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


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


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


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Defence counsel at

the eye of storm