The scene is a bright April afternoon on Leith sands, 1705, just two years before the Union of the Crowns. The lifeless bodies of three young English sailors swing heavily from a gallows. Their deaths are

being loudly cheered by a rowdy Edinburgh mob.

Another case of early-eighteenth-century Scots justice well carried out? Not in the opinion, handed down through the subsequent centuries, of some English historians. They believe the trial and executions of Thomas Green, the 21-year-old captain of the English trading vessel the Worcester, plus his mate and his gunner, for the pirating of a Scottish ship off the coast of Malabar, in the West Indies, were

a gross miscarriage of justice. Such

is the tenacity of their belief that it

has influenced public opinion to the present day.

Many people, Scots included, believe the three Englishmen were innocent victims of a dodgy ''showcase'' trial conducted in an Admiralty Court in Edinburgh and their executions were aimed solely at placating a Scottish electorate which was already baying for English blood.

But tonight that received opinion will be controversially turned on its head by the renowned Scots Sheriff, J Irvine Smith. In his Marlow lecture, to be delivered to the Institution of Engineers and Shipbuilders in Glasgow, the colourful lawyer will explain why he passionately believes that criticism of the Scottish trial by English historians is inaccurate and unjust - and that Green's conviction was fair.

''This trial has one of the worst reputations in Scottish legal history, thanks mainly to English historians' resentment at what they consider to be a grossly unfair trial, carried out maliciously and incompetently by the Scots,'' he says firmly from his home on the Isle of Bute.

''But I believe that, contrary to popular opinion, the trial was properly conducted. I do not accept the conviction of Captain Green was a miscarriage of justice. English historians got the wrong end of the stick and have been determined for centuries not to let it go.''

What makes the Worcester affair so explosive is that the pirated ship, the Speedy Return, was the last ship owned and sailed by the Darien company. As such it was pivotal

significance in the ill-fated Darien scheme, which had been devised in the late seventeenth century by William Paterson (recently played by the actor Bill Paterson in BBC2's Darien: Disaster In Paradise) to

help Scotland found a new colony, New Caledonia, in what is now known as the Panama Canal. Paterson had hoped to be the first to open up trade between Scotland and

the two great oceans, the Atlantic and Pacific. If he'd succeeded, New Caledonia would have become a huge emporium and would have helped improve the lot of a sorely impoverished Scotland.

But England, under William III, was hostile to the Darien venture because it had the potential to interfere with colonial markets. So William III had refused to help Scotland, despite her greater experience

of colonising, and he ordered the English colonies of America and the Caribbean to give Paterson no help. Spain, too, was hostile.

The people of Scotland, who had thrown their patriotic fervour behind Paterson and had even contributed financially, viewed the scuttling of the Speedy Return as a deliberate attempt by England to scupper the scheme. England, on the other hand, felt that the accusations of piracy and murder were unfair.

The trial ignited such furious reaction that it threatened the putative Act of Union on both sides of the border. England was outraged a trial should have been raised, while the Scots believed that, unless Green was hanged, there would never be a Union. ''The Scots were convinced the pirating of the Worcester was just another example of England's indifference to Scottish interests,'' explains Irvine Smith. ''The mob were expressing the hostility towards England that had been building up for years.''

Irvine Smith - a highly charis-matic speaker, who sat on the bench in Glasgow from 1962 until 1998 and was a lecturer on the history of Scots law at Glasgow University from 1957 to 1983 - believes he is the only Scots lawyer to have read the Worcester trial notes. These are huge documents measuring 18in by 14in, and run to some 40 pages. When we meet, they are strewn over the desk in his cluttered study, and make for fascinating reading. He was drawn to the case because of his burning interest in classic miscarriages of justice - he controversially turned up new takes on the trials of Madeleine Smith and James VI and I's Gowrie Conspiracy.

The pages of the Worcester trial have been keeping him fascinated for weeks on end. They also prove to him beyond reasonable doubt that the conviction of Captain Green was not a miscarriage of justice. ''This was not a case of a false charge the judges knew to be false,'' he declares. ''It is not the case that the Scots con-

ducted a harsh and unscrupulous prosecution. It was investigated for four months by the Privy Council. If there had been no prosecution they would have been failing in their duty.

''When Green took the Worcester into Leith, where she was seized, certain comments made by his crew - though not by him - hinted that they had had dealings with a Scottish ship. This led the Scottish authorities to convene an Admiralty Court in Edinburgh to try Captain Green and 17 others for an act of piracy. In popular opinion, Green was responsible for the destruction of the last ship belonging to the Darien company.

''The outrage felt by the Scots

wasn't helped by the intervention of the English monarch, Queen Anne, who tried to stay the executions. She sent two affidavits from two men who said they'd been on the Speedy Return and she had not been pirated by Green but taken by the pirate Bowen, who released the crew. The men's names were Israel Phipany and Peter Freeland, but no such names were on the crew list of the Speedy Return. Thus they were not reliable.''

Rather more reliable is the testimony, newly uncovered by Irvine Smith, from the principal witness. Ferdinando, the Black African cook's mate of the Worcester, who testified: ''On the third day the said ship was boarded by those in the sloop [from the Worcester] who when they went aboard did take up those of the crew of the said ship from under the deck, killing them with hatchets and throwing them overboard. Captain Green, Captain Madder, and James Simpson [the gunner] were three of those who went aboard and killed the men.''

Of further interest is the fact the Scottish jury included only one shareholder of the Darien company. The rest were five local skippers, eight Edinburgh merchants, and two lairds. The trial was conducted by two high court judges. ''The jury was astute,'' says Irvine Smith. ''They even asked for specific direction. This was no squalid show trial. It was a carefully prepared, well-conducted trial with a verdict justified on the evidence.''

Even if it is some 300 years old, this tale still has the power to excite. Irvine Smith believes this is down to the romantic appeal of piracy on the high seas. With a conspirational smile, he says: ''Piracy, to a generation that does not know its reality, intrigues the mind and corrupts the imagination.''

He doesn't mind if there are hecklers at this evening's event. ''I'm used to being heckled,'' he smiles, his eyes twinkling. ''It's the price you have to pay for breaking new ground.''

J Irvine Smith's public lecture, the Trial of Captain Green, takes place tonight at the Clydeport Building, 16 Robertson Street, Glasgow, at 6pm with light refreshments from 5.45pm.

ON THE CASE: former sheriff James Irvine Smith sifts through the evidence of the famous trial of Captain Thomas Green

Picture: Chris James

SETTING THE SCENE: Bill Paterson stars as William Paterson in the story of Darien and the Panama Canal.