10. Lessons and a recommendation
'Unfinished business' – 'understanding, reconciliation and inclusion'
With some Reviews, especially those with a narrow remit, a range of possible conclusions may commend themselves from the outset, albeit it is important to retain an open mind until all the evidence has been considered, and provisional thinking may be refined or redirected entirely. With others, the process of compiling a report can assist in drawing out conclusions and recommendations.
When we set out over a year ago, we were unclear, for a variety of reasons, as to possible recommendations. Even in the drafting process, it was apparent that there was no ready list of specific conclusions or meaningful recommendations which would meet the Terms of Reference. In part, fulfilling the Terms of Reference was done by listening carefully to the evidence of individuals and making sure that it was captured. In relation to that part of the Terms of Reference which specified that we should "provide a final report… which sets out lessons learned and makes recommendations for any further action required", we have reflected carefully, bearing in mind also the underpinning idea of 'understanding, reconciliation and inclusion' and a sense of 'unfinished business'. In part, the issue of "lessons learned" is addressed in Chapter 9. No doubt informed, at least to some extent, by the experience of the Strike, policing has moved on considerably. It seems doubtful that the precise combination of circumstances in the Strike would recur, although some of the recent protests by Extinction Rebellion came to mind as a test of modern policing of large-scale demonstrations. Lessons should always be learned from such opportunities.
For many within mining communities, the Strike will always be seen as a necessary response to overt political action by the then Conservative Government which was directed towards destroying the union movement or at least significantly restricting its influence. Unfortunately, for a variety of reasons, some acknowledged even within policing, many within mining communities see the police as having 'taken sides' against them, abandoning necessary independence and neutrality. Government bears some responsibility for this perception, with the CMGC Minutes of 8 May 1984 being evidence of, at the very least, their scant regard for the independence of the police. The Strike therefore serves as a reminder of the importance of the independence, perceived and actual, of our police service as well as the need for a robust and effective framework for accountability in policing.
That leaves the issue of "further action required".
The Strike ended 34 years ago. Many of those involved are now dead. The pits are all closed. An entire generation in society has grown up for whom it is history, albeit for those in mining families and communities, it is history which is still relevant and important. The continuing economic and other impacts of the Strike and deindustrialisation in mining communities help to exacerbate memories of the Strike. Although these impacts are outwith our Terms of Reference, many, including some within policing, have commented on the failure of Government to do enough to address these consequences. Referring back to some of the points made by Dr Jim Phillips about how the matter was approached in the UK in the 1960s and in other countries, there are lessons for Government in how to manage such a major change without unnecessary and lasting damage to jobs and communities.
In policing, most of the officers involved are retired and some are dead. Most people give it little thought most of the time, perhaps calling it to mind when anniversaries arrive or television programmes offer reminders. Despite this, bitter memories of the Strike have refused to go away. It is important that this was recognised and that we take the opportunities presented by this review to arrive at positive conclusions, if possible.
As writer and philosopher George Santayana said, "Those who cannot remember the past are condemned to repeat it." We hope that our work is a useful addition to the canon of literature on the Strike and an aid to remembering the past, perhaps reflecting a particular aspect in light of previously unheard testimony. We hope also that some of those who participated in the process felt that they have been able to have their say in contributing to an independent review. It appeared to us that people on all sides glimpsed the perspective of others, whether instinctively or through the process of the review. What struck us was the shared humanity revealed in the different experiences of people who faced each other, often just from different sides of the road. And, perhaps most strikingly, there was widespread recognition on all sides of the disproportionate consequences of the Strike for some miners who were arrested or convicted, particularly in relation to dismissal and all that flowed from it.
Taking all of this into account, in the context of our Terms of Reference, we have settled on a single recommendation of 'further action required' which we think will promote 'reconciliation and inclusion', while the report as a whole should assist in understanding the continuing impacts of the Strike related, but not confined exclusively, to the policing of the Strike. Before that, we offer some general comments which may be of assistance in the future in avoiding some of the adverse and long-term consequences of the Strike – for the public, government and the police.
Public confidence in the police is a complex product of a number of different factors, not least a sense of legitimacy. In turn, a sense of legitimacy depends on a number of different factors, not least recognition of the independence of the police from government and other exclusively private interests.
Government must at all times respect and ensure the independence of the police.
While it is always desirable to encourage good police-community relations, Government must not attempt to dictate or influence operational matters which are the responsibility of the Chief Constable.
This should be borne in mind at all times.
During an industrial dispute, when the police continue to have a duty to maintain law and order, full account must be taken of the sometimes conflicting rights which may be affected in different groups, individuals and society at large – for example, the right to strike, the right to peaceful protest, the right to work, the right to public order. Recognising that these rights can be difficult to balance at times, the police must make every endeavour to be even-handed and to be perceived as such. Engaging with groups and individuals to publicise and explain decisions can be a good way of doing this.
It is crucial that appropriate scrutiny of the police is maintained at all times, whether by the Scottish Police Authority or other relevant body, in addition to non-operational oversight by Government and Parliament.
Media coverage is another factor which can affect public confidence in the police, although, while obviously desirable, it would be beyond our Terms of Reference to recommend that such coverage should at the very least be truthful and balanced.
We received a great deal of evidence from both miners and police that relations between striking miners and police were less confrontational when local police officers were policing situations involving miners from the same area. Local knowledge and good communication at local level between police and communities are absolutely vital and even more so now that we have a single Police Service in Scotland.
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 2019. 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.
The situation described to us as typical should be the simplest. It is the one recognised in the Brown/Rees Report as typical of 150 cases about which information was then available:
(iii) "From information available on 150 of the dismissed miners in Scotland, it appears that more than 90% of the Scottish dismissals have arisen as a result of breach of the peace offences, police obstruction and breaches of the Bail Act. In addition, the vast majority of fines imposed by the Courts have been _100 or less, and the majority of miners dismissed have no previous criminal convictions. Some miners have been dismissed even when they were admonished in court, found not proven or not guilty, or even not brought to court."
The Fife Constabulary Debrief Report also addressed the most commonly used criminal charges:
"The above have had the effect of making the Police have to revert mainly to the common law breach of the peace or to contravention of Section 41 of the Police Scotland Act 1967 and by and large this is sufficient legislation to meet most of the needs in Scotland where the low key approach to picketing has had the effect of keeping the animosity between the Police and pickets to a minimum in industrial dispute."
Refining the typical example a little, if someone falls into all of the following categories (or at least 2, 3 and 4), they should be pardoned:
1. no previous convictions
2. no subsequent convictions
3. convicted for breach of the peace or breach of bail
4. case disposed of by way of a fine
There may be other examples which are not quite so straightforward, for example, those who pled guilty in circumstances where it is reasonable to infer that they did so without a full appreciation of the implications of their decision. We recommend that such individuals should also be pardoned if they meet the relevant criteria. We also recommend that the pardon should apply to those who have subsequently died.
We suggest that pardons be given by Act of the Scottish Parliament, not by exercise of the Royal Prerogative. We do not envisage individual applications, rather the establishment of clear statutory criteria which the individuals can assess for applicability, with or without legal advice.
In the past, when looking at the question of pardons, a Pardons Tribunal has been suggested. It appears to us that this would be a cumbersome procedure whose aims would be thwarted by the same absence of records that prevents the SCCRC from being an effective and practical remedy in these cases.
The arguments around pardons have been aired from time to time. We appreciate that views vary, with some believing that it is illegitimate to seek to revisit or rewrite history in this way.
Recognising the distinctive features of the relevant cases, but seeking some assistance from a situation where there are some similarities, we have looked at material in relation to the eventual pardon by the UK Government of the 306 men executed for desertion or 'cowardice' in the First World War despite many suffering from Post-Traumatic Stress. In some ways, this is a helpful comparison, certainly more apt than the recent Scottish legislation. It involved an aspect of the justice system, albeit the military system of justice.
It is helpful to consider the full terms of the ministerial statement made on 18 September 2006 by Des Browne MP, then Secretary of State for Defence:
"I have reviewed carefully the case for granting pardons and concluded that although this is a difficult issue it is right to recognise the exceptional circumstances that gave rise to these executions and to show compassion to the families who have had to live with the associated stigma over the years."
Given the paucity of records for the courts martial of those executed, I have taken the view that it would not be appropriate or fair to consider individual pardons under the Royal Prerogative but that a statutory pardon for all members of the group should be introduced. This approach removes the risk of individual cases failing to meet the criteria for a pardon under the Prerogative simply because of lack of evidence…
Rather than naming individuals, the amendment will pardon all those executed following conviction by court martial for a range of offences likely to have been strongly influenced by the stresses associated with this terrible war…
In each case, the effect of the pardon will be to recognise that execution was not a fate that the individual deserved but resulted from the particular discipline and penalties considered to be necessary at the time for the successful prosecution of the war. We intend that the amendment should so far as possible remove the particular dishonour that execution brought to the individuals and their families. However, the pardon should not be seen as casting doubt on either the procedures and processes of the time or the judgement of those who took these very difficult decisions.
The amendment will not create any right to compensation and the Royal Prerogative of Mercy will remain unaffected.
On the Radio 4 Today Programme, Mr Browne said:
"We can't be in a situation morally where we cannot redress injustices because we don't have paperwork in relation to an individual case but we can in other cases where we have some paperwork."
Also at the time, Mr Browne said:
"Although this is a historical matter, I am conscious of how the families of these men feel today. "They have had to endure a stigma for decades. That makes this a moral issue too, and having reviewed it, I believe it is appropriate to seek a statutory pardon. "I hope we can take the earliest opportunity to achieve this by introducing a suitable amendment to the current Armed Forces Bill."
"I believe a group pardon, approved by Parliament, is the best way to deal with this. After 90 years, the evidence just doesn't exist to assess all the cases individually.
"I do not want to second guess the decisions made by commanders in the field, who were doing their best to apply the rules and standards of the time. "But the circumstances were terrible, and I believe it is better to acknowledge that injustices were clearly done in some cases, even if we cannot say which – and to acknowledge that all these men were victims of war."
Similarities to the Strike will be recognised – aspects of the justice system in question, stigma affecting individuals and families, a moral issue which is the responsibility of the State, the lack of evidence by way of paperwork. Our conclusion is the same as Mr Browne's – that injustices were clearly done in some cases, even if we cannot say which and even if arrest or conviction were only a part of the disproportionate impacts.
One of the arguments against the World War 1 pardons was the fact that the men concerned had been executed. One of the benefits of considering pardons in relation to the Strike is that men who are still alive would feel the restoration of their good name, the respectability they felt was lost to them over thirty years ago. It would be an effective remedy, not merely a theoretical or academic one. While to many, a pardon in such circumstances might seem either too much, or indeed, too little, we are reassured that it would have practical impact for the men and families involved. A pardon may also offer some comfort to the families, friends and communities of deceased miners. It would also offer some healing from the State to some of the scars mentioned by the Cabinet Secretary in June 2018. Our best sense of the policing side of the Strike, as expressed by some with whom we have spoken, is that the move would be welcomed if it is seen as recognition of the disproportionality of outcomes, as opposed to some sort of condemnation of the policing of the Strike. To that extent, we believe that such action would provide a degree of reconciliation, being understood perhaps even better by the police officers involved in the Strike than any others.
There may be practical issues around identifying convictions which are related to the Strike although this seems to have been managed in 1985, for example, in the figures quoted in the Brown/Rees Report. We anticipate that some of the convictions should be relatively obvious, for example, being convictions in between, say, 1984 and 1987, and, in most of the cases we are describing, standing alone as the only blemish on an otherwise clear criminal history check.
No doubt, checks on other criminal record could be made easily enough. In any event, the men and their families should be well aware of the true circumstances in each case. If properly set out, the individuals and families concerned will be able to see that the pardon applies in their cases.
The total numbers affected do not greatly exceed 500, so any administrative inquiries need not be too burdensome, for example, in relation to criminal records checks.
Most, if not all, of the relevant convictions would now be considered 'spent' in terms of Rehabilitation of Offenders legislation. As we understand it, only in enhanced disclosure might the convictions appear. This emphasises the significance of the convictions, and any pardons, for the individuals concerned.
We appreciate that it may seem odd to recommend pardons when we are not saying that every case involved a miscarriage of justice, indeed it seems clear that many of the convictions were for behaviour accepted and admitted by the men involved. While the focus of our review has been on the impact of policing our recommendation is driven by the totality of impacts of various parts of the State, including policing. Especially where the then Cabinet Secretary sought 'understanding, reconciliation and inclusion' from our work, we could not step back from what appeared to us to be a fair, appropriate, indeed even necessary, recommendation.
With pardons, at least some of the damage – the 'scars' mentioned by the Cabinet Secretary in June 2018 – could be eased or even healed. For some men who spoke to us, they would be able to feel a sense of their respectability having been restored. To the extent that our conclusions and recommendation are welcomed by those from the policing community, it seems to us that a degree of reconciliation might also be achieved.
In one of its conclusions, the Fife Constabulary Debrief Report addressed some of the territory covered by our review:
"The most important lesson of all, it is contended, is that there must be a positive approach and there must be determined efforts to build on what success was achieved. In this line it is as important for the Police to get back to normality as it is for the public. To help achieve this it is sincerely and honestly suggested that if in the pressure situation mistakes were made, lessons were not always quickly enough learned, harsh words were exchanged and the viewpoint of another was not always readily appreciated, the fact that all these things occurred in the most unusual atmosphere and conditions should be accepted. If this is the case it is confidently predicted that the Force can positively move forward with hope and build on the achievements which have been attained."
If our recommendation for pardons is accepted, it would be a "positive approach" by the Scottish Government to what it recognised as "scars" from the Strike. It would assist some by restoring some of what was lost, in particular the good name and respectability of honest working men engaged in trying to save their industry. It would address some of the "mistakes" of the Strike, many of which are the responsibility of the State, albeit not all through policing. As recognised by the police, the Strike involved a "most unusual atmosphere and conditions" and the men, women and families still affected by it as we have described are entitled to a "most unusual" remedy.