23 August 2013

The Missing Crown Affair

In the newspapers this morning, there is much understandable outrage and calumny that, even if sentenced to the maximum term for his crimes, Bill Walker cannot be deprived of his seat in Holyrood, despite the MSP's comprehensive condemnation in Edinburgh Sheriff Court yesterday.

The Scotsman calls for his resignation. The Herald argue that "that this convicted violent offender has not resigned his seat and cannot be forced to do so under existing parliamentary rules is an affront to women and a disgrace to Holyrood".

That Walker cannot be forced from office unless sentenced to more than a year in prison has been treated primarily as an unhappy quirk of electoral law by the press. Today, the Herald floats the (to my mind, legally implausible) idea that Holyrood may have the power to introduce its own recall law. I doubt it can. In the alternative, they suggest that Westminster should be encouraged to enact reforms, including perhaps the abortive, long-delayed proposals to introduce a right to recall parliamentarians. 

Largely escaping scrutiny on today's front pages and leaders dealing with this story are the Crown Office and Procurator Fiscal Service's decisions in this case.  That Walker won't be disqualified from office, and will effectively decide for himself whether he stays on, isn't just down to how the Representation of the People Act 1981 is drafted.

It is also down to a decision, taken by Scottish prosecutors, to try Walker in a summary court, with maximum sentencing powers of twelve months.  As I argued yesterday, for an organisation which makes much of its commitment to dealing robustly with domestic violence, to treat a man in this fashion who has committed over twenty assaults, against four people, across decades, seems bewildering. Few folk I mentioned this to yesterday could credit it.

Curious to know more, I send the Crown Office a wee inquiry this morning.  Why and how was the decision made to prosecute Walker before Sheriff Mackie alone, given the scope of his offending and the Crown Office's repeated public commitments to take domestic violence seriously? Here was what a spokesman had to say:

To unpack that a bit, the statement confirms that the local Procurator Fiscal initially intended to see Walker tried by a jury, on indictment. I'm told that the charges numbered around thirty at this stage rather than the twenty-four which proceeded before the sheriff in Edinburgh. If the Procurator Fiscal had proceeded with this plan, today, Walker might well have been facing the serious possibility of being relieved of parliamentary office, and a sentence of anything up to five years in jail. So what happened, and why?

From the statement, consideration of Walker's case clearly climbed up the Crown's hierarchy, ending up on the desk of the prosecution service's senior figures, Crown Counsel, who usually spend their time prosecuting cases in the High Court, and generally concern themselves only with the most serious of criminal cases.  On one level, that the case was considered at this level in the organisation isn't surprising.  Walker is a public figure, a sitting MSP, and his prosecution was destined to be attended by controversy.

But why did Crown Counsel decide Walker's case was fit for summary decision, given the scope of the charged against him? The statement offers only the usual boilerplate. Further questions might be asked. Was sufficient weight given to the public interest in the effective prosecution of domestic abuse? For example, the Crown now, as a matter of policy, follows a presumption that knife-carriers who are caught a second time, carrying an illegal weapon, will be prosecuted on indictment in the sheriff court.

Why was the Walker case regard as any less of a priority? The historical nature of "facts and circumstances of" the offences? Surely not. So why? Did the Crown perhaps miscalculate, assuming that Walker would make a guilty plea, but finding him stubborn, and consequently itself stuck in a procedure which on some views, was inadequate to the gravity of his offending? Did the Lord Advocate Frank Mullholland sign-off on, or was he consulted in the decision-making process to demote this prosecution to summary level?

More answers, if and when I receive any.


Late yesterday afternoon, while I was out carousing, I received this supplementary statement from the Crown Office. Asked about what role, if any, Law officers played in the Walker decision, the spokesman responded:

"I can confirm for your background that the protocol with cases involving members of Parliament is that the Law Officers have no role in the decision-making process, which is dealt with by Crown Counsel."


  1. I don't want Bill Walker anywhere near Parliament. I back recall legislation. But two things always come into my mind in cases like this.

    1. The principle of justice is supposed to be that if one commits a crime and is punished, the punishment wipes the slate. When you come out, you've paid your debt to society and you're - in theory - as good as anyone else again. If we deny that, might we not as well go back to hanging people for stealing bread, if their souls are to be forever forfeit anyway?

    2. On the other hand, in the intervening period, how can an MP/MSP possibly serve their constituents from inside a prison cell? Surely being unable to do the job ought to be some sort of grounds for dismissal on a purely pragmatic level, let alone the morality? How on Earth have we managed to not contrive a mechanism for this before now?

    1. RevStu,

      A few, random, interesting facts. Firstly, Holyrood didn't feature at all in the UK Government's draft recall legislation, only Westminster. Scotland, Norn Iron and Wales as an afterthought. Again. On your first point, that's certainly one articulation of the idea of punishment. I'm not suggesting folk should be banned from standing for office. In the public debate on Walker's conviction, some folk have suggested that everybody convicted of any offence should lose their seats. That is far too far for me, not least that I don't want to see by-elections for fly-tipping, or alternatively, for leftie parliamentarians being nicked at protests.

      On your second point, a legislator inevitably seems ill-fitted to serve his constituents from behind bars. Not least that the only way to buy stamps is, one imagines, by exchanging them from fags smuggled in by your wife...

      As to contriving a mechanism - it is worth recalling that it wasn't until 1981 that Westminster dreamed up a way of booting out those in jail. Before that, there have been plenty of MPs in debtors' prison, and the like. Almost a noble tradition.

    2. Sorry not quite relevant but cant resist this - lifted from the wiki entry on Horatio Bottomley -

      ..."on the night when it was known that F.E. [Smith, Lord Birkenhead] was going to the Woolsack [i.e., becoming Lord Chancellor], he was accosted by Bottomley in the smoking-room of the House of Commons and congratulated upon the appointment. Bottomley added, 'Upon my soul, F.E., I shouldn't have been surprised to hear that you had been made Archbishop of Canterbury.' 'If I had,' replied the Lord Chancellor, 'I should have invited you to come to my installation.' 'That's damned nice of you,' said Bottomley. 'Not at all. I should have needed a crook.'
      Gilbert, Michael, "The Oxford Book of Legal Anecdotes", Oxford University Press, 1986, p 282.

  2. I have no time at all for Walker and IMO he should be forced to stand down. This is different to "fly-tipping" and the nature of an offense should have something to play in the final decisions. But ANY sentence which includes gaol time should be enough to disbar an MSP. This is not a Bobby Sands-type election situation where the voting was totally political, this is an incumbent MSP who has disgraced himself and his position.

    If he lacks the balls to do the honourable things in his time of disgrace, then that decision should be taken from him.


    1. "this is an incumbent MSP who has disgraced himself and his position"

      Disgraced himself? Sure. Disgraced the position? Hard to justify, since the last offence for which he was convicted predated his election by sixteen years. For all we know he's been a reformed character since 1995, and might have been a brilliant constituency MSP.

    2. This comment has been removed by the author.

    3. Rev Stu

      OK, fair comment. Regarding disgracing his position, it is his apparent insistence on remaining a sitting MSP that I find is a disgrace. Perhaps he will reconsider his position.


  3. LPW,

    My own experience of attempting to invoke our anti-sectarianism legislation has made me deeply suspicious of the competence of those in charge of the Crown Office. Odd decisions such as prosecuting Walker on summary complaint seem to be the norm, not the exception.

    1. Martin,

      Sorry to hear of your difficulties. As you know, COPFS is a complex, diffuse organisation, with folk taking decisions all over the place, at all different levels of seniority. It is tempting, but probably unfair and unrealistic, to think of it as a monolith, governed with an iron fist from the centre.

  4. I don't mind crooks or sadists, as long as they're known and recognised as such.

    Then it's up to the court of public opinion whether they're allowed to continue in any responsible role in society.

    The law states an individual on welfare can exist on circa £71.70p per week -perhaps Mr Walker could a) while he is a guest of the state commute all of his salary to a battered wives charity and b) on his release continue with his charitable contribution for a number of years less the £71.70 the law say's he needs to live on.

    I wonder if his public service ethos could reach the bedrock required for such integrity?