Mr Eddie Cairns
72 Hillhouse Street
GLASGOW G21 4HP
6 October 2017
Ms Jane Benson
Senior Legal Manager
Response and Information Unit
Crown Office and Procurator Fiscal Service
25 Chambers Street
EDINBURGH EH1 1LA
Your ref: R012035/R013830/R011782/R012542
Dear Ms Benson,
I refer to your letter dated 4 October 2017.
The COPFS sent me an email on 6 April 2017 with an attachment that was 98 pages long. I did not object to that because that is what was required to communicate the information. Similarly, one of my attachments was about the same size because that is what was required to communicate the information.
Your allegations that I am being demanding and unduly persistent mainly on the basis of the size of an attachment that was only about the size of an attachment the COPFS had already sent to me are hypocritical and unjustified in the circumstances.
Your further accusations that my correspondence amounts to continued repeat
complaints, repeat questioning and requests for information, and repeat
comments or concerns, having no regard to information and explanations
previously provided by RIU are again falseand can reasonably be described as unsupported nonsense.
For example, in your letter to me dated 18 May 2017 you included the following unlawful point, reproduced here in italics for convenience:
In respect of point 3(e) of your correspondence, I do not consider that COPFS records of any investigation of COPFS staff or subsequent disciplinary action in relation to their actions in relation to, or treatment of you, constitutes your personal data, but would be the personal data of another person.
In fact the Information Commissioner had already notified the COPFS on 4 December 2009, as recorded in the 98 page attachment to me from the COPFS, that such information would indeed form my personal data.
In my letter to the COPFS dated 8 April 2017 I specifically referred to that important fact along with other information that is likely to form my personal data in the following terms, reproduced here in italics for convenience, which you have culpably disregarded:
DATA PROTECTION ACT 1998
SUBJECT ACCESS REQUEST
The disclosures provided with your letter to me dated 6 April 2017 along with the disclosures provided on 3 March 2017 do not constitute the disclosures to which I am entitled.
The omissions are listed below:
3. Specific information notified to the COPFS by the Information Commissioner in December 2009 as likely to form my personal data, including:
(a) all records of correspondence, documents, evidence, or other items sent to, or by me, irrespective of the sender (including external bodies)
(b) any internal or external communications (including email) about me including:
(i) any speculation or expressions of opinion regarding my reasoning or motivation behind my complaints and requests for clarification.
(ii) any advice (including legal advice), comments, or reports on COPFS’s duties to respond to, or otherwise how to handle, my correspondence, requests for clarification, complaints, and information request(s).
(iii) any other expressions of opinion about me.
(c) any information recording contact COPFS staff have had with me.
(d) my witness statements and any other information provided by me, or records of evidence provided by me, in relation to ‘the fraud case’.
(e) the records of any investigation into COPFS staff, or subsequent disciplinary action, in relation to their actions in relation to, or treatment of, me.
(f) any comments about me and my complaints expressed by persons accused by me.
Your accusations that I have made speculative accusations about members of staff and about the concealing of evidence by members of COPFS staff are also false.
In fact my accusations are soundly based upon important new evidence of alleged criminality that you have culpably disregarded.
For the sake of brevity I will list here only a few of the grave accusations in question with references to the supporting new evidence:
(1) I alleged that on 8 April 2005 Ms Catherine Dyer falsely stated that I was the only witness and that there was no corroboration of any of my allegations.
The documents disclosed to me by Scottish Enterprise on 7 July 2016 and by the COPFS on 6 April 2017 confirm Ms Dyer’s statements to have been false.
I wrote to you in respect of this matter on 20 April 2017 including the following:
DATA PROTECTION ACT 1998
SECTION 10 NOTICE
Thank you for your letter dated 18 April 2017.
My letter dated 30 March 2017 included the following important statements, reproduced here in italics for convenience:
In the light of the new evidence arising during 2016 in this case the COPFS’s letter to me dated 8 April 2005 is shown not to be in accordance with the evidence now available.
In particular, the following statements in that letter are inaccurate:
1. ‘In this particular case the only witness alleging that criminal conduct took place by either the police officers or any personnel of Ayrshire Enterprise (sic) or the organisations that reviewed Ayrshire Enterprise’s (sic) intromissions with these funds is a single source, namely yourself.’
2. ‘There is no ‘’corroboration‘’ of any of your allegations and accordingly there is an insufficiency in law to allow any proceedings on criminal charges.’
Consequently I request a prompt and impartial review of this case by persons not previously involved.
..... I want the inaccurate and damaging information about me to be corrected.
You have 21 days to respond to this Notice.
The last sentence ends the extracts.
Clearly, your letter fails to address these points.
Firstly, in the circumstances I am entitled to be informed about whether or not you have previously been involved in this case.
......... The following statement in your letter, reproduced here in italics for convenience, is therefore based upon a falsehood:
Accordingly, I do not consider that there is any information to correct.
The information about me that I want you to correct was plainly identified in my letter dated 30 March 2017 as detailed above. These were the statements contained in the COPFS letter to me dated 8 April 2005. You have completely disregarded my objection to that information which inaccurately stated that I was the only witness and that there was no corroboration of any of my allegations.
In the Notice I identified new evidence arising in 2016 as relevant. I have already provided copies of that evidence to the COPFS along with explanatory information. These are attached again.
Under the terms of the Data Protection Act 1998 I am legally entitled to have the specific alleged inaccuracies about me properly addressed and assessed in the light of the available evidence.
Unless you respond adequately today you will have exceeded the time allowed by law for a substantive response to the DPA Section 10 Notice dated 30 March 2017.
That ends the extracts from my letter to the COPFS dated 30 March 2017.
Regardless of these significant points brought to your personal attention you persisted in acting unlawfully towards me by refusing to admit and correct the falsehoods issued by Ms Dyer.
(2) I alleged that the COPFS elicited no report from the police in respect of the original purported investigation in 1993 but instead acted in concert with the police and Scottish Enterprise to conceal material evidence and pervert the course of justice in this case.
On 6 April 2017 the Crown Office and Procurator Fiscal Service provided disclosures to me on this case under the terms of the Data Protection Act 1998.
Under a section headed Copies of letters to/from the police and enforcement agencies the following item is listed:
20 August 1993 Enterprise Ayrshire Special Investigation: ERDF Receipt
This new evidence proves that the original report provided by the police to the Crown Office and Procurator Fiscal Service was the report dated 20 August 1993 which was in fact produced by Scottish Enterprise, not by the police.
The item quoted above is material since as you know the police have asserted that they produced the report that was submitted to the Crown Office and Procurator Fiscal Service in 1993 which is shown to be false in the light of this new evidence.
(3) I alleged that senior police officer Mr Ruaraidh Nicolson falsely pretended that the police had conducted a full and thorough investigation into my allegations when reported in 1993.
Disclosures from the COPFS on 6 April 2017 confirm that on 23 September 2008 the COPFS had received a letter from me ‘outlining allegation of criminal conduct by Supt. Nicholson (sic) of Strathclyde Police.’
The disclosures contain no record of any response by the COPFSand no indication that any investigation into that very serious allegation was carried out.
And again the new evidence proves that the original report provided by the police to the Crown Office and Procurator Fiscal Service was the report dated 20 August 1993 which was in fact produced by Scottish Enterprise, not by the police, and that Mr Nicolson’s pretence that the police had conducted a full and thorough investigation into my allegations when reported in 1993 was indeed false.
(4) I alleged that the police were given false information by Scottish Enterprise in August 1993 and again in April 2016 including a copy of the manifestly defective Scottish Enterprise report dated 20 August 1993 along with copies of several significant items of documentary evidence that had been concealed from that report.
The disclosures to me from Scottish Enterprise on 7 July 2016 and from the COPFS on 6 April 2017 support those allegations and constitute important new evidence that has never been properly assessed.
(5) I alleged that new evidence that I submitted to the police in January 2016 included a copy of a crucial bank statement dated 24 August 1993 in the name of an employee of Enterprise Ayrshire personally which contained a deposit of £187,000 while this public money was missing from the company’s balance sheet and that the police had brushed aside the significant financial irregularities exposed by this document and related documents.
How will you explain to the general public, as will be required in due course,the fact that the £187,000 that was missing from the company’s balance sheet for exactly the time I alleged was found to have been deposited into a bank account in the name of an employee and to have been credited with £919 interest on the misappropriated taxpayers’ cash while it was missing from the company financial accounts and bank account?
Even the seriously defective in other respects Scottish Enterprise report dated 20 August 1993, copied to the police by Scottish Enterprise on 15 April 2016 and to me by Scottish Enterprise on 7 July 2016, confirmed these important points.
(6) I alleged that the COPFS unfairly and unjustifiably treated me as a persistent complainer in order to disregard several important requests for clarifications I had submitted to the COPFS while simultaneously recording that I had in fact submitted no letter of complaint at that time.
The disclosures from the COPFS on 6 April 2017 included the following:
20 November 2008
I understand (redacted) e-mailed you yesterday to explain that Mr Cairns is a persistent complainer. We have no letter of complaint as such just numerous letters in general from Mr Cairns. This was reported to CO (copy report attached) and an instruction was received saying that we were no longer to correspond with Mr Cairns.
How can I be regarded as a persistent complainer at that time when it is recorded that I had actually submitted no letter of complaint?
There was no reasonable basis for treating me as a persistent complainer and disregarding my correspondence.
(7) I alleged that the COPFS received several very serious letters from me requesting clarifications but no clarification was provided, contrary to the COPFS published policy.
In the disclosures provided by the COPFS on 6 April 2017 it is recorded that the COPFS received 25 letters from me between 5 July 2008 and 16 August 2008. These were very important letters requesting clarifications and explanations in the case of alleged fraud in Enterprise Ayrshire and Scottish Enterprise and the alleged operation of a criminal conspiracy to pervert the course of justice involving senior police officers, senior employees of Enterprise Ayrshire and Scottish Enterprise, and senior employees of the COPFS.
The only response was a letter from the Area Procurator Fiscal for Glasgow, Ms Lesley Thomson, dated 10 October 2008, intimating that the case was now closed and that no further correspondence would be entered into.
No clarifications or explanations were provided at all.
(8) I alleged that since I had raised concerns about COPFS staff colluding with Scottish Enterprise employees and police officers to pervert the course of justice by concealing material evidence in this case no employee of the COPFS would appear to be sufficiently independent and impartial to assess my allegations.
The COPFS’s contrary stated view is unlawful being incompatible with the requirements of the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.
Section 6 of the Human Rights Act 1998 provides, to the extent relevant:
‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
‘(6) ’An act’ includes a failure to act....’
Article 6 of the European Convention on Human Rights provides, to the extent relevant:
‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
Since I made very serious allegations against COPFS staff there is a real possibility of bias by submitting my allegations to COPFS employees for consideration.
It has been established that declining to handle a case would be required where a wellinformedand fair-minded observer would consider that there wasa real possibility of bias: Porter v Magill  2 A.C. 357.
Consideration of the operation of that principle is to be found in
Helow v Secretary of State for the Home Department 2008 SC (HL) 1.
The legal requirements to ensure fairness, independence and impartiality were all disregarded by the COPFS in my case.
(9) I alleged that COPFS employees destroyed important evidence in this case regardless of the fact that I had obtained important new evidence in support of my position after the last police assessment concluded on 31 May 2016.
The documents disclosed to me by Scottish Enterprise on 7 July 2016 and by the COPFS on 6 April 2017 contain significant new evidence in support of my position as detailed in my recent correspondence that ought to be submitted to independent Crown Counsel or alternatively to an English prosecution service for consideration.
(10) I alleged that COPFS employees destroyed important evidence regardless of the fact that I had notified the COPFS that there are ongoing investigations by the Scottish Police Authority into this case.
No such evidence ought to have been destroyed in those circumstances.
(11) I alleged that COPFS employees have acted dishonestly and with criminal intent.
It is clearly dishonest to pretend that the Scottish Enterprise fraud case has ever been properly investigated in the light of the evidence known to have been available at the time of the original investigation, which was outrageously carried out by the suspects instead of by the police with COPFS’s blessing, and in the light of the increasing amount of evidence in support of my allegations available at every time any review was supposedly carried out, none of which reviews in reality ever came close to resembling an effective investigation. Every COPFS performance has been deliberately ineffective and dishonest, a criminal matter.
Intending to destroy evidence relevant to ongoing SPA investigations in which there are allegations of misconduct by several COPFS employees in collusion with Scottish Enterprise and the police, indicates criminal intent by COPFS employees, being beyond reasonable doubt designed to cover up the alleged criminal conspiracy and obstruct justice.
Intending to destroy evidence in the light of important new evidence arising in 2016 and 2017 yet to be properly investigated and assessed further indicates criminal intent by COPFS employees, being beyond reasonable doubt designed to cover up the alleged criminal conspiracy and obstruct justice.
When the public hear the COPFS’s mantra that there was insufficient evidence although you actually had a bank statement in the name of one of my supervisors, Mr Gary Tracey, containing the £187,000 that was missing from the company balance sheet and when the public further hear about the interest of £919 additionally credited to Mr Tracey’s personal account as a result of the fraud they will rightly be astonished and very concerned indeed about the egregious failures and criminal conduct of COPFS employees.
Did Mr Tracey tell the investigators that the money was, like in the case of Father Ted, just resting in his account before he moved it on? Oh I forgot, Mr Tracey would not have had to explain why he was caught red-handed with this substantial amount of taxpayers’ cash because according to the 1993 report nobody was interviewed at all, not even the person who was found to have the missing money.
How many other public officials have helped themselves to public funds and gained interest with impunity despite the matter being reported to the COPFS? And how many other honest finance workers have had their careers wrecked by the deliberate ineptitude, downright dishonesty and criminal intent of COPFS employees?
According to disclosures from Scottish Enterprise their Chief Financial Officer and Company Secretary, Mr Iain Scott, was interviewed by the police in 2016 in the context of another review. What was his explanation for the cash found to be in an employee’s personal bank account, earning interest for him while the cash was missing from the company’s balance sheet? That remains a mystery because the COPFS already notified me that no police report was submitted to them following that purported review. What a surprise.
Senior individuals involved in the Hillsborough case are now deservedly facing very serious consequences for indulging in such deliberate ineptitude, dishonesty and criminal intent over decades, having misrepresented the evidence and repeatedly lied about that case just as you and your colleagues have done in the Scottish Enterprise case.
(12) I alleged that the police were not sufficiently independent and impartial to decide upon the sufficiency of evidence in support of my allegations against DCI Kenneth Thomson, DS Adams and DC Stewart in the circumstances of my existing allegations of misconduct against their colleagues, including their superior officers CC Gormley, ACC Nicolson and DCC Livingstone.
The COPFS notified me that:
It may assist if I explain what happened in relation to your complaint against the police. Your allegation that officers of Police Scotland in carrying out a review of evidence in relation to a fraud allegation concealed material evidence to avoid carrying out proper investigation into alleged criminality acted corruptly and attempted to pervert the course of justice was referred by the Police Investigations and Review Commissioner (PIRC) to CAAPD as it involved an allegation of criminal conduct. As you may be aware, PIRC cannot investigate allegations of criminality and will refer such matters to CAAPD.
CAAPD asked the Professional Standards department of Police Scotland to investigate and report. They did so. On the basis of that report there was insufficient evidence to show the commission of any criminal offence by any police officer. CAAPD wrote to PIRC to advise them of this in January 2017. You have asked why no statement was taken from you and why the case was not referred to Crown Counsel. In the leaflet titled Guide for complaints against the police which I enclose it is clear that it is for COPFS to consider the evidence and decide what action to take. It is also for the CAAPD to decide whether or not a case requires to be reported to Crown Counsel. They had the information from you as provided by the PIRC. As there was insufficient evidence of the commission of a criminal offence, the case did not require to be reported to Crown Counsel.
The following extract from the guide for complaints about the police has relevance:
‘What happens if a case is
reported to the COPFS?’
‘Crown Counsel will consider the case and will decide whether
to prosecute. The Criminal Allegations Against the Police
Division of COPFS will let you know what Crown Counsel decide.’
The PIRC did refer this case to the COPFS. Why then was this case not considered by Crown Counsel in accordance with the published guide?
And why did the CAAPD ask the Professional Standards department of Police Scotland to investigate and report on this matter knowing that I had already submitted separate complaints against senior officers in relation to this case, namely CC Gormley, DCC Livingstone and ACC Nicolson?
Clearly, in those circumstances the Professional Standards department, under the control of those officers, cannot be regarded as sufficiently independent and impartial to make such decisions. The resulting appearance of bias renders decisions taken in this case unlawful according to the terms of the Human Rights Act 1998, as already detailed above.
Your reliance upon a vexatious actions order to interfere with my complaints is not valid. That order only restricts my access to court, not to any complaints process.
In any event you already know that the Legal Services Ombudsman concurred with the Faculty of Advocates in their opinion that I have grounds for a complaint about the misconduct of the Lord Advocate in obtaining that order by misdirecting the police and interfering with live civil actions.
Your accusations that my contact is imposing a significant burden on COPFS, not having a serious purpose or value, having the effect of harassment, and would in the opinion of a reasonable person be considered to be manifestly unreasonable and disproportionateare absolutely false and disgraceful in the light of the important new evidence arising after the date of the last police assessment.
The persistent unreasonableness and unlawful conduct of the COPFS towards me are recorded in the 98 page COPFS attachment referred to above. It is recorded that the Information Commissioner considered the COPFS to have contravened the Data Protection Act 1998 in my case. Several communications from the Information Commissioner were required in order to get the COPFS to act lawfully towards me, including threats of issuing an Information Notice compelling the COPFS to comply and of the case being considered for formal regulatory action.
You falsely state that my complaint has been fully dealt with in terms of the COPFS Comments andComplaints Policy.
In fact I have recently submitted to the COPFS complaints against four individuals. Therefore there are four complaints to be processed, not just one.
In fact none of my complaints has been fully dealt with in terms of the COPFS Comments andComplaints Policy.
It is particularly unlawful for you to make a decision about my case since in addition to my existing concerns about my correspondence being handled by colleagues of those against whom I had submitted allegations of misconduct and criminal intent, separately I had already submitted a formal complaint about you to the Scottish Legal Complaints Commission. Clearly, you do not appear to be sufficiently independent and impartial in those circumstances.
I will of course be appealing against your decision which amounts to further outrageous and unlawful misconducttowards me, not least the repeated failures to respect my right to fairness under the terms of the Human Rights Act 1998, the continuing mishandling of my complaints and the blatant disregard for my serious concerns about alleged criminality by COPFS employees in collusion with Scottish Enterprise and the police.