This is a file posted in the wee small hours by Robbie the Pict.
3 December 1998. RtP honours his three remaining bail orders and 'actually' turns up for a 'notional' trial. He seeks the leave of the Court to show cause why he should be allowed to submit a further plea of competency. Sheriff Jimmy gets testy and claims that the accused has to show cause why his motion was not argued at the first calling. Robbie replies that the test of just cause is identified in HM Advocate v. Bell in 1892 where the Appeal Court ruled that it was sufficient to show that a 'gross injustice' could be prevented.
Jimmy did not verbally concede but asked what Robbie's point was, only to become visibly distressed when Robbie said "Well actually, I've got three, the first of which is that the Toll Order has not in fact been published". This news prompted Jimmy to return to the imperialist position. "I can't hear this until you demonstrate a good enough reason for not raising it earlier." Robbie then pointed out that the extract from the SI Register officially describing the Toll Order as 'unpublished' had only been released to him by the Fiscal three weeks ago.
OK, says Jimmy, what else? "The Assignation Statement is undated, unsigned, untrue and unpublished and was not available with the Toll Order as required by statute. The Scottish Office only admitted two weeks ago that the draft assignation statement was the only one in existence." What else? "The scheme required Special Parliamentary Procedure because there was no alternative route and this did not happen. I did in fact raise this at the first pleading diet on 1 March 1996 but neither Stella Anderson nor I was called into the dock after you delivered your decisions and reasons on George Anderson." This caused a little consternation since failure to call a case results in it falling at midnight on that day, a point raised by RtP in his appeal against conviction after wrongful arrests.
Jimmy decide this was all too much to deal with and abruptly announced that Robbie had failed to provide the Court with good enough reasons for tendering his pleas 'late' and he was accepting none of them! Another Bill of Suspension is being applied for. Is Jimmy stonewalling on behalf of his beloved establishment or simply in personal denial?
Meanwhile Dr Shona Bird was appearing on charges of obstruction and failing to obey police orders. Sickened by the cynical use of the police to enforce the tolls she decided to plea bargain in the face of an inevitable conviction. She was fined 50 by Sheriff Jimmy for exercising her civil right to ask to see the identity and authority of someone demanding money from her on the A87, interpreted by the Crown as 'obstruction'. The other charge was dropped. John McPhie took a similar pragmatic approach.
10 December 1998. At last, the proof hearing in the Court of Session on the writ of interdict applied for in March. The petition was against Miller Civil Engineering collecting tolls on the A87 on the basis that they were not in possession of properly assigned authority to perform that statutory function. Miller's argument boiled down to claim that if the Court did not hold that the infamous Crown Production 16, the recycled memo from the Development Agreement, was in fact written consent from the Secretary of State it should rule that written consent was 'implied'. Proof of this was that the Secretary of State had not objected to the arrangement in place.
Advocate Michael Upton, for the good guys, basically pointed out that 'implied' and 'written' are on opposite sides of the line of accomplished facts. Allowing this practice any level of credence would be setting a precedent whereby statutory functions could be passed down a line of pals by a sequence of unrecorded phone calls.
Lord Eassie was polite and attentive, civil treatment in a civil court as opposed to Dingwall, his toughest question being "Where does it say in the Act that the Secretary of State's consent must be in writing?" Mr Upton replied that the Act did not contemplate any form of transfer of rights except by way of 'Assignation', a proper form of statutory writing, etymologically rooted on the word 'sign' and any desperate substitute was unlawful.
The last plea from Miller was that, should the Court not 'be with them' on their implied consent idea, would it please not grant interdict 'in perpetuity' but suspend the interdict to give the Secretary of State time to draft out a letter of consent. This brought an interesting smile to the face of the Pict whom we suspect knows something.
17 December 1998. Hugh MacIntyre gets his day in the Appeal Court after waiting nearly two years! It was a bit of a mystery as to why Hugh was granted leave to appeal since his point was the same as that of Irene McGugan and Alasdair MacLean who had claimed that the Toll Order did not specify exactly who was obliged to pay the toll. Sheriff Fraser had agreed with Irene that 'the law must say what it means and mean what it says' and it just said the 'vehicle' had to pay.
However the Crown appealed the good sheriff's good sense and in a remarkable 10 days time Lord Rodger, remember that name, ruled that the Sheriff was wrong. He personally created a piece of legal Elastoplast to cover up for the inadequacy of the toll order and ruled that 'vehicle' actually meant 'driver of the vehicle'. This has amusing extensions when you consider exhaust emissions and tax exemption for those over 25 years old but it is really an absurd piece of imperialist arrogance. The criminal standard of proof, 'beyond reasonable doubt', had clearly not been met.
Advocate Maggie Scott was engaged to defend Hugh's interests but when she saw the point
of appeal she could not proceed because of the McGugan ruling. However, the SKAT team doesn't know the proper rules. After a visit from the
intrepid Pict Maggie was persuaded to shift the goalposts and ask for a 'continuation'
to enable her to demonstrate to the Court that the Toll Order had not in fact been
published, a solid defence in law.
Lord Rodger, who had been the Lord Advocate for the first 5 weeks of the Toll Period and who as Crown Prosecutor should have checked if the order had been published, was apparently a might nervous about this fact coming to light. He immediately dismissed Hugh's appeal, denying any continuation. Lord Hoffman eat your heart out, here is conflict of interest done properly!
Not content with a display of bias, His Lordship then launched into dubious inequity. He declared that due to pressure of outstanding appeals from persons in custody the appeal by our own Andrew McMorrine, due to be heard the following day, was 'continued to a date to be determined' on the Court's motion and it was recommended that Andrew be given Legal Aid! RtP, being already in Edinburgh, attended the Appeal Court the following morning out of curiosity only to find that the Court was deserted but for one appeal. We think the matters before Lord Eassie may have played a part in the corporate decision making.
21 January 1999. Press conference in Inverness's Maple Court, newly adopted by SKAT as a campaign base in the Schneck. We announced that Charles Kennedy is very happy to forward a complaint to the Parliamentary Ombudsman regarding the conduct of Scottish Office and Crown Office staff colluding with Skye Bridge Company to stitch protesters up with bogus documents.
We also drew attention to the fact that Lord Justice General, Lord Rodger, has failed to declare an interest during three Skye Bridge appeals. He was Lord Advocate for the first 5 weeks of the toll period during which time almost 200 people were cautioned and/or charged. He then sat as the Big Wig in the High Court of Appeal refusing appeals by James McQueen and Hugh MacIntyre from the first night's protest, and upholding the Crown's appeal against the eminently fair and sensible ruling of Our Beloved Local Sheriff Jimmy in the Irene McGugan/Alasdair MacLean case. That's a damn site closer than Lord Hoffman's wife got in the Pinochet case. Surely we cannot accept an official sleaze factor worse than that in England!
Any nervousness on the part of Lord Rodger would, of course, be understandable since all three challenges were to the inadequacy of the paperwork required to prove a toll regime properly existed. The Scottish Office responded on behalf of Lord Roger that he would never hear an appeal arising from a prosecution commenced while he was Lord Advocate. They seemed blissfully unaware that this had already happened. We are asked to believe that Lord Rodger had absolutely no knowledge of the 200 complaints which had piled up at the other end of the Crown Office and he had ascended as unblemished as the Archangel Gabriel to higher realms. This means that all the culpability for wrongful prosecutions of innocent tax-payers must lie with his successors, Lord Mackay of Drumadoon and New Labour's appointment Lord Hardie.
22 January 1999. Rikki Peri's trial for obstruction and refusing to obey an order from BankAmerica's enforcement goons. Not wishing to waste any more time or money on the inevitable stitch-up Rikki went for the plea bargain. Probably because he wanted to say something in mitigation about thinking he had the civil right to ask potentially bogus workmen on the A87 to demonstrate their authority Sheriff Jimmy took the hump and upped his fine to £100.
That afternoon RtP visited the Fiscal to lodge two formal complaints about the true nature of CP 16 and the lack of a proper Assignation Statement in favour of Skye Bridge Ltd. Following RtP's appeal to the Regional PF Mr Hingston is now expected to hear any new evidence not previously before the Court. DH explained that the reason he thought RtP's allegation regarding the true source of CP 16 was wrong, was that he had taken the precaution of securing a 'certified true and complete' copy of the Development Agreement (CP 2) and the 5 pages that formed CP 16 were not present in that volume. He produced the DA from his safe and placed it on his desk. RtP asked him how many pages he had in his version. He replied that he had 80 pages.
RtP then produced an original version from the Scottish Office, complete with colour-printed endboards and a binder in SO livery and pointed out that the PF, and of course Sheriff Jimmy, had been short-changed by 15 pages. The first 80 pages are only the bipartite 'bible of terms' between the SO and Skye Bridge Tolls Ltd. The remaining 15 pages constitute the actual Development Agreement itself, whereby all the parties, the bankers, the engineers, the guarantors, the developers and the Secretary of State sign up for the whole caboodle. The lawyer who drafted the Development Agreement has publicly acknowledged that this is correct.
That is where you find 5 pages which were photocopied and stapled together to become CP 16, the supposed written evidence that the Secretary of State had consented to the sub-contracting of Miller Civil Engineering for the purpose of toll collection. Protesters had secured an order from the High Court to officially release the pages revealing the prohibition on sub-contracting, without the written consent of the Secretary of State and according to the demands of statute, (i.e. assignation!). The Scottish Office and Skye Bridge had then to come up with something.
The statute only contemplates a proper assignation but in its total absence they had been pressured into coming up with a substitute, the service contract known as the Operation & Maintenance Agreement. This was actually redundant and had been drafted in London before the demands of statute were known. Skye Bridge Co. had to hire a QC, (yes, we know his name) to trawl the civil contracts in order to come up with something that resembled written consent by the S of S and fire it up to Dingwall in time to convict Alex. Smith and Drew Millar.
Thus CP 16 was born, over 2 years after tolling had commenced. All this to cover up for the fact that there is no lawful assignation in place in favour of Miller. This is all, of course, felonious conduct. Pre-meditated perjury under the 1868 Documentary Evidence Act still merits, on conviction, penal servitude. Under the 1864 Penal Servitude Act a minimum sentence of 7 years applies, with or without hard labour!
Following some unprintable and unrepeatable comments from the Crown's Man in Dingwall, RtP then launched into the other small matter which he wished to bring to Mr Hingston's attention, namely, there being no lawful assignation in place in favour of the proposed concessionaire Skye Bridge Company. In short form, the statutory Assignation Statement, the essential partner to the Toll Order, had not been lawfully made and therefore no assignation existed and only the S of S himself could collect tolls. The Act says that the statement should be made available with the actual order. However, the SI on assignation statement regulations says publish, i.e. print and sell, the statement along with the draft order.
The bright sparks in the Development Department (Roads Division), headed by Professor James Innes did neither. They only made a draft statement available with the draft order. They seem to think, and we have a Scottish Office letter confirming this, that 'proposed' means 'draft'. In law, however, a proposed order, if it is to be published as a General order - not 'local and private' - goes through the stages of 'draft', 'made', 'laid before Parliament' and 'confirmed' before it is deemed 'Given'. Failing to produce the Assignation Statement at the right time is bad enough but what they did produce was undated, unsigned and untrue into the bargain!
Given that this in effect means that every penny gathered in tolls has been illegal and must be returned; and that every conviction is wrongful and must be pardoned and compensated for; and that that any fines paid are due to be returned with interest; and that every arrest has been wrongful and must be compensated for, the Fiscal took it quite well.
He drafted a letter containing full details of the two points on the spot and instructed his secretary to fire them off to the Crown Office. He then announced that he was taking overdue summer leave for a week and going fishing! Whatever happens he needs a policy from the Crown Office by 1 March when Spike 'Sonny Jim' Milligan is due in Dingwall for a proper trial on refusal to pay. Worth a notional nip in the National that day.
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Copyright © Ray Shields, 1999.
Most recent revision, 09 February 1999