Hirst Vs Crown/Police UPDATE

First published: Wings Over Scotland

The prolific American sci-fi writer L. E. Modesitt once said, “Never mistake law for justice. Justice is an ideal, and law is a tool.”

And the powers of tools lie in the hands of those who wield them.

This is a long overdue update on my ongoing court action against Police Scotland and the Crown Office and Procurator Fiscal Office (COPFS) both of whom I am suing for malicious prosecution.

In 2020 Scottish prosecuting authorities had decided to prosecute a case against me following comments I made in a short, online video in the wake of the Alex Salmond trial.

On 7th January 2021 Jedburgh Sheriff Court upheld a “no case to answer” submission made by my then defence team and I was fully acquitted. The Court ruled that “no reasonable person could have been offended,” by what I said. The Sheriff added that the views I expressed were my “own personal views and nothing more.”

I was supported throughout my defence by a range of high profile legal figures including the former Cabinet Secretary for Justice in Scotland, Kenny MacAskill and Professor Robert Black KC, Professor Emeritus in Scots Law, as well as Professor Tim Crook, President of the Chartered Institute of Journalists. A host of well-kent faces from the political, legal, media and activist community across Scotland and internationally also expressed concern over my prosecution and the apparent abuse of power being directed towards me.

As my case is still ongoing I remain restricted in what information and detail I can relay to those who very kindly donated to my Crowdfunder over the past three years.

Although I knew at the start of this process it was not going to be quick, it has taken much longer than even I initially envisaged. The reasons for this are multi-layered but in essence we had a significant delay waiting on the outcome of an unrelated, but potentially still relevant case that was under consideration by the Court of Session, again related to malicious prosecution by COPFS.

The outcome of that case, regardless of the decision, would dictate the strategic approach of my legal team as they took my case forward. So with agreement my case was “sisted”, temporarily suspended, awaiting the outcome of this.

Following the decision in this other case my case was once again able to proceed.

At the start of this process we, myself and my legal team, led by the tenacious and determined Solicitor Advocate Gordon Dangerfield, were very confident that my case had a very high degree of success as it worked its way through the Courts.

It was our intention to bring the case back to Jedburgh Sheriff Court where my criminal trial was held and where we were optimistic we would secure a favourable outcome. We anticipated that Police Scotland and COPFS would appeal if they lost at this stage although we remained confident we would still have a positive outcome at the Sheriff Appeal Court. Only at that point did we consider that Crown Office and Police Scotland would try and overturn those rulings by remitting the case to the Court of Session.

At that point the financial costs rise considerably and so too the potential financial exposure on me if I were to ultimately have my case rejected by Court of Session judges.

However, shortly after the sisting of my case was recalled, Gordon was informed by solicitors acting for the Scottish Government that the Lord Advocate had signed a certificate under the Crown Proceedings Act remitting the case directly to the Court of Session, by-passing the lower courts. There is no legal method for opposing and preventing such a move by the Lord Advocate to enable the case to be heard through the lower courts first because it has always been assumed that the Lord Advocate would only take such a step for good reasons of public policy, but the aim in my case was clear.

The strategy of the Crown Office appears two-fold; firstly, to avoid our side securing favourable outcomes at an early stage through the lower courts and secondly to make us, me specifically, think twice about continuing given the very significant costs that I may be liable for if I am ultimately unsuccessful. In short, it is a further effort to intimidate and close me down.

What is perhaps even more remarkable is that the Lord Advocate herself has authorised this decision to remit directly to the Court of Session, a bold move given the widespread concerns already expressed about the separation of powers between Scottish Government and Scotland’s prosecuting authority.

Without going into the specific details, all that will be conducted in the court, but at its heart this case is one of a politically inspired effort to close down critical voices, in this case me, by individuals at the very heart of Government. In doing so prosecuting authorities, Police Scotland and the Crown Office, have acted as agents of that politically driven effort by certain individuals.

Notwithstanding the ongoing efforts to intimidate me and cover up the extent of political interference and malice that we intend to prove in court, I am determined to fight on despite the very high personal financial cost this may have for myself despite the generous donations given to date.

As things proceed we hope to reveal in court a lot more detail that is not only relevant in my own case but also the wider public interest. In doing so we hope to shine a powerful light on some of the practices and decision making taking place amongst those charged with prosecuting cases, supposedly without fear or favour.

Questions naturally arise about the allocation of resources against me by Police Scotland at a time when we are being constantly told budgets are overstretched. Why were as many as a dozen specialist detectives and officers working my case when they are normally assigned to serious crime investigations including rape and murder?

Why were multiple Procurator Fiscal Deputes and other Crown Office staff, up to and including very senior Crown Counsel, scrutinising my case in such detail? Initially I was charged with a Communications offence, later amended to a straightforward statutory breach of the peace. How many other statutory breach of the peace suspects have had that level of resources and scrutiny at the very highest level directed towards them?

How much does it all cost? Hundreds of thousands of pounds spent - public resources - but the high ranking officials directing that spending will not risk a penny of their own. Instead it is the victim of such malice and abuse of power who is faced with risking everything. What kind of justice system is that?

As a prominent legal figure told me in the wake of my acquittal a guilty verdict would have been a bonus for the Crown Office and Police. The process I have been put through and continue to endure, is the real punishment.

We will fight on for justice but we are not blind to the tools of law being deployed to prevent us reaching that objective.