Ian Hamilton QC

By Ian Hamilton QC

I don’t care if he is guilty or innocent. I don’t care for his politics.  I care for his absence.

I liked the man. I still do. When he reaches the stage of day release I hope he and Gail will have lunch with me as we often did. Then we can disagree while she referees.

First time he went to jail it was for his own people. I refer to his poll tax rebellion. At Faslane he went to jail for us all. They made him a symbol and a symbol he remains.

I shall miss him. Wherever he went he carried hope. Among the mediocracy he stands out like the Statue of Liberty. Those who hate him shout in his shadow. He lived what he taught. As an MSP he drew only a working man’s wage.

He may be lost to us because of his own folly. He may be lost  because the state allied itself with big business. The cause of the loss must not be confused with the loss itself.

A Scot has gone away for a time whom we cannot spare.

Only the Holy Willies will rejoice.

By Ian Hamilton QC

Let all who love freedom rejoice. The state which permits our bankers to steal millions is in trouble. It may not be big trouble but revolutions sometimes start with a tiny touch of indigestion. This disorder is bound to start quite soon. Its name is Tommy Sheridan.

Many will have seen the BBC’s programme on the evening after his conviction. The BBC used tapes of police interviews. Both the BBC and the Lothians and Borders police may have been in breach of the Data Protection Act. The Lord Advocate must now make it clear that the crown is going to prosecute them. Any delay on the crown’s part is inexcusable but don’t hold your breath. A crown that lets big business buy its principal witnesses is not going to be too fussy about what the Lothians and Border Police and the BBC have done. Finish!

But it is not finished. Many of us are deeply disturbed that the state has allied itself with big business in a criminal prosecution; particularly a criminal prosecution of a political enemy. Among the people deeply aggrieved is Tommy Sheridan himself. If the Lord advocate won’t prosecute there is private prosecution. Tommy can prosecute the BBC and the Lothians and Borders Police. The evidence speaks for itself. This prosecution can only be done by permission of the High Court and the hearing must be in public. There is judicial authority for this procedure. The Lord Advocate is called upon to state the Crown’s position and may even be called upon to explain that position. The press will certainly demand an explanation, particularly the legal press like The Firm.

Now I’m only an old broken down QC. But Tommy Sheridan is a law student. This is where the indigestion begins. It would be a gross breach of his human rights if he were denied access to a law library to prepare his case for a private prosecution against the state broadcasting service and the police. What would Europe and the rest of the free world say? Be assured, Tommy will act. I don’t think any prison has a complete law library. He’ll need to go elsewhere. I will use any influence I have to get him access to the Advocate’s Library. (Feel the first twinges of indigestion, Dean of Faculty?) Wherever the library may be the Scottish prison service will have to provide transport and an escort.

And what if the High Court grants permission for a private prosecution? The use of these tapes is something that should never have happened. The police and the BBC aren’t above the law. How will the Lord Advocate explain the Crown’s position?

The sword of Damocles hangs over the Lord Advocate. It’s hanging by a hair of one man’s head. And Tommy Sheridan’s hair grows thinner by the day.

Don’t shake your head, Tommy. Nod it in approval and let the sword of justice fall.

By Ian Hamilton QC

I fear for what is happening to the administration of justice. I blame the SNP because they are the government. It started under Labour so an election will make no difference. Here are examples of what I fear.

In the Megrahi case it emerged after conviction that a foreign state had given massive bribes to a vital witness or to witnesses.

It emerged that a vital fragment of the fuse relied on for the conviction had never been tested for explosive residue, a vital test in any explosives case.

More recently, and in another case. A journalist heard of the existence of a recording. He bought it from the holder, who later gave evidence. Why were the police not told of the tape so they could get a warrant and seize and investigate it? Why was the journalist not rebuked for interfering with the administration of justice?

In the same case a recording of a police interview was handed by someone to the BBC who used it in a broadcast. Tapes of police interviews are always confidential; yet it appears there is to be no enquiry into how this tape got into BBC hands and why they used it. It was, I think, a production in a case. It is contempt of court to make off with a production and to reset it. Why are the BBC not to be prosecuted?

Lastly and most sinisterly of all is the crown office’s attitude to the press. We only have two reliable investigative journalists in Scotland. One is Kenneth Roy with his Scottish Revue. He is pursuing the matter of the BBC recording into a wall of silence. Good for you Kenneth.

The other is Steven Raeburn, editor of The Firm. It is our only legal magazine. It is read by most of Scotland’s lawyers. A free and informed legal press is of vital importance in the preservation of a proper administration of justice. (I air my grievance. At 85 I shouldn’t have to be writing this. The Lord Advocate should have dealt with these matters as they occurred.)

Now here is the really frightening thing. The crown office is refusing to answer any questions from Steven Raeburn. They do not like what he writes. They are holding him incommunicado. The legal profession is thus kept in the dark about the things that matter most. The things that matter most in any government department are the things the department don’t want anybody to hear about.

I have been critical of Elish Angiolini’s culture of secrecy in the past. She is the Lord Advocate. She is a member of the government. I now make my accusation wider. I now accuse the Scottish government of living in a cocoon of fear, a cocoon of its own making; a fear of its own making. Can Alex Salmond not control his Lord Advocate?

Why is the Lord Advocate silent? Why will she not permit her own department to speak to the only journalist who speaks to the whole legal profession?

Secret justice is fascist justice. Secret justice is a danger to us all.

By Ian Hamilton QC

Is using paid witnesses to a crime to become a feature of the administration of Scottish Criminal Justice? They have never been used before.

Are newspapers now permitted to investigate crime as well as the police?

When the News of the World heard that a video record of an alleged confession existed their duty was immediately to report this to the police? The police would then get a warrant to search the haver’s* house. That is the usual method. It is the method the police used to search the Sheridan house, although they found nothing.

Why did, Coulson, the Editor of The News of the World, come from London to interview and pay a potential crown witness for a video recording? This is contrary to proper criminal procedure. Purchase of witnesses has no place in Scots law. Indeed payment by the Americans of witnesses in the Magrahi case is one of the things that make many people think the conviction is unsafe. Why did Coulson hand over £200,000 when the police could have got the same evidence for nothing? Either the recording was evidence or it was not evidence and, if it was fabricated, no amount of money could make it sweet.

The admissibility of evidence bought by a third party and handed to the Lord Advocate to be used in criminal proceedings was not, I think, argued in court. I do not know if Mr Sheridan will appeal. So far he has not done so. I tell you this. As a criminal lawyer of many years experience such a happening sticks in my craw. So many questions occur to me.

Was the money given to the haver before he gave evidence? Were any conditions attached to the giving of the money? If so what were they? Is it true that the haver was sent on holiday by The News of the World? If so why? Was this to keep him from being interviewed by the defence or their experts?

Now that The News of the World is calling for the prosecution of all the Sheridan defence witnesses it looks as though Rupert Murdoch is using our Scottish criminal law as his own personal weapon. He is probably richer than the Scottish state so he can afford to. I write these words in fear. If he were to use the law against me, as it was used against Tommy Sheridan, it would break me as it has broken him. I am a weak citizen and all the law in the land will not save me.

There are so many more questions.

What other part, if any, did this newspaper play in this prosecution?  Were they given a copy of the indictment containing the list of crown witnesses? What other witnesses were interviewed by The News of the World and why? Who were paid, how much, and what for?

In High Court cases all witnesses are seen and precognosed by the crown office staff. The questions I pose would have been asked of all the witnesses. Records of these interviews lie in the crown office. They must now be published. Video records of the police interview of Mr Sheridan were published; so also can crown office records. The public interest demands it.

Never in the history of Scots law has the crown adduced witnesses who have been paid, or promised payment, by a third party in connection with their evidence. Why were they adduced in this case? The Lord Advocate must explain why.

In using at least one paid witness who had first been seen and paid, or promised payment, the Lord Advocate may have been guilty of malpractice in public office. She may have an answer that we should all hear. (One of the great ironies in this case is that no one would dare make the same accusation against Rupert Murdoch.

This case smells of injustice. It will not be sweetened by making the Lord Advocate a judge.

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*The word ‘haver’ is used in Scots Law to denote the holder of a piece of evidence that may be useful in a current litigation.

This piece first appeared in the Firm Magazine.