RECOMMENDATION We received a number of complaints about State misconduct, including wrongful arrest, miscarriage of justice and unfair dismissal. In particular, the National Coal Board management in Scotland did not appear to be fair or consistent in its policy of dismissal, with many miners being dismissed for relatively minor offences, only some reinstated and some not re-instated despite industrial tribunals finding in their favour.
The complaints included those who said that they were arrested for no reason. In relation to complaints of miscarriage of justice, there were various examples, some men describing trials involving evidence given by police officers they had never seen before and yet who claimed to have been involved in their arrest and subsequent police procedures. As will be seen from the figures above in chapter 3, some men were also acquitted. Naturally, different men dealt with by different police officers and tried or sentenced before different Sheriffs received different outcomes but, in comparing their own cases, many have formed the view that some of the differences were a result of inconsistent application of the law as opposed to merely reflecting the factual differences in each case. This perceived inconsistency is part of the general picture of unfairness.
Even from a policing perspective, some of these perceived inconsistencies were the subject of comment, for example, in the Fife Constabulary Debrief Report:
“The other area where problems obviously arose was where different Sheriffs even sitting in the same court had totally different views on what they termed the seriousness of picketing offences and this was never more clearly reflected than in the totally different levels of sentence administered in virtually identical situations. While it might reasonable be argued that this problem does not pertain solely to picketing offences it can also be argued that it appeared to be more pronounced in trials in the picketing connection.”
Partly as a result of the “totally different levels of sentence administered in virtually identical situations” as well as the claims of miscarriage of justice, there has been discussion by some of the need for a pardon of those convicted during, or related to, the Strike, most recently at the start of 2019162. Among others who offered evidence and opinions, we heard this suggestion from former First Minister Henry McLeish who was Leader of Fife Council at the time of the Strike.
Some of what we heard suggests that the application of the criminal law by police, prosecutor and Sheriffs appears to have had an element of arbitrary application, for reasons outlined in more detail in chapter 3. While involving only a single member of the judiciary, the appeal case also casts a large shadow. While none of this establishes that any individual conviction is unsound, it represents a troubling part of the legacy of the Strike. Many men who had been in no trouble before and none since, burdened still by the loss of their jobs and good names, believe that the justice system and State as a whole punished them in a grossly excessive manner. It is hard to disagree, especially having regard to the dismissals which followed arrest or conviction. This conclusion applies even to cases in which a miner pled guilty in circumstances where he believed that such a course of action would be in his best interests.
However, what sets these cases apart in our view is the disproportionality of cumulative impacts caused by dismissal following on from dealings with some aspect of the justice systems, especially convictions. No one has suggested to us that dismissal was an appropriate, reasonable or measured response to what were commonly relatively minor acts of public disorder punished by modest financial penalties imposed by a court. We consider that it was disproportionate, excessive and unreasonable. For reasons outlined above in chapter 3, we thought it appropriate to consider these circumstances and, although policing and the justice system were only part of what led to the totality of disproportionate impacts, they appear to us to have been a significant part, even if, to some extent, their role in the totality of impacts was unwitting. This has drawn us back to thinking about pardons, especially as our remit precludes the making of any recommendations about reinstatement, compensation or the like, which, in any event, would have needed a wider inquiry than this review.
One problem with any suggestion of blanket pardons is the range of behaviour involved in cases from the Strike, including in terms of gravity. Unlike, for example, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018 which allows for pardons for same sex sexual activity which is now legal, much of the behaviour underlying convictions from the Strike would still be criminal if it happened today. Without greater scrutiny of individual cases, it is not possible on the basis of what we know to suggest that the context of the Strike trumps all criminality, regardless of gravity.
On the other hand, we have considered the position of many men described above – no previous convictions; no subsequent convictions; never in any other trouble; convicted on summary complaint for breach of the peace or breach of bail; fined anything between perhaps £80 and £400.
Today, leaving aside context, it is unlikely that the underlying behaviour in these cases would be the subject of prosecution at all. At most, some sort of diversion from prosecution might follow, perhaps a Fiscal fine. Context is, of course, crucial but so is some consideration of the actual behaviour.
While it is impossible now to undo all of the disproportionate consequences of such a conviction, and the SCCRC route is not a practical or realistic option, it appears to us that some positive steps should be taken towards recognising the totality of impacts as a wrong, having regard to the evidence we have considered and the background circumstances recognised by the Scottish Government when this review was announced.
Accordingly, it is our recommendation that, subject to establishing suitable criteria, the Scottish Government should introduce legislation to pardon men convicted for matters related to the Strike.