g a n as w e l l as direct
communication w i t h the L o r d Advocate and that Alastair Campbell w i t h d r e w
the libel because of w h a t had been said to h i m by the Judge and by the L o r d
Advocate. She persisted in that belief notwithstanding w h a t we were able to say
to her about the evidence we had received n o t o n l y f r o m Alastair Campbell b u t
also f r o m L o r d M i l l i g a n and L o r d Fraser.
15.17
H a v i n g regard to the evidence of these persons we are convinced that
her disappointment at the Advocate Depute's decision has affected M r s Clark's
perception of the events. We accept w h a t Alastair Campbell has w r i t t e n to us in
a note responding to Isabel Clark's note:
"What M r s C l a r k has failed to appreciate is that I decided on the basis of
the evidence that it w o u l d n o t be in the public interest to continue and that
I w o u l d have made that decision in the absence of any indication of the
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84
15.22
In his report O r r even apparently treated as sinister the fact that the case
was tried in Dunfermline rather than in E d i n b u r g h . His report states:
"One obvious effect o f m o v i n g the trial out o f E d i n b u r g h w o u l d b e t o
reduce press coverage of the issue."
The press are of course free to attend any trial anywhere in Scotland and, as we
have already said, journalists were present in court d u r i n g the trial of M a y and
Tucker, particularly d u r i n g its first day.
15.23 We should add that, whatever they m a y have said to O r r , w h e n we
interviewed Souter and B r o w n neither of t h e m was prepared to state that they
regarded the outcome of this case as having been i m p r o p e r l y procured or that the
Advocate Depute's decision was i m p r o p e r l y motivated. Souter said to us that he
d i d not feel that anything had been w r o n g , he felt no unease. Nevertheless the
k i n d of speculation w h i c h is reflected in the O r r Report, w i t h o u t any reference
to the actual facts of the case, appears to us to be the k i n d of speculation in w h i c h
Souter w o u l d readily engage and w i t h w h i c h B r o w n w o u l d readily associate
himself.
15.24
O u r conclusion must be that there is no evidence whatever to support any
allegation that any decision taken by the C r o w n in the case against M a y and Tucker
was i m p r o p e r l y motivated. Indeed the investigation was instigated by the C r o w n
and the decision to make Tucker one of the accused was taken by the C r o w n .
B u t for the poor quality of the evidence there is n o t h i n g to suggest that the C r o w n
w o u l d n o t have proceeded further w i t h the trial and, subject to direction by the
Judge, w o u l d n o t have left it to the j u r y to decide on the g u i l t of the accused.
H M A V NEIL B R U C E D U N C A N A N D OTHERS
16.
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OTHERS
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87
88
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L o r d Advocate. A l a n Rodger confirmed that they had not. Thomas Damson said
to A l a n Rodger that he w o u l d take a certain v i e w , but would not consult him
as he had n o t been consulted in the past. He w o u l d take an independent view.
A l a n Rodger t o l d h i m that that was w h a t was expected o f h i m : "That's what we're
paying y o u f o r " . A l a n Rodger confirmed this account to us. He was in Parliament
House that day to appear for the C r o w n in criminal appeals. Thomas Dawson
also had a chance meeting w i t h the L o r d Advocate, perhaps a day later, when
similar remarks were made.
16.26 Meanwhile steps had been taken w i t h a v i e w to procedure in court d u r i n g
the week before the trial was due to start on 14 January 1991. On 27 December
1990 intimation was given of a M i n u t e of Notice for the accused A l l a n Robert
M c D o n a l d claiming that w h a t was libelled in certain charges against h i m were
not crimes. On 28 December 1990 i n t i m a t i o n was given of a similar M i n u t e of
Notice for the accused John K e i r claiming that the latitude taken in t w o charges
against h i m was excessive and that part of another charge against h i m was irrelevant
due to lack of specification. These Minutes of N o t i c e necessitated the f i x i n g of
a preliminary diet for Wednesday 9 January 1991 in the H i g h C o u r t at E d i n b u r g h .
This diet was fixed on 3 January 1991. On 7 January 1991 i n t i m a t i o n was given
of a M i n u t e of Notice for the accused N e i l Bruce Duncan claiming that the libelling
of certain charges was oppressive and that these charges were irrelevant, that
another charge was irrelevant due to an excessive latitude of t i m e , that another
charge was irrelevant due to lack of specification, and that other charges libelled
a c o m m o n intent w h i c h was n o t supported by any evidence. On 8 January 1991
intimation was given of a M i n u t e o f N o t i c e for the accused A n d r e w H o o d claiming
that w h a t was libelled in certain charges were not crimes. W h i l e these Minutes
o f N o t i c e thus raised a number of subsidiary points, the main point w h i c h it was
proposed to argue at the preliminary diet related to the question whether, apart
f r o m sodomy, homosexual acts between consenting males over the age of 16
constituted a crime according to the l a w of Scotland after the passing of section
80 of the C r i m i n a l Justice (Scotland) A c t 1980.
16.27
Counsel for the accused w h o appeared before L o r d Clyde at the p r e l i m i nary diet on 9 January 1991 were: K e v i n D r u m m o n d Q C , w h o appeared for N e i l
Bruce Duncan; John W a t t , Advocate ( n o w Q C ) , w h o appeared for Laurie K e n y o n
Valdemar Pringle in place of Robert Henderson Q C , w h o was not available for
the preliminary diet; James Reilly, Advocate, w h o appeared for John Stevenson;
N e i l M u r r a y , Advocate ( n o w Q C ) , w h o appeared for John Keir; John W a t t , w h o
appeared for Ian Alexander James E w i n g , the accused for w h o m he was principally
instructed; John M i t c h e l l Q C , w h o appeared for A l l a n Robert M c D o n a l d M u r r a y ;
Thomas Welsh, Advocate, w h o appeared for A n d r e w H o o d ; Lawrence Nisbet,
Advocate, w h o appeared for Gerard Clarke; Paul M c B r i d e , Advocate, w h o appeared for Graeme K e r r Y o u n g ; and Derek O g g , Advocate, w h o appeared for John
M c C u l l o c h Fisher. Some of the accused were represented by t w o counsel, b u t
we have mentioned o n l y the senior of the t w o . We have interviewed all the counsel
named in this paragraph.
16.28
On the basis of our interviews w i t h Thomas D a w s o n and the defence
counsel we are satisfied that a correct outline of the day's events w o u l d start w i t h
a conversation between Thomas D a w s o n and K e v i n D r u m m o n d in Parliament
House before the diet was called in court at 10 a m . By that time Thomas D a w s o n
had come to the v i e w that the interests of the public w o u l d best be served if he
could obtain pleas o f g u i l t y t o the charges relating t o the debauchery o f M . H e
d i d not consider that the public interest w o u l d be served by leading distasteful
evidence d u r i n g a l o n g trial about consensual homosexual acts not i n v o l v i n g M.
He t o o k account of the fact that the y o u n g men named in the charges were older
than M and could, in the information before h i m , properly be described as rent
boys. The accused f r o m w h o m it was most important to obtain a plea of g u i l t y
was K e v i n D r u m m o n d ' s client, Duncan. W h e n it became apparent f r o m their
conversation that there was the possibility of such a plea of g u i l t y Thomas D a w s o n
decided to seek an adjournment w h e n the diet was called. This he d u l y d i d ,
explaining to the Judge that he wanted the o p p o r t u n i t y to continue a discussion
w h i c h had started.
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16.32 As we have already discussed in part 3 of this Report, the review of the
C r o w n ' s policy in respect of the prosecution of consensual homosexual offences
d i d not start u n t i l after this case had been disposed of and was prompted in part
by this case. Thomas D a w s o n was accordingly not in a position to say, and d i d
not in fact say, anything about a change in C r o w n p o l i c y . A l l those w h o were
present are agreed on that. There is no question of his having been given any
directions as to the disposal of the case, or of his having said anything w h i c h
indicated that he had been given such directions. A g a i n , all w h o were present are
agreed on that. Charles O r r t o l d us that he had been t o l d that " D a w s o n w a l k e d
into the r o o m and said 'we're n o t here to mess about w i t h people sticking their
cocks up y o u n g boys' arses, w h a t we're g o i n g to do is this', ie a deal, and I ' m
t o l d defence counsel were absolutely stunned." A l l the defence counsel are agreed
that no such t h i n g was said and that they were not "stunned". We are accordingly
unable to account for the version of the meeting w h i c h Charles O r r heard or the
version w h i c h is set o u t in the O r r Report.
16.33 W h e n the diet was again called on 10 January 1991 the pleas w h i c h had
been agreed were tendered and recorded. T h e accused M u r r a y , H o o d , Clarke,
Y o u n g and Fisher were discharged. Sentence was deferred in respect of the accused
Duncan, Pringle, Stevenson and E w i n g to 31 January 1991. The diet against K e i r
was continued to 11 January 1991. K e i r adhered to his M i n u t e o f N o t i c e . On 11
January 1991 Thomas D a w s o n intimated to the court that the C r o w n w o u l d
proceed against K e i r on one charge o n l y . T h e M i n u t e o f N o t i c e for K e i r was then
w i t h d r a w n , and n o t g u i l t y pleas were intimated and accepted in respect of the
remaining charges against h i m .
16.34 We have a substantial b o d y of evidence that on one of the days w h e n there
was procedure in court d u r i n g that week, probably 10 January 1991, police officers
were present in court. These officers clearly showed anger at the decision taken
by Thomas D a w s o n . W h e n counsel left court at the end of the day's proceedings
these police officers accosted several of t h e m , using swear w o r d s and demanding
to k n o w the name of the Advocate Depute. B r i a n Douglas, Advocate, overheard
this. A l l the witnesses to this behaviour on the part of police officers regarded it
as inappropriate. We have been unable to discover w h o the police officers were.
N o n e of the officers engaged on the investigation was cited to attend court that
week, because the trial diet was set d o w n for the f o l l o w i n g week. Robertson, the
Reporting Officer, was seconded to a murder enquiry in Musselburgh. N o n e of
the police officers w h o m we interviewed w o u l d admit to having been at court
on that occasion. Thomas D a w s o n was not aware of any attempt by police officers
to speak to h i m . We are, accordingly, unable to substantiate that part of the O r r
Report w h i c h relates to such an attempt.
16.35 Charles O r r described himself as h a v i n g felt angry and upset at the
outcome of the case. He referred to the amount of w o r k w h i c h he had p u t into
the investigation and said:
" I thought there must have been something happen that m o r n i n g o r v e r y
shortly before the trial to make that happen."
Robertson t o l d us that w h e n news of w h a t had happened reached h i m at Musselb u r g h Police Station he was surprised: " I t was a complete shock." W h e n he
attended court as a witness the nextweekhe asked the Procurator Fiscal's representative i f i t w o u l d b e possible for h i m t o have a w o r d w i t h Thomas D a w s o n , but
was t o l d that since he was a witness he could n o t discuss the case w i t h the Advocate
Depute. He d i d n o t subsequently pursue the matter. He t o l d us that he was o n l y
ever annoyed at n o t having been given any explanation for Thomas Dawson's
decision.
16.36 N o b o d y f r o m the Procurator Fiscal's office was involved in the events of
9,10 and 11 January 1991. Linda R u x t o n was the Senior Procurator Fiscal Depute
i n E d i n b u r g h i n charge o f H i g h C o u r t cases f r o m January to A p r i l 1991. She was
due to be in attendance at the trial starting on 14 January, b u t was not involved
in the discussions about pleas. She said to us that, w h i l e she had no great knowledge
of w h a t had taken place, she had spoken afterwards to Thomas D a w s o n and shared
his views. She was concerned, however, at the somewhat casual manner in w h i c h
news of the decision reached the Procurator Fiscal's office after it had been taken.
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95
o f preventing possible compromise o f prominent public f i g u r e s b y stopp i n g the rent b o y witnesses f r o m g i v i n g evidence and identifying other
homosexual partners."
A n o t h e r passage states:
"Persons engaged on the enquiry however, feel that the decision to drop
charges and prosecutions was a tactical one taken at the highest levels in
C r o w n Office to prevent the possibility of evidence being presented w h i c h
could potentially compromise senior figures in the j u d i c i a r y . "
16.42
O r r t o l d us that these passages were a reflection of w h a t Robertson and
his brother Charles O r r had said to h i m . Robertson denied having spoken to O r r
in those terms. He said to us:
" I don't feel the C r o w n Office got the Advocate Depute t o d o w h a t h e d i d
to stop a rent b o y p o i n t i n g the finger at a Judge. The Advocate Depute was
not i m p r o p e r l y motivated because there was n o t h i n g to cover u p . "
He was o n l y ever concerned about the Advocate Depute's decision in case it had
been taken because the police had done something w r o n g , w h i c h was w h y he was
annoyed at n o t having been t o l d the reason for i t . He said that he saw the O r r
Report i n draft, and he t o l d O r r that he d i d not agree w i t h the passages w e have
quoted above. O r r however insists that Robertson d i d agree w i t h t h e m . We cannot
resolve this conflict of evidence. Charles O r r , on the other hand, d i d give evidence
to us in support of w h a t his brother w r o t e in his report. He said to us:
" I d i d express m y s e l f t o m y brother i n basically these terms. T h e y were
my feelings at the time. My feelings are still that these are decisions n o t
taken l i g h t l y . An improper m o t i v e could w e l l have been a possibility and
I saw it as such."
He said in terms that he subscribed to the passages w h i c h we have quoted above.
16.43 These passages contain a grave allegation for w h i c h there is n o t a shred
of evidence. We find it incomprehensible that Charles O r r should have spoken
to his brother as he d i d , or that O r r should have accepted w h a t he was t o l d at
its face value. As we have said, all the evidence points to an exercise by Thomas
D a w s o n of his o w n unfettered discretion, and if the alleged m o t i v e existed then
the obvious course w o u l d have been n o t to proceed to trial against K e i r . Charles
O r r himself was called as one of the C r o w n witnesses at that trial, so he k n e w
perfectly w e l l that it had taken place. Y e t there is no mention of that trial in the
O r r Report and we have to conclude that he gave his brother a distorted and
incomplete account of the w h o l e proceedings. We feel fullyjustified in describing
the w h o l e treatment of this case in the O r r Report as disgraceful.
96
H M A V STEPHEN MARK C O N R O Y
97
to Iain McSporran for revisal. On 17 June 1992 the indictment was sent to the
Procurator Fiscal at E d i n b u r g h for service.
17.6 By letter dated 7July 1992 Conroy's solicitor, D a v i d B l a i r - W i l s o n , offered
a plea of g u i l t y to the charges in the indictment relating to the completed frauds,
provided that the C r o w n accepted a plea of not g u i l t y to the charges relating to
the attempted frauds, d i d not proceed further w i t h the charges in the first petition,
and undertook not to prosecute C o n r o y in respect of other matters w h i c h m i g h t
be revealed by further police enquiries. On 8 July 1992 Iain McSporran w r o t e to
C r o w n Office recommending that the C r o w n should hold out for a plea of g u i l t y
to all the charges in the indictment, b u t that it m i g h t be appropriate to indicate
that if the plea resulted in a substantial sentence it m i g h t n o t be necessary in the
public interest to proceed w i t h the charges in the first petition. On receipt of this
letter Douglas B r o w n prepared a note to the d u t y Advocate Depute, Alastair
Campbell, recommending that the proposed plea should not be accepted, b u t that
C r o w n Counsel should indicate their willingness to consider b o t h cases together
for the purposes of a plea and that if there was a substantial improvement in the
plea to the present indictment they m i g h t be persuaded not to proceed w i t h the
first case. On 9 July 1992 Alastair Campbell accepted this recommendation and
a letter was sent by Douglas B r o w n to Iain McSporran i n t i m a t i n g this instruction.
There was of course no possibility that the C r o w n w o u l d undertake not to
prosecute C o n r o y in respect of matters w h i c h had n o t yet come to its notice.
17.7 The L o r d Advocate, L o r d Rodger, gave a commission to E d w a r d B o w e n
Q C , a former Advocate Depute, and also at one time a Sheriff, as an ad hoc
Advocate Depute for the sitting of 20 J u l y 1992. The papers were passed to h i m
about a w e e k before the sitting was due to start, and he was made aware of the
possibility that a plea of g u i l t y m i g h t be f o r t h c o m i n g . On considering the papers
he t o o k the v i e w that the evidence against C o n r o y amounted to "a pretty
o v e r w h e l m i n g case". W h e n he had n o t heard by Friday, 17 July that a plea of g u i l t y
was f o r t h c o m i n g , he spoke by telephone w i t h Iain McSporran, w h o confirmed
that negotiations were proceeding w i t h D a v i d B l a i r - W i l s o n , but that there
appeared to be a p r o b l e m about Conroy's representation in court.
17.8 Robert Henderson QC was originally instructed as Conroy's counsel and
appeared for h i m at the hearing of the bail appeal. D a v i d B l a i r - W i l s o n , however,
decided to instruct another counsel for the t r i a l . He instructed Peter Vandore QC
d u r i n g the w e e k before the t r i a l , b u t C o n r o y preferred that a different counsel
should be instructed and accordingly the instructions were passed to John
Simpson, Advocate. John Simpson was n o t in fact handed the papers prepared
by D a v i d Blair-Wilson u n t i l Saturday, 18 July, and accordingly was not in a
position to give advice to C o n r o y u n t i l a consultation was held in Saughton Prison
on Sunday, 19 July. The papers included papers prepared by C r o w n Office w h i c h
had formed part of the precognition reported to C r o w n Office. John Simpson
t o l d us that it was the best prepared set of C r o w n Office papers w h i c h he had
ever seen. He t o l d us also that his preliminary v i e w was that Conroy's position
was absolutely hopeless and that he should be advised to plead g u i l t y . At the
consultation, w h i c h was attended by D a v i d B l a i r - W i l s o n , there was discussion
about the possibility of a plea of g u i l t y to the charges in the indictment if the
C r o w n was prepared n o t to proceed w i t h the other outstanding charges. John
Simpson t o l d us that he thought that that was unusual because there had n o t been
a further indictment, b u t he appears not to have been made aware of the fact that
the outstanding charges had been included in an earlier petition in respect of w h i c h
bail had been granted, and that because C o n r o y was in custody f o l l o w i n g the
second petition, the charges in that petition had to be brought to trial sooner than
the charges in the first petition. Compliance w i t h the statutory time limits made
it impossible to deal w i t h all the charges in one indictment.
17.9 A c t i n g on instructions given to h i m by C o n r o y at that consultation, John
Simpson spoke to E d w a r d B o w e n before the trial was due to start on M o n d a y ,
20 July. He offered a plea of g u i l t y to the charges in the indictment, except for
charge 5, w h i c h libelled an attempted fraud, the sum in question being 95,000.
He also attempted to secure an agreement that the C r o w n w o u l d n o t proceed
further on the outstanding charges. E d w a r d B o w e n , like John Simpson, had little
98
information about these outstanding charges beyond the fact that there were
charges outstanding, and accordingly he d i d not feel able to b i n d the C r o w n n o t
to proceed further. He d i d , however, indicate that he was prepared to accept the
plea w h i c h had been offered and that it was unlikely that the C r o w n w o u l d proceed
further in respect of the outstanding charges. This position was acceptable to
C o n r o y and his representatives.
17.10 W h e n the plea of g u i l t y had been agreed the diet was called before Sheriff
John H o r s b u r g h Q C , sitting as a temporary Judge of the H i g h C o u r t . T h e plea
was f o r m a l l y tendered and accepted. The Advocate Depute m o v e d for sentence,
and John Simpson addressed the Judge in m i t i g a t i o n . The main thrust of the plea
was that C o n r o y was a y o u n g man w h o had allegedly been made use of by a bank
manager, and otherwise could not have succeeded in his fraudulent activities. John
Simpson t o l d us: " I p u t i n a n extremely good plea i n m i t i g a t i o n . " N o t w i t h s t a n d i n g
this plea, the Judge sentenced C o n r o y to six years' imprisonment for the crimes
of dishonesty and one month's consecutive imprisonment for the contravention
of the Bail A c t . In due course the question of the outstanding charges was taken
u p b y Iain McSporran w i t h C r o w n Office. After i t had been confirmed w i t h
E d w a r d B o w e n on w h a t basis he had accepted the pleas of g u i l t y , C r o w n Counsel
on 31 A u g u s t 1992 instructed that there should be no further proceedings in respect
of the charges.
17.11 E d w a r d B o w e n , Douglas B r o w n and Iain McSporran all regarded the
overall disposal of the case against C o n r o y to be w h o l l y satisfactory f r o m the
C r o w n ' s p o i n t o f v i e w . For w h a t their opinions are w o r t h , Souter and B r o w n
had no criticism to make of the w a y in w h i c h the case had been disposed of, and
B r o w n indeed expressed satisfaction w i t h i t .
17.12
Later on 20 J u l y 1992 John Simpson w e n t to "Snatchers", a public house
in the H i g h Street in E d i n b u r g h . As we have already mentioned in paragraph 11.3
of this Report, D a v i d Johnston and Michael Glen were there. T h e y t o l d us that
John Simpson spoke to b o t h of t h e m . D a v i d Johnston reported to Tarn D a l y e l l
w h a t he thought John Simpson had said. Tarn Dalyell w r o t e in his letter dated
19 A u g u s t 1992 to the L o r d President:
"I hear that after the case, his [Conroy's] counsel, John Simpson, w h o is
a serious lawyer, w i t h a l o t of experience, albeit not a silk, said to a number
of people quite openly that the original charges, those due for October, had
been struck o u t altogether as part of the plea bargain, and that the case was
quite s i m p l y the strangest he had come across in his career. I gather that
John Simpson let it be k n o w n that he d i d n o t believe the proverbial 'singlew o r d ' i n the m i t i g a t i o n . "
17.13 We are convinced that D a v i d Johnston misheard w h a t John Simpson said.
John Simpson thinks, consistently w i t h the v i e w that he expressed to us and to
C o n r o y , that he must have used the w o r d "strongest" rather than "strangest".
We are not sure whether he said anything in the public house about the outstanding
charges, b u t if he d i d his remarks must have been based on his relative ignorance
of the procedure w h i c h had already taken place in relation to t h e m . John Simpson
t o l d us that he thought the passage in Tarn DalyelPs letter about his plea in
m i t i g a t i o n to be " v e r y unfair". He d i d not accept that he said anything of that
k i n d in the public house.
17.14 To return to the precognition w h i c h was undertaken by Iain McSporran,
we t h i n k we should mention an event w h i c h t o o k place in his office on 24 June
1992. On that date Souter and B r o w n attended together to be precognosced about
documents relative to the case w h i c h were in Iain McSporran's office. He t o l d
us that B r o w n was n o t v e r y interested in being precognosced. He said that he had
a v e r y v i v i d recollection that B r o w n continually interjected, speculating about the
so-called " l i s t " of gay lawyers or establishment people or persons h i g h up in the
legal system. A c c o r d i n g to M c S p o r r a n , B r o w n said at one stage: "The list Mr
M c S p o r r a n , v e r y interesting this list, y o u w o u l d be v e r y surprised about some
of the names", and then w e n t on to name t w o persons w h o m he said were named
in i t . One of these was the present L o r d Advocate. Iain McSporran said to us that
there is no possible doubt in his m i n d that B r o w n said that. A c c o r d i n g to h i m ,
he t o l d B r o w n that he was n o t interested in the contents of any list and that by
H M A V STEPHEN M A R K C O N R O Y
99
all means B r o w n could tell h i m about it after this investigation, b u t for the time
being he was s i m p l y dealing w i t h a fraud investigation. He t o l d us that Souter,
meanwhile, looked embarrassed and irritated and tried to get back to the matter
in hand. He d i d not, however, contradict w h a t B r o w n was saying. Iain McSporran
was under the impression that B r o w n was telling h i m that he had the " l i s t " , and
was taking pleasure in speaking as he d i d .
17.15 W h e n we interviewed Souter for the t h i r d t i m e , we pressed h i m again and
again about w h a t Iain McSporran had t o l d us, b u t he repeatedly stated that he could
not remember any such event. He was not prepared to say that Iain McSporran was
l y i n g to us, or to give us any explanation as to w h y he should be in a position
to give us such an account. W h e n we interviewed B r o w n , also for the t h i r d t i m e ,
and pressed h i m v e r y hard about Iain McSporran's account, he described Iain
McSporran as "an excellent Fiscal", and agreed that he was reliable, n o t given to
inventing things, and n o t someone w h o had a grudge against B r o w n . A l l he could
say about Iain McSporran's account was that he could not recall any talk about
the "list".
17.16 We believe Iain McSporran's account of w h a t B r o w n said to h i m about the
" l i s t " . B r o w n had read Souter's copy of Tucker's Statement and was accordingly
aware of the names in i t , w h i c h had "popped o u t " at h i m . We believe that he set
great store by i t . As we have already made clear in part 6 of this Report, A l a n
Rodger's name certainly does n o t appear in Tucker's Statement. It is incomprehensible, and deplorable, that a police officer should see fit to speak to a Procurator
Fiscal Depute in such terms about a matter w h i c h was of no relevance to the
case under discussion and w h i c h , above all, could o n l y have been intended to
undermine confidence in the senior L a w Officer.
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18. C O N C L U S I O N S
18.1 We are satisfied that we have seen all relevant papers and have interviewed
all relevant witnesses. On the basis of this evidence we feel entitled to reach the
f o l l o w i n g conclusions.
18.2 No prominent member of the Scottish legal establishment, apart f r o m
L o r d D e r v a i r d , is or has at any material time been compromised by reason of
homosexuality or homosexual behaviour.
18.3 P r o m p t action was taken w h e n L o r d Dervaird was found to be c o m p r o mised, and he resigned. If any other person in a similar position were found to
be so compromised, n o t h i n g w o u l d be done to protect h i m f r o m the consequences.
18.4 C o l i n Tucker's so-called "list" is a Statement w h i c h we have in our possession and w h i c h does not name or otherwise identify any prominent member of
the Scottish legal establishment, apart f r o m L o r d D e r v a i r d , as a person w h o has
allegedly engaged in homosexual behaviour.
18.5 No other allegation of homosexual behaviour by a serving Judge w h i c h
has come to our notice is true.
18.6 Sheriff Douglas A l l a n , f o r m e r l y Regional Procurator Fiscal at E d i n b u r g h ,
is n o t and never has been compromised by reason of homosexual behaviour.
Allegations against h i m by Stephen C o n r o y were untrue and have been expressly
w i t h d r a w n . N o c o m p r o m i s i n g photograph o f h i m has ever existed. A l l other
allegations against h i m are derived f r o m Stephen Conroy's untrue allegations and
are equally untrue.
18.7 No person engaged at any p o i n t in the investigation and prosecution of the
case against C o l i n Tucker was i m p r o p e r l y motivated. He was acquitted by verdict
o f the j u r y .
18.8 No person engaged at any p o i n t in the investigation and prosecution of the
case against G o r d o n M a y and C o l i n Tucker was i m p r o p e r l y motivated. The
Advocate Depute w i t h d r e w the charges d u r i n g the course of the trial because of
the quality of the evidence.
18.9 Robert Henderson QC had a copy of C o l i n Tucker's Statement w h i c h he
handed to a police officer w i t h o u t C o l i n Tucker's authority. He has never been
in possession of other evidence w h i c h w o u l d be capable of c o m p r o m i s i n g any
prominent member of the Scottish legal establishment by reason of homosexuality
or homosexual behaviour.
18.10
Robert Henderson's business transactions were subjected to a t h o r o u g h
investigation by the C r o w n w i t h a v i e w to possible prosecution. The investigation
was additional to and far more extensive than the police investigation. The decision
n o t to prosecute h i m was taken at the highest level on evidential grounds and was
n o t i m p r o p e r l y motivated. Robert Henderson in no w a y influenced the decision.
18.11
No person engaged at any p o i n t in the investigation and prosecution of
the case against N e i l Duncan and others was i m p r o p e r l y motivated. The decision
to accept pleas and w i t h d r a w charges was taken by the Advocate Depute in the
exercise of his o w n unfettered discretion. The alleged motive for his decision has
no evidential basis.
18.12 There is no l i n k between any of the above events apart f r o m the coincidental involvement of legal representatives, none of w h o m was in a position to
use, and none of w h o m d i d use, improper means to influence their outcome.
18.13
There is accordingly no evidence:
(a) that there has been a conspiracy to pervert the course of justice in Scotland;
(b) that the course of justice has been perverted in any of the above cases;
or
CONCLUSIONS
101
(c) that the alleged motive for such a conspiracy has ever existed.
18. 14 The o n l y matter on w h i c h our remit requires us to make a recommendation
is whether any part of this Report should remain confidential. We alone have
decided on the terms of this Report. We can see no reason w h y any part of it should
remain confidential.
R E P O R T E D BY:
W. A. N I M M O S M I T H QC
J. D. F R I E L
E d i n b u r g h , 15 December 1992