A High Court judge and an allegation of criminality

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By Kenneth Roy
 
The week before last – on 23 October – an extraordinary story appeared on the BBC in the name of one of the most experienced journalists in Scotland, Reevel Alderson. Its online version was headed: ‘Lockerbie group accuse Lord Advocate Colin Boyd’. Mr Alderson reported in his first paragraph that it was being alleged that Lord Boyd (as he now is) had attempted to pervert the course of justice.

It is not often that a senator of the college of justice – a judge – is publicly accused of a serious criminal offence, albeit an offence allegedly committed when he was not a judge but Scotland’s chief law officer. I cannot remember it ever happening before; it’s certainly pretty unusual.

Mr Alderson, BBC Scotland’s home affairs correspondent, went on to outline in general terms the nature of the alleged crime: that the man who led the Lockerbie prosecution, Colin Boyd, gave information to the judges at the trial in the Netherlands of Abdelbaset el-Megrahi and his co-accused, information which members of his team – and, by implication, Mr Boyd himself – knew to be false.

This accusation was based on a statement in a letter from the Justice for Megrahi Committee to the justice secretary, Kenny MacAskill. I knew something of this in advance. I am – or was – one of the signatories to the committee’s campaign to have the case against Megrahi reopened and subjected to the rigour of an independent inquiry. But I was unaware of the letter’s contents, and therefore of  the allegation against Colin Boyd. The first I knew of it was when I read it in Reevel Alderson’s despatch.

Events, dear boy, events: I was distracted by them. But last Friday morning I finally got around to writing to the secretary of the Justice for Megrahi Committee. I asked him plainly what evidence the committee had for accusing Lord Boyd of attempting to pervert the course of justice. I don’t know what I expected him to say, but I was unprepared for the first words of his reply: ‘In a nutshell, absolutely none’.

What, no evidence? Absolutely none? By that stage, an impression had been planted in the public’s mind – planted for all of 11 days – that the Justice for Megrahi Committee had accused a senator of the college of justice of criminality. The secretary, Robert Forrester, added that ‘various media outlets made the assumption that we were making an allegation against him’ but that they were ‘insufficiently savvy’ to arrive at the conclusion that no such allegation was being made.

Mr Alderson was not alone in making this assumption. The online legal magazine The Firm reported on the same day that the police, the Crown Office and the former lord advocate were being accused of ‘widespread perversion of the course of justice’ and made specific reference to the allegation against Lord Boyd in the same terms as the BBC had done.

I know enough of Mr Alderson to have considerable respect for his professional expertise and judgement. How could he have got it so wrong? We had better have a look at the relevant paragraph of the letter to Kenny MacAskill:

1. On 22 August 2000 the Lord Advocate, Colin Boyd QC, communicated to the judges of the Scottish Court in the Netherlands information about the contents of CIA cables relating to the Crown witness Abdul Majid Giaka that was known to members of the prosecution team [A.B and C.D] who had scrutinised the cables, to be false. The Lord Advocate did so after consulting these members of the prosecution team. It is submitted that this constituted an attempt to pervert the course of justice.

Now, this paragraph is not what I’d call a model of clarity. There is no doubt that the Justice for Megrahi Committee is fingering two individuals whose identities have been redacted, although their names are known to Kenny MacAskill. The position of Colin Boyd is more ambiguous. But it is easy to see how journalists would have come to the conclusion they did. The sentence ‘The Lord Advocate did so after consulting these members of the prosecution team’ is more than a little tinged with innuendo.

But even if Mr Alderson did get it wrong (along with the other media outlets alluded to by Mr Forrester), and he was not entitled to draw the inference he did from paragraph 1 of the letter, and there was no suggestion in the mind of the committee of criminal wrongdoing on the part of the then lord advocate, that does not quite dispose of the matter.

Not entirely satisfied with the reply from Mr Forrester, I emailed a second member of the committee, Professor Robert Black QC, expressing surprise that there had been no attempt by the committee to correct a defamatory accusation against Lord Boyd and that the lack of any clarification did the cause of justice for Megrahi considerable harm. Professor Black replied that after the ‘misinterpretation’ of the committee’s letter he included in his blog the following note in parenthesis (the emphasis on the word ‘may’ is my own):

[Lord Boyd is accused of communicating to the Zeist court information which members of the prosecution team, whom he consulted, knew to be false. He may himself have been an unwitting conduit of false information.]

Still not entirely satisfied, I sent the following note to Professor Black:

The public (or those intelligent members of it who retain an interest in this case) has now formed the impression that the committee has accused Lord Boyd of a serious criminal offence. I have heard this in conversation in the last week. Yet according to Robert Forrester there is absolutely no evidence to support the accusation. I suggest that the committee has a duty to correct this impression (forgive me: a note in parenthesis in your blog isn’t really enough). It should have corrected it at once in order to dispose of any suspicion that the committee is content to have Lord Boyd’s character and reputation smeared in public without any evidence.

Professor Black did not reply. I then emailed all the members of the committee to express my concerns. Mr Forrester sent a one-liner: ‘I’ll put your reservations to the committee to establish a joint view on the need for a clarification’. That was last Friday. As I write this on Tuesday morning, 96 hours later, I have heard nothing more from any of them.

Fifteen days have now elapsed since a Scottish judge was accused of criminality on ‘absolutely’ no evidence as the result of a ‘misinterpretation’ of a poorly worded letter. Where is the justice
in that?

Courtesy of Kenneth Roy – read Kenneth Roy in the Scottish Review