Cullen 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.
upheld the view of Scotland's senior law officer, the 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 expose citizens-above-suspicion?]
But he allowed
leeway for submissions to be made on the decisions taken by
the fiscals, including opinion on
of those decisions.
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.
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.
Cullen 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."
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."
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 in Scotland.
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
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?]
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.