Taken from the Sunday Herald
The truth is out. It was Robbie the Pict wot done it. The latest prime suspect in the case of the leaping Lord Advocate is the leader of the Pictish Nation, who, it emerges, had been preparing to challenge Lord Hardie on March 3 for breaching the European Convention on Human Rights in the appointment of judges. Perhaps Lord Hardie realised the game was up and decided to appoint himself a judge while the going was good.
Well, it's by no means the most far-fetched account of the circumstances that led to the resignation of Scotland's senior law officer - the first great Scottish legal mystery of the millennium. It was no secret that Lord Hardie had been having a difficult time with the ECHR, what with the Ruddle affair, the temporary sheriffs, children's panels and the like. Perhaps he'd just had it up to here. The thought of being pursued through the courts by Robbie the Pict is enough to make anyone think of taking early retirement: É sorry, taking up a well-earned place on the bench.
Not that there was anything mysterious or remarkable in Lord Hardie resigning in order to make himself a judge, with his mate Donald's help. He was only following the well- trodden route to the bench taken by successive Lord Advocates. The issue was the timing. Only six weeks before the opening in The Hague of the Lockerbie trial - "the trial of the century" as it is being called - eyebrows were raised. Why had he chosen to leave now? Did he know something the rest of us didn't? The anguished intervention of Lockerbie relatives, who clearly feel he had let them down, was enough to blow the affair into a full-scale scandal-hunt.
The favoured conspiracy theory is that Scotland's senior law officer had realised the trial of the Libyan suspects in the Lockerbie case was about to go belly up. There have been rumours for weeks that the case is weak, evidence unreliable and that the accused probably hadn't bombed PanAm 103 in 1988. The Lord Advocate had six weeks before the trial opened. The temptation to cut and run was, according to the SNP, too much.
This suggestion that Lord Hardie had, as Alex Salmond put it, "done a bunk" was particularly objectionable to Donald Dewar, who doesn't like that kind of language and made clear his distaste at question time last Thursday. But the legal eagles of Holyrood opposition were less sanguine. Solicitors such as Tory leader Annabel Goldie are less in awe of men in wigs and had no hesitation in crying foul.
So, in the People versus Lord Hardie, the charge sheet reads: That the Lord Advocate, having screwed up over the incorporation of the European Convention into Scots law, and having left the Crown Office demoralised and in disarray, and being leery about Lockerbie, and being conscious time was running out, did, in a spirit of naked self interest, summarily appoint himself to the bench without paying due care either to his public image, or to that of his distinguished post; and did thus compromise the forthcoming trial of the Lockerbie accused to the severe distress of the victims' relatives. Moreover, that the said Lord Hardie did appoint himself to the bench knowing that it is the express intention of the Scottish parliament in future to seek to alter the system of judicial appointment, such as to abolish patronage and place the appointment of senior law officers in the hands of an independent appointments board.
"Lord Hardie, how do you plead?" "Not guilty, M'lud." "Call the principle witness for the defence: Deputy First Minister, Justice Minister, Jim Wallace."
No doubts there. Wallace leapt to Lord Hardie's defence against the press like an over-eager puppy fighting off a postman. He insisted that the Lord Advocate had "earned his place on the bench" after a decade of loyal service to Scottish law. He had done everything he reasonably could to prepare for the European Convention, and out of more than 300 challenges under the ECHR, had only lost eight. Tough ones, to be sure - especially for the 129 temporary sheriffs who were given their P45s - but it could've been a lot worse.
Jim Wallace also insisted that Lord Hardie only had a titular role in the Lockerbie case and that prosecution proper was in the capable hands of the former Solicitor General, now Lord Advocate, Colin Boyd QC. Well, a solid enough defence perhaps, but not enough to satisfy the opposition.
Particularly damaging to Lord Hardie was the testimony of Lord James Douglas Hamilton, the former Tory minister, during last week's emergency debate. The former advocate laid into Lord Hardie for "betraying" the Lockerbie victims, for "dereliction of duty" before one of the most important trials in Scottish legal history, for "self promotion" and for "dishonour". For Lord James, one of Holyrood's most honourable MSPs, to be impugning Lord Hardie's integrity in this way caused sharp intakes of breath.
Lord Hardie has since metaphorically entered the witness box himself to answer the charges. He insists he didn't appoint himself a judge, it was Donald Dewar and the Queen, although he's a little vague about who raised the matter first. He says the Lockerbie case is sound and he had never led the relatives to believe he would be prosecuting it personally. The ex-Lord Advocate also denies that the Scottish legal system is in chaos because of the European Convention, or that the Crown Office had been ill-prepared. "I have not been forced out because of criticism," he said. "The time has come for change and to move on". This defendant is not giving an inch under media cross-examination.
So, what do we, the jury, make of it all? The most fitting verdict has to be - in classic Scottish legal fashion - "Not proven". It is simply impossible to establish that Lord Hardie acted improperly in doing what his predecessors did before him.
What he is guilty of, however, is a poor sense of timing. It seems extraordinary that Lord Hardie did not consider how it would appear for the leading figure in the Lockerbie trial to depart on the eve of the case opening. It has damaged the prosecution case by raising doubts about whether the senior legal authority had confidence in it. It looks as if Lord Hardie was getting out while the going was good. The dismay of the Lockerbie relatives is heart-felt. Did Lord Hardie consult them before he decided to resign?
As for the conflict of interest in being head of the prosecuting service while sitting in the Scottish cabinet, perhaps Lord Hardie should have realised the post was becoming untenable under the ECHR, which entitles every defendant to a fair hearing by an independent judiciary.
The Scottish parliament has been shining a fierce light into the darker recesses of Scottish public life, and Lord Hardie got caught in the glare. The incestuous system of senior legal appointments was just all just too cosy: Andrew chats with Donald; Donald chats with Lord President and the Queen; Andrew becomes a judge.
Perhaps Donald Dewar should be in the dock. He was the only one who could have said: "I'm sorry, Andrew, but this just isn't the time." That might have pole-axed Lord Hardie's career. Once involved in the Lockerbie trial he might well have been stuck with it for two or three years, by which time there might no longer be space for him on the bench. But that's the trouble with politics, and remember the Lord Advocate is a politician as well as a law officer.
It is sometimes impossible to leave a post when you want to. Lord Hardie feels hard done by, but that's the penalty of public life. Nobody is immune from scrutiny. Perhaps, in the end, the verdict should be: "Not guilty- but don't do it again".
20 February 2000
Taken from the Scotsman 22nd December 2001
Advocate General attacked by law
lord after constitutional case
JOHN ROBERTSON Law Correspondent
A JUDGE has made a scathing attack on a government minister for failing
to play any part in a major constitutional court case. Lord Hardie
accused Lynda Clark, QC, the Advocate General for Scotland, of a lack
of courtesy and he branded her attitude as unfortunate and
unsatisfactory. In response, she said there were good reasons for
staying out of the
case. JOHN ROBERTSON Law Correspondent
It is rare for judges to make such robust criticism, and Lord Hardie’s outburst is all the more remarkable given that he and Ms Clark are former colleagues. They had served together as Labour law officers when Lord Hardie was the Lord Advocate.
In the case at the Court of Session, an inmate subjected to slopping-out in Barlinnie Prison sought an order on the Scottish ministers to move him from conditions which he claimed breached his human rights. Three appeal judges decided that the court could not order ministers to do something, although the Crown in England enjoyed no such immunity. They said legislation would be needed if Scotland was to be brought into line. In his judgment, Lord Hardie commented on the position adopted in the case by the Advocate General.
The post of Advocate General was created on devolution and went to Ms Clark, the MP for Edinburgh Pentlands. Her duties include advising the Westminster parliament on Scots law. She had indicated that she would be represented in the Barlinnie case but no-one turned up when it started. At the request of the judges, an advocate appeared later on Ms Clark’s behalf and explained that she had decided not to make representations "at this stage" but might become involved if there were an appeal to the House of Lords. The advocate was unable to give reasons for Ms Clark’s change of heart.
Lord Hardie, who was Lord Advocate from the 1997 general election until he became a judge in 2000, said he considered that the position of the Advocate General was unsatisfactory. It was unfortunate, he added, that she should not appear in cases which she herself believed to be of major constitutional significance.
"I wish to record my disapproval of any practice whereby the Advocate General elects not to appear before this court, but chooses thereafter to intervene in proceedings before the House of Lords if the decision of this court does not meet with her approval. There is the consequence that this court, in reaching its decision, does not have the benefit of arguments on behalf of the UK government, whereas the decision may subsequently be criticised by the Advocate General on grounds which she did not have the courtesy to advance before this court."
In reply, Ms Clark said her role was not to leap into cases at great public expense merely because there was an interesting legal point being debated. A letter explaining that she would not be taking part had been sent to the court, but did not reach the judges because of error by court officials.
"This caused considerable confusion...but that was no fault of mine," she added. "Even with hindsight, I still consider my intervention...was not necessary."
In the case, the prisoner, Scott Davidson, tried to use a fast-track procedure to secure a transfer from conditions in Barlinnie which his lawyers alleged were degrading and breached the European Convention on Human Rights. It involved winning an order against the Scottish ministers to move him, but he lost the case before Lord Johnston in October. Hundreds of other inmates had been ready to take similar action if Davidson had succeeded.
Taken from the Sunday Herald 27th June 1999
Lord Advocate facing new
Lockerbie embarrassment
A decision by the Lord Advocate may be challenged this week when three High Court judges deliver their verdict in a controversial contempt of court case brought by the two men accused of the Lockerbie bombing.
Abdel Baset Ali Mohamed al-Megrahi and al-Amin Khalifa Fimah are claiming that an article and editorial in The Sunday Times last month prejudiced their chances of a fair trial. If the case is successful it will overturn the judgment of the Lord Advocate, Lord Hardie, who has already decided not to prosecute the paper.
"There's no doubt that if the two men are successful in this case it will be deeply embarrassing as far as he is concerned," said Professor Robert Black, the Edinburgh University legal expert who conceived the plan to hold the two men's murder trial in a neutral country before three Scottish judges and without a jury. The Sunday Times story was based on material provided by renegade MI5 agent David Shayler. We are prevented from reporting it by a court order.
Following publication of the story the Reverend John Mosey wrote to Lord Hardie asking him to take action against The Sunday Times. The Rev Mosey's 19-year-old daughter Helga was one of the 259 people on board PanAm Flight 103 murdered over Lockerbie in December 1988. The Sunday Times article apportioned blame for the Lockerbie killings but the paper was prevented from publishing detailed claims of evidence of the guilt of all those involved by an injunction from the Official Solicitor.
The Rev Mosey, in his letter of May 23 to the Lord Advocate demanded action against the paper. "If this is not contempt of the legal system, sir, I don't know what is," he wrote. He went on: "What are you doing about it? The place for this information was in your hands, not the media's. "This is clearly, because of the timing, a political effort to torpedo the whole trial. Most of us have felt from the beginning that our government and that of the USA had not wanted a trial at all. The present government has appeared willing to follow a different line. "However, if the people responsible for publishing this information are not legally pursued with the utmost vigour nobody can be blamed for believing that our government is complicit in the whole affair."
In his reply, ruling out prosecution, Lord Hardie argued that "contempt of court in the circumstances of this case is severely circumscribed because of the absence of a jury. Where criminal proceedings are to be determined by trained judges the court is only likely to invoke the law of contempt where it can be shown that the conduct was intended to interfere with the course of justice or where the conduct is likely to impact improperly upon the evidence of the witnesses."
The contempt of court case by the two accused was brought after Fimah read The Sunday Times' allegations in Arabic newspapers while in prision in the Netherlands where he is awaiting trial.
In his arguments before the Lord Justice Clerk Lord Cullen, sitting with two other judges, Fimah's lawyer, Richard Keen QC, said: "What was placed before him was an assertion, unqualified, that he was a guilty man. How is Mr Fimah, situated as he is in the Netherlands, to be assured that his trial and the course of justice in respect of his trial will proceed uninfluenced by such matters?
"He may be persuaded that judges of Scotland are professional but, having handed himself over and being in prison awaiting trial he then finds he has to undergo trial, by media, with repeated assertions of his guilt even as the trial is imminent. The Sunday Times has quite blatantly prejudged this man's guilt after he placed himself in the control of the Scottish authorities."
Bill Taylor QC, for al-Megrahi, called on the court to find the paper, its editor and the reporter who wrote the story in contempt. He also asked for an order prohibiting future publication which could influence the fairness of the trial.
"A fair and dispassionate reader," he said, "would be left with the feeling that the guilt of these two accused can be taken for granted."
Professor Black also believes Lord Hardie was wrong not to bring a contempt case against the newspaper and that the article could potentially "impact", in Lord Hardie's words, on the evidence of witnesses. He argues that the contempt laws seek not only to guard jurors from prejudicial material but what he calls "the second evil" must also be prevented, any attempt to interfere with "the integrity of the evidence in the case and particularly the witnesses."