The Report on an Inquiry

into an Allegation of a
Conspiracy to Pervert the
Course of Justice in
Scotland
To the Right Honourable the Lord Rodger of Earlsferry QC
Her Majesty's Advocate
By W A Nimmo Smith QC and
J D Friel, Regional Procurator Fiscal of North Strathclyde

Return to an Address of the Honourable the
House of Commons dated 26th January 1993
Ordered by the House of Commons to be printed

26th January 1993

EDINBURGH:
377

HMSO

The R i g h t Honourable the L o r d Rodger o f Earlsferry Q C
H e r Majesty's Advocate

In discharge of the remit set out in your letter to us dated 18 September 1992,
we have the honour to submit our Report herewith. A l t h o u g h it is submitted to
y o u , since it is intended for publication we propose hereafter to refer to y o u in the
t h i r d person. Y o u t o o k office on 22 A p r i l 1992, and accordingly when describing
events after that date we shall call y o u "the L o r d Advocate". References to "the
L o r d Advocate" p r i o r to that date are to y o u r predecessors in office.
Yours sincerely

W A N I M M O S M I T H QC
J D FRIEL
Edinburgh,
15 December 1992

THE REPORT O N A N I N Q U I R Y I N T O
AN A L L E G A T I O N OF A CONSPIRACY
TO PERVERT T H E COURSE OF
JUSTICE IN SCOTLAND

CONTENTS

Paragraphs

Page

Part 1

O u r Remit

1. 1 to 1. 17

1

Part 2

T h e Judiciary, the C r o w n and the Police

2. 1 to 2. 15

8

Part 3

Homosexuality and the C r i m i n a l Law

3. 1 to 3. 7

13

Part 4

Homosexuality and the H o l d i n g o f
Judicial Office

4. 1 to 4. 3

16

Part 5

T h e Resignation o f L o r d Dervaird

5. 1 to 5. 4

17

Part 6

C o l i n Tucker's Statement or "List"

i6. 1

to 6. 32

19

Part 7

R u m o u r s about Members of the Legal
Profession

7. 1 to 7. 13

28

Part 8

"Jason" the Rent B o y and the "Gay
Judges Scandal"

8. 1 to 8. 8

31

Part 9

Michael Junior's Story about a "Judge"

9. 1 to 9. 6

34

Part 10

Allegations by Stephen C o n r o y against
Sheriff Douglas A l l a n

10.. 1 to 10. 33

36

Part 11

O t h e r Allegations against Sheriff Douglas
Allan

11.. 1 to 11. 19

53

Part 12

T h e O r r Report

12.. 1 to 12. 28

58

Part 13

Robert Henderson Q C

13.. 1 to 13. 22

66

Part 14

HMA v Arthur Colin Tucker

14.. 1 to 14. 22

72

Part 15

HMA v Gordon Michael May and Arthur
Colin Tucker

15.. 1 to 15. 24

79

Part 16

HMA v Neil Bruce Duncan and Others

16.. 1 to 16. 43

85

Part 17

HMA v Stephen Mark Conroy

17.. 1 to 17. 16

96

Part 18

Conclusions

18. 1 to 18. 14

100

OUR REMIT

1

1. O U R REMIT

1. 1 On 11 September 1992 there were reports in the press and on television of
the contents of an internal report by a senior officer of Lothian and Borders Police
to the C h i e f Constable, a copy or copies of w h i c h had been leaked. We shall for
convenience refer to this document as "the O r r Report" because, although it was
signed by Detective C h i e f Superintendent W i l l i a m Hiddleston, it was w r i t t e n by
Detective C h i e f Inspector Roger O r r . W h i l e we shall have occasion to discuss
passages of the O r r Report at some length later in this Report, certain of its features
could conveniently be mentioned at this stage. A f t e r an i n t r o d u c t i o n it has the
f o l l o w i n g headings:
"1.

BURNETT WALKER, W. S.— I A N McFARLANE WALKER, A N D
ARTHUR COLIN TUCKER",
"2. A R T H U R C O L I N T U C K E R A N D G O R D O N M A Y " ,
"3. R O B E R T E W A R T H E N D E R S O N , Q . C . " ,
" 4 . O P E R A T I O N P L A N E T — T H E R E N T B O Y C A S E " and
"5. S T E P H E N C O N R O Y A N D SHERIFF D O U G L A S A L L E N " (sic).
It ends w i t h a conclusion, the second paragraph of w h i c h is in the f o l l o w i n g terms:
" W h e n all aspects are v i e w e d together and the various links examined, the
o v e r w h e l m i n g conclusion has to be that a number of enquiries remain to
be done in order to say accurately that all information in possession of the
police has been f u l l y investigated. The inference is one of the existence of
a w e l l established circle of homosexual persons in E d i n b u r g h w i t h influence
in the j u d i c i a r y w h o m a y or m a y not have exercised that influence b u t w h o
have formed associations w h i c h in themselves lay them open to threats or
blackmail. It m a y w e l l be the case that homosexuality per se is no longer
considered detrimental to the standing of a person h o l d i n g public office.
H o w e v e r , the circumstances set o u t in this report indicate that homosexuality
m a y w e l l have been used as a means to seriously interefere (sic) w i t h the
administration of justice. "
1. 2 Whatever m a y have been the intention of the author of the report, this last
paragraph has been w i d e l y understood to contain an allegation that there has been
a conspiracy to pervert the course of justice w h i c h has resulted in decisions having
been taken by the C r o w n in the particular cases mentioned in the O r r Report for
the improper m o t i v e o f preventing the public exposure o f p r o m i n e n t members
of the Scottish legal establishment as being practising homosexuals or as having
engaged in homosexual activities; in any event, we have t h o u g h t it necessary to
treat the O r r Report as containing such an allegation. The leaking and the press
and television coverage of the O r r Report have p u t this allegation into the public
domain and have caused legitimate public concern about the integrity of the system
for the prosecution of crime in Scotland.
1. 3 On 14 September 1992 we were invited to undertake this I n q u i r y and started
w o r k f o r t h w i t h . A s i t happened, the L o r d Advocate was prosecuting i n Glasgow
that w e e k and was not immediately available to discuss w i t h us the terms of our
remit. These terms were finalised in letters to each of us dated 18 September 1992,
in the f o l l o w i n g terms:
" I a m grateful t o y o u for accepting the task o f r e v i e w i n g the decisions taken
in the cases w h i c h have already been identified to y o u . At the risk of stating
the obvious, I must stress that I w i s h y o u to exercise the fullest possible
independence of j u d g m e n t in conducting y o u r investigation. I understand,
however, that y o u w o u l d f i n d i t useful t o have a w r i t t e n indication o f y o u r
authority and y o u r r e m i t .

2

THE LORD A D V O C A T E ' S INQUIRY

Authority
Y o u have been provided w i t h a copy of the leaked report to the C h i e f
Constable and previous relevant papers. There are several cases identified
i n that report and y o u may, w i t h m y authority, call for any case papers i n
relation to these reports. Y o u m a y also call for any papers w h i c h relate to the
allegations made in the report. Y o u further have my authority to interview
myself, the Solicitor General, any serving Advocate Depute and any member
of the staff of C r o w n Office and the Procurator Fiscal Service in connexion
w i t h these matters. Y o u m a y w i s h to interview other parties, b u t , as y o u
w i l l appreciate, for the most part I have no authority over other people and
I t h i n k such interviews could o n l y be arranged by agreement w i t h the
individuals. Should y o u meet w i t h any difficulty in this regard, I w o u l d like
to consider the matter again.

Remit
The basis of the allegations n o w made appears to be that decisions taken in
relation to the cases referred to were taken for improper reasons, namely
to prevent disclosure of information w h i c h w o u l d identify certain individuals
as homosexuals. T h e purpose of y o u r i n q u i r y is to seek to ascertain whether
there is any evidence to suggest that the decisions were taken for such
i m p r o p e r reasons. I w o u l d further w i s h y o u to consider the actions taken
by C r o w n Counsel and those in C r o w n Office and the Procurator Fiscal
Service w h o were aware of the allegations, w i t h a v i e w to establishing
whether there is any evidence to suggest that they were influenced by
improper considerations similar to those defined above.
Clearly y o u w i l l w i s h t o establish o n w h a t evidence the police report reached
its conclusions, and to explore that evidence to any extent w h i c h appears
to y o u to be necessary.
It is n o t , as such, part of y o u r r e m i t to comment on whether the j u d g m e n t
of C r o w n Counsel or Procurators Fiscal or deputes was correct on the merits
of the particular cases, although clearly y o u m a y require to take account of
such j u d g m e n t before y o u can decide whether the nature of any decision was
such as to indicate that it m a y have been reached for the improper reasons
w h i c h I have mentioned. N o r is it a part of y o u r r e m i t to enquire into whether
any individuals have engaged in homosexual practices, except in so far as
that m a y relate to the p r i m a r y purpose of the i n q u i r y .

Report
Once y o u have concluded y o u r review, I w o u l d b e grateful i f y o u w o u l d
report, in w r i t i n g , to me. If y o u conclude that there is evidence to support
any of the allegations, then the question of possible criminal proceedings
w o u l d arise and, to that extent, the possibility of publication w o u l d be
affected. Otherwise, I should w i s h to publish as m u c h of y o u r report as
possible, bearing in m i n d the principle that the C r o w n does n o t disclose
the reasons for certain decisions in relation to prosecutions of identifiable
individuals. I should accordingly be grateful if y o u w o u l d consider w r i t i n g
y o u r report in such a w a y that as m u c h as possible of it can be made public.
I should also like y o u to recommend w h i c h parts, if any, should be made
confidential.
Finally, w i t h the exception of the matters specifically excluded f r o m y o u r
r e m i t , I w o u l d n o t w i s h t o constrain y o u b y the terms o f this letter f r o m
extending y o u r i n q u i r y i n t o any area w h i c h y o u m a y consider relevant to
it. "
The terms of our r e m i t were made public on the same date.

OUR REMIT

3

1. 4 The L o r d Advocate has the overall responsibility for b o t h the investigation
and the prosecution of crime in Scotland. N o r m a l l y he leaves the investigation
of crime in the hands of Procurators Fiscal and the police, as we discuss b e l o w ,
b u t it is open to h i m to investigate crime by himself or t h r o u g h others of his
choosing. In this instance he has chosen us to conduct an investigation in his
name and w i t h his authority into the allegation arising f r o m the O r r Report. An
allegation that there has been a conspiracy to pervert the course of justice is of
course an allegation that there has been a course of criminal conduct. It has been
clear to us f r o m the outset that our I n q u i r y is in substance a criminal investigation.
1. 5 We have taken a liberal v i e w of o u r remit. We have conferred w i t h the L o r d
Advocate f r o m time to t i m e , and have indeed questioned h i m , as was contemplated
by h i m ; b u t we have received no directions f r o m h i m and have taken our o w n
decisions at all times as to the course our I n q u i r y should take. We have taken
possession of all the papers held in the C r o w n Office relating to the cases in
question. W e have been given full use o f the resources o f the C r o w n Office, and
w o u l d like in particular to thank the C r o w n A g e n t , Duncan L o w e , and the D e p u t y
C r o w n A g e n t , A l f r e d Vannet, for the help they have given in ensuring that our
requests were met.
1. 6 At an early stage the C h i e f Constable of Lothian and Borders Police, Sir
W i l l i a m Sutherland, appointed Assistant C h i e f Constable Graham Power to be
our liaison officer w i t h the police. H e , and in his absence Assistant C h i e f Constable
Thomas W o o d , undertook the responsibility of securing the attendance for interv i e w o f serving and retired police officers and o f instructing the carrying out o f
various inquiries on our behalf. O u r every request to the police was attended to
p r o m p t l y , efficiently and w i t h courtesy; we make a particular p o i n t of saying so
at this stage because we shall have some hard things to say about some police
officers later in this Report. O u r r e m i t does not extend to investigation of the
person or persons responsible for the leaking of the O r r Report. A separate internal
police i n q u i r y has been conducted i n t o that matter by C h i e f Superintendent H a r r y
G i l m o u r , w i t h w h o m w e have exchanged information and opinions f r o m t i m e
to time. He has provided us w i t h a s u m m a r y of his report to the C h i e f Constable.
We should like to thank h i m for his w i l l i n g co-operation.
1. 7 O u r remit gave us a u t h o r i t y over serving Advocates Depute and members
of the staff of C r o w n Office and the Procurator Fiscal Service. We received f u l l
co-operation f r o m all those falling w i t h i n these categories w h o m we wished to
attend for interview or to carry o u t inquiries on our behalf.
1. 8 As our I n q u i r y progressed it became apparent that there were a large number
of other persons w h o m it w o u l d be appropriate for us to interview. Except as
mentioned b e l o w , all such persons responded readily to o u r approaches and
attended v o l u n t a r i l y for interview, although we had no p o w e r to compel them
to attend or to answer questions or to hand over documents d u r i n g the course
o f a n interview. A l l interviews were conducted b y b o t h o f u s face t o face w i t h
the interviewees except in a few instances, w h i c h we have indicated in the text,
where the evidence seemed relatively m i n o r and sufficiently uncontroversial to
j u s t i f y the taking of the evidence by one of us alone either in person or by telephone.
1. 9 The f o l l o w i n g persons were interviewed by us, their names being listed in
alphabetical order:
Douglas A L L A N , Sheriff o f South Strathclyde, Dumfries and Galloway a t
Lanark, and f o r m e r l y Regional Procurator Fiscal, Lothian and Borders
Dean B A R N E S
Thomas B E L L , Sergeant, L o t h i a n and Borders Police
James B E T H E L L , Reporter, "The Sunday T i m e s "
D a v i d B L A I R - W I L S O N , Solicitor, Edinburgh
Edward B O W E N Q C
Douglas B R O W N , Assistant Solicitor, H i g h C o u r t U n i t , C r o w n Office
Karen B R O W N
Peter B R O W N , Sergeant, f o r m e r l y Detective Sergeant, Lothian and B o r ders Police
David B U R N S Q C
Ian B U R R E L L , Assistant N e w s E d i t o r , "Evening N e w s "

4

THE LORD ADVOCATE'S INQUIRY

Alastair C A M P B E L L , Advocate
Hector C L A R K , D e p u t y C h i e f Constable, Lothian and Borders Police
Isabel C L A R K , Procurator Fiscal Depute, E d i n b u r g h
The Honourable L o r d C L Y D E , Senator o f the College o f Justice
Stephen C O M E R F O R D , Constable, f o r m e r l y Detective Constable,
Lothian and Borders Police
Stephen C O N R O Y
Stephen C O N R O Y , Senior
H u g h C O R B E T T , Detective Sergeant, Lothian and Borders Police
Kevin C R A W F O R D
W i l l i a m C R O O K S T O N , Detective C h i e f Inspector, Lothian and Borders
Police
Frank C R O W E , Procurator Fiscal, K i r k c a l d y , f o r m e r l y Assistant Solicitor,
H i g h C o u r t U n i t , C r o w n Office
Leslie C U M M I N G , C h i e f Accountant, The L a w Society o f Scotland
Thomas D A W S O N Q C , Solicitor General for Scotland
Ian D E A N , formerly C r o w n A g e n t
Leeona D O R R I A N , Advocate
B r i a n D O U G L A S , Advocate
Kevin D R U M M O N D Q C
G o r d o n E L L I S , Depute C l e r k o f Justiciary
Christopher F E W , Police Constable, Northamptonshire Constabulary, form e r l y Detective Constable, Lothian and Borders Police
M a r k F I T Z P A T R I C K , Advocate
H u g h F O L E Y , Principal C l e r k o f Session and Justiciary
D a v i d F O R S Y T H , Reporter, "Evening N e w s "
The Right Honourable the L o r d F R A S E R O F C A R M Y L L I E Q C , Minister
of State at The Scottish Office, f o r m e r l y L o r d Advocate
Martin F R U T I N
Brian G I L L Q C , Keeper o f the Advocates' L i b r a r y
W i l l i a m G I L L O N , f o r m e r l y Depute C l e r k o f Justiciary
Michael G L E N
Richard G O D D E N , Solicitor, E d i n b u r g h
Robert H E N D E R S O N Q C
Thomas H E P B U R N , f o r m e r l y Detective C h i e f lnspector, Lothian and B o r ders Police
W i l l i a m H I D D L E S T O N , f o r m e r l y Detective C h i e f Superintendent and
Head o f C I D , Lothian and Borders Police
T h e R i g h t Honourable L o r d H O P E , L o r d President o f the C o u r t o f Session
and L o r d Justice General
A l l a n H U T C H I S O N , C h i e f Reporter, "The Scotsman"
Ian I R V I N G , Detective Inspector, Lothian and Borders Police
A l a n J O H N S T O N Q C , Dean o f the Faculty o f Advocates
D a v i d J O H N S T O N , Reporter, Radio Forth
Richard K E E N , Advocate
Robert L E E S , Regional Procurator Fiscal, Lothian and Borders
Robert L E I T C H , f o r m e r l y Detective Inspector, Lothian and Borders Police
Magnus L I N K L A T E R , E d i t o r , "The Scotsman"
Duncan L O W E , C r o w n A g e n t , f o r m e r l y Regional Procurator Fiscal,
Lothian and Borders
G o r d o n M c B A I N , Solicitor, E d i n b u r g h
Paul M c B R I D E , Advocate
T h e R i g h t Honourable the L o r d M c C L U S K E Y O F C H U R C H H I L L , Senator o f the College o f Justice
W i l l i a m M c D O U G A L L , H i g h e r Precognition Officer, Procurator Fiscal's
Office, E d i n b u r g h
N o r m a n M c F A D Y E N , Assistant Solicitor, Fraud U n i t , C r o w n Office
Kenneth M A C I V E R , Assistant Procurator Fiscal, E d i n b u r g h
Andrew M c L A U G H L I N
Elish M c P H I L O M Y , Senior Legal Assistant, C r o w n Office
Iain M c S P O R R A N , Procurator Fiscal Depute, E d i n b u r g h

OUR REMIT

5

M a r i a M A G U I R E , Advocate
Elaine M A T T H E W S
Hugh M A T T H E W S Q C
The Honourable L o r d M I L L I G A N , Senator o f the College o f Justice
John M I T C H E L L Q C
James M U I R , Solicitor, Shorts
John M U R R A Y Q C , D i c k s o n M i n t o Professor o f C o m p a n y and C o m m e r cial L a w , E d i n b u r g h U n i v e r s i t y , f o r m e r l y Senator of the College of Justice
Neil M U R R A Y Q C
Isabel N I C O L , f o r m e r l y Detective Sergeant, Lothian and Borders Police
Lawrence N I S B E T , Advocate
Derek O G G , Advocate
Charles O R R , Sergeant, f o r m e r l y Detective Sergeant, Lothian and Borders
Police
Roger O R R , C h i e f Inspector, f o r m e r l y Detective C h i e f Inspector, Lothian
and Borders Police
The Honourable L o r d P E N R O S E , Senator o f the College o f Justice, form e r l y H o m e Advocate Depute
Richard P R E N T I C E , Assistant C h i e f Constable, Lothian and Borders Police
James R E I L L Y , Advocate
Brian R E Y N O L D S , Sergeant, Lothian and Borders Police
The Right Honourable M a l c o l m R I F K I N D Q C M P , Secretary o f State for
Defence, f o r m e r l y Secretary of State for Scotland
Peter R O B E R T S O N , f o r m e r l y Detective Inspector, Lothian and Borders
Police
The Right Honourable the L o r d R O D G E R O F E A R L S F E R R Y Q C , L o r d
Advocate, f o r m e r l y Solicitor General for Scotland
Linda R U X T O N , Assistant Procurator Fiscal, Glasgow, f o r m e r l y Senior
Procurator Fiscal Depute, E d i n b u r g h
John S I M P S O N , Advocate
Robert S I N C L A I R , Depute C l e r k o f Justiciary
Walter Easton S M I T H
Michael S O U T E R , Inspector, f o r m e r l y Detective Inspector, Lothian and
Borders Police
D o n a l d S T E W A R T , Inspector, Lothian and Borders Police
The Honourable L o r d S U T H E R L A N D , Senator o f the College o f Justice
Sir W i l l i a m S U T H E R L A N D , C h i e f Constable, Lothian and Borders Police
Colin T U C K E R
Peter W A T S O N , Solicitor, Glasgow
John W A T T Q C
Thomas W E L S H , Advocate
Peter W I L S O N , Superintendent, Lothian and Borders Police
1. 10 Of the journalists we have spoken t o , we have listed o n l y those w h o m we
have interviewed in the sense that they have given information in response to
questions by us. We have had occasion to speak to a number of other journalists
w h o have been interested in the progress of our I n q u i r y . We have also spoken
to a variety of other persons, principally w i t h a v i e w to enlisting their help in
m a k i n g contact w i t h others w h o m w e wished t o interview. O n l y t w o persons
w h o m w e wished t o interview declined t o attend. These were T a r n Dalyell M P
and a rent b o y (or male prostitute) called "Jason". Mr Dalyell was k i n d enough
to explain to us by telephone that he remained "implacable" in his refusal to attend
for interview, and was amused by the consequent j u x t a p o s i t i o n of his name w i t h
that of "Jason".
1. 11 In approaching persons w h o m we wished to interview we had to resort
to whatever expedients seemed best suited to persuade each individual to attend,
b u t we ensured that a number of basic points were conveyed to each. These were,
firstly, that we were effectively to be regarded as the L o r d Advocate; secondly,
that our I n q u i r y was in substance a criminal investigation; t h i r d l y , that our sole
desire was to establish the t r u t h of the matters we were i n q u i r i n g i n t o ; and f o u r t h l y ,
that our interviewees could be assured of our discretion about their attendance

6

THE LORD ADVOCATE'S INQUIRY

for i n t e r v i e w and o u r respect for the confidentiality of i n f o r m a t i o n w h i c h was
n o t strictly relevant to o u r I n q u i r y . As a result we have been able, as far as we
can t e l l , to inspire confidence in almost all of those w h o m we have interviewed.
1. 12 It w o u l d be convenient at this p o i n t to m e n t i o n that at o u r request Assistant
C h i e f Constable Power circulated a m e m o r a n d u m dated 23 September 1992 to
all C h i e f Superintendents stating that i f any member o f the Force w h o was n o t
called by us to give evidence felt that he had useful evidence to give, he should
b e encouraged t o make contact w i t h Assistant C h i e f Constable Power w h o w o u l d
make arrangements for h i m to speak directly to us. A similar statement was made
in the Force I n f o r m a t i o n B u l l e t i n of 25 September 1992. We are satisfied that these
steps have resulted in o u r h a v i n g interviewed all police officers w i t h relevant
information to give.
1. 13 There was no fixed pattern to each i n t e r v i e w . W i t h a few exceptions,
interviews t o o k place on C r o w n Office premises. No other person was present
d u r i n g an i n t e r v i e w apart f r o m us and the interviewee. We each made a separate
contemporaneous w r i t t e n record of each i n t e r v i e w . A f t e r o u t l i n i n g to each interviewee the scope o f o u r I n q u i r y and the matters i n respect o f w h i c h w e wished
to ask questions, we then proceeded to ask questions in a f o r m w h i c h seemed best
suited to the occasion. W i t h a few exceptions o u r interviews were relatively
i n f o r m a l discussions rather than interrogations similar to cross-examination. As
a matter of p o l i c y we tried to tell each interviewee no m o r e about the evidence
we had taken f r o m others than was necessary for the f o r m u l a t i o n of questions
or to explain the reasons for asking questions. We d i d , however, make a p o i n t
of p u t t i n g to each witness, for his c o m m e n t , w h a t had been said by others about
the witness or about the matters to w h i c h the witness spoke. In the case of some
witnesses it thus became necessary to ask t h e m to attend for m o r e than one
i n t e r v i e w , and in a v e r y f e w instances three or m o r e interviews became necessary.
1. 14 W h i l e we had no c o n t r o l over w h a t witnesses m i g h t choose to say in private
or in public before or after being interviewed by us, we believe that on the w h o l e
o u r o w n discretion was matched b y that o f witnesses, w i t h the result that there
was little public discussion about specific aspects of o u r I n q u i r y w h i l e it was in
progress. Such public discussion w o u l d have been unwelcome to the extent that
it m i g h t have inhibited witnesses f r o m agreeing to attend for i n t e r v i e w or f r o m
g i v i n g us as m u c h i n f o r m a t i o n as t h e y d i d .
1. 15 It is in the nature of the matters w h i c h we have investigated that v e r y often
no w r i t t e n record was made of t h e m by the witnesses at the t i m e . Where such
w r i t t e n records survive, we have taken possession of t h e m , and m e n t i o n t h e m
i n the text o f this Report. For the m o s t part, however, w e have had t o rely o n
the recollections of witnesses w h o w o u l d have had no idea at the time w h e n the
events t o o k place, sometimes as m u c h as three years ago, that they w o u l d be called
on to give evidence about t h e m . As a result, recollections and perceptions of events
have varied. Where there have been material discrepancies in the evidence we
discuss those discrepancies. Where there have been m i n o r discrepancies we have
n o t t h o u g h t it necessary to treat t h e m in detail and have instead compiled a narrative
w h i c h at least closely approximates to the true events. O v e r a l l , we believe that
we have been able to establish as m u c h of the t r u t h as a n y b o d y could have done
after this passage of t i m e . T h e t r u t h as we have established it m a y be more banal
than w h a t some have chosen to believe, b u t we hope that even a sceptical reader
w i l l be satisfied w i t h the substantial accuracy o f w h a t w e have t o report.
1. 16 There are t w o m a i n omissions f r o m o u r Report. Firstly, witnesses were
prepared to confide in us about their private lives, on o u r assurance that we w o u l d
make n o m o r e m e n t i o n o f t h e m than was strictly necessary f o r the purposes o f
o u r r e m i t . Where we have found it necessary to report on aspects of witnesses'
private lives we have deliberately done so in a w a y w h i c h is intended to frustrate
merely prurient curiosity. Secondly, there can be no question of o u r r e p o r t i n g
on prosecution decisions in such a w a y as w o u l d facilitate public debate about their
correctness. There is a v e r y sound reason for this, w h i c h seemed to be unanimously
accepted by those of the witnesses w h o had an interest to discuss it w i t h us. T h i s
is that to p u t i n t o the public d o m a i n the subject matter of prosecution decisions
w o u l d be to expose persons to a f o r m of public t r i a l w i t h o u t g i v i n g t h e m an

OUR REMIT

7

o p p o r t u n i t y to defend themselves. The o n l y proper place for a person to be
exposed to a criminal allegation by the C r o w n is a criminal court. E v e r y person
w h o is suspected or accused of having c o m m i t t e d a criminal offence enjoys a
presumption of innocence, w h i c h means that he or she is o n l y to be taken to have
c o m m i t t e d the offence if the C r o w n has discharged the burden of p r o v i n g his g u i l t
beyond reasonable doubt, by the leading of evidence of the sufficiency and quality
required by l a w , in a criminal court. A c c o r d i n g l y in those cases where a decision
was taken either n o t to initiate a prosecution or n o t to proceed on certain charges,
or to proceed on reduced charges, we intend to do no more than summarise the
procedure w h i c h was followed and the views of those w h o were involved in the
taking o f the decision i n question.
1. 17 We w o u l d conclude this i n t r o d u c t o r y passage w i t h an expression of our
thanks t o Valerie D a w s o n , w h o prepared the typescript o f this Report w i t h
efficiency, discretion and unfailing good h u m o u r .

8

THE LORD A D V O C A T E ' S INQUIRY

2. THE JUDICIARY, THE CROWN A N D
THE POLICE

2. 1 In the course of our I n q u i r y we discovered that there existed considerable
confusion in the minds of some witnesses as to the functions of the various
participants in the criminal justice system. We therefore consider it appropriate
at this stage to discuss the system.
2. 2 There are t w e n t y four Judges w h o sit in the C o u r t of Session and the H i g h
C o u r t o f Justiciary, o f w h o m the most senior i s L o r d Hope, the L o r d President
of the C o u r t of Session and L o r d Justice General. T h e y are appointed by the Queen
and h o l d office u n t i l they retire or resign. T h e y can o n l y be removed from office
in consequence of an address to b o t h Houses of Parliament, a procedure w h i c h
has n o t been used for m a n y years. In the H i g h C o u r t of Justiciary they preside
over criminal trials in w h i c h one party is the C r o w n and the other p a r t y is the
accused. Legal arguments are heard by Judges sitting on their o w n , b u t all evidence
is led in the presence of a j u r y . T h e j u r y decides, in the l i g h t of legal directions
f r o m the Judge, w h a t v i e w to take of the evidence and w h a t verdict to return.
We have found a surprising ignorance, even among some quite senior police
officers, about the position of the Judiciary in relation to criminal prosecutions
in Scotland. It therefore needs to be clearly stated that the Judiciary are entirely
independent of the prosecuting authorities (collectively referred to as "the
C r o w n " ) , and have no say in decisions as to whether or n o t prosecutions should
be initiated, and if so on w h a t charges, and as to whether or n o t pleas of g u i l t y
should be accepted or charges should be w i t h d r a w n . T h e usual expression of the
C r o w n ' s position is that the C r o w n remains master of the instance t h r o u g h o u t .
Judges do of course make decisions about the legal implications of charges or of
evidence led by the C r o w n , b u t they do so in open court where their decisions
are subject t o public scrutiny. Since all the cases w i t h w h i c h w e are concerned
w h i c h resulted in prosecutions were heard in the H i g h C o u r t we need n o t mention
the lower courts, beyond stating in passing that a Sheriff is a j u d g e and that the
same considerations apply to relations between a Sheriff and the C r o w n and to
the conduct of proceedings before a Sheriff.
2. 3 Judges of the C o u r t of Session and the H i g h C o u r t are served by clerks of
court, headed by the Principal C l e r k of Session and Justiciary, w h o are public
servants. T h e i r function is to assist in the administration of justice by securing,
so far as is practicable, the availability of Judges to hear cases w h i c h are b r o u g h t
before the court and by assisting the Judges in procedural and administrative
matters in the interests of efficiency. H u g h Foley, the Principal C l e r k of Session
and Justiciary, has described the position in these terms:
" W e serve the Bench and t h r o u g h the Bench the public. T h e C r o w n is j u s t
another litigant, t h o u g h our biggest customer. "
W h e n a Judge sits in court a clerk of court is always present to keep a record of
the proceedings and otherwise t o assist the Judge. T h e clerk w i l l often act as a
channel of communication between the Judge and the counsel attending a sitting
o f the H i g h C o u r t i n connection w i t h matters affecting the progress o f the sitting.
2. 4 T h e expression "the C r o w n " includes the L a w Officers, the Advocates
Depute, and the Procurator Fiscal Service, headed by the C r o w n A g e n t . T h e L a w
Officers are the L o r d Advocate and the Solicitor General for Scotland, w h o are
members of the Government and are appointed by the Prime Minister of the day.
T h e y are answerable to Parliament for the performance of their duties, as are all
Government Ministers. As we have already stated, the L o r d Advocate has the
responsibility for b o t h the investigation and the prosecution of crime in Scotland,
as w e l l as other functions w h i c h are n o t relevant for present purposes. The L o r d
Advocate grants commissions to Advocates Depute, whose numbers have

THE JUDICIARY, THE C R O W N A N D THE POLICE

9

recently been increased f r o m twelve to thirteen. T h e y are d r a w n f r o m the
practising membership o f the Faculty o f Advocates. Their commissions empower
them to take all prosecution decisions in the L o r d Advocate's name as if he were
taking them himself. The relevant part of such a commission, the terms of w h i c h
have been in use for many years, is as follows:
"to compear for me and in my name as H e r Majesty's Advocate before the
H i g h C o u r t of Justiciary at E d i n b u r g h , and before the different H i g h Courts
of Justiciary held in Scotland, and to make and subscribe all applications and
Petitions to the Judges thereof, and to raise and subscribe and insist in all
C r i m i n a l A c t i o n s , Indictments, Complaints, Prosecutions and Trials that
m a y be b r o u g h t i n t o said several Courts or any of them; and also w i t h p o w e r
to h i m to restrict libels, to desert diets, and to crave j u d g m e n t as he shall
see cause, and generally to do everything necessary in the premises that I
could d o m y s e l f i f present".
T h e consequence of this is that an Advocate Depute may, among other things,
accept reduced pleas or drop charges or even w i t h d r a w w h o l e indictments w i t h o u t
reference to the L o r d Advocate. Some police officers seem surprisingly ignorant
of the extent of the discretion w h i c h the L o r d Advocate's commission confers on
an Advocate Depute. The L a w Officers and the Advocates Depute are referred
to collectively as " C r o w n Counsel".
2. 5 The C r o w n A g e n t and the other members of the Procurator Fiscal Service
are public servants. C r o w n Counsel are served at the C r o w n Office by the C r o w n
A g e n t , the D e p u t y C r o w n A g e n t , and other staff, o f w h o m w e w o u l d particularly
mention the staff o f the H i g h C o u r t U n i t and the Fraud U n i t . Outside C r o w n
Office, there is a Regional Procurator Fiscal in each of the six Sheriffdoms of
Scotland. In addition there is a Procurator Fiscal appointed to each Sheriff C o u r t
District w i t h i n the region. Procurators Fiscal function as the L o r d Advocate's local
representatives.
2. 6 W h i l e one of the m a i n functions of the police is to investigate crime, their
investigations are subject to advice and instructions f r o m the C r o w n . T h e position
of the police in relation to the C r o w n is to some extent regulated by statute, in
particular by section 17 of the Police (Scotland) A c t 1967, w h i c h provides for the
m a k i n g of reports by the police to the appropriate prosecutor, and by section 9
of the C r i m i n a l Procedure (Scotland) A c t 1975, w h i c h provides for the issuing
by the L o r d Advocate of instructions to a C h i e f Constable w i t h regard to the
reporting, for consideration o f the question o f prosecution, o f offences alleged
to have been c o m m i t t e d w i t h i n the area of such C h i e f Constable, and imposes
the d u t y on a C h i e f Constable to w h o m any such instruction is issued to secure
compliance therewith. B u t the office of L o r d Advocate has existed since l o n g
before the creation of any police force, and his functions and responsibilities
have not been diminished by the availability of the police to conduct criminal
investigations. T h e fundamental principle is that he has the r i g h t to investigate
any alleged crime at any t i m e . The position is w e l l stated in the O p i n i o n of L o r d
Justice C l e r k - T h o m s o n in Smith v HMA 1952JC 66 at p p . 71-72:
"When a crime is c o m m i t t e d it is the responsibility of the Procurator-fiscal
to investigate i t . In actual practice m u c h of the preliminary investigation is
nowadays, especially in the larger centres of population w i t h h i g h l y
organised police forces, increasingly conducted by the police under the
general supervision of the Fiscal. This is due to the remarkable development
in recent years of the efficiency of the criminal investigation departments
of the police forces, especially on the technical side of crime detection.
H o w e v e r , the d u t y of the police is s i m p l y one of investigation under the
supervision of the Procurator-fiscal and the results of the investigation are
communicated to the Procurator-fiscal as the inquiries progress. It is for the
C r o w n Office and n o t for the police to decide whether the results of the
investigation j u s t i f y prosecution. The t w o functions are quite distinct. In
carrying o u t their initial investigation the police perform a public d u t y . T h e i r
investigation is entirely private and no one else is entitled to take part in i t .
As the police have a m o n o p o l y , t w o results f o l l o w . First, the manner in
w h i c h they are allowed to carry out their investigation is regulated by

10

THE LORD A D V O C A T E ' S INQUIRY

certain rules. Second, as they are the sole investigators, and no more than
investigators, it is their d u t y to p u t before the Procurator-fiscal everything
w h i c h m a y be relevant and material to the issue of whether the suspected
party is innocent or g u i l t y . We repeat, it is not for the police to decide w h a t
is relevant and material b u t to give all the information w h i c h m a y be relevant
and material.
Clearly in reporting the results of their investigation, the police must exercise
a power of selection. It w o u l d be absurd to suggest that all their results should
be submitted. B u t a cautious officer w i l l remember that he is not the j u d g e
o f w h a t is relevant and material and w i l l tend to err o n the safe side. I f he
is i n doubt, he should consult the Procurator-fiscal. H e w i l l also remember
that, as he and he alone has the o p p o r t u n i t y of the initial investigation in
the public interest, he must p u t the result of his investigations fairly before
the Fiscal in order that the C r o w n m a y have a fair basis on w h i c h to decide
whether or not to prosecute.
On the basis of the information provided by the police the C r o w n prepare
the precognition and carry out any necessary further investigation to enable
t h e m to decide whether to prosecute. If it is decided to prosecute, an indictment is prepared. "
2. 7 V e r y often the police w i l l have completed their investigation o f the crime
before the C r o w n becomes i n v o l v e d . One of the more senior officers w h o has
been involved i n the investigation, referred to as the Reporting Officer, w i l l be
allocated the task of reporting to the Procurator Fiscal. For that purpose he prepares
a report to the Procurator Fiscal summarising the circumstances. In the case of
serious crime the Procurator Fiscal w i l l carefully consider the available evidence
and i f he considers that proceedings are appropriate w i l l b r i n g the accused before
the Sheriff on petition. Thereafter the police w i l l be required to submit witness
statements to the Procurator Fiscal and may also be required to carry o u t further
investigations. T h e Procurator Fiscal w i l l subsequently carry o u t his o w n investigation by t a k i n g precognitions f r o m the more important of these witnesses and
other witnesses identified in the course of precognition. He m a y of course treat
witness statements taken by the police as adequate w i t h o u t precognition, particularly in the case of signed statements by police witnesses. He m a y again at that
stage direct that further investigations be carried out by the police. W h e n the
process o f precognition is complete the Procurator Fiscal w i l l submit the precognitions together w i t h his o w n s u m m a r y and assessment of the evidence, and his
conclusions and recommendations, to C r o w n Office.
2. 8 These papers w i l l be seen i n the first place b y an Advocate Depute. I t is
impossible t o predict i n advance w h i c h Advocate Depute w i l l see the papers
because all Advocates Depute w h o are not engaged in court attend each m o r n i n g
for the purpose of m a r k i n g papers and take the papers in each case at r a n d o m f r o m
among all the papers w h i c h have reached C r o w n Office that day. A n y papers not
so marked are marked later that day by the d u t y Advocate Depute, w h o attends
for d u t y according to a w e e k l y rota w h i c h frequently changes. T h e Advocate
Depute w h o marks the papers m a y instruct further investigation before m a k i n g
a decision, b u t otherwise w i l l decide whether o r not there should be a prosecution,
w h i c h person or persons should be prosecuted, and on w h a t charge or charges
they should be prosecuted. The Advocate Depute w i l l also decide i n w h i c h court
the prosecution should be brought, b u t for present purposes we shall assume that
the decision is t o prosecute i n the H i g h C o u r t . T h e Advocate Depute w i l l give
a w r i t t e n instruction t o the H i g h C o u r t U n i t . T h a t U n i t w i l l thereafter consider
the case in detail and prepare a draft indictment setting out the proposed charges
and lists o f productions and witnesses. The draft indictment w i l l thereafter be
forwarded to the Procurator Fiscal for revisal. F o l l o w i n g revisal the H i g h C o u r t
U n i t w i l l prepare the final indictment and allocate the case t o a sitting o f the H i g h
C o u r t before the final indictment is signed by an Advocate Depute and served
on the accused. In cases where the accused has been in custody since his first
appearance on petition all of this requires to be done w i t h i n 80 days f r o m the date
o f full c o m m i t t a l , so that the accused can be b r o u g h t t o trial w i t h i n 110 days. I f

THE JUDICIARY, THE C R O W N A N D THE POLICE

11

the accused has been allowed bail he must be brought to trial w i t h i n one year after
his first appearance on petition.
2. 9 One of the Advocates Depute is appointed by the L o r d Advocate to be H o m e
Advocate Depute and has the responsibility of co-ordinating the appearances of
Advocates Depute at various sittings of the H i g h C o u r t throughout the country.
V e r y often it is not possible to predict u n t i l near the time of the sitting w h i c h
Advocate Depute w i l l be free t o prosecute the cases set d o w n for a particular
sitting. M o r e o v e r , sometimes there are n o t enough of the regular Advocates
Depute available to prosecute at all the sittings, in w h i c h event the C r o w n A g e n t
w i l l engage a suitably experienced practising Advocate t o serve as an ad hoc
Advocate Depute for the duration of a particular sitting. Incidental instructions,
for example instructions excusing witnesses f r o m attendance, w h i c h require to
be given in the period p r i o r to a trial m a y be given by any Advocate Depute w h o
happens to be available, and not necessarily the Advocate Depute w h o is to
undertake the prosecution. The papers for the cases w h i c h are to be prosecuted
at any sitting are usually made available to the Advocate Depute w h o is to undertake the prosecution o n l y a relatively short t i m e , at most about ten days, before
the start o f the sitting. That w i l l be his o r her first o p p o r t u n i t y to f o r m an
impression of the strengths and weaknesses of each case. Even after a sitting has
started, if there is more than one Judge sitting, cases m a y be switched f r o m one
court to another at short notice.
2. 10 A f t e r an accused has appeared o n petition he w i l l n o r m a l l y have obtained
the services of a solicitor w i t h the benefit of legal aid. A f t e r service of the indictment
w i t h lists o f productions and witnesses the solicitor w i l l arrange for precognitions
to be taken f r o m at least the more important witnesses. Sometimes the C r o w n
w i l l have made a witness list available t o the accused's solicitor at an earlier stage,
so that he or she can take precognitions before service of the indictment. The
solicitor w i l l take steps to instruct counsel to appear o n behalf o f the accused. Once
the precognitions are available and counsel has had an o p p o r t u n i t y to consider
them there w i l l be a consultation between the accused and his counsel and solicitors,
at w h i c h the accused can give instructions as to the position w h i c h he proposes
to adopt in relation to the charges in l i g h t of the evidence disclosed by the precognitions. As a result, in the period immediately before the t r i a l , counsel for the accused
is often instructed either to tender a plea of g u i l t y to the charges in the indictment
or, more often, to attempt to negotiate w i t h the Advocate Depute a plea or pleas
w h i c h w i l l be acceptable to the C r o w n .
2. 11 In assessing the strengths and weaknesses of a case C r o w n Counsel are able
to use their experience in deciding on the impression w h i c h any evidence is likely
to make on a j u r y . A b o v e all they are in a position, by v i r t u e of the commissions
they h o l d , to take account of the public interest in deciding h o w best to proceed.
In this respect their position is entirely different f r o m that of the police. In deciding
whether or not to accept a plea proposed by counsel for the accused an Advocate
Depute m a y speak to the Reporting Officer w i t h a v i e w to being satisfied on any
matters where the v i e w of a police officer w o u l d be of assistance. B u t the decision
whether or n o t to proceed on any particular charge is taken by the Advocate
Depute o n his or her responsibility alone. The Advocate Depute w i l l often seek
the advice of the Procurator Fiscal or his representative w h o has prepared the case
for t r i a l , b u t again any decision is the responsibility of the Advocate Depute alone.
Once a decision has been taken i t w i l l be reflected i n the appropriate formal
procedure in court. As we have already stated, the Judge has no part to play in
the t a k i n g of any such decision.
2. 12 W h i l e we have described w h a t n o r m a l l y happens, there are m a n y cases in
w h i c h other steps are taken. Where a v e r y serious crime, particularly a murder,
has been c o m m i t t e d , the Procurator Fiscal w i l l be involved f r o m the earliest stages
o f the investigation. The police w i l l also seek the assistance and direction o f the
Procurator Fiscal i n m a n y other cases o f difficulty, c o m p l e x i t y o r sensitivity.
The Procurator Fiscal m a y report to C r o w n Office at any stage, either for the
information o f C r o w n Counsel o r w i t h a v i e w t o obtaining C r o w n Counsel's
instructions. An Advocate Depute m a y decide to refer a particular p o i n t to a L a w
Officer for a decision w h i c h is then made the subject of an instruction by C r o w n

12

THE

LORD

ADVOCATE'S

INQUIRY

Counsel. Special procedures are f o l l o w e d in murder and rape cases, w h i c h we
need n o t explain further here. A p a r t f r o m w r i t t e n reports and instructions, there
m a y be meetings at any stage between the Procurator Fiscal and an Advocate
Depute, between an Advocate Depute and a L a w Officer, or sometimes between
all three of t h e m . Decisions taken at these meetings are sometimes, b u t n o t always,
reflected i n w r i t t e n instructions. A s w i l l be seen, matters o f great sensitivity m a y
be discussed at such meetings w i t h o u t any w r i t t e n instruction being given.
2. 13 T h e C r o w n Office Fraud U n i t is responsible for the investigation and
preparation, i n co-operation w i t h the police and other agencies, o f cases o f serious
and complex fraud, in particular where the crimes have been c o m m i t t e d in areas
served by smaller Procurator Fiscal offices. In appropriate cases, officers are
nominated by the L o r d Advocate to exercise special powers under section 51 of
the C r i m i n a l Justice (Scotland) A c t 1987. This section provides that where it
appears to the L o r d Advocate that a suspected offence m a y involve serious or
complex fraud, and that, for the purpose of investigating the affairs or any aspect
of the affairs of any person, there is g o o d reason to do so, he m a y give a direction
n o m i n a t i n g any person (other than a constable), referred to as a "nominated
officer", to exercise the powers and functions conferred by sections 52 to 54.
Section 52, in particular, as subsequently amended, confers w i d e powers of investigation on a nominated officer.
2. 14 I t w i l l be understood f r o m the foregoing discussion that i t is possible for
an allegation that a crime has been c o m m i t t e d to be b r o u g h t to the notice of
the C r o w n and for all subsequent investigation and prosecution decisions to be
undertaken b y the C r o w n w i t h n o , o r o n l y incidental, involvement o f the police.
O u r investigation falls i n t o this category.
2. 15 It follows f r o m w h a t we have said that, even t h o u g h the police m a y n o t
have been involved in the investigation, and in any event are n o t involved at a
stage w h e n prosecution decisions are taken, such decisions cannot be taken w i t h o u t
the knowledge of at least one Advocate Depute, one member of the permanent
staff of the C r o w n Office, and one Procurator Fiscal. M o r e o v e r it is impossible
t o predict w i t h confidence w h i c h individuals o f these descriptions w i l l be involved
i n the taking o f any particular decision. Thus i f someone i n a position o f authority
wished to procure the t a k i n g of a decision in a w a y w h i c h suited his o w n ulterior
motives otherwise than in accordance w i t h l a w , he w o u l d in effect have to be able
to induce the concurrence of all the Advocates Depute, all the permanent staff in
the H i g h C o u r t U n i t o f the C r o w n Office, and every Procurator Fiscal w h o had
been concerned w i t h reporting the case t o C r o w n Office. The functions and
interests of these groups of persons are n o t identical, except that they are all
concerned w i t h the investigation and prosecution of crime under the rule of l a w ,
and we have been unable to postulate h o w , even in theory, one individual could
induce the concurrence of all of t h e m w i t h such a decision. We shall of course
relate this observation to the particular cases mentioned in the O r r Report w h e n
we come to discuss t h e m .

HOMOSEXUALITY AND THE CRIMINAL L A W

13

3. HOMOSEXUALITY A N D THE
CRIMINAL LAW

3. 1 A l t h o u g h it has been no part of our I n q u i r y to investigate homosexual
behaviour as such, we have incidentally learned a great deal about a w i d e range
of homosexual behaviour. It varies f r o m stable and faithful relationships, openly
conducted, at one extreme, to more or less clandestine promiscuity and prostitut i o n at the other. A n y o n e w h o has read the indictment in the case of HMA v
Neil Bruce Duncan and Others (referred to in the O r r Report as " O P E R A T I O N
P L A N E T — T H E R E N T B O Y C A S E " ) w i l l gain an impression o f some types
of homosexual behaviour. One matter w h i c h we should perhaps mention here
is the use of some licensed premises as places where homosexuals meet and, if
they are so inclined, arrange for subsequent sexual activity to take place. Such
places, c o m m o n l y called "gay bars", include, at least by repute, licensed premises
in E d i n b u r g h called "The Laughing D u c k " and "The Blue Oyster".
3. 2 W h i l s t there seems to be no type of homosexual behaviour w h i c h , a l l o w i n g
for anatomical differences, cannot be paralleled in heterosexual behaviour, the
criminal l a w relating to homosexual behaviour differs f r o m that relating to heterosexual behaviour. Prosecution of unlawful homosexual conduct in Scotland can
be instituted under section 80 of the C r i m i n a l Justice (Scotland) A c t 1980. This
section provides that a homosexual act in private is not to be an offence provided
that the parties consent thereto and have attained the age of 21 years. O t h e r than
in these circumstances, it is an offence to c o m m i t or to be party to the commission
of, or to procure or attempt to procure the commission of a homosexual act
otherwise than in private or w i t h o u t the consent of b o t h parties to the act, or w i t h
a person under the age of 21 years. An act w h i c h w o u l d otherwise be treated for
the purposes of the 1980 A c t as being done in private is not to be so treated if done
w h e n more than t w o persons take part or are present, or in a lavatory to w h i c h
the public have, or are permitted to have, access whether on payment or otherwise.
The c o m m o n l a w also provides a range of crimes w h i c h can be used to prosecute
acts of gross indecency of b o t h a heterosexual and homosexual nature. These
crimes include the offence of breach of the peace, shameless indecency and l e w d
and libidinous practices.
3. 3 W e are aware that, as w e shall discuss more fully w h e n w e come to that case,
counsel for some of the accused in the case of Duncan and Others proposed to argue
that apart f r o m the provisions of the 1980 A c t and apart f r o m the c o m m o n l a w
crime of sodomy no crime is c o m m i t t e d w h e n males over the age of 16 years
engage in homosexual activity. T h a t is not an argument w h i c h has been tested
in court and we prefer to proceed on the basis that the l a w is as stated in the
preceding paragraph.
3. 4 In the case of Duncan and Others most of the charges proceeded on the basis
of c o m m o n law, although some were based on the 1980 A c t . In the period after
that case was disposed of in January 1991 there was some public concern about
the appropriateness of basing charges on the c o m m o n l a w rather than the statute.
In particular, Derek O g g , Advocate, w h o had acted as counsel for one of the
accused, made comments to that effect w h i c h were quoted in an article published
in "The Glasgow H e r a l d " on 20 February 1991. At about the end of M a r c h 1991
Elish M c P h i l o m y , Senior Legal Assistant at the C r o w n Office, was asked to
prepare a background paper on the prosecution of consensual homosexual offences. Her paper concluded that if a p o l i c y direction was considered to be appropriate and necessary w i t h regard to homosexual offences, some consideration m i g h t
be given to the f o l l o w i n g aspects:
(1) The m i n i m u m age for homosexual relations.

14

THE LORD A D V O C A T E ' S INQUIRY

(2) T h e need f o r preventive prosecution directed at the male trade in p r o s t i t u t i o n w i t h use o f section 4 6 o f the C i v i c Government (Scotland) A c t 1982.
(3) T h e restriction o f prosecution o f the client o r older m a n t o those
situations demonstrating in particular a clear breach of trust, or the
o v e r c o m i n g o f w i l l b y drugs, threats etc.
(4) T h e treatment of homosexual and heterosexual acts of indecency on an
equivalent basis.
(5) T h e use of statutory provisions rather than c o m m o n l a w charges
wherever possible.
3. 5 T h i s background paper was discussed at a meeting held on 29 A p r i l 1991
attended b y , a m o n g others, L o r d Fraser, the L o r d A d v o c a t e , A l a n Rodger, the
Solicitor General, Duncan L o w e , the C r o w n A g e n t , and A l f r e d Vannet, the
D e p u t y C r o w n A g e n t . I n the course o f the discussion the L o r d Advocate suggested
the w r i t i n g o f a letter t o the Association o f C h i e f Police Officers o f Scotland. I n
due course a letter dated 1 J u l y 1991 was w r i t t e n by the C r o w n A g e n t to Sir
W i l l i a m Sutherland, C h i e f Constable of L o t h i a n and Borders Police, as H o n o r a r y
Secretary of A C P O S . This letter stated that the L o r d Advocate wished to ensure
that prosecution p o l i c y in relation to homosexual offences was based on a careful
analysis of where the public interest lay and that there was a clear understanding
o f the type o f conduct r e q u i r i n g the i m p o s i t i o n o f a c r i m i n a l sanction. I t continued:
" I t w i l l clearly be necessary f o r police r e p o r t i n g practice t o reflect that p o l i c y
and C h i e f Constables w i l l no d o u b t w i s h to consider a consistent enforcement
approach. "
It concluded by stating that the L o r d Advocate was currently reconsidering
elements of prosecution p o l i c y in this area.
" I t is of importance that this exercise takes i n t o account any special features
of police p o l i c y and practice w h i c h y o u regard as pertinent to this issue and
the L o r d Advocate w o u l d be pleased to consider the v i e w s of the Association
before finalising his instructions in the matter. "
Sir W i l l i a m replied by letter dated 30 A u g u s t 1991 referring to guidelines w h i c h
had been issued by a previous L o r d Advocate on 1 February 1981 and discouraging
any change in existing prosecution practice. The letter also suggested that a "careful
analysis of where the public interest lies" was a matter for Parliament.
3. 6 Consideration was given to the views of A C P O S as w e l l as those of other
persons w h o had communicated w i t h the L o r d Advocate. There was also press
coverage of the matter. In due course C r o w n Office Circular N o . 2025 dated 28
N o v e m b e r 1991 was issued to Procurators Fiscal. T h i s circular stated that the
L o r d Advocate considered that the public interest was n o t served by r o u t i n e l y
prosecuting all persons w h o participated in those consentual homosexual acts
w h i c h remain u n l a w f u l . It then set o u t guidelines w h i c h included the f o l l o w i n g :
"Where b o t h of the participants are over 16 years b u t one or b o t h are under
21 years and the act has taken place in private and where there are no
circumstances p o i n t i n g t o exploitation, c o r r u p t i o n , o r breach o f trust,
prosecution w o u l d n o t be appropriate. "
3. 7 T h e terms of the circular became public and extensive p u b l i c i t y and correspondence w i t h the L o r d Advocate ensued. The L o r d Advocate apparently t o o k
the v i e w that there was public misapprehension about the significance of the
r e v i e w w h i c h he had undertaken, w h i c h was fuelled by speculation that he intended
to effect a unilateral change in the l a w on the age of consent; that was not his
intention, as such a change in the l a w w o u l d be a matter for Parliament. T h e
circular was, however, reconsidered and on 20 December 1991 a n e w C r o w n
Office Circular N o . 2025/1 was issued to Procurators Fiscal. This circular made
reference to the c o n t i n u i n g review, and set out n e w , provisional directions by the
L o r d Advocate w h i c h replaced the directions contained in the previous circular.
These directions included:
" 1 . Where b o t h of the participants are over 18 years b u t one or b o t h are
under 21 years and the act has taken place in private and where there
are circumstances p o i n t i n g to exploitation, c o r r u p t i o n , or breach of
trust, prosecution w o u l d be appropriate. Where the Procurator Fiscal

HOMOSEXUALITY A N D THE CRIMINAL L A W

15

receives a report i n v o l v i n g individuals in this age group and none of
these circumstances is present, b u t the Procurator Fiscal considers there
are other circumstances w h i c h w o u l d j u s t i f y proceedings, a report
should be made to C r o w n Office for consideration by C r o w n Counsel.
2. Where b o t h of the participants are over 16 years b u t one or b o t h are
under 18 years and the act appears to have been consensual and in
private, the Procurator Fiscal should report the case to C r o w n Office for
consideration b y C r o w n Counsel.
4. Where it appears that one of the parties has engaged in homosexual acts
before the occasion under consideration and has acted as a prostitute,
there is little justification in pursuing the client of such an i n d i v i d u a l ,
w h i l e i g n o r i n g his activity as a prostitute.... "
We understand that the review continues, and meantime the circular of 20
December 1991 sets out the L o r d Advocate's current directions.

16

THE LORD A D V O C A T E ' S INQUIRY

4. HOMOSEXUALITY A N D THE
H O L D I N G OF J U D I C I A L OFFICE

4. 1 The L o r d President of the C o u r t of Session and L o r d Justice General, as the
senior Judge, is obliged to concern himself, where necessary, w i t h the private lives
as w e l l as the j u d i c i a l conduct of the other Judges. He is accordingly under the
necessity of f o r m i n g and, where appropriate, g i v i n g expression to views about
such matters as the sexual behaviour of Judges. L o r d H o p e , the current holder
of these offices, has k i n d l y p u t us in a position to summarise w h a t we understand
w o u l d be the v i e w to be taken of homosexual behaviour by a Judge. This is the
v i e w w h i c h he t o o k w h e n the p o i n t originally came to his attention and has
remained his v i e w throughout.
4. 2 Conduct w h i c h constitutes a criminal offence w o u l d necessarily be i n c o m patible w i t h judicial office. Otherwise the question is a v e r y difficult one, w h i c h
must depend u p o n the circumstances of each case. Homosexuality per se w o u l d
n o t be a bar to j u d i c i a l office if it t o o k the f o r m of a stable relationship w h i c h was
not kept secret and w h i c h w o u l d n o t give rise to suspicion that the person in
question was at risk of being blackmailed or to the actual o p p o r t u n i t y of blackmail.
The p o i n t m a y be made that heterosexual conduct m a y give rise to the same risks,
and it is n o t thought that any material distinction need be d r a w n for this purpose
between homosexual and heterosexual conduct. To the extent that homosexual
behaviour may tend to be conducted clandestinely and promiscuously, any Judge
w h o engaged in such behaviour m i g h t engender the suspicion that he w o u l d not
be able to exercise a sound j u d g m e n t , and m i g h t expose himself to the above risks.
In addition there is the risk that t h r o u g h his activities the Judge m a y have come
to k n o w something about an accused person or a witness w h o appears in his court
w i t h o u t w i s h i n g to disclose that he has done so because of the circumstances in
w h i c h he has come to k n o w i t . There is also the risk that he, and consequently
his judicial office, m a y become the subject of ridicule.
4. 3 In summary, behaviour w h i c h is carried on in secret, recklessly or promiscuously m a y be regarded as g i v i n g rise to risks. These risks are in particular the risk
o f blackmail, the risk o f a lack o f objectivity i n the performance o f judicial functions
and the risk of b r i n g i n g the Judiciary into disrepute.

THE RESIGNATION OF LORD DERVAIRD

5. T H E R E S I G N A T I O N OF L O R D
DERVAIRD

5. 1 A f t e r a career at the Bar, John M u r r a y QC was elevated to the Bench of the
C o u r t o f Session i n 1988 w i t h the j u d i c i a l title o f L o r d D e r v a i r d . H i s resignation
was accepted on 22 December 1989. Since then he has becarne Dickson M i n t o
Professor o f C o m p a n y and Commercial L a w a t the U n i v e r s i t y o f E d i n b u r g h . His
resignation was unprecedented, at least in recent Scottish legal history. We t h i n k
it necessary to give a b r i e f account of the circumstances of his resignation. For
that purpose we have obtained evidence f r o m L o r d Hope, M a l c o l m R i f k i n d QC
M P , Secretary of State for Defence, and f o r m e r l y Secretary of State for Scotland,
L o r d Fraser of Carmyllie Q C , M i n i s t e r of State at the Scottish Office, and f o r m e r l y
L o r d Advocate, the present L o r d Advocate, w h o was then Solicitor General, and
Professor M u r r a y himself.
5. 2 By the week beginning M o n d a y 18 December 1989 there were a number of
rumours in circulation relating to alleged homosexual activity by L o r d D e r v a i r d .
Subsequent events and subsequent rumours have caused recollections to v a r y and
it is n o t n o w possible to speak precisely about the rumours w h i c h were current
at the time. We believe, however, that there were at least three classes of r u m o u r ,
o f w h i c h w e need mention o n l y t w o here. One r u m o u r derived f r o m talk about
the contents of a Statement by C o l i n Tucker, w h i c h we discuss f u l l y in Part 6
of this Report. The other, quite separate, r u m o u r was to the effect that a newspaper
was about to p r i n t a story about L o r d Dervaird, alleging, we believe, the supposed
use of certain premises for certain purposes. This latter r u m o u r was quite untrue.
It was, however, reported to the L o r d President. On Wednesday 20 December
the L o r d President asked L o r d Dervaird to speak to h i m in Parliament House and
informed h i m of this r u m o u r . L o r d Dervaird denied its t r u t h , b u t w e n t on to say
that it w o u l d not be untrue to say that he had had homosexual relations. He then
w e n t on to i n f o r m the L o r d President of certain matters. He has t o l d us that in
particular he informed the L o r d President that he had been indiscreet in that he
had, d u r i n g the period since his elevation to the Bench, carried on a homosexual
relationship w i t h a certain person, secretly b u t in such a w a y that they had been
seen together in certain places in L o n d o n . We do not t h i n k it necessary to elaborate
on this or on any other matter w h i c h he admitted to the L o r d President. There
were further meetings between the L o r d President and L o r d Dervaird on the
evening of the same day and on Thursday 21 December, at the last of w h i c h L o r d
Dervaird tendered his resignation.
5. 3 The L o r d President informed the Secretary of State for Scotland of the
position and a meeting was arranged for the m o r n i n g of Friday 22 December,
w h i c h was held in St A n d r e w ' s House. The meeting was attended by the L o r d
President, the Secretary of State, the L o r d Advocate, and the Solicitor General.
At the meeting there was discussion of the behaviour w h i c h L o r d Dervaird had
admitted to the L o r d President. On the basis of those admissions it was concluded
that his behaviour was incompatible w i t h his continued tenure of j u d i c i a l office
and that accordingly his resignation should be accepted. Steps were taken for his
resignation to be announced later that day. This was d u l y done, and there was
extensive publicity, particularly on Saturday 23 December. No reason for the
resignation was announced, in order n o t to inflict further h u m i l i a t i o n on L o r d
Dervaird or distress on his family.
5. 4 We w o u l d not w i s h it to be t h o u g h t that L o r d Dervaird's admissions to the
L o r d President constituted admissions of criminal conduct, or that the conduct
w h i c h he admitted fell into all the categories w h i c h we have mentioned above.
He w o u l d assert, and we have no reason to dispute, that his conduct d i d not expose
h i m to the risk of blackmail. We have no reason to believe, nor w o u l d we w i s h

18

THE LORD A D V O C A T E ' S INQUIRY

it to be thought, that L o r d Dervaird's official conduct as a Judge had in any w a y
been affected by the matters w h i c h led to his resignation. The features of secrecy
and indiscretion w h i c h he has mentioned to us are w h a t led to his tendering his
resignation.

C O L I N T U C K E R ' S S T A T E M E N T OR

"LIST"

19

6. C O L I N TUCKER'S STATEMENT OR
"LIST"

6. 1 A r t h u r C o l i n Tucker (usually called C o l i n Tucker) stood trial in the H i g h
C o u r t in E d i n b u r g h in December 1989 on charges of embezzling m o n e y f r o m
clients of the f i r m of Burnett Walker W S . C o l i n Tucker was a solicitor and had
been for some time a j u n i o r partner to Ian Walker, w h o had a longstanding
connection w i t h that firm. Ian W a l k e r himself c o m m i t t e d suicide on 4 June
1988 d u r i n g the course of an investigation into his firm's affairs. We discuss this
investigation and C o l i n Tucker's trial in part 15 of this Report. It is sufficient for
present purposes to indicate that C o l i n Tucker d i d n o t dispute that he had been
involved i n the t a k i n g o f money f r o m the accounts o f clients o f Burnett W a l k e r ,
and at his trial the evidence to that effect was n o t challenged. H i s defence, w h i c h
o n l y emerged in the course of his o w n evidence, was that he had been involved
in the t a k i n g of the money at the behest of Ian Walker w h o had a h o l d over h i m
because he ( C o l i n Tucker) was a homosexual.
6. 2 In the period p r i o r to his trial C o l i n Tucker instructed as his solicitor D a v i d
B l a i r - W i l s o n w h o in t u r n instructed as counsel Robert Henderson QC and John
W a t t , Advocate ( n o w Q C ) . There were a number of consultations at w h i c h
Tucker discussed the f o r t h c o m i n g trial w i t h his counsel and solicitor. At one
such consultation, in about A u g u s t or September 1989, Robert Henderson asked
Tucker to w r i t e a "potted life story" covering the period w h e n he was a partner
in Burnett Walker, so that he could "get a full picture" of Tucker's life. Tucker
proceeded to w r i t e a document w h i c h he headed "Statement by A C T " (ie his
initials). Tucker has insisted to us that it was solely at Robert Henderson's request
that he w r o t e the Statement, and he w o u l d not otherwise have done so. It was
w r i t t e n on 16 leaves of lined A4 paper, w i t h holes punched at the side, taken f r o m
a block of such paper, of the k i n d used for students' notes. He w r o t e on b o t h sides
of the paper, so that the Statement extended to 32 pages.
6. 3 W i t h Tucker's permission, we have the original manuscript of this Statement
in our possession. The first h a l f of i t , more or less, deals w i t h the financial affairs
o f Burnett Walker w h i l e C o l i n Tucker was j u n i o r partner t o Ian W a l k e r , including
the transactions w h i c h gave rise to the embezzlement charges. T h e second half,
more or less, is taken up w i t h an account of the alleged homosexual behaviour
of b o t h Ian Walker and C o l i n T u c k e r . A c c o r d i n g to this account, Ian W a l k e r ,
although o u t w a r d l y a respectable married m a n , was a promiscuous homosexual
w h o had sexual relations w i t h a w i d e range of people. A c c o r d i n g to C o l i n Tucker's
o w n account of himself he also was a promiscuous homosexual w h o had sexual
relations w i t h a w i d e range of people. It is alleged that there was a sexual
relationship between Ian Walker and C o l i n Tucker, in w h i c h Walker was the
dominant partner. There are m a n y names in the Statement. In a sense it m i g h t
be called a list; b u t in the proper sense of that w o r d a list w o u l d not necessarily
contain more than names, w h i l e the Statement amounts more to a catalogue of
the alleged sexual exploits of W a l k e r and Tucker.
6.4 A p a r t f r o m Walker and Tucker there is o n l y one person whose name appears
in the Statement w h o m we t h i n k it necessary to identify. In one paragraph mention
is made of L o r d D e r v a i r d , w h o at the t i m e the Statement was w r i t t e n was of course
a C o u r t of Session Judge. He is referred to b o t h by his j u d i c i a l title and by the
name, John M u r r a y Q C , by w h i c h he was previously k n o w n . There is an allegation
of homosexual behaviour by h i m , apparently d u r i n g the period p r i o r to his
elevation to the Bench, w h i c h we need not repeat here. Suffice it to say that this
was an allegation w h i c h w o u l d have caused some consternation had it gained any
currency p r i o r to L o r d Dervaird's resignation, and indeed d i d so. As we have
already stated, however, we do not believe that this allegation played any part

20

THE LORD ADVOCATE'S INQUIRY

in the events w h i c h culminated in L o r d Dervaird's resignation. We should make
it clear that w h a t we have recorded here is no more than an allegation w h i c h m a y
be read in Tucker's Statement. T h e other evidence we have been given w o u l d
serve to date any event to w h i c h the allegation relates as having happened at a
time several years before L o r d Dervaird's elevation to the Bench.
6.5 A p a r t f r o m the allegation relating to L o r d Dervaird there is no allegation
in the Statement, directly or by implication, of homosexual behaviour by any
prominent member of the Scottish legal establishment. In particular there is no
such allegation in the case of any Judge of the C o u r t of Session, any Sheriff
Principal, any full-time Sheriff, any L a w Officer, any Advocate Depute, any
member of the permanent staff of the C r o w n Office, any Regional Procurator
Fiscal or any other senior member of the Fiscal Service. In short, there is n o t h i n g
i n the Statement w h i c h , i f published, w o u l d " b l o w the l i d o f f the Scottish legal
establishment, as we have heard it p u t .
6.6 W h e n C o l i n Tucker had w r i t t e n the Statement he posted it to D a v i d BlairW i l s o n w h o immediately passed it to Robert Henderson. Robert Henderson read
it and marked various passages in red i n k . The heaviest markings are on the
paragraph containing L o r d Dervaird's name, where the name is underlined and
marked w i t h red crosses and Robert Henderson has w r i t t e n " M u r r a y " in the
m a r g i n . There is no obvious consistency or purpose to these markings, because
passages such as this were of no apparent relevance to Tucker's defence. Robert
Henderson b r o u g h t the Statement w i t h h i m to the next consultation. There was
little discussion of i t , although he remarked to Tucker on the "interesting life"
Tucker had led. There was discussion about having the Statement typed for use
by Counsel at the f o r t h c o m i n g t r i a l . D a v i d Blair-Wilson was u n w i l l i n g to have
it typed in his office, or even to take possession of the Statement, because he
was concerned about the security risks w h i c h were posed by the nature of the
information in the Statement. John W a t t agreed to type the Statement on his
computer, w h i c h has word-processing facilities, and accordingly t o o k possession
of the manuscript Statement. Thereafter he retained possession of the manuscript
Statement u n t i l d u r i n g the course of o u r I n q u i r y , w h e n it came i n t o our possession.
6.7 John W a t t used a printer attached to his computer to make copies of the typed
version of the Statement for the use of Robert Henderson and himself. He is under
the impression, although he w o u l d n o t insist on i t , that he also made a copy for
D a v i d Blair-Wilson; for his part D a v i d B l a i r - W i l s o n insists that he has never
had such a copy, for the same security reasons. The typed version was headed
"Statement by A c t " , in place of Tucker's initials. This apparent f o r m a l i t y led to
confusion in the minds of some of those w h o subsequently read i t . W h e n p r i n t i n g
copies John W a t t used A4 sized paper, pale cream in colour, w h i c h is made available
in the Advocates' L i b r a r y for the use of members of the Faculty of Advocates.
At one p o i n t Robert Henderson described his copy as being typed on y e l l o w paper,
b u t w h e n we showed h i m a copy w h i c h John W a t t had printed for us, using the
pale cream paper, he agreed that that looked like the copy w h i c h was originally
given to h i m . We do not have information w h i c h w o u l d allow an exact time-scale
to be established, b u t we assume that the typed copies were available n o t l o n g
after the consultation at w h i c h the manuscript was discussed, and in any event
before the trial began. At the trial Henderson had some of his papers, including
his typed copy of the Statement, in a ring-binder, and consequently his typed copy
had holes punched in its m a r g i n .
6.8 It should be stated at this p o i n t that counsel w h o receive information f r o m
their clients o w e a d u t y of confidentiality to their clients in respect of that inform a t i o n . T h e y m a y not properly disclose such information to or discuss it w i t h
any person other than the instructing solicitor and other counsel instructed for
the same client, except w i t h the permission of the client. It appears, however, that
on reading Tucker's Statement Robert Henderson experienced such consternation
that he was unable to keep to h i m s e l f w h a t he had read about L o r d D e r v a i r d . In
his first interview w i t h us he said that he had said something about this information
to "one or t w o " people. W h e n we pressed h i m , he said that one of these people
was Brian G i l l Q C , Keeper o f the Advocates' L i b r a r y , t o w h o m , according t o
Robert Henderson, he gave this information " i n the interests of the Faculty".

C O L I N T U C K E R ' S S T A T E M E N T OR "LIST"

21

6.9 The g i v i n g of confidential information to an office-bearer of the Faculty of
Advocates is regarded as proper if it is given in order to enable the counsel in
question to obtain guidance as to his o w n professional conduct. We can give an
example. On reading the Statement John W a t t was concerned about his professional position because he felt that he w o u l d be in difficulty in appearing as counsel
before L o r d Dervaird w h i l e he was in possession of information of this k i n d about
L o r d Dervaird's private life. He accordingly sought the guidance of the Dean of
the Faculty o f Advocates, A l a n Johnston Q C , and gave h i m acopy o f the Statement
to read. A l a n Johnston has confirmed to us that as a result he learned of the contents
of the Statement. We have no reason to suppose that John W a t t disclosed the
contents of the Statement to anyone else u n t i l v e r y recently, after the beginning
of our I n q u i r y . We conceive that it w o u l d not be proper to give such information
w i t h o u t the client's permission " i n the interests of the Faculty" or for any other
reason extraneous to the professional conduct of the client's case.
6.10 H o w e v e r that may be, Brian G i l l has no recollection of being given such
information by Robert Henderson. Indeed, he recalls having had a conversation
w i t h L o r d Dervaird shortly before his resignation. T h e y were speaking about
agricultural law and Brian G i l l had no i n k l i n g of rumours about L o r d Dervaird
and still less that there m i g h t be any reason to t h i n k that he m i g h t be about to
resign.
6.11 At a later interview Robert Henderson said that he may have t o l d a number
of people "sitting at the lunch table" about the existence of Tucker's Statement,
the inclusion of L o r d Dervaird's name in i t , and the fact that there were "other
names". He said to us: "There's clearly been a leak. I ' m prepared to take responsib i l i t y for i t . " He also t o l d us that he may have said to others that Tucker had
w r i t t e n o u t a Statement and there were a l o t of names. "I may w e l l have said to
my close chums 'I've g o t a r i g h t o l d pickle t r y i n g to keep this f r o m c o m i n g o u t ' . "
He said that he m i g h t have used the w o r d " l i s t " . We believe that this loose talk
is w h a t gave rise, p r i o r to Tucker's t r i a l , to rumours about the existence of a "list"
containing names other than that of L o r d D e r v a i r d . We w o u l d relate this to w h a t
Robert Henderson has said to us, and we believe to others, that Tucker's intention,
if he was convicted at his t r i a l , was to expose the persons named in the list. It is
not confirmed by Tucker, John W a t t or D a v i d Blair-Wilson that Tucker ever
expressed any such intention, and we cannot account for Robert Henderson's
having stated that it was so except by reference to Robert Henderson's o w n m i n d .
6.12 Tucker's Statement was n o t in fact of any great use to his counsel at his
t r i a l . In the ordinary course, after a trial has been completed, counsel for the
accused returns the papers to the instructing solicitor. The papers are, on a proper
v i e w , the property of the client, and the solicitor has possession of them or sends
them to counsel in his capacity as agent for the client. John W a t t appears to have
returned his papers to D a v i d B l a i r - W i l s o n . These w o u l d have been expected to
include his typed copy of Tucker's Statement, although D a v i d Blair-Wilson
cannot recall having received it and is unable to account for i t . John W a t t d i d ,
however, retain the manuscript of the Statement. It is unclear to us w h y he d i d
so, although we have no reason to suppose that he acted f r o m any improper
m o t i v e . Robert Henderson t o l d us that he believed that he himself had retained
possession of the manuscript, b u t had been unable to find it w h e n he looked for
it in his house quite recently. We do n o t understand w h y he should have entertained
such a belief, w h e n it is clear that he d i d not have possession of the manuscript
f r o m the time w h e n it was taken by John W a t t . Robert Henderson d i d , however,
retain his o w n typed copy of the Statement. In his instance, for reasons w h i c h
w i l l become apparent, w e are bound t o express more reservation about his motives
for d o i n g so.
6.13 In the weeks f o l l o w i n g Tucker's acquittal of the embezzlement charges and
L o r d Dervaird's resignation ( w h i c h events, as we have sought to explain, were
little more than coincidental), r u m o u r and speculation became rife about the
alleged homosexuality ofother Judges and the inclusion of other names in Tucker's
supposed " list". We discuss the alleged homosexuality of other Judges in a separate
part of this Report. As we have said, belief in the existence of the supposed "list"

22

THE LORD ADVOCATE'S INQUIRY

appears to have originated f r o m Robert Henderson's disclosure of information
in Tucker's Statement and the related loose talk.
6.14 In the period after his trial Tucker came under pressure f r o m at least t w o
newspapers to sell them his "story", w i t h particular reference to the " l i s t " . H i s
position, w h i c h we accept, has been consistent throughout, and this is that he
refuses to have any dealings w i t h the press. He insists that all the information that
he has to give about the alleged homosexual behaviour of any prominent lawyer
is contained in the Statement w h i c h he w r o t e at Robert Henderson's request for
use at his trial and not otherwise. At one interview Robert Henderson t o l d us that
Tucker was in possession of m u c h other information, w h i c h he had not included
in the Statement. This included information about C o u r t of Session Judges, in
particular one w h o m Robert Henderson named to us and in relation to w h o m
he claimed that Tucker was able to give "chapter and verse". Robert Henderson
even asserted that this latter Judge's name appeared in the manuscript of Tucker's
Statement, even if it d i d n o t appear in the typed version. The t w o versions are
in fact identical, and the name does not appear in either.
6.15 We do not believe that Tucker was in possession of any such i n f o r m a t i o n .
On the contrary, Tucker, John W a t t and D a v i d Blair-Wilson do not support any
suggestion that Tucker had more information to give than was contained in his
Statement. W h e n rumours began to circulate indicating an apparent leak of the
information at Tucker's disposal, these rumours reached D a v i d B l a i r - W i l s o n .
There was an occasion w h e n he met Tucker at the airport on his arrival to attend
a consultation and taxed h i m w i t h an apparent lack of discretion w h i c h had led
to such rumours. T h e y have b o t h described to us a heated argument in the course
of w h i c h Tucker denied having given any information to anyone else. In the period
after Tucker's t r i a l , however, D a v i d Blair-Wilson himself was asked by a number
of persons about the supposed existence of Tucker's " l i s t " . W h i l e we have no
reason to believe that he made any positive statement about the existence of a list,
his denials, or refusal to make any comment, appear to have taken such a f o r m
as to encourage in some people a belief in the existence of a list.
6.16 B o t h Tucker and D a v i d B l a i r - W i l s o n have described to us h o w , at a consultation after Tucker's trial in connection w i t h f o r t h c o m i n g disciplinary proceedings
against h i m as a solicitor, Robert Henderson showed a keen interest in other
information w h i c h Tucker m i g h t be able to give and also, w h i l e p u r p o r t i n g to
speak for "The Sun" newspaper, stated that that newspaper w o u l d be w i l l i n g to
pay Tucker "a six figure sum", ie at least £ 1 0 0 , 0 0 0 , for his "story". A c c o r d i n g
to t h e m Robert Henderson asked Tucker about t w o Judges, w h o m he named,
b u t o f each o f w h o m Tucker said: " I w o u l d n ' t k n o w h i m i f h e w a l k e d t h r o u g h
that door". L o r d M c C l u s k e y said to us that, according to w h a t Robert Henderson
t o l d h i m after Tucker's t r i a l , Tucker had sold his story to "The Sun" for £100,000
or £200,000 (he could n o t remember w h i c h sum), b u t "The Sun" was n o t allowed
to name names unless Tucker was struck o f f as a solicitor. Tucker was in fact
struck o f f on 3 October 1990, b u t no such story appeared in "The Sun" or any
other newspaper at that time. N o r , for that matter, d i d any such story appear
around the time o f his t r i a l , along w i t h G o r d o n M a y , i n M a y 1991.
6.17 We cannot avoid the conclusion that Robert Henderson has been one of
the main instigators and perpetuators of the belief that there was a document,
whether or n o t in the f o r m of a " l i s t " , containing information relating to persons
other than L o r d D e r v a i r d and, in particular, other Judges. Even after our I n q u i r y
began he made statements to journalists w h i c h d i d n o t h i n g to dispel such a belief.
O n the contrary, D a v i d Johnston, the E d i t o r o f N e w s and Current Affairs w i t h
Radio F o r t h , has t o l d us that in a conversation he had w i t h Robert Henderson
in the C a r l t o n H i g h l a n d H o t e l on about 17 September 1992, Robert Henderson
t o l d h i m "that i f Tucker's "list" ever d i d come out i t w o u l d r u i n a l o t o f careers/reputations, n o t o n l y in the legal establishment b u t in m a n y other circles". He also
said, according to Johnston, that he could not let it o u t of his possession because
to do so w o u l d be a total breach of his professional d u t y . In a conversation w i t h
A l a n Hutchison, C h i e f Reporter of "The Scotsman", and t w o other reporters,
on about 24 September 1992 in -. bar at the Waverley Station, at w h i c h Michael
Glen (see paragraph 11.3) was present, Robert Henderson said that he had a full

C O L I N T U C K E R ' S S T A T E M E N T OR "LIST*

23

file on his business dealings, w h i c h he kept at his home and also in a safe at
another location, containing information w h i c h w o u l d " r o c k the establishment",
information of a k i n d w h i c h w o u l d have the reporters "salivating all the w a y
to the telephone". We have of course pressed Robert Henderson about these
statements. At one interview he said that he was referring o n l y to the leaked O r r
Report, of w h i c h he had a copy in his briefcase at the t i m e , but at a subsequent
interview he explained the matter in a different w a y , w h i c h we n o w summarise.
6.18 W h e n certain aspects of Robert Henderson's financial affairs first came
under investigation, as we discuss in part 13 of this Report, he t o o k certain
precautions. A c c o r d i n g to h i m , he expected that the police w o u l d arrive w i t h a
search warrant to search his house for documents. He accordingly prepared a
photocopy of certain documents w h i c h he intended to hand to the police in such
an event, and he gave the principals in a manilla envelope, to Leeona D o r r i a n ,
Advocate, for safekeeping. She has been a friend as w e l l as a colleague of his for
m a n y years. She t o o k receipt of the envelope on 18 A u g u s t 1989, a date w h i c h
she w r o t e on it herself, and retained it in her possession continuously u n t i l , by
arrangement w i t h Robert Henderson, she exhibited the envelope and its contents
to us. Robert Henderson had no access to the envelope in the meantime. We looked
t h r o u g h the papers and are satisfied that they relate solely to his financial affairs.
There is no question of the envelope's containing a " l i s t " or any other document
relating to the alleged homosexual behaviour or any other aspect of the private
life of any person. We have no reason to suppose that anyone else holds papers
on behalf of Robert Henderson. In particular we are satisfied that one Elaine
Matthews, to w h o m we refer in part 7 of this Report, does n o t h o l d and never
has held any such papers. O u r conclusion must therefore be that Robert Henderson
has chosen to let it be believed that he is in possession of information of a k i n d
w h i c h he does not possess.
6.19 It is n o w appropriate to mention other actings of Robert Henderson in
relation to his typed copy of Tucker's Statement. As we have already stated, he
retained possession of it after the conclusion of Tucker's t r i a l . As it happens, the
investigation w h i c h the police called "Operation Planet" and w h i c h culminated
in the prosecution of Duncan and others started on 24 January 1990. D u r i n g the
course of the investigation Duncan L o w e , w h o was then Regional Procurator
Fiscal in E d i n b u r g h , instructed Detective Superintendent George Ritchie that
C o l i n Tucker should be interviewed. Duncan L o w e , w h o is n o w C r o w n A g e n t ,
is n o w unsure as to the circumstances w h i c h led to his g i v i n g the instruction,
although he is certain that he w o u l d have discussed the matter w i t h the then C r o w n
A g e n t , Ian Dean. H i s reasons for g i v i n g the instruction were either because the
police felt their inquiries w o u l d be incomplete w i t h o u t Tucker's being seen, as
his name tended to crop up in connection w i t h homosexual matters, or because
there was a request f r o m C r o w n Office, possibly as to whether Tucker had
information in relation to that case w h i c h w o u l d have involved Judges. It should
be emphasised that at such an early stage in the "Operation Planet" investigation
it was n o t k n o w n w h a t evidence m i g h t come to l i g h t about any person, and
r u m o u r and speculation about the alleged homosexual behaviour of Judges other
than L o r d Dervaird were rife at the t i m e . Detective Superintendent Ritchie, w h o
later, as a Detective C h i e f Superintendent, became Head ofthe C I D , unfortunately
died on 6 A u g u s t 1991, so we have been unable to obtain his evidence. Duncan
L o w e does recall that Ritchie was reluctant to carry o u t the instruction. The
Reporting Officer in "Operation Planet" was Detective Inspector Peter
Robertson, stationed at West E n d Police Station in E d i n b u r g h , w h i l e Ritchie had
overall responsibility for the investigation. Ritchie was particularly sensitive about
the possibility of evidence being discovered about the possible involvement of
prominent lawyers in the "gay scene" in E d i n b u r g h and in particular of possible
relationships between prominent lawyers and "rent boys", ie male prostitutes. He
accordingly maintained a degree of personal involvement in the steps w h i c h then
ensued.
6.20 A l t h o u g h Duncan L o w e is unclear in his recollection of the origins of his
g i v i n g the instruction, we t h i n k it l i k e l y that he acted on a request f r o m C r o w n
Office rather than on his o w n initiative. This is consistent w i t h the recollections

24

THE LORD ADVOCATE'S INQUIRY

of L o r d Fraser and Ian Dean, and it is intelligible that the then L o r d Advocate
should have instructed that T u c k e r be interviewed. Duncan L o w e is m u c h more
confident in saying that the instruction he gave was n o t to obtain Tucker's " l i s t "
or any existing document, b u t rather to take a statement f r o m Tucker w h i c h m i g h t
be of relevance to the current investigation. Robertson has t o l d us that w h e n
Ritchie repeated the instruction to h i m , he understood that the instruction was
to obtain the "list". We are not convinced that that was in fact his understanding
at the t i m e , because we can find no support for it in the evidence of either Tucker
or D a v i d B l a i r - W i l s o n . A f t e r unsuccessful approaches had been made to Tucker,
D a v i d Blair-Wilson informed Robertson that Tucker w o u l d be at D a v i d BlairWilson's house one Sunday. Ritchie and Robertson accordingly w e n t to D a v i d
Blair-Wilson's house, a r r i v i n g there j u s t as John W a t t left. As we understand i t ,
there had been a consultation about the f o r t h c o m i n g disciplinary proceedings
against Tucker as a solicitor. A c c o r d i n g to Tucker, all that the police asked h i m
was whether he k n e w anything about the rent b o y scene in E d i n b u r g h , and he
said that he did not. He was not asked for the "list" or any other document. In
any event, if the police wanted to obtain any document f r o m Tucker, they d i d
not succeed.
6.21 A few days later Robertson happened to meet D a v i d B l a i r - W i l s o n at court
and referred to his failure to obtain information f r o m Tucker. D a v i d Blair-Wilson
made some suggestion that Robert Henderson m i g h t be able to help. H i s explanation for this is that if in doubt he w o u l d always refer a matter to Senior Counsel
for a decision. Robertson had met Robert Henderson previously because Robert
Henderson had played g o l f on a number of occasions w i t h Detective Constable
Stephen C o m e r f o r d and on one occasion Robertson had been a member of a
foursome w h i c h had been entertained by Robert Henderson at M u i r f i e l d . Because
C o m e r f o r d k n e w Robert Henderson better than Robertson d i d , Robertson
decided to use C o m e r f o r d as a go-between in m a k i n g an approach to Robert
Henderson. C o m e r f o r d arranged for Robert Henderson to meet t h e m for lunch
in D u b h Prais Restaurant in the H i g h Street in E d i n b u r g h a f e w days later. We
have n o t been able to fix the date of this lunch, b u t it was in about February or
M a r c h 1990.
6.22 At lunch arrangements were made for Robertson and C o m e r f o r d to go to
Robert Henderson's house in Gullane that evening, and they d u l y d i d so. There
he entertained them for a t i m e . A quantity of w i n e was consumed, as it had been
earlier in the day, and C o m e r f o r d fell asleep. Before Robertson and C o m e r f o r d
left Robert Henderson handed over to Robertson his typed copy of Tucker's
Statement. He had no authority f r o m Tucker to do so. In Robert Henderson's
w o r d s , w h a t he d i d "can't be reconciled w i t h my duties to Tucker". W h e n we
t o l d Tucker w h a t his Senior Counsel had done he said he was appalled.
6.23 Robert Henderson's explanation for having handed over his copy of
Tucker's Statement was that he d i d so in " w i d e r interests". A c c o r d i n g to h i m ,
Robertson had indicated that his i n q u i r y included the possibility that Judges,
w h o m he named, m i g h t be i n v o l v e d , and he handed over the Statement in order
to convince Robertson that that was not so. We do not find this a convincing
explanation. Robertson himself has made it clear to us, and we are able to verify
f r o m the case papers, that there was never any mention of any particular Judge's
name in the "Operation Planet" investigation or at the time of the subsequent trial
of Duncan and Others, and so there was no need for Robertson to be persuaded.
In any event, given Robert Henderson's o w n statement to us that Tucker had
more information at his disposal than was contained in his w r i t t e n Statement,
handing a copy of that Statement to the police w o u l d not have resolved the matter.
We are forced to the conclusion that Robert Henderson handed it over because
he perceived that by d o i n g so he m i g h t gain some personal advantage.
6.24 The preceding narrative of the handing over of the Statement requires
further explanation. As it happens, we first interviewed Robertson before we
first interviewed Robert Henderson. Robertson at that time t o l d us that Robert
Henderson had handed h i m the copy Statement, b u t he omitted f r o m his account
any involvement of C o m e r f o r d or the fact that the three of t h e m had had lunch
together. He claimed instead that he met Robert Henderson at court and arranged

C O L I N T U C K E R ' S S T A T E M E N T OR "LIST"

25

w i t h h i m to go to his house to collect the copy Statement. A p p a r e n t l y in g i v i n g
this false version he was motivated by a desire to protect C o m e r f o r d . Thus w h e n
we thereafter first came to interview Robert Henderson we were not in possession
o f a full account f r o m Robertson. A t that time w e had a photocopy o n w h i t e paper
of the copy w h i c h Robert Henderson had handed to the police and w h i c h had been
handed to us by Sir W i l l i a m Sutherland. W h e n we showed it to Robert Henderson
h e said: " I didn't k n o w a copy o f that Statement had got into the possession o f
the police." W h e n we put it to h i m that Robertson had t o l d us that he had handed
a copy to Robertson he said: "Absolute nonsense. I never had a typed c o p y . " W h e n
we w e n t over Robertson's (incomplete) account w i t h h i m he was, of course, able
to deny its accuracy because he was able to say that the o n l y time that Robertson
had been to his house C o m e r f o r d had also been there: "He has never come to
Gullane o n his o w n . " W h e n w e pressed h i m repeatedly h e said: " I d o n ' t recollect
g i v i n g h i m a copy, b u t if he says I d i d , I d i d . " He also said: " I f I gave h i m a copy
of the Statement that is the o n l y possible occasion and I have no recollection of
that." This was obviously unsatisfactory, particularly as later in the same interview
Robert Henderson said: "Before y o u j u d g e me too harshly, this has been hanging
over me for five years and I am scrambled." This was a reference to the investigation
w h i c h we discuss in part 13 of this Report.
6.25 We therefore had a further interview w i t h Robertson and an interview w i t h
C o m e r f o r d . Robertson's further account brought C o m e r f o r d i n t o the picture, b u t
still not f u l l y , as he claimed that C o m e r f o r d remained in ignorance of the purpose
of the visit to Gullane. C o m e r f o r d , however, made it clear to us that he was aware
of the purpose of the v i s i t and that it had resulted in the copy Statement's being
handed over. At a t h i r d interview Robertson agreed that C o m e r f o r d was aware
o f the purpose and the outcome o f the v i s i t . A t our second interview w i t h Robert
Henderson he accepted the substantial accuracy of w h a t b o t h Robertson and
C o m e r f o r d had by that time t o l d us. He s t i l l , however, disputed that the photocopy
in our possession was a copy of w h a t he had handed over. N o t o n l y d i d he say
that the copy he had handed over was on coloured paper, he thought that b o t h
the typeface and the layout on the page were different. He said: "I am almost sure
that w h a t y o u have is completely different." At a t h i r d interview we showed h i m
a p r i n t o u t w h i c h John W a t t had prepared for us on cream coloured paper. Robert
Henderson recognised that that was the colour of the paper used for his original
copy, and accepted that he "must be mistaken" about there being t w o typed
versions.
6.26 Robert Henderson t o l d us that as far as he was concerned he handed his
copy to Robertson for Robertson alone to read. Robertson in fact handed it to
Ritchie, as m i g h t have been expected, because it was the nearest he could get to
obtaining a statement otherwise than by i n t e r v i e w i n g Tucker. We have n o t been
able to recover the copy w h i c h was handed to Ritchie. The most l i k e l y possibility
is that it was destroyed w i t h other papers of his after his death; t h o u g h of course
it m a y still exist in the possession of one of Ritchie's former colleagues. Ritchie
himself asked Robertson to prepare a copy to be handed to Detective Inspector
Michael Souter of the Fraud Squad based at Police Headquarters, and this was
done. Robertson indicated to Souter that he had something to send h i m , so w h e n
Souter received it t h r o u g h the internal mail system he k n e w that Robertson was
the sender. Souter showed it to Detective Sergeant (as he then was) Peter B r o w n ,
also of the Fraud Squad, w h o read i t . B r o w n attempted at one stage to deny to
us that he had read i t , but at another stage made it clear that he had, and that names
had "popped o u t " at h i m . Souter kept the copy either in an unlocked desk drawer
or in an unlocked cabinet used by the Fraud Squad. It was accordingly possible
for anybody w i t h access t o the r o o m used b y the Fraud Squad t o read the copy,
or to make a further copy f r o m i t . We mention this because we have seen some
newspaper reports w h i c h betray a knowledge of information derived either
directly or indirectly f r o m Tucker's Statement, and it is obviously possible that
the newspapers have obtained that information f r o m one or more police sources.
6.27 It appears that Ritchie wanted Souter to have a copy of the Statement
because it m i g h t have been relevant to the w o r k of the Fraud Squad by v i r t u e of
information it contained about Ian Walker's and C o l i n Tucker's financial dealings,

26

THE LORD A D V O C A T E ' S INQUIRY

though that was n o t in fact the case. The Statement contained no information
w h i c h was of relevance to Robertson's "Operation Planet" investigation. We do
n o t of course have the benefit of Ritchie's evidence as to w h y he kept the copy
w h i c h Robertson had obtained f r o m Robert Henderson, b u t we are satisfied that
he d i d so w i t h o u t disclosing to the C r o w n that he had possession of it for a period
of almost a year. We are satisfied that he d i d n o t show it to Duncan L o w e w h e n
it first came into his possession. T h i s reinforces us in the v i e w that Duncan L o w e
had not given a specific instruction that Tucker's " l i s t " be obtained. If he had
given such an instruction he w o u l d have been bound to ask Ritchie about the
outcome, and w o u l d have been t o l d in 1990 that the copy Statement had been
obtained.
6.28 We discuss in part 10 of this Report allegations made by Stephen C o n r o y
against Douglas A l l a n , f o r m e r l y Regional Procurator Fiscal at E d i n b u r g h and
n o w Sheriff at Lanark. A f t e r these allegations had been set out in a m e m o r a n d u m
dated 21 February 1991 f r o m Detective Inspector Souter to Detective C h i e f Superintendent Ritchie, Assistant C h i e f Constable Richard Prentice telephoned Duncan
L o w e , at thattime Regional Procurator Fiscal a t E d i n b u r g h . He arranged a meeting
w i t h Duncan L o w e w h i c h t o o k place in early M a r c h 1991 and was attended
by Ritchie, Souter, and Detective C h i e f Inspector ( n o w Superintendent) Peter
W i l s o n . At this meeting copies of Souter's m e m o r a n d u m and an earlier m e m o randum dated 6 December 1990 by Detective Constable Christopher Few to
W i l s o n were handed to Duncan L o w e . There was no discussion of the Tucker
Statement. We are convinced that if Duncan L o w e had been aware of it at that
time he w o u l d have mentioned it to see if there was a possible connection between
it and those aspects of Conroy's allegations w h i c h related to the investigation into
the financial affairs of Burnett W a l k e r .
6.29 As we shall more f u l l y narrate, after that meeting Duncan L o w e met the
then C r o w n A g e n t , Ian Dean, and thereafter the then L o r d Advocate, L o r d Fraser,
w h e n it was decided w h a t instructions should be given about Conroy's allegations.
It was o n l y after those instructions had been carried out, and C o n r o y and his
former partner K e v i n C r a w f o r d had been interviewed on tape by other police
officers, that later in M a r c h 1991 Ritchie called on Duncan L o w e and gave h i m
a copy of Tucker's Statement. He refused to disclose h o w he had obtained i t .
Ritchie simply t o l d h i m that the Statement was something w h i c h he thought he
ought to see. He was to have possession of it for a few days before, as Ritchie
insisted, it was to be returned to h i m .
6.30
D u r i n g those few days Duncan L o w e t o o k the Statement and showed it
to the C r o w n A g e n t and the L o r d Advocate. It was decided that no further action
was required in light of the information contained in the Statement. W h e n the
copy was returned to Ritchie, Duncan L o w e d i d not keep a copy of i t . Thereafter
Ritchie allowed Detective C h i e f Inspector ( n o w Superintendent) Peter W i l s o n to
see the Statement because he was the Reporting Officer in the case against M a y
and Tucker (see part 15) and as it m i g h t have had relevance to that case. In fact
W i l s o n d i d not find it to be of any relevance. Some police officers had the impression that the Statement had originally come i n t o the possession of the police f r o m
a Procurator Fiscal. We believe that this impression can be explained by the above
narrative.
6.31 In addition to the original manuscript we n o w have in our possession the
f o l l o w i n g copies of the Tucker Statement:
(a) a copy w h i c h John W a t t printed for us (see para. 6.7);
(b) a copy w h i c h John W a t t prepared at D a v i d Blair-Wilson's request, and
w i t h Tucker's permission, d u r i n g the course o f our I n q u i r y , w i t h a v i e w
to obtaining legal advice about their respective positions f r o m G o r d o n
M c B a i n , solicitor, E d i n b u r g h , and w h i c h the Jatter handed to us;
(c)

Souter'scopyofthecopywhichRobertHendersonhandedtoRobertson;

(d) a copy of (c) prepared for our use, w h i c h the C h i e f Constable handed
to us; and
(e) another copy of (c) prepared for the use of C h i e f Superintendent G i l m o u r ,
w h i c h he handed to us, along w i t h (c).

C O L I U T U C K E R S 5 , T ^ T E M E M T C>^ "iLVS/r"

11

John W a t t , acting on Tucker's instructions conveyed to h i m by D a v i d BlairW i l s o n , has deleted the relevant file f r o m his computer disk. A n y other copy still
in existence must be a copy made or kept for questionable purposes by a police
officer w i t h o u t Tucker's authority. A t a n appropriate time w e shall c o m p l y w i t h
Tucker's request to us to destroy his manuscript and the above copies.
6.32
Before leaving the question o f C o l i n Tucker's Statement we should mention
that we have made a point of raising w i t h every witness w h o has read it the question
of w h a t m a y be taken f r o m it as to its contents and the effect that publication
thereof m i g h t have on the Scottish legal establishment, and all such witnesses
concur w i t h the description w h i c h we have given in paragraphs 6.3 to 6.5 above.

28

THE LORD A D V O C A T E ' S INQUIRY

7. RUMOURS A B O U T MEMBERS OF
THE LEGAL ESTABLISHMENT

7.1 Since the motive for the alleged conspiracy to pervert the course of justice
is said to have been the desire to prevent the exposure as homosexuals, or as having
engaged in homosexual activities, of prominent members of the Scottish legal
establishment, we have thought it a necessary part of our investigation to consider
whether the reasons for such a m o t i v e m i g h t exist. To that end we have asked
witnesses, where appropriate, to repeat to us rumours or allegations they have
heard about the homosexual behaviour of such persons, so that we m i g h t consider
whether there was scope for investigation w i t h a v i e w to discovering whether
such persons were compromised.
7.2 The rumours w h i c h have come to our notice are many and varied. A r u m o u r
can of course be invented by anyone w h o is disposed to do so, and thereafter passed
on and embellished by those w h o are likewise disposed to do so. By its nature,
therefore, a r u m o u r m a y gain currency w i t h o u t its having any foundation in fact
or an identifiable source, and gain w e i g h t by repetition.
7.3 The rumours about Tucker's " l i s t " after L o r d Dervaird's resignation were
associated w i t h rumours to the effect that a number of other C o u r t of Session
Judges were similarly compromised by homosexual behaviour. The L o r d
President, L o r d Hope, considered, and where appropriate investigated, these
rumours and was satisfied that they were all unfounded. He has made it clear to
us that he remains satisfied that these rumours were unfounded. He is also confident
that if any C o u r t of Session Judge felt that he had been compromised by his sexual
conduct then that Judge w o u l d seek an interview w i t h h i m and w o u l d make a
full disclosure o f the relevant facts. Thereafter such consequences w o u l d f o l l o w
as w o u l d be appropriate. I t w i l l be remembered that i n the case o f L o r d Dervaird
his resignation followed frank admissions by h i m . No attempt was made to protect
h i m or to prevent his resignation, b u t instead the L o r d President discussed the
matter p r o m p t l y and f u l l y w i t h the Secretary of State and the L a w Officers. We
have no reason to suppose that any other Judge w h o was similarly compromised
w o u l d receive different treatment.
7.4 It is of importance to note that, although we were reminded of the rumours
w h i c h were current in early 1990, n o t one single person to w h o m we spoke
attached any credence to t h e m . There was no suggestion that any of them was
capable of substantiation, or that the L o r d President was w r o n g in h o l d i n g himself
satisfied that there was no substance to any such r u m o u r . We have carefully
considered whether any useful purpose w o u l d be served by the repetition of these
o l d rumours in this Report, and have concluded that we should n o t repeat them
in a w a y w h i c h w o u l d in effect revive t h e m or relate them to any identifiable Judge.
A p a r t f r o m anything else, the rumours of w h i c h we have been reminded were
so various, so far-fetched, and related to so manyjudges that it w o u l d be impossible
to treat t h e m seriously.
7.5 We have spoken to some of the Judges to w h o m the rumours related. T h e y
have all denied that there was any t r u t h in the rumours relating to t h e m . Otherwise
their reaction to the rumours and to recent press stories of a "gayjudges scandal"
has ranged f r o m anger and distress to expressions of ridicule. N o n e of them has
been able to make any conjecture as to w h y he should be the v i c t i m of rumours
and as to h o w rumours relating to h i m should have originated. Quite apart f r o m
the rumours relating to individual Judges, it should be appreciated that in a small
c o m m u n i t y of t w e n t y - f o u r Judges every r u m o u r , for example about a "gayjudges
scandal", w h i c h is reported in the press, and w h i c h fails to identify any individual,
taints every individual and consequently causes deep resentment. Those w h o
circulate and publish such unfounded rumours are at best ignorant of or indifferent

RUMOURS A B O U T MEMBERS OF THE LEGAL ESTABLISHMENT

29

to the effect on all the Judges; and at w o r s t are motivated by malice of the most
evil k i n d .
7.6
We have spoken to no Judge w h o w o u l d , if he believed a fellow Judge to
be compromised, do anything other than leave h i m to face the consequences.
Indeed, we are sure that if a Judge believed a fellow Judge had engaged in such
unambiguous behaviour as sodomising a teenage rent b o y he w o u l d not hesitate
to report his belief to the appropriate authorities. O u r I n q u i r y has disclosed no
evidence of homosexual behaviour w h i c h m i g h t be capable of c o m p r o m i s i n g any
Judge in his h o l d i n g of judicial office. We are confident in the conclusion that no
serving Judge has been compromised.
7.7 In addition to rumours about Judges, we have had to consider rumours about
the present L o r d Advocate. Detective Sergeant Charles O r r t o l d us that James
Bethell, a reporter employed by "The Sunday Times", had approached h i m for
help in tracing a w o m a n , Elaine M a t t h e w s , w h o was believed to be a witness to
an incident in the N e w C l u b in E d i n b u r g h w h e n Robert Henderson had threatened
A l a n Rodger. A c c o r d i n g l y , we decided to ask Bethell to attend for interview.
7.8 At interview Bethell t o l d us that the "general theory" was that Robert
Henderson had in some w a y acquired c o m p r o m i s i n g material relating to A l a n
Rodger and had used the material to protect himself f r o m criminal investigation.
Of the alleged incident in the N e w C l u b , he said that the story was that Elaine
Matthews witnessed a meeting in w h i c h a folder of c o m p r o m i s i n g material "was
apparently brandished by Henderson in the N e w C l u b foyer." A c c o r d i n g to this
story Robert Henderson and A l a n Rodger were sitting together w h i l e the witness
was some distance away. It was her assumption that the occasion was one of
blackmail. Bethell said: "I've been t o l d this t h i r d person believes this scenario was
one in w h i c h Henderson was blackmailing Rodger." This was his reason for
w i s h i n g to trace Elaine M a t t h e w s . He did n o t profess any belief in the story, or
claim that there m i g h t be any evidence to support it apart f r o m w h a t Elaine
Matthews m i g h t say.
7.9 Bethell gave us no assistance as to the origins of the story. We found that
it was a story k n o w n to other journalists, t h o u g h in one version the story differed
in that Elaine Matthews d i d not feature as a witness to the alleged incident but
nevertheless was understood to be able to give information about i t .
7.10 We have investigated the story and found it to be entirely untrue. As it
happens, Robert Henderson and A l a n Rodger appeared against each other as
counsel in an appeal w h i c h was heard on 7 and 8 N o v e m b e r 1991. Richard Keen,
Advocate, was A l a n Rodger's Junior Counsel. The hearing of the appeal finished
before lunch on the second day. The three counsel walked f r o m Parliament House
t o the N e w C l u b for lunch. A t the N e w C l u b they had lunch together w i t h L o r d
Grieve, a retired Judge, followed by coffee, after w h i c h A l a n Rodger returned
to C r o w n Office. We t h i n k it likely that he left before either Robert Henderson
or Richard Keen. No clear recollection survives of the conversation at lunch,
t h o u g h it is certain that there was no dispute of any k i n d . Robert Henderson d i d
not have a file of papers and indeed brought n o t h i n g w i t h h i m f r o m Parliament
House. He had arranged to call on Elaine Matthews that afternoon. She has been
interviewed by us and is able to confirm f r o m a diary entry that he d i d visit her
on that date. She remembers that he was late and that he gave as his reason for
the delay that he had been having lunch in the N e w C l u b w i t h A l a n Rodger and
Richard Keen. She t o l d us that he said n o t h i n g that w o u l d support James BethelFs
story.
7.11 It is impossible to t h i n k h o w the untrue story should have originated. Elaine
Matthews d i d not witness and was not t o l d of any such incident. We have no
reason to believe that she has ever said otherwise. We cannot understand w h y
journalists should believe that she has information about the story.
7.12 We w o u l d have been content to let the matter rest at that if it were n o t for
further statements t o u s w h i c h w e must n o w discuss. A t interview w i t h Robert
Henderson we t o o k up w i t h h i m the alleged incident in the N e w C l u b . He denied
that any such incident had taken place. He then, however, w e n t on to say that
shortly after 23 October 1991 Peter Watson of L e v y and Macrae, Solicitors,
Glasgow, t o l d h i m that Scottish Television had damaging information relating

JO

THE LORD A D V O C A T E ' S INQUIRY

to A l a n Rodger. D a v i d B l a i r - W i l s o n t o l d us at i n t e r v i e w that Robert Henderson
had made a similar statement to h i m . Peter Watson "legals" for S T V , ie he advises
t h e m o n the legal implications o f matters w h i c h they have i t i n m i n d t o broadcast.
W h e n we spoke to h i m , he denied that he had said a n y t h i n g of the sort to Robert
Henderson. Indeed, he has since confirmed to us on behalf of S T V that the L o r d
Advocate has never featured as part of any investigation by t h e m , w h i c h is w h y
he could n o t have said to Robert Henderson w h a t Robert Henderson alleged he
had said. We cannot thus trace the story beyond Robert Henderson.
7.13 There is no evidence whatever that L o r d Rodger is or ever has been in any
w a y compromised, either as Solicitor General or as L o r d Advocate. We questioned
h i m about the r u m o u r s we had heard, and it was clear that they had never
previously come to his notice. H a d we discovered any such evidence, or even
grounds for suspicion, however, we w o u l d have regarded it as o u r d u t y to report
directly to the Prime M i n i s t e r w i t h a v i e w to his taking appropriate action. We
p u t this to the L o r d Advocate, w h o agreed that that w o u l d be o u r d u t y .

" j A S O N " T H E RENT B O Y A N D T H E " G A Y JUDGES SCANDAL."

31

8. "JASON" THE RENT BOY A N D THE
"GAYJUDGES

SCANDAL"

8.1 The information contained in this part of our Report is derived solely f r o m
stories in the "Evening N e w s " and f r o m interviews w i t h Ian B u r r e l l , f o r m e r l y
C r i m e Reporter and n o w Assistant N e w s E d i t o r , and D a v i d Forsyth, Reporter
on the staff of that newspaper. A c c o r d i n g to B u r r e l l , w h e n the police investigation
k n o w n as "Operation Planet" started in January 1990 he learned about it f r o m
police sources. He began to l o o k into background information w h i c h could be
published after the t r i a l . As the investigation progressed "more and more people
were in the frame" and the size of the story was such that Forsyth was b r o u g h t
i n t o help h i m . B y w a y o f background research, according t o B u r r e l l , contact was
made w i t h a male prostitute or rent b o y w h o m i g h t provide general background
material for a "colour piece". A g a i n , according to B u r r e l l , Forsyth arranged for
Burrell and Forsyth to meet this rent b o y one evening, perhaps in about mid-1990.
This rent b o y was not apparently familiar w i t h the "rent b o y scene" in E d i n b u r g h ,
b u t said that he k n e w somebody else w h o operated in E d i n b u r g h and was on the
rent b o y scene. At the request of B u r r e l l and Forsyth this first rent b o y arranged
for them to meet the person in question. This person's real name is not "Jason",
w h i c h is a pseudonym, b u t we have no other means of identifying h i m . As we
understand w h a t we have been t o l d by Forsyth, he w o u l d regard Burrell as having
been more instrumental in arranging the meeting w h i c h t o o k place w i t h "Jason",
b u t he agrees w i t h Burrell that such a meeting t o o k place.
8.2 A c c o r d i n g to B u r r e l l , there were in total three meetings w i t h "Jason", a first
meeting at w h i c h they b u i l t up his confidence in t h e m , a second meeting at w h i c h
they obtained his story f r o m h i m and a t h i r d meeting w h i c h they p u t to h i m the
results of points w h i c h they had attempted to check. There is substantial agreement
between the journalists, neither of w h o m has kept his notes, as to w h a t "Jason"
t o l d t h e m . M o s t of w h a t he t o l d them is contained in a story published in the
"Evening N e w s " of 13 February 1991. That story was published on the same page
as extensive coverage of the outcome of the case against Duncan and Others, in
w h i c h the accused w h o had plead g u i l t y had by then been sentenced. In that story
"Jason" was described as being 18 years o l d , brought up in Manchester, " b l o n d haired", and an habitual rent b o y or male prostitute. He claimed that one of his
first "punters" in E d i n b u r g h picked h i m up in a car near Regent Road and drove
h i m to Waverley Station where he bought condoms and then drove h i m out of
the c i t y centre to a b i g house, near w h i c h he made "Jason" duck d o w n out of sight
in the front seat of the car. "Jason" was taken into the house where he was left
to w a i t in a r o o m lined w i t h books, in w h i c h he saw a photograph of the "punter"
on the w a l l s h o w i n g h i m wearing "some sort of l o n g robes". Thereafter he was
taken into a bedroom where the "punter" sodomised h i m .
8.3 We have of course pressed Burrell and Forsyth for further detail of "Jason's"
story. A c c o r d i n g to them the car was red, and according to Burrell "Jason" thought
that it m i g h t be of a Japanese make, large b u t not particularly expensive. T h e y
b o t h said that according to "Jason" the "punter" said that the house they were
g o i n g to belonged to the "punter's" sister. Forsyth said that according to "Jason"
the house was set back f r o m the street and was large, b u t "Jason" was otherwise
unable to describe i t . T h e y b o t h said that according to "Jason" he n o r m a l l y w o r e
spectacles, b u t was not w e a r i n g them on that evening, except w h e n he was left
alone in the r o o m where the photograph was. Neither of them was able to repeat
any description w h i c h "Jason" could give of the layout of the house or the nature
of its furnishings. B u r r e l l described an attempt to take "Jason" by taxi to retrace
the route f r o m Waverley Station to the house, but said that they became "stuck
in George Street". A c c o r d i n g to B u r r e l l "Jason" was able to describe the "punter"

32

THE LORD A D V O C A T E ' S INQUIRY

as being maybe 5'9" tall, t h i n , perhaps in his 50s, and balding. He showed "Jason"
some photographs, b u t Jason was unable to come up w i t h any plausible identification. Neither B u r r e l l nor Forsyth was prepared to say to us that they understood "Jason" to be describing a person w h o was a Judge.
8.4 In the O r r Report the f o l l o w i n g passage appears in the section headed "4.
O P E R A T I O N P L A N E T — T H E R E N T B O Y CASE":
" D u r i n g the initial appearance of the accused rumours began to circulate concerning the existence of a rent b o y whose identity was k n o w n to the press and
w h o had been interviewed by them. This individual later became k n o w n by
the pseudonym "Jason". He is alleged to have detailed being uplifted in the
c i t y centre by a respectable male in a large car and being driven to a spacious
house in Queensferry Road and w h i l s t apparently awaiting his client he saw
a photograph of the client dressed in w h a t are described as l o n g red robes.
This information was published along w i t h certain other articles f o l l o w i n g
conviction of the principle (sic) accused."
We are not aware of any source of information about the "Jason" story, p r i o r to
the leaking of the O r r Report, apart f r o m the "Evening N e w s " . There are,
however, t w o items of information in the O r r Report w h i c h are not derived f r o m
the "Evening N e w s " story. These are, firstly, that the house was in Queensferry
Road and, secondly, that the l o n g robes were red. These items appear to be police
embellishments of the original story as there is no other source for them. If B u r r e l l
and Forsyth had had these items of information they w o u l d have investigated
them further and w o u l d have included them in their story.
8.5 A f t e r the leaking of the O r r Report and the beginning of our I n q u i r y the
"Evening N e w s " carried a story in its edition dated 25 September 1992 by D a v i d
Forsyth and another reporter headed "Every W o r d is T r u e " and sub-headed
"Pledge by Rent B o y in Gayjudges Scandal". The story started w i t h the paragraph
"The rent b o y at the centre of the gayjudges scandal, today broke his 19-month
silence to say: "I stand by everything I said"." T h e last three paragraphs were
clearly intended to l i n k the "Jason" story w i t h certain events w h i c h happened at
the time of the case against Duncan and Others w h i c h we discuss in part 16 of this
Report. The t h i r d paragraph states: " N o w in his early 20s Jason t o l d h o w a wealthy
client t o o k h i m to a plush E d i n b u r g h house where he saw a photograph of the
man dressed in l o n g red robes." Forsyth was able to give no clear explanation for
describing "Jason" as being "the rent b o y at the centre of the gayjudges scandal".
As we have said, according to b o t h B u r r e l l and Forsyth there was no evidence,
apart perhaps f r o m the mention of l o n g robes, w h i c h m i g h t identify the "punter"
as a Judge. Forsyth accepts that the description of the l o n g robes as being red was
derived f r o m the O r r Report and was an error on his part because it was not derived
f r o m any information given to the reporters by "Jason".
8.6 A l t h o u g h the story of 25 September 1992 was based on a fresh interview
w i t h "Jason", Forsyth t o l d us that "Jason" had n o t h i n g to add to the information
contained in the original story of 13 February 1991. The information available to
us f r o m the original story as published and f r o m Burrell and Forsyth does not
lead us to the v i e w that there is any evidence to support the conclusion that the
"punter" was a Judge. L o n g robes, including those w h i c h are w h o l l y or partly
red, are of course w o r n by clergymen and academics as w e l l as by lawyers. The
robes w o r n b y Judges o f the C o u r t o f Session and H i g h C o u r t o f Justiciary for
c i v i l and criminal business respectively are partly red. T h e y are never w o r n w i t h o u t
either a short or a l o n g w i g . If a Judge was photographed wearing robes we w o u l d
expect h i m to be wearing a w i g as w e l l . No mention is made of a w i g in the "Jason"
story. The evolution of the story f r o m its original publication t h r o u g h the O r r
Report to its more recent publication serves rather as an illustration of the w a y
in w h i c h an originally tenuous story can become embellished t h r o u g h a failure
to pay proper attention to questions of detail.
8.7 At best w h a t we have been able to learn f r o m the "Evening N e w s " and its
reporters represents hearsay evidence. We are prepared to believe that Burrell and
Forsyth d i d interview a person claiming to be a rent b o y w h o gave them the
information reflected in the story of 13 February 1991. The best evidence of that
story w o u l d , however, come f r o m "Jason" himself. If we had had an o p p o r t u n i t y

" j A S O N " T H E RENT B O Y A N D T H E " G A Y JUDGES S C A N D A L *

33

to interview "Jason" we w o u l d have been able to press h i m on points of detail
w h i c h m i g h t have enabled us to check his story in ways not available to the
reporters. If "Jason" is to be believed, a person of some apparent standing in the
c o m m u n i t y sodomised h i m w h e n he was under 21 years o l d and accordingly
c o m m i t t e d a crime. There is accordingly every reason w h y we w o u l d have wanted
to obtain evidence f r o m "Jason" at first hand. Since we had no means of contacting
h i m except through Forsyth, w h o had seen h i m before the story of 25 September
1992 was published, we asked for Forsyth's co-operation in p u t t i n g a request to
"Jason" to make himself available for interview by us. We have no reason to
suppose that Forsyth d i d n o t act on that request. We have been in frequent
communication w i t h Forsyth, and understand f r o m h i m that he has t o l d "Jason"
twice of our w i s h to interview h i m , b u t "Jason"'s reaction has been that he is
w o r r i e d about losing his j o b , and has n o t h i n g to add to w h a t he originally t o l d
the journalists.
8.8 Since "Jason" has chosen to co-operate withjournalists and n o t w i t h the L o r d
Advocate's representatives we can o n l y suppose that his interests lie elsewhere than
in helping an investigation into an allegation of criminal conduct. Burrell and
Forsyth b o t h stated that "Jason" received no payment f r o m t h e m , but it is clear
that the desire for notoriety and to cause mischief affects some people regardless
of financial considerations. O u r conclusion must be that the "Jason" story yields
n o evidence o f value t o our I n q u i r y .

14

THE LORD A D V O C A T E ' S INQUIRY

9. M I C H A E L JUNIOR'S STORY A B O U T
A "JUDGE"

9.1 On 3 and 8 September 1992 Michael Junior gave a statement to a Detective
Inspector of Strathclyde Police at Stewart Street Police Office, Glasgow. In the
statement he described his earlier history, including a period of service in the
French Foreign Legion. He then stated: "When I came back f r o m the Foreign
Legion I got involved in the "gay scene" and involved in extorting money f r o m
homosexuals." He described his allegedly becoming involved w i t h men w h o
controlled the activities of rent boys and used t h e m to obtain information about
the identities of men w h o had used their services in order to blackmail t h e m . He
described h o w he himself became a male prostitute. He described one incident
in particular, w h i c h t o o k place in about N o v e m b e r 1991. He said that three men,
w h o m he named, t o o k h i m by car to E d i n b u r g h where they w e n t to "The Blue
Oyster". There he was introduced to a man called Ian, w i t h w h o m he sat t a l k i n g
and d r i n k i n g u n t i l about 3 am, w h e n they left "The Blue Oyster" and w e n t in
the man's car, w h i c h he described, to a house, w h i c h he also described. At the
house they discussed w h a t sexual services Junior was to p e r f o r m . A c c o r d i n g to
h i m : "I asked Ian w h a t he done for a l i v i n g and he said he sat on "the H i g h Benches"
and f r o m that I presumed he was a "Judge"." He then described h o w they were
engaged in sexual activity w h e n there was a r i n g at the doorbell. The man w e n t
to answer the door. Junior heard a scream, and a short time later one of the men
w h o had brought h i m to E d i n b u r g h burst in w i t h his face masked and w i t h a
butcher's knife in his hand, followed by another of the same men. T h e y made
h i m lie d o w n and handcuffed h i m . There were sounds of an assault on and robbery
of the man whose house it was. A f t e r about 15 minutes the robbers left. Junior
freed himself, dressed, and found the man l y i n g injured on a bathroom floor.
Junior then left the house, made his w a y to the c i t y centre, and t o o k a train to
Glasgow. He described the man as "about 55 to 60 years of age, heavy b u i l d , w i t h
a fat stomach, a k i n d of English spoken polite accent, light b r o w n hair g o i n g grey
receding at the front. He was about six foot tall, I never saw h i m wearing glasses,
I never noticed any marks or scars or tattoos on h i m " . No report of an alleged
assault and robbery was made to the police.
9.2 On 16 September 1992 Michael Junior gave a statement to officers of Lothian
and Borders Police at Rutherglen Police Station, Glasgow. In that statement he
described again h o w in about N o v e m b e r 1991 the three men t o o k h i m by car to
E d i n b u r g h , where they w e n t to "The Blue Oyster" and he was introduced to a
man. On this occasion he stated that the man's name was "either A l a n or Ian, I
can't remember his r i g h t name." He stated: "I w o u l d describe the man as 5'10"
to 5'11" tall, chubby b u i l d , age about 60, he had grey hair and was balding on
t o p . He was wearing a crew neckjumper w i t h a cravat underneath. He had a blazer
style jacket and light trousers." He stated that he and the man sat talking and
d r i n k i n g together. " D u r i n g conversation he t o l d me that he was a Judge." E v e n t u ally they left "The Blue Oyster" and w e n t in the man's car to the man's house.
On the j o u r n e y sexual activity t o o k place between t h e m . At the house further
sexual activity t o o k place between t h e m , w h i c h was interrupted by the assault and
robbery. In this statement Junior gave a fuller account of purported conversations
between h i m and the man and features of the house and its furnishings. He stated:
" W h e n I was in the house I saw a black robe and a w i g l y i n g in one of the rooms.
I also saw a red robe hanging up but I can't remember w h i c h r o o m that was i n . "
9.3 Because of the allegation that there had been an assault and robbery the police
investigation has been as thorough as is possible. A t t e m p t s have been made, in
reliance on Tunior's descriptions, to identify b o t h the car and the house, but w i t h o u t
success. Junior himself has been unable to direct police to the house, even though

MICHAEL JUNIOR'S STORY A B O U T A " j U D G E "

35

he says that he made his w a y f r o m it by foot to the c i t y centre. Further inquiries
by the police have not confirmed the alleged involvement of the three m e n . One
died on 28 December 1991. The other t w o have been traced and interviewed, and
have denied that they travelled to E d i n b u r g h w i t h Michael Junior as alleged by
him.
9.4 O u r concern obviously is w i t h the allegation that the man w h o m Junior met
and w h o was assaulted and robbed was a Judge. There are obvious discrepancies
in the t w o versions of Junior's statements to police made o n l y a few days apart.
The physical description of the man is materially different, as can be seen by
comparing the t w o passages we have quoted. In the first version Junior was
confident about the man's name w h i l s t in the second he was unable to say w h i c h
of t w o names it was. In the first the o n l y statement made by the man w h i c h m i g h t
have indicated his occupation was made at his house and was that "he sat on the
H i g h Benches". In the second statement the man t o l d Junior at "The Blue Oyster"
that he was a Judge. In the second statement for the first time Junior described,
a m o n g other embellishments, that w h i l e he was in the house he saw a black robe
and a w i g in one r o o m and a red robe in another r o o m . Judges do not keep their
robes at their houses and in any event no Scottish Judge has b o t h a black robe
and a red robe.
9.5 Michael Junior has made a number of statements to newspaper and television
reporters w h o have reported them as either t r u t h f u l or u n t r u t h f u l , depending on
the story being reported. W h i l e we have taken note of these reports we have found
n o t h i n g in t h e m w h i c h w o u l d add to the m u c h fuller statements taken by the
police.
9.6 In the w h o l e circumstances we have n o t thought that it w o u l d be of any
value to us to interview Michael Junior ourselves. On his o w n admission he is a
blackmailer as w e l l as being a male prostitute. His willingness to make such an
admission and to describe his activities to reporters as w e l l as to police officers
suggests a w i s h for notoriety. There m a y also have been the prospect of receiving
payment f r o m reporters. The discrepancies in his statements, the embellishments
added to the later version, particularly those features p o i n t i n g to the man's
allegedly being a Judge, and the complete absence of corroborative evidence
suggest that the w h o l e story, or at least those parts of it material to our I n q u i r y ,
is pure invention on Junior's part.

36

THE LORD A D V O C A T E ' S INQUIRY

10. A L L E G A T I O N S B Y S T E P H E N
C O N R O Y A G A I N S T SHERIFF
DOUGLAS

ALLAN

10.1 Douglas A l l a n had a career in the Procurator Fiscal Service w h i c h c u l m i nated in his serving as Regional Procurator Fiscal in E d i n b u r g h f r o m A p r i l 1983
u n t i l he was appointed Sheriff of Lanark on 1 A u g u s t 1988. The grave allegations
w h i c h were made against h i m by Stephen C o n r o y related to the time w h e n he
was a Regional Procurator Fiscal. We are not aware of any allegations against h i m
relating to the period since he became a Sheriff. There is accordingly no need for
us to say anything more about h i m in that latter capacity. We should emphasise
at the outset that we have n o t found a shred of evidence to support any allegation
against Douglas A l l a n . A l l those to w h o m we have spoken w h o had personal
knowledge of h i m d u r i n g the period w h e n he was Regional Procurator Fiscal
spoke h i g h l y of h i m in b o t h personal and professional terms. Even those w h o
thought that the allegations were such as required to be investigated spoke h i g h l y
o f him.
10.2 Stephen C o n r o y has been employed by several different firms of solicitors
as a court runner and in similar relatively inferior capacities. A c c o r d i n g to h i m ,
he entertained for a time an a m b i t i o n to become a solicitor. Thereafter he was
engaged in various business ventures u n t i l he was c o m m i t t e d in custody on 9 A p r i l
1992 on a petition containing several charges of fraud. F o l l o w i n g a plea of g u i l t y
he was sentenced on 20 J u l y 1992 to six years' imprisonment. C o n r o y appears
to us, f r o m the papers we have read, f r o m information we have received f r o m
others, and f r o m our o w n experience of i n t e r v i e w i n g h i m in prison, to be a
man w h o is not o n l y prepared to be deliberately dishonest, b u t also to have an
imagination over w h i c h he has o n l y intermittent c o n t r o l . We found that w h e n
he makes an effort, and remains calm, he can give t r u t h f u l answers to questions.
B u t he easily loses control of his imagination and becomes v o l u b l e . At such times
he pours o u t his fantasies, particularly about people he claims to be homosexuals
in positions of influence. The w o r d "photograph" readily acts as a trigger for the
o u t p o u r i n g of his fantasies. W h e n we pointed o u t to h i m that t w o accounts he
had given, w i t h i n a few minutes of each other, of photographs w h i c h he claimed
to have seen (and w h i c h w o u l d n o t in any event been of relevance to our I n q u i r y )
were m u t u a l l y inconsistent, he appeared almost frightened by the w a y in w h i c h
his imagination had led h i m to speak. Consistently w i t h his former a m b i t i o n to
become a solicitor, he is inclined to fantasise about being himself a figure of some
consequence in the legal w o r l d and associating w i t h prominent lawyers. Richard
Godden, w h o was f o r m e r l y an advocate and is n o w a solicitor, and M a r k
Fitzpatrick, Advocate, have b o t h described to us an occasion on w h i c h they found
C o n r o y wearing a g o w n in Parliament H a l l and t o l d h i m he should not do so.
In addition to these characteristics he is correctly described by others w h o have
had dealings w i t h h i m as being devious and manipulative. In all, it is hard to see
h o w his allegations ever came to be taken seriously.
10.3 Conroy's allegations against Douglas A l l a n came to the notice of the police
in the f o l l o w i n g circumstances. For a time C o n r o y and K e v i n C r a w f o r d were
partners b o t h sexually and in business together. T h e y appear to have r u n a number
of shops in the course of their business. In early 1990 b o t h their sexual and business
relationships came to an end. C r a w f o r d was thereafter harassed by C o n r o y ,
according to h i m , and decided to make a complaint to the police. He w e n t to
Police Headquarters on 5 December 1990, where he saw Detective Constable
Christopher Few ( n o w a Constable in Northamptonshire Constabulary). C r a w f o r d made a number of allegations against C o n r o y , w h i c h Few recorded in a
m e m o r a n d u m dated 6 December 1990 to Detective C h i e f Inspector Peter W i l s o n ,

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

37

headed "Allegation o f Fraudulent Activity—Stephen M a r k C o n r o y " . The o n l y
allegation w h i c h is of significance for present purposes reads as follows:
"10. Being in possession of c o m p r o m i s i n g photographs of a Procurator
Fiscal and using these to obtain confidential information in possession of
the Procurator Fiscal's Office, to avoid prosecution for offences and to have
had Crawford's prosecution for assault pursued w i t h greater v i g o u r than
w o u l d otherwise have been the case."
10.4 Few informed us, in the course of a telephone conversation, that C r a w f o r d
named the Procurator Fiscal as Douglas A l l a n . Because the allegation was of such
sensitivity he d i d n o t p u t the name in the m e m o r a n d u m , but d i d report it to his
superiors. W i l s o n instructed Detective Inspector Michael Souter to l o o k i n t o the
matter. As we understand i t , it was f r o m Few that he learned that the Procurator
Fiscal's name was Douglas A l l a n . A s w i l l be seen w h e n w e discuss the case against
C o l i n Tucker in part 14 of this Report, Souter had already formed a v i e w of
Douglas Allan's role in the investigation into the financial affairs of Burnett W a l k e r
W S . A c c o r d i n g to Souter, Crawford's mention of Douglas Allan's name "started
ringing bells".
10.5 Souter made contact w i t h C r a w f o r d w h o agreed to be interviewed on a
confidential and informal basis on 3 January 1991. At this meeting he repeated
allegations of criminal conduct against C o n r o y w h i c h he had previously made to
Few. Souter reported on this meeting and subsequent inquiries in a m e m o r a n d u m
dated 21 February 1991 to Detective Superintendent George Ritchie. A c c o r d i n g
to the memorandum:
" A t the initial meeting w i t h the reporting officer C r a w f o r d was asked to
elaborate on the matter concerning Mr Douglas A l l a n and confirmed that
he had informed DC Few that these photographs existed. He claimed that
d u r i n g the summer of 1988 he had been in the "Laughing D u c k " public
house 24 H o w e Street, E d i n b u r g h , along w i t h C o n r o y and another male
homosexual associate of Conroys, David Blair Wilson, then o f W i l s o n Terris
& C o . , 22 H i l l Street, E d i n b u r g h , w h e n he noticed another male customer
continually l o o k i n g at C o n r o y and s m i l i n g to h i m . As he was having a
relationship w i t h C o n r o y he asked w h o the apparent admirer was and was
informed b y C o n r o y i n the hearing o f D a v i d Blair W i l s o n that i t was
"Douglas A l l a n " the Procurator Fiscal, the " T o p L a w man in E d i n b u r g h " .
C o n r o y and W i l s o n informed C r a w f o r d that D a v i d Blair W i l s o n had c o m p r o m i s i n g photographs ofDouglas A l l a n along w i t h a " y o u n g g u y " , C r a w fords understanding was that although C o n r o y was present he was n o t the
y o u n g man involved in the photo session."
10.6 A l t h o u g h the meeting on 3 January 1991 was between Souter and C r a w f o r d
alone, thereafter the investigation was carried o u t by Souter and Detective Sergeant
Peter B r o w n together. There was a further meeting between t h e m and C r a w f o r d
on 14 January 1991, w h e n C r a w f o r d repeated m u c h of w h a t he had said on 3
January. On 25 January 1991 Souter and B r o w n met C o n r o y in Parsons Green
Terrace, E d i n b u r g h . A c c o r d i n g to the m e m o r a n d u m he "agreed to speak o f f the
record regarding his involvement as a juvenile w i t h homosexuals in the legal
profession and although he denied that he had personally had sexual relationships
w i t h anyone he claimed that he was aware of the homosexuality of a number
o f persons w h o m h e named, one o f w h o m was Douglas A l l a n . The m e m o r a n d u m
proceeds:
"He claimed that his o n l y knowledge of these men was hearsay b u t that
Douglas A l l a n is a friend as is his o w n solicitor D a v i d Blair W i l s o n . He
claimed that these people had all at some time attended parties . . . in Palmerston Place, E d i n b u r g h , at w h i c h y o u n g men attended and where alleged
sexual activities occurred."
He agreed to provide a w r i t t e n account of these matters, but in the event he d i d
not do so.
10.7

The m e m o r a n d u m proceeds:
" A t 0900 hours on M o n d a y , 11th February, 1991, K e v i n C r a w f o r d
telephoned the reporting officer at the Fraud Squad and related an incident

INQUIRY

w h i c h he claimed had occurred about 0130 hours on Sunday 10th w i t h i n
the "Blue Oyster C l u b " in Rose Street Lane, E d i n b u r g h , w h e n he had seen
C o n r o y and "Douglas A l l a n " talking together apparently about h i m and
laughing. He claimed that this had enraged h i m and as he was somewhat
intoxicated he had struck C o n r o y w h i l e Douglas A l l a n and C o n r o y had
been dancing together. Douglas A l l a n and others present had separated
t h e m and the incident m u c h to Crawfords surprise was n o t dealt w i t h by
the Stewards w h o w o u l d in normal circumstances have been expected to
have severely ejected C r a w f o r d . C r a w f o r d left shortly after this incident.
As this account d i d n o t seem credible the reporting officer endeavoured to
obtain a photograph o f M r John Douglas A l l a n i n order t o c o n f i r m o r
otherwise that he was the person that b o t h C r a w f o r d and C o n r o y spoke
off. At 1500 hours on Friday, 15th February, 1991, the reporting officer
and Detective Sergeant B r o w n uplifted C r a w f o r d f r o m his place of employment and showed h i m this photograph circa 1987 of Douglas A l l a n , he
failed to identify h i m as the man he k n e w as Douglas A l l a n saying that his
hair is all w r o n g and that the man he k n e w as Douglas A l l a n was similar
b u t more like "John M a j o r " than the man in the photograph. He repeated
the information about the incident in the Blue Oyster and was adamant that
the m a n was the Procurator Fiscal "Douglas A l l a n " .
At 1630 hours that same date D a v i d Blair W i l s o n telephoned the Fraud
Squad Office and informed the reporting officer that his client C o n r o y
w o u l d not be supplying any other information to the Police. W i l s o n expressed his anger that the Police had raised his o w n name in this matter and
was assured that although his name m a y have been mentioned it had not
been raised by the Police. He then continued that we should not pay too
m u c h attention to w h a t C o n r o y may say as C o n r o y has a personality
p r o b l e m for w h i c h he sees a Consultant, and that he, W i l s o n , always takes
w i t h a pinch o f salt anything w h i c h C o n r o y tells h i m . "
10.8 A f t e r a sentence about D a v i d Blair-Wilson's private life the m e m o r a n d u m
further continues:
" H e raised the subject o f A r t h u r C o l i n Tucker and G o r d o n Michael M a y
and advised that he, Robert Henderson Q . C . and another w o u l d be
defending M a y in the f o r t h c o m i n g Teague Homes trial and that the defence
w o u l d n o t be based on homosexuality. W i l s o n said that he was a personal
friend of Tucker as w e l l as his Solicitor b u t even he had been amazed at
the " n o t g u i l t y " verdict recorded at Tuckers trial b u t that this was due to
an inept prosecution and the L a w Society dragged their feet, and that the
defence arguments should never have been accepted. He claimed that he
felt that the Police were under the impression that there is a homosexual
conspiracy g o i n g on in E d i n b u r g h i n v o l v i n g the legal profession and asked
w h y the Fraud Squad were concerning themselves w i t h homosexual matters. He then w e n t on to speak of C r a w f o r d and Conroys differences, then
spoke of the L o r d Advocates Guidelines regarding the non prosecution of
consenting adults aged between 18 and 21 years. He was advised that these
were o n l y guidelines and that the L a w said 21 years of age and therefore
the L o r d Advocate w o u l d consider the circumstances and merits of each
case. He offered that if I wished to speak w i t h h i m I should contact h i m
at any time and not raise the matter w i t h others.
At 1100 hours on M o n d a y , 18th February, 1991, C o n r o y telephoned the
reporting officer at the Fraud Squad and stated that he had o n l y approached
D a v i d Blair W i l s o n because he d i d n o t k n o w w h o to t u r n to for help.
C r a w f o r d had been bothering h i m over the telephone and u r g i n g h i m to
go to the Police and " t e l l a l l " , he had taped these calls. He then w e n t on
to tell h o w C r a w f o r d has assaulted h i m in the "Blue Oyster" w h i l e he was
dancing w i t h the "Sheriff of Lanark, Douglas A l l a n " . He agreed to meet
w i t h the reporting officer and Detective Sergeant B r o w n on Tuesday, 19th
at 1530 hours in Carrington Road, E d i n b u r g h .
On Tuesday, 19th C o m o y telephoned early in the day and asked the
reporting officer if the meeting could be on a one to one basis b u t was

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

39

t o l d this w o u l d n o t be. He attended as agreed and again wished to speak
i n f o r m a l l y . He related his account of the incident at the Blue Oyster C l u b
w h i c h was in accord w i t h w h a t C r a w f o r d had claimed. He was then s h o w n
a number of photographs (attached) and had no hesitation in identifying
as "Douglas A l l a n " the former Regional Procurator Fiscal Mr J . D . A l l a n
although he stated that the subject w o r e a toupee w h e n attending the
"Club".
He claimed to have k n o w n Douglas A l l a n for about three or four years b u t
denied that there had ever been anything improper between t h e m . He
claimed that their contact had been confined to talking at the "Laughing
D u c k " or the Blue Oyster C l u b or dancing at the latter. He further claimed
that he had d u r i n g 1988 attended at the house of RAJ Godden . . . w h e n he
had been s h o w n 6 or 8 quarto sized photographs of naked men i n d u l g i n g
in indecent activities (he declined to elaborate) and that he had immediately
recognised Douglas A l l a n w h o he k n e w at that t i m e . . . "
This part of the m e m o r a n d u m concludes w i t h the sentence:
" W h i l e C r a w f o r d and C o n r o y are speaking to the Police for differing
reasons and they are n o w antagonistic towards each other the hearsay
information obtained f r o m C r a w f o r d is being given some substance by the
information given by C o n r o y w h i c h is more than mere hearsay."
The m e m o r a n d u m then moves on to a discussion of the cases against Tucker,
M a y and Tucker, and Duncan and others and the proposed case against Robert
Henderson Q C . In respect of the case against Duncan and others the m e m o r a n d u m
states:
"That C o n r o y has stated that the indecent photographs he was s h o w n by
Godden were taken . . . in Palmerston Place m a y l i n k these matters to the
recent proceedings i n v o l v i n g rent boys and male homosexuals . . . w h i c h
Alistair D a r l i n g MP has involved himself in by declaring his intention of
examining the role played by the C r o w n Office in the decision to dismiss
m a n y apparently proveable charges."
The m e m o r a n d u m concludes w i t h the f o l l o w i n g passage:
" I f Crawfords original claim that C o n r o y was able to manipulate the c r i minal justice system because of his knowledge of illegal homosexual activities members of that system have involved themselves in is true—and
n o t h i n g to discredit his information has yet been found—then a serious
problem m a y exist in the administration of Justice in E d i n b u r g h and
elsewhere in Scotland w h i c h may be highlighted by either the Press or Mr
D a r l i n g in the v e r y near future. If it is revealed that Lothian and Borders
Police had been made aware of the allegations referred to in this report and
failed to take appropriate action in these matters then considerable criticism
or even suspicion m a y be directed at the Police.
W h i l e enquiries have been made and have established evidence that C o n r o y
has been involved in fraud no action has yet been directed beyond the
informal interviews w i t h C r a w f o r d and C o n r o y regarding the illegalhomosexual allegations. It is felt that C r a w f o r d w i l l be w i l l i n g t o make a statement
on tape if asked, and C o n r o y could soon be cultivated to a similar position,
although this m a y prove more difficult as D a v i d Blair W i l s o n has obviously
attempted to frighten h i m away f r o m placing any trust in the Police in
general and the reporting officer and Detective Sergeant B r o w n in particular."
10.9 We have quoted f r o m the m e m o r a n d u m at some length in order to show
not o n l y the nature of the information w h i c h was given to Souter and B r o w n b u t
also the l i n k w h i c h was then made in the minds of Souter and, presumably, B r o w n
between otherwise apparently unconnected cases. Souter had of course by then
had possession for some months of a copy of Tucker's Statement, w h i c h B r o w n
had read. This m a y have inclined them to give credence to allegations of homosexuality made against prominent lawyers. A s w i l l be seen w h e n w e come t o discuss
the O r r Report in part 12 of this Report, the l i n k made in Souter's m e m o r a n d u m
is the same as that made in the letter f r o m D a v i d Johnston to T a r n Dalyell M P ,

40

THE LORD ADVOCATE'S INQUIRY

in the letter f r o m Tarn Dalyell to the C h i e f Constable and in the O r r Report. Since
the O r r Report was, according to its author, largely based on information supplied
by Souter and B r o w n , it is impossible to avoid the conclusion that either Souter
or B r o w n or b o t h have been, directly or indirectly, the source or sources of
information at every stage about the alleged l i n k .
10.10
The photographs w h i c h were shown by Souter and B r o w n to C o n r o y ,
as recorded in the m e m o r a n d u m , and w h i c h were referred to in subsequent
interviews by police officers of C r a w f o r d and C o n r o y , are n o w in our possession.
Of the t w o s h o w i n g Douglas A l l a n , one is a colour photograph taken at a Burns
Supper at Police Headquarters, s h o w i n g Douglas A l l a n in a k i l t , the C h i e f Constable, SheriffWilliam Christie and the D e p u t y C h i e f Constable. The other is a poor
photocopy in black and w h i t e of a photograph taken on the same occasion,
s h o w i n g at least 13 persons, of w h o m Douglas A l l a n is t h i r d f r o m the r i g h t and
a police officer is fifth f r o m the left. There is little apparent resemblance between
these t w o apart f r o m the fact that they are b o t h wearing glasses. Sheriff A l l a n has
expressed resentment to us at the use, for the investigation of allegations of criminal
behaviour by h i m , of photographs taken at a private social occasion at Police
Headquarters.
10.11
On receipt of Souter's m e m o r a n d u m W i l s o n discussed its terms w i t h
Ritchie and they decided that, however incredible the allegations against Douglas
A l l a n m i g h t seem, it was necessary to take the matter to Duncan L o w e , the
then Regional Procurator Fiscal. A c c o r d i n g l y Assistant C h i e f Constable Richard
Prentice telephoned Duncan L o w e and arranged a meeting, w h i c h t o o k place in
early M a r c h 1991, and was attended by Ritchie, W i l s o n and Souter. Copies of
the memoranda by Few and Souter were given to Duncan L o w e . No mention
was made of the Tucker Statement. There was a b r i e f discussion, d u r i n g w h i c h
Duncan L o w e said that he wanted to consider the matter further. He d i d n o t tell
the police officers w h a t he intended to d o . W h a t he in fact d i d was to arrange to
see Ian Dean, the then C r o w n A g e n t , and to show h i m the Souter m e m o r a n d u m .
T h e y discussed the matter at length, and it was decided that the C r o w n A g e n t
w o u l d arrange for the L o r d Advocate, L o r d Fraser, to see the Souter memorandum
and discuss it w i t h Duncan L o w e . A meeting was accordingly arranged w i t h the
L o r d Advocate, w h i c h was attended by Ian Dean and Duncan L o w e . There was
a full discussion of the m e m o r a n d u m . The meeting concluded w i t h a decision that
C r a w f o r d and C o n r o y should be interviewed on tape by police officers.
10.12 A f t e r the meeting w i t h the L o r d Advocate, Duncan L o w e instructed
Ritchie to have C r a w f o r d and C o n r o y interviewed on tape. The instructions were
given by telephone on 8 M a r c h 1991 and were recorded in a file note. T h e i r terms
included instructions that the interview should be carried out by different officers
f r o m those previously involved because of the o n g o i n g criminal i n q u i r y , and that
the statements should be specific as to whether C r a w f o r d and C o n r o y were
alleging criminal conduct by Douglas A l l a n . Ritchie accordingly instructed Detective Inspector Ian I r v i n g and Detective Sergeant H u g h Corbett, b o t h members
of the Serious C r i m e Squad, to carry o u t the interviews. For that purpose they
were given use of copies of the memoranda by Few and Souter and of the p h o t o g raphs w h i c h we have described.
10.13
C r a w f o r d was interviewed on 12 M a r c h 1991, and again, on a matter w h i c h
is n o t relevant for present purposes, on 22 A p r i l 1991. C o n r o y was interviewed on
17 A p r i l 1991. W e have transcripts o f these interviews. W h i l e they are lengthy,
n o t h i n g of substance was added by either C r a w f o r d or C o n r o y to w h a t they had
already t o l d Souter and B r o w n . In order for the quality of the evidence to be
understood we t h i n k it appropriate to quote certain passages.
10.14
In the transcript of the interview w i t h C r a w f o r d on 12 M a r c h 1991 the
f o l l o w i n g passage appears:
"DI
C o u l d y o u please express i n y o u r o w n w o r d s w h a t y o u k n o w
about the former Regional Procurator Fiscal and n o w Sheriff of
Lanark. I w o u l d suggest that y o u start f r o m the beginning possibly w h e n y o u first heard or met h i m r i g h t up u n t i l this last time
that y o u saw o r met h i m s o i f y o u j u s t relax and j u s t tell m e h o w
y o u k n o w or w h a t caused y o u to make these allegations and

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

SUSPECT

41

h o w y o u k n o w ehh the Regional Procurator Fiscal. C o u l d y o u
commence?
E h h it was r o u g h l y about four to five years ago that I met Stephen
M a r k C o n r o y in a gay bar called Fire Island I had been in a
relationship w i t h Stephen for about a year and we were in a disco
one night w h i c h is the Laughing D u c k ehh Public House in H o w e
Street. Stephen had pointed out a gentleman ehh to me and had
turned round and said that that is the Procurator Fiscal f r o m
E d i n b u r g h . Stephen had said that he had something over the
Procurator Fiscal we used to go a place called T o k y o Joes where
a l o t of lawyers and people in the C o u r t w h o k n e w Stephen
Stephen had w o r k e d in the C o u r t or w o r k e d for a company called
D r u m m o n d and C o m p a n y and this is h o w he k n e w the people
in the court and it was c o m m o n knowledge t h r o u g h Stephen that
a l o t of people in the court were gay or on or homosexual and
ehh they vacated the gay bars and gay clubs Stephen had pointed
this chap out to me and said that himself and D a v i d Blair W i l s o n
had been at a party one night and the P.F. or Procurator Fiscal
ehh was at the party and that they have photographs he said that
that man w i l l do h i m favours he said because o f w h a t he has got.
He says I can p u l l strings in h i g h places.

DI

W h o said this?

SUSPECT

Stephen M a r k C o n r o y . He says that they were at a party one
night w i t h D a v i d Blair W i l s o n and the chap was there and that
D a v i d Blair W i l s o n has polaroid photographs of the Procurator
Fiscal w i t h a gentleman w h o is under the age of consent of 21
ehh I've never actually spoke to the chap b u t the Procurator Fiscal
w h o was pointed out to me has never ever spoke to Stephen n o w
I've been in a sorry I was in a relationship w i t h Stephen for almost
five year for all the time that we w e n t to pubs clubs ehh or discos
or anything whenever this chap was in the pub or on the same
premises they never ever spoke they w o u l d j u s t acknowledge
each other by letting on n o d d i n g heads and j u s t acknowledge
each other b u t never ever spoke in public ehh u n t i l recently about
t w o months ago probably less than that that I was in a place called
The Blue Oyster on Rose Street in E d i n b u r g h ehh I had been
c o m i n g d o w n to Fettes regarding this situation and my allegations
Stephen was t a l k i n g to the Procurator Fiscal or the person w h o he
was saying the Procurator Fiscal and w h o he had the photographs
over and the chap w h o w o u l d do h i m favours ehh this was the
first time I had ever seen t h e m actually t a l k i n g together in the
w h o l e five year it was almost every weekend that we were out
in a pub or a club so over the period of five years they had never
spoke to each other n o w they are speaking to each other ehh I
was leaving the disco and Stephen turned and says as I walked
past h i m we can soon sort h i m out l o o k w h a t the cat dragged
in so I ignored it and I was leaving the premises then I w e n t back
in a temper and I grabbed Stephen by the back of the hair of the
dance floor and had a w o r d in his ear the chap w h o that w i t h h i m
w h o I k n o w or I am led to believe is a Procurator Fiscal backed
of and he d i d n ' t w a n t anything to do w i t h it b u t before I actually
done that was dragged Stephen of the dance floor the t w o of them
were v e r y cocky and like t r y i n g to rub me u p .

DI

Y o u mean by that y o u mean by ehh t r y i n g to . . .

SUSPECT

T r y i n g t o w i n d m e u p basically.

DI
SUSPECT

Yes aye.
Standing beside me in the disco the person w h o I am led to believe
is the Procurator Fiscal standing smiling over n o w the chaps never
spoke to me but he has always k n o w n w h o I am and I have always
k n o w n or led to believe w h o he is he never ever speaks to anybody

42

THE LORD A D V O C A T E ' S INQUIRY

DI

in the disco he comes in stands watches everything that goes on
and leaves ehh b u t this night he was standing w i t h Stephen having
a conversation w i t h Stephen and they were basically w i n d i n g me
up ehh as I was leaving I walked past t h e m he had said that that
ehh o h h we can soon sort h i m o u t l o o k w h a t the cat dragged in
sort o f t h i n g .
W h o had said that?

SUSPECT

Stephen had said it and the chap w h o I am led to believe is
the Procurator Fiscal was in conversation w i t h Stephen and j u s t
laughed so in a temper I dragged Stephen of the dance floor then
the other g u y backed of but this was Stephens front for anything
or whenever he was up to tricks Stephen w o u l d phone the court
or he w o u l d phone the P.F.'s office and he has done it in front
of me ehh at the t i m e w h e n he had said w h a t was g o i n g on
asked questions about different things he wanted to k n o w and he
received i n f o r m a t i o n f r o m the Procurator Fiscals office.

DI

I n relation t o what?

SUSPECT

He j u s t used to phone up and say o h h I w o u l d like to find out
this Stephen was ehh or he got in trouble w i t h a credit card and
he had used a credit card ehh w h e n he was l i v i n g in Springfield
Street it is o f f Balfour Street I t h i n k and w h a t had happened was
the credit card was sent to a b l o c k of flats there is six in the flat
Stephen had opened it up the credit card d i d n ' t belong to h i m
Stephen had used the credit card and it was later found out that
he was on camera and the police proved it was Stephen Stephen
was w o r r i e d about it and then he had turned round and said to
me no p r o b l e m I ' l l get that sorted o u t I've got friends in the
Procurator Fiscals Office i.e. Mr Douglas or Douglas A l l a n or
Douglas James A l l a n .

DI

Was it w h o was it he actually phoned at the . . .

SUSPECT

He phoned the P.F.'s office.

DI

M m h h n o w t h e P . F . office there are numerous Procurator Fiscals
w i t h i n that area.

SUSPECT

He was p h o n i n g .

DI

I n that office.

SUSPECT

He was t r y i n g to phone Douglas James A l l a n

DS

I take it y o u were present w h e n he made that phone call?

SUSPECT

I was in the r o o m yeah.

DS

D o y o u k n o w w h a t number h e dialled?

SUSPECT

N o n o t o f f hand n o .

DS

H o w do y o u k n o w it was the Fiscals office that he was on to?

SUSPECT

E h h because he had a l a w directory it was a standard l a w directory

DI
SUSPECT

Where is that that directory?
Stephen had i t y o u can o n l y obtain i t f r o m a solicitor o r i f y o u
have w o r k e d in a solicitors office it is supplied to t h e m to acknowledged solicitors w i t h i n the C i t y and in there he had the number.
Right d i d h e speak t o w h o y o u t h i n k was M r A l l a n ehh w i t h i n
y o u r hearing?

for lawyers to list every solicitor.

DS
SUSPECT

I am led to believe that it was Mr A l l a n on the other end of the
phone he asked h i m if he could meet meet h i m to help sort or
something o u t ehh Stephen the same the same week had phoned
D a v i d Blair W i l s o n and met D a v i d Blair W i l s o n in a public
bar called T o k y o Joes and had a conversation w i t h D a v i d Blair
Wilson.

DS

H o w l o n g ago are we talking about?

SUSPECT

M m m h three and a h a l f three and a h a l f years ago.

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

43

DI

So h o w l o n g is it since he possibly was in possession of these
photographs?

SUSPECT

SUSPECT

As far as I am led to believe it is D a v i d Blair W i l s o n w h o holds
the photographs because Stephen says that if anything ever
happened or he needed to use the photographs for anything that
D a v i d Blair W i l s o n has t h e m in a safe place.
D o y o u k n o w where about?
No.

DS

Have y o u any idea w h o t o o k the photographs?

SUSPECT

N o , not at all.

DS

Have y o u ever seen the photographs?

SUSPECT

No all this was said to me was Stephen by Stephen that D a v i d
Blair W i l s o n holds the photographs for w h e n he needs t h e m or
w h e n Stephen needs t h e m to p u l l a favour.
W h e n the photographs were taken h o w l o n g ago is it since the
photographs were taken do y o u t h i n k just an estimate?
Five year ago.

DI

DI
SUSPECT

DI

Y o u t h i n k about five year ago and where is it supposed to have
taken place about?
It is supposed to have taken at a house a public a party w i t h i n
a house.
D o y o u k n o w where about?

SUSPECT

It was somewhere in the n e w t o w n I k n o w that.

DI

B u t y o u d o n ' t k n o w whose house.

DI
SUSPECT

SUSPECT
DI
SUSPECT

I don't k n o w the address, I don't k n o w the address or whose
house it was taken at a party.
A n d w h a t was supposed to be in this photograph or these p h o t o g raphs?
W h a t is supposed to be in the photograph was the Procurator
Fiscal Douglas James A l l a n w i t h a homosexual g u y under the age
of 21 and this is w h a t Stephen and D a v i d Blair W i l s o n were
h o l d i n g over h i m that they had ehh polaroids of the Procurator
Fiscal ehh in a sex act w i t h someone under the age of consent of
21.

DI

D o y o u k n o w w h o that y o u n g person is?

SUSPECT

No.

DI

W h o w o u l d k n o w w h o that y o u n g is?

SUSPECT

Stephen C o n r o y or D a v i d Blair W i l s o n .

DI

T h e y w o u l d k n o w w h o i t was?

SUSPECT

Mmhh.

DS
SUSPECT

A n d i s i t j u s t the t w o o f them?
As far as I am led to believe it was the o n l y the t w o that the was
o n l y o n l y name mentioned by Stephen was D a v i d Blair W i l s o n . "
10.15
A n o t h e r passage we t h i n k we should quote f r o m the transcript of C r a w ford's interview is as follows:
T h e can y o u describe to me the man y o u k n o w as a Procurator
"DI
Fiscal?
The best description I could give y o u of h i m is John M a j o r the
SUSPECT
Prime Minister that's w h o he reminds me o f j o h n Major's height,
b u i l d , looks, hair, glasses.
DI
W h a t height do y o u t h i n k he is?
SUSPECT
(sniff) 5'8"—5'6" ehh sorry 5'8 —6 f t .
W h a t sort o f build?
DI
M e d i u m b u i l d he is a man of say late forties ehh stocky b u t t r i m
SUSPECT
he is not fat he is not a heavy he is j u s t t r i m g u y ehh glasses.
W h a t sort of glasses does he wear?
DS
ff

44

THE LORD ADVOCATE'S INQUIRY

SUSPECT

Steel r i m m glasses silver steel r i m m e d ehh.

DI

Does he smoke?

SUSPECT

No.

DI

Does he have a moustache?

SUSPECT

No ehh I have never seen h i m smoke ehh steel r i m m e d glasses.

DS

W h a t about the hair style was it natural or was he w o u l d he wear
a hair piece?

SUSPECT

No ehh he's grey hair grey hair m e d i u m length cut cut t i d y .

DI

Was it v e r y grey?

SUSPECT

Yeah it was more of a silver silvery grey.

DI

It has no been dyed or anything like that?

SUSPECT

No.

DS

A n d h o w h i g h a forehead was he receding at all or no?

SUSPECT

He was receding slightly ehh let let me t h i n k (pause) he had it
short t i d y and combed over to one side.

DS

Mmhh.

DI

W h a t was he wearing w h a t does he n o r m a l l y wear?

SUSPECT

A l w a y s wears casual clothes ehh sometimes trainers j u s t casual
trainers ehh casual slacks and casual j u m p e r it was always.

DI

W h a t is casual w h a t is casual slacks?

SUSPECT

E h h m i g h t be fawn fawn trousers ehh like an older guys taste in
clothes j u s t a casual plain shirt a dress dress shirt b u t j u s t plain
n o t h i n g on it ehh and j u s t casual trainers j u s t plain trainers n o t
a designer trainer j u s t a p l a i n . "

10.16
I t w i l l be understood f r o m the passages w e have quoted f r o m the transcript
of the interview w i t h C r a w f o r d that the o n l y direct evidence w h i c h he was
able to give related to seeing a person w h o m he believed to be Douglas A l l a n .
E v e r y t h i n g else about this person was hearsay.
10.17 The transcript of the i n t e r v i e w w i t h C o n r o y on 17 A p r i l 1991 is impossible
to summarise. We shall quote some of the more significant passages. One passage
reads as follows:
"DI

C o u l d y o u please express i n y o u r o w n w o r d s w h a t y o u k n o w
about the former Regional Procurator Fiscal and n o w Sheriff of
Lanark, I w o u l d suggest y o u start f r o m the beginning possibly
w h e n y o u first heard or met h i m r i g h t up u n t i l the last time y o u
saw o r met h i m . N o w d o y o u understand that?

SUSPECT

Yes I d o .

DI

N o w i f y o u possibly i f y o u could start o f f and i f y o u maybe tell
me a few if y o u w h a t is the name that y o u k n o w h i m by?

SUSPECT

I k n o w h i m by Douglas A l l a n e h m m I was introduced to h i m
e h m m I was d o i n g a traineeship w i t h the L a w Society to become
a solicitor e h m m I met Mr A l l a n at various j u s t parties and
meetings y o u k n o w e h m m t h r o u g h the law people that I n o w
e h m m I was more impressed in meeting h i m because of w h o he
was e h m m he was always v e r y pleasant e h m m I m i g h t add that
these were outside sort of homosexual places these were y o u
k n o w bars normal bars and things like that e h m m he was always
v e r y pleasant d i d n ' t strike me as being homosexual e h m m u n t i l
ehh I met h i m in a gay pub a couple of times the Laughing D u c k
ehh b u t I t h i n k he disguises himself w h e n he goes in I d o n ' t t h i n k
he uses his o w n name although I k n o w h i m as being Douglas
A l l a n e h m m I d I have never seen h i m leave w i t h anybody and
he certainly hasn't left w i t h me e h m m he has been in and he has
always been v e r y pleasant and j u s t spoke e h m m he has never
mentioned to me whether y o u k n o w w h a t he is in for or whatever
e h m m it has j u s t been a general discussion of h o w y o u d o i n things
like that ehh I have gone to dinner w i t h h i m once or twice e h m m

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

45

j u s t generallyjust o u t y o u k n o w more t o further m y career e h m m
not in any sexual sense at all and never had done e h m m at a later
date I k n o w a l o t of E d i n b u r g h solicitors and advocates and
things like that involved in the gay scene e h m m I heard f r o m one
advocate a Mr D i c k e h m m Godden that ehh that were several
photo's o f M r A l l a n i n homosexual acts w h i c h I was v e r y
surprised at e h m m because as I say I had never seen Mr A l l a n
directly involved i n any w a y whatsoever e h m m M r Godden
showed me photographs that I could identify as being v e r y like
Mr A l l a n to me e h m m I w o u l d be more than sure e h m m I haven't
really it is v e r y difficult because w h e n Mr A l l a n goes out to a gay
club although he is receding on top he tends to wear a w i g e h m m
w h i c h can sometimes be confusing because the photographs were
black and w h i t e e h m m and there were several people involved
w h i c h made them confusing to l o o k at e h m m I d o n ' t k n o w w h a t
Mr Godden d i d w i t h these photographs I never used them for
any compromise or anything on my behalf ehh although my
former partner Mr C r a w f o r d had asked on several occasions that
I do so e h m m I really d o n ' t k n o w as I said to y o u already it
is v e r y difficult to c o n f i r m something like that so I had never
considered using them at all e h m m I thought Mr A l l a n more as
a friend and not as a sort of person I w o u l d go and compromise
e h m m I seen the photographs and there was a l o t of laughing and
j o k i n g around the legal fraternity w i t h t h e m e h m m w h e n I say
legal fraternity I sort of mean the gay legal fraternity e h m m but
I d o n ' t k n o w w h a t they were used for I w o u l d be aware that Mr
Godden still had t h e m in his possession or e h m m maybe one of
the other advocates or lawyers I don't k n o w where they are at
the m o m e n t I d o n ' t have any e h m m and really that's about it
e h m m Mr C r a w f o r d ehhh is a v e r y difficult person to explain
he is the type of person that loves to be involved in something
like that and he thinks that Mr A l l a n is corrupt e h m m and that
I am corrupt and that the rest of the legal fraternity are corrupt
that I w o r k e d w i t h i n w h e n I w o r k e d there e h m m I am sure there
is corruptness in every fraternity e h m m be it gay or straight or
whatever e h m m I have never found Mr A l l a n in any w a y to be
ehh y o u k n o w the type of person that w o u l d do that although
I have heard rumours before e h m m b u t I put them d o w n to
rumours cause they have never signified anything else to me
e h m m y o u k n o w Mr C r a w f o r d as I say 11 was in a disco the late
the most recent was in the Blue Oyster disco several months ago
after e h m m y o u r colleague Mr Souter had interviewed me and
ehh Mr C r a w f o r d was there w i t h a another friend e h m m w h o
I w o u l d believe w o u l d be his friend they were v e r y abusive to
me and I ignored t h e m and walked on ehh it j u s t happened that
Mr A l l a n was in the bar that night and he had seemed to k n o w
j u s t exactly w h a t was g o i n g on already w h i c h cautioned me to
a certain extent because I felt that e h m m there is somebody else
involved somewhere else along the line e h m m because I had o n l y
spoken to Mr Souter and I had been assured that nobody else
w o u l d find out e h m m Mr A l l a n asked me w h a t the hell had been
g o i n g on and I t o l d h i m no mo no more basically that people had
asked me and not n a m i n g anybody e h m m we discussed it and
he said that he w o u l d sort it out e h m m I don't k n o w w h a t
that entails e h m m w e were w a l k i n g past M r C r a w f o r d and M r
C r a w f o r d made suggestions towards Mr A l l a n and me e h m m we
continued to w a l k on as if it d i d n ' t bother us we were g o i n g to
dance and Mr C r a w f o r d e h m m tried to lunge at us e h m m he he
never intercepted and his friend pulled h i m back e h m m all I k n o w
after that is that y o u k n o w is that I was dancing w i t h Mr A l l a n
e h m m on the dance floor and e h m m I was pulled f r o m behind

A

46

THE LORD A D V O C A T E ' S INQUIRY

by the hair and dragged across the floor e h m m and s w o r n at and
t o l d that I was having my throat slit e h m m and this was Mr
C r a w f o r d but it really d i d n ' t h i t me u n t i l a few minutes later and
he had left the club by the time I had got out into the lane to
actually challenge h i m back b u t e h m m after that I was ehh the
v i c t i m of several abusing phone calls e h m m w h i c h I have taped
on my answering machine basically saying to me that y o u k n o w
things were g o i n g to happen to me and things like this w h i c h
w o r r i e d me e h m m as yet I am still in one piece ehh y o u k n o w
I have if it's any extra help I have k n o w n other people to k n o w
Mr A l l a n e h m m n o t in the legal fraternity I have spoken to other
friends before w h o have said y o u k n o w because I thought I was
b i g i f y o u like I've said d o y o u k n o w w h o that i s and I k n o w h i m
y o u k n o w he is the Procurator Fiscal e h m m I d i d n ' t k n o w that
to be a compromise b u t other people one or t w o namely have
said to me no he is somebody else he is T o m Hanks or something
y o u k n o w for example y o u k n o w e h m m so I was aware that Mr
A l l a n d i d n ' t identify himself t o people that w o u l d n ' t k n o w h i m
o r w o u l d n ' t n o r m a l l y k n o w h i m because o f his j o b e h m m
anything y o u w a n t to ask me?
DI

D i d , w h a t name d i d he use then if he w e n t out to one of these
gay clubs?

SUSPECT

W e l l I don't k n o w he always I've j u s t spoken to h i m as being
Douglas I k n o w his name is James Douglas A l l a n but he has
always asked me to call h i m Douglas.

DI

Ehmm.

SUSPECT

E h m m s o it's more o f a formal sort o f relationship y o u k n o w
where y o u meet and y o u k n o w I can call h i m his first name I don't
call h i m Mr A l l a n e h m m I can't really remember I w o u l d be
telling a lie ehh e h m m I ' m quite unsure w h a t he calls himself
w h e n he goes out b u t I j u s t k n o w that a couple of people have
said to me before on different occasions e h m m y o u k n o w that's
n o t M r A l l a n that's M r s o o n s o h e w o r k s i n the computer
department or something and I have j u s t left it at that k n o w i n g
that y o u k n o w w h o he really is e h m m and t h i n k i n g w e l l maybe
the guy doesn't w a n t to sort of y o u k n o w being in the profession
that he is in he can be I w o u l d imagine that he could be liable to
be sort of blackmailed or something like that so I thought maybe
for his o w n reasons e h m m he doesn't y o u k n o w let go on w h o
he is and I believe he had been married or was married so I thought
m a y be for these circumstances he hadn't y o u k n o w e h m m he
had declined to give t h e m his name and maybe given somebody
else w h i c h happens a l o t in the gay scene a l o t of people d o n ' t
tell y o u w h o they are and there is a l o t of it's the k i n d of scene
that a lot of people tell lies on it's y o u k n o w people seem to w a n t
to be other people e h m m y o u k n o w everybody on the gay scene
wants to d r a w attraction to themselves so they often say that they
are this or they are that or y o u k n o w they're a Sheriff or w h e n
they're n o t y o u k n o w e h m m .

DI

B u t y o u t h i n k that the M r A l l a n that y o u r talking about i s definitely right?
O h yeah."

SUSPECT

10.18
C o n r o y then w e n t on to describe meeting Douglas A l l a n in Queensferry
Street and g o i n g out for dinner w i t h h i m in the H o w a r d H o t e l in Great K i n g
Street. We n o w quote another passage f r o m the transcript:
"DI

C o u l d y o u describe h i m t o m e please?

SUSPECT

Yep. He is quite tall receding hair and he wears glasses ehh w h e n
he w e n t for dinner he never had anything on his head but he often
wears w h e n he goes to the Laughing D u c k or the Blue Oyster

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

47

where I have met h i m on several occasions a w i g on top e h m m
or a toupee whatever y o u call it ehh w h i c h changes his facial a
little y o u could be y o u could mistake h i m for being a different
person e h m m .
DS

B u t y o u ' d been in his company on b o t h w i t h the w i g and without?

SUSPECT

Yeah.

DS

W o u l d k n o w h i m either?

SUSPECT

Professionally he doesn't wear a w i g apart f r o m on the bench
n o w I w o u l d imagine he w o u l d wear a w i g e h m m professionally
w h e n I have met h i m before he d i d n ' t have a n y t h i n g on e h m m
outside for some reason or another w h i c h has m i x e d me up on
a couple of occasions e h m m although I w o u l d k n o w his face ehh
he has w o n a toupee or whatever y o u call t h e m .

DI

Right, w h a t age w o u l d y o u say he was?

SUSPECT

Forties (sigh).

DI

A g e f o r t y . I am g o i n g I ' l l s h o w y o u this picture it is a 12 3 (pause)
there are about thirteen to fourteen men in the picture could y o u
have a l o o k it's not a v e r y clear picture it's a photocopy could
y o u examine that and see i f M r A l l a n the M r A l l a n y o u k n o w
is in that group?

SUSPECT

(long l o n g pause) that one that gentleman there is not clear e h m m
(long pause) it w o u l d l o o k more like that gentleman to me.

DI

This one this gentleman here?

SUSPECT
DI
SUSPECT
DI
SUSPECT
DI
SUSPECT
DS

Or that one but that one's a b i t it's cause I can't see this ones face
more I've seen clearer photos of y o u r colleague.
Have y o u ever?
W h i c h I have identified.
Ever seen that that photograph this particular one?
I've been s h o w n one similar to that.
W h o showed y o u it?
Y o u r colleague M r Souter.
That's okay. R i g h t sorry yeah n o w in that photograph that y o u r
indicating to a person that y o u k n o w as Mr A l l a n it appears
to be the t h i r d person along f r o m the r i g h t hand side of the
photograph.

SUSPECT

I ' m confused this gentleman looks v e r y like h i m but then again
e h m m the hair w o u l d the hair w o u l d make me say no this
gentleman here.

DS

That's the one.

SUSPECT

B u t I couldn't see.

DS

The t h i r d f r o m the right.

SUSPECT

Yes it is.

DS

We t h i n k is more likely to be the one.

SUSPECT
DS

Yeah.
T h a n k y o u . C o u l d I ask y o u about the photographs that y o u
mentioned there y o u say that ehh a person or one of the persons
in the photograph was Mr A l l a n , is that correct?

SUSPECT
DS

Ehmm.
Y o u have seen these photographs?

SUSPECT
DS

I've seen the photographs.
H o w m a n y photographs are we t a l k i n g about?

SUSPECT
DS
SUSPECT

A b o u t four o r f i v e .
A r e they polaroid or are they been developed?
T h e y looked I w o u l d n ' t k n o w the difference really e h m m they
are b i g photos y o u k n o w they are maybe about this size A 4 .

DS

W e l l polaroid are n o r m a l l y m u c h smaller than that so ehh.

48

THE LORD A D V O C A T E ' S INQUIRY

DI

T h e y are quite large about one foot even w e l l than w h a t six or
seven.

SUSPECT

A b o u t five or six.

DI

Five or six.

DS

A r e they colour photographs or black and white?

SUSPECT

Black and w h i t e .

DS
SUSPECT

H o w many persons w o u l d be in the photographs?

DS
SUSPECT

A n d h o w many photographs are we t a l k i n g about?
Five or six.

DS

Right."

Three or four at the most in one photograph.

He also stated that the persons in the photographs were all male and were naked.
We see no need to quote further f r o m his descriptions of the photographs.
10.19
In reporting on these interviews to the Procurator Fiscal b o t h I r v i n g and
Corbett described C o n r o y as devious. Robert Lees succeeded Duncan L o w e as
Regional Procurator Fiscal at E d i n b u r g h on 1 A p r i l 1991. Before then Duncan
L o w e had made h i m aware of the terms of the Souter m e m o r a n d u m . A f t e r
C r a w f o r d and C o n r o y had been interviewed and the transcripts and report were
available there was a meeting at C r o w n Office attended by the L o r d Advocate,
Duncan L o w e , w h o was by then the C r o w n A g e n t , and Robert Lees. It was
decided that D a v i d Blair-Wilson should be interviewed about those aspects of
Conroy's allegations w h i c h suggested that Douglas A l l a n m i g h t have been c o m promised. Robert Lees accordingly arranged a meeting w i t h D a v i d B l a i r - W i l s o n ,
w h i c h t o o k place on 10 M a y 1991. Kenneth Maciver, Assistant Procurator Fiscal,
was also in attendance. At the meeting D a v i d B l a i r - W i l s o n said that he had never
met Douglas A l l a n , had not seen h i m in any of the premises referred to by C o n r o y ,
and denied any knowledge of the photographs referred to by C o n r o y . He stated
that w i t h his familiarity of the "gay scene" he w o u l d have k n o w n if Douglas A l l a n
was a homosexual, and had heard n o t h i n g to that effect. A c c o r d i n g to Robert
Lees, D a v i d Blair-Wilson said: " I f you're g o i n g to base any case on C o n r o y ,
double and triple check i t , he is a liar." Robert Lees gained the overall impression
that D a v i d Blair-Wilson was telling the t r u t h . Thereafter Robert Lees returned
to the C r o w n Office to report to the L o r d Advocate and the C r o w n A g e n t . He
t o l d them his views about his meeting w i t h D a v i d B l a i r - W i l s o n and it was decided
that because there was no evidence of the existence of the photographs referred
to by C o n r o y there was accordingly no evidence to j u s t i f y taking the i n q u i r y
further.
10.20 A newspaper called "The Sunday Scot" appeared as a publication for a
short time. In its edition of 12 M a y 1991 there was an item entitled "Gay B o y and
the Sheriff' w h i c h repeated Conroy's allegations, b u t w i t h o u t n a m i n g Douglas
A l l a n . W h i l e it is possible that either C o n r o y or C r a w f o r d gave the story to the
newspaper, another distinct possibility is that it came f r o m a police officer w h o
k n e w of the contents of Souter's memorandum of 21 February 1991 and was
dissatisfied w i t h the steps w h i c h had been taken. Sheriff A l l a n was aware of the
publication, b u t decided that because he was not named in it there was no action
w h i c h he could usefully take. His attitude to further newspaper stories published
since the time that C o n r o y appeared in court in July 1992 has been that he expects
the t r u t h to emerge in our Report.
10.21 At an early stage of our investigations it became apparent that Conroy's
position in relation to his allegations against Douglas A l l a n m i g h t be materially
different f r o m w h a t it had been eighteen months previously. On 22 September
1992 C o n r o y telephoned Police Headquarters f r o m prison and said that he wanted
to see Detective Inspector Michael Souter as he had information for h i m . It was
decided that he should be seen, n o t by Souter, b u t by Detective Inspector I r v i n g
and Detective Sergeant Corbett, w h o had previously interviewed h i m on tape.
T h e y interviewed h i m , again on tape, at HM Prison, Glenochil, on 23 September
1992. We have a copy of the transcript. W h a t C o n r o y had to say to the t w o officers
was even more incoherent than it had been or. the previous occasion, b u t we quote
briefly f r o m i t . At one point he said:

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

49

"When I met y o u d o w n at Fettes Headquarters I was under a l o t of pressure,
I d i d tell y o u several untruths into the Douglas A l l a n situation. I exaggerated
b y y o u k n o w , the relationship w i t h h i m i f y o u like, m y knowledge o f h i m
because y o u k n o w I was w o r r i e d w h e n M r Souter and M r B r o w n charged
me, and although I k n e w somethings I d i d n ' t k n o w quite w h a t I k n e w so
I made them up to the extent to t r y y o u k n o w , save me f r o m being charged
on the fraud matters."
W h e n , rather later in the interview, he was asked w h a t untruths he had t o l d the
officers on the previous occasion, he said:
"Just really the situation w i t h Douglas A l l a n , y o u k n o w the club, the
nightclub in question, I am not a hundred percent certain I was w i t h Mr
A l l a n , y o u k n o w , maybe its other people w h o identified them as being so
and w h e n I seen a photograph given to Mr Souter he d i d certainly l o o k
like h i m , b u t y o u k n o w I don't k n o w . . . "
W h e n w e interviewed I r v i n g and Corbett separately they concurred in an assessment of C o n r o y as being a v e r y devious person.
10.22
A m o n g various stories w h i c h appeared in the press d u r i n g September
1992 we t o o k particular note of one w h i c h appeared in "The Observer" on 27
September, headed "Gay H u n t Police Offered Me Deal" and w h i c h started:
"Lothian and Borders Police were so keen to prove the existence of the
"magic circle" of gay lawyers and judges that they offered to drop the
case against fraudster Stephen C o n r o y in exchange for evidence of a gay
conspiracy."
D u r i n g the story C o n r o y is quoted as having said to the journalist w h o w r o t e
it:
"I d i d k n o w lawyers and I d i d k n o w a Sheriff, b u t no relationship ever t o o k
place and as far as I k n o w no photo ever existed. I saw the Sheriff once in
a gay bar, it's true, b u t I d o n ' t even k n o w if he is gay. A lot of straight
people go to gay bars."
10.23

On 2 October 1992 C o n r o y w r o t e a letter to us in w h i c h he stated:
" M y experiences, w i t h the Lothian Borders Police, and other events should
be made k n o w n to y o u . I feel this information can o n l y be constructive,
and in my o p i n i o n it is o n l y fair that I be given this o p p o r t u n i t y to portray
the truth t o y o u directly o n this unsavoury scenario."

10.24 A l t h o u g h there was every reason to continue to treat Conroy's original
allegations against Douglas A l l a n as untruthful w i t h o u t further investigation, we
came to the v i e w that we should investigate the matter ourselves and that we
should interview C o n r o y . A c c o r d i n g l y in the first place we interviewed the
persons w h o had featured in the original allegations as having knowledge of the
compromising photographs of Douglas A l l a n . Richard Godden t o l d us that he
k n o w s M a r k F i t z p a t r i c k w e l l . He regards Stephen C o n r o y as a slight acquaintance.
He does n o t k n o w D a v i d B l a i r - W i l s o n , although he m a y have met h i m . He has
never met Douglas A l l a n or even seen h i m . He does not t h i n k that C o n r o y has
ever been in his flat. He does not k n o w K e v i n C r a w f o r d and has never met h i m .
He knows his name because C o n r o y mentioned h i m as his boyfriend. He had no
knowledge of the existence of the allegedly c o m p r o m i s i n g photographs. M a r k
Fitzpatrick said that he knows C o n r o y , but d i d not recall ever being in his company
In Godden's flat. He does n o t k n o w Douglas A l l a n and has never seen or heard
o f the allegedly c o m p r o m i s i n g photographs. W h e n w e interviewed D a v i d BlairW i l s o n his position was the same as it had been w h e n he was interviewed by
Robert Lees and Kenneth Maciver.
10.25
Arrangements were made for C o n r o y to be brought to HM Prison,
Saughton, to be interviewed by us. We made it clear to h i m that we were interested
o n l y in discovering the t r u t h and that we were not in a position to do h i m any
favours. We t o l d h i m to concentrate on our questions and to give direct answers
to them. He t o l d us that he does not k n o w Douglas A l l a n personally. He said that
he does k n o w h i m by sight because of having seen h i m in Parliament House w h e n
he was Regional Procurator Fiscal. He also saw h i m once or twice in Queensferry
Street near to his office, at a time w h e n C o n r o y had a hairdresser's business in

50

THE LORD A D V O C A T E ' S INQUIRY

Lynedoch Place. He has never spoken to h i m . C o n r o y was in "The Blue Oyster"
on one occasion and saw somebody w h o was not Douglas A l l a n , b u t was v e r y
like h i m . He has no reason to believe Douglas A l l a n is a homosexual. He has never
been in the same company as Douglas A l l a n . He has never had a meal w i t h Douglas
A l l a n . He has never seen a photograph depicting Douglas A l l a n apart f r o m those
s h o w n to h i m by police officers, w h i c h we showed to h i m again. He has never
regarded himself as being in a position to procure any k i n d of favour f r o m Douglas
A l l a n . He has no reason to say that Douglas A l l a n w o u l d do anything to b r i n g
himself or his office into disrepute. He has no direct knowledge of any i m p r o p r i e t y
by Douglas A l l a n . Of his allegations against Douglas A l l a n he said:
"I am t r y i n g to be as honest and frank as I can. I have been dishonest before.
It is time to be honest. It was blatant dishonesty."
At a later stage he said:
" I ' d like to apologise. I feel I have made people's positions difficult t h r o u g h
n o t being honest. I was under pressure."
10.26
He tried at some length to make out that he had made the allegations
against Douglas A l l a n because he had been p u t under pressure by Souter and
B r o w n w h o had indicated that i f h e helped them w i t h their "magic circle" theory
they could hinder the investigation into his criminal activities. We do not elaborate
on this because the police first heard of Conroy's allegations f r o m C r a w f o r d and
there is no question of Souter and B r o w n having caused C o n r o y to make the
allegations. This is n o t to say that they d i d not take a keen interest in the allegations
once made, w h i c h m a y w e l l have led C o n r o y to believe that if he persisted in
m a k i n g the allegations he m i g h t induce them to favour h i m .
10.27 As we have mentioned previously, the w o r d "photograph" acted as a
trigger to C o n r o y . At times he became agitated and voluble and described p h o t o g raphs, not s h o w i n g Douglas A l l a n , w h i c h he claimed Richard Godden had s h o w n
h i m and C r a w f o r d at Godden's flat. We have no reason to suppose that there is
any t r u t h in this.
10.28 We interviewed K e v i n C r a w f o r d after we had seen C o n r o y . He
emphasised to us that the allegations about Douglas A l l a n w h i c h he had repeated
w h e n he was interviewed by I r v i n g and C r a w f o r d were based on hearsay f r o m
C o n r o y , t h o u g h he was prepared to believe t h e m . He insisted, however, that
t h o u g h he had n o t seen any c o m p r o m i s i n g photographs of Douglas A l l a n , he had
been in Richard Godden's flat w i t h C o n r o y . He gave a description of Richard
Godden w h i c h included his having a beard and moustache and greying hair swept
back, w e a r i n g 1940's style clothes and having 1940's style furniture in his flat. We
have confirmed w i t h Richard Godden that this information is not correct. He has
dark hair. He has never had a beard. He once grew a moustache for a theatrical
production about eight years ago b u t shaved it o f f afterwards. The descriptions
of his clothing and furniture are n o t correct.
10.29
On a more important matter, C r a w f o r d insisted to us that he had seen
a man, w h o m he believed to be Douglas A l l a n , about twelve times in "The Blue
Oyster". This was over a period f r o m about December 1987 into 1988. C r a w f o r d
had been w i t h C o n r o y on these occasions. O n l y C o n r o y had spoken to the man.
The occasions were Friday or Saturday nights, w h e n the man had stayed f r o m
about 12.30 or l a m u n t i l about 4am. He w o r e a loose shirt, fawn slacks and plain
w h i t e trainers. W h e n we showed h i m the photographs he had seen previously
C r a w f o r d identified the police officer standing fifth f r o m the left in the black and
w h i t e photocopy photograph as being the m a n . He also identified Douglas A l l a n
in the colour photograph as being the m a n . He insisted to us that it was one and
the same m a n w h o was s h o w n in these photographs.
10.30
It should be added at this point that, at his request, we interviewed Stephen
C o n r o y , senior, Conroy's father. He was concerned about the effect on himself
and other members of his family of the publicity about his son and the allegations
attributed to h i m . He described his son as being manipulative, v e r y immature
about some matters, and inclined to fantasise. A c c o r d i n g to Stephen C o n r o y ,
senior, his son has never made allegations in his hearing about Douglas A l l a n ,
about c o m p r o m i s i n g photographs or about homosexuals w h o were liable to be

A L L E G A T I O N S B Y S T E P H E N C O N R O Y A G A I N S T SHERIFF D O U G L A S A L L A N

51

blackmailed. He said that it was K e v i n C r a w f o r d w h o made such allegations.
W h e n we read o u t to h i m a passage f r o m the transcript of Conroy's interview
w i t h I r v i n g and Corbett he was n o t able to reconcile that w i t h w h a t his son had
otherwise said to h i m . He described to us an occasion in about A p r i l or M a y 1991
w h e n he was at his son's flat and Souter and B r o w n had visited his son in the course
of their investigation into the frauds c o m m i t t e d by h i m . A c c o r d i n g to Stephen
C o n r o y , senior, w h o overheard part of w h a t was said, they were m u c h more
interested in talking about c o m p r o m i s i n g photographs ofhomosexuals than about
fraud.
10.31 At a stage w h e n we had interviewed both Conroys and, as it happens, on
the day on w h i c h we interviewed Walter Easton S m i t h , we received an unsolicited
letter f r o m C o n r o y dated 24 N o v e m b e r 1992 enclosing an unsealed letter to
Douglas A l l a n , w i t h a request that we make sure that it be given to h i m . We
reproduce the text of the letter to Douglas A l l a n in f u l l :
"Stephen M C o n r o y
1117/92 C - H a l l
H M P Glenochil
Tullibody
Clackmannanshire
FK10 3 A Y
25th November. 92
Dear Sir,
I feel that I owe sincere apology to b o t h y o u and y o u r family. O v e r a period
of time various rumours have developed, w h i c h I have played party t o o .
These rumours had no foundation, and no i l l - w i l l was intended, since then
these rumours have escalated o u t of all p r o p o r t i o n , and I cannot begin too
imagine the amount of stress and discomfort this has caused y o u and y o u r
family.
I am totally ashamed of my Association in this unsavoury scenario, No
w o r d s can sustain my utter regret, Everyday in y o u r court Sir, y o u have
people that come before y o u , people that are Unfortunate, to have no
parents or support, no money, need I go on as y o u are familiar w i t h w h a t
I am attempting to portray, My parents have been mentally scarred w i t h
the actions I played party t o o , yet they remain completely supportive, I
often w o n d e r w h y ? M y parents brought m e u p o n strong morals—and m y
u p b r i n g i n g was a fortunate one, My parents H o w e v e r , never b r o u g h t me
up to resort to the actions, I have been involved i n . I could go into reasoning,
b u t I feel this is irrelevant, the principal is that I played a role in something
w h i c h my parents belief was completely out of character, and thus be the
reasoning behind their fortunate, continual support. The last 3 years of my
life, Sir, have been a mess, and I w a n t so m u c h to i m p r o v e and become
a better person, w h o can hopefully be trusted to rejoin Society, and perhaps
repay my parents, and become someone that they are p r o u d off.
Sir, I beg for no forgiveness as I accept that the damage w h i c h I have
associated m y s e l f in—is irrepairable, I can o n l y offer my sincere apologises
once again to y o u personally and of course y o u r f a m i l y , In my wildest
dreams, I could never begin to imagine the amount of innocent people that
I w o u l d h u r t as a consequence of my actions.
W r i t t e n w i t h Sincere Regret.
M o s t Respectfully,
Stephen M . C o n r o y
1117/92"
10.32 We have of course discussed all these matters w i t h Douglas A l l a n . He
assured us that he has never been in "The Laughing D u c k " or "The Blue Oyster",
does not k n o w C o n r o y , and k n o w s n o t h i n g of compromising photographs. He
has not w o r n clothing as described by C r a w f o r d . He generally spends Friday
evenings at home w i t h his w i f e . He is v e r y circumspect in his social life and careful
about the k i n d of place in w h i c h he m i g h t be seen. A b o v e all he is aware of having
done n o t h i n g w h i c h could have compromised h i m in the performance ofhis duties

52

THE LORD A D V O C A T E ' S INQUIRY

as a Regional Procurator Fiscal (or for that matter a Sheriff) and n o t h i n g w h i c h
w o u l d be inconsistent w i t h the proper investigation and prosecution of crime and
the proper administration of justice.
10.33 We entirely accept w h a t Sheriff A l l a n said to us. Q u i t e apart f r o m the fact
that Conroy's original allegations against h i m were incapable of substantiation,
C o n r o y has n o w expressly w i t h d r a w n those allegations in their entirety. T h e y
b o t h agree that they have never been in each other's company. Crawford's evidence
remains something of an anomaly, b u t his powers of description and identification
are such that we cannot treat h i m as a reliable witness to Douglas Allan's alleged
presence in "The Blue Oyster". No other witness claimed to have seen h i m in
such a place apart f r o m Walter Easton S m i t h and Dean Barnes, whose evidence
we discuss b e l o w . It is impossible to understand f u l l y w h y C o n r o y should have
chosen to make such damaging allegations against Douglas A l l a n . He had started
to make t h e m before he was interviewed by the police. Thereafter he m a y have
perceived some advantage to himself, as is reflected in the eagerness w i t h w h i c h
Souter and B r o w n pursued the allegations. In the end the o n l y answer m a y be
that p r o m i n e n t persons are exposed to the occupational hazard of featuring in the
fantasies of disturbed people such as C o n r o y .

O T H E R A L L E G A T I O N S A G A I N S T SHERIFF D O U G L A S A L L A N

53

11. O T H E R A L L E G A T I O N S A G A I N S T
SHERIFF D O U G L A S A L L A N

11.1 We have had to investigate other allegations against Douglas A l l a n and
other stories about photographs. Souter t o l d us that w h e n he was investigating
Conroy's fraudulent activities he had occasion to visit the premises o f j o h n Hudson
& C o m p a n y L i m i t e d at Dalkeith. C o n r o y had been employed there for a time
in 1988 as a sales representative. A c c o r d i n g to Souter he was t o l d that w h e n one
of the staff cleaned out the glove compartment of a car w h i c h C o n r o y had used
they found black and w h i t e photographs of naked men, w h i c h photographs were
subsequently destroyed. It was clear f r o m the w a y in w h i c h Souter t o l d us about
this that he thought that the photographs m i g h t be compromising photographs
of Douglas A l l a n . He t o l d us, to our surprise, that he made no further i n q u i r y
about w h a t was s h o w n in the photographs w i t h a v i e w to possible identification
of the m e n . In the course of our I n q u i r y we asked Assistant C h i e f Constable Power
to arrange for steps to be taken for possible witnesses to the finding of these
photographs to be traced. This was done by Chieflnspector Harvey, w h o reported
in w r i t i n g w i t h statements of the witnesses w h o m he had traced. He reported,
under reference to persons w h o had been employed respectively as a sales manager
and a traffic controller by the Company:
"There are differing opinions between T h o m s o n and Scott as to the descript i o n of the photographs. T h o m s o n recalls a black and w h i t e photograph
of a male clad in denim jeans w h i l e Scott thought the male was wearing
o n l y pants and the photograph to be colour. As to the destruction of the
photograph T h o m s o n is under the impression Scott tore it up w h i l e Scott
assumes T h o m s o n disposed of i t . F r o m the statements it is reasonable to
assume that there was o n l y one photograph in existence; it was recovered
f r o m the Vauxhall A s t r a m o t o r car, most probably by T h o m s o n ; the
photograph depicted a male model clad in either jeans or underpants; the
photograph was endorsed in h a n d w r i t i n g on the front w i t h w o r d s similar
' t o Stephen w i t h love f r o m
' (male's name); the photograph was
destroyed or is n o w missing."
11.2 Harvey's thorough investigation has thus served to demonstrate that Souter
was entirely incorrect in his account to us of w h a t he had been t o l d about the
photograph. Instead of s h o w i n g naked men, it showed one partly clad y o u n g
m a n . By no stretch of the imagination could it be described as a c o m p r o m i s i n g
photograph of a Regional Procurator Fiscal.
11.3 There is another story about a photograph w h i c h we have had to investigate.
Michael Glen is a man w i t h an extensive record of crimes of dishonesty. We have
been supplied w i t h a copy of his criminal record, in w h i c h he is correctly described
as an habitual fraudster. For a time p r i o r to Conroy's appearance in court Glen
and C o n r o y shared a cell in Saughton Prison. No doubt C o n r o y spoke to Glen
of photographs. Conroy's current partner is A n d r e w M c L a u g h l i n , w h o stays
d u r i n g the week at his brother Michael's house in Livingston and is employed
in Livingston. A n d r e w M c L a u g h l i n has regularly visited C o n r o y in prison. Glen
learned about h i m at that t i m e . Glen was released f r o m prison before Conroy's
appearance in court on 20 July 1992. W h e n we interviewed D a v i d Johnston for
the purposes of part 12 of this Report he t o l d us that immediately after Conroy's
appearance in court he had been in a public house called "Snatchers" in the H i g h
Street in E d i n b u r g h and, because of his connection w i t h "The Sun" newspaper
had become involved to a limited extent in an attempt w h i c h Glen was m a k i n g
by telephone to sell w h a t he claimed to be a photograph s h o w i n g Douglas A l l a n
to that newspaper. We accordingly invited Glen to attend for interview.

54

THE LORD A D V O C A T E ' S INQUIRY

11.4 D u r i n g the course of the interview Glen t o l d us that there was a photograph,
w h i c h he had seen, s h o w i n g Douglas A l l a n and Stephen C o n r o y sitting on a settee
w i t h a coffee table in front of t h e m . M a r k Fitzpatrick was also in the photograph.
He d i d not suggest that the photograph d i d other than show Douglas A l l a n and
C o n r o y in a context of some familiarity w i t h each other. He insisted that the
person shown in the photograph was Douglas A l l a n , w h o m he claimed to have
seen in person. Glen said that the photograph belonged to C o n r o y but was
currently i n the possession o f A n d r e w M c L a u g h l i n , w h o was "playing silly b u g gers" because he t h o u g h t it m i g h t have some value and was reluctant to return
it to Glen. We asked Glen to attempt to arrange the return of the photograph by
Andrew McLaughlin.
11.5 We made contact w i t h Glen some days later to ask h i m w h a t progress he
had made. He t o l d us that he had arranged to go to Livingston at 6 p m the f o l l o w i n g
day w h e n he expected A n d r e w M c L a u g h l i n to let h i m have the photograph
w i t h o u t more ado. We arranged to call at n o o n the day after that at a shop w h i c h
Glen was having fitted out in C o c k b u r n Street, E d i n b u r g h , so that he could hand
the photograph to us. W h e n we w e n t there, he was there, but said that he d i d
not have the photograph because he had gone to the house in L i v i n g s t o n as
arranged b u t found no one there despite having waited for t w o hours. He said
that he had tried telephoning w i t h o u t success. He said that he w o u l d continue
to make efforts to contact A n d r e w M c L a u g h l i n w i t h a v i e w to recovering the
photograph f r o m h i m . A f t e r we had left Glen we telephoned the house and
spoke to Michael M c L a u g h l i n . He t o l d us that A n d r e w M c L a u g h l i n had gone to
E d i n b u r g h for the weekend. We w e n t back and t o l d Glen this, and he said that
he w o u l d l o o k in various public houses where A n d r e w M c L a u g h l i n m i g h t be
found. He telephoned one of us the f o l l o w i n g day to say that he had tried that
w i t h o u t success.
11.6 We left the matter for a few days before g o i n g to speak to Glen again in
C o c k b u r n Street. He had done n o t h i n g more, and seemed content that we should
pursue the matter ourselves. We d i d so. We attempted to telephone A n d r e w
M c L a u g h l i n at his employers' premises b u t were t o l d that he could n o t be found.
T h e n we w e n t to L i v i n g s t o n and found Michael M c L a u g h l i n at his house. He was
f u l l y co-operative. He said that there had been no contact w i t h Michael Glen of
w h i c h he was aware apart f r o m a message on his telephone answering machine
m e n t i o n i n g the L o r d Advocate's I n q u i r y . He was sure that his brother A n d r e w
w o u l d not w i s h to speak to Michael Glen. He gave us directions to his brother
A n d r e w ' s place of employment. Just as we were leaving A n d r e w M c L a u g h l i n
came to the house in a h u r r y , having been t o l d that someone f r o m C r o w n Office
had been t r y i n g to contact h i m . This was a reference to our earlier telephone call
to his employers. He intended to telephone C r o w n Office to find out w h a t was
wanted. He was f u l l y co-operative w i t h us and readily agreed to be interviewed.
He made it clear to us that he k n e w n o t h i n g of any photograph and could n o t
understand w h y Glen was claiming that he had possession of one. The o n l y
photograph he had was one of C o n r o y alone, w h i c h he showed to us.
11.7 We w e n t back to E d i n b u r g h , found Glen, and arranged for h i m to attend
for a further interview the f o l l o w i n g day. On that day he caused a friend to
telephone us to say that he was otherwise engaged, b u t w o u l d telephone to arrange
a fresh appointment. W h e n he d i d n o t do so we telephoned h i m a few days later
and arranged to see h i m the f o l l o w i n g m o r n i n g in C o c k b u r n Street. W h e n we
saw h i m we pressed h i m for further information about the photograph. He said
that it had come into his possession in a flat in Thistle Street along w i t h other
belongings of C o n r o y and A n d r e w M c L a u g h l i n . He claimed to have shown the
photograph to "a chap f r o m 'The D a i l y Record' w h o verified it was Douglas
A l l a n . " He declined to name this person to us. He said he had not sold the
photograph to "The D a i l y Record" because " i t w o u l d n ' t come up w i t h the r i g h t
figure." He was unable to give an intelligible account of h o w the photograph had
left his possession and had got into A n d r e w McLaughlin's possession. He insisted
that he had made contact w i t h A n d r e w M c L a u g h l i n . We t o l d h i m we had seen
A n d r e w M c L a u g h l i n ourselves and that, since there was n o t h i n g to support Glen's

O T H E R A L L E G A T I O N S A G A I N S T SHERIFF D O U G L A S A L L A N

55

account, Glen appeared to be a liar. He then invited us to leave the premises, and
so we left. We have heard n o t h i n g more f r o m Glen.
11.8 At one point Glen t o l d us that he believed that Karen B r o w n , the licensee
of "The Tree" public house in Gorgie Road, E d i n b u r g h , had had possession of
some of Conroy's photographs, w h i c h m i g h t be interesting, b u t they had been
stolen f r o m her car. We have spoken to Karen B r o w n . She t o l d us that for a time
in early 1992 she looked after t w o bags of clothes, and perhaps other possessions
belonging to A n d r e w M c L a u g h l i n , all of w h i c h she returned to h i m by arrangement in about June 1992 in the car-park at Saughton Prison, after he had visited
C o n r o y there. N o t h i n g of his has ever been stolen f r o m her car, though her car
was stolen, w i t h its contents w h i c h were her property, some months ago. She
k n e w n o t h i n g about the existence of allegedly compromising photographs. She
resented the w a y in w h i c h Glen had involved her in our I n q u i r y .
11.9 We have referred to our dealings w i t h Michael Glen at some length because,
although he is not the k i n d of man in whose evidence we w o u l d readily have
suspended disbelief, he has helped to keep alive the story of the existence of
allegedly compromising photographs of Douglas A l l a n . A recent press report of
the supposed existence of such a photograph is, we believe, attributable to Glen's
activities. O u r I n q u i r y failed to b r i n g any such photograph to l i g h t . We have no
reason to believe that it has ever existed. We are sure that if such a photograph
ever had existed it w o u l d have been sold to a newspaper l o n g ago.
11.10 Walter Easton Smith ( c o m m o n l y k n o w n as T e r r y Smith) was convicted
of an indecent assault on 3 July 1992 and was sentenced to four years' i m p r i s o n ment. At an early stage in our I n q u i r y he was granted i n t e r i m liberation pending
an appeal against his conviction. We propose to say n o t h i n g about the c i r c u m stances of his conviction or his grounds of appeal. We became aware, however,
that he had made public statements b o t h in and o u t of court w h i c h suggested that
he m i g h t be in possession of information w h i c h w o u l d be relevant to our I n q u i r y .
We accordingly invited h i m to attend for interview. There was some delay because
the solicitors he had instructed to act for h i m in connection w i t h his appeal were
concerned that it m i g h t not be in his best interests for h i m to be interviewed by
us u n t i l after his appeal had been disposed of. Eventually, after some discussion,
he d i d attend for interview at a late stage in o u r I n q u i r y and before his appeal had
been disposed of.
11.11 At interview Smith made a number of claims, principally relating to
Douglas A l l a n . He claimed that he k n e w C o l i n Tucker and that he had knowledge
of Tucker's "list". He said to us that Tucker had t o l d h i m that the "list" included
three presently serving Judges, and gave their names. W h e n we asked h i m w h e n
Tucker had t o l d h i m about this "list", he gave contradictory evidence of the date,
describing first an occasion w h e n the affairs of Burnett Walker WS were first being
investigated in 1988 and second an occasion after Tucker's trial and the resignation
o f L o r d Dervaird in 1989, by w h i c h time of course there were a number of rumours
current about Judges, including the Judges in question. For the reasons we have
already discussed in part 6 of this Report we are satisfied that Tucker said no such
t h i n g to Smith and that S m i t h was accordingly l y i n g to us. For w h a t it is w o r t h ,
Smith d i d n o t claim more than hearsay knowledge of the homosexuality of any
C o u r t of Session Judge.
11.12 As we have said, Smith's principal claims related to Douglas A l l a n . He
made it clear that he had a grudge against Douglas A l l a n . Smith t o l d us that after
leaving the A r m y some years ago he t o o k an interest in the welfare of homosexual
soldiers and became involved in an organisation called "RankOutsiders Scotland".
He t o o k to m a k i n g complaints about the alleged ill-treatment of homosexual
soldiers by the M i l i t a r y Police. This was at a time w h e n Douglas A l l a n was
Regional Procurator Fiscal in E d i n b u r g h . A c c o r d i n g to S m i t h , Douglas A l l a n was
involved in the devising of a scheme to stop h i m f r o m l o d g i n g complaints. He
spoke of having had a heated telephone conversation w i t h Douglas A l l a n about
one particular complaint. A c c o r d i n g to h i m , the upshot was that a letter was sent
to h i m f r o m Lothian and Borders Police w i t h the permission of Douglas A l l a n
stating that they w o u l d not investigate any further complaints that he made about
the police, and accordingly "disqualified h i m of his legal rights". We have not

56

THE LORD A D V O C A T E ' S INQUIRY

seen this letter. A c c o r d i n g to S m i t h , this was h u m b u g on Douglas Allan's part
because, at the same time as obstructing attempts to further the interests of
homosexuals he h i m s e l f frequented "The Laughing D u c k " and k n e w Stephen
Conroy.
11.13
It is of obvious relevance to mention that w h i l e Smith was in Saughton
Prison in early 1992 he k n e w b o t h Stephen C o n r o y and Michael Glen. He t o l d
us that he spoke to Glen quite a l o t and occasionally had cups of tea w i t h C o n r o y ,
w h o claimed that he had had a relationship w i t h Douglas A l l a n , that there was
a c o m p r o m i s i n g photograph of Douglas A l l a n , and that Douglas A l l a n had done
favours for h i m . A l t h o u g h his current claims about Douglas A l l a n relate to the
period before Douglas A l l a n became a Sheriff in 1988, we have no evidence that
S m i t h first made these claims u n t i l after meeting C o n r o y in 1992. H i s claims
therefore s h o w every sign o f being based o n w h a t C o n r o y t o l d h i m . W h e n w e
suggested to h i m that n o t o n l y Douglas A l l a n b u t also C o n r o y m i g h t n o w deny
that there had ever been a relationship between t h e m , he became disconcerted.
He nevertheless persisted in m a k i n g his claims to us.
11.14
S m i t h said that he had seen Douglas A l l a n in "The Laughing D u c k " twice
in 1988 " w i t h various gay people". B o t h occasions were in the early evening w h e n
the premises were fairly quiet. S m i t h said that he himself was w i t h a v e r y close
friend called Dean Barnes on b o t h occasions. Since Smith obviously k n e w Douglas
A l l a n by sight for other reasons, there was no point in our s h o w i n g h i m p h o t o g raphs.
11.15 A few days after i n t e r v i e w i n g Smith we interviewed Dean Barnes. Barnes
said that S m i t h had spoken to h i m in the meantime but had n o t discussed w h a t
he had t o l d us. We d i d n o t believe this, as S m i t h makes a habit of speaking at length
to anybody w h o is prepared to listen to h i m about his claims relating to Douglas
A l l a n . A c c o r d i n g to Barnes, he was w i t h Smith in "The Laughing D u c k " about
four years ago w h e n S m i t h pointed o u t a man standing on his o w n at the bar,
speaking o n l y to the barman, and said that he was Douglas A l l a n . On the second
occasion, a few months later, the same man was in the bar by himself sitting at
a table. Barnes said that although the premises were more crowded on that occasion
he recognised the m a n w h e n he passed h i m . B o t h occasions were late in the
evening. Barnes was unable to give any clear description of the man, and w h e n
shown the faces of all the men in the photographs in our possession he failed to
identify Douglas A l l a n .
11.16 We continue to be satisfied that Douglas A l l a n has never been in "The
Laughing D u c k " . S m i t h was accordingly l y i n g w h e n he t o l d us that he had seen
Douglas A l l a n there. Barnes was also l y i n g w h e n he said that Smith had pointed
o u t a man and said that he was Douglas A l l a n . T h e obvious discrepancies in their
stories support this v i e w . For w h a t it is w o r t h , however, we should add that S m i t h
expressly stated that all he could say of Douglas Allan's alleged presence in "The
Laughing D u c k " was: "So what?"
11.17
S m i t h further claimed that there was a relationship between Douglas A l l a n
and C o n r o y and was satisfied that there was a photograph of t h e m b o t h in a social
setting. He d i d n o t claim to have seen it himself, b u t said that M a r t i n F r u t i n , a
friend of his, t o l d h i m that C o n r o y had s h o w n h i m the photograph. He also t o l d
us that M a r t i n F r u t i n had t o l d h i m that he had seen Douglas A l l a n and C o n r o y
together socially in "The Blue Oyster".
11.18
S m i t h was aware, w h e n he made the claim, that M a r t i n F r u t i n , the alleged
source of the information, was then in Thailand. T h a t d i d not deter us f r o m t a k i n g
steps to trace and contact M a r t i n Frutin, and we made a telephone call to h i m in
Bangkok. He was v e r y co-operative. He said that he does not k n o w Douglas
A l l a n . He does k n o w C o n r o y t h r o u g h having employed h i m in a shop for about
three weeks in 1986. He said that C o n r o y t o l d h i m stories about prominent people
w h i c h were no more than fantasies. He said that it was a lie that he had t o l d S m i t h
that C o n r o y had s h o w n h i m a photograph of himself and Douglas A l l a n . He had
never seen such a photograph. He t o o k the o p p o r t u n i t y to express indignation
about t w o passages of the O r r Report in w h i c h he is mentioned. He described
t h e m b o t h as absolute nonsense and was annoyed that nothing had been done to
check the t r u t h of these allegations about h i m before they were included in a police

O T H E R A L L E G A T I O N S A G A I N S T SHERIFF D O U G L A S A L L A N

57

report. We are satisfied that Smith lied to us in w h a t he said M a r t i n F r u t i n had
t o l d h i m about C o n r o y and Douglas A l l a n .
11.19 We have no doubt that Smith's untruthful claims about Douglas A l l a n
were motivated by malice. We w o u l d conclude our discussion of our interview
w i t h Smith by mentioning that his solicitor, James M u i r of Sneddons, Shotts,
came to the interview w i t h S m i t h and waited outside the r o o m i n case Smith
wanted to consult h i m . He also wanted to give us the o p p o r t u n i t y to interview
h i m became he had some information w h i c h he thought m i g h t be relevant to our
I n q u i r y , though we found that it was n o t . He t o l d us, and said that we could record
it as his v i e w , that " w h a t Smith has to say is bullshit". We need say no more.

58

THE LORD A D V O C A T E ' S INQUIRY

12. T H E O R R R E P O R T

12.1 In considering the origins of the O r r Report the earliest point to w h i c h we
have been able to take our investigations is a letter to T a m Dalyell MP by D a v i d
Johnston dated 26 N o v e m b e r 1991. D a v i d Johnston is E d i t o r of N e w s and Current
Affairs w i t h Radio Forth and has a close w o r k i n g relationship w i t h "The Sun"
newspaper. It appears that Johnston chose to w r i t e to T a m Dalyell because he
k n e w that he had been critical of the C r o w n ' s handling of possible charges against
Libyans for the b o m b i n g of a Pan Am aircraft over Lockerbie. Johnston had
previously received information f r o m a source, w h o m he has declined to identify,
b u t w h o m we assume to have been a police officer, w h o had views to express
about C r o w n decisions taken in a number of cases, particularly fraud cases, and
most recently the decision announced in October 1991 that there w o u l d be no
proceedings against Robert Henderson Q C . Johnston thinks that w h a t p r o m p t e d
h i m to w r i t e to T a m Dalyell was his learning of the latter decision. He resists any
suggestion that his role in the matter m i g h t be described as "sinister". In a letter
to us Johnston stated:
" M y sole motive in w r i t i n g was that the stories and rumours contained in
my letter had been in w i d e circulation in various forms for a number of
years. W h i l s t at no time have I ever considered m y s e l f to be on a crusade
of any k i n d , t h r o u g h largely coincidence I have been closely involved in
most of the stories w h i c h , w h e n added together result in the conspiracy
theory. I thought it was w o r t h one last attempt to actually t r y and establish
if there was any t r u t h in the claims w h i c h were in w i d e circulation."
12.2 In his letter to T a m D a l y e l l , Johnston stated that the letter concerned " w h a t
I t h i n k is a major scandal in Scots life". He then referred to the investigation into
the financial affairs of Burnett Walker W S , C o l i n Tucker's trial on embezzlement
charges and subsequent acquittal, the outcome of the prosecution of M a y and
Tucker, the decision not to prosecute Henderson, Conroy's allegations against
Douglas A l l a n , and the outcome o f the case against Duncan and others; as w e have
mentioned, these cases had also been linked in Souter's memorandum of 21
February 1991. A f t e r these matters he w r o t e :
" N o w , w i t h o u t even mentioning u n t i l n o w L o r d Dervaird and the allegations outlined by L o r d Hope in his Editor's briefing, y o u have all the
ingredients of a conspiracy. Or is it just coincidence?"
He concluded w i t h a passage relating to the Lockerbie investigation, w h i c h he
had mentioned in passing at the beginning of his letter.
12.3 We understand f r o m Johnston that he had lunch w i t h T a m Dalyell after
w r i t i n g his letter. T a m Dalyell t o l d us by telephone that he had received information f r o m sources other than Johnston, b u t since he has t o l d us n o t h i n g about
that information or those sources we have to proceed on the basis of w h a t we have
been t o l d by Johnston as his o n l y identified source. W i t h Johnston's help T a m
Dalyell w r o t e to Sir W i l l i a m Sutherland, C h i e f Constable of Lothian and Borders,
by letter dated 28 N o v e m b e r 1991. In that letter he referred to w h a t he believed
to be genuine public concerns, and w r o t e :
"The basic trouble revolves around a series of C r o w n Office decisions, on
cases investigated by Lothian and Borders Police. The cases to w h i c h I refer
are those i n v o l v i n g Mr C o l i n Tucker, and w h a t became colloquially k n o w n
as the "West E n d Rent Boys Case", the investigation into the financial
affairs of Mr Robert Henderson Q C , and the allegations made about Sherriff
Douglas A l l e n (sic), d u r i n g the investigation into the business dealings of
Mr Stephen C o n r o y . As y o u and y o u r senior colleagues k n o w , all these
cases have attracted deep disquiet among serious people."

T H E ORR REPORT

59

He then elaborated on these various matters, in terms w h i c h , to our reading, were
derived f r o m , or in any event contained n o t h i n g additional t o , the terms of
Johnston's letter to h i m . In concluding, he w r o t e :
" . . . I do not w a n t the morale of our Scottish Police to be dented by C r o w n
Office decisions, w h i c h on the face of i t , and on the information available,
are hard to understand. I appreciate that this m a y be a delicately difficult
letter to w h i c h to reply."
12.4 On receipt of T a m Dalyell's letter Sir W i l l i a m Sutherland w r o t e , by letter
dated 29 N o v e m b e r 1991, acknowledging receipt and stating:
"Clearly this is a most delicate area in w h i c h to delve and I have asked for
a full report o n the issues w h i c h y o u discuss. I t w i l l , therefore, be about
t w o weeks before I am able to respond more fully and trust that y o u w i l l
be happy w i t h this arrangement."
12.5 This reply d i d not reveal the steps w h i c h it was proposed to take. On receipt
of T a m Dalyell's letter the C h i e f Constable discussed it w i t h Hector Clark, the
D e p u t y C h i e f Constable. The C h i e f Constable regarded w h a t T a m Dalyell was
saying as v e r y serious and he d i d n o t w a n t to deal w i t h it in the normal w a y . C l a r k
regarded the matter as quite delicate. He said to us that the C h i e f Constable and
he decided to keep it as close to themselves as possible, but in order to make a
meaningful j u d g m e n t and a more meaningful reply they decided to call for a report
f r o m a senior officer, prepared in secret. It was not intended that the report should
serve any other purpose. The C h i e f Constable telephoned the C r o w n A g e n t ,
Duncan L o w e , on receipt of T a m Dalyell's letter, outlined its terms and t o l d h i m
w h a t he intended to do.
12.6 C l a r k spoke to Detective C h i e f Superintendent W i l l i a m Hiddleston, w h o
was Head of the C I D f r o m a few days after the death of Ritchie in A u g u s t 1991
u n t i l his retirement in October 1992. It was decided that the report should be a
reference report w h i c h w o u l d enable the C h i e f Constable, the D e p u t y C h i e f
Constable and the three Assistant C h i e f Constables to reply, whether to T a m
Dalyell or anyone else, w i t h o u t g o i n g back to the operational officers w h o were
the sources of the information. It was decided that the report w o u l d cover the
five cases mentioned in T a m Dalyell's letter. A c c o r d i n g to Hiddleston: "The
report itself obviously was to be kept v e r y v e r y t i g h t . We appreciated that talking
to operational officers w o u l d make them s h o w interest and fuel speculation."
12.7 Hiddleston then decided that Detective Inspector (later Detective C h i e f
Inspector and n o w C h i e f Inspector) Roger O r r , stationed at Portobello, was the
officer best suited to take on such a task. Hiddleston t o l d C l a r k w h e n he had made
this decision. Hiddleston called O r r to Police Headquarters and briefed h i m . He
t o l d h i m about the sensitivity of the matter and that "the whole t h i n g had to be
kept v e r y t i g h t " . He was to be given a r o o m to w o r k f r o m alone. His t y p i n g was
to be done by a Special Branch typist and thereafter the tape was to be destroyed.
The report was to be a unique document and O r r was not to keep a copy. No
one else should have sight of i t . Interviews were to be carried out on a one-toone basis. Hiddleston expected O r r to interview each Reporting Officer, b u t
otherwise he left it to O r r to decide w h o m to interview. He expected all interviews
to take place at Police Headquarters. O r r could, of course, telephone those w h o m
he wished to attend for interview. He d i d not instruct O r r to confine his interviews
to police officers b u t expected h i m to ingather all necessary information f r o m any
suitable source. O r r could, for example, have approached the Justiciary Office
if he thought it appropriate. W h i l e Hiddleston is not certain that he gave O r r a
14-day deadline, O r r says that he d i d , and having regard to the C h i e f Constable's
initial reply to T a m Dalyell we take that to be the case.
12.8 A c c o r d i n g to O r r , he decided that it was a good o p p o r t u n i t y to put together
in one document rumours that had been circulating for years. As he p u t it in his
report:
" I t should be stressed at the outset that the allegations contained in the letter
have been the subject of persistent r u m o u r w i t h i n the Force and the media
for some considerable time and against that background the o p p o r t u n i t y
has been taken not o n l y to supply information suitable to facilitate a reply

60

THE LORD A D V O C A T E ' S INQUIRY

to M r . D a l y e l l , but also to condense all the k n o w n facts and circumstances
currently in possession of the police to a l l o w an accurate assessment of the
position should any further action be deemed necessary."
A s w i l l be seen, he achieved nothing o f the sort.
12.9 A c c o r d i n g to O r r : " M y remit d i d not allow me to take the matter outside
the police so I could o n l y go to the case officers." Even if that was so, he d i d not
in fact do that in every case. In the case of the "Operation Planet" investigation
w h i c h resulted in the prosecution of Duncan and others he d i d indeed speak to
the Reporting Officer, Detective Inspector Peter Robertson, then based at West
E n d Police Station, n o w retired. He also spoke to another officer w h o had been
engaged on the case, Detective Sergeant ( n o w Sergeant) Charles O r r , w h o is his
brother and w i t h w h o m he has a close relationship. W e shall discuss this case fully
in part 16 of this Report. T h e other cases, ie those relating to the prosecution of
Tucker in December 1989, M a y and Tucker in M a y 1991, the possible prosecution
of Robert Henderson Q C , and the allegations by Stephen C o n r o y against Sheriff
Douglas A l l a n , were all cases w h i c h had been dealt w i t h b y the Fraud Squad. I n
the case against Tucker the principal Reporting Officer was Detective Inspector
Robert Leitch, w h o retired on 31 December 1988. Leitch completed the investigation before being replaced as Reporting Officer by Detective Sergeant ( n o w
Sergeant) Peter B r o w n . In the case against M a y and Tucker the Reporting Officer
was Detective Inspector ( n o w Superintendent) Peter W i l s o n . In the proposed case
against Henderson the principal Reporting Officer was Detective Inspector ( n o w
Detective C h i e f Inspector) W i l l i a m C r o o k s t o n . O t h e r reports i n that case were
made by Detective Sergeant ( n o w Inspector) D o n a l d Stewart and by Detective
Inspector ( n o w Inspector) Michael Souter, w h o also dealt w i t h the C o n r o y allegations. O f all these officers O r r spoke o n l y t o Souter and B r o w n . O r r informed
us that he simply recorded as fact w h a t he was t o l d by these officers and d i d not
subject it to any critical scrutiny.
12.10 The Fraud Squad of Lothian and Borders Police is a small unit to w h i c h ,
u n t i l recently, some officers were posted for extensive periods. A l l the Fraud
Squad officers w o r k e d in one relatively small r o o m and seem to have taken a close
interest in each other's w o r k . There are obvious advantages to this method of
w o r k i n g , b u t one main disadvantage is that an officer w h o was n o t in fact engaged
on a case could gain a false impression of the circumstances of that case by the
acquisition of random pieces of information f r o m the officers engaged on i t .
M o r e o v e r , perhaps because of the nature of their w o r k , some Fraud Squad officers
appear to have been prepared to give as m u c h credence to r u m o u r as to actual
evidence and to believe in conspiracy theories whether or n o t supported by
evidence. Souter and B r o w n had a close w o r k i n g relationship and, though we
d i d not find their habits of m i n d to be identical, they b o t h appeared to us to be
officers w h o w o u l d seize on any r u m o u r w h i c h w o u l d tend to support a conspiracy
theory. We also formed a distinct impression, b o t h f r o m speaking to h i m and
f r o m w h a t we were t o l d by others, that B r o w n has a particular animosity against
suspects w h o are professionally qualified (he described Tucker as "a bogus
w o r k m a n in a suit"), and also an animosity against homosexuals. Professionally
qualified homosexuals are thus persons about w h o m , as it appears to us, B r o w n
w o u l d be prepared to entertain grave suspicions, w i t h little p r o m p t i n g . Souter's
t h i n k i n g was similar to B r o w n ' s to the extent that he gave credence to the existence
of a "list" made by Tucker, and to Conroy's allegations against Douglas A l l a n .
12.11
T h r o u g h o u t the fortnight d u r i n g w h i c h O r r was w o r k i n g on his report,
Souter was confined to his house t h r o u g h i l l health. At an early stage O r r w e n t
w i t h B r o w n to Souter's house where they spent about an hour together. It was
contrary to Hiddleston's instructions that O r r should have been seeing Souter
w i t h B r o w n present. This was the o n l y contact between O r r and Souter u n t i l after
O r r had completed his report.
12.12 A c c o r d i n g to O r r he obtained information f r o m Souter w h i c h is reflected
in his report. He also of course obtained information f r o m B r o w n , to w h o m he
frequently spoke d u r i n g the fortnight. B r o w n provided h i m w i t h the Fraud Squad
case reports. He was also provided w i t h the memoranda b y Few and Souter
relating to the C o n r o y allegations, and w i t h the transcripts of and report on the

T H E ORR REPORT

61

interviews of C r a w f o r d and C o n r o y by I r v i n g and Corbett. For some reason
B r o w n denied to us that he gave O r r these latter documents, but we accept O r r ' s
evidence that he d i d . O r r was also provided w i t h Souter's copy of the Tucker
Statement. It is a curiosity that O r r is convinced that the version he saw was in
manuscript, although that cannot have been the case. B r o w n has insisted to us
that it was not he w h o gave O r r the Statement b u t in Souter's absence no one
else but B r o w n was in a position to give it to O r r . H o w e v e r that m a y be, O r r
unquestionably received and read the Statement.
12.13 W h i l e we shall discuss various sections of the O r r Report in appropriate
parts of this Report, a number of points can be made n o w . At no part of the report
is there any identification of the persons w h o gave O r r the information upon
w h i c h he based his report. Those for whose use the report was intended could
not thus appreciate that O r r had received information f r o m such a relatively small
number of people. If future reference required to be made to the report, there
w o u l d be no means of assessing the reliability of the information w i t h o u t g o i n g
back to the case officers, w h i c h was a course w h i c h the w r i t i n g of the report was
specifically intended to make unnecessary.
12.14 If there is a u n i f y i n g theme in the report, it is the suggestion that Robert
Henderson Q C , by reason of his possession of Tucker's "list", was in effect able
to blackmail the C r o w n and secure that there were either no prosecutions, or no
successful prosecutions, of himself and others w h o m he sought to favour. Y e t
no disclosure is made in the report of the fact that police officers were in possession
of copies of Tucker's Statement, being the o n l y k n o w n document w h i c h could
be identified as the so-called "list". Instead there is a passage in the report in w h i c h
O r r engages in disingenuous speculation:
"The reporting officer [ie O r r ] n o w believes that the so called 'list' m a y
indeed take the f o r m of a precognition taken f r o m T U C K E R for the defence
p r i o r to his t r i a l . O t h e r information indicates however, that it is s i m p l y
a list of names."
O r r has agreed w i t h us that he deliberately suppressed the knowledge that he and
other police officers had of Tucker's Statement. A c c o r d i n g to h i m , he d i d so at
the request of Souter and B r o w n . He was not, as we understand i t , given any
information about the circumstances in w h i c h it had come into the possession of
the police, and the o n l y explanation w h i c h he could give us for not referring to
it in the report was that the nature of the document itself suggested that it was
something w h i c h should not be in the possession of the police. We find this
remarkable, because for all that O r r had been t o l d there m i g h t be a straightforward
explanation w h i c h w o u l d not reflect discredit on any police officer. In any event
the report he was w r i t i n g was intended o n l y for use by the C h i e f Constable.
T h o u g h O r r w o u l d deny any intention to mislead the C h i e f Constable, the C h i e f
Constable was in fact misled as to the extent of the information available to the
police u n t i l he was t o l d about the Tucker Statement after the beginning of our
I n q u i r y . The C h i e f Constable p r o m p t l y disclosed that information to us.
12.15 I t w i l l be seen f r o m our discussion o f the sections o f the O r r Report w h i c h
relate to the five cases that there are a significant number of factual errors and
omissions. M o r e i m p o r t a n t l y , the assertions that the C r o w n was sinisterly m o t i vated in the taking of the relevant decisions are not o n l y unsupported by any
evidence b u t are not attributed by O r r to identifiable informants. W h e n we
interviewed the officers w h o had given information to O r r , none of t h e m except
Charles O r r w o u l d go so far as to advance assertions in the f o r m in w h i c h they
appear in the O r r Report. We are prepared to assume that O r r compiled the report
in good faith f r o m information w h i c h was given to h i m , b u t the manner of its
compilation, w i t h o u t attribution to identifiable informants, made it possible for
his informants to feed rumours to h i m w i t h o u t having to take the responsibility
o f j u s t i f y i n g any belief i n them. W h e n w e t o l d O r r that w e were unable t o obtain
anything that amounted to full confirmation o f the assertions repeated in his report
he made it clear to us that he was unhappy at being left thus exposed. His brother
also expressed concern about the position in w h i c h O r r was left. W h i l e we have
some sympathy w i t h O r r , because the task he was given was an unenviable one,
we also regard h i m as being a v i c t i m of his o w n w o r k i n g methods. Ifhe had sought

62

THE LORD A D V O C A T E ' S INQUIRY

information f r o m more sources than the four officers to w h o m , in his interviews
w i t h us, he has attributed the information contained in his report, and if he had
been more rigorous and less uncritical in the testing of rumours against available
evidence, he w o u l d not have found himself in his present position.
12.16
In any event, O r r must take responsibility for the "conclusion" to his
report, the terms of w h i c h we have quoted early in this Report. In that conclusion
one sentence reads:
"The inference is one of the existence of a w e l l established circle of h o m o sexual persons in E d i n b u r g h w i t h influence in the j u d i c i a r y w h o m a y or
m a y n o t have exercised that influence b u t w h o have formed associations
w h i c h in themselves lay them open to threats or blackmail."
A n y "inference" w h i c h is properly so called is d r a w n f r o m evidence of facts and
circumstances. Yet there is no evidence in the O r r Report w h i c h w o u l d support
an inference that there exists a "circle" ofhomosexual persons in E d i n b u r g h , rather
than a number of persons w h o happen to be homosexuals. N o r is there any
evidence w h i c h w o u l d support an inference that such persons, whether or n o t a
"circle", have "influence in the j u d i c i a r y " . O r r was unable to give us any satisfact o r y account of the thought-processes w h i c h led to his w r i t i n g this sentence. He
t o l d us: "People in these positions lay themselves open to blackmail. It is w e l l
documented that homosexuals in positions of influence are open to that." B u t he
had no evidence w h i c h w o u l d j u s t i f y h i m in saying that there were homosexuals
in relevant positions of influence. W h e n we pressed h i m , the furthest he was
prepared to go in the identification of any such person was to refer to Conroy's
allegations against Sheriff Douglas A l l a n . These were allegations w h i c h , as he
must have k n o w n , had not been substantiated.
12.17
In the last sentence of the report O r r w r o t e that the circumstances set o u t
in the report indicated "that homosexuality m a y w e l l have been used as a means
to seriously interefere (sic) w i t h the administration of justice". W h e n we pressed
h i m on the use of the w o r d s " m a y w e l l have been used", he denied any intention
to express the matter in terms of probability or likelihood. He said:
" M y impression was that it m a y w e l l have been used. I am still justified
in saying that the evidence as I had it justified me in saying that homosexuality has been used, subject to further i n q u i r y . I was in possession of
evidence that if looked at w o u l d support the inference."
He also said, at a later interview:
"I d o n ' t t h i n k I intended to convey the impression that Judges were being
protected by the C r o w n . The impression I intended to convey was that the
C r o w n ' s ability to deal w i t h certain matters m a y have been influenced by
allegations o f homosexuality."
He repeatedly said to us that in his v i e w further i n q u i r y was required before a
conclusion could be reached, as indeed he w r o t e in the "conclusion" to his Report.
12.18 We have referred to O r r ' s evidence to us at some length because of the
m u t u a l l y contradictory aspects of i t . He seemed to us to be saying at one and the
same time that there was evidence to support a conclusion, and that evidence
required to be obtained before a conclusion could be reached. He also stated to
us that if he had k n o w n in detail the various steps taken in each of the cases he
w o u l d have been inclined to reach a different conclusion. In the result we are quite
unable to say by w h a t intelligible process he, an experienced police officer, came
to express himself in such a w a y as to y i e l d the grave allegation w h i c h we have
to investigate.
12.19
O r r conferred f r o m time to time w i t h Hiddleston w h i l e he was w o r k i n g
on his report, but not, as we understand i t , on any substantive matter. He then
produced a draft report for Hiddleston's consideration. As drafted, it contained
a recommendation that several people should be interviewed, b u t since that was
n o t the purpose of the report Hiddleston instructed O r r to remove that passage.
T h a t was the o n l y change made to the draft before the final version was prepared.
U n k n o w n to Hiddleston, and contrary to his instructions to O r r , O r r showed the
draft to B r o w n , Robertson and his o w n brother. He also, contrary to Hiddleston's
instructions, made t w o copies of the final version, in addition to the principal,

T H E ORR REPORT

63

one of w h i c h he kept himself and the other of w h i c h he passed to Souter on the
latter's return f r o m sick leave in January 1992.
12.20 W h e n the final version had been prepared Hiddleston signed i t . It appears
to be normal practice in Lothian and Borders Police for officers w h o are not the
authors of reports to sign them and thereby take responsibility for their contents.
As Hiddleston p u t it to us:" I w o u l d have to agree that it means taking responsibility
w i t h o u t being able to check the contents." Immediately after signing the report
Hiddleston personally handed it to the D e p u t y C h i e f Constable. C l a r k read it and
handed it to the C h i e f Constable.
12.21
C l a r k t o l d us that on his reading of the report there was no evidence to
support the so-called "inferences" any more than there was to support w h a t had
been w r i t t e n in the letter by T a m Dalyell to the C h i e f Constable. He said to us:
"'Suggestion, r u m o u r and innuendo' seem to me to be appropriate to fit
b o t h documents."
He also said:
"I had a feeling that perhaps there m a y have been too many coincidences
for my l i k i n g , b u t my feelings were n o t strong enough to enable me to
advise the C h i e f Constable that the matter should be taken further, ie by
investigation in the Police Force or by formal referral to the C r o w n . I have
complete and utter faith in the integrity of the C r o w n and everything I do
or say is intended to preserve that i n t e g r i t y . "
C l a r k elaborated on his "feeling" by saying:
"I have a feeling there is a 'list'. I do feel there is something to this talk about
lawyers and rent boys."
He said this although he had recently been informed of the existence of the Tucker
Statement and was aware of its contents, and otherwise had n o t h i n g to go on
except Conroy's allegations about Sheriff Douglas A l l a n .
12.22
Sir W i l l i a m t o l d us that on reading the report he concluded that he was
n o t g o i n g to reply to T a m Dalyell w i t h reference to facts because they were
n o t substantiated. There were " r u m o u r , speculation and innuendo, b u t no hard
evidence." The C h i e f Constable and D e p u t y C h i e f Constable were b o t h involved
in the drafting of a reply to T a m D a l y e l l . This letter, dated 13 December 1991,
we quote in full:
" I refer t o m y previous letter dated 29th N o v e m b e r i n response t o y o u r
correspondence of 28th N o v e m b e r 1991.
The contents of y o u r lengthy letter have been given considerable thought
and I have personally and carefully examined the various issues y o u raised.
Indeed, I called for a detailed comprehensive report before deciding on h o w
to respond.
The area y o u probe is clearly a delicate one. Being aware of y o u r knowledge
of h o w the Scottish C r i m i n a l Justice system w o r k s , perhaps I do not need
to remind y o u (but I w i l l ) that the police have a d u t y to investigate all
criminal matters that come to their notice, either as a result of a direct report
or allegation, or as a product of information received.
Such information w o u l d include r u m o u r and speculation, some of w h i c h
is sometimes true b u t so often false, and facts reported to us by k n o w n
informants. It is not our practice to ignore reports falling w i t h i n these
categories, but our d u t y is purely to fully investigate all criminal matters
arising f r o m these reports and submit all the evidence gathered to the
C r o w n , through the Regional Procurator Fiscal.
Thereafter, the C r o w n decide on whether or not to prosecute and the nature
and detail of the charges to be preferred. Occasionally, additional enquiries
are ordered by t h e m and undertaken by the police. In addition, the C r o w n
may arrange to precognosce the witnesses contained in the police report
and, indeed, other persons, and we are not always aware of that process
or w h a t extra evidence is gained d u r i n g i t .
In short, we are often unaware of the total case the whole process produces
and therefore unable to comment on the final decisions made, even if we

64

THE LORD A D V O C A T E ' S INQUIRY

desired t o . It is true that sometimes the decision to prosecute or otherwise
surprises my officers b u t traditionally it is accepted and n o t p u b l i c l y c o m mented on by us.
Y o u w i l l see, therefore, that the matters y o u n o w advance fall into the
foregoing f r a m e w o r k and it is not possible for me to comment. It is impossible even for me to say p u b l i c l y that I share y o u r concerns, although I have
to admit that I can see the reasons behind y o u r letter.
Y o u w i l l k n o w that I am never reluctant to supply information and explanations to responsible members of the public or elected representatives b u t
I regret that, beyond saying that the cases y o u mention have all been
investigated as far as it is possible for the police to involve themselves, I
can assist y o u no further on this occasion.
I trust y o u w i l l understand m y position."
We do n o t understand that the C h i e f Constable w o u l d any longer describe the
O r r Report as a "detailed comprehensive report". Sir W i l l i a m explained to us that
the w o r d s "I share y o u r concerns" were intended to mean that he shared a concern
that there were r u m o u r s , not that he believed there was any substance to t h e m .
12.23 The C h i e f Constable telephoned the C r o w n A g e n t and read over to h i m
the terms of his reply to T a r n D a l y e l l . Duncan L o w e understood that this was
for his information rather than his approval.
12.24 We have already discussed the D e p u t y C h i e f Constable's "feeling". W h i l e
he was n o t of the v i e w that further investigation was called for at that t i m e , he
thought that the O r r Report should be kept because if something fresh cropped
up in the future w h i c h was more substantial than the cases mentioned in the report
the report w o u l d have afforded a starting p o i n t for any subsequent investigation.
The C h i e f Constable t o l d us:
"I d o n ' t believe there is any evidence to show there is a h i g h powered
conspiracy."
He also said:
" N o t h i n g has been b r o u g h t to my notice to make me believe I am g o i n g
to discover evidence about the allegations in the O r r Report."
12.25
A f t e r the C h i e f Constable had w r i t t e n to Tarn D a l y e l l , the C h i e f Constable, the D e p u t y C h i e f Constable and Assistant C h i e f Constable Richard Prentice
agreed that the O r r Report w o u l d be kept in a secure cabinet in Prentice's office.
He kept it there in a sealed envelope. In A u g u s t 1992, after there had been a breakin at Police Headquarters, the C h i e f Constable instructed Prentice to shred the
report. T h e D e p u t y C h i e f Constable t o o k a different v i e w , for the reason given
above, b u t Prentice acted on the C h i e f Constable's instruction and shredded it
himself.
12.26 T h e C h i e f Constable's instructions to Prentice about the safekeeping
and subsequent destruction of the O r r Report were of course given in ignorance
o f the existence o f copies o f i t . I n the meantime at least one person w i t h access
to a copy leaked it to the outside w o r l d . It is clear that this had been done by the
time that T a r n Dalyell w r o t e a letter to the L o r d President on 19 A u g u s t 1992,
because that letter is evidently derived, in b o t h language and substance, f r o m the
terms of the O r r Report. We have copies of this letter and the L o r d President's
reply because T a r n Dalyell gave copies to the police, and copies of these and the
letters between T a r n Dalyell and the C h i e f Constable were sent to the C r o w n
A g e n t by the C h i e f Constable on 25 A u g u s t 1992. It is not our function to discover
w h o was responsible for the leaking, or to w h o m a copy or copies of the report
were leaked, or by w h a t route T a r n Dalyell received a copy. These are matters
w h i c h have been the responsibility of C h i e f Superintendent H a r r y G i l m o u r to
investigate in the course of his i n q u i r y .
12.27 T h e C h i e f Constable and D e p u t y C h i e f Constable b o t h made their positions about the O r r Report clear to us as quoted above. For good measure we
should add that Assistant C h i e f Constable Prentice said:
" I a m aware o f n o evidence that directly o r b y inference w o u l d support the
allegation of a conspiracy to pervert the course of justice."

T H E ORR REPORT

65

Whoever leaked the report must presumably have been someone w h o disagreed
w i t h the views of these senior officers. His leaking of the report was n o t o n l y an
act of deliberate disloyalty w h i c h was calculated to undermine the authority of
his superior officers, it must also intentionally have been done w i t h a v i e w to
undermining public confidence in the i n t e g r i t y of the Scottish legal system by
a l l o w i n g credence to be given to rumours and allegations w h i c h had the apparent
stamp of authority by being set out in a report signed by a senior police officer.
The C h i e f Constable himself has publicly described the leaking of the report as
"an act of wickedness".
12.28 W h i l e it was appropriate for the C h i e f Constable to obtain information
to enable h i m to reply to T a m D a l y e l l , it seems to have occurred to no one w h o
was involved in the preparation of the O r r Report that the rumours w h i c h reached
T a m Dalyell came f r o m the v e r y persons w h o gave information to O r r . The result
was that all the report achieved was to re-cycle those self-same rumours. The
combination of this muddled t h i n k i n g and the leaking of the report has made it
possible for it to be claimed that there must be something in the rumours if there
is a police report on t h e m . The C h i e f Constable's instruction to shred the O r r
Report serves as an eloquent demonstration of its true value.

66

THE LORD ADVOCATE'S INQUIRY

13. R O B E R T H E N D E R S O N Q C

13.1 Robert Henderson is, and has at all material times been, a practising
Advocate w i t h the rank of Queen's Counsel. This part of our Report is concerned
n o t w i t h his professional conduct b u t w i t h a decision by the C r o w n not to prosecute
h i m in respect of certain business transactions not directly connected w i t h his
professional practice. Beyond identifying the subject matter of the investigation
w h i c h preceded this decision as being these business transactions, we intend to
give no further information about them except such as m a y necessarily be inferred
f r o m the narrative w h i c h follows. This approach is consistent w i t h the terms of
o u r remit and w i t h our previously stated p o l i c y of not reporting on prosecution
decisions in such a w a y as w o u l d facilitate public debate about their correctness.
13.2 On 5 December 1985 Kenneth Pritchard, the Secretary of the L a w Society
o f Scotland, w r o t e t o the then L o r d Advocate, L o r d Cameron o f L o c h b r o o m Q C ,
reporting on a number of matters w h i c h had come to his notice, including certain
business transactions in w h i c h Robert Henderson had been involved. On 9
December 1985 the L o r d Advocate instructed an urgent investigation into these
matters and on the same date Duncan L o w e , w h o was then D e p u t y C r o w n A g e n t ,
w r o t e to Douglas A l l a n , the Regional Procurator Fiscal in E d i n b u r g h , enclosing
a copy of Kenneth Pritchard's report. He instructed that the police, w h o were
currently investigating associated matters, be made aware of the allegations contained in the report and asked for a preliminary report w h i c h w o u l d enable h i m
to reply to Kenneth Pritchard.
13.3 On 28 January 1986 Douglas A l l a n replied, enclosing an i n t e r i m report by
Detective Inspector ( n o w Detective C h i e f Inspector) W i l l i a m C r o o k s t o n . This
report, taken w i t h Kenneth Pritchard's report, led the D e p u t y C r o w n A g e n t to
w r i t e , in a note dated 29 January 1986, to the L o r d Advocate:
"The police report w h e n read in conjunction w i t h the earlier material sent
b y the L a w Society makes dismal reading f r o m M r Henderson's point o f
v i e w . I w o u l d recommend that no attempt should be made to treat h i m
as a case apart, and that the investigation should proceed along normal
lines."
13.4 On 3 February 1986 the L o r d Advocate gave an instruction that the i n q u i r y
should not proceed separately f r o m the remaining inquiries. The investigation of
Robert Henderson's business transactions was accordingly conducted as part of
a w i d e r investigation affecting other persons as w e l l . We do not propose to discuss
further the overall investigation so far as it related to other persons, some of
w h o m were prosecuted and some not. At this stage the investigation of Robert
Henderson's business transactions was left in the hands of the police.
13.5 The investigation was continued by C r o o k s t o n , w h o conferred f r o m time
to time w i t h the C r o w n Office Fraud U n i t . His w o r k was w e l l advanced by the
time that he interviewed Robert Henderson at Police Headquarters on 20 February
1987. Crookston was to be transferred to Livingston the next day, and the interv i e w was attended by his successor in the investigation, Detective Sergeant ( n o w
Inspector) Donald Stewart. Despite his transfer C r o o k s t o n w e n t daily to Police
Headquarters to help w i t h the w o r k of the Fraud Squad. Stewart was o n l y posted
to the Fraud Squad f r o m about September 1986 to about M a y 1987. W h i l e he
carried on the investigation himself f r o m February to M a y 1987, he d i d so to a
large extent on the basis of information he received f r o m C r o o k s t o n . In M a y
1987 he submitted to C r o w n Office a report relating to Robert Henderson and
containing three charges.
13.6 On receipt of this report in C r o w n Office it was decided to allocate the case
for further investigation to the C r o w n Office Fraud U n i t , to be investigated along

ROBERT H E N D E R S O N QC

67

w i t h other, possibly related, cases. The pressure o f w o r k on these cases was such
that no material progress was made on the case against Robert Henderson for
some time thereafter. O n 22 September 1988 the case was allocated for initial
precognition by M r s A Fisher of the Fraud U n i t , and on that date N o r m a n
McFadyen, Senior Procurator Fiscal Depute in the Fraud U n i t , w r o t e a note of
suggested lines of i n q u i r y . In January 1989 the case was reallocated to M r s A
N o r t o n o f the Fraud U n i t i n the absence o f M r s Fisher o n maternity leave. O n
20 January 1989 the then Reporting Officer, Detective Inspector Michael Souter,
submitted a further report w i t h t w o further charges against Robert Henderson
for consideration.
13.7 On 23 February 1989 N o r m a n McFadyen and M r s N o r t o n made a detailed
preliminary report to C r o w n Counsel reporting on the inquiries to date and
recommending that in order to advance the investigation a direction be made
under section 51 of the C r i m i n a l Justice (Scotland) A c t 1987 n o m i n a t i n g N o r m a n
McFadyen and an officer of Inland Revenue j o i n t l y to exercise special powers.
On 1 M a r c h 1989 the H o m e Advocate Depute, George Penrose QC ( n o w L o r d
Penrose), instructed that a direction be sought and that the L a w Officers be made
aware of the background. On 3 M a r c h 1988 N o r m a n McFadyen reported to the
L a w Officers as instructed. On 8 M a r c h 1989 the then Solicitor General, A l a n
Rodger, gave an instruction narrating the agreement in principle of the then L o r d
Advocate, L o r d Fraser, w i t h w h a t was proposed and that there should be a further
report after discussion w i t h the Inland Revenue. On 20 M a r c h 1989 N o r m a n
McFadyen reported to the L o r d Advocate submitting a nomination order for
approval. On 21 M a r c h 1989 the L o r d Advocate gave a direction n o m i n a t i n g
N o r m a n McFadyen and an officer of Inland Revenue to investigate the affairs of
Robert Henderson and another under section 51 of the 1987 A c t .
13.8 In the period f o l l o w i n g the g i v i n g of that direction extensive interviews,
searches and examinations were carried o u t . The investigation produced v o l u minous documentation, w h i c h we have seen. N o r m a n McFadyen t o l d us that the
quality of the evidence of certain witnesses to essential matters of fact appeared
t o h i m t o deteriorate d u r i n g the course o f precognition. He discussed the case w i t h
C r o w n Counsel f r o m time t o t i m e .
13.9 Meantime there was ill-informed discontent w i t h i n the police about the
attitude of the C r o w n to this and other cases. On 29 M a y 1990 Detective C h i e f
Superintendent Charles B o u l t o n w r o t e a m e m o r a n d u m to Assistant C h i e f Constable Richard Prentice d r a w i n g his attention to certain matters. The m e m o r a n d u m
contained the f o l l o w i n g passage:
"Outstanding Cases at the Crown Office
A s w i l l be seen f r o m the A p p e n d i x attached to this report, there is a list
of outstanding cases w h i c h have been submitted by officers of the Fraud
Squad over recent years. I t w i l l be noted that the w o r s t o f these crimes is
some t w o years o l d , and at best and if normal procedures had followed,
even if a warrant was issued t o m o r r o w it w o u l d take several more months
before a trial commenced. Further, it is w e l l to remember that in most, if
n o t all cases, some of the witnesses concerned w o u l d have been interviewed
by police officers weeks if not months p r i o r to the submission of the police
report. As a consequence of the above it seems that witnesses m a y w e l l be
facing a gap of some 3 years or more before they are called to C o u r t to give
evidence. These prevailing circumstances are surely unsatisfactory to all
concerned.
I wonder at the apparent necessity for a complete re-investigation of these
types of cases by C r o w n Office on receipt of a police report. It w o u l d appear
that i n not a few cases, the C r o w n Office w i l l instruct the precognition o f
most, if not all witnesses before a decision is made on w h a t charges to
prosecute, although there m a y be a number of good reasons w h y the C r o w n
should feel it necessary to re-examine in depth some aspects of the case,
I w o n d e r whether there is an implication that the police are not capable of
properly investigating the matter in the first place. It w o u l d seem to be a
gross waste of time for professional police officers to undertake extensive
enquiry merely to find that the witnesses w h o m they have interviewed are

68

THE LORD A D V O C A T E ' S INQUIRY

merely re-interviewed. There must also be a question as to w h y w h e n the
reporting police officer has reached a conclusion on w h i c h charges m a y be
preferred, the C r o w n Office can and not infrequently do reach an entirely
different conclusion.
The delay in commencement of proceedings f o l l o w i n g receipt of a police
report can do n o t h i n g for the recollection of the witnesses and also makes
one w o n d e r whether police should p u t in the efforts that they do to have
a case reported at the earliest o p p o r t u n i t y . "
T h e list included the case of Robert Henderson. The passage we have quoted
showed no awareness of the part played by C r o w n Office in criminal investigations, or the w o r k w h i c h had been done on this case: see paragraphs 2.6, 2.7 and
2.13 of this Report.
13.10
On 3 June 1990 an article was published in "Scotland on Sunday" w h i c h
started:
"The C r o w n Office has spent t w o years considering w h a t to do w i t h a
Fraud Squad report alleging that a member of Scotland's elite Faculty of
Advocates has been involved in the commission of an alleged crime. No
action has been taken b u t the case has not been dropped."
The article w e n t on to quote various comments about the supposed delay. We
t h i n k it reasonable to assume that the w r i t i n g of the article was p r o m p t e d by the
receipt of information f r o m a police source.
13.11
On 4 June 1990 N o r m a n McFadyen w r o t e a detailed report to the L o r d
Advocate setting out the history of the investigation. He stated that as a result
of precognition i n q u i r y had been extended into four of Robert Henderson's
business transactions w h i c h were n o t part of the police investigation. He explained
w h a t steps had been taken in respect of all the business transactions w h i c h were
under investigation, including the use of the section 51 direction. He stated:
" I w o u l d hope that w e can re-submit the papers, w i t h the updating summ a r y , statements and recommendations, w i t h i n the next six weeks."
In his conclusion he referred to the "Scotland on Sunday" article and said:
" I t is not, of course, appreciated by the w r i t e r that the matter has been the
subject of investigation (rather than mere consideration) by C r o w n Office
and that investigation has ranged into a number of areas w h i c h s i m p l y d i d
not f o r m part of the police investigation."
13.12
Prentice w r o t e to the Regional Procurator Fiscal, Duncan L o w e , on 12
June 1990, enclosing a copy of Boulton's m e m o r a n d u m . Thereafter there was a
telephone conversation between t h e m , in the course of w h i c h Duncan L o w e said
that there were evidential difficulties, b u t , if the evidence justified i t , Robert
Henderson w o u l d be prosecuted.
13.13
On 29 June 1990 Duncan L o w e w r o t e a letter to Prentice, w h i c h included
the f o l l o w i n g passage:
" M r B o u l t o n refers t o a number o f cases o f fraud w h i c h are being dealt w i t h
either by my o w n office or by the Fraud U n i t at C r o w n Office and makes
a number of observations as to the "delay" in dealing w i t h these cases. In
particular, Mr B o u l t o n wonders at "the apparent necessity for a complete
re-investigation" of these cases. He also goes on to w o n d e r whether "there
is an implication that the police are n o t capable of properly investigating
the matter in the first place". I am surprised at the naivety i m p l i c i t in
these remarks. There is a clear separation of functions in relation to initial
investigation and subsequent preparation for court. In addition, however,
as I am sure Mr B o u l t o n k n o w s , the Procurator Fiscal has an investigating
role—and w i t h the n e w powers n o w available that role is an extensive one
in fraud cases."
A f t e r m e n t i o n i n g the cases in the list in respect of each of w h i c h he stated that
he had made enquiries, he w r o t e :
" I f u l l y accept that w e d o not always carry out perfect and fast w o r k i n fraud
cases. Equally, police w o r k in this area is occasionally to be found w a n t i n g .
T h e y are difficult cases w h i c h , most o f the t i m e , between us w e do quite

ROBERT H E N D E R S O N QC

69

well—and certainly better than is done in m a n y other countries. I regret
being presented w i t h a list in the manner in w h i c h it was prepared. In my
v i e w , these are matters best dealt w i t h between the individual member of
m y staff dealing w i t h the case and the individual officer reporting i t . That
is more constructive in relation to the case itself and for the future."
Prentice f u l l y accepts w h a t Duncan L o w e said and w r o t e to h i m .
13.14
In J u l y 1990 N o r m a n McFadyen made a final report to C r o w n Counsel,
together w i t h the full papers, as he had indicated he w o u l d i n the report dated
4 June 1990. A f t e r extensive reference to and discussion of the witness statements
and the productions he concluded w i t h a recommendation that there should be
no proceedings against Robert Henderson.
13.15
C r o w n Counsel w h o considered the July 1990 report was the H o m e
Advocate Depute, George Penrose, w h o qualified as a Chartered Accountant
before becoming an Advocate. He fully considered the papers and w r o t e a note
to the L o r d Advocate dated 21 July 1990 in w h i c h he set o u t his views on the matter
at some length. He particularly referred to the quality as w e l l as to the sufficiency
of the available evidence. Towards the end of the note he w r o t e :
"The most one can do is f o r m the rather negative v i e w that there is not
evidence of such cogency and reliability as w o u l d j u s t i f y the v e r y serious
allegations that w o u l d be involved in the case. N . M c F . has set out some
alternative views on the course w h i c h m i g h t n o w be taken. It is A D ' s
recommendation that the files should be closed on this matter n o w . "
13.16 George Penrose's note was seen in the first place by the Solicitor General.
He w r o t e a short note, dated 24 J u l y 1990, to the L o r d Advocate, stating in
particular:
"I have seen some of the papers over a l o n g period and have discussed the
matter on several occasions w i t h N . M c F . . . . For the reasons set out by
the H o m e AD everything runs i n t o the sand. I entirely agree w i t h his
assessment, and indeed the fact that the H o m e AD of all people has reached
that v i e w confirms me in my o w n conclusion that no more can be done."
13.17 By note dated 25 J u l y 1990 the L o r d Advocate instructed that no further
investigation was to be carried out and that N o r m a n McFadyen's section 51
nomination was w i t h d r a w n . He also instructed that there was no need to intimate
the decision to anyone. He did not go so far as to instruct that there were to be
no proceedings against Robert Henderson. This instruction left open the possi b i l i t y that further evidence m i g h t , in theory at least, emerge w h i c h w o u l d enable
the decision n o t to prosecute Robert Henderson to be reconsidered. I n t i m a t i o n
of a decision n o t to prosecute h i m w o u l d have barred the C r o w n f r o m future
proceedings in respect of the same business transactions, regardless of any change
o f circumstances.
13.18 There was renewed press interest in the investigation in M a y 1991. Because
of the passage of time and this press interest it became necessary to consider w h a t
further steps were required. The D e p u t y C r o w n A g e n t , A l f r e d Vannet, w r o t e
a note to the L a w Officers, dated 10 M a y 1991, summarising the position and
setting o u t the options, including the o p t i o n that a decision n o w be taken that
there w o u l d be no proceedings against Robert Henderson. The Solicitor General
read the note and on 13 M a y 1991 w r o t e a note of his o w n to the L o r d Advocate
stating that there seemed to h i m to be t w o issues. The first was whether the case
should be marked "no p r o " , in respect of w h i c h he said that the answer should
be "yes". The second related to the handling of any press inquiries, w h i c h he
thought more complicated. Duncan L o w e , the C r o w n A g e n t , also w r o t e a note
to the L o r d Advocate, dated 15 M a y 1991, about the handling of press inquiries.
Thereafter a draft press line was w o r k e d up, and a decision was taken, particularly
f o l l o w i n g advice by N o r m a n McFadyen to the L o r d Advocate in a note dated 3
October 1991, to w r i t e to the C h i e f Constable.
13.19
N o r m a n McFadyen accordingly w r o t e to the C h i e f Constable by letter
dated 23 October 1991 advising h i m that C r o w n Counsel had instructed
no criminal proceedings in respect of the matter. He referred specifically to
reports by Souter in respect of the matter, " w h i c h was thereafter the subject of

70

THE LORD A D V O C A T E ' S INQUIRY

investigation by this U n i t (ie the Fraud U n i t ) under nomination granted by the
L o r d Advocate in terms of the C r i m i n a l Justice (Scotland) A c t 1987." The letter
continued:
" A l t h o u g h C r o w n Counsel concluded some time ago that the evidence d i d
not j u s t i f y criminal proceedings and the then Head of the Fraud Squad was
advised i n f o r m a l l y of this, C r o w n Counsel were u n w i l l i n g to give a formal
and final instruction in case any relevant further matter (which m i g h t
strengthen the case) should come to light. N o t h i n g further has been revealed
and in v i e w of time that has n o w passed C r o w n Counsel have decided that
it is necessary to draw a line under this investigation and have given a final
instruction."
The letter w e n t on to refer to press interest and the L o r d Advocate's v i e w that:
"where a criminal investigation is carried out into a particular person and
the existence of that investigation is not publicly k n o w n it w o u l d be w h o l l y
improper for the C r o w n to disclose that a decision had been taken, after
investigation, not to prosecute that person."
There was in fact publicity about the decision reflected in the letter after it was
sent, although no public announcement of the decision was made by C r o w n
Office. We t h i n k it reasonable to assume that a police officer was responsible for
the publicity.
13.20
The O r r Report refers to N o r m a n McFadyen's letter, b u t makes no reference to the fact that in addition to the police investigation there had, as stated in
the letter, been investigation by the C r o w n Office, using section 51 powers, before
the decision was taken not to prosecute Robert Henderson. A f t e r referring to the
letter, the O r r Report states:
" I t is an understatement to say that this instruction was met w i t h dismay
by those Police Officers involved in the enquiry, and, having read the
relevant reports it is the enquiry officers opinion that they represent a strong
case against H E N D E R S O N . "
O r r d i d n o t speak to C r o o k s t o n or Stewart. H a d he done so, he w o u l d have
discovered that, as they each t o l d us, neither of these officers w o u l d suggest
that there was any improper m o t i v a t i o n in the decision not to prosecute Robert
Henderson. Crookston w o u l d go no further than to express the k i n d of reservation
about lawyers investigating an allegation against a lawyer that m i g h t be expressed
about the police investigating an allegation against a police officer. Stewart said
that he had no reaction whatsoever to the decision.
13.21
So far as we can make out, w h a t is w r i t t e n in this part of the O r r Report
i s principally derived f r o m information given t o O r r b y Souter and B r o w n . O f
these t w o , o n l y Souter has been prepared to repeat to us the views w h i c h were
apparently expressed to O r r . The report states:
" I t is difficult to p i n p o i n t any definite reason for the n o n prosecution of
H E N D E R S O N other than the official C r o w n Office reason. The r u m o u r
in circulation however, is that H E N D E R S O N is in possession of the 'list',
or a copy of same originally referred to in the T U C K E R embezzlement
inquiries of 1989 . . . and as such is in a position to threaten to expose
prominent figures and by such means influence the course of justice."
Souter said to us that he speculated to O r r that Robert Henderson "may have been
party to information w h i c h m a y have been embarrassing to people". He described
the conversation, w h i c h i t w i l l be recalled t o o k place at his house w i t h B r o w n
present, as "cops talking together, speculating, saying ' w h a t i f , 'maybe', 'perhaps', 'could this have happened?'". He said: " I t may have been that Henderson
got information f r o m defending Tucker w h i c h w o u l d have been detrimental to
the C r o w n Office if it g o t o u t . " Souter was v e r y insistent to us that this was no
more than speculation. He had, of course, read and kept in his possession a copy
of the Tucker Statement, w h i c h he agreed could not be "detrimental to the C r o w n
Office" for reasons w h i c h we have already discussed, b u t he expressed to us a
belief in the possibility that there was in addition a further " l i s t " . He is the o n l y
operational police officer w h o has expressed such a belief to us. He was unable
to give us any reason for i t .

ROBERT H E N D E R S O N QC

71

13.22 N o t o n l y was Robert Henderson not in a position effectively to blackmail
the C r o w n , he had no influence whatever on the investigation into his business
transactions. A thorough investigation was carried o u t by the C r o w n Office Fraud
U n i t , i n accordance w i t h the instructions o f C r o w n Counsel, w e l l after Robert
Henderson was supposedly in possession of a " l i s t " . Souter seems to have been
unaware of any investigation after his o w n , w h i c h is perhaps one reason w h y no
mention is made of the C r o w n Office investigation in the O r r Report. A n y
i m p r o p e r l y motivated conspiracy n o t to prosecute Robert Henderson w o u l d have
had to extend at least to the L o r d Advocate, the Solicitor General, the H o m e
Advocate Depute and N o r m a n MacFadyen, and probably also the C r o w n A g e n t
and the D e p u t y C r o w n A g e n t . We have discovered no evidence whatever w h i c h
w o u l d support an allegation that there was such a conspiracy. On the contrary,
we have discovered ample evidence that the decision not to prosecute Robert
Henderson was taken after an exceptionally t h o r o u g h investigation and after
anxious consideration, by all the most senior people in the prosecution system,
of the evidence produced by that investigation.

72

THE LORD A D V O C A T E ' S INQUIRY

14.

HMA v ARTHUR COLIN TUCKER

14.1 A r t h u r C o l i n Tucker (usually called C o l i n Tucker) was a solicitor and was
for some time a partner in the firm of Burnett Walker W S . Ian Walker, w h o had
a long-standing connection w i t h the firm, was latterly its senior partner. He
c o m m i t t e d suicide on 4 June 1988. C o l i n Tucker stood trial in the H i g h C o u r t
in E d i n b u r g h in December 1989 on an indictment containing t w o charges of
embezzlement of sums amounting respectively to £19,364.90 and £28,012.89 f r o m
clients of the firm. H i s trial started on 11 December 1989 and on 19 December
1989 he was acquitted by the j u r y . On 3 October 1990 the Scottish Solicitors
Discipline T r i b u n a l found C o l i n Tucker g u i l t y of professional misconduct in that
he engaged upon a course of conduct calculated to b r i n g the profession of solicitors
into disrepute and in particular that being the A t t o r n e y of a client, he was in gross
breach of and grossly abused his position of trust by appropriating to the use of
another, funds belonging to that client and caused another client to sign a receipt
p u r p o r t i n g to acknowledge that she had received f r o m his firm the sum of £ 5 , 0 0 0 ,
the t r u t h being as he w e l l k n e w that the said client had received no such sum and
that the sum had been appropriated to the use of another, and further in respect
of his breach of Rule 6 and Rule 8(1) of the Solicitors (Scotland) Accounts Rules
1981 and 1986; and ordered that his name be struck o f f the R o l l of Solicitors in
Scotland. Since there were other partners in the firm of Burnett Walker W S , we
should make it clear that there is no suggestion that any of them had any i n v o l v e ment in the matters w h i c h led to Ian Walker's suicide or the prosecution of or
disciplinary proceedings against C o l i n Tucker.
14.2 Leslie C u m m i n g , the C h i e f Accountant of the L a w Society of Scotland,
has the responsibility for ensuring that the books of solicitors' firms are inspected at
regular intervals. On 27 A p r i l 1988, f o l l o w i n g authorisation by the L a w Society's
Guarantee Fund C o m m i t t e e , t w o of his staff began an inspection of the books
of Burnett Walker. The inspection included the scrutiny of clients' ledger cards
and the listing ofbalances. On 28 A p r i l 1988 Leslie C u m m i n g received information
f r o m his staff about their initial findings and attended the firm's office himself.
He interviewed Tucker about certain entries in ledger cards w h i c h d i d not appear
to make sense. Tucker said that Walker had been involved in most of the w o r k
although he himself had been involved in specific transactions. The inspection
continued on 29 A p r i l 1988. On 2 M a y 1988 Leslie C u m m i n g w r o t e a letter to
Burnett Walker detailing all the discrepancies w h i c h had been found and seeking
explanations for t h e m . On 6 M a y 1988 Tucker gave information to Leslie C u m ming's staff w h i c h led to a decision that all Powers of A t t o r n e y handled by Burnett
Walker should be examined. A Power of A t t o r n e y enables the A t t o r n e y , n o r m a l l y
a solicitor, to transfer a client's funds w i t h o u t reference to the client. T h e y made
further visits to the firm's office on 9, 11 and 12 M a y 1988. On the basis of
the information thus made available to h i m Leslie C u m m i n g attended Burnett
Walker's office together w i t h one of his staff on 17 M a y 1988 and carried out a
further inspection of further client ledger accounts. Tucker was interviewed and
stated that certain sums of money belonging to an executry operated under a
Power of A t t o r n e y by h i m had been transferred on his instructions either to
accounts in the name of Ian Walker, or paid in cash to Walker, or transferred by
Walker to his o w n account. Walker was interviewed and denied any knowledge
or involvement, referring to Tucker as being the partner responsible for the
administration of the account.
14.3 Leslie C u m m i n g reported these matters to the Committee at a meeting held
on 20 M a y 1988, w h e n it was agreed that the police should be notified and that
arrangements should be made to have a Judicial Factor appointed to oversee the

HMA V ARTHUR COLIN TUCKER

73

business of Burnett Walker. Thereafter the police were d u l y notified. So far as
we can establish, the police were not notified directly, but t h r o u g h the then
Regional Procurator Fiscal, Douglas A l l a n . Detective C h i e f Inspector Thomas
H e p b u r n , n o w retired, the then head of the Fraud Squad, t o l d us that that w o u l d
have been the usual course. Leslie C u m m i n g t o l d us that the L a w Society practice
is to report to C r o w n Office, to the Procurator Fiscal or to the police, depending
on the circumstances, if an inspection discloses evidence of c r i m i n a l i t y . It w o u l d
seem to be consistent w i t h normal practice that Douglas A l l a n should have been
informed of the matter, even t h o u g h the police had been asked to investigate, and
thereafter should have taken a general interest in the investigation. It is thus clear
that Douglas A l l a n was aware f r o m an early stage that the police were investigating
the matter.
14.4 W h e n the matter was notified to the police Hepburn instructed Detective
Inspector Michael Souter to make an enquiry into an allegation of the embezzlement of clients' funds w h i c h had occurred at the premises of Burnett Walker.
Souter and Detective Constable ( n o w Sergeant) Brian Reynolds had a preliminary
meeting w i t h Leslie C u m m i n g at his office. A c c o r d i n g to Souter he was surprised
to learn that no documents had yet been taken f r o m Burnett Walker's office. That
evening he and Reynolds w e n t to Tucker's home address to obtain his assistance
b u t d i d not find h i m there. The next day, w h i c h we believe to have been 26 M a y
1988, Souter reported on his enquiries to H e p b u r n , w h o decided to give a different
j o b to Souter and Reynolds and to p u t Detective Inspector Robert Leitch in charge
of the investigation. Souter was busy on another i n q u i r y , Leitch was due to retire
on 31 December 1988, and it seems to have been thought that the l i k e l y t i m e scale of the investigation w o u l d allow it to be completed d u r i n g his remaining
months of service. Leitch t o l d us that H e p b u r n t o l d h i m to keep the i n q u i r y t i g h t
(ie restricted to the central issues), and H e p b u r n confirmed to us that that w o u l d
be consistent w i t h his general policy. On 26 M a y 1988 Leitch had a preliminary
meeting w i t h Leslie C u m m i n g . T h e y had a general discussion and it was agreed
that several other meetings w o u l d be necessary. In the days w h i c h followed that
preliminary meeting Leitch undertook some inquiries but left it to Leslie C u m m i n g
to carry on the main investigation at Burnett Walker's office.
14.5 Leslie C u m m i n g made a further v i s i t to Burnett Walker's office on 27 M a y
1988 and reviewed a number of outstanding matters. He spoke to b o t h Walker
and Tucker. Later that day Tucker and his solicitor, D a v i d B l a i r - W i l s o n called
at Leslie C u m m i n g ' s office and t o l d h i m that Tucker w o u l d n o t be helping any
more w i t h the investigation as there was a possibility of criminal proceedings.
Leslie C u m m i n g t o l d us that Walker had indicated to h i m that he w o u l d be
able to clear any shortfall in his clients' funds f r o m his o w n resources. He also
understood that Walker and Tucker were proposing to sell Burnett Walker's office
and business. The L a w Society w o u l d have been happy for another f i r m to take
over. In the meantime no immediate steps were taken to have a Judicial Factor
appointed. On 3 June 1988 Leslie C u m m i n g attempted to see Walker at Burnett
Walker's office to discuss the position, b u t despite t w o visits d i d not find h i m
there. He left w o r d w i t h Tucker that he needed to see Walker urgently. He t o o k
the v i e w that at that point he had sufficient information to entitle h i m to demand
that funds be introduced to make good the losses of clients' funds.
14.6 On 4 June 1988 Ian Walker c o m m i t t e d suicide. There had been some
p u b l i c i t y immediately before his death about the police investigation into the
affairs of Burnett Walker. The v i e w has been expressed to us that that publicity
led to his suicide, but we t h i n k it more l i k e l y that it was because he had realised
that the L a w Society inspection ofhis firm's books had by then disclosed irrefutable
evidence o f h i s dishonesty. On 6 June 1988 Leslie C u m m i n g and one o f h i s staff
attended Burnett Walker's office and searched the r o o m and desk previously used
by Walker. F r o m an examination of various documents a statement of funds
w i t h d r a w n f r o m client bank accounts and investment funds and applied to W a l ker's bank accounts was prepared. A calculation was made of the total sum not
accounted for to clients or applied to personal bank or expense accounts.
14.7 We have narrated the L a w Society inspection at some length in order to show
that p r i o r to 10 June 1988 Burnett Walker's books had already been extensively

74

THE LORD A D V O C A T E ' S INQUIRY

examined, substantial progress had been made in establishing the extent of W a l ker's dishonesty, and Tucker had co-operated by a d m i t t i n g the part he had played
in certain transactions. We w o u l d also emphasise that Leitch was content to leave
the investigation in the hands of Leslie C u m m i n g and his staff, w h o had far more
experience than he d i d in the inspection of solicitors' books.
14.8 As we have already indicated, we believe that Douglas A l l a n must have
been aware of the investigation f r o m about the time w h e n the police first became
involved. He no longer has a clear recollection of his subsequent involvement,
although he can say that it was o n l y incidental. He remembers that Fraud Squad
officers w o u l d drop in f r o m time to time to see h i m . Leitch t o l d us that v e r y early
in his investigation he found a note on his desk saying that Douglas A l l a n had
asked to see h i m , so he w e n t to see h i m and Douglas A l l a n asked h i m to keep
h i m up to date as the investigation progressed. He thought it unusual for the
Regional Procurator Fiscal himself to be in touch, b u t had no difficulty in accepting
that interest of this k i n d w o u l d be appropriate w h e n evidence was emerging of
the dishonesty of a prominent lawyer such as Ian Walker. Such interest w o u l d
be particularly understandable i f , as m a y have been the case, Leitch w e n t to see
Douglas A l l a n in the period after Walker's death. In fact, we can say f r o m our
o w n direct experience that such interest by a Regional Procurator Fiscal w o u l d
be quite usual.
14.9 On 10 June 1988 anonymous information reached Leitch to the effect that
documents relevant to his investigation could be found in the b o o t of Tucker's
m o t o r car. Leitch t o o k steps to discover where the car was. Detective Sergeant
Isabel N i c o l obtained a search warrant f r o m a Justice of the Peace. The search
warrant was technically inept because it was granted on the basis that the documents in the car had been stolen f r o m Burnett Walker's office, and Tucker could
hardly steal documents f r o m his o w n office. Be that as it may, Leitch and Isabel
N i c o l w e n t w i t h the warrant to Burnett Walker's office, saw Tucker and t o l d h i m
that the warrant had been granted. He made a telephone call to his solicitor, D a v i d
B l a i r - W i l s o n , and then w e n t w i t h the police officers to his car and handed over
to t h e m a quantity of documents w h i c h were in its b o o t . T h e police officers t o o k
the documents to Police Headquarters. Shortly afterwards D a v i d Blair-Wilson
telephoned Leitch and said, as noted by Leitch:
"Tucker says that the documents found in his car n o w means that the police
have everything that can be related to h i m in the i n q u i r y . "
T h e documents were indeed used as productions in the subsequent prosecution
o f Tucker.
14.10
It is not possible to establish w i t h confidence w h a t contact there was
between Leitch and Douglas A l l a n on 10 June 1988, because neither of t h e m
appears to have attached any particular significance to such contact on that date.
It seems l i k e l y , however, that Leitch d i d telephone Douglas A l l a n to tell h i m about
the granting of the search warrant and the recovery of documents f r o m Tucker's
car, as Douglas A l l a n does have a recollection of a discussion about documents
w h i c h had been removed f r o m Burnett Walker's office and about a search warrant.
We also t h i n k it l i k e l y that there was discussion between t h e m as to whether steps
should be taken to search Burnett Walker's office, and that Douglas A l l a n said
that he d i d n o t require such a search to be carried out. This w o u l d make sense
w h e n related to the facts that, as b o t h Leitch and Douglas A l l a n were aware, the
L a w Society inspection of Burnett Walker's books was already w e l l advanced,
Walker, whose dishonesty was principally responsible for the losses of clients'
funds, was dead, and there was no reason to suppose that after the recovery of
documents f r o m Tucker's car there was anything more to discover about Tucker's
part in the movement of funds. B o t h Leitch and Isabel N i c o l have made it clear
to us that they d i d n o t regard Douglas A l l a n as being obstructive in any w a y w h e n
the question of a search of Burnett Walker's office was under consideration, and
that they have no reason to believe that a search of Burnett Walker's office
w o u l d have yielded documents w h i c h were relevant to their investigation or of
importance to the subsequent prosecution of Tucker.
14.11 A l t h o u g h the officers w h o were engaged in the investigation were satisfied
w i t h the day's events, other members of the Fraud Squad t o o k a somewhat

H M A V ARTHUR COLIN TUCKER

75

different v i e w . I t w i l l be recalled that Souter and Reynolds were the police officers
first involved in the i n q u i r y , though by 10 June 1988 they had not been involved
for some time and were not abreast of the w o r k w h i c h had been done, particularly
the results of the L a w Society's inspection. Nevertheless w h e n Leitch and Isabel
N i c o l returned to the Fraud Squad's Office at Police Headquarters w i t h the
documents recovered f r o m Tucker's car Souter and Reynolds t o o k an interest in
w h a t had happened and j u m p e d t o certain conclusions. O f the t w o , w e m e n t i o n
Reynolds first. Reynolds insisted to us at t w o interviews that on 10 June 1988 he
understood that Tucker was under arrest and that he was released after a telephone
call had been made by Leitch and Souter to Douglas A l l a n . He felt critical of
the decision to release Tucker because "he was obviously t r y i n g to dispose of
evidence". We reject Reynolds's evidence because there is no question of Tucker's
having been under arrest on that date, n o r was his arrest even considered u n t i l
a petition warrant was issued by the Procurator Fiscal on 12 December 1988.
14.12
Souter's evidence is of more importance because of the v i e w w h i c h he
subsequently t o o k of the day's events. He t o l d us that he t h o u g h t that Leitch's
inactivity in the period p r i o r to 10 June 1988 was strange, and related it to an
instruction Leitch had received f r o m the Procurator Fiscal. He was aware that the
L a w Society inspection was still under w a y and was not able to give us any reason
w h y that should not have been regarded as a satisfactory means of examining
Burnett Walker's books for evidence of dishonesty. He t o l d us that w h e n Leitch
and Isabel N i c o l came back to the office w i t h the documents he asked Leitch
whether Tucker had been arrested and w h e n Leitch said that he had not he
suggested that he should have been. He t o l d us that he felt that it was w r o n g that
Tucker should still have access t o his office. He said that he asked Leitch whether
the office had been searched and Leitch said that he had been in touch w i t h the
Procurator Fiscal and was t o l d that he should proceed as he had done. A c c o r d i n g
to Souter he felt that the police were in an exposed position and that he t o l d Leitch
that he should get corroboration that that was w h a t he had been t o l d to d o .
A c c o r d i n g l y he telephoned the Procurator Fiscal's Office, asked for Douglas
A l l a n , and gave the telephone to Leitch. Leitch then spoke to Douglas A l l a n w h o
reiterated w h a t he had said to Leitch about n o t searching Burnett Walker's office.
This incident does not seem to have stuck in Leitch's m e m o r y as it has in Souter's,
nor does H e p b u r n have any recollection of i t , even t h o u g h he shared an office
w i t h Leitch at the time.
14.13
Souter t o l d us that he felt that by instructing Leitch to leave the i n q u i r y
to the L a w Society and n o t to search the office himselfDouglas A l l a n was somehow
keeping control of the i n q u i r y , and that there was something n o t quite r i g h t about
i t , " n o t that it was w r o n g , but that it wasn't r i g h t " . We pressed h i m about this
and he repeatedly said that he j u s t had a feeling that there was something w r o n g ,
a feeling of disquiet, a doubt, b u t no reason to t h i n k anything was drastically
w r o n g . He was able to give us no rational explanation for this feeling. Since
Souter's thoughts and behaviour on that day were irrational, and since he was n o t
himself engaged on the i n q u i r y w h i c h culminated in Tucker's prosecution, it
w o u l d be easy to dismiss Souter's "feeling" as of no consequence were it not for
the l i n k w h i c h he subsequently made between that day's events and Conroy's
allegations against Douglas A l l a n , w h i c h we have already discussed. Since those
allegations were untruthful, and have been expressly w i t h d r a w n by C o n r o y , we
are left w i t h Souter's "feeling" as the o n l y basis for his m a k i n g a l i n k between
various cases in the w a y w h i c h came to be reflected in the O r r Report.
14.14 For w h a t the matter is w o r t h , Detective Sergeant ( n o w Sergeant) Peter
B r o w n d i d n o t tell us that he thought that anything u n t o w a r d had happened after
10 June 1988, although he became the Reporting Officer in the case after Leitch's
retirement. He t o l d us that he had no evidence of documents being destroyed.
"Others were closer to the i n q u i r y at the t i m e " . We understand h i m to have
referred to the officers w h o were engaged on the i n q u i r y rather than to Souter.
14.15 We can give a briefer summary of events up to the time of the trial in
December 1989. On 15 June 1988 Leslie C u m m i n g was appointed i n t e r i m Judicial
Factor u p o n the estates o f the f i r m o f Burnett Walker and the partners i n the firm.
The effect of this appointment was to p u t all the firm's property and assets under

76

THE LORD A D V O C A T E ' S INQUIRY

his safekeeping for the time being. There continued to be liaison between h i m
and Leitch and he continued to help Leitch w i t h the police investigation. Leitch
completed his investigation and made a report to the Procurator Fiscal at E d i n b u r g h . On 12 December 1988 a petition warrant was obtained and issued by the
Procurator Fiscal for Tucker's arrest. The warrant was executed on 20 December
1988, w h e n Tucker appeared at E d i n b u r g h Sheriff C o u r t , was c o m m i t t e d for
further examination, and was granted bail. Douglas A l l a n had become Sheriff at
Lanark on 1 A u g u s t 1988, so that by December 1988 the Regional Procurator
Fiscal was Duncan L o w e . He instructed that bail should not be opposed. B r o w n
t o l d us that he disagreed w i t h that instruction because he regarded Tucker as "a
bogus w o r k m a n in a suit", b u t he d i d not suggest to us that there was anything
sinister in the instruction.
14.16
Thereafter the case was allocated to Isabel Clark, Procurator Fiscal Depute
at E d i n b u r g h , for precognition. B r o w n became the Reporting Officer after
Leitch's retirement on 31 December 1988 and attended to a number of m i n o r
inquiries instructed by her. On 4 A p r i l 1989 the precognition was reported to
C r o w n Office. C r o w n Counsel referred the case to N o r m a n McFadyen, Assistant
Solicitor in the Fraud U n i t , requesting his views as to sufficiency of evidence,
f o r u m of proceedings, and draft charges. N o r m a n McFadyen returned the case
on 15 June 1989 w i t h advice on these matters. On 23 June 1989 C r o w n Counsel
referred the case to the then Solicitor General, A l a n Rodger, for a decision on
whether or n o t proceedings were to be taken against Tucker and if proceedings
were to be taken, the f o r u m thereof. N o r m a n McFadyen met the Solicitor General
over the period f r o m 26 June to 6 July 1989, and on the latter date referred the
case to the C r o w n Office H i g h C o u r t U n i t , c o n f i r m i n g that the Solicitor General
had instructed H i g h C o u r t proceedings. A draft indictment was prepared in the
H i g h C o u r t U n i t and on 1 N o v e m b e r 1989 it was sent to the Procurator Fiscal
for revision w i t h instructions as to further precognition w o r k w h i c h was required.
On 3 N o v e m b e r 1989, after a discussion by telephone about the terms of the
draft indictment, the indictment was printed. On 6 N o v e m b e r 1989 the signed
indictment was sent to the Procurator Fiscal, E d i n b u r g h , for service. Tucker was
then indicted for a sitting of the H i g h C o u r t at E d i n b u r g h on 11 December 1989.
14.17
In the meantime preparations were being made for Tucker's defence. We
have already given an account of these preparations in the course of our discussion
of Tucker's Statement in part 6 of this Report. On 4 December 1989 there were
received at C r o w n Office a notice by Tucker that he intended to incriminate Ian
W a l k e r (deceased), and a list of defence witnesses. In the period immediately p r i o r
to the trial a Joint M i n u t e of Admissions was entered into w h i c h was in extensive
terms and made it unnecessary for substantial parts of the C r o w n evidence to be
led. It appears that B r o w n , the Reporting Officer, was not aware of this Joint
M i n u t e or of its consequences in terms of reducing the evidence w h i c h the C r o w n
w o u l d require to lead.
14.18
The trial began on 11 December 1989 before L o r d M c C l u s k e y and a j u r y .
The Advocate Depute was D a v i d Burns ( n o w Q C ) . Tucker's counsel were Robert
Henderson QC and John W a t t ( n o w Q C ) , and his solicitor was D a v i d BlairW i l s o n . Isabel C l a r k was n o t in attendance on the Advocate Depute because she
was absent f r o m w o r k t h r o u g h ill-health. N o t h i n g of particular note happened
d u r i n g the leading of evidence for the C r o w n . L o r d M c C l u s k e y indicated to us
that in his v i e w there was a degree of confusion because the t w o charges were
in the w r o n g chronological order and by leading evidence in the chronological
order in w h i c h the charges appeared in the indictment the evidence was not as
clear to the j u r y as it m i g h t have been. Indeed he made that point in his charge
to the j u r y . B r o w n t o l d us that he was surprised that he was the o n l y police officer
w h o was called to give evidence, although several had been cited to attend as
potential witnesses, and that all he was asked to speak to was a suicide note left
by W a l k e r , part of w h i c h he was asked to read o u t to the j u r y . B r o w n seems to
have concluded f r o m this that the presentation of the C r o w n ' s case was defective,
b u t this v i e w was reached in ignorance of the terms of the Joint M i n u t e of
Admissions and of the matters w h i c h were being challenged by the defence as the
evidence progressed. B r o w n was in fact called at the request of the defence because

HMA V ARTHUR COLIN TUCKER

77

they wanted part of the suicide note to be read out and B r o w n was a convenient
witness for that purpose. U n k n o w n to B r o w n , in addition to having entered i n t o
the Joint M i n u t e of Admissions, the defence d i d not seek to dispute evidence that
Tucker had played a part in the movement of clients' funds.
14.19
On any v i e w of the matter by the close of the C r o w n case the C r o w n had
either secured admissions or had led evidence sufficient to entitle the j u r y to find
Tucker g u i l t y o f the t w o charges o f embezzlement, apart f r o m t w o m i n o r matters
in respect of w h i c h the Advocate Depute m o v e d to amend the indictment at the
close of the C r o w n case. There was a defence submission to the court that the
accused had no case to answer, b u t this submission was resisted by the C r o w n
and was repelled by L o r d M c C l u s k e y . Thereafter defence evidence was led. It had
not been apparent to either the Judge or the Advocate Depute up to that p o i n t
w h a t defence to the charges Tucker m i g h t have. H i s defence, such as it was,
emerged s l o w l y in the course of his evidence. He d i d not dispute that clients'
money had been taken, b u t said that it had gone to Walker, and that he had o n l y
participated because Walker had some hold over h i m . He said in cross-examination
that he d i d n o t tell anyone because he was frightened. W h e n asked w h a t made
h i m frightened he said: " M r Walker had some hold over m e . " W h e n questioned
by L o r d M c C l u s k e y at the end o f h i s cross-examination he said that he d i d w h a t
he d i d partly because Walker had some h o l d over h i m . It was o n l y at the end of
a b r i e f re-examination that he said that the hold over h i m was that W a l k e r had
personal information about h i m , that he was homosexual.
14.20
In the course o f h i s address to the j u r y the Advocate Depute argued that
w h a t Tucker had said was a " h o l d " over h i m d i d n o t amount to a " h o l d " at all.
This was not disputed by Robert Henderson, w h o concentrated, in his address
to the j u r y , on the major part w h i c h Walker had played in the embezzlement of
clients' funds. In his charge to the j u r y L o r d M c C l u s k e y gave a direction that
Tucker's evidence d i d not amount to a defence of coercion, b u t since Tucker had
asserted that he had no intention to make o f f w i t h the money and was getting
n o t h i n g o u t of it for himself, it was for the j u r y to decide whether he had the g u i l t y
intent necessary for the crime of embezzlement. A f t e r retiring to consider their
verdict the j u r y returned majority verdicts o f not g u i l t y o n b o t h charges. F o l l o w i n g
the acquittal Tucker was discharged. John W a t t and D a v i d Blair-Wilson b o t h t o l d
us that j u s t as Tucker was leaving court t w o middle-aged female j u r o r s came up
to h i m . One of t h e m touched Tucker on the arm and said: " Y o u ' l l be all r i g h t
n o w " , or "It's all r i g h t , son, you're all r i g h t n o w " .
14.21
No one w h o was present in court w h e n Tucker was acquitted by verdict
of the j u r y on 19 December 1989 is of the v i e w that that acquittal was achieved
otherwise than by the votes of members of the j u r y w h o had heard the evidence
and the addresses of counsel and had been charged by the Judge as to the applicable
l a w . It is n o t for us to express any v i e w as to whether the verdict was perverse.
We are quite satisfied that it was n o t achieved by any improper means. Even
t h o u g h talk was current by then of Tucker's so-called "list", we find it impossible
to see h o w that could have influenced the j u r y . The C r o w n had done all that was
required in the w a y of leading evidence and it had resisted a submission that there
was no case to answer. For that matter the Judge had repelled that submission.
No one has suggested to us that either L o r d M c C l u s k e y or D a v i d Burns had any
motive other than a desire to play the usual parts of Judge and Advocate Depute
respectively in a trial conducted in open court.
14.22 We have already commented on O r r ' s failure to speak to Leitch w h i l e
w o r k i n g on his report. In his report he w r o t e that the decision not to search Burnett
Walker's office "effectively allowed T U C K E R to continue w o r k i n g and to
attempt to defeat the ends of justice by r e m o v i n g evidence beyond the reach of
the investigators". There is no evidence whatever to support this statement and
indeed Leitch and Isabel N i c o l have b o t h said the opposite. For that matter, B r o w n ,
w h o became the Reporting Officer at a later stage, has not spoken to us in terms
w h i c h w o u l d suggest that that is his v i e w . O r r w o u l d of course insist that the
information w h i c h was reflected in this part o f h i s report was derived f r o m b o t h
Souter and B r o w n , b u t we have o n l y Souter's evidence about his "feeling" to assist
us, and we have already discussed that. The O r r Report states that " i t was alleged

78

THE LORD A D V O C A T E ' S INQUIRY

at the time that T U C K E R ' S acquittal had been facilitated by his possession of the
'list' and the potentially c o m p r o m i s i n g nature of its content w h i c h w o u l d be
exposed should he be found g u i l t y " . A n y such allegation must have been made
w i t h o u t any reference to the actual events of the trial and to the j u r y ' s verdict.
We have said all that we need to say in part 6 of this Report about Tucker's socalled "list" and about Tucker's o w n attitude to the use of information in his
possession. Neither Souter nor B r o w n has professed any belief in the possibility
that Tucker was acquitted for any improper reason, w i t h the result that O r r
appears to have repeated an allegation w h i c h was unattributable as w e l l as incapable
of substantiation. O r r ' s report has also repeated a number of criticisms of the
conduct of the prosecution by the C r o w n , b u t since not one single person has
suggested that the Advocate Depute was i m p r o p e r l y motivated we need say no
more about these criticisms.

HMA V GORDON MICHAEL M A Y AND ARTHUR COLIN TUCKER

15.

79

HMA v GORDON MICHAEL MAY

AND ARTHUR

COLIN TUCKER

15.1 On 8 M a y 1991 the trial of M a y and Tucker began at the H i g h C o u r t in
Dunfermline on an indictment containing t w o charges. The first charge libelled
that between 1 January and 31 December 1987 M a y , w h i l e employed as a director
of a company k n o w n as Teague Homes (Scotland) L i m i t e d and Tucker, w h i l e
employed as a partner in the firm of Burnett Walker, W S , and w h i l e acting as
solicitor for that C o m p a n y , having formed a criminal purpose to obtain m o n e y
due to the C o m p a n y in respect of the sale of properties in a b u i l d i n g development
by the Company, in pursuance of said criminal purpose d i d certain acts and d i d
thus embezzle £213,679. The second charge libelled that between 1 June and 31
J u l y 1987 M a y , w h i l e employed as a director of the company, d i d certain acts and
thus obtained £ 6 , 7 5 3 . 3 8 by fraud. On 15 M a y 1991 the trial came to an end w h e n
the C r o w n w i t h d r e w the libel against b o t h accused, thus d r o p p i n g the charges
against them, and the j u r y , on the direction of the Judge, returned unanimous
verdicts o f not g u i l t y .
15.2 M a y was a director of Teague Homes (Scotland) L i m i t e d for a time u n t i l
he resigned w i t h effect f r o m 27 January 1988. The other directors were four
brothers called Teague. Tucker, as a partner in Burnett Walker, W S , acted as
solicitor to the C o m p a n y and as its secretary for a period u n t i l about February
1988. The report and consolidated financial statements of the C o m p a n y and a
subsidiary for the period f r o m 1 January 1987 to 30 June 1988 were prepared by
P Spyrou & C o , Certified Accountants, L o n d o n , as the Company's auditors. The
Directors' Report, dated 8 N o v e m b e r 1988, was signed by James Francis Teague,
one of the directors, as secretary of the C o m p a n y . The consolidated profit and
loss account and consolidated balance sheet, b o t h dated 8 N o v e m b e r 1988, were
signed by Patrick Joseph Teague and Daniel M a r t i n Teague, t w o of the directors.
The notes to the financial statements for the period f r o m 1 January 1987 to 30 June
1988 included the f o l l o w i n g note:
" D u r i n g the period the directors discovered that M r G . M a y misappropriated £245,439 f r o m the company's funds in collusion w i t h one of the
company's legal advisers and in contravention of the Companies A c t 1985
provisions. A f t e r taking legal advice on the matter it was resolved by the
directors that they should purchase o u t r i g h t the shareholding o f M r M a y
at £ 4 0 , 0 0 0 , w h i c h was considered to be a fair valuation of the shareholding.
T h e balance of the funds misappropriated is w r i t t e n o f f as an extraordinary
charge."
U n d e r the heading "Extraordinary Charge" there appeared "Defalcation by
D i r e c t o r — £ 2 0 5 , 4 3 9 " . The Report and Consolidated Financial Statements were
registered on 28 N o v e m b e r 1988 at the office for the registration of companies
in England and Wales.
15.3 The alleged defalcation was not reported by Teague Homes (Scotland)
L i m i t e d to the police. The principal directors of the C o m p a n y were the brothers
James and Patrick Teague, and it appears that they t o o k the v i e w that the loss
should be borne by the C o m p a n y in the manner indicated in the note quoted
above. In January 1990 there were reports in the press of the alleged defalcation
derived f r o m the note quoted above. At that time M a y was abroad. On 19 A p r i l
1990 the C r o w n received information about another matter relating to M a y and
it was decided to investigate the allegation that he had misappropriated money
f r o m the C o m p a n y . N o r m a n McFadyen, Assistant Solicitor in the C r o w n Office
Fraud U n i t , asked Detective C h i e f Inspector ( n o w Superintendent) Peter W i l s o n
of the Fraud Squad to attend a meeting at C r o w n Office. The H o m e Advocate
Depute, George Penrose QC ( n o w L o r d Penrose), was also, we believe, present

80

THE LORD A D V O C A T E ' S INQUIRY

at the meeting. W i l s o n was instructed at that stage to make a limited enquiry i n t o
the allegation, b u t not to make a direct approach to the Company.
15.4 The information available to the C r o w n was sufficient for apetition warrant
for May's arrest to be obtained by the Procurator Fiscal at E d i n b u r g h on 4 M a y
1990. On 8 M a y 1990 W i l s o n arrested M a y at G a t w i c k A i r p o r t on his return to
B r i t a i n and t o o k h i m to E d i n b u r g h . On 9 M a y 1990 M a y appeared on petition
at E d i n b u r g h Sheriff C o u r t on a charge of embezzlement of £210,000. He was
c o m m i t t e d for further examination and remanded in custody. On 16 M a y 1990
he was f u l l y c o m m i t t e d and bail was allowed subject to certain conditions. Subsequent procedure relating to the allowance of bail is not relevant for present
purposes.
15.5 In the period after M a y ' s c o m m i t t a l there was a f u l l investigation of the
case. W i l s o n was the Reporting Officer in respect of the police side of the investigation w h i l e the precognition was carried out by Isabel Clark, Procurator Fiscal
Depute, E d i n b u r g h . There was frequent consultation between t h e m as the investigation progressed. In the course of the investigation on 3 October 1990 Tucker
was interviewed by police officers and was cautioned and charged w i t h the embezzlement of £210,000. On 4 M a r c h 1991 the precognition, prepared by Isabel
C l a r k , was reported to C r o w n Office. H e r summary of the case referred to the
Teague brothers' lack of enthusiasm for the involvement of the police and their
concern about their position should the case proceed to trial. I t contained a recommendation that there was sufficient evidence to raise H i g h C o u r t proceedings
against M a y and Tucker. In her covering letter to the C r o w n A g e n t Isabel C l a r k
w r o t e that the defence for b o t h accused appeared to be documents w h i c h
authorised the payment to G o r d o n M a y . She also w r o t e :
" T o date, the accused A r t h u r C o l i n Tucker has not appeared on a Petition
before the court. Tucker's solicitor, Mr D a v i d Blair W i l s o n , is anxious that
the C r o w n w i l l let h i m k n o w as soon as possible i f he is to be an accused
or a witness. I w o u l d recommend that A r t h u r C o l i n Tucker remain an
accused in v i e w of his actings in the embezzlement. C r o w n Counsel's
instructions are requested in relation to Tucker appearing on Petition before
the court."
15.6 On receipt of the precognition at C r o w n Office it was considered by
Douglas B r o w n , Assistant Solicitor i n the H i g h C o u r t U n i t , w h o referred i t t o
C r o w n Counsel for instructions w i t h a note stating:
"There appears to be sufficient evidence against b o t h and as the amount
involved is £213,000 I w o u l d recommend an instruction to indict H i g h
Court."
As it happened, the Advocate Depute w h o considered the precognition was D a v i d
Burns, w h o had been the prosecutor at Tucker's previous trial the previous
December. He gave an instruction on 8 M a r c h 1991 that there should be H i g h
C o u r t proceedings against b o t h M a y and Tucker. As a result of this instruction
Tucker appeared on Petition at E d i n b u r g h Sheriff C o u r t on 18 M a r c h 1991 w h e n
he was c o m m i t t e d for further examination and granted bail. Douglas B r o w n
prepared a draft indictment w h i c h he sent to the Procurator Fiscal on 27 M a r c h
1991 w i t h a letter c o n f i r m i n g C r o w n Counsel's instructions.
15.7 There is continual communication between the C r o w n Office H i g h C o u r t
U n i t and the Justiciary Office w i t h a v i e w to arranging sittings of the H i g h C o u r t
at w h i c h trials can proceed. The letter to the Procurator Fiscal dated 27 M a r c h
1991 stated:
"Please note that this trial w i l l n o w take place at Dunfermline and not
E d i n b u r g h as originally intended."
H u g h Foley, the Principal C l e r k of Session and Justiciary, informed us that it was
found to be impossible to accommodate all the f o r t h c o m i n g E d i n b u r g h cases at
a sitting of the H i g h C o u r t in E d i n b u r g h and accordingly a sitting of the H i g h C o u r t
at Dunfermline was arranged to accommodate the overspill f r o m E d i n b u r g h . In
the event four E d i n b u r g h cases were listed for trial at that sitting. He w o u l d
emphasise that the caseload for sittings is so heavy that such an arrangement is
not unusual. A c c o r d i n g l y a letter was sent f r o m the C r o w n Office to the Procurator

HMA V GORDON MICHAEL M A Y AND ARTHUR COLIN TUCKER

81

Fiscal dated 28 M a r c h 1991 instructing h i m to attend to service of the indictment
against M a y and Tucker for trial at the sitting of the H i g h C o u r t at Dunfermline
o n 7 M a y 1991.
15.8 Because the number and length of cases are unpredictable it is frequently
necessary for changes to be made in the provisional arrangements for the allocation
o f Judges t o sittings o f the H i g h C o u r t . H u g h Foley t o l d us:
"We have to change Judges round regularly. It is standard practice in order
to achieve administrative efficiency in supporting the L o r d Justice General
or L o r d President to keep the wheels of justice t u r n i n g . "
15.9 The original plan was that L o r d Osborne w o u l d be the Judge at the sitting
in question, b u t a c i v i l p r o o f that he had been hearing lasted longer than had been
predicted and, since counsel for the parties in that p r o o f continued to be available,
it seemed appropriate for the p r o o f to be concluded in the period of the sitting
and for another Judge to be substituted in his place. Arrangements were accordi n g l y made for L o r d M c C l u s k e y to be the Judge for the sitting. It appears that
this arrangement was made shortly before 3 M a y 1991, w h i c h is the date of a note
by Douglas B r o w n recording that the change had taken place.
15.10 L o r d M c C l u s k e y t o l d us, and it is confirmed by Douglas B r o w n ' s note,
that o n learning that one o f the cases for trial at the sitting was that against M a y
and Tucker he thought that the defence should have a say in whether he should
take the t r i a l , in v i e w of w h a t he had learned about Tucker's background d u r i n g
the trial the previous December. It is clear to us that L o r d McCluskey's concern
was n o t that he could not preside impartially at the f o r t h c o m i n g trial b u t that the
defence should not be in a position to complain of a potential lack of impartiality
on the part of the Judge. D a v i d B l a i r - W i l s o n was the solicitor for b o t h accused
and w h e n Justiciary Office conveyed L o r d McCluskey's v i e w to h i m he said that
he w o u l d object to L o r d M c C l u s k e y as the trial Judge. This gave rise to a difficulty
because, as matters stood on 3 M a y , no other Judge was available and it was
therefore anticipated that the case against M a y and Tucker w o u l d require to be
adjourned to the next sitting of the H i g h C o u r t at Dunfermline on 21 M a y 1991.
It was, however, discovered at a late stage that L o r d M i l l i g a n could be made
available to take the sitting after the first day, ie f r o m 8 M a y 1991 onwards, and
it was accordingly arranged that L o r d M c C l u s k e y w o u l d sit for the first day and
Lord M i l l i g a n thereafter.
15.11 The other business of the sitting was dealt w i t h by L o r d M c C l u s k e y on
7 M a y 1991. L o r d M i l l i g a n sat on subsequent days. The trial of M a y and Tucker
began on 8 M a y 1991. The Advocate Depute for the sitting was Alastair Campbell,
May's counsel were Robert Henderson QC and John W a t t , and Tucker's counsel
was Maria M a g u i r e . Isabel Clarkattended the Advocate Depute in court. Detective
Chief Inspector W i l s o n as Reporting Officer w e n t to the court b u i l d i n g on a
number of occasions d u r i n g the t r i a l . Several journalists were present in court on
the first day of the trial, b u t f o l l o w i n g remarks by L o r d M i l l i g a n on the m o r n i n g
of the second day in response to a m o t i o n by M a r i a Maguire, w h o complained
about inaccurate reporting of the first day's proceedings in t w o newspapers, the
press were less w e l l represented for the remainder o f the trial.
15.12 The first witness called by the C r o w n was James Teague. H i s evidence
lasted for the first day and most of the second day of the t r i a l . He was followed
by Patrick Teague, whose evidence lasted for a similar period, and by Gerald and
Daniel Teague. The last C r o w n witness was Polycarpos Spyrou, the Company's
accountant. At the start of the trial Robert Henderson was allowed to lodge a late
documentary production, of w h i c h he made use d u r i n g the course of the evidence.
A t the end of the first day Alastair Campbell discussed the case at length w i t h
Isabel C l a r k because he was concerned about the quality of the evidence given
by James Teague. He eventually t o o k the v i e w that he should reconsider the
evidence once all the Teague brothers and Spyrou had given their evidence.
15.13 A l l those w h o m we have mentioned w h o were present in court are in
agreement that the Teague brothers were v e r y reluctant witnesses and that their
evidence was of such a quality that the j u r y were most unlikely to accept i t . Indeed,
it appears that at times the j u r y openly laughed at some of the evidence. Alastair
Campbell t o l d us that on one of the last days on w h i c h evidence was led, 14 M a y

82

THE LORD A D V O C A T E ' S INQUIRY

1991, the last straw for h i m came w h e n Daniel Teague conceded in evidence that
M a y was entitled to a sum of the order of the sum w h i c h had allegedly been
embezzled from the C o m p a n y . This evidence is recorded in his assistant's noteb o o k . I n Alastair Campbell's v i e w the evidence o f Spyrou d i d n o t h i n g t o i m p r o v e
the C r o w n ' s position. He accordingly came to the v i e w , on the evidence that had
been led up to that p o i n t , and taking account of the relatively m i n o r contribution
that w o u l d be made by the evidence that had n o t yet been led by the C r o w n , that
it w o u l d n o t be in the public interest for the trial to continue.
15.14
Meanwhile, as L o r d M i l l i g a n explained to us, he was becoming irritated
because it seemed to h i m that "the C r o w n wasn't getting anywhere." He r e m e m bers that he made a remark to that effect to his clerk, and that it was conveyed
to the Advocate Depute. There were t w o Depute Clerks of Justiciary at the sitting,
Robert Sinclair, w h o was there f r o m the beginning u n t i l M o n d a y 13 M a y 1991,
and G o r d o n Ellis, w h o was there for the last t w o days. B o t h of t h e m remember
L o r d Milligan's remark, and that they passed it on to the Advocate Depute. Alastair
Campbell is adamant that this d i d no more than reinforce the v i e w w h i c h he had
already reached. We should make it clear that we understand that L o r d M i l l i g a n
was motivated solely by a desire n o t to take up more of the court's t i m e , and
particularly the j u r y ' s t i m e , than was necessary. L o r d M i l l i g a n stated to us:
" A n y suggestion that there was any shortcoming on the prosecution side
is as far as I am concerned complete and utter and total rubbish."
The p r o b l e m , as all are agreed, lay in the quality of the evidence.
15.15
On 15 M a y 1991 Spyrou's evidence continued. W h e n he had the opport u n i t y , the Advocate Depute telephoned the L o r d Advocate, L o r d Fraser, w h o
was in L o n d o n . A l t h o u g h it w o u l d have been open to h i m to w i t h d r a w the libel
w i t h o u t reference to the L o r d Advocate he was aware of the rumours w h i c h had
f o l l o w e d Tucker's previous acquittal and he was concerned about the risk that
a decision n o t to proceed further against M a y and Tucker m i g h t be misinterpreted.
He explained to the L o r d Advocate his v i e w of the evidence and referred also to
w h a t he had heard f r o m the Judge's clerk. He and the L o r d Advocate agreed that
the o n l y reason for continuing w i t h the trial w o u l d have been to avoid possible
criticism and that was not a proper reason. The L o r d Advocate accordingly agreed
w i t h the Advocate Depute's decision on the basis of the evidence that it w o u l d
n o t be in the public interest to continue w i t h the prosecution. W h e n counsel
returned to court for the resumption of the trial after lunch that day the Advocate
Depute t o l d defence Counsel of his decision. T h e y had no p r i o r knowledge of
it and were accordingly somewhat surprised. W h e n the court sat the Advocate
Depute w i t h d r e w the libel and L o r d M i l l i g a n instructed the j u r y to return a formal
verdict of n o t g u i l t y . In discharging the j u r y L o r d M i l l i g a n said that the decision
taken by the Advocate Depute was "entirely proper and certainly on the evidence
was fair; it seemed a v e r y proper decision; the Advocate Depute acted impeccably".
15.16 W h i l e Isabel C l a r k shared the v i e w of other persons we have mentioned
w h o were present in court about the quality of the evidence w h i c h had been led,
she disagreed w i t h the Advocate Depute's decision to w i t h d r a w the libel. She
w r o t e a note to the Procurator Fiscal dated 24 M a y 1991 in w h i c h she stated that
she was v e r y disappointed about w h a t had happened and was extremely upset
about i t . She stated in the note, and repeated to us, that there had been direct
communication between Alastair Campbell and L o r d M i l l i g a n as w e l l as direct
communication w i t h the L o r d Advocate and that Alastair Campbell w i t h d r e w
the libel because of w h a t had been said to h i m by the Judge and by the L o r d
Advocate. She persisted in that belief notwithstanding w h a t we were able to say
to her about the evidence we had received n o t o n l y f r o m Alastair Campbell b u t
also f r o m L o r d M i l l i g a n and L o r d Fraser.
15.17
H a v i n g regard to the evidence of these persons we are convinced that
her disappointment at the Advocate Depute's decision has affected M r s Clark's
perception of the events. We accept w h a t Alastair Campbell has w r i t t e n to us in
a note responding to Isabel Clark's note:
"What M r s C l a r k has failed to appreciate is that I decided on the basis of
the evidence that it w o u l d n o t be in the public interest to continue and that
I w o u l d have made that decision in the absence of any indication of the

HMA V GORDON MICHAEL M A Y AND ARTHUR COLIN TUCKER

83

Judge'sviews: further that I w o u l d have made the decision w i t h o u t reference
to the L o r d Advocate had it n o t been for the background of press speculation. It is quite, quite w r o n g to conclude as M r s C l a r k does that I had to
consult the L o r d Advocate because of the Judge's views. The Judge's views
d i d no more than reinforce the conclusion at w h i c h I had already arrived
on considering the evidence."
15.18 We should make it clear that we do not understand that Isabel C l a r k was
suggesting, either in the note that she w r o t e or in her evidence to us, that there
was any improper m o t i v a t i o n for w h a t t o o k place. H e r v i e w , quite simply, was
that no decision should have been taken u n t i l the C r o w n had led all the available
evidence and that, as she saw i t , the Advocate Depute was induced to take a
premature decision. Her evidence is therefore not of direct relevance, b u t we have
thought it appropriate to mention it to show h o w even a Procurator Fiscal Depute
can n o t o n l y disagree w i t h an Advocate Depute's decision b u t can misperceive
the basis upon w h i c h it is made.
15.19 As we have already said, Detective C h i e f Inspector W i l s o n w e n t to the
court b u i l d i n g at Dunfermline on a number of occasions and in particular was
there on 15 M a y 1991 at a time w h i c h enabled the Advocate Depute to tell h i m
of his decision to w i t h d r a w the libel. W i l s o n t o l d us that he was disappointed by
the outcome because his investigation had produced sufficient evidence to j u s t i f y
a prosecution. He accepted, however, that the Advocate Depute had based his
decision on the quality of the evidence of the principal witnesses, and made it clear
to us that he felt there was n o t h i n g sinister about the outcome.
15.20
In preparing that part of his report w h i c h related to the case against M a y
and Tucker, Detective C h i e f Inspector O r r d i d not discuss the case w i t h Detective
C h i e f Inspector W i l s o n . Instead he based that part of his report on information
obtained f r o m Detective Inspector Souter and Detective Sergeant B r o w n , neither
of w h o m had any substantial involvement in the case. Souter had accompanied
W i l s o n w h e n t w o search warrants were executed on 17 M a y 1990 and w h e n
Tucker was detained and thereafter cautioned and charged on 3 October 1990.
He was not otherwise involved in the investigation. B r o w n had no involvement
in the investigation. O r r made some elementary mistakes. He named Tucker
rather than M a y as the first accused and he w r o t e that Robert Henderson was
Tucker's counsel, w h i l e he was in fact M a y ' s counsel. These mistakes m a y have
some significance in v i e w of Souter's belief in the existence of Tucker's so-called
" l i s t " and the o p p o r t u n i t y that Robert Henderson w o u l d have had to obtain a copy
o f i t a t the time o f Tucker's previous t r i a l . T h e part o f O r r ' s report w h i c h relates
to the case against M a y and Tucker refers to Tucker's homosexuality, states that
M a y is a practising homosexual, and alleges that M a y was involved in the r u n n i n g
of an hotel and nightclub in Thailand. A c c o r d i n g to the report this place
"is openly engaged in p r o v i d i n g services for homosexuals particularly in
the procurement of y o u n g male prostitutes or rent boys for the sexual
gratification of visitors. The complex is thought to have been frequented
by several persons popular on the E d i n b u r g h gay scene, including the gay
element of the legal fraternity."
We are in possession of no evidence w h i c h w o u l d support this latter allegation.
15.21
It is apparent f r o m a later passage in his report that O r r made a connection
between Robert Henderson, Tucker, M a y , the premises in Thailand, and Tucker's
so-called "list". The inference w h i c h he apparently intended to be d r a w n f r o m
his presentation of the subject matter was that the outcome of the case against M a y
and Tucker had somehow been procured by a combination of these features, and
in particular that Robert Henderson had been in a position to p u t improper pressure
on the C r o w n . W h e n we pressed h i m about this part of his report O r r said that
he assumed that the Reporting Officer was of the same v i e w as Souter and B r o w n
were and that they were telling h i m the t o t a l i t y of the Fraud Squad v i e w . He said
that in hindsight he accepted that in that case he should have gone to the Reporting
Officer. If he had done so W i l s o n w o u l d presumably have t o l d h i m the same as
he t o l d us, w h i c h was that the outcome of the case was the consequence of evidence
given in court by the Teague brothers and had n o t h i n g to do w i t h any " l i s t " or
any premises in Thailand.

84

THE LORD A D V O C A T E ' S INQUIRY

15.22
In his report O r r even apparently treated as sinister the fact that the case
was tried in Dunfermline rather than in E d i n b u r g h . His report states:
"One obvious effect o f m o v i n g the trial out o f E d i n b u r g h w o u l d b e t o
reduce press coverage of the issue."
The press are of course free to attend any trial anywhere in Scotland and, as we
have already said, journalists were present in court d u r i n g the trial of M a y and
Tucker, particularly d u r i n g its first day.
15.23 We should add that, whatever they m a y have said to O r r , w h e n we
interviewed Souter and B r o w n neither of t h e m was prepared to state that they
regarded the outcome of this case as having been i m p r o p e r l y procured or that the
Advocate Depute's decision was i m p r o p e r l y motivated. Souter said to us that he
d i d not feel that anything had been w r o n g , he felt no unease. Nevertheless the
k i n d of speculation w h i c h is reflected in the O r r Report, w i t h o u t any reference
to the actual facts of the case, appears to us to be the k i n d of speculation in w h i c h
Souter w o u l d readily engage and w i t h w h i c h B r o w n w o u l d readily associate
himself.
15.24
O u r conclusion must be that there is no evidence whatever to support any
allegation that any decision taken by the C r o w n in the case against M a y and Tucker
was i m p r o p e r l y motivated. Indeed the investigation was instigated by the C r o w n
and the decision to make Tucker one of the accused was taken by the C r o w n .
B u t for the poor quality of the evidence there is n o t h i n g to suggest that the C r o w n
w o u l d n o t have proceeded further w i t h the trial and, subject to direction by the
Judge, w o u l d n o t have left it to the j u r y to decide on the g u i l t of the accused.

H M A V NEIL B R U C E D U N C A N A N D OTHERS

16.

85

HMA v NEIL BRUCE DUNCAN AND

OTHERS

16.1 The investigation w h i c h led to the prosecution of N e i l Bruce Duncan and
nine other accused began; on 24 January 1990 w h e n police officers found a 16Jyear
o l d b o y , w h o was named i n the indictment b u t w h o m w e shall call M , i n a r o o m
occupied by Duncan at 37 Palmerston Place, E d i n b u r g h . The police gave the
investigation the code-name "Operation Planet". On 14January 1990 M had been
on weekend leave f r o m a children's home and was returning there by bus w h e n
Duncan struck up a conversation w i t h h i m and persuaded h i m to go w i t h h i m
to E d i n b u r g h . Between then and 24 January Duncan systematically debauched
M. He also made it possible for other m e n to participate in the debauchery by
taking h i m to various houses in E d i n b u r g h . The offences thus c o m m i t t e d are best
explained by reference to the charges in the indictment to w h i c h Duncan and his
co-accused Laurie K e n y o n Valdemar Pringle, John Stevenson, and Ian Alexander
James E w i n g pled g u i l t y .
16.2 Charge 40 libelled that on 14 January 1990 Duncan approached M on the
bus and induced h i m to travel w i t h h i m to Edinburgh w i t h the intention that he
take part in homosexual acts, w i t h i n the meaning of the C r i m i n a l Justice (Scotland)
A c t 1980, w i t h other male persons and d i d thus attempt to procure the commission
of homosexual acts between M and other male persons, contrary to section 80(9)
of the A c t . Charge 41 libelled that on the same date in a cemetery in E d i n b u r g h
Duncan conducted himself in a shamelessly indecent manner towards M and
sodomised h i m . Charge 42 libelled that between 21 and 24 January 1990 Duncan
k n o w i n g l y harboured and concealed M , w h o was required b y a supervision
requirement to reside in the children's home and had failed to return there at the
end of a period of leave, contrary to the Social W o r k (Scotland) A c t 1968, section
7 1 . Charge 44 libelled that on various occasions between 14 and 24 January 1990
in the house at 37 Palmerston Place, Duncan conducted himself in a shamelessly
indecent manner towards M and sodomised h i m . Charge 47 libelled that on various
occasions between 14 and 24 January 1990 Duncan supplied cannabis resin to M
contrary to the Misuse of Drugs A c t 1971, section 4(3)(a). Charge 50 libelled that
on various occasions between 14 and 24 January 1990 in a house in E d i n b u r g h
Duncan and E w i n g conducted themselves in a shamelessly indecent manner
towards M. Charge 51 libelled that on an occasion between 14 and 24 January
1990 in another house in E d i n b u r g h Duncan and another conducted themselves
in a shamelessly indecent manner towards M and sodomised h i m . W h i l e Duncan
pled g u i l t y to this charge, the other person named in i t , John K e i r , pled not g u i l t y
and after a trial the j u r y found the charge n o t proven against h i m . Charge 52
libelled that on 23 January 1990 in yet another house in E d i n b u r g h Duncan and
Pringle conducted themselves in a shamelessly indecent manner towards M.
Charge 53 libelled that on an occasion between 14 and 24 January 1990 Duncan
and Stevenson conducted themselves in a shamelessly indecent manner towards
M. Charge 54 libelled that on 25 January 1990 Duncan had in his possession
cannabis and cannabis resin, contrary to the Misuse of Drugs A c t 1971, section
5(2).
16.3 The above summary takes account of various deletions w h i c h were made
f r o m the charges w h e n the pleas of g u i l t y were accepted by the C r o w n . We have
o m i t t e d the specification of the sexual acts w h i c h was set out in the charges. The
C r o w n accepted pleas of n o t g u i l t y to all the other charges in the indictment. In
the result therefore a number of the accused were acquitted, w h i l e pleas of not
g u i l t y to various charges were accepted f r o m all the accused w h o pled g u i l t y
to the charges referred to above. In the discussion w h i c h follows we t h i n k it

86

THE LORD A D V O C A T E ' S INQUIRY

appropriate, therefore, to refer o n l y in the most general terms to the evidence
w h i c h led to the inclusion of these charges in the indictment in the first place.
16.4 The officers originally involved in the investigation f o l l o w i n g the discovery
of M at 37 Palmerston Place were Detective Sergeant ( n o w Sergeant) Charles O r r
and Detective Constable ( n o w Constable) Thomas B e l l , b o t h stationed at West
E n d Police Station, E d i n b u r g h . A f t e r about a week, w h e n it was clear that the
scope of the investigation was expanding, Detective Inspector Peter Robertson,
also then stationed at West E n d Police Station b u t n o w retired, was p u t in operational charge of it and was in due course the Reporting Officer. Detective Superintendent George Ritchie had oversight of the w h o l e i n q u i r y . George Ritchie was
latterly a Detective C h i e f Superintendent b u t unfortunately died on 6 A u g u s t
1991, so his evidence is n o t available to us.
16.5 There was no pre-determined l i m i t to the scope of the i n q u i r y . As a result
of information given by M and derived f r o m a "Filofax" address b o o k kept by
Duncan in his r o o m it was possible to identify men w h o had participated in the
debauchery o f M . I t was also possible t o identify y o u n g men under the age o f
2 1 , b u t older than M , w h o had been involved i n sexual acts w i t h older men i n
w h a t m i g h t be termed a " n e t w o r k " of relationships. There was no suggestion
that the behaviour of such persons was other than consensual, t h o u g h it m i g h t
nevertheless have been criminal. These y o u n g men, b y contrast w i t h M , w o u l d
properly be described as rent boys. Since this latter part of the investigation resulted
in charges in respect of w h i c h the C r o w n accepted pleas of not g u i l t y we propose
to say no more about i t .
16.6 Given, however, that the police were investigating a " n e t w o r k " the natural
and logical conclusion to the investigation w o u l d be the point at w h i c h the limits
o f the " n e t w o r k " had been established. I t w i l l be recalled that d u r i n g the earlier
part of the period d u r i n g w h i c h the investigation was taking place there were
widespread, t h o u g h unfounded, rumours f o l l o w i n g Tucker's acquittal and L o r d
Dervaird's resignation. Ritchie had in m i n d the possibility that the investigation
m i g h t yield evidence that persons occupying positions w i t h i n the legal system
formed part of the " n e t w o r k " . He gave instructions that any information relating
in a n y w a y to lawyers was to be reported to h i m for his decision as to the appropriate
course of action. In the event the accused K e i r , w h o was a solicitor, was the o n l y
lawyer affected by the investigation. As we have said, the C r o w n w e n t to trial
against K e i r on the charge referred to above and K e i r was acquitted.
16.7 B o t h Robertson and Charles O r r have emphasised to us that the investigation yielded no other information whatever about people, whether prominent
or not, in legal circles. This was confirmed by W i l l i a m M c D o u g a l l , Higher
Precognition Officer in the Procurator Fiscal's office at E d i n b u r g h , w h o carried
o u t the precognition after the case had been reported to the Procurator Fiscal.
A c c o r d i n g to Robertson, the press mistakenly thought they were investigating
the legal profession, perhaps because of the rumours w h i c h were then current.
Charles O r r t o l d us that he thought that at a later stage there was so m u c h press
speculation that Ritchie spoke to journalists and t o l d them that there was no
substance to any r u m o u r relating the investigation to any member of the legal
establishment. Since no one was better placed than he was to make such a statement, it is a p i t y that it was n o t heeded by the press and that no account was taken
o f i t i n the O r r Report.
16.8 It w o u l d be convenient at this point to mention an event w h i c h was not
part of the police investigation b u t w h i c h serves to demonstrate Charles O r r ' s
unreliability as a witness. In about M a r c h 1990 Robertson received information
that unauthorised use had been made of part of the Advocates' L i b r a r y for sexual
purposes. At that time there were no separate security arrangements for the
Advocates' L i b r a r y , so that it was possible for persons w h o had entered Parliament
House, by having given some pretext to the security guards at the entrance, to
make their w a y into the Advocates' L i b r a r y . The information was that t w o such
persons, b o t h adult males, m i g h t thus have been able to make use of one of the
rooms in the Advocates' L i b r a r y for furtive sexual activity. Robertson made it
quite clear to us that the information he received d i d not relate to any member
of the Faculty of Advocates or any person under the age of 2 1 .

H M A V NEIL BRUCE D U N C A N A N D OTHERS

87

16.9 On receipt of this information Robertson reported it to Ritchie, w h o t o o k
the v i e w that, although there was no suggestion of c r i m i n a l i t y , office-bearers of
the Faculty of Advocates should be warned of the possible unauthorised use of
the Faculty's premises by intruders. Robertson accordingly made contact w i t h
Brian G i l l Q C , the Keeper of the Advocates' L i b r a r y , w h o w e n t to see h i m at
West E n d Police Station on 31 M a r c h 1990. T h e y discussed the information that
Robertson had received and it was arranged that police officers w o u l d v i s i t the
Advocates' L i b r a r y the next week to be s h o w n the relevant part of the premises
and to meet the Dean of Faculty, A l a n Johnston Q C . The visit d u l y t o o k place.
T w o police officers w e n t t o the L i b r a r y , met Brian G i l l , were taken b y h i m t o
meet A l a n Johnston, and were shown round the premises. The o n l y action w h i c h
it was thought necessary to take thereafter was to improve the security arrangements at the Advocates' L i b r a r y .
16.10 One police officer w h o w e n t to the Advocates' L i b r a r y was Charles O r r .
We have had difficulty in establishing w h o the other one was. Charles O r r t o l d
us that he is sure that Robertson w e n t w i t h h i m , b u t Robertson t o l d us that he
d i d n o t and that Bell d i d , w h i l e Bell is quite certain that he has never been to the
Advocates' L i b r a r y . Possibly i t was Ritchie w h o w e n t w i t h O r r . I n any event
Charles O r r t o l d us that it was he, not Robertson, w h o had received the inform a t i o n , and the information was that the Advocates' L i b r a r y was being used at
night time by Advocates to take y o u n g boys there for sexual purposes. This was
of course quite different f r o m w h a t Robertson t o l d us, and had m u c h more serious
implications because it raised the possibility of criminal conduct by members of
the Faculty of Advocates. Charles O r r spoke to us about this in quite a casual w a y
w i t h o u t seeming to understand the g r a v i t y of w h a t he was saying. He t o o k some
time to appreciate that he was in effect alleging that there was information that
members of the Faculty of Advocates had engaged in criminal conduct, that that
information had been conveyed to office-bearers of the Faculty ofAdvocates, that
no action had been taken by them and that no investigation had been carried o u t
by the police. Brian G i l l d i d not support Charles O r r ' s version; his recollection
is consistent w i t h Robertson's version, t h o u g h he also related it to other concerns
he had about the security of the Advocates' L i b r a r y . A l a n Johnston said to us in
graphic terms that if he had received information of the k i n d Charles O r r had
conveyed to us "the r o o f w o u l d have left the b u i l d i n g " . We are quite certain that
n o t h i n g of the k i n d was said to h i m .
16.11
O u r conclusion about Charles O r r ' s evidence on this matter is that we
are entitled to regard h i m as an unreliable witness, liable to give an exaggerated
account o f events and to sensationalise them w i t h o u t appreciating the full
implications of w h a t he says.
16.12
Reports were made by Robertson to the Procurator Fiscal at E d i n b u r g h
as the police investigation progressed and as a result six of the accused appeared
on petition in E d i n b u r g h Sheriff C o u r t on 26 February 1990 and the remaining
four accused on 19 M a r c h 1990. A l l of the accused were c o m m i t t e d for further
examination and were allowed bail. Thereafter precognition was carried o u t by
W i l l i a m M c D o u g a l l , Higher Precognition Officer at the Procurator Fiscal's office,
in parallel w i t h the remainder of the police investigation. On 12 N o v e m b e r 1990
the case was reported by the Procurator Fiscal to C r o w n Office. In the period p r i o r
to that date n o t h i n g of note occurred apart f r o m the events w h i c h we have already
mentioned.
16.13 The Advocate Depute w h o marked the papers was H u g h M a t t h e w s . On
14 N o v e m b e r 1990 he instructed H i g h C o u r t proceedings against all the accused.
In his instruction he w r o t e :
"The l i n k w i t h Duncan demands that all be indicted together rather than
in piecemeal fashion. Had it n o t been for this then some of them could have
been dealt w i t h in the Sheriff C o u r t . "
On 21 N o v e m b e r 1990 Frank C r o w e , Assistant Solicitor in the C r o w n Office
H i g h C o u r t U n i t , w r o t e t o the D e p u t y Principal C l e r k o f Justiciary stating that
it was his intention to indict the case into the E d i n b u r g h sitting of 14 January 1991.
He stated that the case was likely to be a lengthy one, perhaps lasting t w o to three
weeks. In the circumstances he asked for the allocation of a second court to deal

88

T H E LORD A D V O C A T E ' S INQUIRY

w i t h the case, as he envisaged having the usual r u n of H i g h C o u r t w o r k indicted
for the sitting in addition to the case. On 26 N o v e m b e r 1990 an Assistant C l e r k
of Justiciary replied c o n f i r m i n g that a second court had been arranged for the
sitting and that it w o u l d be presided over by L o r d Sutherland.
16.14
Frank C r o w e prepared a draft indictment w h i c h he sent on 6 December
1990 to the Procurator Fiscal at E d i n b u r g h for revisal. The indictment contained
all the charges w h i c h had been reported to C r o w n Office, together w i t h t w o
charges included by Frank C r o w e for evidential reasons. It should be explained
that such a charge is added to an indictment because a witness m a y give evidence
about the matters set out in the charge in the course of g i v i n g evidence relevant to
other charges. The C r o w n m a y not expect to be in a position to lead corroborative
evidence to prove the charge, b u t the charge is included in the indictment in order
to give fair notice to the accused and is w i t h d r a w n at the close of the C r o w n case.
A f t e r revisal the indictment was sent on 12 December 1990 to the Procurator Fiscal
for service and was thereafter served on the accused.
16.15 At some p o i n t d u r i n g the next few days the Justiciary Office was informed
by C r o w n Office that the original estimate of t w o to three weeks for the duration
of the trial had been reconsidered and the new estimate was six weeks. We are
n o t aware of any w r i t t e n record of the communication of this increased estimate,
b u t H u g h Foley, the Principal C l e r k of Session and Justiciary, informed us that
on receipt of the information at Justiciary Office it became necessary to reconsider
the allocation of the sitting to L o r d Sutherland. The provisional timetable, based
on the original estimate of t w o to three weeks, had provided for other business
to be allocated to L o r d Sutherland immediately after the end of that period. If the
trial lasted for as l o n g as six weeks that business w o u l d have to be reallocated to
other Judges, and consequently the timetables of three or four Judges m i g h t be
affected. It was found that it w o u l d be less disruptive to the business of the court
i f L o r d Sutherland t o o k over a t w o w e e k sitting o f the H i g h C o u r t i n K i l m a r n o c k
f r o m L o r d Clyde and L o r d Clyde, whose timetable made it possible for h i m
to take a six w e e k t r i a l , was allocated the E d i n b u r g h sitting. The necessary
administrative arrangements were accordingly made. H u g h Foley insisted to us
that the decision to substitute L o r d C l y d e for L o r d Sutherland was taken in the
Justiciary Office alone and w o u l d have been taken regardless of the r u m o u r w h i c h
we n o w proceed to discuss.
16.16 We have already mentioned in part 8 of this Report the story about "Jason"
the rent b o y w h i c h was published in the "Evening N e w s " on 13 February 1991.
A l t h o u g h "Jason" had not spoken to the police it is clear that a version of the story
had become current as a r u m o u r some weeks before its publication. Ian B u r r e l l
and D a v i d Forsyth of the "Evening N e w s " made it clear to us that the story as
given to t h e m by "Jason" d i d not contain the positive assertion that the "punter"
was a Judge, and certainly d i d not serve to identify any individual as the "punter".
As we have already said, b o t h Robertson and Charles O r r emphasised to us that
their investigation yielded no information whatever, apart f r o m that relating to
the accused K e i r , about people, whether prominent or n o t , in legal circles. M o r e
specifically, neither of t h e m had discovered any evidence whatever implicating
a Judge in their investigation. T h e y are equally confident that "Jason" was not
one of the persons f r o m w h o m they had taken statements and was accordingly
not included in the C r o w n List of Witnesses for the t r i a l . Nevertheless, such is
the nature of rumours, the r u m o u r w h i c h became current was that one of the
C r o w n witnesses was a rent b o y w h o was in a position to point to the trial Judge
and identify h i m as a person w h o had made use of his services. Robertson, w h o
was the police officer best placed to express such a v i e w , described the r u m o u r
to us as "complete rubbish".
16.17 A n y o n e familiar w i t h the conduct of criminal trials is aware that a witness
is required to give evidence, in answer to questions, w h i c h is relevant to a charge
in the indictment. It is therefore difficult to see h o w , short of an uncontrolled
outburst by a witness, a situation could arise such as that postulated by the r u m o u r
w h i c h was current. M o r e o v e r , since L o r d Sutherland d i d not feature by name in
the r u m o u r , in theory the alleged rent b o y witness could have directed his remarks
against any Judge. A c c o r d i n g l y , although the r u m o u r reached Justiciary Office,

H M A V NEIL BRUCE D U N C A N A N D OTHERS

89

the o n l y degree of concern w h i c h it caused was in relation to the potentially
disruptive effect on the trial if such an event happened, rather than concern for
L o r d Sutherland as an individual. H u g h Foley is certain that the r u m o u r , as he
heard i t , w o u l d not have justified a change of Judge.
16.18 There is, however, another version of the r u m o u r w h i c h we have had to
consider. Robert Henderson Q C , w h o was instructed as counsel for one of the
accused at the f o r t h c o m i n g t r i a l , and w h o was friendly w i t h Detective Inspector
Peter Robertson (it w i l l be remembered that he had given Robertson his copy o f
Tucker's Statement), t o l d us that about three weeks before the trial was due to
take place, he happened to meet Robertson in Parliament H a l l . A c c o r d i n g to
Robert Henderson, Robertson said that he was v e r y concerned about the case
"because these dreadful rent boys have all been seen by the press and we're p r e t t y
sure one o f them w i l l name homosexual Judges j u s t for the sake o f d o i n g i t " .
A c c o r d i n g to Robert Henderson, Robertson w e n t on to say that he personally
was w o r r i e d about g i v i n g evidence because L o r d Sutherland's name was in his
notebook; he had received an anonymous telephone call w h i c h said that he should
be investigating L o r d Sutherland, w h i c h was w h y L o r d Sutherland's name was
in his notebook; he was w o r r i e d in case counsel asked to see his notebook w h i l e
he was g i v i n g evidence. At a later interview Robert Henderson t o l d us that he
had a strong impression that Robertson t o o k out his notebook and showed h i m
the entry. He accepted that if Robertson's notebook showed n o t h i n g of the sort,
then he was w r o n g . At interview, Robertson denied having said any such t h i n g
to Robert Henderson.
16.19 We are not disposed to accept that Robertson said anything to Robert
Henderson about having L o r d Sutherland's name in his notebook. Police officers'
notebooks are all numbered and are retained for future reference. A l l Robertson's
notebooks have been accounted for. C h i e f Superintendent G i l m o u r has examined
the notebooks covering the period f r o m January 1990 to January 1991 inclusive
and has found no reference to L o r d Sutherland. Likewise all Charles O r r ' s notebooks have been accounted for, have been examined and contain no such reference.
A l l the information acquired d u r i n g the "Operation Planet" investigation was
stored on a H O L M E S computer database at Police Headquarters. A computer
check of the database has disclosed no reference to L o r d Sutherland. Likewise
W i l l i a m M c D o u g a l l , the Higher Precognition Officer w h o carried out the precognition, can c o n f i r m that L o r d Sutherland's name d i d n o t come to his notice
in any w a y d u r i n g the course of precognition. It w o u l d thus n o t have been
intelligible for Robertson to say that he had L o r d Sutherland's name in his notebook.
16.20 W h i l e we accept, therefore, that Robertson d i d n o t say to Robert
Henderson that he had L o r d Sutherland's name in his notebook, we have more
difficulty in establishing w h a t , if anything, Robertson d i d in fact say to Robert
Henderson. The reason for this is that Robertson denies having spoken to Robert
Henderson at all in Parliament House about the f o r t h c o m i n g t r i a l . Given the lack
of candour in his evidence to us about the events surrounding his receipt of Robert
Henderson's copy of Tucker's Statement, he is a witness whose evidence we are
bound to treat w i t h some caution. Robert Henderson t o l d us that as soon as
Robertson had spoken to h i m he w e n t to see the Dean of Faculty, A l a n Johnston
Q C , in his r o o m in the Advocates' L i b r a r y , w h i c h is o n l y a few yards f r o m
Parliament H a l l . A l a n Johnston remembers that Robert Henderson "came rushing
in in a h i g h state of agitation having j u s t seen a police officer". A c c o r d i n g to h i m ,
Robert Henderson said that the policeman had t o l d h i m that one of the accused
was g o i n g to p o i n t a t the Bench and say "that's h i m " . We t h i n k that A l a n Johnston's
m e m o r y is slightly at fault, because all other versions of the current r u m o u r related
to a witness rather than one of the accused. In any event A l a n Johnston was
sufficiently concerned to make an appointment to see L o r d H o p e so that he could
w a r n h i m o f the risk o f embarrassment t o L o r d Sutherland. B y that time, however,
the administrative decision had already been taken to substitute L o r d Clyde for
L o r d Sutherland. It thus became unnecessary for L o r d Hope to take any separate
action. L o r d Hope does, however, remember having been t o l d that there was
information f r o m the police that something m i g h t be said in court about the trial

90

THE LORD A D V O C A T E ' S INQUIRY

Judge. The Dean of Faculty does n o t remember anything being said to h i m by
Robert Henderson about L o r d Sutherland's name being in a police notebook and
L o r d Hope is confident that n o t h i n g was said to h i m about a notebook.
16.21
F r o m the evidence discussed in the preceding paragraph we feel entitled
to conclude that Robertson d i d in fact speak to Robert Henderson and said
something to h i m w h i c h led Robert Henderson to speak to the Dean of Faculty,
b u t w h a t he t o l d h i m related to the then current r u m o u r derived f r o m the "Jason"
story, w i t h o u t in a n y w a y saying that L o r d Sutherland's name was in his notebook,
or anything else to the effect that a Judge's name had come to his notice in the
course of the police investigation. Given that his speaking to the Dean of Faculty
was well-intentioned, we are prepared to assume that in the heat of the m o m e n t
Robert Henderson d i d not f u l l y grasp w h a t Robertson had said to h i m .
16.22 We are however driven to the conclusion that subsequent talk of L o r d
Sutherland's name being in a police notebook originated f r o m Robert Henderson.
Several of the defence counsel heard talk that L o r d Sutherland's name was in a
police notebook. Lawrence Nisbet and N e i l M u r r a y , t w o of the counsel for the
accused, b o t h heard that there was a policeman's notebook w h i c h had been lodged
as a production and w h i c h contained a description of a Judge's house to w h i c h
a rent b o y had allegedly been taken. T h e y each made separate inquiries and found
that no such notebook had been lodged as a production in the case. There was
of course no such notebook in existence, because no version of the "Jason" story
t o o k the f o r m of a statement given to the police. We understand that there was
subsequently a r u m o u r that a notebook containing such a statement had been
lodged as a production b u t had thereafter disappeared. We have not been able to
discover h o w m u c h currency that r u m o u r had, b u t it had come to the notice of
at least one journalist. The obvious explanation of its o r i g i n is as a rationalisation
of the fact that no such notebook had ever been lodged as a production, although
there was a r u m o u r to the effect that it had.
16.23 W h i l e the decision to substitute L o r d Clyde for L o r d Sutherland was taken
for administrative reasons, they were b o t h aware to some extent that there was
a r u m o u r that one of the witnesses m i g h t in some w a y attempt to embarrass the
trial Judge. L o r d Clyde's former clerk, W i l l i a m G i l l o n , was also aware of such
a r u m o u r . We w i s h to state emphatically that the o n l y possible concern for L o r d
Sutherland w o u l d have been in respect of the embarrassment that w o u l d have been
occasioned to h i m as the innocent v i c t i m of whatever ill-founded allegation m i g h t
be blurted o u t in court. M o r e serious than this personal concern w o u l d have been
the concern for the potentially disruptive effect of such an event on the progress
of the t r i a l . We have discussed w i t h L o r d Sutherland the w a y in w h i c h his name
came to be mentioned in the course of the events w h i c h we have described. He
regards it as incomprehensible that he should be the subject of any r u m o u r of the
k i n d w h i c h Robert Henderson reported to us.
16.24
Because no regular Advocate Depute was available to prosecute at the
sitting w h i c h had been arranged for the trial the L o r d Advocate, L o r d Fraser, gave
a commission to Thomas D a w s o n Q C , a former Advocate Depute, and n o w
Solicitor General, as an ad hoc Advocate Depute for the sitting. Frank C r o w e , w h o
had drafted the indictment, was due to be replaced as Assistant Solicitor in the
H i g h C o u r t U n i t b y Douglas B r o w n o n 7 January 1991. T h e y w o r k e d together
on 3 and 4 January 1991. Frank C r o w e t o l d Douglas B r o w n that he agreed w i t h
w h a t H u g h Matthews had w r i t t e n w h e n he instructed the indictment, and that
the emphasis was on the charges relating to M, these being the charges w h i c h
necessitated proceedings in the H i g h C o u r t . T h e y had a discussion w i t h Thomas
Dawson w h o shared that v i e w .
16.25
Thomas D a w s o n t o l d us that the o n l y contact he had w i t h C r o w n Office
about the case prior to its final disposal was this discussion w i t h Frank C r o w e
and Douglas B r o w n . He said that they certainly d i d not ask h i m to consider
d r o p p i n g any charges. He himself was "beginning to take a pretty robust v i e w "
of the case and was concerned to see whether the papers had ever been seen by
a L a w Officer. He was t o l d that they had not. He happened to meet the Solicitor
General, A l a n Rodger, in the Advocates' G o w n R o o m in Parliament House, on
9 January 1991, and asked h i m whether the papers had been seen by h i m or the

H M A V NEIL BRUCE D U N C A N A N D OTHERS

91

L o r d Advocate. A l a n Rodger confirmed that they had not. Thomas Damson said
to A l a n Rodger that he w o u l d take a certain v i e w , but would not consult him
as he had n o t been consulted in the past. He w o u l d take an independent view.
A l a n Rodger t o l d h i m that that was w h a t was expected o f h i m : "That's what we're
paying y o u f o r " . A l a n Rodger confirmed this account to us. He was in Parliament
House that day to appear for the C r o w n in criminal appeals. Thomas Dawson
also had a chance meeting w i t h the L o r d Advocate, perhaps a day later, when
similar remarks were made.
16.26 Meanwhile steps had been taken w i t h a v i e w to procedure in court d u r i n g
the week before the trial was due to start on 14 January 1991. On 27 December
1990 intimation was given of a M i n u t e of Notice for the accused A l l a n Robert
M c D o n a l d claiming that w h a t was libelled in certain charges against h i m were
not crimes. On 28 December 1990 i n t i m a t i o n was given of a similar M i n u t e of
Notice for the accused John K e i r claiming that the latitude taken in t w o charges
against h i m was excessive and that part of another charge against h i m was irrelevant
due to lack of specification. These Minutes of N o t i c e necessitated the f i x i n g of
a preliminary diet for Wednesday 9 January 1991 in the H i g h C o u r t at E d i n b u r g h .
This diet was fixed on 3 January 1991. On 7 January 1991 i n t i m a t i o n was given
of a M i n u t e of Notice for the accused N e i l Bruce Duncan claiming that the libelling
of certain charges was oppressive and that these charges were irrelevant, that
another charge was irrelevant due to an excessive latitude of t i m e , that another
charge was irrelevant due to lack of specification, and that other charges libelled
a c o m m o n intent w h i c h was n o t supported by any evidence. On 8 January 1991
intimation was given of a M i n u t e o f N o t i c e for the accused A n d r e w H o o d claiming
that w h a t was libelled in certain charges were not crimes. W h i l e these Minutes
o f N o t i c e thus raised a number of subsidiary points, the main point w h i c h it was
proposed to argue at the preliminary diet related to the question whether, apart
f r o m sodomy, homosexual acts between consenting males over the age of 16
constituted a crime according to the l a w of Scotland after the passing of section
80 of the C r i m i n a l Justice (Scotland) A c t 1980.
16.27
Counsel for the accused w h o appeared before L o r d Clyde at the p r e l i m i nary diet on 9 January 1991 were: K e v i n D r u m m o n d Q C , w h o appeared for N e i l
Bruce Duncan; John W a t t , Advocate ( n o w Q C ) , w h o appeared for Laurie K e n y o n
Valdemar Pringle in place of Robert Henderson Q C , w h o was not available for
the preliminary diet; James Reilly, Advocate, w h o appeared for John Stevenson;
N e i l M u r r a y , Advocate ( n o w Q C ) , w h o appeared for John Keir; John W a t t , w h o
appeared for Ian Alexander James E w i n g , the accused for w h o m he was principally
instructed; John M i t c h e l l Q C , w h o appeared for A l l a n Robert M c D o n a l d M u r r a y ;
Thomas Welsh, Advocate, w h o appeared for A n d r e w H o o d ; Lawrence Nisbet,
Advocate, w h o appeared for Gerard Clarke; Paul M c B r i d e , Advocate, w h o appeared for Graeme K e r r Y o u n g ; and Derek O g g , Advocate, w h o appeared for John
M c C u l l o c h Fisher. Some of the accused were represented by t w o counsel, b u t
we have mentioned o n l y the senior of the t w o . We have interviewed all the counsel
named in this paragraph.
16.28
On the basis of our interviews w i t h Thomas D a w s o n and the defence
counsel we are satisfied that a correct outline of the day's events w o u l d start w i t h
a conversation between Thomas D a w s o n and K e v i n D r u m m o n d in Parliament
House before the diet was called in court at 10 a m . By that time Thomas D a w s o n
had come to the v i e w that the interests of the public w o u l d best be served if he
could obtain pleas o f g u i l t y t o the charges relating t o the debauchery o f M . H e
d i d not consider that the public interest w o u l d be served by leading distasteful
evidence d u r i n g a l o n g trial about consensual homosexual acts not i n v o l v i n g M.
He t o o k account of the fact that the y o u n g men named in the charges were older
than M and could, in the information before h i m , properly be described as rent
boys. The accused f r o m w h o m it was most important to obtain a plea of g u i l t y
was K e v i n D r u m m o n d ' s client, Duncan. W h e n it became apparent f r o m their
conversation that there was the possibility of such a plea of g u i l t y Thomas D a w s o n
decided to seek an adjournment w h e n the diet was called. This he d u l y d i d ,
explaining to the Judge that he wanted the o p p o r t u n i t y to continue a discussion
w h i c h had started.

92

THE LORD A D V O C A T E ' S INQUIRY

16.29 Thereafter there were discussions w h i c h t o o k up m u c h of the m o r n i n g .
We have not been able to reconstruct the exact history of events because different
groups of counsel spoke to each other at different times and there was probably
o n l y one occasion w h e n they all spoke together. It is, however, clear that after
Thomas D a w s o n had initiated discussions w i t h some of the other defence counsel
he realised that it w o u l d be w o r t h w h i l e to have a meeting w i t h all the defence
counsel to state the position w h i c h he proposed to adopt on behalf of the C r o w n
and to establish their positions on behalf of their clients. Such a meeting was
arranged and t o o k place in the r o o m used by the Advocates Depute in Parliament
House. Douglas B r o w n was there, b u t otherwise o n l y Thomas D a w s o n and the
defence counsel were present. Thomas D a w s o n explained the v i e w he had come
to and invited the defence counsel to take instructions as to the pleas w h i c h their
clients were prepared to tender. Thereafter defence counsel w e n t to obtain such
instructions. Various groups of defence counsel had discussions together and a
number of t h e m had individual discussions w i t h Thomas D a w s o n . In due course
it was ascertained that pleas w o u l d be f o r t h c o m i n g as summarised in the first t w o
paragraphs of this part of our Report. It should be particularly noted that the
accused John Keir was not prepared to plead g u i l t y to the charge against h i m
alleging a n offence i n v o l v i n g M . G i v e n , however, that Duncan i n particular was
prepared to plead g u i l t y to those charges w h i c h Thomas D a w s o n regarded as of
particular importance, he decided to accept the pleas w h i c h were f o r t h c o m i n g and
to proceed to trial against K e i r .
16.30 A l l of the persons w h o attended the meeting at w h i c h Thomas D a w s o n
t o o k this decision are entirely satisfied that he d i d so in the exercise of his o w n
unfettered discretion and for no improper m o t i v e . It is clear f r o m w h a t we were
t o l d that Thomas D a w s o n was w i d e l y regarded by defence counsel as an Advocate
Depute w h o was jealous ofhis o w n independence and w h o w o u l d n o t shrink f r o m
t a k i n g a robust v i e w of the suitable disposal of a case in the public interest. One
or t w o expressed surprise about the acceptance of so m a n y pleas of n o t g u i l t y at
that stage in the proceedings, but d i d n o t seek to suggest that the decision could
be criticised. There was some criticism of the original decision to include in the
indictment charges in respect of w h i c h Thomas D a w s o n accepted n o t g u i l t y pleas.
For that reason we spoke to H u g h M a t t h e w s , w h o t o l d us that, having regard
to the terms o f h i s original instruction (see para 16.13), the decision taken by
Thomas D a w s o n was one w h i c h he could w e l l have taken himself in the c i r c u m stances.
16.31 It is convenient at this p o i n t to refer to certain statements in the O r r
Report relating to the events of 9 January 1991. The report states:
"Immediately p r i o r to the trial getting underway and to the surprise and
annoyance of b o t h the reporting officer and the then Regional Procurator
Fiscal, Duncan L O W E , C r o w n Counsel arranged a meeting w i t h the
various defence agents involved and announced to their surprise that it was
no longer p o l i c y to prosecute consensual homosexual conduct w i t h persons
under 18 years. The result of this was that 47 of the 57 original charges were
dropped and pleas were arranged on the remaining ten. T h i s allowed five
potential accused to w a l k free."
A further passage states:
" I t was the o p i n i o n of the reporting officer in the rent b o y case that the
Advocate Depute allocated the case was also extremely surprised at being
directed n o t to pursue the m a j o r i t y of the charges. A t t e m p t s were made
at the time to discuss the reasons for this strategy b u t C r o w n Counsel were
apparently instructed to make no c o m m e n t whatever."
A further passage states:
" I t is of interest that at the t i m e of the enquiry it appears that C r o w n
Office and the L o r d Advocate were beginning to consider a change in the
prosecution p o l i c y concerning consensual homosexual offences and were
beginning to take a more lenient v i e w of such offending. The proposals
to change the prosecution p o l i c y have, however, recently been terminated."

H M A V NEIL BRUCE D U N C A N A N D OTHERS

93

16.32 As we have already discussed in part 3 of this Report, the review of the
C r o w n ' s policy in respect of the prosecution of consensual homosexual offences
d i d not start u n t i l after this case had been disposed of and was prompted in part
by this case. Thomas D a w s o n was accordingly not in a position to say, and d i d
not in fact say, anything about a change in C r o w n p o l i c y . A l l those w h o were
present are agreed on that. There is no question of his having been given any
directions as to the disposal of the case, or of his having said anything w h i c h
indicated that he had been given such directions. A g a i n , all w h o were present are
agreed on that. Charles O r r t o l d us that he had been t o l d that " D a w s o n w a l k e d
into the r o o m and said 'we're n o t here to mess about w i t h people sticking their
cocks up y o u n g boys' arses, w h a t we're g o i n g to do is this', ie a deal, and I ' m
t o l d defence counsel were absolutely stunned." A l l the defence counsel are agreed
that no such t h i n g was said and that they were not "stunned". We are accordingly
unable to account for the version of the meeting w h i c h Charles O r r heard or the
version w h i c h is set o u t in the O r r Report.
16.33 W h e n the diet was again called on 10 January 1991 the pleas w h i c h had
been agreed were tendered and recorded. T h e accused M u r r a y , H o o d , Clarke,
Y o u n g and Fisher were discharged. Sentence was deferred in respect of the accused
Duncan, Pringle, Stevenson and E w i n g to 31 January 1991. The diet against K e i r
was continued to 11 January 1991. K e i r adhered to his M i n u t e o f N o t i c e . On 11
January 1991 Thomas D a w s o n intimated to the court that the C r o w n w o u l d
proceed against K e i r on one charge o n l y . T h e M i n u t e o f N o t i c e for K e i r was then
w i t h d r a w n , and n o t g u i l t y pleas were intimated and accepted in respect of the
remaining charges against h i m .
16.34 We have a substantial b o d y of evidence that on one of the days w h e n there
was procedure in court d u r i n g that week, probably 10 January 1991, police officers
were present in court. These officers clearly showed anger at the decision taken
by Thomas D a w s o n . W h e n counsel left court at the end of the day's proceedings
these police officers accosted several of t h e m , using swear w o r d s and demanding
to k n o w the name of the Advocate Depute. B r i a n Douglas, Advocate, overheard
this. A l l the witnesses to this behaviour on the part of police officers regarded it
as inappropriate. We have been unable to discover w h o the police officers were.
N o n e of the officers engaged on the investigation was cited to attend court that
week, because the trial diet was set d o w n for the f o l l o w i n g week. Robertson, the
Reporting Officer, was seconded to a murder enquiry in Musselburgh. N o n e of
the police officers w h o m we interviewed w o u l d admit to having been at court
on that occasion. Thomas D a w s o n was not aware of any attempt by police officers
to speak to h i m . We are, accordingly, unable to substantiate that part of the O r r
Report w h i c h relates to such an attempt.
16.35 Charles O r r described himself as h a v i n g felt angry and upset at the
outcome of the case. He referred to the amount of w o r k w h i c h he had p u t into
the investigation and said:
" I thought there must have been something happen that m o r n i n g o r v e r y
shortly before the trial to make that happen."
Robertson t o l d us that w h e n news of w h a t had happened reached h i m at Musselb u r g h Police Station he was surprised: " I t was a complete shock." W h e n he
attended court as a witness the nextweekhe asked the Procurator Fiscal's representative i f i t w o u l d b e possible for h i m t o have a w o r d w i t h Thomas D a w s o n , but
was t o l d that since he was a witness he could n o t discuss the case w i t h the Advocate
Depute. He d i d n o t subsequently pursue the matter. He t o l d us that he was o n l y
ever annoyed at n o t having been given any explanation for Thomas Dawson's
decision.
16.36 N o b o d y f r o m the Procurator Fiscal's office was involved in the events of
9,10 and 11 January 1991. Linda R u x t o n was the Senior Procurator Fiscal Depute
i n E d i n b u r g h i n charge o f H i g h C o u r t cases f r o m January to A p r i l 1991. She was
due to be in attendance at the trial starting on 14 January, b u t was not involved
in the discussions about pleas. She said to us that, w h i l e she had no great knowledge
of w h a t had taken place, she had spoken afterwards to Thomas D a w s o n and shared
his views. She was concerned, however, at the somewhat casual manner in w h i c h
news of the decision reached the Procurator Fiscal's office after it had been taken.

94

THE LORD ADVOCATE'S INQUIRY

This was particularly because o f the hard w o r k w h i c h W i l l i a m M c D o u g a l l had
done on the precognition, and she t h o u g h t it discourteous to h i m . He t o l d us that
he was angry because of the time he had spent on the precognition. He thought
that if charges were not to be proceeded w i t h , that was a decision w h i c h should
have been taken at the time w h e n the indictment was instructed. W i t h hindsight,
it m i g h t have been better for a clearer explanation to have been given to the
Procurator Fiscal's office about the reasons for Thomas Dawson's decision and
the circumstances in w h i c h it had been taken. The same m i g h t be said about g i v i n g
an explanation to the police.
16.37 L i n d a R u x t o n and W i l l i a m M c D o u g a l l b o t h made it clear to us that there
was no suggestion that Thomas D a w s o n had taken his decision otherwise than
in the exercise of his o w n unfettered discretion or was in any w a y i m p r o p e r l y
motivated. No one in the Procurator Fiscal's office of w h o m we are aware w o u l d
say otherwise. We mention this because according to Charles O r r someone,
probably Robertson, t o l d h i m that Duncan L o w e , the Regional Procurator Fiscal,
was extremely upset. A c c o r d i n g to this account, Robertson and Ritchie had gone
to see Duncan L o w e and had t o l d h i m w h a t had happened. He had no knowledge
of it and tried to obtain further i n f o r m a t i o n , saying something to the effect that
"that bastard Rodger w i l l have had a hand i n this". W e have spoken about this
to b o t h Duncan L o w e and Robertson and are satisfied that n o t h i n g of the k i n d
was said. N o r d i d A l a n Rodger "have a hand i n " Thomas Dawson's decision.
Duncan L o w e was neither surprised n o r annoyed at the outcome of a case of w h i c h
he had little knowledge, t h o u g h he anticipated that there w o u l d be considerable
public comment.
16.38 T h e trial of K e i r on the remaining charge against h i m was due to start on
14 January 1991, b u t there was a failure of the p o w e r supply to Parliament House
and accordingly the proceedings required to be adjourned u n t i l the next day. L o r d
K i r k w o o d attended to this f o r m a l i t y . On 15 January 1991 the trial t o o k place
before L o r d Clyde and a j u r y . The witnesses for the C r o w n included M and
Duncan, the first accused. The case continued on 16 January 1991, w h e n the j u r y
found the charge not proven. The O r r Report makes no mention of the fact that
the C r o w n w e n t to trial against K e i r and called as a witness Duncan, w h o of all
the persons involved in the investigation had the most i n f o r m a t i o n at his disposal
about the homosexual activities of others. If the C r o w n had any reason to be
concerned about the risk of disclosures being made in the course of evidence, that
risk could have been avoided by the acceptance of a plea of n o t g u i l t y to the charge
on w h i c h the C r o w n in fact w e n t to trial against K e i r .
16.39 On 12 February 1991 the accused in respect of w h o m sentence had been
deferred appeared before L o r d C l y d e , w h e n Duncan was sentenced to four years'
imprisonment on the principal charges against h i m . Sentence was further deferred
on Pringle, Stevenson and E w i n g u n t i l 8 October 1991, w h e n they appeared before
the L o r d Justice C l e r k and were admonished.
16.40
On 12 February 1991 Alistair D a r l i n g MP w r o t e to the L o r d Advocate
expressing concern that the C r o w n decided to drop so m a n y charges v e r y shortly
before the trial i n a case that had been investigated for some considerable time,
and asking w h y , after so m u c h time and expense, the matter was dealt w i t h in
the w a y in w h i c h it was. The L o r d Advocate replied by letter dated 8 M a r c h 1991
in w h i c h he stated:
" I a m satisfied that n o t o n l y the sufficiency o f the evidence available i n this
case b u t also the quality of that evidence was carefully assessed by the
Advocate Depute w h o prosecuted and that the decisions taken represent
a proper exercise of the C r o w n ' s discretion."
T h a t remains L o r d Fraser's v i e w of the matter and it is one w h i c h , on the information available to us, he was fully justified in expressing.
16.41 The O r r Report refers to the correspondence between Alistair D a r l i n g and
the L o r d Advocate. It continues:
"Others feel however, that the decisions made concerning the disposal of
the case were not i n accordance w i t h justice b u t were a deliberate means

E

H M A V NEIL BRUCE D U N C A N A N D OTHERS

95

o f preventing possible compromise o f prominent public f i g u r e s b y stopp i n g the rent b o y witnesses f r o m g i v i n g evidence and identifying other
homosexual partners."
A n o t h e r passage states:
"Persons engaged on the enquiry however, feel that the decision to drop
charges and prosecutions was a tactical one taken at the highest levels in
C r o w n Office to prevent the possibility of evidence being presented w h i c h
could potentially compromise senior figures in the j u d i c i a r y . "
16.42
O r r t o l d us that these passages were a reflection of w h a t Robertson and
his brother Charles O r r had said to h i m . Robertson denied having spoken to O r r
in those terms. He said to us:
" I don't feel the C r o w n Office got the Advocate Depute t o d o w h a t h e d i d
to stop a rent b o y p o i n t i n g the finger at a Judge. The Advocate Depute was
not i m p r o p e r l y motivated because there was n o t h i n g to cover u p . "
He was o n l y ever concerned about the Advocate Depute's decision in case it had
been taken because the police had done something w r o n g , w h i c h was w h y he was
annoyed at n o t having been t o l d the reason for i t . He said that he saw the O r r
Report i n draft, and he t o l d O r r that he d i d not agree w i t h the passages w e have
quoted above. O r r however insists that Robertson d i d agree w i t h t h e m . We cannot
resolve this conflict of evidence. Charles O r r , on the other hand, d i d give evidence
to us in support of w h a t his brother w r o t e in his report. He said to us:
" I d i d express m y s e l f t o m y brother i n basically these terms. T h e y were
my feelings at the time. My feelings are still that these are decisions n o t
taken l i g h t l y . An improper m o t i v e could w e l l have been a possibility and
I saw it as such."
He said in terms that he subscribed to the passages w h i c h we have quoted above.
16.43 These passages contain a grave allegation for w h i c h there is n o t a shred
of evidence. We find it incomprehensible that Charles O r r should have spoken
to his brother as he d i d , or that O r r should have accepted w h a t he was t o l d at
its face value. As we have said, all the evidence points to an exercise by Thomas
D a w s o n of his o w n unfettered discretion, and if the alleged m o t i v e existed then
the obvious course w o u l d have been n o t to proceed to trial against K e i r . Charles
O r r himself was called as one of the C r o w n witnesses at that trial, so he k n e w
perfectly w e l l that it had taken place. Y e t there is no mention of that trial in the
O r r Report and we have to conclude that he gave his brother a distorted and
incomplete account of the w h o l e proceedings. We feel fullyjustified in describing
the w h o l e treatment of this case in the O r r Report as disgraceful.

96

THE LORD A D V O C A T E ' S INQUIRY

17. HMA v STEPHEN MARK CONROY

17.1 On 20 July 1992 Stephen C o n r o y pled g u i l t y to six out of seven charges
of fraud and attempted fraud libelled in an indictment against h i m and was sentenced to sixyears' imprisonment. The sums in question came to a total of £280,153
in the charges of completed fraud and £270,000 in the charges of attempted fraud.
17.2 A l t h o u g h the case against C o n r o y does not feature in the O r r Report, for
the obvious reason that it was disposed of after that report was w r i t t e n , we t h i n k
it appropriate to discuss some aspects of i t , p a r t l y because of an event w h i c h
happened d u r i n g the course of precognition and partly because of the terms of
a letter w h i c h Tarn Dalyell MP w r o t e to L o r d Hope on 19 A u g u s t 1992. To put
these matters in context we propose to give a b r i e f outline of the case.
17.3 T h e charges to w h i c h C o n r o y pled g u i l t y were not in fact the first such
charges against h i m w h i c h had come to the notice of the C r o w n . As a result of
the investigation into Conroy's activities by Detective Inspector ( n o w Inspector)
Michael Souter and Detective Sergeant ( n o w Sergeant) Peter B r o w n , w h i c h we
have previously mentioned in passing, Souter, as the Reporting Officer, made
t w o reports to the Procurator Fiscal at E d i n b u r g h . The first report related to three
charges of completed fraud, the total of the sums in question being £ 1 2 3 , 3 2 5 , and
one charge of attempted fraud, the amount in question being £22,750. C o n r o y
appeared on petition in respect of these charges at E d i n b u r g h Sheriff C o u r t on
29 October 1991 and was granted bail. A f t e r precognition the case was reported to
C r o w n Office on 8 M a y 1992. C r o w n Counsel instructed H i g h Courtproceedings
and the case was allocated to the sitting of the H i g h C o u r t in E d i n b u r g h w h i c h
was due to take place on 5 October 1992.
17.4 C o n r o y persisted in his fraudulent activities w h i l e he was on bail, and
c o m m i t t e d the crimes w h i c h were libelled in charges 6 and 7 of the indictment
referred to above. This led, incidentally, to the eighth charge in the indictment,
to w h i c h he also pled g u i l t y , being a charge of contravention of the Bail etc
(Scotland) A c t 1980. W h e n these further crimes were reported to the Procurator
Fiscal at E d i n b u r g h it was decided that the public interest w o u l d best be served
ifhe remained in custody pending trial. A c c o r d i n g l y w h e n he appeared on a second
petition at E d i n b u r g h Sheriff C o u r t on 16 A p r i l 1992 he was fully c o m m i t t e d in
custody. He appealed to the H i g h C o u r t against the refusal to grant h i m bail.
The hearing of the appeal was continued on a number of occasions to a l l o w
investigation of assertions made on his behalf that he had been p r o v i d i n g information w h i c h was helpful to the police, but eventually on 19 M a y 1992 the bail
appeal was refused. At that time the Judge, L o r d M u r r a y , made it clear that the
C r o w n should not expect an extension to the 110 day period.
17.5 As a result, time for precognition was v e r y short. On 25 M a y 1992 the case
was allocated to Iain McSporran, Procurator Fiscal Depute in the E d i n b u r g h
office, for precognition. On 27 M a y 1992 there was a telephone discussion between
h i m and Douglas B r o w n , o f the C r o w n Office H i g h C o u r t U n i t , w h e n i t was
decided that, as the case had to be allocated to the sitting of the H i g h C o u r t at
E d i n b u r g h w h i c h was due to take place on 20 July 1992 if the time l i m i t was to
be complied w i t h , the time available for precognition meant that o n l y the most
substantial charges could be the subject of precognition and indictment. T h i s was
confirmed by Douglas B r o w n to Iain McSporran in w r i t i n g on 1 June 1992. On
10 June 1992 the case was reported to C r o w n Office, C r o w n Counsel instructed
H i g h C o u r t proceedings, and the case was allocated to the sitting of 20 July 1992.
Douglas B r o w n prepared a draft indictment incorporating all of the charges w h i c h
had been reported on 10 June and on 15 June 1992 he sent the draft indictment

H M A V STEPHEN MARK C O N R O Y

97

to Iain McSporran for revisal. On 17 June 1992 the indictment was sent to the
Procurator Fiscal at E d i n b u r g h for service.
17.6 By letter dated 7July 1992 Conroy's solicitor, D a v i d B l a i r - W i l s o n , offered
a plea of g u i l t y to the charges in the indictment relating to the completed frauds,
provided that the C r o w n accepted a plea of not g u i l t y to the charges relating to
the attempted frauds, d i d not proceed further w i t h the charges in the first petition,
and undertook not to prosecute C o n r o y in respect of other matters w h i c h m i g h t
be revealed by further police enquiries. On 8 July 1992 Iain McSporran w r o t e to
C r o w n Office recommending that the C r o w n should hold out for a plea of g u i l t y
to all the charges in the indictment, b u t that it m i g h t be appropriate to indicate
that if the plea resulted in a substantial sentence it m i g h t n o t be necessary in the
public interest to proceed w i t h the charges in the first petition. On receipt of this
letter Douglas B r o w n prepared a note to the d u t y Advocate Depute, Alastair
Campbell, recommending that the proposed plea should not be accepted, b u t that
C r o w n Counsel should indicate their willingness to consider b o t h cases together
for the purposes of a plea and that if there was a substantial improvement in the
plea to the present indictment they m i g h t be persuaded not to proceed w i t h the
first case. On 9 July 1992 Alastair Campbell accepted this recommendation and
a letter was sent by Douglas B r o w n to Iain McSporran i n t i m a t i n g this instruction.
There was of course no possibility that the C r o w n w o u l d undertake not to
prosecute C o n r o y in respect of matters w h i c h had n o t yet come to its notice.
17.7 The L o r d Advocate, L o r d Rodger, gave a commission to E d w a r d B o w e n
Q C , a former Advocate Depute, and also at one time a Sheriff, as an ad hoc
Advocate Depute for the sitting of 20 J u l y 1992. The papers were passed to h i m
about a w e e k before the sitting was due to start, and he was made aware of the
possibility that a plea of g u i l t y m i g h t be f o r t h c o m i n g . On considering the papers
he t o o k the v i e w that the evidence against C o n r o y amounted to "a pretty
o v e r w h e l m i n g case". W h e n he had n o t heard by Friday, 17 July that a plea of g u i l t y
was f o r t h c o m i n g , he spoke by telephone w i t h Iain McSporran, w h o confirmed
that negotiations were proceeding w i t h D a v i d B l a i r - W i l s o n , but that there
appeared to be a p r o b l e m about Conroy's representation in court.
17.8 Robert Henderson QC was originally instructed as Conroy's counsel and
appeared for h i m at the hearing of the bail appeal. D a v i d B l a i r - W i l s o n , however,
decided to instruct another counsel for the t r i a l . He instructed Peter Vandore QC
d u r i n g the w e e k before the t r i a l , b u t C o n r o y preferred that a different counsel
should be instructed and accordingly the instructions were passed to John
Simpson, Advocate. John Simpson was n o t in fact handed the papers prepared
by D a v i d Blair-Wilson u n t i l Saturday, 18 July, and accordingly was not in a
position to give advice to C o n r o y u n t i l a consultation was held in Saughton Prison
on Sunday, 19 July. The papers included papers prepared by C r o w n Office w h i c h
had formed part of the precognition reported to C r o w n Office. John Simpson
t o l d us that it was the best prepared set of C r o w n Office papers w h i c h he had
ever seen. He t o l d us also that his preliminary v i e w was that Conroy's position
was absolutely hopeless and that he should be advised to plead g u i l t y . At the
consultation, w h i c h was attended by D a v i d B l a i r - W i l s o n , there was discussion
about the possibility of a plea of g u i l t y to the charges in the indictment if the
C r o w n was prepared n o t to proceed w i t h the other outstanding charges. John
Simpson t o l d us that he thought that that was unusual because there had n o t been
a further indictment, b u t he appears not to have been made aware of the fact that
the outstanding charges had been included in an earlier petition in respect of w h i c h
bail had been granted, and that because C o n r o y was in custody f o l l o w i n g the
second petition, the charges in that petition had to be brought to trial sooner than
the charges in the first petition. Compliance w i t h the statutory time limits made
it impossible to deal w i t h all the charges in one indictment.
17.9 A c t i n g on instructions given to h i m by C o n r o y at that consultation, John
Simpson spoke to E d w a r d B o w e n before the trial was due to start on M o n d a y ,
20 July. He offered a plea of g u i l t y to the charges in the indictment, except for
charge 5, w h i c h libelled an attempted fraud, the sum in question being £95,000.
He also attempted to secure an agreement that the C r o w n w o u l d n o t proceed
further on the outstanding charges. E d w a r d B o w e n , like John Simpson, had little

98

THE LORD ADVOCATE'S INQUIRY

information about these outstanding charges beyond the fact that there were
charges outstanding, and accordingly he d i d not feel able to b i n d the C r o w n n o t
to proceed further. He d i d , however, indicate that he was prepared to accept the
plea w h i c h had been offered and that it was unlikely that the C r o w n w o u l d proceed
further in respect of the outstanding charges. This position was acceptable to
C o n r o y and his representatives.
17.10 W h e n the plea of g u i l t y had been agreed the diet was called before Sheriff
John H o r s b u r g h Q C , sitting as a temporary Judge of the H i g h C o u r t . T h e plea
was f o r m a l l y tendered and accepted. The Advocate Depute m o v e d for sentence,
and John Simpson addressed the Judge in m i t i g a t i o n . The main thrust of the plea
was that C o n r o y was a y o u n g man w h o had allegedly been made use of by a bank
manager, and otherwise could not have succeeded in his fraudulent activities. John
Simpson t o l d us: " I p u t i n a n extremely good plea i n m i t i g a t i o n . " N o t w i t h s t a n d i n g
this plea, the Judge sentenced C o n r o y to six years' imprisonment for the crimes
of dishonesty and one month's consecutive imprisonment for the contravention
of the Bail A c t . In due course the question of the outstanding charges was taken
u p b y Iain McSporran w i t h C r o w n Office. After i t had been confirmed w i t h
E d w a r d B o w e n on w h a t basis he had accepted the pleas of g u i l t y , C r o w n Counsel
on 31 A u g u s t 1992 instructed that there should be no further proceedings in respect
of the charges.
17.11 E d w a r d B o w e n , Douglas B r o w n and Iain McSporran all regarded the
overall disposal of the case against C o n r o y to be w h o l l y satisfactory f r o m the
C r o w n ' s p o i n t o f v i e w . For w h a t their opinions are w o r t h , Souter and B r o w n
had no criticism to make of the w a y in w h i c h the case had been disposed of, and
B r o w n indeed expressed satisfaction w i t h i t .
17.12
Later on 20 J u l y 1992 John Simpson w e n t to "Snatchers", a public house
in the H i g h Street in E d i n b u r g h . As we have already mentioned in paragraph 11.3
of this Report, D a v i d Johnston and Michael Glen were there. T h e y t o l d us that
John Simpson spoke to b o t h of t h e m . D a v i d Johnston reported to Tarn D a l y e l l
w h a t he thought John Simpson had said. Tarn Dalyell w r o t e in his letter dated
19 A u g u s t 1992 to the L o r d President:
"I hear that after the case, his [Conroy's] counsel, John Simpson, w h o is
a serious lawyer, w i t h a l o t of experience, albeit not a silk, said to a number
of people quite openly that the original charges, those due for October, had
been struck o u t altogether as part of the plea bargain, and that the case was
quite s i m p l y the strangest he had come across in his career. I gather that
John Simpson let it be k n o w n that he d i d n o t believe the proverbial 'singlew o r d ' i n the m i t i g a t i o n . "
17.13 We are convinced that D a v i d Johnston misheard w h a t John Simpson said.
John Simpson thinks, consistently w i t h the v i e w that he expressed to us and to
C o n r o y , that he must have used the w o r d "strongest" rather than "strangest".
We are not sure whether he said anything in the public house about the outstanding
charges, b u t if he d i d his remarks must have been based on his relative ignorance
of the procedure w h i c h had already taken place in relation to t h e m . John Simpson
t o l d us that he thought the passage in Tarn DalyelPs letter about his plea in
m i t i g a t i o n to be " v e r y unfair". He d i d not accept that he said anything of that
k i n d in the public house.
17.14 To return to the precognition w h i c h was undertaken by Iain McSporran,
we t h i n k we should mention an event w h i c h t o o k place in his office on 24 June
1992. On that date Souter and B r o w n attended together to be precognosced about
documents relative to the case w h i c h were in Iain McSporran's office. He t o l d
us that B r o w n was n o t v e r y interested in being precognosced. He said that he had
a v e r y v i v i d recollection that B r o w n continually interjected, speculating about the
so-called " l i s t " of gay lawyers or establishment people or persons h i g h up in the
legal system. A c c o r d i n g to M c S p o r r a n , B r o w n said at one stage: "The list Mr
M c S p o r r a n , v e r y interesting this list, y o u w o u l d be v e r y surprised about some
of the names", and then w e n t on to name t w o persons w h o m he said were named
in i t . One of these was the present L o r d Advocate. Iain McSporran said to us that
there is no possible doubt in his m i n d that B r o w n said that. A c c o r d i n g to h i m ,
he t o l d B r o w n that he was n o t interested in the contents of any list and that by

H M A V STEPHEN M A R K C O N R O Y

99

all means B r o w n could tell h i m about it after this investigation, b u t for the time
being he was s i m p l y dealing w i t h a fraud investigation. He t o l d us that Souter,
meanwhile, looked embarrassed and irritated and tried to get back to the matter
in hand. He d i d not, however, contradict w h a t B r o w n was saying. Iain McSporran
was under the impression that B r o w n was telling h i m that he had the " l i s t " , and
was taking pleasure in speaking as he d i d .
17.15 W h e n we interviewed Souter for the t h i r d t i m e , we pressed h i m again and
again about w h a t Iain McSporran had t o l d us, b u t he repeatedly stated that he could
not remember any such event. He was not prepared to say that Iain McSporran was
l y i n g to us, or to give us any explanation as to w h y he should be in a position
to give us such an account. W h e n we interviewed B r o w n , also for the t h i r d t i m e ,
and pressed h i m v e r y hard about Iain McSporran's account, he described Iain
McSporran as "an excellent Fiscal", and agreed that he was reliable, n o t given to
inventing things, and n o t someone w h o had a grudge against B r o w n . A l l he could
say about Iain McSporran's account was that he could not recall any talk about
the "list".
17.16 We believe Iain McSporran's account of w h a t B r o w n said to h i m about the
" l i s t " . B r o w n had read Souter's copy of Tucker's Statement and was accordingly
aware of the names in i t , w h i c h had "popped o u t " at h i m . We believe that he set
great store by i t . As we have already made clear in part 6 of this Report, A l a n
Rodger's name certainly does n o t appear in Tucker's Statement. It is incomprehensible, and deplorable, that a police officer should see fit to speak to a Procurator
Fiscal Depute in such terms about a matter w h i c h was of no relevance to the
case under discussion and w h i c h , above all, could o n l y have been intended to
undermine confidence in the senior L a w Officer.

100

THE LORD A D V O C A T E ' S INQUIRY

18. C O N C L U S I O N S

18.1 We are satisfied that we have seen all relevant papers and have interviewed
all relevant witnesses. On the basis of this evidence we feel entitled to reach the
f o l l o w i n g conclusions.
18.2 No prominent member of the Scottish legal establishment, apart f r o m
L o r d D e r v a i r d , is or has at any material time been compromised by reason of
homosexuality or homosexual behaviour.
18.3 P r o m p t action was taken w h e n L o r d Dervaird was found to be c o m p r o mised, and he resigned. If any other person in a similar position were found to
be so compromised, n o t h i n g w o u l d be done to protect h i m f r o m the consequences.
18.4 C o l i n Tucker's so-called "list" is a Statement w h i c h we have in our possession and w h i c h does not name or otherwise identify any prominent member of
the Scottish legal establishment, apart f r o m L o r d D e r v a i r d , as a person w h o has
allegedly engaged in homosexual behaviour.
18.5 No other allegation of homosexual behaviour by a serving Judge w h i c h
has come to our notice is true.
18.6 Sheriff Douglas A l l a n , f o r m e r l y Regional Procurator Fiscal at E d i n b u r g h ,
is n o t and never has been compromised by reason of homosexual behaviour.
Allegations against h i m by Stephen C o n r o y were untrue and have been expressly
w i t h d r a w n . N o c o m p r o m i s i n g photograph o f h i m has ever existed. A l l other
allegations against h i m are derived f r o m Stephen Conroy's untrue allegations and
are equally untrue.
18.7 No person engaged at any p o i n t in the investigation and prosecution of the
case against C o l i n Tucker was i m p r o p e r l y motivated. He was acquitted by verdict
o f the j u r y .
18.8 No person engaged at any p o i n t in the investigation and prosecution of the
case against G o r d o n M a y and C o l i n Tucker was i m p r o p e r l y motivated. The
Advocate Depute w i t h d r e w the charges d u r i n g the course of the trial because of
the quality of the evidence.
18.9 Robert Henderson QC had a copy of C o l i n Tucker's Statement w h i c h he
handed to a police officer w i t h o u t C o l i n Tucker's authority. He has never been
in possession of other evidence w h i c h w o u l d be capable of c o m p r o m i s i n g any
prominent member of the Scottish legal establishment by reason of homosexuality
or homosexual behaviour.
18.10
Robert Henderson's business transactions were subjected to a t h o r o u g h
investigation by the C r o w n w i t h a v i e w to possible prosecution. The investigation
was additional to and far more extensive than the police investigation. The decision
n o t to prosecute h i m was taken at the highest level on evidential grounds and was
n o t i m p r o p e r l y motivated. Robert Henderson in no w a y influenced the decision.
18.11
No person engaged at any p o i n t in the investigation and prosecution of
the case against N e i l Duncan and others was i m p r o p e r l y motivated. The decision
to accept pleas and w i t h d r a w charges was taken by the Advocate Depute in the
exercise of his o w n unfettered discretion. The alleged motive for his decision has
no evidential basis.
18.12 There is no l i n k between any of the above events apart f r o m the coincidental involvement of legal representatives, none of w h o m was in a position to
use, and none of w h o m d i d use, improper means to influence their outcome.
18.13
There is accordingly no evidence:
(a) that there has been a conspiracy to pervert the course of justice in Scotland;
(b) that the course of justice has been perverted in any of the above cases;
or

CONCLUSIONS

101

(c) that the alleged motive for such a conspiracy has ever existed.
18. 14 The o n l y matter on w h i c h our remit requires us to make a recommendation
is whether any part of this Report should remain confidential. We alone have
decided on the terms of this Report. We can see no reason w h y any part of it should
remain confidential.

R E P O R T E D BY:
W. A. N I M M O S M I T H QC
J. D. F R I E L
E d i n b u r g h , 15 December 1992

Sign up to vote on this title
UsefulNot useful