15.10 Lord McCluskey told us, and it is confirmed by Douglas Brown's note, that on learning that one of the cases for trial at the sitting was that against May and Tucker he thought that the defence should have a say in whether he should take the trial, in view of what he had learned about tucker's background during the tral the previous December It is clear to us that Lord McCluskey's concern was not that he could not preside impartially at the forthcoming trial but that the defence should not be in a position to complain of a potential lack of impartiality on the part of the Judge. David Blair-Wilson was the solicitor for both accused and when Justiciary Office conveyed Lord McCluskey's view to him he said that he would object to Lord McCluskey as the trial Judge This gave rise to a difficulty because, as matters stood on 3 May, no other Judge was available and it was therefore anticipated that the case against May and Tucker would require to be adjourned to the next sitting of the High Court at Dunfermline on 21 May 1991. It was. however, discovered at a late stage that Lord Milligan could be made available to take the sitting after the first day. ie from 8 May 1991 onwards, and it was accrdingly arranged that Lord McCluskey would sit for the first day and Lord Milligan thereafter.

15.11 The other business of the sitting was dealt with by Lord McCluskey on 7 May 1991. Lord Milligan sat on subsequent days. The trial of May and Tucker began on 8 May 1991 The Advocate Depute for the sitting was Alastair Campbell. May's counsel were Robert Henderson QC and John Watt, and Tucker's counsel was Maria Maguire. Isabel Clark attended the Advocate Depute in court .Delective Chief Inspector Wilson as Reporting Officer went to the court building on a number of occasions during the trial. Several journalists were present in court on the first day of the trial, but following remarks by Lord Milligan on the morning of the second day in response to a motion by Maria Maguire, who complained about inaccurate reporting of the first day's proceedings in two newspapers, the press were less well represented for the remainder of the trial

15.12 The first witness called by the Crown was James Teague. His evidence lasted for the fist day and most of the second day of the trial He was followed by Patrick Teague, whose evidence lasted for a similar period, and by Gerald and Daniel Teague. The last Crown witness was Polycarpos Spyrou. the Company's accountant. At the start of the trial Robert Henderson was allowed to lodge a late documentary production, of which he made use during the course of the evidence. At the end of the first day Alastair Campbell discussed the case at length with Isabel Clark because he was concerned about the quality of the evidence given by James Teague. He eventually took the view that he should reconsider the evidence once all the Teague brothers and Spyrou had given their evidence

15.13 All those whom we have mentioned who were present in court are in agreement that the Teague brothers were very reluctant witnesses and that their evidence was of such a quality that the jury were most unlikely to accept it. Indeed, it appears that at times the jury openly laughed at some ot the evidence. Alastair Campbell told us that on one of the last days on which evidence was led, 14 May 1991. the last straw for him came when Daniel Teague conceded in evidence that May was entitled to a sum of the order of the sum which had allegedly been embezzled from the Company. This evidence is recorded in his assistant's notebook. In Alastair Campbell's view the evidence of Spyrou did nothing to improve Ihe Crown's position. He accordingly came to the view, on the evidence that had been led up to that point, and taking account of the relatively minor contribution that would be made by the evidence that had not yet been led by Ihe Crown, that it would not be in the public interest for Ihe trial to continue

15.14 Meanwhile, as Lord Milligan explained to us. he was becoming irritated because it seemed to him that 'The Crown wasn't getting anywhere " He remembers that he made a remark to that effect to his clerk. and that it was conveyed to the Advocate Depute. There were two Depute Clerks of Justiciary at the sitting. Robert Sinclair, who was there from Ihe beginning until Monday 13 May 1991, and Gordon Ellis, who was there for the last two days. Both of them remember Lord Milligan's remark, and that they passed it on to the Advocate Depute. Alastair Campbell is adamant that this did no more than reinforce the view which he had already reached. We should make it clear that we understand lhat Lord Milligan was motivated solely by a desire not to take up more ot the court's time, and particularly the jury's time, than was necessary. Lord Milligan stated to us "Any suggestion that there was any shortcoming on the prosecution side is as far as I am concerned complete and utter and total rubbish " The problem, as all are agreed, lay in the quality ot the evidence

15.15 On 15 May 1991 Spyrou's evidence continued. When he had the opportunity, the Advocate Depute telephoned the Lord Advocate, Lord Fraser, who was in London. Although it would have been open to him to withdraw the libel without reference to the Lord Advocate he was aware ol the rumours which had followed Tucker's previous acquittal and he was concerned about the risk that a decision not to proceed further against May and Tucker might be misinterpreted. He explained to the Lord Advocate his view of the evidence and referred also to what he had heard from the Judge's clerk. He and the Lord Advocate agreed lhat the only reason for continuing with the tnal would have been to avoid possible criticism and that was not a proper reason The Lord Advocate accordingly agreed with the Advocate Dopute's decision on the basis of the evidence that it would not be in the public interest to continue with the prosecution. When counsel returned to court for the resumption of the trial after lunch that day the Advocate Depute told defence Counsel of his decision. They had no prior knowledge of it and were accordingly somowhal surprised. When the court sat the Advocate Depute withdrew the libel and Lord Milligan instructed the jury to return a formal verdict of not guilty In discharging the jury Lord Milligan said that the decision taken by Ihe Advocate Depute was "entirely proper and certainly on the evidence was fair, it seemed a very proper decision, the Advocate Depute acted impeccably"

15.16 While Isabel Clark shared the view of other persons we have mentioned who were present in court about the quality of the evidence which had been led, she disagreed with Ihe Advocate Depute's decision to withdraw the libel. She wrote a note to the Procurator Fiscal dated 24 May 1991 in which she stated that she was very disappointed about what had happened and was extremely upset about it. She stated in the note, and repeated to us. that there had been direct communication between Alastair Campbell and Lord Milligan as well as direct communication with the Lord Advocate and that Alastair Campbell withdrew the libel because of what had been said to him by the Judge and by the Lord Advocate. She persisted in that belief notwithstanding what we were able to say to her about the evidence we had received not only from Alastair Campbell but also from Lord Milligan and Lord Fraser.

15.17 Having regard to Ihe evidence of these persons we are convinced that her disappointment at the Advocate Depute's decision has affected Mrs Clark's perception of the events. We accept what Alastair Campbell has written to us in a note responding to Isabel Clark's note "What Mrs Clark has failed to appreciate is that I decided on the basis of the evidence that it would not be in the public interest to continue and that I would have made that decision in the absence ot any indication of the Judge's views, further that I would have made the decision without reference to the Lord Advocate had it not been for the background of press speculation. It is quite, quite wrong to conclude as Mrs Clark does that I had to consult the Lord Advocate because of the Judge's views. The Judge's views did no more than reinforce the conclusion at which I had already arrived on considering the evidence "

15.18 We should make it clear thai we do not understand that Isabel Clark was suggesting, either in the note that she wrote or in her evidence to us, that there was any improper motivation for what took place. Her view, quite simply, was that no decision should have been taken until the Crown had led all the available evidence and that, as she saw it, the Advocate Depute was induced to take a premature decision Her evidence is therefore not of direct relevance, but we have thought it appropriate to mention it to show how even a Procurator Fiscal Depute can not only disagree with an Advocate Depute's decision but can misperceive the basis upon which it is made.

15.19 As we have already said. Detective Chiet Inspector Wilson went to Ihe court building at Dunfermline on a number of occasions and in particular was there on 15 May 1991 at a time which enabled the Advocate Depute to tell him of his decision to withdraw the libel. Wilson told us that he was disappointed by the outcome because his investigation had produced sufficient evidence to justify a prosecution. He accepted, however, that the Advocate Depute had based his decision on the quality of the evidence of the principal witnesses, and made it clear to us that he felt there was nothing sinister about the outcome.

15.20 In preparing that part of his report which related to the case against May and Tucker. Detective Chief Inspector Orr did not discuss the case with Detective Chief Inspector Wilson. Instead he based that part of his report on information obtained from Detective Inspector Souter and Detective Sergeant Drown, neither of whom had any substantial involvement in the case/ Souter had accompanied Wilson when two search warrants were executed on 17 May 1990 and when Tucker was detained and thereafter cautioned and charged on 3 October 1990. He was not otherwise involved in the investigation. Brown had no involvement in the investigation. Orr made some elementary mistakes. He named Tucker rather than May as the first accused and he wrote that Robert Henderson was Tucker's counsel, while he was m fact May's counsel These mistakes may have some significance in view of Souler's belief in the existence of Tucker's so-called "list” and the opportunity that Robert Henderson would have had to obtain a copy of it at the time of Tucker's previous trial. The part of Orr's report which relates to the case against May and Tucker refers to Tucker's homosexuality, states that May is a practising homosexual, and alleges that May was involved in the running of an hotel and nightclub in Thailand. According to the report this place "is openiy engaged in providing services for homosexuals particularly in the procurement of young male prostitutes or rent boys for the sexual gratification of visitors. The complex is thought to have been frequented by several persons popular on the Edinburgh gay scone, including the gay element of the legal fraternity " We are in possession of no evidence which would support this latter allegation.

15.21 It is apparent from a later passage in his report that Orr made a connection between Robert Henderson, Tucker, May, the premises in Thailand, and Tucker's so called "list". The inference which he apparently intended to be drawn from his presentation of the subject matter was that the outcome of the case against May and Tucker had somehow been procured by a combination of these features, and in particular that Robert Henderson had been in a position to put improper pressure on the Crown. When we pressed him about this part of his report Orr said that he assumed that the Reporting Officer was of the same view as Souter and Brown were and that they were telling him the totality of the Fraud Squad view. He said that in hindsight he accepted that in that case he should have gone to the Reporting Officer. If he had done so Wilson would presumably have told him the same as he told us, which was that the outcome of the case was the consequence of evidence given in court by the Teague brothers and had nothing to do with any "list" or any premises in Thailand.