THE central figure in the affair was senior defence counsel Robert
Henderson QC. Mr William Nimmo Smith and Mr James Friel make damning
criticism of his professional conduct.
Mr Henderson features in one of the most bizarre episodes recounted in
the report: an allegation that he threatened Lord Rodger, the Lord
Advocate, at the New Club in Edinburgh.
Mr Nimmo Smith and Mr Friel interviewed a Sunday Times journalist, who
told them of a ''general theory'' that Mr Henderson had in some way
acquired compromising material relating to the Lord Advocate, and had
used it to protect himself from criminal investigation. It was alleged
that during a meeting at the New Club, a favoured haunt of Judges and
advocates, Mr Henderson had brandished a folder of compromising material
in the club foyer.
The report concludes, however: ''We have investigated the story and
have found it to be entirely untrue.''
Mr Nimmo Smith and Mr Friel say they would have let the matter rest at
that had it not been for an interview with Mr Henderson at which the
alleged New Club incident was discussed.
''He denied that any such incident had taken place. He then, however,
went on to say that Peter Watson of Levy and Macrae, solicitors,
Glasgow, told him that Scottish Television had damaging information
relating to Alan Rodger (Lord Rodger).
''Peter Watson advises them (Scottish Television) on the legal
implications of matters they have in mind to broadcast. When we spoke to
him he denied that he had said anything of the sort to Robert Henderson.
''Indeed, he has since confirmed to us on behalf of STV that the Lord
Advocate has never featured as part of any investigation by them which
is why he could not have said to Robert Henderson what Henderson alleged
he had said. We cannot trace the story beyond Robert Henderson.''
Mr Henderson also figures in the report in connection with an
investigation into his financial affairs which was triggered in December
1985 by a letter from the Law Society to the Lord Advocate of the day,
Lord Cameron.
The investigation was carried out by Detective Inspector William
Crookston in consultation with the Crown Office fraud unit. Mr Henderson
was interviewed at police headquarters in February 1987.
In July, 1990, Mr Norman McFadyen, senior fiscal in the fraud unit
sent the papers to Crown counsel with the recommendation that there
should be no proceedings against Mr Henderson.
Crown counsel was Mr George Penrose QC, also a qualified chartered
acountant, and now Lord Penrose, a Court of Session Judge. He agreed
with Mr McFadyen's view on the quality and sufficiency of the evidence,
stating: ''The most one can do is form the rather negative view that
that there is not enough evidence of such cogency and reliability as
would justify the very serious allegations that would be involved in the
case.''
Mr Nimmo Smith and Mr Friel reject any suggestion that this decision
was taken for any improper reasons, or that Mr Henderson was in any
position to influence the Crown.
''Not only was Robert Henderson not in a position effectively to
blackmail the Crown, he had no influence whatever on the investigation
into his business transactions.
''A thorough investigation was carried out by the Crown Office fraud
unit in accordance with the instructions of Crown counsel, well after
Robert Henderson was supposedly in possession of a 'list'.
''Any improperly motivated conspiracy not to prosecute Robert
Henderson would have had to extend at least to the Lord Advocate, the
Solicitor- General, the Home Advocate-Depute and Norman MacFadyen, and
probably also the Crown Agent and the Deputy Crown Agent.
''We have discovered no evidence whatever which would 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 thorough investigation and
after anxious consideration by all the most senior people in the
prosecution system of the evidence produced by that investigation.''
In a television interview yesterday evening, Mr Henderson chose to
concentrate on those aspects of the report which dealt with police
conduct as well as claiming it represented a satisfactory outcome.
He said: ''When things go against them most police officers are
perfectly phlegmatic about that. They leave the court and say, well,
we'll go on to the next case.
''But I think in these particular cases which were the subject of the
report, in all of which I appeared as counsel, this led to a suggestion
within certain sections of the police force that this couldn't all be
due just to me, that there must be something else, some ulterior factor
which contributed to these men being acquitted, and at the end of the
day they really put it down to me and said he must be one of this gay
Magic Circle and he must have a hold over the Judges and the prosecution
service. Now the report has shown that this is baseless nonsense.''
However, Mr Henderson went on: ''I am quite sure it could happen
again. Leaks from the police force are endemic. You only have to open
your paper every day to see that confidential and sensitive information
is given in the papers which could only have come from police officers.
''No, I am not satisfied with the matters at all. If you did this kind
of thing in business you would be kicked out on your backside. What has
happened to these police officers? They've all been demoted or put
sideways but they all still have their jobs, their salaries and their
pensions.''
Professor Robert Black of the chair of Scots Law at Edinburgh
University said last night: ''I think that the specific rumours have
been shown to be false. They have been investigated and it has been
shown there is no evidence to support them, so if people are interested
in evidence, if people are interested in facts, then they have got them.
If they are interested in innuendo and speculation, then that may very
well continue.''
He said of relations between the police and the Crown Office: ''They
can only improve, and the chief constable has done a great deal to
ensure that that improvement takes place.
''The chief constable has recognised the constitutional position of
the police, their job to investigate; the prosecutor's job is to decide
whether there is sufficient evidence to go ahead. That division of
responsibilities, which is fundamental, has been clearly recognised.''
The same point was made by the Scottish Council for Civil Liberties,
who pointed out that the need for better communication between the
police and independent prosecutors was highlighted four years ago by the
National Audit Office. The SCCL called for better training and briefings
for the police, as a matter of urgency.
It also said it was a matter of regret that the Lord Advocate's review
of prosecution policy regarding gay sex between consenting males aged
16-20 had not led to a published conclusion.
Of the Magic Circle saga, the SCCL said: ''We firmly believe that such
accusations would never have arisen had society a clear legal and
principled commitment to treat everyone equally regardless of sexual
orientation.''
Continued on page 12
Continued from page 11
Defence counsel at
the eye of storm
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article