There is increasing professional doubt over the legal status of a document which the Scottish Office has officially authenticated, and which the Crown has relied on in evidence leading to the criminal conviction of Skye bridge campaigners.
According to the firm of solicitors which acted for Miller Civil Engineering and drew up the document in question - which is now being used in court to prove that the company's employees were properly empowered in law to collect tolls on the Skye Bridge - it does no such thing. Indeed, they view it as a "very minor" and "peripheral" document.
Two men were convicted in Dingwall Sheriff Court two weeks ago and fined hundreds of pounds after the document was accepted by Sheriff James Fraser. Yesterday, Sheriff James Penman accepted it again and found one of them, Skye councillor Drew Millar, guilty of another 12 charges of non-payment of the tolls and fined him £20 on each.
The Scottish Office insists that the four pages in question show that, in 1991, then Scottish Secretary Ian Laing, who had assigned his rights to collect the tolls to the Skye Bridge Company, had consented to the company assigning or sub-contracting them to Miller Civil Engineering. The first to cast doubt on the document's force was Professor Robert Black, Professor of Scots Law at Edinburgh University. He had been faxed a copy of it by prominent bridge campaigner Robbie the Pict. Professor Black was unequivocal: "I have absolutely no doubt that this document does not constitute any form of consent by the Secretary of State. It simply says that the parties either have or will enter into various agreements."
But on November 11, R Tait, head of Transport Division One at the Scottish Office, wrote to the Edinburgh firm of solicitors Gilliam Mackie, which is preparing a writ of interdict for Robbie the Pict and other campaigners, insisting the document was sufficient in law: that it "... in our view constitutes the Secretary of State's consent. This view appears to have been accepted by the Sheriff in Dingwall last week". Professor Black's differing assessment was supported yesterday by one of the people who prepared the document. Mr Brandon Nolan, a partner in Glasgow solicitors McGrigor Donald. He said it could not be taken as any form of official consent, and that had not been its purpose. "This is a short document which is to cover a situation where all the agreements have to be signed before all the relationships can be regarded as live ... A draft of this would probably have been in the appendices of the development agreement but it is a stand-alone document, that is why we prepared it ... I don't see that in itself it is an assignation of any kind. All it does is to create a direct link between the Secretary of State and the downstream people, the design and build contractors."
When the document was first presented in court, Robbie the Pict recognised it as some of the pages attached to the development agreement which had been leaked to him. He said yesterday: "I was sent two spiral-bound volumes of the development agreement and these pages, which were called the 'agreement', appear on the 9th, 10th, 11th, and 24th pages of this larger document. These pages are clearly in the appendices to the development agreement and therefore to do with the building of the bridge and totally alien to any proposed assignation or transfer of statutory rights to collect tolls."
But he said that, when the procurator-fiscal in Dingwall had asked the Scottish Office for a copy of the development agreement nearly two years ago, he never received these four pages and several others from the Scottish Office.
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Copyright © Ray Shields, 1997.
Most recent revision, 13 March 1998