§ 5.26 p.m.
§ Lord DRUMALBYN rose to call attention to the case of Mr. David Colville Anderson, Q.C.; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. Its purpose is to call attention to the case of Mr. David Colville Anderson, Q.C., with a view to persuading Her Majesty's Government to re-examine the case and, if they are not satisfied by that alone that he should be exonerated and reinstated, to arrange an independent inquiry into the case. I understand that Mr. Anderson will be presenting a petition to the Prime Minister calling for the effect of his conviction to be set a side by appropriate administrative action, and for his reinstatement. I should add that there is an amendment to the petition calling for a public inquiry first. I believe the ratio between the signatories for the one and the other is about two to one. I hope the noble Lord in his reply will agree on behalf of the Secretary of State to receive this petition and the supporting signatures in Edinburgh on behalf of the Prime Minister and give it full consideration.
§ The case of Mr. David Anderson, to which I am venturing to draw your Lordships' attention, is that of a Scottish Queen's Counsel who served for twenty-six years in the RNVR, including the whole period of the 1939–45 War. He was mentioned in despatches and he was also decorated by King Haakon with the Norwegian Freedom Medal. He served from 1960 to 1964 as Solicitor-General for Scotland, for most of the time without a seat in Parliament; but in December 1963 he was elected MP for Dumfries in a by-election which was caused by my coming to this House. He 522 did not stand in the 1964 Election. Between 1964 and 1972 he conducted some 27 public inquiries, and also conducted many trials as an honorary Sheriff. In October 1971 he was appointed by Lord Clyde as one of the two part-time chairmen on the establishment of the Industrial Appeal Tribunals in Scotland. In October 1972 he was appointed by the Secretary of State for Scotland to the new post of Chief Reporter, as head of the Scottish Public Inquiry system with the rank of Under-Secretary in the Civil Service. He has been happily married for 27 years to a lady whose father was a distinguished Queen's Counsel and later a Judge of the Court of Session. They have a daughter and two sons, all of whom have done well.
§ In December 1972, within two months of his appointment as Chief Reporter, Mr. Anderson was conducting a Public Inquiry in Ayrshire, the first major one in his new post. He was staying at the Tower Hotel in Troon. On 22nd December, he was charged with having conducted himself in a disorderly manner on 18th December and alarming two girls, both aged 14, while with his motor car, and that he did commit a breach of the peace. At this stage there was no mention of the details of the offence. Mr. Anderson was not made aware of these until he received a written complaint—that is, a summons—in which he was further charged with approaching the girls during the hours of darkness and suggesting that they accompany him in his motor car to a quiet place to engage in judo exercises with him, and with offering them £1 each for walking on him, jumping on him and kicking him.
§ This hardly tempting offer from an elderly gentleman on a winter night the girls, needless to say, did not accept and the man drove off. The charge did not specify a time, but it was established at the trial that the offence took place within a few minutes of 8.30 p.m., and this was December. Mr. Anderson was tried in the Sheriff Court at Ayr on 21st and 22nd May 1973, under the Summary Jurisdiction (Scotland) Act 1954. He plead not guilty, and gave evidence that he had not left the hotel except for a two-minute stroll at about 11 p.m. to get some air before going to bed, and had not used his car that night. The incident had taken 523 place over seven miles away on the outskirts of the town of Prestwick. The hotel proprietor at Troon and his wife supported his evidence. However, Mr. Anderson was convicted and fined £50. In consequence, he was dismissed from his post and from the Civil Service, and has been unemployed ever since.
§ In Scotland an accused has no right to demand a jury trial. Jury trials are directed by the Crown Office to be held only in cases likely to involve long imprisonment. There is a right of appeal to the High Court of Justiciary, which Mr. Anderson exercised, but the Appeal Court is limited to consideration of a stated case, which is prepared by the sheriff who has himself tried the case. The defence then has the right to propose adjustments to the stated case but the sheriff is not obliged to accept them. In this case, the defence senior counsel, who was at that time himself a sheriff principal and vice-Dean of the Faculty of Advocates and had been present throughout the trial, signed ten pages of adjustments which in his view reflected the evidence.
§ The sheriff, however, rejected the lot except for one minor sentence which dealt with a procedural step. He also refused to grant counsel a hearing upon these adjustments. Such a hearing, again, is not obligatory but it is normal practice where the considerations are serious and the consequences grave. The Appeal Court decided that on the facts as stated by the sheriff—and I would emphasise "as stated by the sheriff"—he had been entitled to convict. The noble and learned Lord, Lord Wheatley, who presided, said that the question of reliability of the evidence and identification was one for the Sheriff and not for the Appeal Court.
§ Under summary procedure in Scotland, no official record of the proceedings is taken, but in Mr. Anderson's case the senior shorthand writer used by the Crown to record evidence in jury trials took a complete unofficial record of the evidence. This was on the instructions of Mr. Anderson's solicitors and with the consent of the Court. The 178-page record so made could not be looked at by the Appeal Court, but it would be available to any form of inquiry that might be subsequently ordered.524
§ Having lost his appeal, Mr. Anderson then petitioned to the equitable powers of the High Court, technically known as the Nobile Officium. I understand this is an extremely rare procedure. His petition was rejected as incompetent, on the ground that a form of appeal was provided by Statute and had been used. He then petitioned the Secretary of State for a Royal Pardon but this, too, was refused. His Member of Parliament, Mr. Alexander Fletcher and Mr. Malcolm Rifkind, the advocate, who is also an M.P., thereafter called for an inquiry in a debate on the adjournment which took place in another place on 11th April 1974, to which the Secretary of State for Scotland himself replied. I shall come to this in a minute or two.
§ Mr. Anderson's dismissal from his post and from the Civil Service resulted as a direct consequence of his conviction. I am drawing attention to his case not on that account but because there are many people in the Churches and in the law, both in Scotland and in England, in the Services and elsewhere, who are, to say the least, uneasy about the proceedings and about the conviction, and who feel strongly that the case needs to be raised again and that an inquiry into the whole circumstances is necessary. For example, the right reverend Prelate the Bishop of Manchester and the very reverend the Lord MacLeod of Fuinary have each written to say that they believe the conviction and subsequent dismissal require re-examination. There are also over 1,000 signatories in all. For my part, I cannot claim to know Mr. Anderson at all intimately, but those who do consider that the offence of which Mr. Anderson was convicted is quite out of character. Having read the transcript of proceedings and thought very long and deeply about the case, I share the belief of many who are much more qualified to judge than I that the evidence certainly does not warant a conviction and that the Secretary of State should appoint an inquiry to examine afresh the circumstances of the case and make recommendations.
§ We all make mistakes, my Lords, and I have no intention of blaming anyone; but if, as I believe, the Sheriff was mistaken in finding Mr. Anderson guilty and 525 was mistaken in his selection and interpretation of the evidence which he submitted to the Appeal Court, it seems clear that there was no way under existing procedure that his mistakes could be remedied. We are then faced with the situation that not only was there a miscarriage of justice in this case, but that there is nothing to stop a similar miscarriage in future unless and until the law governing summary jurisdiction procedure in criminal cases is amended. I hope that the noble Lord who is to reply will be able to tell us that a review of the law is in progress and that we can expect recommendations soon.
§ I have been told that the defence evidence in the stated case was disallowed at the instance of the Crown Office. If this is so, it means that the Crown intervened to prevent the Appeal Court having before it evidence for the defence, including evidence not challenged by the prosecution. That would surely be a constitutional and legal outrage as well as an insult to the Appeal Court. If it were the normal practice in Scotland, that would only multiply the scandal. If this is the practice, I submit that it should end forthwith and never be allowed to occur again. In his reply to the debate in another place, the Secretary of State spoke of the need to maintain public confidence in the system of criminal justice in Scotland. Nothing could undermine such confidence more than failure to admit such mistakes when they occur and failure to take whatever steps are appropriate to mitigate their effects.
§ To show that mistakes have been made in this case, I am bound to go into some detail. I shall start with the points on which Mr. Anderson's case seems most vulnerable. He, too, made mistakes. I would imagine that this would not be the sort of action that a lawyer would take in the normal way, but I am not a lawyer. One of the grounds on which the Secretary of State refused the demands for an inquiry was that Mr. Anderson had written a letter to the Crown Agent which he subsequently withdrew. In it he stated that he had been out in his car and had spoken to two girls. The Secretary of State gave the impression that what Mr. Anderson said in his letter must have been true. Even Secretaries of State can make mistakes, but I am bound 526 to say that when the Secretary of State publicly revealed in the debate for the first time the existence of this letter, I, too, was shaken. But now I understand Mr. Anderson's reasons for writing it. I hope that on reconsideration Mr. Ross will also understand them.
§ One might ask: who, except under duress, ever admitted an offence of which he believed himself not guilty? Why, my Lords, hundreds and perhaps thousands every year do this in minor motoring offences. In such cases clients are often advised that the chances of acquittal are not better than even and that to save time, trouble, expense and publicity it is sensible to plead guilty. I doubt whether Mr. Anderson would have taken this course had he consulted an independent lawyer first, but even advocates do odd things when they fall foul of the police and their whole career is at risk.
§ Bear in mind, my Lords, that when Mr. Anderson wrote the letter he was not aware that he was to be accused of inviting the two girls to engage in judo with him and of tempting them with £1 each. For him, to avoid publicity was all-important not only if he was to retain his appointment but also because he was in the middle of an important public inquiry which the Glasgow Herald had recently estimated to have already cost £250,000. He thought that, if his case was taken along with the minor offences, it would probably pass unnoticed. After all, asking two girls the way to Troon in the dark might technically be a breach of the peace, but it was scarcely an heinous offence, warranting dismissal from the Civil Service.
§ But why, I may be asked, should he think it likely that he would be convicted if he pled "not guilty"? This is a difficult point, but Mr. Anderson was well aware that rumours had been in circulation, particularly in legal circles, about the circumstances in which he had resigned as Solicitor-General—rumours of which the sheriff was bound to have heard and which were likely, in Mr. Anderson's opinion, to influence him subconsciously. Mr. Anderson has always maintained that these rumours were unfounded, except in the case of one trivial incident in 1958 which he admits was an error of judgment on his part, but no more, and was certainly in no way in breach of the law.527
§ There was yet another reason why he wanted to avoid publicity, to which he attaches the greatest importance in the light of his experiences in Norway during the war. He considered that there was a security aspect to the matter, and I will return to this later. But, meantime, what I want to make clear is that it was because of his preoccupation with the security implications that he went to see the Crown Agent. Whether or not he gave the Crown Agent that impression, I do not know. The Crown appeared to have accepted that the letter did not represent Mr. Anderson's recollection, for at the trial not only did they make no reference to it, but they held out publicly as Mr. Anderson's recollection the letter which he had submitted to the police when charged. The letter corresponded not only to Mr. Anderson's evidence in court, but also to his verbal replies to the police when first interrogated.
§ There was another reason why Mr. Anderson had doubts about his chances of a successful defence. He had been told categorically by the police, when they first interviewed him, that it was his car that had been identified. This is admitted by the police in evidence as recorded in the verbatim report. Moreover, the recorded evidence of the two girls shows clearly that the car they saw on the night of the incident was quite different from the car which they subsequently said was very like the car at the incident, though one said that she could not be sure. That brings me to the central question of identification, both of car and of man. I shall deal first with the car.
§ Within minutes of the incident one of the girls, who said she was interested in cars, wrote down on a piece of paper, which was kept and produced in court, the make, the colour and the registration particulars of the car as completely as she could remember them. The particulars were—a Chrysler, bright blue, with letters BSC and L as the year, and numbers which she wrote down as containing a 4 and a 5 and another different number which she had forgotten—a different number, my Lords. She said that she thought it was a Chrysler, as her mother was learning to drive one, a saloon, and she had thought this to be the very same car. Mr. Anderson's car was not a Chrysler but a Triumph; not 528 a saloon but an estate car; not bright blue but dark bluish-green, which I believe the makers describe as Mallard. By contrast, the same girl described Mr. Anderson's car as green when she saw it at the hotel.
§ Mr. Anderson's car had the registration letters described by the girl, but no 4 in its number. Its number was 555. When cross-examined, the girl was positive that the numbers were different from each other, and she worried about the right order. Mr. Anderson's 555 in a row do not have a right or wrong order. The second girl said that she took no interest in cars and had the impression only of the registration letters which she thought were BCS, which denote Ayrshire, not BSC which is an Edinburgh registration.
§ Two days later, when the girls were taken by police to look at cars outside hotels in Troon, they said that Mr. Anderson's car was "very like" the one at the incident. Under cross-examination it emerged that one of them meant "very like in size", and she said it would have been "more like" the car at the incident if it had been a saloon instead of an estate car. The other said that she recognised it because it was dark and dirty and looked very like the car which she had seen at the incident.
§ The sheriff, however, rejected the girl's evidence about the car number, on the ground that he thought she had, "no clear view of the number", and said so in his Stated Case to the Appeal Court. Yet the verbatim notes record that she said she had had a "quite distinct" view of the number plate from very close range for several minutes, in lighting which the sheriff himself described in his Stated Case as "very good". There was not a shred of contrary evidence. Nor is that all. Having thus rejected the written evidence of one of the girls, the sheriff, in his note at the end of the Stated Case, said that he accepted the evidence of both girls "in its entirety". Yet he did not accept either their evidence that they were not alarmed or the description of the car which they gave immediately after the incident. So much for the so-called identification of the car. I now turn to the identification of the man.
§ The Secretary of State, in the debate in the Commons, attached great importance to the identification of Mr. Anderson by the two girls. This took place 529 from within a police car at a range of 30 to 40 yards. The car was drawn up at that distance from the police station, at which it had been arranged for Mr. Anderson to call in his car at an agreed time to hand in a photograph of himself for the purposes of identification. The two girls sat together in the back of the police car, with two policemen in front. This broke two of the rules which are approved by the Chief Constables (Scotland) Association as necessary in the interests of reliability. In the adjournment debate in the other place, the Secretary of State claimed that the rule referred to did not apply as it appeared under the heading "Guidance in Relation to Identification Parades" and that the arrangement was not an identification parade.
Let me quote the words of the rule. Under a section headed "Detection of Crime", it reads:
Where it is necessary that witnesses should have an opportunity of seeing a suspect who is not in custody and whose whereabouts arc known, only one witness at a time should be present at the place where the suspect is expected to appear, so that one witness should not influence the other.
The rule does not say "at the place where the identification parade is held". Cross-examined, the police witness agreed that the purpose of the rule was to avoid one witness assisting or affecting or consulting the other—to use his words—"in any shape or form". Clearly, it is even more important to avoid this if there is no formal identification parade, and if the witnesses are children. The fact remains that even if, technically, no rule was broken, the method of identification adopted was irregular and inappropriate, and the irregularity was not justified by any emergency.
§ Another rule was also disregarded. I understand that it is proper practice that witnesses should be given no lead when trying to identify. Yet the girls agreed in evidence that they were expecting the arrival of the car which they had seen at Mr. Anderson's hotel, and that they expected its occupier to be the person whom they had been brought specially out of school to identify. And identify him they did—a walking stanger at a distance of 40 yards. When one of the girls was asked in court how she had identified him, she replied that it was by his nose. Yet she agreed that she had 530 not really noticed the nose of the man who had accosted her; nor had the police noted it in the description which she had given soon after the offence.
§ Some reliance might reasonably have been placed on this so-called identification if Mr. Anderson had resembled the description given to the police by the girls on the night of the incident, but the description did not fit him at all. In court, one of the policemen read out from his notebook the description of the man which each girl had given to him when interviewed within two hours of the offence. The man described differed from Mr. Anderson in at least five particulars. The man's hair was described as white or blond—Mr. Anderson's was then darkish brown. They described the man's complexion as pink—one girl said "muddy"—but Mr. Anderson's is pale. They described his eyes as large and open in shape—Mr. Anderson's are somewhat narrow. As to his height, one put it at 5 ft. 6 in., but Mr. Anderson is over 5 ft. 9 in. His eyebrows were described as thick and grey—Mr. Anderson's were scanty and light brown. They also described him as well-built, whatever that may mean. At the time, Mr. Anderson might have been more accurately described as slight.
§ To crown all, when the first girl to give evidence in court was asked in the course of her evidence—not at the start of it—to identify the man who had accosted her, she pointed to the shorthand writer. There is no suggestion whatsover that he was involved, and when asked whether she was sure she said that she thought so, but it was a while ago. The significant point is, not only that he bore no resemblance at all to Mr. Anderson, but that out of about 16 men in front of the girl he most closely resembled the description she had given to the police. He had white hair, a ruddy complexion, thick grey eyebrows and thick-set build.
§ I am told that in most trials that would have been the end of the case. The procurator fiscal asked the girl to look around the court and she eventually pointed to the dock, where Mr. Anderson sat in isolation. Before leaving the matter of identification, I should refer to the evidence of Mr. Anderson's wife. The two girls agreed in evidence that the man was wearing a heavy grey/black tweed overcoat with a pattern and a tweed cap. Yet 531 Mr. Anderson's wife testified that she had helped Mr. Anderson to pack, and to put his things in the car, and had seen him off that day, and that the only coat and headgear he had with him were an unattended plain fawn raincoat and a brown felt hat. Her evidence was not challenged by the Crown. This was one of the many facts in the 10 pages of Adjustments which the sheriff refused to state to the High Court.
§ My Lords, the gravamen of the charge seems to me to lie in the word "alarm". There is no evidence that at the time of the incident the girls were alarmed. The girls said in evidence that the man came up behind them and said, "Excuse me." He was polite, well-spoken and sober. He asked the way to Troon. He said he came from Edinburgh and was staying in Troon. When asked by defence counsel whether she was upset in any way by the incident, one of the girls replied, "No, not really. I didn't really think about it till I came home and started to tell my mum." She also said that she did not think her friend was upset, either. She added that when they were walking away she and her friend were laughing about it. And the young assistant at the garage where they stopped on the way home, when asked by the procurator fiscal whether they seemed definitely put out and excited, said they were "not unduly excited." The girl told her mother that she thought the person was a bit of a crank.
§ That, my Lords, may have been a shrewd observation. Nobody would make a proposition such as the girls say was made unless either he was suffering from some mental illness or else he was sure the proposition would not be accepted. If the man's purpose was to damage the character and credibility of someone else, he would want the proposition to be so extraordinary that it would catch the headlines but at the same time so unattractive that there was no chance of its being accepted. If, on the other hand, the man was mentally ill, I submit that he ought to have been medically treated, and not convicted and punished. But the evidence is that Mr. Anderson was normal. I suggest that logic and medical opinion, therefore, point to impersonation.532
§ So much for the credibility of the girls. No discredit to them; they were very young. But what about the probabilities and improbabilities? Is it likely that anyone, let alone an experienced advocate, would have told the girls where he came from and where he was staying? In the words of a former convener of the sheriffs principal, who has signed the petition and who was for 12 years the senior sheriff in Scotland, the conduct alleged against Mr. Anderson was "wildly improbable in a man of his character and intelligence".
§ All the circumstances would seem to make Mr. Anderson a most unlikely person to have gone out that night. He had spent the previous night in the train coming back from London with his wife. He had had a 20 minutes' break at home for breakfast and had then had to drive 80 miles across Scotland in mid-winter to an inquiry which began soon after 10. He spent a full day conducting it and then had to catch up with his work after three days in London. One important production in the case was his letter, dated that day, which was delivered with his completed work to his Civil Service Department. There was no time other than that evening during which he could have done the work, which would have taken about three hours. The evidence of the civil servants on this was not challenged at all. But the police thought it likely that Mr. Anderson was the man.
§ Why? Basing themselves on the statement of the man involved that he came from Edinburgh, the Ayr police got in touch with the Edinburgh police. Now the Edinburgh police had information which related to incidents reported to them between nine and 16 years previously and which purported to involve Mr. Anderson. As I have said, he has always strongly denied involvement in any of these incidents, except the one to which I have already referred when a young woman who lived in the same street where he had his chambers spoke to him in a railway carriage on the way back from a function in the constituency he was then nursing, and before the journey was over he had agreed to take her to see a film. For some reason that has never been explained to him, she was accompanied by a policewoman when 533 he met her at the cinema. His admission in that case seems mistakenly to have been interpreted as an admission that he was also involved in the remaining incidents which apparently occurred between early 1958 and the end of 1963. He has been given the precise date and times for only two of those, both of which were in Edinburgh on 28th December 1963, at times exactly stated. For these two he is able to prove from independent witnesses that he was in Perthshire that day and could not have been in Edinburgh at the times of these alleged incidents. If it is said that admission of one incident makes him liable to be thought to have committed all the others and he can prove not to have been there for two of them, then the same applies in reverse. Clearly, however, it was on the basis of these incidents that the police concluded, as they no doubt put it, that he had, "done it again."
§ Here we come to the most curious aspect of the case, and there are some who feel it may be the most grave. I have already referred to Mr. Anderson's Norwegian decoration. The citation was signed by their Foreign Minister, Halvard Lange, as well as by the King in person. Now Mr. Anderson's services not only benefited Norway but also had a bearing on the strategic control of parts of the Arctic and North Atlantic, and thus were correspondingly distasteful to the Russians. Mr. Anderson has evidence to show that they did not forget. Several very high ranking NATO commanders have signed his petition. These include two Vice-Admirals who have each commanded our Polaris fleet and another Flag Officer who was Vice Naval Deputy to the Supreme Allied Commander in Europe, and also the Air Marshal who commanded the Berlin airlift, and a recent Supreme Commander in Northern Europe.
§ In 1969 he submitted to Security, through the late Lord Reid, a report of the approaches which had been made to him. In reply he was told that it had been decided to take no action, and Lord Reid added that he was right to have submitted the evidence. In 1972 he reported again through a friend who had recently resigned from the service. He was told that the Security Service would be making a report to the Crown Agent. Ten days later the then Lord Advocate 534 telephoned him to say that he was being considered for the new post of Chief Reporter. It is hardly credible that the Government would have appointed him if they had concluded that all his very detailed evidence about Norway and the subsequent harassment he had endured were just figments or delusions. If Mr. Anderson was being impersonated it could, of course, have been by Russian agents, but the point is that all this gave rise to a good deal of rumour.
§ Some of the early incidents are reported to have involved the use of a car number similar to Mr. Anderson's, although the man was again said to have borne no resemblance to him. He believes that the whole history, taken together, may well point to an attempt to discredit him, possibly so that his account of his experience in Norway would also be discredited if he reported it. The later incidents each occurred when he was prominently in the news. The two said to have taken place in Edinburgh when he was in Perthshire, were only two weeks after he had become a Member of Parliament at the widely reported Dumfries by-election. No further incidents were reported for nine years until this Ayr incident just after he had been made Chief Reporter and was again in the news.
§ No doubt to the police Mr. Anderson's brief reference to his involvement with a foreign Power must have seemed beyond belief, and merely reinforced their presumption that he was abnormal. Who would blame them? No doubt also his counsel was right not to raise the matter at the trial, for the effect on the Sheriff might well have been the same. However, the fact remains that in the petition which has been raised and which will be presented after the debate there is an impressive body of testimony as to Mr. Anderson's normality, integrity and stability of character: statements by his family doctor, reports by psychiatrists whom he was advised to consult in 1964, naval commanders under whom he served, schoolmasters who educated him as a boy, 12 of those who served with him on the bench of the Industrial Appeal Tribunal, and so on—shrewd people in touch with local feeling. Twenty-three of the witnesses and objectors from the inquiry he was holding in Ayrshire when he was charged and numerous friends and 535 neighbours who know him closely are among over 1,000 petitioners. I believe that the actual figure is 1,006, although I see from the Scotsman that it seems to have gone up to 1,010.
§ There were 130 lawyers who signed the petition, including 106 solicitors from 25 towns all over Scotland, and those who have read the verbatim notes are at a loss to understand how he could have been convicted. They regarded it as incomprehensible that the sheriff held back from the Appeal Court even the police evidence which favoured the defence, such as the description of the man by both girls which was read out in court from the policeman's notebook, so different from Mr. Anderson, or the police car test which showed that not less than 40 minutes' absence would have been needed from the hotel.
In the absence of the omitted evidence it is important to understand that all that the High Court could, or did, decide was that the sheriff was entitled to convict on his statement of the facts. It is true that the High Court did stress, both in Mr. Anderson's appeal and in his later petition to them, that the sheriff was an experienced one and that therefore all must be well. The Secretary of State in his turn adopted this reference to the sheriff's experience. Undoubtedly the sheriff was experienced. He had been sheriff substitute of Ayr and Bute for a great many years. But it does not follow that he was infallible. Since the Secretary of State has introduced this argument I am bound to tell your Lordships that there was another appeal from the same sheriff five months later by a Mr. Livingstone. I shall quote the words of the noble and learned Lord, Lord Wheatley, who presided over both appeals. Speaking of the same sheriff's conduct in the later appeal the noble and learned Lord said:
His questions savoured more of the role of cross-examiner than of presiding judge".
He then went on to say that the sheriff's conduct—and I use his words:
disclosed that he was adversely inclined towards the accused,
and also that he had failed to remind the jury about a defence of alibi. The appeal was allowed. I venture to suggest that it was unfortunate in the light of
the subsequent case that the High Court and the Secretary of State relied so strongly on this sheriff's experience to support a presumption that there had been no miscarriage of justice towards Mr. Anderson.
§ I ask your Lordships to note that the situation in the Livingstone appeal came to light only because it had been a jury trial and that the proceedings had been officially recorded by a shorthand writer. On this point I must draw the attention of the noble Lord, Lord Kirkhill, to fresh evidence which has come to light. There is the evidence of Dr. A. J. Bain, the Edinburgh psychiatrist whom Mr. Anderson was advised by the late Professor Sir D. K. Henderson to consult in 1964, about the time of his resignation as Solicitor-General. After six sessions, Dr. Bain could find nothing wrong with Mr. Anderson, but Mr. Anderson had pressed him to provide some health reason to justify his resignation. Dr. Bain was later concerned that what he had reported had been misinterpreted by the then Lord Advocate. He asked Sir David Henderson to see the Lord Advocate at the time but the meeting was refused. Seven years later, in May 1971, Dr. Bain felt obliged to place on record from his case notes what had happened. He died the next year. He asked that the contents of this memorandum should not be disclosed for three years. That period has now expired.
§ Second, after his death his widow sent Mr. Anderson the correspondence Dr. Bain had about him. The correspondence included a letter dated 6th April 1964 from the then Lord Advocate to Dr. Bain which makes it clear that although the Lord Advocate himself thought the evidence was overwhelming, he had not been able to extract any admission from Mr. Anderson. Mr. Anderson had, of course, volunteered information about the incident in 1958 to which I have already referred.
§ Given the limitations of Scottish summary procedure—no right to jury trial, no official record of the evidence, although a career may be at stake, and therefore no means of ensuring that the stated case is in accordance with the evidence; given also that abnormal and unreliable means were used by the police to obtain identification, given the strong 537 prejudice against Mr. Anderson arising from the belief that he had been involved in past incidents, all but one of which he has always strenuously denied, and that one a trivial matter over 17 years ago about which he denies any impropriety; given the palpable unreliability of the evidence of the two young girls, as shown by the written evidence, whose descriptions of the man himself, of the car and of the clothing each indicate some man other than Mr. Anderson; given also that the balance of probability was that Mr. Anderson did not go out that night—he was of good character, he had just been appointed to a new and important post, he was tired after a long journey, he had work to clear up, and his car was parked under a floodlight by the hotel's glass door in such a position that the hotel proprietor could scarcely have failed to notice if it had been away for more than a few minutes, let alone 40 minutes, which is the minimum time that would have been needed for Mr. Anderson to go to Prestwick, talk to the girls and return to the hotel. Given all these things—and that is without bringing in the security background with the implications it contains—surely much greater harm will be done to public confidence in Scottish justice if no inquiry is held than if an inquiry is allowed. Certainly over 1,000 people who signed the petition think so—an impressive cross-section of responsible opinion, both in Scotland and in England. This House may feel that no one would have gone to such very great lengths, through the courts, through the Houses of Parliament and bringing his case personally to the attention of so many people individually, if he had not had the strongest and firmest belief in his own innocence.
§ My Lords, I recognise that any Government is reluctant to allow an inquiry in one case lest it form a precedent for a flood of similar demands in other cases. I venture to think that, if there are strong reasons to believe that there has been a miscarriage of justice, that is a reluctance which ought to be overcome. If, as in this case, it also appears that the miscarriage of justice has occurred through a defect in the system—through the inability of the system itself to correct the mistake in the sort of circumstances which have arisen in this case—then there is all the more reason for having an inquiry.538
§ I am not asking your Lordships to pass judgment on Mr. Anderson now, one way or the other. I am calling the attention of your Lordships and the Government to this case because I believe that it should be a matter of public concern and that the most careful and conscientious consideration should be given by the Government to the petition signed by over 1,000 people which will shortly be presented. I hope very much that the noble Lord, Lord Kirkhill, will be able to say tonight that the Government have changed their mind. If not, I hope that the Government wall agree to accept the petition and will decide to grant it, or if they are not entirely satisfied that there has been a miscarriage of justice from that alone, will set up an independent inquiry to review the case in all its aspects. I must apologise for keeping your Lordships for so long. I hope you will think, as I do, that it was worth raising this matter. My Lords, I beg to move for Papers,
§ 6.7 p.m.
§ Lord RITCHIE-CALDER
My Lords, I am grateful to the noble Lord, Lord Drumalbyn, for spending so much time on this complicated case and for setting out as clearly as he has done the facts which are available. I do not know Mr. Anderson personally; I am not involved with Mr. Anderson in any shape or form and I did not sign the petition, although if I had done so I should have been in impressive company (as the noble Lord, Lord Drumalbyn, has pointed out) of over 1,000 petitioners, all of whom asked for a public inquiry, including many distinguished Members of your Lordships' House, eminent lawyers, clergymen, professional people of all kinds—including many friends of mine in this House and outside: people, above all, of integrity, knowledge and, I would suggest, compassion.
I know of the particulars of the case only from the documents sent to me, unsolicited, by Mr. Anderson. I have studied them with great care and although it was stated in another place that his use of material was highly selective, I must say that in the material he sent to me I was favourably impressed by the fact that he made available both the cons and the pros. I was also enormously impressed by the constancy of his family and 539 his friends, which I take as a reason to react.
I was also filled, as was everyone else—with the thousand people who signed—with an unease which has caused me to intervene in this debate, although, as I have said, I do not know Mr. Anderson.
There is one thing I want to say here and now—the noble Lord, Lord Drumalbyn, touched upon it; namely, the security aspect. I must say this because it is one of the things which discouraged me about the approach. With the revival at the present time of the "Reds under the beds" syndrome the arguments which I found the least plausible were those of a political conspiracy, an enemy conspiracy, which deliberately framed him both in the Edinburgh incident referred to, which led to his resignation as Solicitor-General, and in the incident we have been mainly discussing, of the two girls at Prestwick.
My right honourable friend the Secretary of State for Scotland, in the debate in the other place, said that the account of the security or, if you like, Soviet involvement, was of quite extraordinary complexity. I agree. As a wartime director of plans and operations of political warfare, I am always surprised at the ubiquity and omniscience which we attribute to the KGB or, for that matter, to the CIA. The preoccupation of Mr. Anderson with the security aspect reminds me of the once-only reference by Lord Haw Haw on the Nazi Radio to the British town clock which stopped at five past twelve. It was what we called in those days a self-propagating "SIB". People in dozens of villages and towns all over Britain whose clocks had stopped—not necessarily the town clock; it could have been the clock in the high street—insisted that Lord Haw Haw referred to them, and that there must be a spy in their midst. They were really furious when the counter-espionage discredited the reports—furious because it implied that their town did not deserve a spy. I am not suggesting that the KGB are incapable, or would be incapable, of dirty tricks. On the contrary; I know of plenty. But I find it difficult to accept the long, long memory, and the long and tenuous reach of Moscow alleged in this case. As was pointed out, Mr. Anderson had an official mission in Norway at the end of 540 the war to forestall the Russians, which he executed effectively. But if everyone who frustrated Soviet intentions at that time, a quarter of a century or more later is to be given the black or the red spot, then Black Rod had better start worrying about the security of most of your Lordships' House.
Without any disrespect to the offices concerned—that of Solicitor-General or chief reporter of the Scottish public inquiry—I very much doubt indeed whether Soviet espionage would regard these offices, or the men in them, or even the background of Mr. Anderson, as a target for their sinister intentions. I am quite prepared to accept that Mr. Anderson believed that he was such a target, but I do not accept the ramifications, the ingenuity or, in this case, the extravagant misuse of resources by the KGB. I think Mr. Anderson probably did believe that, very much in the same terms that people took as an insult the fact that Lord Haw Haw had referred to their town yet they were not credited with having a spy. Those reservations do not at all prevent me from supporting the plea in this case for a public inquiry.
My reasons are completely uncomplicated. I am not involved personally with Mr. Anderson, but I do share with a great many people—including the eminent judges, Sheriff principals and lawyers who signed the petition—a serious misgiving about the Ayr trial, about the method, above all, of identification, and, incidentally, of the dismissal of the alibi put up, substantially, I thought, from the evidence by the hotel proprietors. As an old police court reporter, familiar with the sheiff court and other criminal courts from my early days, I have been always seriously concerned about the method of identification. It is so easy wrongly to identify, not by mischief but because of bad memory, of bad light, or bad almost anything. Therefore, in the case of this breach of the peace, where Mr. Anderson was fined £50 and was ruined as a public servant, which took place at Prestwick 8 miles away from Troon, the proprietors of the hotel in Troon were prepared to justify, as the noble Lord, Lord Drumalbyn, pointed out, that he had been in a hotel at the time, that he had been heavily closeted with his work, and that his car was conspicuously there all the time. When Mr. Anderson was under 541 suspicion, the police arranged with him to hand in a photograph at a prescribed time at the police station. The two girls involved in the case—I am repeating what the noble Lord, Lord Drumalbyn, said, because, I think it is important—were together in the back of the police car posted 40 yards from the police station when Mr. Anderson arrived by arrangement. The girls together—not separately —identified him as the man who had accosted them, although their description on the evening of the offence, as has been pointed out to the police, did not coincide with Mr. Anderson's actual appearance, or his hair, or his build, his complexion, or his height, or his eyes. The hazard of wrong identification is one with which all concerned with human rights are all to familiar. The police also are concerned, in conscientiously carrying out their duties. In Scotland, the Chief Constables have laid down rigorous procedures for this. In this case, the procedures condoned by the sheriff fell far short of the minimal safeguards which any one of us in respect of human rights would feel entitled to expect.
Mr. Anderson, with the loyal support of his family and others, has been fighting his conviction since 1973. I hope the Government will reassure the 1,000 concerned people: and if I may say so I hope the Government, with some sense of compassion, and above all respect for human rights, might accept the call for a public inquiry for a man whose career has been blighted. I stress and reinforce what has been said by the noble Lord, Lord Drumalbyn. Because of the unease which has been created in so many minds by this case, we should call for a revision of trial procedures.
§ 6.18 p.m.
§ The Earl of KINNOULL
My Lords, I rise to support my noble friend Lord Drumalbyn in his Motion drawing attention to the unhappy case of Mr. Anderson. I should also like to declare that I do not personally know Mr. Anderson. Like the noble Lord, Lord Ritchie-Calder, I received a brief from Mr. Anderson unsolicited. Like many other Members of this House, and many Members in another place, I added my name to a petition some months ago calling for an inquiry, both in this case and over the general issue of the fairness of the exist 542 ing appeal procedure as shown up by this case. I therefore very much welcome what has been said by my noble friend and, indeed, the way he has said it. My noble friend has been for many years an eminent politician, both in Scotland and in Westminster. I do not think there is any Member of this House who has more experience in public life and in the judgment of political issues, who could have put his delicate case more convincingly. I hope very much that what he has said will be weighed very carefully by Her Majesty's Government, because the speech of my noble friend Lord Drumalbyn has expressed the very deep concern felt by a wide selection of people in Scotland.
As a layman, I recognise that the case of Mr. Anderson has been through all the legal procedures possible, and that any action by the Government must be for an exceptional reason sufficient to overcome the charge of interfering with the due processes of law. I believe in this case there is a good reason. It is simply that Mr. Anderson's case illustrates a glaring weakness in the appeal procedure. It is because of this that Mr. Anderson did not receive a fair hearing at the appeal stage, not necessarily through the fault of any individual, but because of the system.
On reading the case of Mr. Anderson a number of points of detail strike one forcefully, and most of these have been dealt with very carefully by my noble friend. To me, the most important is that here was a man who is a past holder of a high office of State; was then the Chief Reporter of Public Inquiries; served, as we know, in the Navy with distinction, and is a family man with three children. Here was an eminent man accused, convicted, and ruined by what one can only describe as a trivial charge. His reputation and his life were virtually shattered.
I would suggest to the House that many lesser men would have walked away from this situation, from further adverse publicity, after striving to clear their name through the courts. But not so Mr. Anderson. He has shown the same courage and tenacity that he showed in his distinguished war record. Rather than let time heal the wounds, he left no stone unturned both to prove his innocence and to expose the present weakness of the 543 appeal system. Each time he has, of course, exposed himself to further painful publicity, both to himself and to his family. As we know, he sought a Royal Pardon from the Secretary of State. Then his case was debated in another place last July, and now we have this debate today. Then, of course, as my noble friend said, he will shortly be submitting a petition to the Prime Minister.
His brave efforts, I suggest, have not gone unrewarded. He has received enormous, widespread support from many eminent Scottish people in all spheres of life; I think that the most convincing thing to me is that the support has come from all spheres of life. I believe that that petition is a sufficient reason for the Government to consider very carefully and sympathetically setting up an inquiry. Why has Mr. Anderson received so much support? In my view, it is because the evidence against him in that case, the disputed identification, indeed the procedure of identification as my noble friend described it, and the subsequent limitation of evidence on appeal showed up this glaring weakness, which in his case was an apparent unfairness at his trial and indeed a major defect in the present system.
In another place the Government's reply to the debate, which of course took place before the petition was raised, was based on two arguments. The first was that the present law on the question of appeal had stood the test of time for many years; and, secondly, that the Thomson Committee were already reviewing this sort of appeal procedure. Perhaps the noble Lord, Lord Kirkhill, when he comes to reply, can say how soon the Thomson Committee are likely to report and whether their terms of reference really cover the type of case of Mr. Anderson?
In supporting my noble friend's Motion, I should like to add my plea to the Government that the petition on behalf of Mr. Anderson demonstrates deep and serious disquiet over his conviction, and indeed the effect on possible future cases. That petition is supported by a wide section of people. I hope that, like all good democratic Governments, the present Administration will recognise that this is a demonstration which is sufficient as a reason for setting up an inquiry. No other course, I submit, will 544 bury the feeling that there was a miscarriage of justice in this unhappy case.
§ 6.25 p.m.
§ Viscount CALDECOTE
My Lords, I think I should make clear at the outset that I have signed this petition for David Anderson. It is a sorry story of a man in public life whose character and reputation have been destroyed. The issue that has to be determined is whether the prima facie case that this was a result of a miscarriage of justice is so strong as to require a full inquiry. I sincerely believe it is and that an inquiry is essential, the outcome of which will be either to justify the action that was taken or to exonerate David Anderson and restore his character.
My Lords, I first knew David Anderson when we served together in the RNVR. He was a normal, energetic, conscientious, patriotic officer, devoted to the Royal Navy and to his native Scotland. I cannot believe that that man changed into a twisted, unhealthy, dishonourable crank such as is implied by the alleged evidence on which he was convicted, and accused without conviction. There is no point in repeating the long and detailed history the noble Lord, Lord Drumalbyn, has so carefully and accurately put before your Lordships, but I should like to emphasise two points.
First of all, in 1964 I understand Mr. David Anderson was accused privately on the basis of a police file that had been maintained without his knowledge from 1957–58, about that time. No prosecution had been made, and he did not, I understand, know anything about this file. At that time he was then coerced—perhaps "blackmailed" would not be too strong a word, but certainly coerced—into resigning as Solicitor-General for Scotland. It appears to have been very odd behaviour for the officials concerned. I do not doubt that all of them at all times acted in the course of what they believed to be their duty as they saw it. But I do not think we can get away from the fact that that kind of action, that kind of coercion, was more akin to the Star Chamber than to British justice. Those events before 1964 which we are told were on the police files, as the noble Lord, Lord Drumalbyn, has indicated, almost certainly affected the attitude of the police to Mr. David Anderson in 545 1972. It affected him in relation to the incident which took place at Prestwick, or was alleged to have taken place, and it no doubt contributed to his conviction.
Because of Scottish law, as the noble Lord indicated, no adequate appeal was possible. In those circumstances, those two circumstances taken together, surely we must come to the conclusion that there is a prima facie case of miscarriage of justice which has ruined David Anderson's life. There is, in my view, a clear and exceptional case for a full inquiry. If the Government refuse an inquiry—and I deeply and sincerely hope they will not—they will have to state their reasons. I hope they will not say that the expense and effort is not justified, for no expense is too great to rectify injustice of this magnitude. I hope they will not say we cannot have an inquiry because action at the time by certain people has to be covered up and kept confidential. No doubt, as I say, they all acted honourably in the circumstances of the time and in their own understanding of their duty. Perhaps at the time certain actions may have been in the national interest. There is no need now to keep those actions confidential. It is totally irrelevant.
I hope the Government will not use the argument of security, as I have heard it used in other sad cases. That is irrelevant now, too. I hope they will not use the argument that we must not create a precedent. Surely British justice is far too precious a jewel to use that argument. I believe that British justice has apparently been distorted. It stands accused of recklessly and irresponsibly destroying the character and life of a conscientious, patriotic public servant.
If a full inquiry is refused—and, as I say, I hope it will not be—not only will a person's character have been ruined without proper justification, but the fair name and the world-wide reputation of British justice will be forever tarnished. Can there be a better reason for a full inquiry? So with all the sincerity at my command, I implore the Government to accept the suggestion, request, petition for a full inquiry, so that we may know the truth of this matter, and the action taken may either be justified or Mr. David Anderson's character restored.
§ 6.31 p.m.
§ Lord MACKIE of BENSHIE
My Lords, I rise to support the noble Lord, Lord Drumalbyn, in his very full exposure of what may be a grave injustice. The points of the case have been sufficiently gone into, and I think have proven quite definitely the need for an inquiry. The system of appeal to a summary trial by a sheriff is certainly regarded with great unease by a great many of my friends who are lawyers, and is under investigation at the present time. I have signed a petition calling for an inquiry. The whole matter was brought to my attention by a friend of mine who sent the papers to me, and when I read them it appeared to me that there was no doubt.
I do not want to reiterate arguments which have been so ably put by people who have studied the case and done a great deal of work on it. What I want to do is to assure the noble Lord, Lord Kirkhill, and the Scottish Office, that the unease is real and great in all political circles and in many circles in Scotland, and that they cannot maintain what I am afraid has come to be regarded as a slight characteristic of the Scottish Office, an obstinacy about this matter. If they look at the list of people they will see that it covers a wide field of public ability and interest throughout Scotland.
The matter has now come to a point where an inquiry must be held in order either to clear the name of the Scottish Office or, as I hope, to clear the name of David Anderson. Like the noble Viscount, I would also implore the Scottish Office not to thrust this aside as they have done in the past, but to at least inquire into it.
§ 6.33 p.m.
§ Lord HOY
My Lords, I apologise to your Lordships for rising at this time, but I have listened through the whole of the debate. I knew Mr. David Anderson, and still know him, and I shall not make any assessment of him one way or the other. In the course of this debate, certain things have been said of which I disapprove. Indeed, I heard the noble Earl, Lord Kinnoull, say that this was a condemnation of the appeal system in Scotland. I did not want to interrupt the noble Earl, but in what way did he think that the appeal system in Scotland was 547 failing? If he wants to get up and tell me now, I am willing to give way.
§ The Earl of KINNOULL
My Lords, I was obviously too loose in my description. I was referring to the specific case, as in the case of Mr. Anderson, where the sheriff was sitting by himself with no jury. No oral evidence in the case was taken down, and the appeal, as I understand it, was based purely on law and not on the facts.
§ Lord HOY
My Lords, I am willing to accept the noble Earl's explanation, but I am certain that he will be grateful to me for having allowed him to put it right, because I think that on the whole the Scottish legal system operates very well indeed. I did not like Lord Drumalbyn's reference to the police in Scotland, as though they were building up a case without evidence. The noble Lord has considerable experience. The noble Viscount, Lord Caldecote, spoke about coercion. That was the word he used.
§ Lord HOY
No, my Lords, but by the Scottish Office. This was a reference to the Secretary of State for Scotland at that time, who is this day a very distinguished Member of your Lordships' House. Indeed, if I recollect correctly—and I will be corrected if I am wrong—at that time he was ably served by the noble Lord, Lord Drumalbyn. I do not know, and I must ask, because I am referring to the noble Viscount, Lord Muirshiel. I cannot remember who was at the Scottish Office at that time. I thought that the noble Lord, Lord Drumalbyn, was there at that time as a Member of another place.
§ Lord DRUMALBYN
My Lords, may I intervene? I am not quite clear what date the noble Lord is talking about. I left the Scottish Office in 1960.
§ Lord HAILSHAM of SAINT MARYLEBONE
No, my Lords. I think the position was that what my noble friend said—and personally I do not wish to endorse it in any way—was that the 548 date in question was 1964. That is what I understood. I have been listening very quietly but intently to this debate.
§ Lord HOY
My Lords, I am grateful to the noble and learned Lord. I, too, have been listening very carefully to it. No matter who was at the Scottish Office at that time it would not deter me from saying what I am about to say now. Whether it was one Party or the other, so far as Scottish law is concerned, we have been fair and gone out of our way to be fair to anybody who has been accused of any trouble.
All I want to say to your Lordships this evening is that this case has been gone through on a considerable number of occasions. I have a great regard for Mr. David Anderson, and I should not like to think that he had been convicted unfairly. I should like to think that if there was any suspicion of doubt, at all, that it could be given in his favour. At the same time, when we are debating an issue of this kind, I do not think we are entitled to use the opportunity to malign people who are responsible for the law in Scotland. The police, the law departments in Scotland, the Lord Advocate's Department, have all done a job for which we ought to be grateful. Before your Lordships reach any conclusion about this, while we are always thinking of seeing that justice is done to the person who is charged, I hope we will remember that we are grateful to those people who administer the law in our country, and I hope that we shall be as fair to them as we are to the accused.
§ 6.38 p.m.
§ Lord SHINWELL
My Lords, I do not wish to occupy much of the time of your Lordships' House. It was not my intention to intervene, although the papers came into my possession. I read them and was deeply impressed by the arguments the papers embodied, but when I hear my noble friend, who was a colleague of mine in the House of Commons for many years, defending the Scottish Office, I recall a case which occurred many years ago in Glasgow when the question of identification was the crucial point. It was the famous case of Oscar Slater, who was accused of murdering an old lady not far from where I resided in the Garnet Hill district of Glasgow. The whole case against Oscar Slater depended on identification. In the course of the 549 prosecution, several witnesses appeared and proved conclusively that they had witnessed this person, Oscar Slater, in the neighbourhood where the crime was committed. It was on the basis of the identification that he was convicted and sentenced to death, but was reprieved. Eighteen years afterwards, largely because of the submissions and the persistence of the late Sir Arthur Conan Doyle, it was decided to hold an inquiry, and Oscar Slater was pardoned. I have never forgotten that case, and largely because of my experience at that time—and the knowledge that this man, although he may have been guilty of other crimes, was in the end not proved guilty of this offence —I have always been somewhat suspicious about this issue of identification.
I hope the Scottish Office will not refuse to hold an inquiry or give some credence to the petition that is to be submitted to my right honourable friend the Prime Minister on the ground that the police never commit an error of judgment. I have had other experiences and though I have great admiration for our police force in the United Kingdom, particularly in the neighbourhood of Glasgow, one must occasionally exercise some prudence, some caution, in accepting everything that the police say in the course of a prosecution. In the circumstances, I am inclined to support the noble Lord, Lord Drumalbyn, in asking that the Government agree to an inquiry.
§ 6.42 p.m.
§ Lord AVEBURY
My Lords, at this stage we are asked to comment one way or the other on the conviction of Mr. Anderson or the effectiveness of the Scottish legal system. However, I must say that when I looked at the papers which were sent to noble Lords and others, I was astonished at the way in which this appeal was conducted. To take up a point made by the noble Lord, Lord Hoy, who was discussing criticisms of the Scottish legal system—and far be it for me, a mere Englishman, to enter into that in any detail—if a person is convicted and on appeal in a summary case the only information which is laid before the superior court is that which emanates from the sheriff who convicted him on what is called a stated case, then the defence has the right to put in amendments to the stated case. As I understand this matter, the defence lawyers 550 acting on behalf of Mr. Anderson put in 10 pages of suggested amendments and all but one item in those 10 pages were then struck out by the sheriff before it went to the Court of Appeal. That is all I know and it strikes me as a very difficult situation for a defendant to be in, when going to appeal, if he cannot present the case in his own way, if his defence is not allowed to submit any argument it pleases, and if those arguments can be struck out not even by the prosecuting side but by the sheriff who convicted him in the lower court. I hope this matter is being looked into by the committee about which we have heard.
The matter which really concerns me and about which the noble Lord, Lord Shinwell, spoke, is this: having looked at all the papers that have been sent to me by Mr. David Steel, who has taken a considerable interest in this case and has gone into it thoroughly, I, like the noble Lord, Lord Shinwell, have had occasion to notice cases where persons have been convicted largely on evidence of identification and subsequently have been found to be innocent. I recall going to the Court of Appeal to hear a case which was in the list and while waiting for it to come on I listened to a case in which the evidence of identification was by a polite officer who was actually sitting next to the convicted person in a gas board van which was alleged to have been stolen. The person was convicted on the basis of the identification of the policeman who was sitting next to the accused for several miles until he was alleged to have opened the offside door and pushed the policeman out. After the man was sent to prison somebody came forward and asked for that offence to be taken into consideration in connection with another matter. The convicted person then appealed and, of course, got off on the basis of the confession of somebody else. If even policemen can make mistakes of identification, how much more likely is it that teenage children may do so?
The Government are themselves seized of this matter and have appointed a committee on identification procedures under the chairmanship of the noble and learned Lord, Lord Devlin. They must have done so because of the number of convictions which have subsequently been overturned or have been the subject of a free pardon, 551 because the persons concerned have been found to be innocent. One must, therefore, ask how many other people have been convicted largely on the basis of identification evidence where findings of innocence have not later emerged. One must assume that if there is a large body of cases where people have later been exonerated, we are perhaps looking at the top of the iceberg and that there are many innocent persons suffering now largely because they have been convicted on the basis of identification evidence.
For this reason I warmly support the demand made by the noble Lord, Lord Drumalbyn, that at least there should be a public inquiry. That is the least we can ask for if the 1,000 people who signed this petition—and, surely the many others in addition who would have signed had they read the evidence—can be reassured that a miscarriage of justice has not taken place in this case.
§ 6.47 p.m.
Lord PAGET of NORTHAMPTON
My Lords, this is a case about which there must be and surely will be an inquiry. It is merely a question of time. When public anxiety on a matter of justice such as this reaches a certain point, it must be assuaged by an inquiry, and if an inquiry is denied, public pressure will go on rising. There must be an inquiry and the Government only discredit themselves by continuing to resist holding one; that is, when the point has been reached at which it is clear that an inquiry must be held. That was the common factor in the cases of Dreyfuss, Adolph Beck and Oscar Slater, to which my noble friend Lord Shinwell referred, and a great many others—the extraordinay resistance shown by Government over years and years until finally they had to give way, as they will have to give way here and justice was done.
Here is a case in which a man is destroyed because one other man chooses to believe in the identification of two children who had seen the man they spoke of for the first time. How can anyone say that that is safe? I really urge the Government to accept the inevitable and say. "This is a case which at some point must be inquired into and it is better to do it now than to build it up 552 and up", as one found in Dreyfuss, Adolph Beck and Oscar Slater. The more one holds it back the more inevitable it becomes, and the more discreditable it becomes, hen it does come.
§ 6.50 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, Parliament has a traditional and honourable role as the place where individual cases can be raised for redress of alleged wrongs. The noble Lord, Lord Drumalbyn, has raised the case of David C. Anderson and I can have no complaint about that. My only regret is that this gives a fresh airing to unfortunate circumstances that were already fully discussed in a debate in another place on 11th April 1974. I am afraid that, like my right honourable friend the Secretary of State for Scotland on that occasion, I have no real comfort to offer the noble Lord. I should make it clear at this stage that what I shall say in the course of this debate has the full support and agreement of my right honourable friend.
It is important for the House to bear in mind what is the extent of the Secretary of State's function in a case of this kind. His prime function is to uphold the rule of law. What has been done by a court of law must be presumed to be duly done and its orders upheld unless there is reason to doubt its correctness. His second function, and one that the Secretary of State, like his predecessors, finds one of his heaviest responsibilities, is to consider whether there are any reasons to doubt the correctness of a verdict. If information comes to his attention that the court's verdict appears to have been in error—that a person who was innocent may have been convicted—then it is his duty to investigate the case and weigh up the fresh issues carefully against the court's decision and, if there are sufficient grounds, to provide a remedy. For this purpose, he has been given the extraordinary power to make recommendations to Her Majesty the Queen for the exercise of the Royal Prerogative of mercy.
I have referred to it as an extraordinary power because such it is. The Secretary of State is not empowered to re-try a case and decide on the merits of a conviction on the evidence at the trial. Leaving aside his lack of powers for the moment, 553 even a Court of Appeal armed with a transcript is in no happy position to do that where there is evidence sufficient in law, for it has not heard the witnesses under oath and examination and observed their demeanour. What is required, if ho is to exercise his powers in a case of this kind, is some additional information—some further factor—not before the court, which points towards a miscarriage of justice. it cannot be some fanciful or unconfirmed doubt or possible alternative explanation. It must be a factor of substance.
I am sorry to have taken so much of your Lordships' time in this explanation. But it is of importance since the main substantive factors not before the court in this case were not, to the Secretary of State's mind, of a disincriminating nature. The issue before the court in this case was whether on the evening of Monday 18th December 1972 Mr. Anderson was involved in an incident with two girls in the Prestwick area as the prosecution alleged or whether his alibi that he had been all the time in a Troon hotel was correct. The court heard the evidence of the witnesses and convicted Mr. Anderson, as the Court of Appeal held it was entiled to do on the evidence. Mr. Anderson took the further step of applying to the nobile officium of the High Court of Justiciary but his application was unsuccessful. He subsequently applied to the Secretary of State's predecessor for the exercise of the Royal Prerogative of mercy. The latter—now the noble Lord, Lord Campbell of Croy, and a Member of this House—examined the case with, I am sure, the care which successive Secretaries of State have shown in such cases, and concluded that there were no grounds which would justify him in recommending exercise of the Prerogative. In view of the nature of the offence of which he was convicted, Mr. Anderson's appointment as Chief Reporter to the Secretary of State for Scotland was terminated.
Before I turn to the circumstances in more detail, there are some preliminary points which I should like to make in view of the criticisms which have been made of summary criminal procedure in Scotland and of the right of appeal in summary cases. First, I am rather surprised by the wide-ranging nature of the adverse comments made by the noble Lord, Lord 554 Drumalbyn, and other noble Lords. The number of cases disposed of annually by the summary criminal courts in Scotland—these are the sheriff court and the district court—is well over 200,000. I am not aware of any general feeling of disquiet in Scotland about these courts and their procedures. I say this with some confidence since, as it happens, we have recently received the main report of the Thomson Committee on Criminal Procedure, which has carried out a detailed review of procedures in the criminal courts of Scotland. It stated as one of its general conclusions the following:It became apparent to us early in our deliberations and from the evidence we received from our witnesses that our existing system of criminal procedure was fundamentally sound and that improvement was all that was needed and not radical change".It went on to say:We consider it of the highest importance to preserve the basic distinction between solemn and summary procedure and we have been at pains to ensure so far as practicable that none of our recommendations affect the summary nature of summary proceedings".The second point I should like to make at this stage concerns the right to demand a jury trial. The noble Lord has commented that an accused has no right to demand a jury trial in Scotland. This of course is true, but again I should like to refer to a conclusion of the Thomson Committee. The Thomson Committee considered whether an accused person served with a summary complaint in the sheriff court should have a right in certain serious cases to apply for trial by jury, a matter earlier considered by the Grant Committee on the sheriff court. The Thomson Committee stated that all its witnesses were opposed to this proposal and that it shared the views of the witnesses and of the Grant Committee in opposing it.
The third of my preliminary points concerns the right of appeal. It has been criticised for its limited scope—what right of appeal in criminal cases has not? The criticism may well be justified and it may be that the Thomson Committee on Criminal Procedure, now that it is quit of its main report, may be able to devise some practicable improvements in the nature of the appeal. But it is the present law of Scotland and has been for many years; nor could inadequacy in rights of 555 appeal be quoted as evidence suggestive of a miscarriage of justice in the court of trial.
The last of my preliminary points is that, whatever may be said about aspects of the case such as identification—to which I shall return later—there is no doubt that Mr. Anderson was duly convicted in accordance with the criminal law of Scotland.
At this stage, I should like to make reply to one or two questions put to me in the course of the debate, and to do so before talking about the facts of the case. First of all, the noble Lord, Lord Drumablyn, mentioned the fact that no official record of trial proceedings need be kept of summary criminal procedure. I would remind him that, in respect of Mr. Anderson's trial, that trial was similar to others under summary criminal procedure in Scotland. As I have said, the Thomson Committee will look at appeals as the next stage of its study of criminal procedures. I cannot say what will be its conclusion on that issue. The noble Lord, Lord Drumablyn, also referred to the fact that a decision by an experienced sheriff in a subsequent case was commented upon adversely by the Appeal Court.
I do not feel that it would be appropriate for me to go into detail about another case. I believe that the noble Lord will be aware that it is difficult to draw conclusions by a comparison of two individual cases. The noble Lord, Lord Drumalbyn, also asked how Mr. Anderson could have been appointed a chief reporter, if there was no substance in his report to the security service. I can best reply to that by quoting what my right honourable friend said in another place on 11th April 1974:Mr. Anderson had…conducted a number of public inquiries satisfactorily on a fee-paid basis before he was appointed to the Civil Service as a full-time Chief Reporter, and the obvious assumption is that he was considered by all concerned to have the qualifications for the job and to be a suitable person for a Civil Service appointment, subject to the satisfactory completion of a two-year probationary period of service."—[Official Report, (Commons), 11/4/74: cols. 697–8.]I turn to the question posed by the noble Earl, Lord Kinnoull, who asked how soon will Thomson report and will the terms of reference be wide enough to 556 cover appeals in cases such as that of Mr. Anderson? I can respond by saying that the report on appeals is expected in about a year's time. The Committee has just sought written evidence about appeals procedure, and its terms of reference are wide enough to allow it to consider appeals in summary cases such as this.
I shall now deal with the facts of the case. These were that the police were called in as a result of an incident in which two young girls were put in fear and alarm by a man who approached them and made offensive suggestions to them in a street in the Prestwick area on the evening of 18th December. Police inquiries suggested the possibility that Mr. Anderson, who had been resident in a hotel in Troon on that night, might have been the man involved. When they called at the hotel they interviewed the proprietors who informed them, as they subsequently gave evidence, that, to their belief, he had been in the hotel all evening, though not in their sight. The police afterwards interviewed Mr. Anderson and asked him if he would be willing to take part in an identification parade where he could be seen by the girls.
He subsequently informed the Crown agent that he declined to take part in such a parade,to protect the repute of my post",but he offered to obtain and provide a photograph of himself for identification purposes. However, before this was handed over the police, as they were entitled to do in their function of investigating crime, made other arrangements with regard to possible identification. They arranged for the two girls to be at a place at which Mr. Anderson arrived and they identified him as the man they had met. He was then charged.
At the trial Mr. Anderson put in the special defence of alibi and, as I have said, the sheriff, performing the court's function of reaching decisions on disputed facts, heard the evidence of the witnesses for the prosecution and the defence and reached his verdict. Here I should like to make three points about the trial, relating to identification, an aspect of the case to which noble Lords have devoted some attention. The first relates to eye-witness visual identification itself. It is a known fact that it is fallible; 557 known from cases in which subsequent evidence fortunately was obtained which showed it to be fallacious. Secondly—and this too is a common experience—there were differences in detail between the girls' attempt to describe the man they had met in words to the police and Mr. Anderson as visually identified. Thirdly, the identification has been attacked on the grounds that in the arrangements made in lieu of an identification parade, the police did not take a step recommended to reduce the possibility of witnesses influencing each other in their identification. Identification was, of course, a key issue which was fully canvassed at the trial and, as I have said, there are no grounds for argument that the trial was not propely conducted and concluded according to law.
I turn now to the relevance of these points to the Secretary of State's functions—and this is very important. It might be suggested that they are factors to be weighed in the scale, as there are factors of this kind in many criminal cases. But they were issues already before the court, and they could not be argued to be of sufficient weight, without additional considerations or information, to justify Ministerial intervention on a judgment duly made by a court of law.
As to additional information, the matter of greatest substance must be the statements made to the Crown agent, the official head of the Scottish prosecution service, and two senior Scottish Office officials by Mr. Anderson between his being charged and the time of the trial. In a letter of 26th December 1972 to the Crown agent he gave a circumstantial account of his leaving the hotel on 18th December 1972 and meeting two young girls in the Prestwick area and upsetting them, although presenting an innocent explanation of how this occurred. When interviewed by two senior civil servants on 10th January 1973 about the possible effect of the offence charged against him on his employment he also referred to a meeting, unfortunate and perhaps misjudged though innocent, with two young girls as the explanation of the charge.
Subsequently he wrote to the Crown agent to the effect that, after further thought, he had come to the conclusion that the incident of which he had given 558 an account took place on another date. In a letter to the solicitor to the Secretary of State for Scotland he also gave an explanation of the account given to the two senior civil servants—to the effect that it was a speculation by him on how he could have so caused alarm unintentionally and forgotten about it. I shall not go beyond what the Secretary of State said about those events in another place except to say that this is not the sort of additional information that would justify him in intervening in a verdict of a court of law.
My Lords, as to other factors Mr. Anderson has been an assiduous correspondent, in particular alleging a long-term plot against him by a foreign Government. As to the plot, my right honourable friend the Secretary of State in his speech in another place made the statement, with the authority of the Home Secretary in view of his security responsibilities, to the effect that he (the Home Secretary) had investigated Mr. Anderson's assertions but had concluded that there was no justification for further review or independent inquiry. I should make it clear that, in relation to Mr. Anderson's conviction, this is relevant only in so far as it raises the hypothesis that Mr. Anderson was deliberately impersonated at Prestwick on 18th December 1972. All I can say is that I am advised that there is no evidence to confirm or support such a possibility.
As I have said, my Lords, his powers in relation to the Royal Prerogative are among the most anxious the Secretary of State possesses. It is no duty of his—very much the opposite—to cast doubt on decisions duly reached by courts of law. He cannot retry a case; nor can he appoint some other person to act as a judge and retry it on his behalf. But, if representations are made to him that a miscarriage of justice has occurred by the conviction of an innocent man, then, in a case like this, his recommendation for the exercise of the Royal Prerogative is the only remedy and he must examine all the existing facts, and any further relevant facts which inquiry might produce, and consider whether the exercise of the Prerogative can be justified. This is what the Secretary of State has done. This is what his predecessor did early in 1974. The present Secretary of State reviewed the case later in 1974. In each case they 559 came to the conclusion that no further action was justified.
This it not to say that the mind of the Secretary of State is closed. Secretaries of State must, and do, remain open-minded on Prerogative cases and are always prepared to consider new information if it is forthcoming, and certainly the petition which is to be submitted could be considered in that light, as indeed would Dr. Bain's memorandum if it can truly be described as being new evidence. But if the proposal here is for some general review of the facts and factors, which have been gone over many times before, my right honourable friend the Secretary of State does not accept that there is a case for it or that it could assist him in the Prerogative decision, which it is for him alone to take.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not want to say anything about this particular case or about the action of the Secretary of State, but I must say this. In England summary cases are tried by magistrates. There are very many more than 200,000 a year; there are 21,000 magistrates; and there is a very much wider range of jurisdiction. In every case where there is a conviction by magistrates there is an absolute right of appeal to the Crown Court to have the case reheard ab initio—witnesses, cross-examination, and all. After 50 years' experience of the Bar and four, very nearly, as Lord Chancellor, I consider this an absolute necessity for the protection of the subject.
§ 7.10 p.m.
§ Lord DRUMALBYN
My Lords, I am grateful, first of all, to those noble Lords who have spoken in this debate today. I am also grateful to my noble and learned friend Lord Hailsham for intervening so powerfully at the end with his brief but very cogent comment.
As I say, I should like to thank those noble Lords who have taken part in this debate, including the noble Lord, Lord Hoy, who I thought, if I may say so, slightly misrepresented what I said, because I was not attacking the police in any way whatsoever. I was merely pointing out that they had made a mistake in the rules concerning identification, and anyone can make a mistake. As to what the noble Lord, Lord Kirkhill, has said, 560 he has given an indication of what the Secretary of State would require by way of further evidence. What I should really like to say to him is this. Here is a case which was sufficiently important for the procurator fiscal to refer to the Crown Office from the start. It was put straightaway in a category different from that of the normal case. That being so, there is some reason for saying that, because of its implications, it needs special consideration.
In this case, unlike other summary cases, a full verbatim report was taken and transcribed. My complaint is that that full verbatim report has not been considered and cannot be considered, it appears, at the present time. This seems to me entirely wrong. The noble Lord talks about the facts having been gone over, but so far as I know nobody has seen the verbatim report. With permission, I shall put a copy of it in the Library, so that noble Lords can look at it for themselves. I think that this is something which the Secretary of State must look at and must study, and decide whether the sheriff took account of all the evidence when he prepared his stated case for presentation to the High Court. Unless this is done, there will be a great deal of dissatisfaction.
It is all very well to say that this is the way in which matters are normally dealt with in Scotland and the way in which they have been dealt with for a very long time. I must say that I find this a curious argument for the Labour Party, of all Parties, to use, which claims to be a Party of progress and change. If something can be shown to be going wrong here, and if special action has to be taken, then it should be possible to take it and to correct the mistakes, as I said earlier. I say that the first action that should be taken is for the Secretary of State to have a careful look at the verbatim report, and make up his mind on the subject. If he is satisfied, after looking at it, that the sheriff was entitled not to put the evidence into the stated case, then this is a matter on which I might have to ask noble Lords to make up their own minds again at a later date. But I say to the noble Lord, with the greatest of respect, that I do not think that it can be said that this matter has been fully explored. The noble Lord wishes to intervene?
§ Lord KIRKHILL
My Lords, I intervene merely to say that I hope the noble Lord will accept that the Secretary of State does not view this matter in the light of being a Party politician. The noble Lord's reference to the Labour Party, I should have thought, should be struck from the record.
§ Lord DRUMALBYN
My Lords, I do not think I can strike anything from the record, but what the noble Lord was saying, in effect, was that this is the way matters have always been treated in summary jurisdiction cases for a long time past, and I was commenting that this was an odd thing for the noble Lord to say. This is, of course, not a Party matter. I was complimenting the noble Lord by saying that the Labour Party had claimed to be a Party of progress. I am asking for the progress.
My Lords, I think that this debate has been conducted in a very fair manner. I accept the position that the noble Lord has taken up as of now, within the present range, but I hope that when the petition arrives and is being studied—and I am quite certain that the petition will be accompanied by a copy of the verbatim report—this will be taken into consideration in full because there must be some way, where mistakes are made, to look at them and decide that they should be put right. My Lords, having said that, I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.