Monday, 7 January 2008

OK then, since you asked...

I was surprised that so many of you were asking about the legal position with dodgy donations, the Electoral Commission and PPERA. I wonder what you lot did at law school!

I would credit a legal genius of my ken with the groundwork here, but he's a secret legal genius and only appears when we shine the shark symbol onto the clouds...
There was speculation in the papers at the weekend that the Electoral Commission will say that because they have let others off they will let Wendy off as well - a kind of buy one whitewash, get another one free policy.

There's a problem with this, and it comes from the duty of the constabulary to act as constables.
Section 17 of the Police (Scotland) Act 1967 -

it shall be the duty of the constables of a police force
(b) where an offence has been committed (whether within or outwith the police area for which the police force is maintained) to take all such lawful measures, and make such reports to the appropriate prosecutor, as may be necessary for the purpose of bringing the offender with all due speed to justice;
That's a clear duty and burden upon Scottish police officers to investigate crimes and bring the criminals to justice. Since the actors in this Labour farce have admitted their criminality, a beginning has been made.

There is no scope for the Electoral Commission to get in the way of police officers doing their jobs, either. The individual constables can be directed by their chief constable who can in turn be directed by the appropriate prosecutor or by the Sheriff Principal:

(3) In directing the constables of a police force in the performance of their functions the appropriate chief constable shall comply with all lawful instructions (whether general or special) which he may receive—
(b) from the sheriff principal having jurisdiction in the place:
Provided that in relation to the investigation of offences the chief constable shall comply with such lawful instructions as he may receive from the appropriate prosecutor.
In this subsection sheriff principal does not include a sheriff.
No Electoral Commission mentioned. I understand and fully support the position taken by the Chief Constables of Strathclyde and Lothian & Borders not to begin an investigation until the Electoral Commission has finished theirs - no point in them falling over each other - but there is nothing which would allow the Electoral Commission to tell police officers what to do nor, indeed, allow the constables to fail to investigate the crime and bring the offenders speedily to justice.

The previous performance of the Electoral Commission has no relevance here, nor would it be reflected in the decision of the Procurator Fiscal about whether or not to prosecute. In fact, there was a case a while back where it was shown that the practices of the Procurator Fiscal cannot be held to be held to be a predictive measure of what should be expected of the Fiscal's future decisions.

If my memory serves me right (and if the secret legal genius has not yet lost his memory), then those of you who take some interest in the game we know as fitba may recall a case where a celebrated bewhiskered QC defended a gentleman who had been known to pull on the colours of the QC's favourite soccer team and also the white of the nation to the south with the three one-eyed leopards on its shirt.

This fine, respected and upstanding king of the karaoke member of the legal profession sought a bit of leverage for his case and attempted to ascertain the extent to which the Procurator Fiscal had, in the past, sought a prosecution against a footballer for conduct on the field of play.

Alas and alack for the good Queen's Counsel, his rapier was blunted on the unforgiving wall of the Procurator Fiscal's right to decide which cases she or he brought to court without those decisions being used against him or her at a later date.

In other words, he got telt 'no'.
Of course, we may both be massively wrong, but that wouldn't be like either of us.

So there ye have it - if there's been a crime the constabulary have a duty to investigate, the Electoral Commission cannot require them not to, and the fact that the Electoral Commission were spineless in past cases in England will not be a defence to the charge in a court in Scotland.
Now here's your homework - if the Electoral Commission found evidence that a crime had been committed (something like someone saying "there's been a breach of the law) and did not report it to the police or tried to deter the police from investigating a crime which had been committed, would the Electoral Commission be guilty of a crime?

Answers should be written on the back of a fifty-guinea note and sent to me at the usual address.


Malcolm Harvey said...

So, just to be clear, your saying she's in a wee bit of bother then?

Calum Cashley said...

Well, you could put it that way, but I wouldn't like to speculate ...