MR. JOHN SKEEN: CROWN OFFICE STATEMENT (Hansard, 21 October 1980)

§ Lord McCLUSKEY
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ The LORD ADVOCATE (Lord Mackay of Clashfern)
My Lords, the Crown Office would not normally give publicity to allegations which were not to be the subject of prosecution. However, the case referred to by the noble and learned Lord was highly exceptional. Reports had appeared both in the Glasgow press and in the national Scottish press that allegations of sexual misconduct against a procurator-fiscal had been against a procurator fiscal had been reported to the Crown Office. No name of the fiscal involved was given. A few days later these reports were followed up by a report that some 20 further allegations were being investigated and that a team of police officers had been appointed for this task.
As the noble and learned Lord is aware, there are a number of procurators fiscal in the service and many members of the public attend at their offices daily for precognition and other purposes. In these circumstances I considered it necessary to give the public a statement of the position. I felt it impossible to do this adequately without naming Mr. Skeen and, in fairness to Mr. Skeen, I thought it necessary to indicate with some precision the nature of the allegations in question. 1756 I considered the making of this statement necessary in the interest of the other procurators fiscal, in the interest of Mr. Skeen himself, but above all in the interest of the public, particularly those who have dealing with the procurators fiscal.

§ Lord McCLUSKEY
My Lords, in thanking the noble and learned Lord for that reply, which I fully accept, may I ask him to deal with three points which arise out of the circumstances. First, is he aware that the issuing of this statement gave rise to some disquiet in Scotland because in the statement the Lord Advocate appeared to be saying that he had received allegations and evidence of the commission by a distinguished public servant of criminal offences involving several women, and that although Mr. Skeen strongly denied the allegations the Lord Advocate was not going to put those allegations to the test, principally because the women complainers did not want publicity?
Second, does he consider that in referring to the women's expressed wish to avoid the publicity that could ensue if they were called as witnesses, the statement departed from the Crown Office's usual practice of not giving any reasons for a decision not to prosecute and failed to reveal that there might be other reasons for not prosecuting, including the difficulties in proving the allegations?
Finally, can be confirm that at a time when the complaints were supposed to be under the most confidential investigation by senior police officers, full details of the investigation by these officers and of the report to the Lord Advocate were published in two Scottish newspapers in circumstances which pointed to a deliberate leak to the press by police officers in contravention of Section 44(2) of the Police (Scotland) Act 1967? And is the Lord Advocate or the chief constable of Strathclyde conducting an inquiry into such an offence?

§ Lord MACKAY of CLASHFERN
My Lords, the general practice of the Crown Office is not to give reasons for a decision not to prosecute. Obviously there are good reasons for that policy. This statement did not contain an expres- 1757 sion of the reasons which led me to take the decision which I did. However, as I have said, I thought that the circumstances were extremely exceptional and required a reasonably full statement of the position so as to inform the general public, and I thought it right in that statement to refer to the basic facts. One of the basic facts was that the women complainers who were referred to in relation to the possible criminal allegations did not want publicity, for personal reasons. I thought it right that that fact should be stated, but did not say that that was the reason no prosecution was being taken. I did not think it necessary, either, to deal with the question of what prospects a prosecution would have. That is certainly not the usual practice, and I thought it not right to do so.
Turning to the suggestions about the police, so far as I know the first paper to publish the allegations to which I first referred was the Daily Record, and the editor declines to name his source. There appears to have been a leak, but I have no evidence to suggest that a criminal offence was committed by anyone in that connection and in particular by any member of the police. I am confident that if any evidence comes to light that a criminal offence was committed, it will be reported by the police to the Crown Office.

§ Lord ROSS of MARNOCK
My Lords, this action which was taken by the Crown Office was very exceptional. The noble and learned Lord mentioned only a leak being possible from police sources. Is he satisfied that there was no leak from the Crown Office?

§ Lord MACKAY of CLASHFERN
My Lords, I have said that the only person who referred to a leak from the police was the noble and learned Lord, Lord McCluskey. On the information which I have I am not in a position to say from where the leak took place. All I can do is to repeat that if evidence comes to light to indicate where it took place, I would expect the matter to be reported.

§ Lord GALPERN
My Lords, may I ask the noble and learned Lord the Lord Advocate, in view of some considerable 1758 misunderstanding of the duties of the Lord Advocate in Scotland, whether he would confirm that it is in the ultimate power of the Lord Advocate to decide whether to institute criminal proceedings in any case, and whether the occupants of that high office have always discharged their duties in the best interests of the public?

§ Lord MACKAY of CLASHFERN
My Lords, certainly I confirm the first part of the noble Lord's question, and I certainly confirm the second part up to the present incumbent of that office. I am sure that your Lordships will accept from me that in this extremely difficult case—unprecedented so far as I know—I certainly did my level best to be fair to all the parties involved. Mr. Skeen, as the noble and learned Lord, Lord McCluskey, said, was a distinguished public servant with a long record of devoted service—I think 28 years—to the fiscal service. He had to do a lot of very difficult things and he worked hard. On the other hand, there were three women who were helping the Crown as witnesses in a very difficult case. I did my level best to hold the balance of fairness between them and all I can say is that I hope I have succeeded.

§ Lord WILSON of LANGSIDE
My Lords, I wonder whether the noble and learned Lord could clarify two further points. In the first place, assuming that Mr. Skeen feels that his character has been wrongfully defamed, what remedies at law has he against the Crown Office, against the Crown Agent, or indeed against the noble and learned Lord himself? In the second place, can the noble and learned Lord tell us whether anything was known within the Crown Office bearing upon the character of the three women concerned that might have made one think twice about accepting the truth of the allegations which they were making?

§ Lord MACKAY of CLASHFERN
My Lords, so far as the first point is concerned, I do not know that it would be appropriate for me to give advice as to what remedies Mr. Skeen might have in the event of his being defamed. I would think that he would have the ordinary remedies which any person being defamed has against the parties 1759 that the noble and learned Lord, Lord Wilson of Langside, mentioned.
So far as the women are concerned, in the statement I have said that they had personal reasons for not wishing the publicity that would be involved in a criminal trial. I do not think it would be appropriate for me to go into the details of that. I consider that women who came to the procurator fiscal's office in discharge of their duty, and indeed under compulsory powers, ought not to be subject to the disclosure of their personal circumstances except in the most exceptional circumstances and in the course of some form of proceedings; so I certainly would not intend to say more upon that.

§ Lord WIGODER
My Lords, can the noble and learned Lord say whether inquiries are being actively pursued into the source of the leak, which has clearly caused grave embarrassment to a large number of people?

§ Lord MACKAY of CLASHFERN
My Lords, the noble Lord will appreciate the difficulty of an investigation of this sort, and obviously it would not assist the investigation to say what is being done. I can only repeat that this is a matter which obviously has caused not only considerable embarrassment but also concern to the police, to myself and to the Crown Office. Therefore, naturally, if any clue comes along as to the source from which this emanated, we shall be most anxious to follow it up.

§ Lord McCLUSKEY
My Lords, on that last point, if I may ask one final question, the situation in which the noble and learned Lord the Lord Advocate found himself was created by the publication in the press of information which the press should not have had. In my estimation the circumstances point absolutely plainly to a deliberate leak by police officers in Glasgow. Is the chief constable of Strathclyde investigating that matter and, if not, why not?—because it appears to me to be a plain breach of duty by the police; a violation of duty under the section of the Act to which I have referred.

§ Lord MACKAY of CLASHFERN
My Lords, I am sorry that on the basis 1760 of the evidence which I have at the moment I cannot accept that that is so, but I know that the chief constable is very anxious about the matter, and of course he has the primary responsibility for the detection of crime. As I have said, this is a very difficult area and I have every confidence that he will do what is right in the circumstances.

§ Lord PARGITER
My Lords, in cases of this kind, where persons make complaints which are widely publicised and which are apparently not withdrawn, but they are unwilling to give evidence and the Crown is considering a prosecution, does the prosecution in Scotland not proceed with the case?

§ Lord MACKAY of CLASHFERN
My Lords, the question of whether or not a prosecution should proceed in Scotland is a matter ultimately for the Lord Advocate to decide, if it be a public prosecution. In the light of all the circumstances in this case, I decided that there should be no prosecution, and I intimated that in the statement.