: Prosecutors will not
be asked to justify decisions on cases involving Hamilton
ruled yesterday that the procurators fiscal who decided not
to prosecute the killer Thomas Hamilton four times in five years
should not be forced to justify their decisions. LINK
He substantially upheld the view of Scotland's
senior law officer, the Lord Advocate, Lord Mackay of Drumadoon
that while the fiscals could appear before the inquiry, they
could not be questioned on the correctness of their decisions.
[Ed ~ Why not? Was there
an underlying fear that the wraps might be taken off the extensive
tie-in with Hamilton, Masons and paedophiles and expose the
But he allowed leeway for submissions to be
made on the decisions taken by the fiscals, including opinion
on the correctness of those decisions. LINK
Colin Campbell QC, for
the families of the 16 children who died at Dunblane Primary,
earlier argued against limited questioning, saying that the
Lord Advocate had no "absolute veto" preventing scrutiny
of decisions by public prosecutors.
Mr Campbell argued that it was difficult to
understand the purpose of providing a full explanation of what
happened - a reference to an 18-page report on the fiscals'
dealings with Hamilton prepared by an independent procurator
fiscal - and then to deny the inquiry and Parliament the opportunity
to consider the merits of what had been done.
Lord Cullen LINK
said he was satisfied on the one hand it would "not be
proper" for the inquiry to require the prosecutors to justify
their decisions or to entertain submissions as to the sufficiency
of what was put forward in justification of these decisions.
But he added that he saw no good reason why
the inquiry should not entertain submissions based on the available
evidence, saying: "I am not going to draw any hard and
fast line to what can or cannot be submitted. It would
certainly include the possibility of submissions as to whether
a relevant charge could have been granted or whether in some
circumstances some other decision could have been taken."
Lord Cullen said he did not want to inhibit
decisions but it had to be clearly understood that they were
based on available evidence "and do not enter into a review,
in one form or another, of the decisions reached".
He added: "I am content this inquiry should
not require the soundness of the decisions subjected to detailed
examination of submissions, but I do wish to hear submissions
based on the available evidence."
[Ed ~ He's just waffling. A contradiction in
terms if ever there was one.]
Earlier, Mr Campbell noted there was potential
conflict between the public prosecutor's independent, impartial
role and the accountability of the law officer to Parliament.
He said: "However, it is one thing to
leave it to the Lord Advocate or the fiscal to decide whether
or not a prosecution should take place but another matter altogether
whether, in appropriate circumstances, and in the public interest,
it is appropriate to examine decisions already taken." It
did not follow, he said, that the Lord Advocate had an absolute
veto on all scrutiny on all acts and ommissions of public prosecutors
The tribunal's purpose, he said, was not to
influence decisions but to assist Parliament in considering
the full circumstances of what happened and "more important
than that, to assist Parliament in learning any necessary lessons
and making necessary reforms in the public interest".
The Crown Counsel, Iain Bonomy, on behalf of
the Lord Advocate, said either the principle existed or it did
not. The result of infringing the principle would be that
every decision made would be made under the threat of being
called to account later. [Ed
~ What could possibly be wrong with that?]
"It would be wrong for the inquiry to
review the decisions made in the sense of reviewing the exercise
of discretion undertaken by the fiscal, or for the inquiry to
endeavour to do the job of the fiscal and decide what course
of action would be appropriate," he said.