Monday, 2 March 2015

Willie McRae Part 20: Crown Office and FAI

Recently I have been involved in very preliminary discussions about how best to move forward with the demand for an FAI into Macrae’s death.  Some might be surprised, given my stated neutrality, that I would become involved.

Let me explain briefly.

I am still neutral.

But I can understand the frustration of those who have been trying for years to have the Crown Office hold a Fatal Accident Inquiry only to be rebuffed.  I only have to remember Police Scotland’s refusal to answer Delamore’s three simple questions through a Freedom of Information request to feel frustration at the apparent senselessness of the decision. [Delamore’s questions:When were the photographs of Macrae’s car taken?; when was the car removed?; when was the post mortem carried out?]

Although neutral, I am in favour of more, much more, information being released and, if that is done through an FAI then fine.  Therefore, when invited to be part of a short conversation about how best to push for an FAI, I accepted.

For the avoidance of doubt, I must say that I wrote this post in early February, a few days before the conversation, and so the words here are mine alone and are not influenced by the other conversationalists.

In Part 19 I used the officially released documents to support, as best I could, the contention that Willie Macrae committed suicide.  I looked too at the very different way in which the Crown Office made their case.

Today I cast my eye over the Crown Office and their continuing refusal to hold a Fatal Accident Inquiry and the implications this has on supporters of an FAI.

The ‘Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976’ is the legislation which underpins the Scottish system of Fatal accident Inquiries and the relevant paragraph for Willie Macrae’s death is
1 (1) b
it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,

There is some specific language which describes the type of death which can be considered for an FAI,
sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,

There is lots of woolly language which gives the Lord Advocate plenty scope to do as he sees fit
it appears to the Lord Advocate to be expedient in the public interest
and a death which
or has occurred in circumstances such as to give rise to serious public concern

But wooliness apart, it is this paragraph [1. (1) b] that FAI campaigners must use to convince the Lord Advocate of the need to hold an FAI and there are two challenges to be met.  Firstly, their evidence must meet the threshold of either showing the death was sudden, suspicious or unexplained, or the circumstances of the death were such as to give rise to serious public concern and then, they must convince the Lord Advocate of that fact.  You might think that meeting the threshold and convincing are one and the same thing and many times you would be correct but the Lord Advocate, current and previous, and the Crown Office, in general, have shown themselves to be very defensive when their decisions are questioned.

In Part 19 I mentioned Lord Carmylie’s utter disdain and utter certainty when writing to Nicholas Fairbairn about Macrae’s death and the campaign for an FAI.  Moving back from that position may be too much for the current Lord Advocate unless the evidence is compelling and the publicity overwhelming.

The Lockerbie case and the innocence /guilt of Abdelbaset al-Megrahi shows the difficulties that Macrae campaigners will face.

There is an effective organisation, ‘Justice for Megrahi’, fighting as the name suggests to clear Megrahi.  To see their committee and signatories go here.

The case was laid before the Scottish Criminal Cases Review Commission, SCCRC, who concluded
27.216 …… the Commission has also considered whether …. the entirety of the evidence considered by it points irrefutably to the applicant’s guilt. The Commission’s conclusion is that it does not.

27.217 ….. the Commission believes not only that there may have been a miscarriage of justice in the applicant’s case, but also that it is in the interests of justice to refer the case to the High Court. The Commission accordingly does so.
[Note: the full 800 pages plus document can be viewed here]
Despite this the Lord Advocate, Frank Mulholland, continues to assert his utter certainty in the original conviction.  He called supporters of Megrahi’s innocence, ‘conspiracy theorists’ and just two months ago he claimed,
During the 26-year long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.
We remain committed to this investigation and our focus remains on the evidence, and not on speculation and supposition.[]

But Megrahi is not Macrae.

But there are lessons for Macrae campaigners.

The basis for an FAI must be well-researched, substantial and substantiated.  The Crown Office will not roll over and open an FAI even on evidence which is very solid and with apparent serious public concern.

As far as I am aware, other than the Willie Macrae Society in the early years after his death, there is no group which is working towards presenting a petition for a Fatal Accident Inquiry.  I have seen individuals but no coordinating group.  I do not know if there is any desire for individuals to come together but the benefits seem clear.

There are different theories about how Macrae died: at the hands of Special Branch, nuclear industry, drug barons, paedophile ring; by his own hand but with the involvement of Special Branch.  Beyond this are a multitude of questions and doubts about the official version.

But, rather than support the case that his death was ‘sudden, suspicious or unexplained’, I find it weakened by the sheer breadth of the possible theories and questions.

Ideally, campaigners would have a coherent narrative which covered the months before and years after Macrae’s death but there should be no onus to produce this.  That would be for the FAI to establish.

But they must either break the official suicide narrative or show evidence of a conspiracy or cover-up.  Nothing I have seen so far achieves this to the degree I believe is necessary. A newspaper report is not sufficient.  A witness statement being published online would not be sufficient.  But a witness statement and questioning properly and legally recorded would be a massive step forward.

Do the campaigners have it in them to work together?

Will their case ever stand up?

Can they and their case stand up to the apparent hostility of the Crown Office?

The answers?   Time will tell.

And much time will be needed if ever they are to achieve their aim.  I wish them well.

I have now reached the end of the first phase of my study: the official case.

If you have thoughts, or more, feel free to:
email me at calumsblogATgmailDOTcom or
tweet me at @calumcarr
© CalumCarr 2015
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  1. "Beyond this are a multitude of questions and doubts about the official version"

    At this stage in your exploration a brief list of the above would help sustain and focus interest. My interest is flagging.

  2. Not surprised! See my reply to your comment in Part 18. I would do differently if starting afresh.

    You have read about the case elsewhere. I'm sure you have some idea about the questionable areas.

    Part 21 will start to reveal.

    If your interest dies before that post is published then you'll miss it. That would be a pity having soldiered through these 20 posts.

  3. Secretary Depute of Justice for Megrahi here. Good luck with this guys, you're going to need it.

    The evidence demonstrating that Megrahi was factually innocent of the Lockerbie bombing is extraordinarily strong. Additional evidence has emerged since the publication of the SCCRC report Calum mentions above that conclusively proves this. The scene of the crime was not where the investigators believed it to be, in Malta, but in fact in London. This gives Megrahi an unbreakable alibi. Most of that is presented in this book.

    Frank Mulholland knows this. The book is part of the submission to the SCCRC that was made last year jointly by the families of some of the victims and Megrahi's own family. It's also being referred to by the police investigation initiated by Justice for Megrahi in 2012, by way of allegations of criminal misconduct against a number of people involved in the original investigation and the trial at Camp Zeist. I'll go further than that. The impression I have of that police inquiry is that they have conceded the point that the bomb was introduced at Heathrow. Their focus is to determine whether that was missed by pure incompetence, or whether deliberate misdirection was involved. You might possibly infer that I'm right from this newspaper report from last month.

    The police will be reporting to the Lord Advocate later this year. Pigeons, meet cat.

    Regardless of this evidence, which he must know about, Mulholland is fighting tooth and nail to shore up the conviction. He has repeatedly gone to the press and defamed us as conspiracy mongers making "knowingly false and defamatory statements", and has twice attempted to represent our allegations as having been disproved, although that is simply not the case. He is going to block a new appeal if he can possibly manage it, despite the strength of the evidence, and despite the repeated statements from both the Crown Office and the Scottish government that they would welcome the opportunity to demonstrate the strength of their case in court.

    Justice for Megrahi has some advantages though. It has a small and committed steering group which includes a number of lawyers (and a former policeman) who are extremely tactically savvy as regards playing Mulholland at his own game. It has a number of relatives of the victims on board, who are using their privileged position to apply for a new appeal. And it has absolutely rock solid take-it-to-the-bank evidence, if that evidence can only be got in front of a court.

    Any group trying to get an FAI into MacRae's death is going to have to demonstrate similar nous, persistence and tactical know-how if it is to have any hope of getting anywhere. A confused mass of contradictory theories, and a case based on a string of misunderstandings, is going to get precisely nowhere I suspect.

    1. Thanks, Rolfe, for the benefit of your experiences.

      I could not agree more.

      I think there needs to be a petition but the 'case' needs to be firmed up, the timing needs to be right, the media and legal advice needs to be in place and there needs to be substantial public backing. Even with this, my 'gut feeling' is that the Crown Office will refuse: that seems to be their default position.

      There is so much subjectivity built into the Lord Advocate's role in determining if a discretionary inquiry should go ahead that he could dismiss an incredibly strong case. A case which falls short of this, he could ridicule. Given his actions re Lockerbie, he might ridicule an 'open and shut' case.

      After 30 years, there is no rush and so I hope the next few months are used as preparation. I would hate to see the petition rushed out in the next month or so: it would be lost in the general election campaign.

      Once again, thanks for your advice.

  4. I'm not opposed to an FAI into MacRae's death. Sometimes public money has to be spent in an attempt to allay public concern, even if that concern may not be terribly well founded. I just feel that it's likely to get us precisely nowhere.

    In any incident of this nature, there are facts, and then there are non-facts. "Factoids", these have been dubbed by people investigating another case I'm familiar with. Statements that have attained almost mythic status, that everybody "knows" are part of the evidence, but which are actually not true. Usually they're the result of misreporting, misunderstanding or misremembering on somebody's part. They get into the narrative, and they're seized on as juicy plums, and whole chapters of speculation and allegation are built around them.

    In the Lockerbie case these factoids range from the erroneous belief that the plane was delayed in leaving Heathrow to a claim that the intact plane was seen crossing the A74 from west to east at a height of about 500 feet before it crashed. (That one seems to go with a claim that the plane hit a hill to the east of the town a glancing blow on the way down.) People have woven all sorts of complicated theories around things that just aren't true, and I find that when these theories are challenged they get extraordinarily angry.

    No matter that my work into the extant evidence has conclusively proved that the Lockerbie investigation was up a gum tree from about day 10, pursued a red herring down a blind alley, and eventually fitted up an innocent man. I'm disagreeing with someone's pet theory that the plane was shot down, or that there was a huge bomb in the cargo hold, or that the whole thing is an elaborate cover-up to avoid culpability for an air accident. Therefore I must be a government shill, MI5, CIA, you name it. And I fully expect this to go on even after Megrahi has been acquitted, with claims that even the acquittal is some sort of cover-up aimed at concealing the truth of their own pet theory.

    The MacRae case seems likely to go the same way. Factoids have entered the narrative. The gun was found 20 yards from the car. That seems now to have become 60 yards! There were two bullets in MacRae's brain. There was a pile of his papers some yards from the car which disappeared. The car was removed from the real scene of the crash and replaced and photographed somewhere different.

    If an FAI is convened and these factoids are shown to be untrue, in my experience this will merely enrage the conspiracy mongers. Nothing that was printed somewhere about the case can possibly have been untrue, or mistaken, and if an official inquiry says that it was, then it's all an establishment cover-up. That, I fear, will be the enduring legacy of any inquiry into this incident. Human nature doesn't like to abandon an attractive and intriguing narrative, and the mere presentation of facts isn't going to achieve it.

    I'm not opposed to an inquiry, I just don't expect it to satisfy anyone who is currently utterly convinced that MacRae was murdered.

    1. If a petition is raised I don't doubt that a driver for many will be a belief that Willie was murdered. I don't mind if the (emotional) energy has come from that source but that energy must be managed. Unmanaged emotional energy will cloud clear thinking and good judgment and those are required at this stage.

      I hope clear thinking and good judgment are present.

  5. I mean, when You have Alasdair Gray telling readers of the National that the gun was found 60 yards from MacRae's body, and Wings Over Scotland writing that he believes MacRae was certainly murdered by the British security services based on the evidence available, what hope does any merely evidence-based inquiry have of countering that?