3. Policing and beyond
From an early stage in our work, one thing became apparent. In terms of much of the permanent impact and damage caused by the Strike, it is impossible to separate out the role played by the policing of the Strike and identify an impact or impacts which could be attributed solely to policing. In any event, this relationship appears to have changed during the progression of the strike.
It is true, however, that decisions made by the police led to decisions made by others, whether within the justice system or within the NCB. Some of those who have suffered the most are men who were arrested but also convicted and sacked. This Chapter will explore the full range of processes and procedures experienced by many miners, beginning with arrest but extending to various other aspects of the justice system and dismissal by the NCB.
The detailed submission from Dr Jim Phillips, received in response to the Call for Evidence, reflected on evidence we heard at the Fallin meeting which outlined the sequence of events experienced by some:
"It is clear that policing targeted individual strikers. Key local activists at Fallin were persistently harassed. They experienced both direct and indirect wrongs as a result. Direct wrongs included false arrest, threatened and actual lengthy spells of detainment on remand, physical abuse in custody by police officers, verbal threats and intimidation in the community by police officers, and highly punitive sentencing, including fines of £350 to £400 for public order offences. Indirect wrongs included dismissal from coal industry employment arising from arrest (not conviction) and loss of income, including pension contributions, subsequent financial hardship, loss of esteem, pressure on family and marital relationships, and negative effects on physical and mental health. The effects of these indirect wrongs were compounded in many cases by the evident black-listing of ex-mining activists by non-coal employers.
Policing decisions had major impacts on the employment status and subsequent careers of the strikers who were targeted.
The injustices encountered by striking miners in Scotland were the result of decisions made in Scotland as well as in Whitehall and Westminster."
Operation of the criminal justice system affected a surprisingly high number and percentage of striking miners. In Scotland, the number of striking miners was approximately 14,000 and, by the end of the Strike, approximately 1,400 had been arrested, with over 500 convicted, whether by plea of guilty or after trial. According to the Brown/Rees Report (page 7), in Scotland, 603 were found guilty and 140 acquitted up to 22 March 1985, with 569 convictions and 109 acquittals being for breach of the peace, 220 convictions and 29 acquittals under the Police (Scotland) Act, 1967, section 41 and smaller numbers for miscellaneous matters.
In England and Wales, between 13 March 1984 and 5 March 1985, the number of striking miners was approximately 187,000; of these, the number of miners arrested was 8,788 from a total of arrests related to the Strike of 9,808. The total number of charges was 10,372. This included charges of murder (3), arson (15), assault occasioning actual bodily harm (429), assault occasioning grievous bodily harm (39), riot (137) and unlawful imprisonment (2). 5,653 cases were dealt with by the courts of which 4,318 resulted in convictions and 1,335 in acquittals.
In Scotland, there were far fewer of the more serious charges which featured south of the border. Notwithstanding this, it will be seen that approximately 10% of striking miners in Scotland were arrested, by comparison to approximately 5% in England and Wales.
In Scotland, approximately 206 (1.5% of the total number of striking miners) were dismissed. This was a higher percentage than in England and Wales where approximately 800 to 900 miners were dismissed out of a total of 131,000 strikers, giving a percentage of 0.61/0.68%. In Bilston Glen, 36 of 1,800 striking miners were dismissed (2.0%) and at Monktonhall, 46 out of 1,700 striking miners were dismissed (2.7%).
The arbitrary and inconsistent approach by the NCB was addressed in the Brown/Rees Report from page 65 onwards, for example:
(i) "In all, more than 900 miners have been dismissed by the National Coal Board. After representations in England and Wales, 280 have been reinstated. In Scotland, some 200 miners have been dismissed – and none reinstated. With less than 10% of British miners, and around 10% of convictions for offences related to the strike, Scotland has had more than 30% of the dismissals."
(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."
This additional disproportionality is another aspect of the lasting damage caused by the Strike, with an unanswered question being why proportionately more of those on strike in Scotland suffered arrest and dismissal than elsewhere, especially when the relative gravity of the offending in Scotland appears to have been less serious than in England and Wales – something acknowledged, for example, in the Fife Constabulary Debrief Report –
"While it is still suggested that the existing legislation is basically sufficient to deal with the problem, especially in Scotland where the same level of violence was never reached as what was evident in England, there may be some merit in setting up a"
These miners experienced not one process, nor the impact of a single agency or actor. The police were involved at an early stage of the series of events which befell them, but conviction and dismissal involved other processes, decisions and agencies, including other parts of the State.
In the evidence we have seen and heard, it is clear that some of the main continuing impact is felt to be a consequence of policing but, when explored as we were able to do at the public meetings, individuals recognised the greater complexity of factors which contributed to what they still feel. Some people attributed the impacts to the policing of the strike, and this may be a result of the police being the arm of the State closest to daily aspects of the Strike, and often the first in a series of steps which led to the greater impacts of conviction, dismissal and loss of career. In meetings, it became apparent that the Crown (Procurator Fiscal), judiciary, legal profession and NCB were also implicated by miners as authors of the various impacts of the Strike.
Of course, looking at this takes us beyond the strict limits of our Terms of Reference but we considered it necessary to include this chapter because of the impossibility in some cases of isolating impacts of policing alone and because these aspects came up at every meeting and in many of the responses to the Call for Evidence. As policing was an early part of the processes touching individuals, serving as a stepping stone to those processes which followed, we recognise these other parts of the justice system even if they involved subsequent and distinct decisions which moved the individuals on to further stages of increasingly adverse impact. In any event, it should also be borne in mind that the police were involved in subsequent parts of the justice system, for example in the preparation of reports to the Procurator Fiscal and statements, and giving evidence as witnesses in court or at tribunals regarding dismissal. It is therefore impossible to separate entirely the role of the police from that of the justice system itself. And the justice system, including the courts, Procurator Fiscal service and legal profession are all within devolved competence. All of this served to draw our attention to matters raised in this chapter as an aspect of the impacts of the Strike as well as part of its context.
The justice system is perhaps best understood as a series of different systems which, in theory, work together to achieve fair, just and proportionate processes and outcomes. For our purposes, the justice system means the police, Procurator Fiscal, defence lawyers and the judiciary. Once more, we start with quotes from miners which outline some of the lingering issues.
"Judiciary in cahoots with police"
"If no one was directing the courts, why were there so many arrests/sackings?"
"A judiciary set up against miners"
"all miners are criminals and should be jailed." (quote attributed by a miner to a Sheriff in Ayrshire, perhaps a version of the episode mentioned later in this chapter).
(quotes from miners at our public meetings).
An outline of the system of criminal procedure applying at the time of the strike is helpful, as current law differs in certain respects.
For those individuals who were arrested, there would usually, although not always, be a court appearance the next day (or the first day after the weekend or any public holiday). Some were released for summons (the report would be sent by the police to the Procurator Fiscal who could decide to issue a summons/citation to appear in court on a subsequent date), and some were released by the police on bail undertakings (they signed at the police station to accept that they would attend court on a specific date in the next few weeks). In all of these situations, the role of the Procurator Fiscal was important for the next stage following arrest. The Procurator Fiscal had to assess each case reported by the police and decide if there was sufficient evidence in law to justify proceedings, i.e. was there corroboration of a crime and the identity of the perpetrator. Thereafter, the Procurator Fiscal still had to decide if proceedings were in the public interest. The latter test may well have been applied differently in those days than now, especially as diversion from prosecution was not so common as it has become.
The Fife Constabulary Debrief Report dated 11 April 1985 commented on some of these police reports to the Procurator Fiscal.
"The subsequent Police reports compiled were on occasions of fairly poor quality."
If the decision was to take criminal proceedings against a miner, a summary complaint (document containing the charge or charges) would be prepared by the Procurator Fiscal and, if he had been kept in police custody, served on him at court, usually in the cells. Unlike petition proceedings (for more serious cases), the miner would be expected to enter a plea – guilty or not guilty – at the first appearance. A continuation without plea was possible but rather more unusual. If the plea was not guilty, a trial would be fixed and the only remaining question would be the crucial matter of whether the miner was to be bailed or remanded in custody for trial. This was a question for the Sheriff. A number of factors were relevant to this decision, not least the attitude of the Procurator Fiscal. If bail was opposed by the Procurator Fiscal, it would usually be refused. If bail was unopposed, it could be granted subject to special conditions identified by the Procurator Fiscal. Commonly, during the Strike, conditions would include not to return to the picket line from which a miner had been arrested.
Remand in custody was a possibility if the individual had previous convictions or was on bail. In particular, if a miner was on bail to stay away from a picket and was arrested back there in apparent breach of bail, a remand was perhaps even likely.
If the plea was guilty, the Sheriff could proceed to dispose of the matter, often, perhaps even usually, by way of a fine. In some cases, the Sheriff might order a Social Enquiry Report for more information before imposing a penalty. This final decision would involve taking into account all the personal circumstances of the miner, including what, if any, income he had.
Even away from the Strike, many who experience the justice system find it confusing and unfair, at least partly because of a lack of knowledge about how it works or is supposed to work. It is also generally recognised that any individual is at their most vulnerable immediately at the outset of detention. This adds to a sense of disorientation.
For a variety of reasons, including personal experience and stories of what happened to others, that perception was a common view of those who gave evidence to us. The perception of arbitrariness extended to miners whose involvement in the Strike brought them into contact with the courts, often for the first and only time in their lives. In terms of evidence, a vague, even apocryphal, sense of unfairness in the justice system may have been the only impact, had it not been for one well-known example which offered support for the idea of a system set against the miners. The example, which was mentioned frequently in evidence to the review, but is also vouched by a reported decision of the Appeal Court in Scotland, is the case known to lawyers as Bradford v McLeod. The case is probably better known by reference to the identity of the Sheriff (Sheriff David Smith, now deceased). It involved an appeal by 14 miners, one of whom attended our Cumnock consultation event, who had each been convicted of a breach of the peace in relation to attendance at a picket at Hunterston in the early stages of the Strike in 1984. Each man had been convicted by a Sheriff following trial. All 14 convictions were quashed on the basis that the Appeal Court accepted that justice had not been seen to have been done. This was because the Sheriff had been overheard by a solicitor at a social event in June 1984 stating that he would not grant legal aid to any miner whose application he dealt with in respect of a criminal prosecution. That solicitor raised the matter in court in a case involving a miner. The Opinion of the court confirms that the Sheriff refused legal aid to 7 of the 14 men involved in the appeal (he did not deal with any of the other legal aid applications relevant to the case). This pronouncement by the Sheriff was particularly significant because the Sheriffs in Kilmarnock had a policy of granting legal aid only if an applicant could establish in advance that he had a "serious defence" to the charge against him. The Sheriff's private declaration regarding miners might suggest that he had decided, even before seeing an application for legal aid, that their defences were without sufficient merit – at the very least, a clear appearance of bias –
"In my opinion, a reasonable person on hearing that the sheriff had made that observation would be likely to conclude that the sheriff was biased so far as cases involving miners were concerned. Indeed the generality of the observation is such as to create in the mind of a reasonable man a definite suspicion that the sheriff may have such a bias. As explained… in the passage quoted above, that is sufficient to disqualify a judge from performing his duty even though as matter of fact the judge is not biased. I appreciate that at the time when the sheriff made the observation about legal aid, he had no reason to suppose that he personally would be involved in the determination of legal aid applications by any miners as he was not the nominated legal aid sheriff at Kilmarnock for the year in question. In my opinion, that does not matter since the important question is the effect that hearing the observation would have on a reasonable person…
"It follows that the convictions cannot stand. It is a tribute to the law in Scotland that there are so few recorded cases where it has been alleged that justice has not been seen to be done. This case may serve as a reminder that the law in Scotland is jealous of its reputation for doing justice and for ensuring that justice is seen to be done; it may also serve to remind judges that if justice is not merely to be done but is to be visibly done, they like Caesar's wife must be above suspicion." (Lord Justice-Clerk, Lord Ross)."
The decision of the Appeal Court reads as being of a different age, with niceties around private conversations at social gatherings seeming to cause almost as much concern to the Judges as what the Sheriff actually said, with its disturbing implications. Nonetheless, the case, involving 14 men involved in the Strike, has left an understandable and indelible mark on the collective memory of the mining community throughout Scotland. While many people leave court feeling aggrieved, very few are able to point to hard evidence of unfairness in how their cases have been handled or in justice being seen to be done. These 14 men were able to point at least to a strong perception of unfairness and, in turn, their experience has informed that of many who also feel that they were treated unfairly, even if they are unable to point to a specific unfairness in their own cases such as those dealt with by the Sheriff following his unguarded remarks suggestive of prejudice against all miners charged with a crime connected to the Strike.
In our consideration of the justice system, we have been careful to note that there is an additional factor which may not be quite so obvious as the Procurator Fiscal and the Sheriff – the defence lawyer. The defence lawyer played a part in most of these cases from an early stage. When the miners appeared in court, many of them were represented by a lawyer, whether the duty solicitor, a union solicitor or some other solicitor. That lawyer would offer advice on the key questions of how to plead, whether bail would be granted and what the penalty would be following a plea of guilty or a finding of guilt after trial.
These days, that lawyer and the accused person would be informed by a summary of evidence attached to the complaint served on the accused. This allows for a more meaningful discussion than would have been possible in the days of the Strike when the only information would be the bare terms of the charge and whatever could be gleaned from the miner, in far from ideal circumstances with an often confused and vulnerable man in custody for the first time in busy, noisy and disorientating cells in the court.
On the question of bail, the Strike pre-dates the impact on our courts of the Human Rights Act 1998 (given effect in Scotland from May 1999 through the Scotland Act 1998). This means that the attitude of the Crown was frequently given greater weight and less scrutiny than would be the case now.
From what we have heard, there were situations where the impact of the justice system on an individual developed as follows – if the first accused miner to appear from custody was refused bail on a plea of not guilty, and we heard of this happening, word would spread in the cells among other accused persons and in the court among the lawyers. This often resulted in reconsideration of a previously instructed plea of not guilty, as it was sometimes easier to obtain release by pleading guilty (which opened up the possibility of, for example, a fine to deal with the matter). Those already on bail, in particular if that was for a matter also related to the Strike, may well have been advised that they would be better off pleading guilty if their priority was to obtain their release. Following pleas of guilty, many men were indeed fined. We have heard complaints about the level of fines imposed which many are convinced were higher for some than fines for equivalent behaviour which was unrelated to the Strike but, for obvious reasons, a fine would almost always be considered preferable to a remand in custody.
Pleading not guilty would also involve at least the possibility of stringent bail conditions which would prevent further picketing.
Those who decided to plead not guilty faced trial, usually a few months after the initial court appearance but not uncommonly even later than that when cases were adjourned. Some of those who went to trial were also convicted with many convinced that they received unfair hearings, forming an impression that a guilty verdict was inevitable. We spoke to men who were acquitted following trial, with reasons varying from a lack of conjunction of testimony of police officers to impressions of a reluctance on the part of some officers to see men convicted, especially after the Strike had ended. The Fife Constabulary Debrief Report commented on acquittals as follows:
"The main reason for the Not Guilty verdicts has been the evidence of some Sergeants who have not prepared their presentation in Court. This is a fundamental mistake, but not restricted to our Sheriffdom. Others have been found Not Guilty by virtue of mistakes made by the Fiscal Service in that they preferred inaccurate charges against a few accused. What happened was that where an accused was charged with attempting to rescue a prisoner the Fiscal preferred a charge of Police Obstruction and the cases fell because of this."
We encountered men who regretted pleading guilty to charges despite protesting their innocence, given the immediate and long-term impact of the conviction on their employment and employability, matters which were not anticipated, certainly in the early days of the Strike.
We move on now to address the issue of dismissals by the NCB. It is worth bearing in mind that dismissal was not an inevitable or expected consequence, even of conviction. It appears to have become so by operation of a specific policy by the NCB in Scotland. There may have come a point in the Strike when it was understood that dismissal may well follow but, given what happened in England and Wales, there may also have been an anticipation of the possibility of reinstatement. Arbitrary and unjustified dismissal in Scotland, frequently without reinstatement, is the single-most adverse lasting impact of the Strike on those from whom we received evidence.
National Coal Board And Dismissal
"Police had full and certain knowledge that we would lose our job"
"Police said they didn't know – but everyone knew"
(quotes from miners at our public meetings).
(iv) "We find it unsatisfactory and anomalous that the Scottish Coal Board director has stated that his policy includes dismissals even where there are court acquittals; and sackings even before summonses to court. He has also stated that he will not feel bound by decisions of Industrial Tribunals favouring reinstatement."
(Brown/Rees Report, page 66)
We did not locate any official documentation from the NCB to confirm such a policy but we heard evidence to that effect from miners and it was a policy identified as far back as this report in 1985.
When miners had been processed in the justice system, for many that was not the end of the matter. A policy of dismissal was instituted by the NCB for those convicted, seemingly regardless of the penalty imposed. The same happened to some men who were merely arrested, with charges subsequently dropped and even some who were acquitted. The numbers and percentages appear at the start of this Chapter.
Despite this stage being distinct from the justice system, we have included it here because of its particular significance and because what preceded it in the justice system was used as justification for what followed.
Questions were asked at our meetings about the lines of communication between the justice system, either the Procurator Fiscal or the courts, and the NCB, given the remarkable efficiency in a largely pre-digital age in tracking arrests and convictions and arranging dismissal. One miner told us of a hand-delivered letter of dismissal from the NCB waiting for him behind the door when he got back from court. The suggestion was made at meetings that the Procurator Fiscal updated the NCB with information about court appearances. The speed of some dismissals supports the suggestion and appears to us to be credible.
Even leaving aside data protection and GDPR (General Data Protection Regulation) issues these days, such a line of communication would be troubling. Many arrests were reported in newspapers and it may be that this was another source of information.
Men were often, but not always, dismissed when the court had decided that a financial penalty would suffice by way of punishment. There are serious questions about the proportionality of this action, with many of the convictions being for crimes where the underlying behaviour could not readily be described as "gross misconduct" or the equivalent, such as might have been used to justify dismissal. Many miners believe that the NCB used the excuse of arrest, among other things, to carry out a cull of "troublemakers", with known union activists and officials featuring heavily in the arrests and dismissals.
It should be noted that the NCB was another arm of the State, albeit a statutory corporation established to run the nationalised coal industry in the UK, run, in theory at least, at arm's length from Government. The Chair during the Strike was Sir Ian MacGregor. In his autobiography, he speaks of regular contact with the Government, including the Prime Minister, during the Strike. He mentions discussions with her about the policing of the Strike and his concern that the police were standing back too much and failing to offer sufficient protection to the miners who continued, or returned, to work.
With the NCB, a part of the State, the dismissal of convicted miners was another impact of State action. Indeed, for many, this was the impact which distinguishes the 1984/85 Strike from those strikes which had gone before. Many miners thought that, after the Strike, they would simply be allowed to return to work. If so, they were to be quickly disappointed. Some found other work, but we heard from men who never worked again. "Blacklisting" was part of what men described when they attempted to obtain other work after the Strike, although it seems that the mere fact of conviction operated as effectively as a blacklist for some. Those who held positions in trade unions or had been particularly active during the Strike seem to have been disproportionately affected in this way too.
One name mentioned repeatedly in our meetings was Albert Wheeler, NCB Scottish Area Director during the Strike. We were interested in seeing if we might be able to talk to him, especially to better understand the processes within the NCB which led to the usually strict policy of dismissal for convictions and arrests, as well as lines of communication with the justice system. Unfortunately, when we made inquiries, Mr Wheeler was unfit to be interviewed. He died earlier this year.
Notwithstanding evidence from several miners in line with the quotes at the start of this section about police officers knowing that dismissal might follow arrest, we should record at this point that police officers who provided evidence stated that they were unaware, at least during the early stages of the Strike, that arrested miners would often be dismissed. When this became common knowledge, it was suggested to us by some officers that miners were sometimes "arrested" but simply released after a short while without formal processing. Officers told us that they considered dismissal from employment an excessive response to most of the behaviour they had to deal with.
The Impact Of Convictions
As will be seen from our Terms of Reference, the conviction of specific individuals was beyond our remit. We have noted the patterns of convictions, however, because they represent a real and continuing impact of policing, a visible "scar", albeit also of some of the other processes described above which followed on from policing.
Several hundred men were convicted, whether by plea of guilty or verdict of guilt following trial, mostly on summary complaint for breach of the peace.
The impact of convictions went beyond the men affected, touching their families and communities, both in terms of the financial consequences of dismissal and unemployment, as well as confidence in the police, judiciary and the State. As outlined, dismissals followed in many cases, with pensions reduced or lost and re-employment thereafter difficult or impossible to secure for many. This compounded a sense of arbitrariness, even injustice in some cases.
For those who seek to challenge individual convictions, avenues already exist, whether by late
appeal to the High Court or application to the Scottish Criminal Cases Review Commission ("SCCRC") to seek a referral back to the High Court – section 194C, Criminal Procedure (Scotland) Act, 1995: The grounds upon which the Commission may refer a case to the High Court are that they believe
(a) that a miscarriage of justice may have occurred; and (b) that it is in the interests of justice that a reference should be made.
During the period of the review, we sought to signpost individuals appropriately, without raising expectations due to the uncertainty of these processes, as well as the high attrition rate for applications, with only a small number of cases being referred back to the High Court by the SCCRC and not all of them resulting in the quashing of convictions. The small numbers are unsurprising for a number of reasons although it should be noted that the current system of independent assessment and investigation by the SCCRC is significantly better than what it replaced, namely review by Government. That system was seen as flawed for many reasons, not least the absence of proper independence and, in the SCCRC's 2019 Annual Report, it is highlighted that the referral rate by the SCCRC is 2,500% higher than that of its predecessor.
In fact, having checked the matter with the Chief Executive of the SCCRC in July 2019, over the period of the review there have been no applications to the SCCRC associated with the Strike. There may be a number of reasons for this, not least recognition of the practical and legal challenges, especially in relation to summary convictions from over 30 years ago.
The SCCRC performs a crucial role in our system, providing independent oversight of possible miscarriages of justice but its strengths – independence of investigation and assessment – are only effective in certain circumstances. It is significant for our purposes that the SCCRC is more effective when it comes to referring solemn cases back to the Appeal Court. That is because solemn cases necessarily produce more material which can be the subject of investigation, for example, transcripts of the Sheriff or Judge's Charge to the Jury or audio-recordings of the whole evidence in a trial. The SCCRC has also been most effective when considering cases which are relatively more recent than those from the Strike, where retention of records is more extensive than it was over 30 years ago or where retention periods have expired.
We have given this area further consideration and, as a result, it is now the subject of a specific recommendation. Taking into account the evidence we have heard and further exploration of the practicalities and legal technicalities of the process involved, we can no longer suggest that application to the SCCRC represents a practical and effective remedy for those with convictions arising out of incidents during the strike.
It was only towards the end of the review process that we reached this conclusion. It is informed in part by detailed consideration of the evidence we have heard as we prepared this report, including the absence of paperwork or documented evidence in the case of most individuals and the impact of the passage of time on the type of official records which would be a basic requirement for any investigation by the SCCRC. It will be noted that, unlike in solemn cases, there is no audio-recording of summary cases. Discussions with senior staff at the National Records Scotland, Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunal Service confirm that most relevant records (summary complaints, court minutes) will no longer exist owing to the passage of time and the fact that they involved summary procedure. The only other records which might exist would be the notes taken by the Sheriff. It is unlikely that many of these survive. In cases involving a plea of guilty, these notes would simply record the Crown narrative and any plea in mitigation. In trials which ended in conviction, it is unlikely that the Sheriff's notes would disclose anything which would be supportive of there having been a miscarriage of justice.
Thinking about the possibilities for some sort of basis for an application to the SCCRC, the only conceivable case would be if there was some fresh evidence. 34 years on it seems to us to be most unlikely that any such evidence would appear. It appears to us that most, if not all, applications by miners to the SCCRC would fail at the early hurdle of having to set out a stateable ground of review. It may seem strange to some but "actual innocence" is not in itself such a ground. While, in order to demonstrate that there may have been a miscarriage of justice and that it is in the interests of justice to refer a case to the Appeal Court, actual innocence may be an important starting-point, a "stateable ground of review" would have to involve something more – significant disclosure withheld by the police or Crown, defective representation by the defence lawyer or additional evidence being the likeliest possibilities.
The removal of the SCCRC for all practical purposes in addressing convictions relating to the Strike has caused us to reflect further, recognising that this has been a fundamental aspect of the understanding we shared with the Scottish Government about the relevant landscape to an important part of the impact of the Strike. This change in our understanding is the main reason we sought a further extension of time to complete our work as we wanted to make sure that any misconceptions were fully addressed and that we gave careful consideration to any prospects for reconciliation.
Our evidence-gathering has included aspects of impact arising from and around convictions connected to the Strike.
The numbers involved are not insignificant, albeit many men affected have died in the 34 years since the Strike.
In evidence we heard from some who accepted that they were punished for what they did, that they behaved in a manner for which a criminal penalty was acknowledged as appropriate. This included acceptance of disorderly behaviour with even some hints of violence, albeit without explicit admissions of violence by those who gave evidence to us.
In addition, we heard from, and about, those who were punished but insisted that they had done nothing. Sometimes caught up in general disorder caused by others and, in some cases, complaints of being targeted for arrest without having done anything at all and not even being near the relevant scenes of crime or disorder.
In addition to penalties imposed by the Courts, however, there were more severe penalties imposed by the NCB. Even those who acknowledged that their behaviour was criminal complained of the disproportionality of impact upon them of often relatively low-level disturbance or violence, with dismissal by the NCB adjudged an excessive punishment for any behaviour admitted or accepted.
One retired senior officer who attended one of our public meetings said that he was struck by the disproportionality of consequences as against behaviour, in particular those consequences related to employment. This is part of the lingering damage on affected communities. At a meeting with retired officers from four of the main areas affected – Strathclyde, Fife, central and Lothian and Borders – all of the officers said that there were men they would not have arrested if they had known then what the consequences would have been for them. We were left with the distinct impression that in a high number of cases (but not in each and every case) – whether a miner was arrested, was in reality a matter of chance. We were also satisfied that arbitrariness in the application of the criminal justice system extended further, for the reasons discussed above.
As stated above, the Kilmarnock case has entered into the institutional memory of mining communities, even in parts of the country other than Ayrshire. While aspects of that story have become exaggerated in the telling, the simple reality outlined in cold legal text is bad enough. It is easy to understand how one such example might become symbolic for arrested and convicted miners more generally. If the Sheriff's views, aired in private, were disclosed only because of the courage of one solicitor, in effect coming to public attention only by happenstance, or so the thinking goes, what other similar examples stayed beneath the surface, allowing unconscious or even conscious bias to warp outcomes for other miners?
In agreeing to this review, the Scottish Government has acknowledged a sense of moral responsibility for the lingering sense of unfairness which has become intertwined for some with institutions for which legal responsibility has been devolved. Looking in detail at the wider justice system as it impacted on, and was itself impacted by, arrested miners might require a separate review. The merits of such a review now would be limited, especially given the significant changes in personnel, legislation, policies and procedures in every part of the justice system. In any event, all it might tell us is that systems under undue and prolonged pressure cannot work at their best.
However, as it stands, we consider that we should offer some comment in this area, as well as a recommendation in our concluding chapter. The Strike placed demands on the police, Procurator Fiscal, defence lawyers and courts for which it appears they may have been ill-prepared. The number of prosecutions involved was significant and may well have skewed the system, in terms of delays if nothing else. The criminal justice system must be flexible enough to be able to cope with such unprecedented pressures in a manner which meets minimum expectations fairly. Of course, such pressures become less unforeseeable after they have persisted for a while. As the Strike continued, they became the norm, but we picked up no suggestion that the system had expanded to allow it to cope. Police cells were often filled beyond capacity (we heard of 15 to a cell on one occasion and the Fife Constabulary Debrief Report referred to the system becoming "overwhelmed with the volume of prisoners"), and miners were moved to other police stations to try to cope with the numbers. Arguably, such excessive overcrowding would now violate European Convention on Human Rights standards. Almost certainly, the Committee for the Prevention of Torture would be interested in such conditions.
It is inevitable, in a national event like the Strike, that discussions would take place in and between different branches of the State, for example, within the justice system, especially when it extended for a much longer period than might have been anticipated. It would not be unexpected to find that "policies" developed around matters such as bail and levels of fine. We understand that this happened. Apart from anything else, consistency and predictability in such matters are generally to be welcomed. For those affected by such policies, the benefits of consistency and predictability may be outweighed by implementation of the particular policy or level of penalty selected.
What we heard was of a system at times struggling to cope with the knock-on implications of the Strike. As with the policing of the Strike, it is difficult to isolate impacts for which the justice system alone is responsible. Nonetheless, as the police, justice system and NCB were all arms of the State, even if to varying degrees, it seems inappropriate for the State to avoid responsibility for any impact which can be attributed to the State by operation of various State actors but not attributed or attributable solely to any individual part of the State.
For many of those affected, the greatest disproportionality was inflicted by decision of the NCB as opposed to any part of the justice system but, as we have highlighted, the different State actors and processes were interlinked. The obvious remaining scars are the convictions. Consequently, we will return to the possibility of reconciliation by seeking to address at least some of the convictions.