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REPORT OF THE INQUIRY INTO THE LIAISON ARRANGEMENTS BETWEEN THE POLICE, THE PROCURATOR FISCAL SERVICE AND THE CROWN OFFICE AND THE FAMILY OF THE DECEASED SURJIT SINGH CHHOKAR IN CONNECTION WITH THE MURDER OF SURJIT SINGH CHHOKAR AND THE RELATED PROSECUTIONS

BY DR RAJ JANDOO, ADVOCATE

VOLUME 1: REPORT

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SP Paper 424

Session 1(2001)

 

13. FROM THE POLICE INVESTIGATION TO THE FIRST TRIAL

This chapter deals with police family liaison between the end of the police enquiry and the trial of Ronnie Coulter ("the first trial"), ie from 17th November 1998 to the beginning of March 1999. In this phase the police dealt separately with Mrs Sanehdeep Chhokar and her children and with Mr Chhokar and his family since these two distinct parts of the family had different needs after Surjit's funeral.

Between the End of the Police Enquiry and the First Trial

13.1 The Police Management Policy Book records that the police enquiry was concluded and the Incident Room closed down on Tuesday 17th November 1998.

13.2 After the funeral, which was held on Wednesday 18th November, Mrs Sanehdeep Chhokar returned to her own home with her children. The police therefore had two family units to deal with; the first was in Sanehdeep Chhokar's home and consisted of her and her (and Surjit's) two children, and the second, which was centred on Mr Chhokar's home and comprised Mr and Mrs Chhokar (Surjit's parents).

Mrs Sanehdeep Chhokar

13.3 The last meeting which PC Laverick remembered having with the family at Mr and Mrs Chhokar's house was the one at which Sanehdeep Chhokar had asked if the police could help her with the return of Surjit's belongings (paragraph 12.5). That meeting had been held at Mrs Chhokar's request. Thereafter PC Laverick's contact was with Mrs Sanehdeep Chhokar.

13.4 PC Laverick's evidence to me gives a picture of a strong trusting relationship being built with Sanehdeep Chhokar and her children -

"Once Sandy moved back to her own home I had numerous contacts with her and the two kids. The kids were calling me "Auntie Lynn". I was getting calls from Sandy when I was off-duty. She would sometimes go to the office but wouldn't speak to anyone but me."

13.5 In all, PC Laverick estimated that she had between 20 or 30 contacts with Sanehdeep after the funeral. These were at Sanehdeep's home, at PC Laverick's office and by telephone.

"I might have had contact with Sandy on 20 or 30 occasions after the funeral. This contact was sometimes once a week, sometimes twice a week and sometimes more or less frequently. I met her parents who had come over from India on one occasion. I also had contact with her over the return of the keys to the flat at Caplaw Tower [Surjit 's flat] and over the death certificate."

13.6 PC Laverick referred Sanehdeep Chhokar to PETAL -

"I also had contact through PETAL. ... Sandy became withdrawn. There were a few times when Sandy would not get out of bed to speak to us. The children were answering the front door. ... I had concern about Sandy and the kids. PETAL arranged for Sandy to work with them on a part-time basis."

13.7 Kate Duffy of PETAL confirmed this. She told me that PC Laverick had contacted her because

"She wanted someone to go round and visit Sandy and the children as she was concerned about their welfare".

13.8 PETAL also contacted PC Laverick to raise a concern about the behaviour of a defence precognition agent who interviewed Sanehdeep Chhokar on Wednesday 27th January 1999. Sanehdeep had been asked questions which she found distressing and which seemed inappropriate. PC Laverick told me -

"PETAL also contacted me regarding a concern over the defence precognition. We had explained to the family that they might be contacted by defence lawyers although I can't remember exactly when this was explained."

13.9 PC Laverick thought that the agents would only ask Sanehdeep about identifying the body and so did not warn her that awkward questions might be asked. There were three precognition agents (one for each accused). One of them asked questions about Sanehdeep and Surjit having separated, whether he had ever abused her and about her sex life. Neither Kate Duffy, who was at the interview, nor PC Laverick could see the relevance of the questions.

13.10 This is an area in which a bereaved person might look either to the police or to another organisation for support. Both PETAL and PC Laverick had considerable experience dealing with female victims in distressing situations. In this case it was PETAL who supported Sanehdeep Chhokar before and during the interview. I comment elsewhere (Chapter 30) on defence precognition agents.

13.11 PC Laverick explained that as Family Liaison Officer she would always offer assistance at defence precognition, for example she would explain the procedures involved and would offer to be present or offer the use of accommodation at the police office.

13.12 As part of the preparation for the trial, PC Laverick tried to contact Mrs Sanehdeep Chhokar beforehand and went to her house.

"I tried to speak to Sandy prior to the trial and went to her house. The house was empty and it was obvious she had moved without telling me. I think it came to a stage where I had to take a step back. Sandy was in contact with PETAL. Perhaps I was just a reminder of what happened to her husband. I was surprised that the house was empty. Sandy had mentioned to me on a previous occasion that she thought about moving to Glasgow to live with relatives. I was arranging lifts for the extended family prior to the trial but I was told by PETAL that transport for Sandy had been organised."

13.13 PC Laverick continued her Family Liaison Officer contact until Mrs Chhokar herself decided to discontinue it, as recorded by PC Laverick in a note for the Senior Investigating Officer -

"At about 1230 hours on Monday 26 April, I received a call from Kate Duffy at PETAL. She initially contacted me to ensure that the death certificate for Surjit Singh Chhokar which Sandy Chhokar gave to the police to be handed to the PF prior to the trial was returned to Sandy and not to the deceased's parents.

She also stated that Sandy Chhokar had asked Kate to inform me that she was more than satisfied with the assistance that she received from the police at the time of Surjit's murder and wanted us to know that the problems which are on going are not instigated by her.

Also apparently Sandy Chhokar has moved ... to live with an uncle. There is no forwarding address."

13.14 I have a number of comments on this evidence -

· The Family Liaison Officer carried out her proper function: she put her client, Mrs Chhokar, into contact with a support organisation (PETAL, in this case) and worked flexibly with the organisation; she made herself available to the client, and specifically offered support at the stages of defence precognition and before the trial. Although she apparently treated the Family Liaison Officer commitment as open-ended, it was brought to an end by the client when the client was satisfied and ready to do so.

· PC Laverick's previous experience as a Family Liaison Officer and in the Female and Child Unit was specially relevant and valuable in this case.

· The Senior Investigating Officer appears to have been content to let PC Laverick deal alone with Mrs Chhokar, although the policy was that Family Liaison Officers should always work in pairs. This was less critical at the stage where the police investigation was complete, but the decision should also take account of the effect on the Family Liaison Officer when asked to work alone. Such decisions should always be taken with care. In this instance I am satisfied that the decision was right.

Mr Darshan Singh Chhokar

13.15 Mr Chhokar was in a different position to that of his daughter-in-law. After the funeral, Sanehdeep was living with her children. She had little contact with the rest of Surjit's family. She had turned to PC Laverick and to PETAL for support. Mrs Duffy told me "the relationship between Sandy and Surjit's parents was difficult. I understand that the father would contact her periodically but this was mostly to lay blame, for example, if Surjit had been at home with his wife this would not have happened". Mr Chhokar and his family had each other and their community.

13.16 Mrs Duffy confirmed this to me, "I spoke to my colleagues and they had explained to Sandy that there were other people available to help if, for example, the parents wanted support. When they went back to see Sandy, she said that the parents would get support from their own community". It is, therefore, unsurprising that the level of contact given by the police differed considerably between the two.

13.17 After the funeral, the police did not have any immediate reason to initiate any contact with Mr Chhokar. Mr Chhokar was given contact details so that he could get hold of the police to raise any concerns or questions which he might have.

13.18 The only recorded contacts with Mr Chhokar, between the funeral and the trial, appear to have been two telephone calls from him, both of which were taken by DC Owen Bradley. DC Bradley had been involved in the investigation, but was not a Family Liaison Officer. DC Bradley did not refer or report the calls to the Family Liaison Officers, and since his account to me is the only record of what took place I shall quote it in full -

"I can't remember the exact dates of the telephone calls but it was before the first trial. I think the first call was about one month before the trial. Mr Chhokar phoned Wishaw police office. The call was made to the CID. Any officer present would have picked up the phone. The caller identified himself and said, "I'm Mr Chhokar, my son has been murdered". I said to him that I knew who he was. I have never seen or spoken to Mr Chhokar before but everyone in Wishaw CID at that time would have known who Mr Chhokar was.

He asked me about the date of the trial. The citations could not have been out yet as I and the police did not know the date of the trial. I asked him for a note of his telephone number and explained that I would phone the Procurator Fiscal to find out and would then phone him back.

I then phoned the PF's office to confirm the date. I told them that Mr Chhokar had been on the phone. I was told when the sitting was to start. I don't remember who I spoke to.

I phoned back Mr Chhokar within 5-10 minutes and explained to him when the sitting started. I explained that although the sitting was starting on, for example, 2 March, the trial may not start that day because the court may be busy. I told him the trial might not start until a later date.

I would say that Mr Chhokar's English was pidgin English. I did not have a difficulty understanding what he was trying to tell me. I do not remember having to repeat myself and he appeared to understand what I was telling him.

The second telephone call was made nearer the time of the trial. Mr Chhokar again phoned the CID. This time he asked if he could attend court and sit in. He implied that he had an interpreter and wanted him to sit in too. I asked him if he was a witness because if he had been he wouldn't have been allowed to sit in court until his evidence had been heard. Mr Chhokar said that he was not a witness but I told him that I would phone the PF's office to confirm that. Again I said that I would phone him back.

I phoned the PFs office and was told that Mr Chhokar was not a witness. I think I spoke to one of the precognition officers, Ian Main. I explained to the PF's office that Mr Chhokar was wanting to sit in with an interpreter at the trial and I was told that that would not be a problem.

I phoned Mr Chhokar back within 5-10 minutes and explained to him that he could sit in court as he was not a witness. I asked him if he needed an interpreter and explained that the police or the PF could provide one. He said that he had an interpreter. I can't remember if he said it was a family member. I was asking him and reinforcing that the police could provide an interpreter in case he was paying for his own interpreter. He appeared to understand what I was saying and said that he had an interpreter. I told him that if he required any further assistance he could contact the police. I was making it clear that someone could assist him if required."

13.19 DI MacIver confirmed to me (in his written reply to my questions) that DC Bradley had reported the conversations with Mr Chhokar to him; and the matter had rested there. DI MacIver's statement to me said that there was no need to involve the Family Liaison Officers with requests that had been dealt with. DCI Michael also told me -

"I do not think DS Duffy would have to know the information about Mr Chhokar phoning. Owen Bradley had dealt with that via the PF. The FLO withdraws until he is required again for a specific purpose."

13.20 The telephone calls raised two issues -

· whether Mr Chhokar was a witness, and

· his wish to bring an interpreter.

Attendance as a witness

13.21 When I interviewed DC Bradley in January 2001, he told me (as quoted above) that he asked the Procurator Fiscal's Office whether Mr Chhokar was a witness and that he was told that he was not. I do not believe this, for reasons which I shall state. Mr Chhokar appeared on the indictment as a witness and therefore could not be excused unless by the Advocate Depute with the consent of the defence. There is a statutory presumption that a court will accept the identification of the victim's body without calling witnesses to that effect.13 However, Crown Counsel may still decide to call a witness to that effect and the defence may ask that identification be confirmed in court. In practice, because of the time at which the papers reach Crown Counsel, such decisions take place very close to, or on, the day of the trial. When Mr Chhokar called therefore, no-one would be in a position to say whether he was to be a witness or not.

13.22 If the Procurator Fiscal's Office had been asked a question about a particular case, the question would have been referred to the person responsible for the case or to the administrative staff. Alan MacDonald was the Procurator Fiscal Depute who was responsible for precognoscing the case. He can remember no call from DC Bradley. If the call had gone to a member of the administrative staff they would have checked the indictment, on which Mr Chhokar appeared as a witness.

13.23 In the light of this discrepancy between DC Bradley's account and standard prosecution procedures I sought clarification from DC Bradley in September 2001. I put it to him then that, if his question had been phrased along the lines of 'I have just had someone on the phone, wanting to know about a forthcoming trial. He says that he's not a witness and was asking whether he could bring an interpreter to help him', it would simply be asking for a general principle, namely, can an observer bring their own interpreter. In that case, the person who took the call in the Procurator Fiscal's Office would have no need to look at papers relating to any specific case: they could simply address the principle and say that that was all right, which would mean no more than that the person could bring an interpreter.

13.24 However DC Bradley said that he had certainly not phrased his question in those terms but had asked specifically whether Mr Chhokar was to be a witness. He said -

"I'm positive it was Ian Main I spoke to. They [the Procurator Fiscal's Office] asked if Mr Chhokar wanted an interpreter. I asked Mr Chhokar and he said it was OK - 'I've got my own'."

13.25 Accordingly, I then interviewed Mr Main, a Precognition Officer in the Hamilton Procurator Fiscal's office. I asked him how he would respond to a suggestion that a police officer had spoken to him about the case, about the deceased's father, whether he was a witness and his need for an interpreter. Mr Main said -

"No, I have had no dealings with the case whatsoever. If I had an enquiry then I would have spoken to the person dealing with the case, Alan MacDonald. The only other person I know who had dealings with the case is Angela Matthews and only because she went to the High Court case. I never received a phone call like that."

13.26 I then put it to Mr Main that it was suggested that the police officer had called the Hamilton Office, that the officer was positive it was Mr Main he had spoken to and that Mr Main had asked whether Mr Chhokar wanted an interpreter. Mr Main said -

"I have no recollection of that at all. That would be the sort of thing I would remember. I have been a precognition officer for fourteen years and I would remember cases where an interpreter was needed. It would also stand out because this was not my case.

It was never asserted by me, `Does Mr Chhokar need an interpreter?'"

13.27 I then asked him in general what he would do if he was asked whether an individual was a witness in a case which was not his own. He told me -

"It would depend on the circumstances. I would try to speak to the person who had been allocated that case. [If that precognoscer was not available] I don't think I would do anything with it, however, unless it was a matter of urgency. If it was important then I would refer it to the Principal Depute in the Solemn unit. I could get access to the computer but only if the statements in the case had been sent in by email. Otherwise I could try to find the case papers.

I have never seen the case papers in the Chhokar case.

Initially in the precognition process, the precognoscer decides who should be a witness. If the case had been to Crown Office and the trial was only weeks away, as has been suggested to me, then the decision is that of Crown Counsel. Up until the case is allocated to an Advocate Depute (which can be days or hours before the trial), then those decisions are made via the High Court Unit at Crown Office. If someone had been given a witness citation, then there would have to be an enquiry by that person as to whether they were necessary as a witness. There is no way we could go to Crown Office and say that the person simply didn't want to be a witness. There would need to be a reason."

13.28 Finally I asked Mr Main whether he had received a phone call from DC Owen Bradley between January and March 1999 regarding the Chhokar case and, in particular, about whether Mr Chhokar was a witness and needed an interpreter. Mr Main said -

"I know Owen Bradley and have spoken to him about literally hundreds of cases. I did not receive a phone call from Owen Bradley about this."

13.29 I found Mr Main a clear-minded and candid witness.

Offer of an interpreter

13.30 DC Bradley told me, in his interview in January, that he "was reinforcing that the police could provide an interpreter in case he was paying for his own interpreter". This was not normal police practice. DCI Michael told me that he thought that it might have been inexperience on Owen Bradley's part which led him to suggest that the police would provide an interpreter. ACC Pearson told me -

"We do not normally offer interpreters in those circumstances. If someone like Mr Chhokar comes on to the telephone and remarks that he is thinking about getting an interpreter, I think the reaction of the police officer would be, 'is he paying for that?'. The police have access to an interpreting service and could have accessed that for Mr Chhokar. Where the individual is the deceased's victim's father there would be humane reasons for the police wanting to do something to assist. I do not know if that has happened in other cases, it probably has but I do not know."

13.31 In September I put it to DC Bradley that it was not normal practice to offer an interpreter, he said -

"I wouldn't have known. I would have thought it was the police or PF's obligation to provide an interpreter. I made the assumption that it was."

Commentary

13.32 DC Bradley's accounts of what he said and did are internally inconsistent, improbable, and contradicted by other evidence. I did not find him an honest witness. All that is certain is that he did take phone calls from Mr Chhokar; and it is probable that these concerned Mr Chhokar's attendance at court, possibly as a witness, and the presence of an interpreter. Most significantly, from the point of view of this Inquiry, we are left without any clear idea of what was on Mr Chhokar's mind when he made those calls, and without any idea at all of what information he got from them.

13.33 In my view this episode represents an almost total failure in police family liaison. There were Family Liaison Officers designated, but they were not even told about these calls. DC Bradley, who had no previous contact with the family, took it on himself to deal with matters which were outwith his responsibility and beyond his ken; whilst the Family Liaison Officers, who had laid the basis of a good relationship with the family, were left unaware of the significant facts that the family was now beginning to be concerned about the trial and about having an interpreter present. Likewise, the officer dealing with the case in the Procurator Fiscal's Office, Mr MacDonald, was told none of this.

13.34 My immediate concern at this point is the possible impact of all of this on Mr Chhokar. Having telephoned the police he may have been given the impression that he would not be a witness. He would have expected to go into the public gallery of the court and to observe the trial about the death of his son, which in itself would be distressing. However, unknown to him apparently, there remained the possibility that he might still be called as a witness. If he felt the need of an interpreter in order to follow proceedings as an observer he would have had all the more need of one to deal with the considerably more stressful position of giving evidence. If he had been required to give evidence there was a probability that, in the absence of an official interpreter, he would have been unable to do so. He was therefore likely to be made to feel embarrassed, distracted, distressed and humiliated in public.

13.35 Two general points emerge from this episode -

· It demonstrates the need, which emerges at other points in this narrative, for a more structured system of communication and liaison between the Procurator Fiscal and the police, from the earliest stages of an investigation right through to trial, and in particular with police Family Liaison Officers.

· Internal communication within the police team dealing with a case is also essential, and specifically so as to ensure that Family Liaison Officers are kept informed of all matters related to their responsibilities.

The trial of Ronnie Coulter

13.35 There was no police liaison presence at the first trial. PC Laverick, who was on leave at the time of the trial, knew that PETAL were supporting Sanehdeep Chhokar. I have no evidence that the police established whether Mr Chhokar and his family required any assistance. The telephone calls which Mr Chhokar had made to DC Bradley showed that he was contemplating attending the trial, so the police knew that this was a possibility; but I have no evidence that the Family Liaison Officers or anyone else in the police followed this up.

13.36 It is of course the case that the trial itself is the responsibility of the Procurator Fiscal, and therefore it is likely that police family liaison will have a diminished role, at most, at this stage. However, I consider that there ought to be protocols established to determine the link between the duties of the Procurator Fiscal Service to families and those of the police, and I so recommend.

13. POLICE FAMILY LIAISON: FINAL MEETING WITH THE FAMILY

This chapter describes the final meeting between Family Liaison Officers and the family, shortly after the first trial. The meeting was difficult for the police and unsatisfactory for the family; and the police then abandoned any attempt to continue family liaison.

A meeting at the Chhokars' house

14.1 The trial of Ronnie Coulter ended on 9th March 1999. The comment made at the end of the trial by the judge, Lord McCluskey (see paragraph 18.17 below), attracted sensational media coverage and put the case, and with it the Chhokar family, into full public view. As noted in Chapter 19, the family's own point of view, articulated mainly by Manjit Sengha, was being reported in the press from 11th March onwards14. Comments by Aamer Anwar were also reported from that date. The family's disappointment and shock were public knowledge from then on.

14.2 Six days after the end of the trial, on 15th March, DS Duffy was instructed by the Senior Investigating Officer to telephone the family and arrange a meeting. DS Duffy's understanding of the purpose of the meeting and his role in it was simply "to answer any questions they [the family] may have had regarding the trial." I was told by ACC Pearson that this was a relatively routine procedure -

"It is not unusual for an FLO to go back to a family post trial. There is sometimes just a need for an officer to go round and explain things to the family rather than leaving them with unanswered questions. There would also be unresolved issues such as the return of property and productions. Family liaison can sometimes resolve these questions and there is also a greater freedom for the FLO at that stage to express his/her views because the case would no longer be sub judice."

14.3 I assume that the police felt that a meeting was particularly advisable in this case so as to demonstrate that, notwithstanding the public criticism of the Crown over the trial, they themselves had discharged their duty to the family. However, if this was their purpose in offering a meeting, they were pitifully unprepared for the meeting itself. DS Duffy gave me a full and vivid account of it, which I shall quote at length and then comment upon. He said -

"At about 10am the following day [16th March] I asked Julie Edwards (an officer at the Female and Child Unit at Motherwell) to come with me to the meeting with the Chhokar family. We went to Mr Chhokar's house and were taken into the living room. Manjit was there along with another man who I now know to be Mr Aamer Anwar.

I told them the reason that I was there, that is, to answer any questions they may have had regarding the trial. Mr Anwar was the one doing all the talking. His whole tack was, 'in light of the Stephen Lawrence Inquiry ...', 'in light of the Macpherson Report ...', 'why was this not done...'.

I asked him who he represented and he replied the Chhokar Family Justice Campaign. I told him why I was there but he said, 'you haven't been here for five months'. He was asking me questions I could not answer. There were still two people to come to trial. He then started talking about a meeting he had had with Lord Hardie and kept going on about the Macpherson Report and the Lawrence Inquiry.

I said to him that I would take a list of questions he wanted answered and that a meeting could be arranged with the SIO. He asked me why I wanted a list of questions and I explained to him that some of the questions may take a while to research.

Mr Anwar kept going on about race. I kept saying that race was not an issue.

...I can see what Mr Anwar is doing and I do not have a problem with it. However, this was totally unexpected by me. The previous meetings had been amicable but to be suddenly faced by Mr Anwar in full flight, having a go at me, was a different situation. I think he was trying to have a go at the police, the PF, at everybody but I was the first person he met. The Campaign had only been formed the day before. I said I would report back to my boss.

... I did not resent him being there. If I had been in the same position as the Chhokar family, I would have wanted someone to ask questions for me. But everything I said, he was not happy with ...

He was saying that I had no contact for five months. As far as I was aware the family had been dealt with by Lynn Laverick. I assumed that Mr Chhokar would have contacted the police if he had required anything.

I went back to the SIO and told him that I had been "ambushed". No amount of briefing would have prepared me for that. I felt I had been used. Manjit had originally arranged the meeting to be held at Bishopbriggs but phoned me back to say that the meeting would now be in Law. I feel she orchestrated it. I was disappointed because I felt I had gained the respect of the family. I saw Mr Anwar as a very angry man with a set agenda. I felt Mr Chhokar had been dragged along. Manjit may have been there of her own volition.

I spoke to the SIO and he wanted me to get questions from Mr Anwar. I phoned Mr Anwar ... later that day. DI McConnell happened to be there and I asked him to sit in to listen to what I was saying. I wanted to make sure that someone knew I wasn't being abusive to Mr Anwar. DI McConnell did not hear what Mr Anwar was saying. If DI McConnell had not been there, I would not have got anyone else. He just happened to be there. I was a little concerned that Mr Anwar might put words on paper that I have never said.

The SIO was asking me to find out specifically what questions Mr Anwar wanted to discuss at the meeting which could be set up.

The phone call was also based on the whole race issue. He did not put any specific questions regarding the preparation of the case or the police involvement in relation to the trial, apart from the question about why was there not a charge regarding theft of the cooker. He had a race agenda. He was trying to push this as a sole agenda.

Manjit never said to me on the phone that there would be a representative from the campaign there. Indeed, I half expected Sandy to be there - maybe that was naïve. Mr Anwar never mentioned Sandy at all. Sandy disassociated herself with the whole thing. She was happy with the treatment she had been given. Indeed there is a note on the file of a telephone call received from PETAL which says that Sandy had no problem with the police.

It was not an interview at Mr Chhokar's house. It was a group of people in a room. I would regard it as a meeting rather than interviewing - a meeting with the Chhokar Family Justice Campaign. It was never a meeting between the FLO and the family. If it had been known that the Chhokar Family Justice Campaign would be there, I would never have been instructed to go. No dialogue was exchanged between me and the family."

14.4 DS Duffy accurately saw that this was a meeting with the Campaign, rather than a liaison meeting with the family; for it was reported the next day, in the following terms (in the Scotsman) -

OFFICERS from Strathclyde Police yesterday met the family and supporters of the stabbed Sikh waiter Surjit Singh Chhokar to discuss their worries about the case.

But the meeting at the home of Mr Chhokar's parents Darshan and Gurav ended within minutes, after Aamer Anwar, a spokesman for the newly formed Chhokar Family Justice campaign, asked for more details about why the police investigation discounted racist motives for the attack.

Last night Mr Anwar said that the family was now hoping to ask the same question of the CID chief inspector in charge of the case.

"We asked how the police investigated it and how they explained it," said Mr Anwar.

"They said that the family didn't raise the question of racism at the time of the killing.

"We said that it didn't occur to them at 1am when they had just been told their son was dead.

"The question of racist motivation has arisen in the light of everything else that has happened over the last few months, with the Stephen Lawrence case.

"Strathclyde Police has recently publicised its improved monitoring of racist incidents.

In the light of this case, I feel that is a farce."

Commentary

14.5 It is little surprise that this meeting went badly, quite apart from the intervention of the Campaign, since the groundwork for it had never been laid. The press article pinpointed the weakness in the police handling of the race question, which I have dealt with at length in Chapter 6 above. Mr Anwar's attack, as recounted by DS Duffy, though harsh on the individual officer, and not entirely honest (there had been no meeting with the Lord Advocate), was not without justification in respect of the police corporately.

14.6 The police also were completely unaware of the almost total failure of the Procurator Fiscal's Office to establish family liaison with the Chhokars, and would have been quite unable to deal with the questions the family would be likely to raise, even without Mr Anwar's intervention. I shall show, in my commentary on the Procurator Fiscal's Office, that one reason why they failed was that they had no contact with the police Family Liaison Officers. The conclusion to be drawn is that the whole system failed in this matter. The remedy is equally obvious: that there must be a channel of communication established between police family liaison and Procurator Fiscal, from the point at which the case is reported to the Procurator Fiscal and continuing until court proceedings are finished.

14.7 As regards police family liaison in general I have the following observations -

· The police have to be prepared to encounter pressure groups and campaigners in the course of family liaison. DS Duffy was taken by surprise - `ambushed' - by this meeting, but his response was basically correct. He accepted that a family has to be taken on its own terms, and if it wishes to be associated with a pressure group or a campaign that is its right. The police however are there to listen to the family and to respond to them, and cannot get drawn into argument with a campaign.

· DS Duffy's response to the situation was appropriate. He had evidently had some briefing on questions which might arise - his remark that "there were still two people to come to trial" is evidence of that. Mr Anwar put other questions to him for which he did not have an answer - since they are not recorded I cannot comment on that - and it was a reasonable response to offer to take them later. DS Duffy was also prudent to have a colleague sit with him during his subsequent telephone conversation with Mr Anwar, lest he be misquoted in the press.

· Although I accept that DS Duffy did right to withdraw from this meeting as he did, I note that the police thereafter simply abandoned the attempt to maintain liaison with the Chhokar family at this point; and I do not accept that that was good practice. Family liaison should continue until the end of proceedings, and in this case proceedings were to run for a further 18 months. Family liaison should have an `exit strategy': what it is, will depend on the circumstances of each case, but it is no strategy simply to leave the field.

Sanehdeep Chhokar

14.8 Surjit's widow, Sanehdeep, was not present at the meeting on 16th March. She had been in regular touch with the other Family Liaison Officer, PC Laverick. On 26th April, Kate Duffy, PETAL, telephoned the police on behalf of Sanehdeep to ask that the death certificate be returned to Sanehdeep rather than to other members of the family. Kate Duffy said that Sanehdeep had moved and that she did not want the police to have her new address. She said that Sanehdeep had asked her to tell PC Laverick that she was more than satisfied with the assistance which she received from the police at the time of Surjit's murder and, in a reference to the public statements being made by Mr Anwar on behalf of the Chhokar Family Justice Campaign, she dissociated herself from the criticisms then being made of the police.

14.9 This concludes my examination of police family liaison in this case. The next nine chapters are a parallel examination of the dealings of the Procurator Fiscal Service and the Crown Office with the Chhokar family.

14. INTIMATION OF THE MURDER TO THE PROCURATOR FISCAL

This chapter describes the involvement of the Hamilton Procurator Fiscal's Office in the immediate aftermath of the murder. It does not directly involve the relatives of Surjit Singh Chhokar, but is essential background to the later dealings of the Procurator Fiscal Service with them.

At the scene

14.1 In the investigation of any serious crime, and particularly in a homicide case, the Procurator Fiscal is necessarily involved from the earliest stage. In a murder case, he has control over the disposal of the body while he makes enquiries into the death: and accordingly he (or one of his deputes) is normally summoned to the scene of crime in order to ensure that a full and proper investigation is carried out and that evidence is properly identified and preserved. It is for him to decide whether it is necessary to leave the body at the scene or to have it removed to a mortuary, and he will direct and supervise the post mortem. The Procurator Fiscal's advice and assistance may also be required in making "out-of-hours" applications to the Sheriff to obtain search or other warrants.

14.2 As noted above (paragraph 5.11) Mr Slowey, Procurator Fiscal Depute at Hamilton, who was the Depute `on call' for urgent out-of-hours business that night, was notified of the incident at approximately 0030 hours on 5th November 1998 and arrived at the scene at 0120 hours. The detail of his activity is not recorded, but it appears that he was consulted later in the night (paragraph 5.15) over the possible requirement for a warrant to seize items from the home of Andrew Coulter.

The post mortem

14.3 The post mortem on Surjit's body was carried out at approximately 1315 hours on the afternoon of Thursday 5th November. Mr Ian McCann, Procurator Fiscal Depute, attended in the course of his normal duties as head of the Deaths Unit at Hamilton Procurator Fiscal office.

The Sudden Death Report

14.4 The police are required to submit a "Report of a Sudden Death" to the Procurator Fiscal in respect of all sudden, suspicious, accidental, unexpected or unexplained deaths coming to their attention. This includes homicide cases. The report in such a case will contain the following information (if known at the time the report is made):

· Date of death

· Deceased's name, address and date of birth

· Details of any spouse, including name, address, age and occupation

· Details of the next of kin (if not the spouse)

· Time, day, date and place of death

· Registrar's district

· Details of the deceased's father, including name and occupation and whether alive or dead

· Details of the deceased's mother, including name, maiden name and occupation and whether alive or dead

· Cause of death (and duration of illness, if appropriate)

· Details of the medical practitioner certifying the death

· Details of the deceased's G.P.

· Hour, day, date and place of burial/cremation

· Details of the undertaker

· Name and address of employer if the death resulted during the course of employment.

14.5 The report will provide a summary of the facts including details of the deceased's background, relationships and medical history. The report will then give a description of the events leading to the death as known to the police at that time.

14.6 The report will also contain a list of witnesses which may include, for example, the next of kin, doctors, any eyewitnesses to the events leading to the death and the police officer(s) reporting the death. If the body has been identified it will also provide the details of those persons who identified the deceased.

14.7 The Sudden Death Report on Surjit Singh Chhokar was prepared by the police on 5th November 1998 and a copy was given to the pathologists. The police e-mailed a copy of the report to the Procurator Fiscal's Office and this was received by that office at 0914 hours on 6th November 1998. It gives Surjit's address as 24 Garrion Street, Overtown, Wishaw, identifies Mrs Bryce as a witness, also at that address; but it also identifies Sanehdeep as the next of kin, gives her address, notes that there are two children from the marriage, and identifies Darshan Singh Chhokar as the father of the deceased (without his address, since the form does not require it). It describes Surjit's relationship with Mrs Bryce, and his continuing relationship with his wife, as follows -

"During March 1998 the now deceased separated from his wife and obtained tenancy of the local council dwellinghouse at 65 Caplaw Tower, Wishaw. This separation was amicable and the now deceased returned to visit his wife on a regular basis.

The now deceased had had a long term relationship with the witness Elizabeth Bryce and of late, the house at 65 Caplaw Tower, Wishaw, has simply become a postal address... the now deceased having moved into the house of his girlfriend, Elizabeth Bryce"

The Case Report

14.8 The "case report" (or "custody case report", in a case where the accused has been arrested by the police and is held in custody) is the report which is submitted by the police to the Procurator Fiscal alleging criminal conduct on the part of an individual. It details the particulars of the accused, draft charges, the circumstances giving rise to the alleged criminality, the evidence against the accused, details of witnesses and details of any previous convictions or outstanding criminal cases. In general, the criminal case report, together with any other information obtained as a result of further enquiries etc, will form the basis of the Procurator Fiscal's decision whether to institute criminal proceedings against the suspect.

14.9 A custody case report against the accused Andrew Coulter was received by the Procurator Fiscal's Office on 6th November 1998. A further custody case report was received on 9th November in respect of the accused David Montgomery. This report also requested a Petition Warrant for the arrest of the accused Ronnie Coulter who had not yet been apprehended. These custody case reports were submitted on paper, not by e-mail.

Commentary

14.10 These were all normal routine procedures, which appear to me to have been in good order and adequate. What is significant from the family's point of view is that Surjit's wife and father are both identified - the wife as next of kin - as well as the fact that there were children, and the relationship with Elizabeth Bryce is delineated.

15. PROCURATOR FISCAL'S OFFICE: THE FIRST WEEK

This chapter examines the handling of the murder case by the Procurator Fiscal's Office in the week following the murder, up to the point where the decision was reached that Surjit's body could be released for cremation, on 13th November 1998. (The parallel account of police activity during that period is at chapters 11 and - especially - 12 above.)

Background - organisation of Procurator Fiscal's Office

15.1 In order to make the following narrative clear I shall need here to explain something of the organisation of the Hamilton office at the time in question. The account which follows is not exhaustive, but indicates the functions relevant to this Inquiry.

15.2 The office was divided into four main Units - the Solemn Unit, the Case Marking Unit, the Summary Proceedings Unit (which does not concern this Inquiry) and the Deaths Unit, each headed by a Principal Depute. Procurator Fiscal Deputes rotated between the units, normally on a quarterly or half-yearly basis.

The Case Marking Unit receives reports from the police in relation to crimes and decides whether to institute criminal proceedings, or whether further enquiries have to be conducted, and instructs these where necessary. The Unit also deals with enquiries from the police and others.

The Deaths Unit receives reports of sudden, suspicious, accidental, unexpected and unexplained deaths. The Unit will make enquiry as to the cause and the circumstances of the death. Legal staff will decide whether a post mortem is to be conducted or further enquiry made into the circumstances. Deputes will consider whether a criminal prosecution is to be brought in connection with the death or whether a Fatal Accident Inquiry is to be held. The Unit will also make decisions regarding release of the deceased's body and whether the release is for burial or cremation.

At the time of the Chhokar case, the Deaths Unit in Hamilton consisted of one Procurator Fiscal Depute (who was Acting Principal Procurator Fiscal Depute) and one member of administrative staff.

The Solemn Unit is responsible for the investigation and preparation of serious cases passed to it by the Case Marking Unit. Once an accused has appeared on Petition and been committed either for further examination or until liberated in due course of law, the papers will be passed to the Solemn Unit for precognition. This process involves a full investigation of the circumstances surrounding the case by obtaining and examining relevant productions and interviewing witnesses. Precognition work is carried out both by Procurator Fiscal Deputes and by non legally qualified Precognition Officers. Once the investigation is complete, a document containing all relevant information is prepared by the precognoscer and sent to Crown Office for the consideration of Crown Counsel.

At the time of the Chhokar case, the Unit was staffed by a Principal Depute, three Procurator Fiscal Deputes and four Precognition Officers, one of whom was on maternity leave, and administrative staff.

Narrative

15.3 I took evidence about the Hamilton office's involvement during the week in question from Ian McCann, Procurator Fiscal Depute in charge of the Deaths Unit. He explained to me that the business would normally have been dealt with by the Marking Unit, but that he agreed to take some of it -

"...questions regarding the release of the body would normally be the responsibility of the Marking Unit or the person in the Marking Unit who was dealing with the reporting of the death to Crown Office.

Wendy Barr was dealing with the Summary Unit but was also substituting in the Case Marking Unit. She approached me and prevailed upon me to prepare the three-day murder report15 in the Chhokar case. I was asked to do this on 11 November 1998. That was the first time I had seen the police reports. I also had to get the full witness statements in this case and they arrived some time on 11 November 1998. The report was sent off to Crown Office on 12 November 1998. I would want to see the principal statements in a homicide case prior to drafting the three-day report. I think there may have been difficulties in e-mailing the statements and I remember that they were delivered by hand."

15.4 I have already noted, in chapter 12 above, Mr McCann's involvement in the question of whether Surjit's body could be released for cremation, which he described as follows -

"On looking at the correspondence file there appears to be correspondence from the defence solicitors on 13 November 1998. I was dealing with the defence solicitors in relation to the question of the release of the body and this was a matter that caused minor difficulty in that one of the agents authorised release for burial only. I authorised release for burial initially and I was then contacted by the administrative member of staff in the Deaths Unit to say that burial was not satisfactory in this case.

I contacted the defence solicitors and asked whether they would agree to a release for cremation. I think that it was force of habit on their part to authorise release for burial but said that they had no difficulty in releasing the body for cremation in this case. I then marked on the papers that the body could be released for cremation."

15.5 Mr McCann told me that the norm had been that in cases of murder the body was released for burial, but that Chapter 12 of the Book of Regulations which was reissued in May 1998 had made it simpler to release the body for cremation. Previously, cases had had to be reported to Crown Counsel for instruction on that question.

Commentary

15.6 There was urgent and critically important business to be done during this week in relation to the murder case itself, in amongst which the Procurator Fiscal's Office had also to deal with an urgent family concern, namely the release of Surjit's body for cremation and not for burial. Mr McCann was the officer responsible (and the police had a note of the fact though, as I have shown previously, they overlooked it) and I have no criticism of the way he discharged his duties. Nevertheless there are points of procedure which give me concern.

15.7 The office appears to have been taken by surprise by the fact that Surjit Singh Chhokar was a Sikh (even though the very fact that he had 'Singh' as a name would indicate a strong likelihood that he would be a Sikh), and by the Sikh religious objection to burial. The fact that Surjit was a Sikh was also explicitly stated in the custody case report of 6 November in respect of the suspect Andrew Coulter. Mr McCann had access to this report when he prepared the three-day report for Crown Office. Mr McCann overlooked this. In my view it is essential that, in the circumstances where the Procurator Fiscal has to take authority over the disposal of a body, he should accept the duty (and have the means) of finding out the religious or cultural requirements of the next of kin. In a case such as this one, the police Family Liaison Officer ought to be able to supply the information, but the point is a more general one, applying to any sudden death. I recommend that the Crown Office should draw up appropriate guidance on this subject for the Procurator Fiscal Service.

15.8 I have already expressed strong criticism, in the consideration of the police family liaison, of the failure of communication which occurred between the Procurator Fiscal's Office and the police on the afternoon of Friday 13th November 1998, which left the Chhokar family under the sad misapprehension that Surjit's body could not be released for cremation. The police were, it seems to me, largely to blame for that, but I do not think the Procurator Fiscal's Office (though not Mr McCann personally) is exempt from criticism. There is no record of who the police spoke to in the Procurator Fiscal's Office that afternoon, nor of who was present in the office to take the calls; but I note that the procedure for obtaining release of a body for cremation had only comparatively recently been eased, and I think it possible that DS Smith may have been put in touch with a member of staff who was not properly informed about it. That may have to remain a matter of speculation, since there are no records of the calls which DS Smith claims to have made. A more definite cause for concern is that, when the clearance was given by Mr McCann, there is no record on either side that it was passed promptly to the police.

16. PROCURATOR FISCAL'S OFFICE: UP TO THE FIRST TRIAL

This chapter deals with the period during which the case was being prepared for trial, and the failure of the Procurator Fiscal Service to establish effective liaison with the family during that period.

16.1 The case was duly passed to the Solemn Unit, in accordance with the procedure outlined in the last chapter. The Unit was headed by Maureen Sinclair, Principal Procurator Fiscal Depute. Ms Sinclair described her job, and the pressures on her Unit, as follows -

"My job at that time was to deal with full committal cases every day. I had to read over the cases where people had been remanded following committal for further examination. I would read the statement and assess the case in terms of sufficiency of evidence. I would also be involved in allocating precognitions and in reading precognitions prior to them being sent to Crown Office. I also had management responsibilities. I think at that time there were four precognition officers (one of whom was on maternity leave) and three deputes within the Solemn unit. I was also responsible for the management of all the solemn courts in Hamilton and for indicting all solemn cases. I did the occasional sheriff and jury trial and was also responsible at that time for trying to take a fraud prosecution to trial.

The Hamilton office was under real pressure at that time, including the Solemn Unit. There was another murder case to be allocated. There was a spate of murder cases and a spate of custody cases. I think there had been a murder in Strathaven and the Alexander Hall murder case was also being reprecognosced. I recollect that all the precognition officers had custody cases to precognosce. I remember thinking to myself, `who am I going to give the Chhokar murder case to?'

At the time of the Chhokar case we had a lot of inexperienced Deputes. I was also down by two precognition officers. You can get periods when you get a lot of custody cases. I cannot remember how many custody cases we had at that time. There were a lot of murder cases in the system at that time. I remember feeling under pressure. The office had lost a lot of experienced people."

16.2 Ms Sinclair allocated the Chhokar case to Alan MacDonald. She described her decision, and the process of hand-over as follows -

"I was aware that Alan was relatively new to the Procurator Fiscal Service.... I was aware that Alan had had experience as a lawyer previously. Any work I had seen of Alan's was good. Alan was hardworking and enthusiastic. I had worked with Alan since September 1998 in the Solemn Unit but I had generally seen his work throughout the office, for example, in cases which he had marked.

In allocating the case to Alan, I would give him all the papers that I had. I would fill out a pre-precognition sheet which would, for example, instruct administrative staff to obtain forensic reports etc. At the bottom of this sheet I would hand write a note about the case.

Given that it was Alan's first murder precognition, I did speak to him directly about the case.... . I highlighted to him that the legal issue was concert, that the three-day report done by Mr McCann would be helpful to him and I also told him to liaise with the next of kin. I told him to look at the major incidents book which is kept by the police in relation to the productions16. I also told him to come and ask for any help he required.

I cannot recall how often I reviewed progress with Alan. My practice was to try and go round everybody in the team. My plan was to do this weekly but I didn't always manage that because of time pressures. I did ask Alan how he was getting on and asked if he needed any help. He never indicated to me that he needed help. Prior to reporting the case to Crown Office, Alan came through to me to discuss certain legal issues and we had a lengthy discussion about them then.

This case did not present to me anything which was unusual, other than the concert issue.

In relation to the instructions I gave to Alan, I consider that I gave him sufficient instruction. It is only possible to do the Solemn Principal Depute job if you work at home as well as in the office. In an ideal world, yes, I would have liked to have given closer supervision. I think that may have assisted with liaison with the relatives. It would, however, have depended on Alan advising me of any difficulties he was experiencing."

Family liaison

16.3 The responsibility for taking the case forward devolved on Mr MacDonald at this point. He described to me his career up to that point -

"I studied at Glasgow University between 1986 and 1990. I did the Diploma in Legal Practice in 1991. I then undertook my traineeship with a firm in Elgin commencing in March 1992. It was a mixed practice, but the traineeship concerned court work, both civil and criminal. My traineeship ran from March 1992 to March 1994 and I worked with the firm in Elgin for 1 year after that. I then moved to Glasgow and worked with Keith Tuck in Possilpark doing mainly civil work (70% civil - 30% criminal). That was from March 1995 until March 1997. The work consisted mainly of seeing people with complaints, filling in the legal aid form and noting their defence before conducting the trial. I joined the Procurator Fiscal Service in 1997."

16.4 Mr MacDonald's primary task was to prepare the precognition17 for submission to the Crown Office. This was demanding, particularly considering his inexperience at that time. But his duties were understood to include family liaison also. Ms Sinclair expressed it thus -

"In relation to instructions given in murder cases, ... as with a rape case or a child witness case, I stress the importance of liaison with the relatives as well.

I gave an oral instruction to liaise with the next of kin and to keep them up to date with what was happening in the case. I did not identify to Alan MacDonald who the next of kin were.

I would have identified the father, the wife and Mrs Bryce as the next of kin for the purposes of family liaison.

For me, `to liaise' means to get in touch as soon as possible and to keep them up to date with proceedings. To me it is common sense and good manners. It is automatic to do it. I accept that it may not be automatic if it is your first murder case. Now I know that it is important for me to make that clear to precognoscers. Now I do not leave anything to chance, indeed, in all murders I have been involved in recently I have written myself to the family in the initial stages.

I would have chosen Mrs Bryce because she was living with Mr Chhokar. I would also have chosen the father and the wife because of the children...

In relation to my instructions about how to liaise, I cannot recall what I said to Alan. I may have said to him that he should write a letter.

I did not tell him to invite the family in for a discussion about the case or the role of the Procurator Fiscal. I do, however, consider that to be part of family liaison. I think families should know the role of the Procurator Fiscal. A lot of people do not know what we do and do not understand our job."

16.5 Mr MacDonald also was aware that he had to establish some liaison with the family, but he had no specific instructions on the matter, no experience to draw on, and was hard pressed with other aspects of the case. He told me -

"I had other duties at the time of the allocation to me of the Chhokar case. I had other cases to precognosce which were... sheriff and jury cases. I was seeing witnesses and preparing precognition material as well as preparing for trial and working on cross examination and re-examination of witnesses. I was doing this all at the same time. When in court, a full day would be from 10am until 4pm but the hours and amount of time in court can vary.

During the Chhokar case I was getting up at 5 [am] to do the precognition before attending to my jury sittings.... It would be nice to have more time to prepare for cases but there is a pressure of work.

I read all the relevant documents including the three-day report which was drawn to my attention. I didn't really think particularly about whether the instructions were sufficient. Neither did I receive any particular instruction about the Sikh religious aspect of the case. I was instructed merely to keep the next of kin advised but I don't recall the Sikh issue being significantly drawn to my attention. I would have benefited from more extensive instructions if time would have allowed it.

There was a magnum opus of a shopping list18. It would be fair to say that a lot of it was cosmetic, as it didn't relate to the substance of the case and was more to do with how the precognition was put together.

Prior to conducting this case I had never been to watch a High Court trial.

When the shopping list letter came back I discussed this with Maureen Sinclair and although it was dreadful we went through each bit one by one and dealt with it. I felt terrible but Maureen was supportive and talked me through it.

There was discussion about liaison with the next of kin with Maureen Sinclair, but no-one was specifically identified.... I don't recall being told that it was imperative that I wrote to relatives, but I knew that I had to get in touch with the next of kin.

The decision about who to contact in this case was entirely a matter for myself ... At the time I was in possession of the police custody report, a full statement, lots of witness statements from the police, and the Sudden Death Report. Information about the family was contained in the police report and in the Sudden Death Report. I had a copy of the Sudden Death Report but I really only had a cursory read of it. I don't really understand the significance or importance of a Sudden Death Report in a murder case because you are in possession of other information. If the case does not concern a murder then the Sudden Death Report is all the information that you have to go on.

I am certain that I read the Sudden Death Report but that the information did not impact upon me. I realise that Mr Chhokar's estranged wife should have been identified as the next of kin, but that was not my thought process at the time. The second page of the Sudden Death Report gives more information regarding Mrs Bryce and Mr Chhokar's on-off relationship with his wife. I therefore worked out that the next of kin should be Mrs Bryce. The conclusion reached at that time seemed normal to me. I realise that the information contained in the Sudden Death Report paints a different picture, but I may have read that and made the decision anyway. I was aware that Mr Chhokar had a wife, but I decided that the next of kin should be his co-habitee and his father.

I realise that I made an oversight as far as Mr Chhokar's widow and children are concerned. ...The fact that there were children involved should have influenced me. There had been reference to the children and they had a right to know what was happening.

The impression I had was that the relationship between Mrs Bryce and Mr [Surjit Singh] Chhokar was long-standing as was the separation between Mr [Surjit Singh] and Mrs Chhokar.

There is conflicting information in the relevant statement and papers. It is stated that the witness Bryce had lived with the deceased for a number of years, but this is now known to be inaccurate. Neither did the report make it clear that Mrs Bryce did not speak to Mr Chhokar's relatives. It would seem that my decision as regards notification of next of kin was based on some faulty pieces of information from the reports.

I would agree that looking at the information which I had before me at the time, the police had provided adequate information in the Sudden Death Report to indicate the Chhokar's family situation. Indeed on reading the police report now it is clear that quite a lot of information regarding the communication issue is provided. I would still, however, want more information regarding brothers, sisters and other relatives. It is always necessary to see how the lines and branches of the family tree operate so as to understand how the relevant information will be passed around the family.

When I first received the statement it is hard to say whether or not I was aware that [police] Family Liaison Officers were involved in the case.... I don't even think at the time I knew that Family Liaison Officers were generally used in sensitive cases..... I am not even sure whether Family Liaison Officers have been involved in any of the cases that I have been doing more recently."

Commentary

16.6 It is plain, from this evidence, that Mr MacDonald had to hand all the documentary material he needed in order to identify correctly the individuals whom he should deal with as `family', but that he drew some wrong conclusions, most conspicuously in failing to recognise Surjit's widow as next of kin. I am convinced that he acted in good faith - he was very candid in the evidence he gave me, and very willing to acknowledge that he had made mistakes. If he had been able to take more time, among the many pressures upon him, he would very probably have correctly identified the people whom he ought to contact as next of kin. More to the point, if he had had adequate preparatory training for his job he would have been able to spot the relevant information quickly in the papers which he had before him: if he had known what to look for, it would have been the work of a few minutes to find it.

16.7 Since the consequences were so unfortunate for the family (as I shall show below) I have to ask whether this error could have been avoided. In this connection I have looked at

· the standing instructions which would have been available,

· training courses provided, and

· advice which could have been supplied by colleagues, including the line manager.

16.8 The Crown Office and Procurator Fiscal Service Book of Regulations contains some guidance on the subject of contacting next of kin at Chapter 12.20 (see Appendix 8). It states, amongst other things, that -

"In those cases where the Procurator Fiscal decides that it is necessary to interview a relative, this should be done as soon as possible. Although it may be necessary to give priority to cases which are likely to result in a prosecution, in every case involving a death there is a need for the minimum of delay ...

The purpose of the interview, apart from any formal content it may have, will be to explain the Procurator Fiscal's role, the possible outcomes of his enquiries, and to establish a point of contact within his office for the relative. It should be ascertained in the course of the interview whether the relatives wish to maintain contact with the Procurator Fiscal about the progress of the case...

It will be a matter for the Procurator Fiscal to decide who is the most appropriate relative to contact. If a relative is to be seen for purposes connected with the Procurator Fiscal's enquiries, that person will usually be the appropriate party to interview for the purposes referred to above. In other cases, however, it may not always be easy to decide who should be asked to attend for interview - for example, where a deceased had a common law wife as well as blood relatives. Usually, the person with the most immediate connection with the deceased will be the most appropriate party to be interviewed, and this may include a common law wife. In some cases, it may be necessary to see more than one relative, and to interview them separately."

16.9 The last paragraph of this contains sensible advice about whom to identify as `next of kin', and is probably as much as can usefully be said in a procedural handbook; but the first paragraph would not alert the reader to any need for family liaison as such - it is specifically concerned with cases where the Procurator Fiscal sees a need for an interview but gives no clue that there is a need for contact with a family in any case.

16.10 There is a training course on precognition, but Mr MacDonald had not taken it at the time when he was handed this case. Ideally he should of course have had the training before he started work in the job. It is a fact of life however, in any busy organisation - not peculiar to the Procurator Fiscal Service - that such ideals are not always attainable in practice.

16.11 In any event, formal training courses are only one way, and not always the most effective way, in which individuals can learn their jobs: on-the-job training, in the form of advice from colleagues and supervision by managers, is at least as important an element in training.

16.12 Colleagues could have provided advice. There was ample experience available, among the other Deputes and among the Precognition Officers, which could have been tapped, if anyone had known how much assistance Mr MacDonald needed. I took evidence on this from one of the Precognition Officers in the Hamilton office, Angela Matthews. Mrs Matthews was involved in the Chhokar case for only two days, during the trial of Ronnie Coulter (the circumstances are described in the next chapter), but she also told me how she would herself have approached this case if she had had it for precognition -

"In a murder case, you would also get a copy of the Sudden Death Report and a copy of the Intimation from the Registrar. I think it is normal to get a copy of this and I certainly have always had it. This report gives you details of the next of kin.

... The first thing I normally do is write to the next of kin. I would also normally phone the reporting officer and find out who the family liaison officer was. I would contact the FLO and ask him who among the family had been nominated as the liaison person for the Procurator Fiscal's Office ... The FLO can often tell us who we should liaise with. I have never found it difficult to find out who I was dealing with from the police."

16.13 The prime responsibility for ensuring that Mr MacDonald had the guidance he needed rested with his line manager, Ms Sinclair. She accepted this, but she was hard pressed with work herself and decided that she would have to rely on him to approach her when he saw a problem. This was the critical decision. Mr MacDonald would report if he found a problem, but in fact he was so inexperienced at the time that he was himself unaware of his problems. His mistakes might have been avoided if he had been supervised more closely.

16.14 I do not believe Ms Sinclair was negligent; but I do consider that she made a serious misjudgment, in handing the case to a Depute who was as inexperienced as Mr MacDonald was at that time, and then leaving him to handle it without supervision. It was simply not enough to tell him to report to her if he found any problems: the fact was that he knew so little about the job that he was inevitably going to run into problems without knowing it. Other Deputes, more experienced, could help him when asked, and did. Experienced Precognition Officers could have helped him, but I was told that they were discouraged from doing so. These resources were available - the Principal Depute did not have to take the whole task of supervision on herself. The basic mistake was to leave him to work alone: somebody - either Ms Sinclair herself or another experienced member of staff designated by her - should have worked beside him on this, his first murder case, at every stage. I entirely accept Ms Sinclair's account of the pressures on herself and her office at the time; but if she found that she had not the resources to do the job properly, it was her responsibility to make the case to higher management.

16.15 In the light of this I recommend that the Crown Office and Procurator Fiscal Service should review the management training given to Principal Procurator Fiscal Deputes.

16.16 There is one other way in which Mr MacDonald could have been saved from this failure, namely if he had been aware of, and in touch with, the police Family Liaison Officers in this case. As I have noted in the chapters dealing with them, they too missed some of the nuances of the family situation and cannot escape criticism; but they were at any rate better informed than the Procurator Fiscal's Office and could have helped avoid the worst errors.

The effect on the family

16.17 I turn now to examine in detail the dealings of the Procurator Fiscal's Office with the three individuals most closely affected - Surjit's girlfriend, Elizabeth Bryce, his widow, Sanehdeep Chhokar and his father, Darshan Singh Chhokar.

16.18 Mr MacDonald's account of his early actions in regard to these individuals is summarised in an internal letter sent on 31st August 1999 to the Crown Agent (marked for the attention of Susan Burns, Crown Office High Court Unit) -

`1. I met with Mrs. Elizabeth Bryce on 14 December 1998. I had further contact with her before the trial of Ronnie Coulter on several occasions because she required to be re-precognosced and also to sign an affidavit for the Section 259 Notice. I explained to her before the trial that the case was proceeding only against Ronnie Coulter at that stage. It was also explained that a final decision had not been taken against Andrew Coulter and David Montgomery. A final decision would only be taken at the conclusion of the case against Ronnie Coulter.

2. I sent a letter to the deceased's father explaining that I was precognoscing the case and inviting him to arrange an appointment with me so that we could discuss the case in more detail. I never heard from him. A copy of that letter has not been retained and is unfortunately not stored on computer. I found out from Mrs. Chhokar before the trial that the deceased's father was in India. I thought that this explained why he had not contacted me.

3. I did not write to the deceased's wife Mrs. Sandeep Chhokar as I viewed the next of kin as the deceased's father and Mrs. Bryce. From speaking to Mrs. Bryce it appeared that the deceased had been separated for a long time and had little contact with his wife. However a few weeks before the trial I was contacted on her behalf by Mrs. Kate Duffy of PETAL, 29 Clydesdale Street, Hamilton. She explained that Mrs. Chhokar was upset and anxious about the forthcoming trial. She also had concerns about the way in which Mrs. Chhokar had been precognosced by the defence agents. I had a meeting with Mrs. Chhokar and Mrs. Duffy a few weeks before the trial. I discussed all aspects of the case with her. I apologised and expressed my regret for not having sent her a letter or met with her sooner. I made it quite clear that she could contact me at any time if she had any more concerns. At the meeting it was explained to her that the case was proceeding only against Ronnie Coulter and that a final decision had not been taken against Andrew Coulter and David Montgomery. It was further explained that a final decision would only be taken at the conclusion of the trial against Ronnie Coulter. Throughout the case, Mrs. Chhokar has been receiving support and counselling from Mrs. Duffy.

4. On the morning of Ronnie Coulter's trial I met with Mrs. Chhokar again to try and reassure her about the forthcoming trial. I was able to explain at that stage that she did not need to give evidence. I also briefly met Mr. Chhokar (deceased's father) for the first time. There was insufficient time to talk about the case in detail and I only had time to explain to him that he did not need to give evidence.'

(This was substantially repeated in his letter of 15th May 2000 to the Deputy Crown Agent which was published as Annex A in the Crown Office Internal Report)

16.19 I deal now with each in turn.

Elizabeth Bryce

16.20 Mrs Bryce was a witness to the facts of the murder. Mr MacDonald would have required to precognosce her as part of the preparation of the case whether or not she had been bereaved by Surjit's death. He told me:

"I prepared a letter to send to Mrs Bryce. It was a general letter of introduction explaining that I was undertaking the case and giving my contact number in case she should feel the need to contact me at any time. Due to the pressure of work I did not manage to send out the letter to her before she was due to come in to see me in the office."

16.21 Mr MacDonald's first contact with Mrs Bryce was therefore when she came to be precognosced on 14th December 1998, more than five weeks after Surjit's death. I cannot construe that meeting as in any sense fulfilling the requirement of liaison: it came far too late. The Crown Office and Procurator Fiscal Service Book of Regulations itself states that any interview with a relative should be held as soon as possible. This meeting with Mrs Bryce was driven by the necessity of precognoscing her, not by her entitlement as a bereaved person. Mr MacDonald had himself identified (even if incorrectly) Mrs Bryce as `next of kin', and by that fact should have seen her as not merely a witness. Even allowing for the pressure of work, which I acknowledge, the letter which Mr MacDonald says he prepared should have been sent, and it should have been sent much sooner.

16.22 Mr MacDonald did not at this point keep records (as he should have done) of his contacts with the bereaved and I do not know the dates or times or frequency of the further meetings which he had with Mrs Bryce. But it is plain from his letter quoted above that these too were driven by his requirements of her as a witness. It may be that these meetings were used as opportunities to bring Mrs Bryce up to date about the case; and I accept that Mr MacDonald explained to Mrs Bryce before the trial that the case was proceeding only against Ronnie Coulter at that stage and that a final decision about Andrew Coulter and David Montgomery would only be taken at the conclusion of the case against Ronnie Coulter. Nevertheless I have to conclude, from the dilatory start to his dealings with Mrs Bryce that Mr MacDonald had not taken on board his responsibility to her as a person bereaved by the murder.

Mr Darshan Singh Chhokar

16.23 Mr MacDonald's letter of 31st August 1999, part of which I have quoted above, states that he had sent a letter to the deceased's father inviting him to arrange an appointment to discuss the case in more detail; but that no reply was received (and no copy of the letter is extant).

16.24 I have tried to establish whether a letter was sent and, if sent, whether it was received. As Mr MacDonald states, there is no copy of the letter on the file. Mr MacDonald told me that Mr Aamer Anwar, speaking for Mr Chhokar after the trial, denied that any letter was ever received. Mr MacDonald said -

"I attended a meeting with the Regional Procurator Fiscal, Mr Brown, and the Chhokar family, represented by Mr Aamer Anwar. ... I ... explained to Mr Anwar that I had sent this letter to Mr Chhokar. I can't recall what Mr Chhokar's reply was but I know that he didn't answer me himself. It was Mr Anwar who said that he had not received a letter."

16.25 I raised this question with Mrs Angiolini, who had looked into it when she prepared her internal report for the Crown Office. She told me -

"When I spoke to Alan [MacDonald] he ... assured me that he had sent the letter to Mr Chhokar. I think I would have to see Mr Chhokar in order to make a judgment, for example, did Mr Chhokar have arrangements for receiving mail etc?

I do not know that Mr Chhokar did not receive the letter. Mr Chhokar would be the only one who could tell you whether he did in fact receive the letter."

16.26 I agree with Mrs Angiolini, and would have wanted to hear from Mr Chhokar before reaching a conclusion. I do not have the benefit of Mr Chhokar's account of this matter.

16.27 I have also looked in detail into the circumstances in which a letter such as this might have been sent but no copy retained on the file. Mr MacDonald told me -

"I am very careless when it comes to throwing things out... On my desk I had miscellaneous pieces of correspondence in relation to the Chhokar case and I simply tossed them in the bin. ...I received no training regarding filing, but as a Solicitor in private practice my files were always immaculate and meticulously organised. However, when I joined the Procurator Fiscal Service I realised that basically things were just bunged in. That wasn't really down necessarily to a difference in work pressure, that was just the way that everybody operated. If you are the only one filing things properly, then what's the point in doing it. Ideally, of course, copy letters should be put in correspondence files by administrative staff. I can't recall everything that was thrown out, but this letter was not the only thing. ... The only time that I ever felt under pressure in this case was when I was putting it all together, as it was a hard copy19 case. Normally things are just obtained from the computer and alterations can be made before printing items out. In hard copy cases if alterations need to be made these changes need to be retyped, so it's always easier on the computer. Hard copy cases are not the normal way of dealing with these things now.

The system for sending out letters in the office was that I would write or dictate the letter and send it down to Solemn typing with an instruction slip - one of the typists would then type the letter and I would sign it before it was sent out. Someone in the Solemn typing unit, probably the same individual, will have typed the letters to Elizabeth Bryce and Mr Chhokar senior. I don't think anyone really keeps an eye on correspondence files. Correspondence should generally be put into such files, but I don't know if it's specifically my responsibility to do so. A copy should of course be kept with the correspondence. I would hand the letter down to typing with the file and would expect that the copy would be put into the file by the typist. I myself don't maintain correspondence files, the copying and maintenance of letters is a matter for the typist. All draft copies will go into the correspondence file, however, because you are dealing consistently with so many other things at once sometimes you will be forced to dictate a letter without the file and so when you get the letter back it becomes another piece of miscellaneous correspondence which you then have to attach to the relevant file. I am not sure that's what others did as well, but that's certainly what I did. ... I didn't deliberately throw any letters away, it wouldn't be in my interests to do so."

16.28 Mrs Angiolini told me of her own investigation of this point -

"[Alan MacDonald] said that he had spoken to others in the office including Andy Miller.... Alan claims that he got a style letter from Andy. When I interviewed Andy Miller he said he remembered speaking to Alan and that he may have shown him a style of letter which he had used.

Alan MacDonald indicated to me that it was a hard copy letter. No explanation was given to me as to why the system had not worked. I elicited from Alan MacDonald that he had seen the letter and had discarded it and from the Precognition Officer that such letters were not part of the computer-generated and stored correspondence system."

16.29 I followed this up with Mr Miller. Mr Miller is now a Principal Procurator Fiscal Depute in the Appeals Unit at Crown Office but in 1998 was a Procurator Fiscal Depute in the Hamilton office. He said -

"To the best of my recollection there was no style letter relating to those circumstances. I have no recollection of an office style letter in relation to that situation.

I may have shown Alan a letter from the file in another case which I had precognosced. Whether I did or not, it is likely that we discussed the kind of information which should go into such a letter.

If you dictated a letter you would either leave the tape, attached to the case papers, in your out tray marked to go to the typists or you would take it to the typing pool yourself. You would be given the papers back with a hard copy and a file copy of the letter. The hard copy was then signed by the Depute and this would go into the out tray. Generally speaking, the case papers would come back with the file copy already in the file. Sometimes the papers would come back with the principal copy and the file copy together and the Deputes would personally put the file copy into the file. There is a variable practice. Sometimes only the letter comes back and the papers are sent straight by the typists to administrative staff. A Depute might ask, for example, that the letter comes back for signature but the papers go to someone else for some reason. It is possible that you can get the principal copy back and not a file copy. That would be an oversight and it happens occasionally."

16.30 I would sum up this evidence as follows -

· If this had been a `computer' case any letter would have been stored on the computer

· This was a `hard copy' case, for which there was an established and effective procedure for putting copies of letters into the file

· If the letter had been a `style letter', ie a letter in a stock form, a copy would certainly have been made and retained

· The letter was not a style letter, but one composed for the occasion

· It is possible, but beyond certain proof now, that the copy was misplaced among other ephemeral papers, and accidentally destroyed with them.

16.31 Whether or not a letter was in fact sent, Mr MacDonald believes that he sent one; but in any event he did not receive a reply - and when none came he took no action to follow it up. He told me -

"When I didn't get a reply from the letter I had sent to Mr Chhokar senior I didn't think to chase it up. It just wasn't a consideration, I was too busy getting on with the case. By the time I was ready to send out the introduction letters I was nearly ready to start seeing witnesses. I had between 14 December and Christmas to see witnesses. I took stuff home to do over Christmas and came back to get on with things and the consideration that I hadn't heard from Mr Chhokar senior didn't arise.

Mr [Surjit] Chhokar's widow later explained to me that her father-in-law had been away to India. This explained why he had not been in to see me."

16.32 Even allowing for work pressures and inexperience, I find this deplorable. Mr Chhokar's son had been murdered. The Procurator Fiscal Service was giving priority to the task of bringing the suspected culprits to justice, and rightly so. But it is expected of a public service in this country that it will have a human face. The Crown Office and Procurator Fiscal Service professes to be committed to "be sensitive and responsive to the needs of the public, including victims, next of kin and witnesses". It would have been an elementary step in that direction to have made sure that the victim's father was aware of who was dealing with the case, what the course of events was likely to be and how he could keep in touch with developments. That was simply neglected. Elsewhere in this Report I consider the question of institutional racism. At this point we see, not institutional racism - I have already shown that Mrs Bryce, who is white, was also neglected in her role as a bereaved person - but institutional insensitivity regardless of race.

16.33 As well as the lack of humanity in considering Mr Chhokar, there were practical disadvantages to him, flowing from the failure of the Procurator Fiscal's Office to communicate with him. If he had been contacted in good time, it would have been possible for the office to explain to him what his position was likely to be as a witness, namely that he was liable to be called, as having identified the body, but would be unlikely to be called in practice. Furthermore, and crucially, it would have been possible to assess, and get his own view on, his ability to deal with correspondence in English, and his possible need for an interpreter if he were called as a witness in court.

16.34 I would add to this last point that these matters could have been dealt with more effectively if contact had been established between the Procurator Fiscal's Office and the police, and specifically with the police Family Liaison Officers appointed for this case.

Mrs Sanehdeep Chhokar

16.35 I have noted above that essential, even it incomplete, information about Surjit's relationship with his wife was to be found in the Sudden Death Report; and that Mr MacDonald overlooked it. He also missed the significance of the fact that they had children, and misread their ages, which were twelve and three. In consequence he formed the fundamentally mistaken view, based on Mrs Bryce's witness statements, that the widow was not to be treated as next of kin and therefore fell outwith his office's responsibility for family liaison.

16.36 This error was forced on his attention on 2nd February 1999, when Mrs Kate Duffy of PETAL telephoned him. She was calling on behalf of Sanehdeep (`Sandy'), and arrangements were made for all to meet.

16.37 I have been given accounts of this meeting by both parties. Mrs Duffy told me -

"I met with Sandy here at our premises. She had got a telephone call from the PF saying that the trial was due to start and that she was going to be a witness. She did not know anything about that. She did not know that she was going to be a witness and was upset. She asked me to phone the PF's office to clarify matters. I think she asked me to phone due to a lack of confidence on her part.

I contacted the PF's office and explained that Sandy had been distressed about the call and would like to meet with the Fiscal. I spoke to Mr MacDonald. I had not met Mr MacDonald before. It was Sandy who told me that Mr MacDonald had been the person who phoned her.

Sandy and I met with Mr MacDonald later that week. Sandy was also concerned about the defence precognition.

This meeting with Mr MacDonald was in February 1999. In this meeting, Sandy asked for contact to be made with her through me. She asked the PF to contact me. I was happy to be of support to her but I felt there was more that the PF's office could have done for her. I felt that we could have had someone to liaise with her. It is not unusual, however, for me to be a contact point.

Mr MacDonald did apologise to Sandy for not getting in touch earlier. He said that he was not aware of the situation. He did offer that she could contact him at any time in the future.

I think previously there was a lack of contact prior to phoning her to say that she was going to be a witness. Sandy was feeling isolated because no one was keeping her informed. Her oldest daughter was asking her questions about what was happening.

It is fair to say that there was an element of bridge-building on Mr MacDonald's part. He was very genuine in his apology."

16.38 Mrs Duffy also explains the concerns about the precognition which had been taken by the defence -

"We had arranged for Sandy to be precognosced here at our premises. I was present during the precognition along with [a PETAL volunteer]. It was a female Precognition Officer who came and she was asking questions about Sandy and her husband having separated, had Surjit ever abused Sandy etc. Sandy was very upset by this. It was obvious to me and [the volunteer] that she was getting upset during this questioning.

We had not warned her that she might be asked these questions. We told her it would be in regard to the statement she had given to the police. I could not see what relevance there was in these questions.

The Precognition Officer said which firm she was from. I was quite concerned by her manner of questioning. ... [she] was very direct in her questioning of Sandy. I have never seen anyone being questioned in that way. She was severe in her questioning. She did not give the impression that she was listening to the answers which were coming out.

I do not know what caused that severity towards Sandy. I do not know if it was because she realised that Sandy was an Asian woman from a different culture and thought to herself, `I'm going to get my point across'. I got the feeling that if Sandy had not been coloured it would not have happened in that way. It was almost like the Precognition Officer felt she had to make herself understood.

I have sat in on about 100 precognitions and this one clearly stands out from the rest. I have never seen anyone being questioned in that way. I would say that the Precognition Officer was abrasive."

16.39 Mr MacDonald's account is consistent with this -

"I didn't write a letter to Mr Chhokar's widow because the gist of what Mrs Bryce had told me gave me the impression that their separation was final. It may be false but that was my perception of the relationship between the 3 of them. I did, however, meet with Mr Chhokar's widow a few weeks before the trial. I didn't record the specific date or note anything about it specifically, as at that time I was no longer being meticulous about noting things. It was, however, probably some time in February.

I can't now remember when I was contacted by Kate Duffy, she may know better. I know that I was contacted by her at some point, and that Angela Matthews may have been involved, on behalf of Mrs Chhokar. She was anxious about giving evidence and upset regarding the defence precognition agent asking her personal details about the deceased. She couldn't see the relevance of this and was worried about what might be asked of her in court. I was surprised the defence would want an interview with her, I was not sure about the merits of precognoscing her but realise now that it would have been worth meeting with her. It would have been helpful to both of us if I had spoken with her. I don't think I would have been wise enough to warn her of the defence. Although I had worked as a defence agent I hadn't routinely done so in criminal cases. I don't really see that there was any relevance in precognoscing her, she was one of two people who had identified the body, unless of course they had a particular agenda to pursue.

At this meeting we discussed the defence precognition people and their actions and why Mrs Chhokar was upset. I am not sure if I sent a letter to the defence about this, I am not really sure what I could have done. I can't recall whether they had asked her about the sexual habits of her husband. Mrs Chhokar was a bit upset when I was speaking to her about this. I can't remember what it was they had asked her. It was just the nature of it, asking her about Mr Chhokar and what he was like... By the time I found out that Mrs Chhokar was anxious about being a witness and being asked questions about her husband, she had already been questioned by the defence and the precognition had already been completed. I realise that it would have been helpful for these things to have been noted, but it seems slightly academic as I never expected her to give evidence in the trial. I realise that she may have been called as a defence witness, but that could only have been regarding the deceased's character. I realise now that if I had met with Mrs Chhokar I may well have been able to identify these potential problems. But my job was to prove the murder, and I couldn't take statements from everyone. She only identified the body."

16.40 This meeting took place on 12th February. It was clearly constructive and did much to repair the damage caused by the initial failure to identify Sanehdeep as next of kin. However, Mrs Duffy's evidence suggests that even after that meeting Mr MacDonald failed to register critical information about relationships within the Chhokar family, with the result that he mistakenly assumed that information would be shared within the family. His own account appears in his letter of 15th May 2000 to the Crown Agent, which states -

"Following on from that meeting, I assumed that the information given to Mrs Chhokar would then be passed to the deceased's parents. I had no information to indicate anything to the contrary. Only at a later date did I discover that the deceased's parents had effectively cut themselves from Mrs Chhokar and that there was no contact between them at all."

16.41 Mrs Duffy however contradicts this. When I referred her to this passage, she said -

"That statement is wrong. Sandy Chhokar did say that she had no contact with the deceased's parents at the first meeting we had with Mr MacDonald in February 1999. I remember vividly what Sandy said to Mr MacDonald. At this first meeting Sandy did tell Mr MacDonald that the deceased's parents did not even speak to their grandchildren.

Sandy was not part of the Chhokar family. There was never any other member of the family present at home visits etc, only Sandy and the children. If other elements of the family had approached us seeking help we would have got another two volunteers to help them.

Sandy explained to Mr MacDonald her reasons for coming to see him and she also wanted to explain the situation in the family. She told Mr MacDonald that she had her own house, that Surjit had a girlfriend who he had been with for approximately 5 years. She told Mr MacDonald that she had a child of 3 years by Surjit and that their eldest child was 12 years old. She further explained to Mr MacDonald that Surjit's parents did not talk to her. Sandy loved her husband and was hoping for a reconciliation.

Sandy wanted to make Mr MacDonald aware that any communication he had with anyone else in the family was not being passed to her. She made it clear to the PF that she wanted to be kept informed of developments.

Sandy told me that she had last seen Surjit a number of weeks before his death. I had been told that he had been staying between his flat in Gowkthrapple and his girlfriend's flat.

Immediately after the murder, I was aware that Sandy had been in the family house. She had gone with Surjit's father to identify the body. I do not know if she was staying at that house.

The relationship between Sandy and Surjit's parents was difficult."

16.42 After she had given this evidence to me, Mrs Duffy checked the point again with Sanehdeep and told me -

"I have spoken to Sandy after we met on 31 January 2001. I asked her what was said at the first meeting and she said that the breakdown in the relationship between her and the deceased's parents was discussed at the first meeting. She said she knew this because that is why we went to the Fiscal's Office."

16.43 Mr MacDonald's recollection is that this was not raised until 5th July 1999, well after the first trial, when he received a telephone call from Mrs Duffy. That call followed Mrs Sanehdeep Chhokar's elder child finding out from the television that David Montgomery and Andrew Coulter were to be prosecuted. The Crown Office and Procurator Fiscal's Office had been relying on the assumption that information being passed to Mr and Mrs Chhokar would be passed to Mrs Sanehdeep Chhokar. The telephone call covered several issues. I have a copy of the manuscript note which Mr MacDonald made during the call which in part reads "the family - animosity between in-laws and Sanehdeep. They blame Sanehdeep." On 9th July, Mr MacDonald wrote to the Deputy Crown Agent, Frank Crowe, and told him of the level of estrangement. He also wrote to Mrs Chhokar and Mrs Duffy expressing his regret for what had happened and undertaking to contact Mrs Sanehdeep Chhokar directly regarding any future developments.

16.44 I have sought to identify precisely when Mr MacDonald was first told about the family dynamics; at the meeting of 12th February or during telephone call of 5th July. Mr MacDonald's letter of 9th July to the Deputy Crown Agent, informing him of the family split, would in part support the suggestion that the Crown Office and Procurator Fiscal's Service had until then been unaware of the family circumstances. Against this must be set Mrs Duffy's statement that it was discussed at the first meeting and the recollection of Mrs Sanehdeep Chhokar, the person most affected by all of this. At this distance and with the evidence available to me, I am unable to establish the precise sequence of events. What is clear is that one of the consequences of the lack of communication was that significant distress was caused Sanehdeep and to her elder child (see paragraph 20.11).

17. THE FIRST TRIAL

This chapter deals with liaison with the Chhokar family at the trial of Ronnie Coulter. It examines the reasons for failure in liaison and discusses the roles of the police, the Procurator Fiscal and the Advocate Depute.

The significance of the trial

17.1 For the victim of a crime, the trial is a focal point: it is the point at which they look to see justice done. Homicide however is unique, in that the victim - the person against whom the crime was committed - is dead. For all practical purposes then the victims are the next of kin. They are sometimes described, aptly, as 'co-victims'. The experience was succinctly described to me by PETAL. PETAL is a self-help organisation dedicated to the support of people who have lost a loved one through murder; and most of its volunteer members have themselves had that experience. They therefore speak with authority on the subject. Their representatives whom I met, Paul Lockley and Kate Duffy, told me -

"There are three stages to the process - trauma, court and grief. The murder of a family member is your worst nightmare. It is the worst thing that could happen to a family. It is the suddenness and unfairness of it all. The family is not prepared for it. It is also out of sequence for many people, that is, they expect to die before their children. It puts the whole of their life upside down. All familiar landmarks in their life have gone. They become almost a non-person. You become the mother of the victim, the husband of the victim etc.

You may have to identify the body. You may also be precognosced. You then have to go to court and listen to the evidence. You are re-traumatised again and again."

17.2 The PETAL representatives explained to me the expectations with which relatives go to court -

"People think that they are going into court to have their say and tell everybody what happened. But that does not happen. They do not even get to say what they want to say as they are restricted in what they say. The whole process becomes very complicated. ...In the middle of it all is the death of a loved one but that seems to be forgotten. The whole thing is about the accused.

People think they go to court to get the truth but they don't get that. They do not even see an adversarial system. They see people who are quite friendly with one another. People also have their own expectations from television. The kind of atmosphere in the court does not seem adversarial. There is a suspicion about deals being done and it is difficult for families to understand. This undermines the confidence families have in the system. ...The overall impact on a family is devastating ... the Advocate Depute should speak to the family and explain what is going to happen. Families see the accused's lawyer going back and forth to speak to the accused. If the PF Depute was coming every day it would be better but ... even if the Advocate Depute was to meet with the family at the beginning to introduce him or herself and to make themselves known to the family. This would humanise the process as there would be some sort of contact with the family. Otherwise it just seems to be mythical people playing roles in court."

17.3 I shall return to some of these points below.

The family: getting to court

17.4 The trial of Ronnie Coulter began on Tuesday 2nd March 1999, before Lord McCluskey, and ended the following Tuesday, 9th March.

17.5 Previous chapters have recorded that Surjit's father, Darshan Singh Chhokar, had enquired of the police about the date of trial, and about interpreters, and that the Procurator Fiscal's Office had failed to establish a liaison contact with him. He was liable to be called as a witness (having identified the body), and presumably received his citation at some time after 28th January, but it seems likely that he arrived at court assuming that he was not to be called as a witness, whereas that could not have been guaranteed until the morning when the trial was due to start. If he had been called as a witness he would have had to manage without the aid of an interpreter, since no provision had been made, nor had any consideration been given by the Crown to the question whether he would need one. At any rate, he did arrive, along with his wife and other family members. The police had not contacted him to see whether he would need transport to the court; so he had to make his own way there.

17.6 I have also recorded above the contacts between the Procurator Fiscal and the widow, Sanehdeep. She had been called by telephone to be told she would be a witness; was distressed by that; and had sought the assistance of PETAL, which arranged a meeting with Alan MacDonald, the Procurator Fiscal Depute responsible. The police Family Liaison Officer, PC Laverick had tried to contact her before the trial, but Sanehdeep had moved house and had indicated that she wanted future contact to be through PETAL. The police were ready to provide transport, but were told that PETAL would arrange it. Sanehdeep arrived at the trial knowing that she might be called as a witness, and was anxious about that.

17.7 Sanehdeep Chhokar knew before the trial that there would be only one accused standing in the dock, since she had been told that at her meeting with Alan MacDonald. Surjit's parents also had been told by the police in the early stages of the investigation that two of the three men arrested had been set free, but were given no explanation of that at any time. I have found no record that Mr and Mrs Chhokar were given any further information on the matter before the trial; and the press reports suggest that they were not. Mrs Sengha is quoted in The Scotsman of 11th March 1999 as saying -

"We expected three men to go on trial. When we arrived at the High Court and saw just one man on trial we were very confused. We have never been given any explanation why this happened."

During the trial

17.8 Mr MacDonald attended the trial on the first day (Tuesday 2nd March 1999). He had work on another murder precognition to do at the Hamilton office and therefore he had less time than he might have done to do any necessary work for the Advocate Depute, Frances McMenamin QC. Before the trial started, Miss McMenamin got agreement from the defence that Mr Chhokar and Mrs Sanehdeep Chhokar would not need to give evidence. Mrs Duffy told me -

"On the morning of the trial Sandy and I met with Mr MacDonald in a side witness room. He said that he hoped she would not be called as a witness. He then came back and said that she did not have to give evidence. She was very relieved that she did not have to give evidence. She even used the word 'relieved' herself. She was emotional."

17.9 Mr MacDonald also met Mr Chhokar, who was with a male relative, and told him that he did not need to give evidence. The meeting was simply an encounter in a corridor. Mr MacDonald was clearly very busy at the time. He told me -

"I had to deal with availability of witnesses etc. I was just trying to sort out the problems so that the trial could start. I didn't have time to spend more time with the Chhokars. When I met Mr Chhokar senior I shook his hand. I spoke in English, but I don't know if he understood. I just told him that he didn't need to give evidence. I didn't really stop to check whether or not he understood. I was very busy and I know that it's bad, but I had so much to sort out. The most pressing thing was just to get the case started."

17.10 The following day, Wednesday 3rd March Mr MacDonald was called out to deal with a murder at 0500 hours. Because he was tied up with that, he contacted his office and arranged for a Precognition Officer from the Hamilton office, Angela Matthews, who had had no previous involvement with the case, to go to court in his place. He had no further contact with members of the Chhokar family during the trial, and in fact was absent from it entirely after the first day.

17.11 The Precognition Officer attended on the second and third days but not beyond. She told me -

"On Wednesday, I came into the office at 8am. The first person who mentioned the case to me was Pat Andrew, my Higher Precognition Officer. The conversation was along the lines of, `Alan can't make it to the Chhokar case, he was called out to a murder during the night, can you cover the Chhokar case?' I went straight from the office to the High Court.

When I got there, I was told that the next of kin were already sitting in court. ...I did not speak to the family. I did see them in court. I was to assist the Advocate Depute. I was not given any instructions at all regarding the next of kin. That did not surprise me. If a next of kin is looking for anyone from the Procurator Fiscal's Office, then they could ask any police officer and they would know that it was me. ...I assumed that liaison would have been done in the Chhokar case."

17.12 The Advocate Depute, Miss McMenamin, had only passing and accidental contact with members of the family (I comment on this below); and her Assistant (the `Crown Junior') Mary Frances Ralston, Advocate, had none. Likewise Ruth Anderson QC, who stood in as Advocate Depute on the last day of the trial, had no contact with the family.

The end of the trial

17.13 On Monday 8th March, Miss McMenamin was made aware that she would be taking a case in Paisley on Tuesday 9th March. She would not therefore be in court for the last day of the trial. She has told me of the circumstances and how she explained the situation to the court -

"On the Monday morning before I went in to speak to the jury, I got information that I was going to have to go to Paisley on the Tuesday ... morning in relation to a case I had been involved with in Paisley in the previous December. ... Ruth Anderson was in the Paisley sitting.

By the Monday, having spoken to the jury in the Chhokar case, my input to the case in any material sense would have been at an end, therefore, technically another Advocate Depute can sit in for the verdict. That has happened in the past and I have sat in on other people's cases.

I was very conscious, as I always am, of my responsibility to stay in court for the defence speech, especially in a murder case. I think it is very important for the public perception and for the perception of the family that you are seen still to be interested in the case.

I explained to the clerk ...and asked him to explain to the judge, that I required to attend Paisley on the Tuesday morning. I also made it clear to the jury at the end of my speech that I was not going to be there on the Tuesday. I did not want them thinking that I just did not turn up. I explained the matter to them as a matter of courtesy because I am very conscious of the public perception. ...Everybody knew, therefore, that I would not be there on the Tuesday. "

17.14 Miss McMenamin explained to me how she handed over to Ruth Anderson QC on the Thursday afternoon -

"The court finished at approximately 3.30/3.45 and I thereafter presented another case to the court in which the accused was pleading guilty. That case probably took about 20 or 30 minutes and I was therefore finished at approximately 4 pm.

When that case was finished there was no-one left in the court. I then went out the side door as the back door to the court had been locked. Colin Armstrong [Clerk of Court] came out with me and as we were coming down the corridor I saw Ruth Anderson who was carrying my papers for Paisley. She handed the papers to me and Colin and I brought her up to speed with the stage we were at in the Chhokar case.

I told Ruth Anderson that it was a murder trial and that I had left all my papers in court. I told her that the judge had not completed his charge and still had quite a considerable way to go with that. ...I did not leave my own notebooks with my speech etc in it as the Crown Junior would have her notes of the trial. I do not think I told Ruth Anderson anything about the circumstances of the case but I had left all the papers in court."

17.15 Miss Anderson told me of her part in the trial -

"I was in court first thing in the morning when the judge finished his charge and I thereafter did two other cases and then I was in court again when the jury came back with its verdict."

17.16 She told me further that nobody mentioned to her that members of the deceased's family were in court. Her understanding was that there would be liaison with the Procurator Fiscal Service and the police who would be the first point of contact with the family, but that it should not be any part of the Advocate Depute's role to engage with the family. However, she also said -

"I would never refuse to speak to members of a family if that request was made to me through the appropriate channels."

17.17 The jury returned a verdict of guilty to a reduced charge of assault. Miss Anderson did not move for sentence and the accused was therefore free to go. At this point Lord McCluskey addressed remarks to the jury. I have been provided with a transcript of what he said.

"Ronnie Coulter, for reasons that are entirely incomprehensible to me, the Crown has chosen not to move for sentence ...the Crown chose to put you alone in the dock. In the light of the Crown's decision not to ask me to impose a sentence, I have no power to impose a sentence. You are, therefore, discharged from further attendance at this Court.

Ladies and gentlemen, a young man was murdered in a public street by one or more of persons whose identities have been freely discussed in this case. For reasons that I cannot begin to understand, one, and only one, of those persons was placed in the dock and charged with the crime. That is a matter which, to me, as a judge of considerable experience, passes my understanding altogether. I cannot begin to understand how it happened and I shall be taking steps to see if I can discover what the reason was for the course that was taken. Unfortunately I know no more than you do about that particular background.

The Crown chose not to move for sentence, and no doubt that was because the accused, having been found guilty of what was a simple assault, and because he had already spent some 3½ months or thereby in prison, it would be excessive, in the Crown's view, to move for sentence. Whether that was a right decision or not is not a matter for me to comment any further upon.

In the meantime, I have to discharge you from further service, you're free to leave".

17.18 Miss Anderson was present during Lord McCluskey's comments, and left immediately afterwards to telephone the Crown Office about them. She had no contact with the family.

Commentary

17.19 The above narrative can be summarised very briefly. The family of the murdered man attended the trial, which lasted six days, and beyond fleeting and hasty contacts on the first morning, when they were informed that they would not be called as witnesses (and could therefore watch the trial), and a brief greeting when the Advocate Depute happened to pass them (see paragraph 18.38 below), had no contact with the authorities and no explanation of what was going on. When the trial closed, with a guilty verdict on a reduced charge, no sentence passed, and the accused set free, there was nobody - apart from the judge in his public remarks - to give them any explanation of what had taken place or what, if anything, might happen next. Self-evidently, this is utterly unsatisfactory.

17.20 What should have happened? I shall comment on each party in turn - the police, the Procurator Fiscal, the Advocate Depute - and finally on what the judge said.

The police

17.21 The police are not responsible for the trial, and their Family Liaison Officer role is almost entirely reactive - to provide new information when there is information to give, but otherwise simply to respond to requests and enquiries from the family. I have examined in earlier chapters some shortcomings in liaison between the police and the Procurator Fiscal, particularly over the question of an interpreter, but when the day of the trial comes, the work of the Family Liaison Officer would normally be virtually complete.

17.22 Only two aspects of police work in relation to the trial were mentioned to me in evidence: provision of transport to court for the family, and familiarisation visits to court for them; and I shall deal with them briefly here.

17.23 PC Laverick was instructed by DCI Michael to contact the Chhokar family to arrange transport and discuss any concerns. DCI Michael explained to me -

"I see transport as a PF/Crown Office issue. I recognise that the police have been doing it on an ad hoc basis for years. This is due to the goodwill of police officers where, for example, the witnesses have no car or are in financial difficulties. It is also important to know when a trial is going ahead. We do not always get a lot of notice of that and therefore there is not a lot of time to organise things like transport for the family."

17.24 PC Laverick was also instructed by the Senior Investigating Officer to treat Sanehdeep as the primary focus for family liaison since she was the next of kin. PC Laverick in turn established that PETAL had made transport arrangements for her. I have no evidence that transport arrangements were made by the police for the extended family, who by this stage appeared largely to have dropped their contact with the police.

17.25 Court visits for the next of kin can assist in understanding the procedures and make the environment less alienating. PC Laverick explained that she did not need to arrange a court visit for Sanehdeep Chhokar -

"Court visits would have been done by PETAL. If PETAL hadn't been involved, however, I would have done that for Sandy. I have done visits for children in the past. I knew that PETAL had taken Sandy on a court visit prior to the trial."

17.26 She went on to say -

"There was nothing to stop me explaining to the family about the court process. There were no cultural differences which would prevent me from doing this. I may have done it in the Chhokar case but I don't remember. With hindsight, I would do that now. I would want the family to be familiar with the court. It is all part of customer care."

17.27 PETAL also explained to me their approach to court visits -

"If there is a trial pending, we would organise a pre-court visit by contacting the court social worker and thereafter showing them around court. We try to take them into the court that the trial is likely to be in. We show them where the witness box is, where the jury sits, where the Crown and Defence lawyers and the judge will sit. We make them aware that there will be productions sitting on the table. If they are being called as a witness we will try and reassure them that at any time they need a break, a drink etc that they should let the judge or court usher know. It would also depend on what the witness is being called to speak to, for example, identification of the body or witnessing the murder itself."

17.28 No court visit was offered to or requested by the other members of the family.

The Procurator Fiscal

17.29 At the beginning of this chapter I quoted some comments given to me by PETAL about what a family attending a trial such as this is likely to expect to see and do - `to have their say and tell everybody what happened ... to get the truth ... an adversarial system ... but they don't get that ...They see people who are quite friendly with one another'

17.30 Some of these expectations will be unrealistic: the prosecution is conducted in the public interest, which will not always and necessarily coincide with the private interest of the bereaved family; the accused too has a right to a fair trial; and the lawyers need to be on good professional terms so that they can do necessary business together, for example in agreeing not to call family witnesses. Nigel Emslie, QC, Dean of the Faculty of Advocates, giving evidence to me, put it thus -

"The Advocate ... has a professional duty of courtesy and respect towards colleagues and other officers of the court. The Crown has a duty to be independent, dispassionate and open, and to share information with the defence. This may sometimes involve direct personal contacts in open court ... In the name of the Crown he represents the interests of the community at large. He does not act on behalf of a live victim, or on behalf of the friends or family of a deceased in a fatal case".

17.31 The whole process of a trial, to anyone who has not seen it before, can be difficult to follow, or even unintelligible. The interests of justice are not served if the family of a murder victim cannot perceive justice being done; and common humanity demands that they be given some clue to the riddle. The person best able to explain what is going on is the person from the Procurator Fiscal's Office who has had responsibility for precognoscing the case. Liaison with families takes time, and therefore carries costs, and these are not to be brushed aside; but the fact is that the Procurator Fiscal Service is the best source for information and explanation.

17.32 I note at this point that the Crown Office and Procurator Fiscal Service have now addressed these matters through the Victim Liaison Office scheme now under development. I look at that in detail in chapter 27. However, it became clear to me that, at any rate at the time of this trial, there was no system in the Procurator Fiscal Service for providing family liaison at a trial; nor apparently were there resources to provide an adequate presence throughout a trial.

17.33 I was given a very helpful explanation, by Angela Matthews, the Precognition Officer from the Hamilton office who attended the second and third days of the trial, of how she normally approached her task in regard to family liaison at court -

"Precognition Officers certainly think that it is good for the precognoscer to be at court for the trial. It provides continuity. It means there is a friendly face and a face that the victims know. We have thought it was very important. We think it is important for the family to have that continuity. It also helps us because we know that we have done our absolute best for that family. We can also explain to the family what is happening in court. For example, if something is going to be heard outwith the presence of the jury, I will indicate to the next of kin that I will come out and speak to them once the decision has been made. Not being a lawyer, I think Precognition Officers can explain in less legal terms what is happening and that the family might understand that better. I would keep it very basic. I would tell them that the judge swears a witness in, the Crown then asks the first questions, the defence then asks questions, the judge may ask questions and then the Crown will get to ask anything else. I do not tell the families about verdicts. I have never thought about it. It might give us problems. For a lot of people something horrendous has happened to them, they then have a court case. To start telling them that the person may be found guilty or not guilty is too much for them to cope with. What I do tell them is that our job as the Crown is over when we get the case to the jury. I ...say that the verdict is a matter for the jury. ...Often a next of kin will ask, will he be found guilty? I would say that I don't know. I would say that there appears to be sufficient evidence but that the jury will make their decision."

17.34 This was a person with nearly 30 years' experience in the Service, who drew her practice not merely from a handbook or formal training but from the human skills she had acquired through experience. Mrs Matthews did not have the opportunity to provide such service in this case, having been called in without notice and having no previous knowledge of the case.

17.35 By contrast, and unfortunately, the Procurator Fiscal Depute assigned to the Chhokar case, Alan MacDonald, had no experience (he had never been in the High Court before this trial), had been given no instruction at all as to his role at court, whether in relation to the family or otherwise, and was burdened with other duties on other cases, including - as noted above - an out-of-hours call to another murder in the early hours of the second morning of this trial. He told me -

"I had never previously attended the High Court during my time as a Fiscal Depute. I don't know who instructed me to attend the trial. I can't recall if Maureen [Sinclair] specifically said I was to cover it. I just thought that was all what being a Fiscal was about - going to court was just another thing you did. I can't recall specifically what 'covering the case' meant. I had ideas of what I would do in my own mind. You don't get any training. That's just the job. ...I was under the impression that I was there primarily to assist the Advocate Depute. I was either told that or I heard others talking about it. I wasn't given any instructions or training in relation to family liaison at the High Court. The first day of the trial was a bit of a blur. I got there late, I had been trying to do something with another murder precognition.

I don't really think there's any specific policy about people attending Court during trials. If you had a murder trial, you could cover it for more than just the first day if you wanted to. It really just depended on what else you had to do. I just assumed you covered the whole thing and would go until you got called back to the office.

I don't recall whether I was told to go to the High Court for the first day or to cover the whole of the case. I don't think there was a specific time frame put on it. I learnt afterwards that you would usually go for the whole of the Crown case. I don't know how long I thought I was going to be there, I knew I had other cases to do. Even if you had a case at trial, you would still get other duties allocated to you on the rota. It's not as though you get a murder case and so you have a free week on the rota. You would need to ask to be excused from the rota and others would cover your work."

17.36 The primary task of the Procurator Fiscal Depute at a trial is to assist the Advocate Depute. I asked Miss McMenamin about the service she had received at this trial and she was critical. The detail of that is not within my Terms of Reference, so I shall not go into it, but it confirmed the impression of someone who had been sent to court without any kind of instruction as to his role there. So far as providing any liaison with the family was concerned, one can only say that it was perfunctory at the beginning and ceased altogether after the first two days.

17.37 In saying this I do not primarily criticise Mr MacDonald, whom I found to be an honest and hard-working man, but the system of management which could send anyone so painfully unprepared into such a critical situation. What is apparent, with hindsight, is that the kind of advice which would have been useful to him was available within his own office, from Precognition Officers such as Mrs Matthews. I have discussed this in the previous chapter.

The Advocate Depute and the Advocate Depute's Assistant

17.38 Miss McMenamin told me of the circumstances of her encounters with the Chhokar family during the trial -

"I came out of the back door of the court one lunchtime with papers and I saw Mr and Mrs Chhokar and who I thought was their daughter. I think they were waiting for someone and I nodded to them.... but I did not say anything. I did acknowledge them and the daughter smiled back. ...Mrs Chhokar's eyes were downcast. They were standing with their backs to the wall and the impression I got was that they were waiting for somebody. I was going up the stairs to continue my preparation of the case. I was by myself at the time.

I think my next contact with the Chhokars was on the Thursday. I had parked my car in the car park and was heading into court. I was not wearing my wig or gown. Mr and Mrs Chhokar were leaning against a wall outside the court. I was aware of the fact that I hadn't spoken to them at all during the course of the trial. I stopped and said , 'How are you coping with everything?'. I do not remember them saying anything in response, but they nodded to me. I do not know if they recognised me without my wig and gown. I did not know that they needed an interpreter. I got no answer at all from them and my impression was that perhaps I was intruding on their grief. I was aware that there is a culture now to make sure there is liaison with families but I had never been involved in a Sikh death before and felt I was perhaps being intrusive. I thought that maybe they did not want to speak to me. This is based on ignorance about whether it is not part of the Sikh religion to discuss the death with somebody who is not of the same religion."

17.39 These were chance encounters, and when I asked Miss McMenamin why she had spoken to the family her reply was "sheer human decency". I asked her whether it was her normal practice to speak with the family during a trial. She told me that she would sometimes do so, in a murder or rape case, if it looked likely that the case was not going to prove or if she was going to have to accept a reduced plea; but would only do so at the request of the family, and only in the presence of the Procurator Fiscal, Precognition Officer or representative from Victim Support.

17.40 Miss McMenamin also told me that she had had no request from anybody in this case that the Chhokar family would like to speak to her. She also confirmed that she did not see it as the role of the `Crown Junior' to take any part in family liaison, but that contact should always be through the Procurator Fiscal or Victim Support.

17.41 Finally I asked her what her practice was in relation to explaining a verdict. She said -

"I would at least have given the family an explanation afterwards if I had not done it prior to the verdict, i.e. discuss the possibilities as the judge would have explained these to the jury. I would have felt beholden to the family. I have done it in the past, that is, spoken to a family where the verdict has come back so differently from the charge. I think the family would look to the Advocate Depute to provide an explanation for that. If not to the Advocate Depute, they would look to someone who knows or someone who could speak to the Advocate Depute."

17.42 Miss Anderson, who took over from Miss McMenamin on the last day of the trial, also told me that any contact which she would have with a family at a trial would be in response to a request passed through the Procurator Fiscal's Office. Since there was nobody from that office present on the day in question, she left court without speaking to the family.

17.43 I do not consider that the Advocate Depute should have any direct contact with relatives or next of kin while a trial is in progress. The Advocate Depute's duty is that of a public prosecutor - as described in the evidence from the Dean of the Faculty, at paragraph 18.30 above - and that risks being compromised if there is contact with the relatives of a victim, and may also be misleading to them. The Advocate Depute should already have been briefed about the impact of the crime, from information obtained at precognition; and explanation of procedures and tactics in court should be provided by the Procurator Fiscal or Precognition Officer or, under the scheme now being developed, by the Victim Liaison Office.

17.44 The Advocate Depute's Assistant (the `Crown Junior') has a critical role in the High Court, namely to follow the Advocate Depute's instructions during the course of a criminal trial. The Crown Junior is not a `mere' note-taker. The accuracy of the Crown's notes during a criminal trial is a matter of pre-eminent importance. The Crown Junior is also invariably requested by the Advocate Depute - with little notice - to conduct complex legal research during the course of a criminal trial, and may on occasion be asked to examine a witness in Court. The Crown Junior will often be involved in the preparation and drafting of minutes for presentation to the court or jury.

Conclusion

17.45 Thus it came about that the Chhokar family were left at the end of the trial to go home, having seen the accused set free, with no word of explanation from anyone on the prosecution side. Whatever the legal merits of the case - and they are not within my remit - that was utterly unsatisfactory. It was inhumane; and it was a disgrace to the Scottish criminal justice system.

17.46 There is no one individual to be blamed for this debacle. It was a failure of the system. As it happened, the case concerned the murder of an Asian man by a group of white men, and the publicity which has followed it has highlighted that fact. That is certainly a relevant feature of the case - for example, if Mr Chhokar had been called to give evidence, no consideration had been given to the provision of an interpreter - but I do not find that it was the central feature. It is perfectly clear to me, from all the evidence I have been given, that if the victim and his family had been white, they would have suffered the same treatment. The mistakes over identifying the next of kin, the failure to make contact with the family and the neglect of them at the trial - these things could have happened to anyone. For all I know, they have happened before, perhaps many times. Institutional racism in the system would be bad; but what happened was even worse, since it could have happened to anyone, regardless of race.

17.47 There is also a wider issue to be addressed here, namely the interest of the next of kin in a homicide case. The events at this trial constitute, in my view, a self-evident case for the family being given at least an authoritative explanation of what is going on. However, the question arises, whether explanation is enough. One of the concerns of victims - that is to say, the next of kin of someone who has been murdered - is, as I quoted at the beginning of this chapter, that they have no `voice', as victims or co-victims, in the trial. That raises a series of questions, which I shall consider in Chapter 27.

18. REACTION TO THE TRIAL

This chapter deals with the immediate aftermath of the first trial, when the Chhokar Family Justice Campaign was formed and became active, and the family and Campaign representatives had meetings with the Regional Procurator Fiscal in Hamilton and the Deputy Crown Agent in Edinburgh.

The judge's comments and the Lord Advocate's riposte

18.1 Lord McCluskey's comment at the end of the trial (quoted at paragraph 18.17 above) was widely reported in the media, as was the equally forthright reply from the then Lord Advocate, Lord Hardie, reported on 11th March -

"It is a matter of regret that a judge of such experience should make such public pronouncements in ignorance of the background to this case. Such uninformed and ill advised remarks do not serve the interests of justice and fail to appreciate the respective roles of the Lord Advocate and the Judiciary. Prosecution decisions fall within the independent exercise of the discretion of the Lord Advocate, who is not accountable to the High Court of Justiciary or to any of its judges for such decisions. From the preliminary report given to me I am satisfied that the action taken in this case was the most appropriate in the circumstances and the reasons for it are sound."

18.2 The consequence for the Chhokar family was dramatic too. Having been unknown to the public and largely ignored by the prosecuting authorities during the trial, they were suddenly propelled into full public view, and their comments reported in the press. These first comments are significant in relation to what was to follow -

On 11th March Surjit's father, Darshan Singh Chhokar is quoted as having said: "Someone killed my son. Yet whoever it is they are not in jail."; 20

and Surjit's sister, Manjit: "Within a week the police arrested three men for this crime, but it looks like something has gone wrong in the court system. We expected three men to go on trial. When we arrived at the High Court and saw just one man on trial we were very confused. We have never been given any explanation why this happened. The judge is obviously concerned and it is the right thing to do to have an investigation into this."

18.3 These immediate reactions from the family emphasise injustice and a failure to explain to them what was going on. I cannot believe that this very public disagreement between the trial judge and the Lord Advocate can have brought any comfort to the Chhokar family. They were in any case dismayed at the outcome of the trial: the judge's remarks reinforced their feeling that justice had not been done - Mrs Sengha's comment confirms that - and the Lord Advocate's sharp response gave them no reassurance.

18.4 The remarks of Mr Chhokar and Mrs Sengha do not mention race as an issue; but in the climate of the time - the Macpherson Report on the Stephen Lawrence case had very recently been published - others did comment on it. The same article reported -

"Aamer Anwar, a race campaigner who was once beaten up by Strathclyde Police officers, described the Chhokar case as "totally unacceptable. This shows that the Crown Office is in a total mess, and sends out a green light to racial attackers. Stephen Lawrence's attackers are still out on the street and so are the killers of this man."

Race campaigners were angered by the Chhokar case. Mick Conboy, the policy officer for the Scottish Commission for Racial Equality, said it was bizarre and alarming in the week after the Stephen Lawrence Inquiry Report. "It is appalling to say the least that you have got an Indian man dead, attacked by three white guys, and no-one is being held responsible for it. There is a tremendous amount of work to do in Scotland to ensure that our criminal justice system is up to scratch in recognising and dealing with racially-motivated crime. How is the black community supposed to have any confidence in justice?""

18.5 The race theme was picked up by the family the following day -

""We are obviously asking ourselves if the fact that my brother was Asian is the reason why just one out of the three men who were charged with his murder were on trial," Mr Chhokar's sister, Manjit, 37, said. "Did the Crown Office not bother bringing three men to court because my brother was a Sikh? Was he less important? It sounds unbelievable, but the Stephen Lawrence case has shown that things like this do happen.""

18.6 On 15th March the Chhokar Family Justice Campaign was formed and on 17th March it issued a letter to MPs seeking support for the campaign and its aims. The letter (reproduced at Appendix 3) criticised the conduct of the case and the approach to racial motivation; accused the criminal justice system in Scotland of institutional racism; and pointed out that "no effort has been made to explain the decisions of the Crown Office, and the Lord Advocate refuses to disclose the reasons for the actions of the Crown".

18.7 Meantime the Lord Advocate took action. Lord Hardie told me -

"I did not see the papers until after the acquittal in the first trial. I doubt if either of the Law Officers saw the papers prior to that. The first thing I knew about any difficulty was when Lord McCluskey made his pronouncement in court. I was in London at the time and received a call from Crown Office. ... I asked for a verbal report at that time from a senior official in Crown Office and this provoked my response to Lord McCluskey's comments."

18.8 He also called for an immediate written report from the Advocate Depute who had taken the case in court (this was submitted to him on 12th March) and for a report from the Hamilton Procurator Fiscal's Office. He recognised that there had been a failure in family liaison -

"As I understood it there was guidance to Procurators Fiscal that they should keep relatives informed of proceedings. My impression was that in general this did work. In the Chhokar case, it did not happen. It was clear that there had been a series of events which had prevented it. Mr Chhokar was in India at some stage and there was also a question of whether he understood what was happening. That question had not been addressed by anyone in the Procurator Fiscal's Office.

We ought to have been more careful to explain to the Chhokar family the procedures and what was happening. There ought to have been someone there from the Procurator Fiscal's Office to explain what was happening, for example, at the end of each day's proceedings. Someone ought to have taken this family aside and explained to them what precisely had happened. I think that is where we failed."

18.9 The Lord Advocate also arranged a meeting with Dr Moussa Jogee, Deputy Chairman of the Commission for Racial Equality, and the meeting took place on 19th March.

Meeting with the Chhokar family

18.10 The Lord Advocate's instruction that the local office should meet the family was conveyed in a letter of 17th March from Janet Cameron, Head of the High Court Unit, to Douglas Brown, the Regional Procurator Fiscal. It stated that -

"members of the deceased's family should be seen and it should be explained to them that, as had always been intended, following the disposal of the proceedings against Ronnie Coulter, further investigations will be carried out. The family will no doubt be interested in the reasons why all three of the accused who appeared on petition were not indicted for murder. The families should be reassured that the case was considered carefully by Crown Counsel who, on a professional assessment of the evidence, took the decision that it was appropriate at that stage to indict Ronnie Coulter only."

The letter also said that the Lord Advocate wished the Regional Procurator Fiscal to review the standard of precognition work and the manner in which liaison with the relatives was handled.

18.11 Alan MacDonald wrote immediately to Mr Darshan Singh Chhokar and to Mrs Sanehdeep Chhokar offering them a meeting on 19th March. It was a very brief letter -

"Dear Mr Chhokar

DEATH OF SURJIT SINGH CHHOKAR

The Regional Procurator Fiscal, Mr Brown, would very much like to meet with you and any members of your family, if convenient, on Friday, 19 March 1999 at this office at 2.30 pm to discuss the death of Mr Chhokar and the recent High Court trial.

I look forward to hearing from you.

Yours sincerely


Procurator Fiscal Depute"

18.12 A letter in identical terms was sent to the widow, Sanehdeep Chhokar. She replied and arranged a meeting for 24th March, but later called off the appointment.

18.13 The meeting with the family duly took place on 19th March. It has been described to me by both of the officials who took part, namely Mr Brown, Regional Procurator Fiscal and Mr MacDonald. Mr Brown told me -

"I had a general chat with Janet Cameron about the preparation of the case, Lord McCluskey's outburst and how we should take things forward. I was instructed to see the family. The RPF [Regional Procurator Fiscal] would generally only get involved in this way if there was a particular issue of concern to Crown Office and they wanted it dealt with under the supervision of an RPF.

I met the Chhokar family along with Alan MacDonald. Mr Chhokar Snr, his wife and Aamer Anwar were present. There was also a woman with them and I understood her to be the solicitor. I met with them in my office here at Hamilton. The meeting was set up through Alan MacDonald. He wrote to the Chhokar family. I discussed with Alan what the meeting was to be about prior to the meeting taking place.

Mr Chhokar did not speak in English. Aamer Anwar was interpreting. Occasionally when I was speaking, Mr Chhokar apparently understood my questions and provided a response in his language to Mr Anwar.

Mr Chhokar's main concerns seemed to relate to the trial and the outcome of it. He wanted to know why Ronnie Coulter had got off. He wanted to know why that happened and he also wanted an explanation as to why the Advocate Depute had not moved for sentence. I explained that the verdict was a matter for the jury and I couldn't comment on it. As far as the Advocate Depute not moving for sentence was concerned, I said that I would raise that matter with Crown Office. It was a reasonably amicable meeting and the Chhokars seemed a reasonable family.

Mr Anwar commented about the lack of liaison with the family. He said there was no liaison in the court and the relatives were left wondering what had happened. There was no mention of race.

Mr Anwar concentrated on the trial and the lack of liaison there. He may also have raised the fact that there had been no information given to the family in relation to only Ronnie Coulter being indicted.

The Chhokar family was not critical of the police but were critical of the Crown and the prosecution service in deciding to prosecute only Ronnie Coulter and also in relation to the liaison aspects. The Chhokar family lacked understanding about what was happening as a result of a lack of information. In particular, they could not understand why we only prosecuted Ronnie Coulter in the first instance.

I am aware of the letter [the Chhokar Family Justice Campaign letter dated 17th March 1999] but I did not see the letter before I met the family in March 1999.

In relation to the Advocate Depute not moving for sentence I explained that I did not know the reason for that in this case. I further explained, however, that it is not unusual in murder cases where an accused is convicted of a much lesser charge for the Advocate Depute not to move for sentence.

Mr Anwar told me that the family wanted a full transcript of the trial. He asked for the transcript to be in English. I told him that whether the transcript would be authorised would be a matter for the Clerk of Justiciary. Mr Anwar then raised the issue of payment. I explained that Crown Office would not normally pay for transcripts but undertook to raise it with Crown Office. I did this because of the fact that the case was so unusual that I could not rule out that Crown Office would not pay for the transcript, though I thought this unlikely."

18.14 Mr MacDonald described and commented on the meeting as follows -

"I recall writing to Mr Chhokar and the deceased's widow on 17 March 1999, inviting them to attend the meeting with the Regional Procurator Fiscal and myself on 19 March. It was a brief letter. I didn't get a reply. I sent the first letter and got no reply, I then sent a second letter and got no reply, but they turned up at the meeting. I don't know what happened to the letter. I don't recall if a letter was also sent to the widow, but if it's in the file then I must have done. I don't recall why they were all invited to the one meeting. Inviting two different factions to the one meeting never dawned on me at the time because I did not know that there had been a falling-out.

The people present at the meeting were myself, the Regional Procurator Fiscal, the deceased's father and sister, Aamer Anwar and a female solicitor.... Mr Chhokar Senior's wife was also there.

The particular questions which were asked were why only one individual was prosecuted, why no motion was made for sentence and concerns about the level of contact with the family pre-trial. ... I think there was a later meeting with Mrs Chhokar on 24 March, but I was not there.

The Regional Procurator Fiscal explained that the decision to only prosecute one of the accused was based on the evidence and the continued investigation of the other two accused. I don't recall whether a timescale was given for the conclusion of this further investigation, but it was discussed. We just said that the case was ongoing and that the evidence couldn't be discussed. This wasn't really put into simple language, but we were dealing more with Aamer Anwar than the Chhokars and Aamer Anwar was interpreting. A point would be raised and sometimes an answer would be given and Aamer Anwar would interpret. Other times it would just go back and forth between us and Aamer Anwar. Sometimes he'd then go back and fill the family in. Maybe an official interpreter should have been present at the first meeting, but it didn't occur to me to have one and no-one else suggested it.

If Mr Anwar was acting as solicitor then what about the role of Ian Smart, solicitor? They can't both have being acting.

The family seemed to accept that there could be no prejudice in relation to the ongoing proceedings and that certain things couldn't be mentioned at the press conference. Aamer Anwar accepted this on their behalf. Aamer Anwar appeared to accept it and the family appeared to accept it.

Aamer Anwar asked about the decision not to move for sentence - anything asked was raised by him. The Chhokars said very little. I think Mr Chhokar spoke and responded to Aamer Anwar's interpreting. I don't think a satisfactory answer was given for the fact that there was no motion for sentence. A legal explanation was given, namely regarding the Advocate Depute's discretion. I think it would be reasonable for the family to wonder why that happened. I don't know if they were influenced by Lord McCluskey's comments, that may be speculation. I don't know whether the Regional Procurator Fiscal asked if they were satisfied with the answer.

I don't think that the family walked out of the meeting satisfied, they still felt that clarification was needed."

18.15 Mr Brown's record of the meeting is contained in a letter to Frank Crowe, Deputy Crown Agent, on Monday 22nd March:

"I confirmed that the decision to prosecute only Ronnie Coulter initially was made on the basis of Crown Counsel's assessment of the evidence and that it had always been intended to investigate further in relation to the other 2 accused after the disposal of the case against him. I indicated that these further investigations may be concluded within a month and undertook to write to them at that stage to confirm the position.

I explained to them why I could not discuss the evidence and they appeared to accept this though naturally enough they had difficulty in understanding the outcome of the case against Ronnie Coulter. They accepted that every effort should be made to avoid doing anything which could prejudice the possibility of further proceedings in the case and undertook to bear that in mind at their press conference on Monday, 22 March.

As regards specific requests, they said that they would like a transcript of the evidence at Ronnie Coulter's trial in order that they would have a full picture as to what was said. They had obviously made some enquiries about this already and said that they had been quoted a figure of £500 a day for such a transcript. This was something they could not afford and they suggested that the Crown should pay. I told them that ultimately it was a matter for the Justiciary Office as to whether a transcript would be issued and that I thought it unlikely that this request would be granted not only because of the substantial cost but because the Justiciary Office only issued transcripts for certain limited purposes and did not generally do so in circumstances such as these. I did however undertake to pass the request on.

They also wanted to know why the Advocate Depute did not move for sentence. I explained that where an accused has been remanded in custody pending trial and is convicted of a much reduced charge the Advocate Depute has a discretion not to move for sentence but they were clearly not satisfied with this answer, no doubt being influenced by Lord McCluskey's comments. I accordingly said that I would seek an answer to this question.

They also raised the point about keeping relatives advised. Fortunately Alan McDonald, the depute who precognosced this case, did communicate with the relatives and in particular with Mrs Chhokar, the deceased's wife, who I am seeing on Wednesday 24 March, and their criticism seemed focused on what happened at the end of the trial when they were left wondering what had taken place and no-one said anything to them. This did not appear to be something for which they wished an answer and was rather said as a criticism. I told them that it was our policy to keep relatives advised."

18.16 Mr Brown followed up the meeting with the Chhokars by a letter of 1st April to Mr Chhokar. I deal with that below.

Commentary

18.17 This was a crucial meeting. Great damage had been done by the failure of family liaison before and during the trial, and this was the first opportunity to start to repair it. The way in which the meeting was convened and conducted reveals how little idea the Hamilton office had, even at that stage, of how to deal with a bereaved family -

· The style and presentation of Mr MacDonald's letter of invitation is heartless. It is a style in which an official might appropriately write to a citizen about, for example, the payment of a licence fee. It is not the style in which anyone should write to a father about the death of his son.

· The letter did not convey that the meeting was being called on the personal instruction of the Lord Advocate. Mr Brown's evidence testifies that it was an unusual step even for the Regional Procurator Fiscal to take part in a meeting such as this. Nothing seems to have been done to convey to the family that their concerns were now being taken seriously at the highest level.

· Mr MacDonald's assumption that Mr Chhokar would reply to a letter was naïve - the same mistake which underlay his original failure to make contact with the father. Lawyers and other professional people are used to doing business together by letter; but many citizens are not, and are unpractised and nervous about committing themselves to writing. In this case, there was also a question about whether Mr Chhokar would fully understand a letter written in English; and even more whether he would have been able to compose a reply in English.

· No thought had been given as to whether an official interpreter would be needed. This contrasts sharply with the police in their first contacts with the family, and was a basic error, as the following analysis of the meeting will show.

18.18 Mr Brown considered that it was an amicable meeting, but the family found it unsatisfactory, principally because it failed to give them answers to their questions. These were, as related by Mr Brown -

· Why Ronnie Coulter had got off;

· Why the Advocate Depute had not moved for sentence;

· Why only one man was prosecuted; and

· Whether the family could have a transcript of the trial.

18.19 When I met the Chhokar family and Mr Anwar on 16th February 2001, Mr Anwar had the following to say about this meeting -

"You also have to look at the attitudes within the Fiscal Service. When we first had a meeting with the RPF and the Depute Fiscal at Hamilton, the attitudes left a lot to be desired. There was complete arrogance on the part of Douglas Brown. No answers were given to the family."

18.20 In similar vein a report in The Observer of 21st March 1999 states,

`No one explained why only one was in the dock. A meeting was held with prosecution officials on Friday, but they were unable to explain that, or why Coulter was not sent for sentencing.'

18.21 I have to say that I am not surprised that the family felt the way they did. Looking at their questions in turn I comment that -

· The family were given some explanation of the role of the jury in finding the accused guilty on a reduced charge. The explanation may or may not have been intelligible and acceptable to them; but since there was no official or independent interpreter present the officials could not know whether the answers they were giving were adequate.

· Mr Brown's letter to the Deputy Crown Agent records that he was unable to answer the question about not moving for sentence, except in vague terms; but he did give an undertaking to seek an answer. He subsequently sent a holding reply on this point, in a letter of 1st April to Mr Chhokar. I shall deal with that letter below.

· The central question in this meeting was why only one person had been prosecuted. The family had heard the trial judge in his closing remarks voice what they themselves were thinking; and the Lord Advocate had specifically instructed his officials to deal with it for the family. Mr Brown summarised the response he gave, in the first paragraph of his letter to the Deputy Crown Agent, quoted above. Mr MacDonald's observation was that no satisfactory answer was given. The main focus of Mr Brown's presentation seems to have been on the need not to compromise evidence which might be used at a later trial; and he was of course perfectly correct to emphasise that. However, the family were clearly not satisfied with the answer to their own question, for they continued to raise it repeatedly afterwards.

· The question of a transcript was dealt with in subsequent correspondence.

18.22 This would have been a difficult meeting to handle in any case, and it is unlikely that, however it had been handled, the family could have been given full satisfaction. However, the officials compounded the difficulty for themselves by failing at the beginning of the meeting to establish who the other persons present were, and in what capacity they were present. There were two persons who were not family members: Mr Anwar and an unidentified woman, who was assumed to be a lawyer. It was of course perfectly correct to admit them to the meeting, if the family wanted them there: the family was entitled to bring with them such friends and supporters as they felt they needed. But when strangers are admitted to a meeting it is not discourteous, and may be essential, to ask them to identify themselves and to state in what capacity they are attending. This was a failure of normal meeting etiquette, at the very least; but it was also a professional failure, considering that the hosts were lawyers and the business was legal, to establish whether the visitors were legally qualified or lay. Mr MacDonald at least was formulating the question in his mind - `are you acting for the family?' - but the question was not asked, and confusion ensued.

18.23 This failure was compounded in the case of Mr Anwar, in that he was accepted as an interpreter, but was also, as the hosts quickly discovered, rather more than that. Mr Anwar was, and is, a campaigner. The family was, and is, fully entitled to seek the assistance and guidance of a campaigner or any representative that it chooses. However, Mr Anwar was also accepted as an interpreter, and that led to a confusion of roles, as Mr MacDonald's evidence clearly demonstrates. The result was that the officials got drawn into a dialogue with Mr Anwar, and in the absence of an official interpreter they had no means of knowing what the family - the parents in particular - were being told or what they were learning from it. They had reason to doubt whether the Chhokar parents were being given explanations of the legal system which they could understand, but they were prevented from checking the explanations with the parents directly, and thereby hindered in their attempt to build up a rapport and a relationship of trust with them.

The widow

18.24 Surjit's widow, Sanehdeep, was not at the meeting, and she was given no feedback from it. As I have noted above, she made a separate appointment, but then cancelled it, saying that she would contact Mr Brown at a later date. Mr Brown drew the conclusion that she did not want to be involved further. He told me -

"The impression I got was that she did not want to make further contact and that she did not want to see me. You have to be sensitive and should not harass an individual into a meeting with you."

18.25 I accept that the inference which Mr Brown drew may have been correct, and showed some sensitivity. Nevertheless, I do not accept that he was entitled to assume that she had no further interest. She was entitled to get the same information as was given to the other members of the family, and she should have been given it.

Letter from the MP

18.26 The question of why only one person had been prosecuted was raised again, by Frank Roy MP (Motherwell and Wishaw) on behalf of the Chhokar Family Justice Campaign, in a letter dated 18th March to the Lord Advocate. Mr Roy asked that the Lord Advocate provide him "with any information as to the reason for proceeding against one person only, when it appears that three people were originally charged and appeared on Petition". He also asked if the Lord Advocate intended to take any proceedings against other people.

18.27 The Lord Advocate replied the next day. His letter explained that in general it was long established and accepted general practice not to provide detailed reasons for decisions about prosecution or non-prosecution in any case. He referred to the risk of cases which were still under investigation, such as the Chhokar case, being prejudiced by such comment. He explained that one of the issues to be considered in any case was the sufficiency of evidence to meet the high standard of proof in criminal cases (beyond reasonable doubt). He confirmed that the case was still current and would remain so until a final decision had been taken, and that before taking a decision on further proceedings, he had instructed further investigations.

Follow-up to the meeting with the family

18.28 On 1st April Mr Brown wrote to Mr Chhokar to reply to the two points which he had undertaken at the meeting of 19th March to follow up. Again I quote the letter in full, for it is as significant for its tone as for its content -

`1 April, 1999

Dear Mr Chhokar

I refer to our meeting on 19 March.

You asked whether you could be provided with a transcript of the evidence at the trial of Ronnie Coulter. As I said at our meeting, it is a matter for the Justiciary Office (in terms of Section 94(2)(b) of the Criminal Procedure (Scotland) Act 1995) whether a transcript is issued and it may be that they will not be prepared to issue a transcript. Any request for a transcript has to be made to the Clerk of Justiciary, Justiciary Office, Parliament Square, Edinburgh EH1 1RQ, giving the reason for the request. As regards the cost of the transcript, I have checked the position with the Crown Office and I regret that we will be unable to pay for it.

You also asked why the Advocate Depute did not move for sentence. I am however unable to say anything further about that.

I undertook to write to you in about a month from our meeting to let you know how our inquiries were progressing. I shall of course do that. At present it looks as if these inquiries will be completed by then and that I will have the case re-reported to Crown Office for a decision on further proceedings.

Yours sincerely

DOUGLAS A BROWN

Regional Procurator Fiscal'

18.29 I put it to Mr Brown that this could seem a cold-blooded response, such as might be appropriate to send to a solicitor - with its references to statute - but not to a bereaved parent. He replied -

"I was asked two very specific questions and I gave a specific response to that. It looks like a cold letter but I do not see it as something which should have been handled in a different way. The questions arose out of a cordial meeting and there were no bad feelings expressed. The family asked specific questions and I gave answers.

It seemed to me that Mr Anwar was very involved with the family and would pick up on everything for the family. I also got the impression that the lady with the family was a solicitor. I was not wanting to give a bland statement but gave an explanation, hence the reference to the Acts of Parliament."

18.30 I accept that in part. Mr Brown was right to be mindful that the recipient of a letter such as this might put it in the hands of his solicitor. Nevertheless it was addressed to the individual: nothing would have been lost, and there was something to gain in trust and goodwill, by the inclusion of some indication of personal sympathy with Mr Chhokar's situation. The Regional Procurator Fiscal is an official, answerable to a Minister, the Lord Advocate: no Minister would have put his signature to a letter drafted in these impersonal terms.

18.31 For the same reasons the content of the letter is unacceptable, in respect of the bald statement about the reasons for not moving for sentence - `I am unable to say anything further about that.' It is true that at this point Mr Brown was acting on the advice he had received from Crown Counsel; but this was an opportunity at least to put on record the general explanation which Mr Brown had given at the meeting. The concept of `moving for sentence' is familiar to those who work in the criminal courts, but it is unknown - and must seem inexplicable - to the general public. In the handling of this point, and in the other explanations which were given at the meeting, little or no account seems to have been taken, not merely of possible language difficulties for the Chhokar family but of the unfamiliarity of any member of the public who has not had experience of the criminal justice system.

18.32 I am aware of the sensitivities surrounding the need to avoid looking behind prosecution decisions and that this may have led to the Procurator Fiscal being cautious about what he told the family. However, it would have been possible for him to discuss questions of general approach and principle. Lord Hardie, in giving evidence to me, used the sort of terms which could have been used in discussion with the family:

"Ronnie Coulter was convicted of a simple assault not involving a weapon. If a weapon had been involved, the Advocate Depute would undoubtedly have moved for sentence. .... It is important to get the precise terms of the Jury's verdict which shows that Ronnie Coulter was convicted of simple assault. Someone in custody on a charge of murder would have been in custody for three months prior to his trial. That is the equivalent to a six month sentence. Faced with the same facts I might have taken the same decision in not moving for sentence."

The family's solicitor

18.33 On Thursday 8th April Ian Smart, of Ian S Smart & Co, Solicitors, wrote to the Regional Procurator Fiscal to say that he had been asked to represent Mr and Mrs Chhokar. On the following Monday, 12th April, Mr Brown had a telephone conversation with Mr Smart and recorded on the file that Mr Smart had direct contact with the family who were concerned that the Procurator Fiscal's Office should get things right rather than rush to a decision. Mr Brown confirmed that everything would be very fully considered and that there was a possibility of a decision within a week. He told Mr Smart that he had undertaken to write to the parents. He recorded that Mr Smart was content for the Procurator Fiscal to communicate with Mr and Mrs Chhokar either directly or through him.

Second meeting with the family, at the Crown Office

18.34 There were no further meetings between the family and the Procurator Fiscal's Office at this period. However, on 16th April the family, accompanied by Mr Anwar and others, travelled to Edinburgh to ask to meet Ministers, namely the Lord Advocate and Henry McLeish MP, who was Minister of State at that time.

18.35 The Lord Advocate declined to meet them. Lord Hardie told me -

"I did not see the Chhokar family. I refused to see the deceased's parents and Mr Anwar. It was not appropriate for me to meet them at that stage until the case was concluded. ... I was quite happy to do that after the conclusion of the second trial. In the event, Colin Boyd met with the family just as I would have done had I been Lord Advocate."

18.36 Similarly the present Lord Advocate, Colin Boyd QC, who was Solicitor General at the time, told me -

"It was viewed as inappropriate for the Lord Advocate himself to meet the family. The Lord Advocate was considering whether to bring a prosecution against Andrew Coulter and David Montgomery. We were aware that there might be difficulties because of publicity surrounding the comments of the Lord Advocate and the trial judge. The Lord Advocate did not want to add to the potential difficulties. The first priority of the Lord Advocate was to enable, if possible, a prosecution against the 2 remaining accused.

He [the Lord Advocate] had met with other families in the past but only after the trial was concluded. He took the view that it would be difficult for the person involved in taking the final decision as to prosecution to meet with the family. He also took the view that it was not necessary for the family to meet with a Law Officer in order to have the position explained to them."

18.37 I agree with those views. Any decision to prosecute has to be taken in the public interest, and must not be seen to be compromised by pressure from any individual.

18.38 However, the Lord Advocate did not turn the family away. He instructed officials to meet them. An impromptu meeting therefore took place. The Deputy Crown Agent, Frank Crowe, accompanied by Susan Burns, High Court Unit, met Mr and Mrs Chhokar, Mr Anwar, Dr Serjinder Singh (an interpreter) and one other family supporter. The Crown Office note of the meeting (at Appendix 7) records the issues which were raised.

· Once again the questions of why only one person was on trial and why the Crown did not move for sentence were raised;

· there was pressure for a decision on whether the other two accused would be prosecuted;

· suggestions were made that there might be new evidence, and intimidation of a witness;

· the family's complaints about their treatment at the trial were repeated;

· Mr Crowe offered to discuss Mr Anwar's participation in racial awareness training for the Crown Office and Procurator Fiscal Service; and

· Mr Crowe said that there were lessons about keeping families informed which could be learned from the case. He was sorry that the points raised had caused additional grief. He said that family members were also witnesses and the police should have let the Procurator Fiscal know if there were any language difficulties. There had been an assumption that Mr Chhokar's English was fluent. He was now aware that an interpreter was needed and was keen to have someone to interpret for the family.

18.39 I have been given accounts of the meeting from two of the people who were present, namely Mr Crowe, the Deputy Crown Agent and Dr Serjinder Singh whom Mr Chhokar brought to the meeting as an interpreter. Mr Crowe said -

"...we heard that the family was coming through to Edinburgh to see Henry McLeish. He then decided not to see the family. A bus arrived in Chambers Street and the family wanted to meet with the Lord Advocate. It was not considered appropriate for the Lord Advocate to meet the family given that decisions still required to be taken regarding the other two accused. I was then delegated to see the Chhokar family. ... Mr and Mrs Chhokar, the sister, Aamer Anwar and 2 or 3 colleagues arrived at Crown Office ... There was certainly one other Sikh gentleman with the party.

We sat at a long table and Mr and Mrs Chhokar sat to my right with Aamer Anwar beside them. Most of the conversation took place through Aamer Anwar. There was another man who sat opposite me and he was introduced as an interpreter by Mr Anwar. He did not, in fact, interpret. It did not totally surprise me as I knew of Mr Anwar being a racial activist. It became obvious to me that it was quite a sensitive meeting but it was difficult because I was not aware how much was coming from Mr Anwar and how much from Mr Chhokar.

I found the meeting difficult because of the way the party sat in the room. It was important for me to address my remarks to Mr Chhokar. My understanding was that Mr Chhokar had a degree of understanding of English but that Mrs Chhokar did not have any English. I then addressed my remarks to Mr Chhokar and asked Mr Anwar to interpret. My impression was that communication was reasonably good in the circumstances and I thanked Mr Anwar for facilitation of that. I was relying on him as we did not have any interpretation facilities.

(The Crown Office had been given no notice of the meeting, and therefore could not in any case have done anything about an interpreter.)

I would like to think on a personal level that I have a good relationship with the Chhokar family. They have always been polite to me and I know it has been difficult for them, particularly due to the health problems of Mr Chhokar. I thought in my culture the proper thing was to be respectful and direct my remarks to them and I appeared to be getting respect back from the Chhokars.

I felt Mr Chhokar had a level of understanding of the discussions and this was supplemented by Mr Anwar's interpreting. Mr Anwar obviously had some form of prepared speech at the beginning of the meeting. This included the phrase 'they will be saying they murdered a Paki'.

Aamer Anwar was more prepared for the meeting than I was in the sense that he had come to Edinburgh expecting to have a meeting with someone whereas as I had had relatively short notice to prepare for the family and consider how to address their needs at that time.

I did offer to give the family an explanation of what had happened in previous proceedings but Mr Anwar indicated they did not have time to go into that.

I do not think Mr Chhokar was at all well at the meeting. A lot of Mr Chhokar's feelings come from the heart and to some extent they result from a lack of understanding of the proceedings etc. ... Aamer Anwar is a trainee lawyer and lacks experience in a lot of areas. He has not been able to advise or reassure Mr Chhokar on lots of the obvious questions regarding the proceedings. I know that Mr Anwar had sought advice from several lawyers. It is not a solicitor/client relationship between Mr Anwar and Mr Chhokar but I am not saying that that is the ideal."

18.40 I asked Mr Crowe what he understood to be the purpose of the meeting. He said -

"To have the organisation branded as institutionally racist. We had seen some of the material from the Chhokar Family Justice Campaign, including questions about who had reduced the charge to one of simple assault. I think this was a theme Aamer Anwar was developing but I had to say that it was the jury who had convicted the accused of assault."

18.41 Dr Singh was at the same meeting, to support Mr Chhokar. Dr Singh is the manager of Glasgow Interpreting Services. He is of about the same age as Mr Chhokar and they came from the same part of the Punjab. I asked him whether Mr Chhokar's difficulties were caused by his lack of understanding of English or of the procedures involved. He told me -

"Both. His English is just good enough for day to day. He would not understand official procedures within the court. That was the impression I got from him. From my experience and from looking at his facial expressions, I do not think Mr Chhokar was thoroughly understanding what was going on or what was being said on his behalf. He could answer simple questions in English but he always spoke to me in Punjabi. In terms of his capacity to handle English as a speaking language I would say that he would be a 3 or at most 4 on a scale of 1 to 10. The way I gauged this was not just from him speaking but from his facial expressions when someone was speaking for him."

18.42 I asked Dr Singh about his recollection of the meeting at Crown Office on 16th April 1999, and his own part in it. He told me -

"...statements were to be read on behalf of Mr Chhokar. Aamer Anwar had prepared the statements. Mr Chhokar could understand broadly what was being said. He asked me to say something but by the time I was asking Mr Chhokar what he wanted me to say, Aamer Anwar intervened and said that he would say it. Mr Chhokar was very disappointed. Mr Chhokar knows that I am an interpreter.

There was then a meeting inside the Lord Advocate's office. I was there with Mr Chhokar, Mrs Chhokar, Aamer Anwar and a friend of mine. It was there that Aamer Anwar was acting as an interpreter. Mr Chhokar was saying certain things in Punjabi and Aamer Anwar was editing what was being said. Mr Chhokar became irritated. He turned to me and said, `Why aren't you saying anything?' I said that Aamer Anwar was not letting me say anything. Mr Chhokar was frustrated.

...I do not think Mr Chhokar was always happy with the interpreting being done by Mr Anwar. I think the text of what Mr Chhokar was saying was not coming out ... He wanted to say things in emotional terms about his son. Aamer Anwar seemed to think this was the same thing being said over and over again. Aamer Anwar was more interested in terms of processing matters and the campaign. Mr Chhokar wanted to convey the impact of what had happened to him but he was handicapped in terms of language. The way you interpret things is often through body language and emotions. That is important in a Sikh person. I do not think Aamer Anwar understood that. He was more concerned about the media image.

If you are an interpreter you do not add or take away anything which is said, not just in text but also in intonation. If something is said in anger then the interpreter should convey it in anger. The interpreter should have the same impact on the listener as the person making the comment. If there is not that same impact then the interpreter is withholding something. If a person is acting as a spokesperson that is a different matter. He is not acting as interpreter. I think Mr Anwar's role as spokesperson did adversely impact on his role as interpreter for Mr Chhokar."

Commentary

18.43 This was a meeting quite unlike the preceding one at the Hamilton office. It took place in Edinburgh, with the Deputy Crown Agent, and under the direct authority of the Lord Advocate. It was not arranged in advance, and was held in the midst of a campaigning day by the Chhokar Family Justice Campaign, who had publicised their visit to Edinburgh and their intention to call on Ministers. The Campaign had its own agenda, but I have to assess this meeting in terms of its value to the members of the Chhokar family who were at the meeting.

18.44 From the accounts quoted above, it appears that the family could have learned little or nothing new about the matters which concerned them. The Deputy Crown Agent was at pains to communicate with them directly, so far as language allowed, but when he offered to give some legal explanation he was cut short by Mr Anwar. Mrs Sengha, Mr Chhokar's daughter, took some part in the discussion, but Mr Chhokar was, for various reasons, able to say very little. Dr Singh, who was an interpreter, was scarcely brought into the dialogue at all. Both Mr Crowe and Dr Singh observed that Mr Anwar was confusing the roles of interpreter and spokesman; and Dr Singh was sure that what Mr Chhokar wanted to say was being suppressed.

18.45 Nevertheless the meeting did serve a constructive purpose. It brought the family face to face with a high-ranking official, reporting directly to the Lord Advocate, and he gave them a sympathetic hearing and made a genuine attempt to be helpful to them.

18.46 Following this meeting Mr Crowe reported on it to the Lord Advocate, in the context of a more general submission about the case, on 27th April -

`An indication was given to the family that a decision would be forthcoming within the next month or they would be advised if the timescale was likely to take longer ...

... Mr Chhokar, Snr is not a fluent English speaker and his wife apparently speaks no English. The deceased's sister is a fluent speaker. Mr Anwar carried out interpreting duties but also pursued his own agenda. Fortunately, the party was augmented by another interpreter who was a Sikh who adopted a fairly reasonable approach.

Clearly, the family's lack of understanding of English has meant that they still do not precisely understand what took place at the previous proceedings. I offered to explain as best I could what took place at the earlier trial but Mr Anwar was anxious to continue his own agenda and then travel to the Scottish Office with the group to make a protest there also.

In the long term, after the case has concluded, there may be scope for meeting the family. As long as the family do not understand our procedures because of a lack of fluency in English, then the institutional racist tag could be levied against the Department. On the one hand the campaign is keen to see the others prosecuted for Mr Chhokar's murder but on the other hand seem keen to pore over a transcript of the previous proceedings and Mr Anwar seems to wish to bracket this case with the Stephen Lawrence case.'

18.47 This admirably accurate, complete and succinct report, coming from a very senior official, ensured that Ministers were fully aware of the situation, both as regards the political dimension and the needs and concerns of the family.

19. FROM MAY 1999 TO OCTOBER 2000

This chapter covers the period from May 1999 to the trial of Andrew Coulter and David Montgomery in October 2000. This was a period of protracted legal process. In the early months liaison with the various members of the Chhokar family was fragmented and, in relation to the widow and her children, seriously defective; but satisfactory arrangements were developed later.

19.1 The publicity following the first trial, in March 1999, and the emergence of the Chhokar Family Justice Campaign gave the case a public and political profile which Ministers and senior officials had to recognise; and the meeting with the family and the Campaign at the Crown Office on 16th April reinforced their sense of obligation to the family, or at any rate to Surjit's parents. The widow, Sanehdeep, was not part of the delegation which went to Edinburgh on 16th April, and distanced herself from the Campaign. Since the Procurator Fiscal's Office had failed to recognise the significance of this, her interests were unwittingly neglected for some time. I shall deal with this latter point first, setting it in the context of the activity which took place between 16th April and service of the indictment on David Montgomery and Andrew Coulter in early July 1999.

19.2 At the meeting of 16th April at the Crown Office, the family representatives had raised some points for further investigation; and the Deputy Crown Agent wrote the same day to the Regional Procurator Fiscal at Hamilton, Mr Brown, recording:

"The points of significance which arose at the meeting were that the deceased's sister indicated that the accused had been boasting that they had murdered the deceased. In particular, it was suggested that one of the accused had made such a claim to persons working in a carry out shop in Overtown. I suggest that police are instructed to follow up these enquiries. They also indicated that witnesses were frightened to speak up about the Coulters but this may be something to do with any reputation they have rather than particular threats. They also suggested that Miss Bryce was worried about her safety and it may be if it has not already been done, that Strathclyde Police need to speak to her and see if she requires any of their witness protection services."

19.3 Mr Brown set further enquiries in train. DI MacIver reported to him on 5th May 1999 that the police had interviewed people at fast food outlets in Overtown and that there was no evidence that the accused had mentioned the murder in either shop. It also reported that the police had interviewed Mrs Bryce who had said that she had no concerns or fears for her safety. Mr Brown reported this to the Crown Office on 11th May.

19.4 At the April meeting the Deputy Crown Agent had also given an undertaking to the family to keep them informed about the timing of the decision to be taken about the prosecution of the other two accused. Mr Crowe saw to this personally, through a series of letters to the family's solicitor, Ian Smart. He told me -

"I was also writing to Ian Smart. I knew Ian Smart from the past as I had worked on the Law Society Council with him. I think he must have got in touch with me first to let me know that he was acting for the Chhokar family ... It did not occur to me to send letters to Mr and Mrs Chhokar because they were so confused with the procedure. Mr Smart was their solicitor."

19.5 He wrote to Mr Smart at regular intervals -

· on 14th May he wrote - "In the light of Crown Counsel's consideration of the case papers additional lines of enquiry have been instructed. I would expect to be in a position to re-submit the papers ... by the middle of next month"

· and on 17th June - "the case papers are at present being considered by Crown Counsel and a decision is expected in the next few weeks"

· and finally on 2nd July - "I can advise you that Crown Counsel have instructed that David Montgomery and Andrew Coulter be indicted for the murder of Surjit Singh Chhokar."

19.6 These letters were not copied to the Hamilton office. There was of course no need to tell the Hamilton office about the progress of the case, since they were themselves dealing with it; but they were left to decide for themselves what communications to make to the family, and they were left unaware of the communication which was taking place between the Crown Office and the family solicitor. The Regional Procurator Fiscal, Mr Brown, took it on himself to write to Mr Chhokar, on 11th May to say that a decision on prosecution was expected shortly, and again on 14th May (the same day that the Deputy Crown Agent was writing to the Chhokars' solicitor) to say that further enquiries had been instructed and the decision would therefore be delayed. At that point however Mr Brown dropped the correspondence, on the assumption that Alan MacDonald, as the Procurator Fiscal Depute dealing with the case, would handle family liaison. He told me -

"...I had no further direct contact with the family. Alan was responsible for liaison. He told me that he was in touch with Aamer Anwar and I knew that the Deputy Crown Agent had also met the family. It is extremely unusual for that to happen. It is normally the person who is responsible for the precognition who acts as the liaison point. Crown Office, however, got involved and that involvement continued. There was no point in me also getting involved. There was no formal decision about who should take the liaison role. Crown Office got involved because Aamer Anwar went to Crown Office and got an audience with the Deputy Crown Agent.

I spoke to Alan MacDonald from time to time. I did not get much feedback from Crown Office. Alan would keep me briefed. I emphasised to him the importance of keeping the family advised. I asked him for information from time to time.

It was unusual for this to happen and Crown Office's involvement did, to a certain extent, make the liaison issue more complex. It is normally the precognoscer's responsibility without any liaison by Crown Office. I appreciate, however, why Crown Office did get involved. There was no specific explanation as to why continuing liaison by Crown Office was going to occur."

19.7 Mr MacDonald however was not told any of this. He told me -

"I don't know whether contact was made with DI MacIver in Motherwell. Most issues were dealt with at this stage by the Regional Procurator Fiscal. ... Mrs Bryce's only real complaint was regarding the amount of television coverage. The only mention of her fearing for her safety was brought up by the family. I thought it was strange that they would bring it up. I don't know what the outcome was of the enquiry into the accused boasting about the murder, you would need to read the subject sheet. I don't know if anyone got back to the family about that. I only know that the police didn't manage to turn up anything. As of the 14 May 1999 my involvement with the critical matters of the case was limited. But I was meant to be the link with the second trial. I knew of some specific things which I had to deal with. The Regional Procurator Fiscal dealt with everything else."

19.8 Meantime, the Crown Office was assuming that the Hamilton office would be keeping contact with the widow. When I asked the Deputy Crown Agent whether he knew, when he met the deputation on 16th April, who constituted the family, he told me "Mr and Mrs Chhokar, the deceased's sister and also his estranged wife" but he did not consider that it was up to him to communicate with the widow - "I understand that the Hamilton office was involved with the deceased's widow."

19.9 It is clear from this evidence that there was no co-ordination at all of family liaison during this time. The Regional Procurator Fiscal admitted as much to me: when I asked him how the channels of communication were co-ordinated, he replied simply "It wasn't co-ordinated."

19.10 The result was that, when the decision was taken to indict the other two accused, the one person in the organisation who might have informed Sanehdeep Chhokar of what was about to happen, namely Alan MacDonald, had not even been told of it. My evidence on this point came from the Deputy Crown Agent -

"The service of indictment is done by the Principal Depute [at this time Jim Robertson] and not the Procurator Fiscal Depute [Alan MacDonald], so Alan may not have known about service of the indictment. A letter was, however, sent to the Hamilton office at the end of June asking them to serve the indictment on Andrew Coulter and David Montgomery. The letter asks the Hamilton office to let us know when the indictment has been served.

The Hamilton office knew of the indictment although they did not get a copy of my letter to Ian Smart dated 2 July. That letter was sent to Mr Smart as soon as we knew the indictment had been served. The Hamilton office had lines of contact with Mrs Chhokar and Mrs Bryce. I don't know if any steps were taken to convey the information to the widow. A general letter regarding the service of the indictment would have gone from Crown Office to the Hamilton office."

19.11 The indictment was reported in the press on Saturday 3rd July. On Monday 5th July Mr MacDonald received a telephone call from Kate Duffy, of PETAL on behalf of Sanehdeep Chhokar. His account is given in his letter of 15th May 2000 to the Crown Agent -

"David Montgomery and Andrew Coulter were Indicted at the beginning of July 1999. As I understand the position, that decision was intimated directly to them [sc. the parents] by the Deputy Crown Agent. The decision was not intimated to Mrs Chhokar (deceased's wife). Unfortunately, she heard about the decision on television. On 5 July 1999 I received a telephone call from Mrs Duffy on behalf of Mrs Chhokar who had been upset to find out about the decision from the television. I wrote to Mrs Chhokar on 9 July 1999 ... During the telephone conversation of 5 July and a subsequent meeting with Mrs Duffy and Mrs Chhokar I found out that the deceased's parents terminated all contact with her and their grand-daughters, aged 14 and 12 years, shortly after the deceased's funeral."

19.12 Mrs Duffy's comment to me on this was -

"Actually it was Sandy's daughter who had put the television on and had seen a picture of her father. She went and told her mother and Sandy phoned me. She was extremely upset and did not know what to do. She did not understand what was being announced because of the shock of seeing Surjit's picture on TV."

19.13 I have commented in an earlier chapter on the mistake over the ages of the children, and on Mrs Duffy's emphatic statement that Mr MacDonald had been told as early as February that Sanehdeep was not on good terms with Surjit's parents.

Commentary

19.14 This evidence speaks for itself. It is a sorry tale. As with the earlier events, leading up to the trial and at the trial itself, the picture is not of individual negligence or, primarily, of institutional racism: this episode shows an organisation failing to assimilate the information available to it about a family, and failing to communicate within itself. As before, there is no one individual to blame; but every individual involved in these events, in the Crown Office and in the Procurator Fiscal's Office at Hamilton, contributed to some extent to an organisational failure.

From July 1999 to October 2000

19.15 The case against David Montgomery and Andrew Coulter was originally indicted to the High Court sitting at Glasgow commencing 16th August 1999. However the case was repeatedly adjourned as a result of the devolution issues raised and appeals which went ultimately to the Judicial Committee of the Privy Council, and the trial did not begin until November 2000. The detail of these various proceedings is outlined in Chapter 4 above.

19.16 After Mrs Duffy's telephone call of 5th July Mr MacDonald wrote to her and separately to Sanehdeep Chhokar, on 9th July. The letters were properly apologetic and sympathetic, promised to ensure that Mrs Chhokar would be contacted directly and kept advised of any developments, and offered a meeting on 27th July. Mr MacDonald also wrote on the same day to the Deputy Crown Agent to inform him of what had happened and to tell him of the situation within the family. It was arranged thereafter that Crown Office would continue to deal with the Chhokar parents and the Chhokar Family Justice Campaign, while the local Procurator Fiscal's Office would provide the liaison with Sanehdeep Chhokar.

19.17 Mr MacDonald recorded this meeting in a letter of 31st August 1999 to Mrs Burns, High Court Unit. I have discussed the meeting and this letter with him and with Mrs Duffy. Although there are some inaccuracies in the letter itself, I am satisfied that the meeting covered Mrs Chhokar's isolation and the effect of the rift between her and Surjit's parents. Mrs Chhokar expressed some concern about Mr Anwar's involvement. In particular she did not want media coverage of the case and was concerned about the effect which it would have on her children. At this meeting she also told Mr MacDonald that she was sure that the murder was not racially motivated.

19.18 Meantime, within the Crown Office, responsibility for the case passed to Mr Scott Pattison. He explained his role to me -

"From June 1999 to August 2000 I was a Principal Depute in the Crown Office Appeals Unit dealing solely with devolution issues and human rights issues. During that year I became operationally involved with the case of HMA v David Montgomery and Andrew Coulter in my Appeals Unit capacity.

Devolution issue minutes were served by David Montgomery and Andrew Coulter in early August 1999. These minutes were passed to me in the Appeals Unit and I was responsible for the preparation of the Crown arguments with the Advocate Depute, Raymond Doherty QC. Numerous hearings took place before Scottish judges and a hearing also took place at the Privy Council in London. I was involved throughout in preparation of the Crown arguments.

... preparation for preliminary diets normally takes place in the High Court Unit in Crown Office. Preparation for the hearings before Lord Abernethy on 26 August 1999 and Lord Kirkwood in September 1999 (which were preliminary diets) was dealt with in the Appeals Unit simply because ECHR was very new at that stage and it was felt appropriate that I should deal with preparation of the arguments."

19.19 Mr Pattison described his relationship with the family and the Chhokar Family Justice Campaign as follows -

"The parents and sister of the deceased together with other friends and supporters and the campaign representative, Mr Anwar, attended every day of every diet in this case.

When I saw that the Chhokar family and Mr Anwar were present in court at the diet on 26 August 1999, I spoke to them at lunchtime and after the conclusion of proceedings that day. Thereafter I spoke to Mr Anwar and the family before and after each day's proceedings at all diets in the case.

I did not know the family structure at that point. I was either aware at that time or shortly thereafter that the widow and Mrs Bryce existed.

The length of the conversations varied depending on which stage the proceedings had reached. It was obvious that Mr and Mrs Chhokar did not have a good command of English but it was also obvious that Mr Anwar was conveying information to the family and interpreting for them. Mr Anwar seemed to understand what I was telling him. On occasion Mr Anwar would interpret when I was present but I later asked Mr Anwar if he was conveying the information to the family and I was assured that he always conveyed the information to the family after I had left to return to the office. I accept that I do not know for a fact that he conveyed the information to Mr and Mrs Chhokar.

I was not involved in the liaison with the deceased's widow or with Mrs Bryce. I was simply involved in liaison with the family members who attended at court. In my view it was for the High Court Unit to advise the Procurator Fiscal Depute at Hamilton who was involved in liaison with the other members of the family and I felt I had discharged my responsibility by advising the High Court Unit of the position.

It is fair to say that I developed a good relationship with the Chhokar family and their representative. Mr Anwar has commented on the liaison which took place during the devolution issue and the ensuing appeals as `a model' of family liaison."

19.20 Throughout this period, from July 1999 to August 2000, family liaison was on the whole well co-ordinated and maintained effectively. While Mr Pattison kept in touch with Mr Chhokar and his family, Mr MacDonald at the Procurator Fiscal's Office in Hamilton kept in touch with Mrs Sanehdeep Chhokar and likewise with Mrs Bryce. Communication with Sanehdeep Chhokar was, at her request, mainly through Mrs Duffy of PETAL, and after November 1999 entirely so. Mr MacDonald explained -

"I stopped sending things to her because receiving the letters and having the police call round at the house with witness citations was getting upsetting."

19.21 In May 2000 Mr MacDonald wrote to Mrs Duffy -

"the last two Citations for Mrs Chhokar have been returned by the Police unserved. I should be grateful if you would confirm that she is still at the same address. It occurs to me that Mrs Chhokar can be told when the case is due to call and her Citation could be collected from this office or from you. This would mean that police officers do not need to go to her house if she finds this upsetting."

and this offer was gratefully accepted.

19.22 Even so, co-ordination was still sometimes imperfect. Mr MacDonald told me -

"There was a meeting on 19 March and one was arranged for Mrs Chhokar on 20 March, but that was cancelled. I don't know if there was a subsequent meeting arranged with Sandy. The Deputy Crown Agent met with the family and Mr Chhokar's sister on 16 April. It had not been explicitly said to me that Crown Office had taken over the family liaison issue, but I assumed from what was going on that they were doing it. But some of it was still down to me. I was aware that the other two accused were to be indicted. I knew that as I had done the precognition, but I wasn't asked to tell the family. I prepared the precognition, but nobody told me to make the family aware of this. I don't know whether the Crown Office were going to advise the family, it just kind of happened. That may have been why Sandy Chhokar found out the information from the television. I had to apologise to Sandy Chhokar about that again. I suppose Crown Office should have done that, but I thought it was just part of my job, although it may have been better for someone senior to do it. It may have been better to come from someone at the top. I don't know why that is, I told Crown Office of that, I just thought the appropriate thing for me to do was to write to people. I didn't know what Crown Office would do with that information. I don't know whether anyone else would have contacted Mrs Chhokar."

19.23 Mr Pattison's role in family liaison continued until the hearing at the Judicial Committee of the Privy Council (JCPC). Mr Anwar had continued to act as interpreter up to this point, but Mr Pattison suggested that it would be helpful to the family if an interpreter were provided for them at that hearing, and that was agreed. After the hearing Mr Pattison handed over his responsibility to Mr Crowe, the Deputy Crown Agent. Mr Crowe explained it thus -

"After the JCPC hearing the liaison role came back to myself and Susan Burns. Scott Pattison dropped out for two reasons - he was transferred to the Policy Group and the case was no longer an appeal but went back to being a trial. A difficulty then arose in that the Privy Council decided to issue the written reasons for their decision later. This was during the holiday period and it became apparent that we might not get the written judgment until October. We then heard that the trial could not be held until the written judgment was received. During that phase I was involved in telling the family what was happening. Mrs Bryce and the widow were not interested in the minutiae but Aamer Anwar and Mr Chhokar were interested in every detail."

19.24 Mr Anwar continued to act as interpreter until the hearing at the Privy Council, before which Mr Pattison suggested that an interpreter might be helpful and Mr Anwar and the family members agreed. Thereafter the Crown Office accepted that they should be responsible for providing interpreters, and gave close attention to that matter. Mr Crowe told me -

"Scott gave me the name of the Alpha Interpreting Services. I saw it as my job to get interpreters for the trial. Alan was invited to the meeting with the interpreters as he was to be the liaison person at the trial.

I met with the family and Mr Anwar on 10 October and the family were introduced to the interpreter, Mr Aziz. It was explained at this meeting to Mr Anwar and the Chhokar family that Mr MacDonald would make himself available at the beginning and end of each day of the trial to keep them advised of proceedings. This was also explained to Mr Aziz."

Commentary

19.25 The picture which this gives is of an organisation making a significant and successful effort to ensure that the family (and Mrs Bryce) were kept informed of the progress of the case. The liaison during this period was comprehensive, generally (though not always) well co-ordinated, and tailored to the differing requirements of the parents, Sanehdeep and Mrs Bryce. It seems to have been accepted as satisfactory by all of them.

20. PREPARATIONS FOR THE SECOND TRIAL

This chapter deals with the preparations for the second trial (HMA v David Montgomery and Andrew Coulter).

The Law Officers

20.1 The Law Officers took a personal interest in the arrangements for family liaison at the trial of David Montgomery and Andrew Coulter. The Lord Advocate, Colin Boyd QC, told me that it was one of his first priorities on taking office -

"I was appointed Lord Advocate in February 2000. In March of that year I was in the United States and in April I was at Camp Zeist. The main focus of my work at that time was the Lockerbie21 case. I started the Lockerbie trial and then came back to Crown Office in May 2000. I indicated that I wanted a meeting to discuss the Chhokar case. I took the view that I had to get up to speed with the case and also that I would be the one who would have to deal with the fall out of the case. I believed that the Chhokar case would cause more difficulties than the Lockerbie case."

20.2 As noted in chapter 4 above, the trial had to be several times postponed, since the High Court had ruled that it should not proceed until the written judgment from the Privy Council became available. The Crown Office was expecting to receive it in mid-October (in fact it was received on 19th October), and in anticipation of that the Deputy Crown Agent, Mr Crowe, wrote on 2nd October to the Regional Procurator Fiscal at Hamilton, Mr Brown, to make him aware of the interest taken by Ministers and of the arrangements to be made. The text of his letter was as follows -

"This case is likely to be adjourned on defence motion on 5 October to the sitting commencing at Glasgow on 23 October.

I enclose a copy of a recent letter received from the Judicial Committee of the Privy Council. As you know, the High Court in Scotland has ruled that trial cannot commence until JCPC's written judgement is available. It was hoped that this would be available in the first week of October so that the case could proceed in the 9 October Glasgow sitting.

The Law Officers are anxious for the case to be under way, if not concluded, before the second anniversary of Mr Chhokar's death on 4 November 1998.

I am making arrangements to have an interpreter present at the trial for the Chhokar family. It is envisaged that the interpreter would sit with the Chhokars on the public benches and keep them up to speed on events progressing in court.

The Law Officers are anxious that there should be full support from your office at this trial and I understand that Alan MacDonald, the precognoscer, is likely to be present for the duration of the trial. The Crown Agent has suggested that Mr MacDonald should visit the Lockerbie trial at Camp Zeist to see how the relatives are dealt with there. Having visited the court myself, I can see advantages in the Depute Fiscal assigned to the case meeting the relatives briefly after each day to make sure they understood the proceedings and to give them some idea in general terms of what witnesses are likely to be dealt with the following day.

It would be helpful therefore if you could make arrangements for Mr MacDonald to visit the Lockerbie trial and make contact with Ann den Beiman and her team who deal with the Lockerbie next of kin.

I hope to arrange a meeting with the family and prospective interpreters for the afternoon on Monday 9 October and would hope to arrange that we could meet at a central location in Glasgow in the late afternoon. Would Mr MacDonald be available for such a meeting?"

Meeting with the family

20.3 On 9th October Mr Crowe and Mr MacDonald met Mr and Mrs Chhokar, Mrs Sengha and Mr Anwar to introduce them to Mr Aziz, who had been recommended to the Crown Office as an interpreter. Mr Crowe's account to me was -

"I met with the family and Mr Anwar on 9 October and the family were introduced to the interpreter, Mr Aziz. It was explained at this meeting to Mr Anwar and the Chhokar family that Mr MacDonald would make himself available at the beginning and end of each day of the trial to keep them advised of proceedings. This was also explained to Mr Aziz ... I made it clear at the meeting that the interpreters were not our interpreters but were there to facilitate the family."

20.4 Mr Aziz also gave me his account of the meeting -

"The meeting was to clarify my qualifications. Mr Aamer Anwar was at the meeting and it was him who wanted to clarify my qualifications.

I have never had my qualifications checked before. I was asked to give my CV to Mr Khan of Alpha Interpreting Services to allow it to be faxed to Mr Anwar. This was unusual.

... Mr Anwar wanted to make sure that I had the right qualifications. He wanted the meeting but he already had a copy of my CV ... During the meeting Mr Chhokar did not test my capacity to act as interpreter. I did not find the meeting embarrassing, although it was unusual."

20.5 It is not clear from the evidence given to me whether anything explicit was said at the meeting as to whether the interpreter would be present at the meetings between Mr MacDonald and the family at the end of each day's proceedings in court. Mr Crowe thought not: he told me - "There was no discussion ... about Mr Aziz not being involved in these briefing sessions. That came about later." Mr Aziz had a different recollection: he said to me - "On 9 October 2000 it was made clear to me that I was only to interpret in court and that Mr Anwar would interpret for Mr Chhokar out of the court." At any rate, when the time came, the interpreter was excluded from those meetings and Mr Anwar insisted on acting as interpreter. I have commented earlier on Mr Anwar as interpreter; and I shall return to this point again, in the context of what happened at the trial.

20.6 Although this was the main business of the meeting Mr Crowe took the opportunity to discuss with the family the timing of the trial. He recorded this, and the family's point of view, the next day in an internal Crown Office minute, part of which runs as follows -

`I noticed that Mr Chokkar was in a visibly poorer condition than when I met him last year. He now walks with a stick and is apparently taking medication. He and his wife were very upset about the delays in bringing the matter to trial.

I indicated that I was doing everything in my power to bring the matter to trial as soon as possible and said that the latest information which we have is that the JCPC judgement is likely to be available in the week commencing 23 October. I indicated that the trial was scheduled for that sitting although the earliest it could start would probably be later that week or perhaps the week commencing 30 October. I indicated that I was aware that 4 November was the second anniversary of Surgit Singh Chokkar's death and indicated our wish that the trial should be under way before then if possible.

The Chokkars confirmed that they would be holding a remembrance service for their son on the weekend of 4 and 5 November and Mr Anwar advised that one or two trusted members of the press would be in attendance but he appreciated that publicity at this time might give the defence an opportunity to adjourn the case further.

After some discussion it became apparent that while Mr and Mrs Chokkar were anxious for the trial to proceed as soon as possible they wished to have a definite date to work towards. I explained that I was in the hands of the JCPC and thereafter the defence.'

20.7 On the same day Mr Crowe wrote to Mr Smart, the Chhokar family solicitor, to record the outcome of the meeting with the family, namely: that Mr Aziz seemed to satisfy the family of his credentials and that Mr Crowe would be arranging for him to attend through the trial and that he (Mr Crowe) was arranging back-up interpreters. He confirmed that Mr MacDonald would be making himself available at the end of each day's evidence to answer questions which Mr and Mrs Chhokar might have and to give an indication of the areas of evidence likely to be covered the next day. He recorded his undertaking given at the meeting that he would pursue the option of having the case adjourned until the 6th November sitting.

20.8 On 20th October Mr Crowe wrote again to Mr Smart, and also to Mr Anwar, sending each a copy of the JCPC decision and saying that it was hoped that the case would now proceed at the 6th November sitting of the High Court in Glasgow. He explained to me why he was writing to both -

"Some of this was a belt and braces approach to ensure that Mr and Mrs Chhokar got the information. The letters to Ian Smart were an extra which I did. I do not think by writing to him that I was causing any confusion. I spoke to Ian Smart ...and got the impression that while he was a conduit for information, Aamer Anwar was more involved with the case."

Interpreters

20.9 Mr Crowe also wrote to Mr Aziz to send him a copy of the trial charges and some background to the case including a reference to Mr and Mrs Chhokar having watched the first trial and having found the `whole circumstances confusing and disturbing, not unnaturally'. Further arrangements for interpreters were handled by Mrs Burns, of the High Court Unit at Crown Office: a female interpreter and a reserve interpreter (Ms Gufoor and Mr Makar) were engaged; briefing notes about the case were sent to each; and a meeting between them and the family was held in early November, to ensure that the family were content with them, before the day when the trial began.

20.10 These careful and elaborate arrangements for interpreters were without precedent. Also without precedent was the fact that Crown Office paid for the service, which was provided specifically for the benefit of the family sitting in the public benches. Mr Crowe's comments to me on all this were -

"The idea of paying for interpreters to assist people in the public benches would have been unheard of 5-10 years ago. I sometimes question whether we had the authority to do that. We took the decision, however, that it was right and it was at no inconsiderable expense. It is a measure of how far we have gone in recent years. Even if we had identified Mr and Mrs Chhokar's needs at the first trial, the best we could have done was to try to explain the procedures to them using what friends they had who could speak English. No one would have authorised providing an interpreter - that was not within the rules.

I had received an instruction from the Solicitor General and therefore had authority to get an interpreter for the family albeit it wasn't perhaps strictly within the rules. We were also concerned about the difficulties an interpreter for the family may cause in court with noise levels and distractions.

It was decided to let the family meet the interpreter prior to the trial - that was a lesson we had learned from the JCPC hearing."

Logistical preparations

20.11 On 16th October Mr Crowe wrote to Dr David Griffiths, Assistant Procurator Fiscal and Head of High Court Unit, Glasgow. The High Court Unit is responsible for the efficient management of the business of the High Court sitting in Glasgow, and gives some assistance at court on cases from outside Glasgow to their colleagues from the local office. Mr Crowe told Dr Griffiths that

· it was hoped that the trial would be held in the 6th November sitting;

· Mr Aziz would be interpreting and that arrangements would need to be made for him to sit with Mr and Mrs Chhokar and provide a simultaneous translation; and

· Mr MacDonald would be liaising with the family and would meet them at the end of the day to explain the day's proceedings and to give an indication of what was likely to be covered the next day.

20.12 In the letter Mr Crowe also stressed that the Law Officers were keen that the matter should proceed as smoothly as possible, and that he would require to keep them advised of any significant developments. He briefed Dr Griffiths on the family relationships, with Sanehdeep Chhokar and Elizabeth Bryce, stating that the parents had no dealings with either of them; and pointing out that Mr MacDonald maintained contact with them. He advised Dr Griffiths that Mr Anwar would probably be in attendance also.

20.13 Dr Griffiths replied on 18th October, saying that he would be on leave in the week beginning 6th November and that he would ensure that whoever covered for him was aware of the issues in the case. It was arranged at the beginning of November that Mr George Macleod would fill this role. Dr Griffiths also spoke to Mr Norman Dowie, Court Manager of the High Court in Glasgow, and Inspector Haggarty of Strathclyde Police about the logistics of the trial, and arranged that Mr Dowie would take personal charge of the arrangements within the court building.

20.14 Meantime Mr MacDonald was also in touch with Mr Dowie about accommodation for the family. He had spoken to Mrs Duffy, Sanehdeep Chhokar's representative, on the telephone, and was also aware of the need to arrange a private secure room for members of the Chhokar family.

20.15 The Crown Office also gave particular care to publicity arrangements. A full brief on the whole case was prepared by their press office and submitted to Ministers for approval. The head of the press office, Howard Hart, had a meeting with Dr Griffiths at the High Court in Glasgow, to be shown the buildings and to meet key members of staff. Mr Crowe also took steps to ensure that media briefing was co-ordinated with the press officers of the police. He wrote on 20th October to Superintendent Ian Gordon, Media and Information officer at Strathclyde Police as follows -

`The Coulter and Montgomery case is better known as the Chhokar case and is scheduled to proceed at the sitting of the High Court at Glasgow on 6 November.

I expect a great deal of media attention to this case and to that end we have drawn up a media strategy and lines to take.

I would appreciate a brief chat with you in order that I can put your designated press officer on to Howard Hart, our press officer, to discuss and clear the lines we will take in this case.

As I see it, the main criticism will fall on the Crown in this matter but there may be criticism of the well intentioned decision of the police shortly after the murder to advise local community leaders that this was not a racist crime.

On occasions in the past the Chhokar case has been said to be the Scottish Stephen Lawrence case but I do not think the parallels are there. This is a matter which requires delicate but firm handling, so that any criticisms are directed to areas for improvement. I wish to be sure that no inaccurate allegations are made by critics and to that end we have a chronology of what took place in the case to rebut any unwarranted criticisms.'

Commentary

20.16 There are several points which should be noted on the arrangements up to this point -

· Ministers took a close interest. They recognised that mistakes had been made in family liaison at the first trial, and were determined to show that lessons had been learned. They were well aware of the public profile and political implications of the case after the first trial.

· Very senior officials, both in Crown Office and in the Procurator Fiscal's Office at Glasgow, took a direct involvement in the preparations for the trial, and a close interest in family liaison, as they were bound to do, given the level of ministerial interest.

· The close attention given to publicity arrangements - including co-ordination with the police press office - also was a reflection of ministerial interest.

· Arrangements for interpreters were well thought out and executed: interpreters of both sexes were provided, and a reserve interpreter was on stand-by; the interpreters were given a general briefing on the case to prepare them; and they were introduced to the family, so that the family could confirm that they were content to work with them.

· Matters which were important to the family were recorded, in the letters to their solicitor and to Mr Anwar.

· The officer who would have the chief responsibility on the day (Mr MacDonald) was appropriately prepared for his role, by being sent to see a model of liaison in action at Camp Zeist.

· The Deputy Crown Agent, who took charge of the operation, also showed a personal concern and human sympathy for the family and their welfare. This is the essence of family liaison.

· Relationships within the family were well understood, and arrangements tailored accordingly. These elaborate preparations were a response to the fact that the Chhokar parents were associated with a public campaign; but at the same time appropriate contact was maintained with Surjit's widow, Sanehdeep, who distanced herself from the campaign.

A possible demonstration

20.17 On 30th October Mr Crowe recorded the following note on the Crown Office file -

`I spoke to Amar Anwar this afternoon by telephone.

I indicated to him that we had heard rumours that there was to be a demonstration by the Chhokar Family Justice Campaign at the start of the trial. He assured me that this was not the case and quoted from a note which he was passing around the family and close supporters that there should be no placards, chants or the handing out of campaign material. He did indicate that there would be a number of supporters at the trial but had called for discipline. Similarly, he reiterated that at the memorial service scheduled to take place this Saturday for Surjit Singh Chhokar three "trusted" journalists would be attending. I reiterated to Mr Anwar that they should not publish any articles on the eve of the trial since it was crucial there should be no media coverage of the case prior to the jury being empanelled. Mr Anwar assured me that he trusted the journalist concerned.

I made it clear to Mr Anwar that I was in no way trying to restrict the freedom of speech but indicated to him that I was anxious that the case should proceed to trial on the due date and that there should be no opportunity for the defence to delay matters or cause difficulties due to unfortunate publicity or demonstrations that might be seen by unempanelled jurors.'

20.18 Mr Crowe passed this information on to Len Higson, Regional Procurator Fiscal at Glasgow, in these terms -

`I have spoken to A Anwar who assures me no demonstration is planned and a leaflet is going out to supporters warning them to be on their best behaviour. Other representations are being made to Mr Anwar warning him that the Crown will be in difficulties if unempanelled jurors are met with a demonstration.

As far as I can gather no demonstration is planned but large numbers of supporters are likely to turn up and this would have logistical problems. The Court will not be able to accommodate every one and I imagine a number of people will end up in the street outside. Are the Police and Courts ready for this?'

20.19 This message was forwarded to Dr Griffiths who responded -

`I have spoken to Norman Dowie and rather more briefly to Insp Haggarty. Norman will take personal charge of things within the building. In accordance with normal practice supporters will not be allowed into the actual courtroom until the jury has been empannelled. There is a relatively large unused room on the first floor where people can wait before being allowed in. Thereafter the number of people who can get in will be constrained by the size of the room. Norman will be holding a meeting with his staff and will emphasis to them that they have to treat supporters with courtesy but, if need be, firmness. There is much other business going on elsewhere in the building which cannot be disrupted and counsel for Montgomery and Coulter will leap on any perceived inappropriate behaviour.'

20.20 The response was passed back to Mr Crowe, who commented -

`Have made contact with A. Anwar.

I told him Court space was limited and supporters would have to wait in a separate room while the jury is empannelled. He said he thought numbers would be no more than 50 and perhaps nearer 20-30. There would be some Councillors and Trade Unionists. He has clearly let all Chhokar Family Justice contacts know of the date but does not expect a huge turn-out.'

Commentary

20.21 This episode demonstrates, more clearly than any of the previous encounters, the incompatibility of the roles which Mr Anwar was undertaking, as a campaigner on the one hand, and as a representative of the family on the other. It had been pointed out to him more than once previously that publicity could jeopardise the trial, and thus defeat the ends of the campaign itself. More to the point, so far as this Inquiry is concerned, if inept publicity had derailed the legal process it would have worked exactly against the interests of the Chhokar family.

21. THE SECOND TRIAL: FIRST WEEK

This chapter deals with family liaison and dealings with the Chhokar Family Justice Campaign during the first week of the trial of David Montgomery and Andrew Coulter. There were few proceedings in court during this week, but much activity generated by the demands of Mr Anwar in his dual role of family adviser and campaigner.

Note: in tracing the course of events covered by this and the next chapter I have been able to draw on the notes and recollections of several witnesses, in particular Messrs Aziz, Crowe, Dowie, Griffiths, MacDonald, Macleod and Pattison, as well as the Advocate Depute, Mr Murphy and the trial judge, Lord Bonomy. It has thus been possible to assemble a much more complete account of events for this trial than for the first trial.

The first day: provision for the family and supporters

21.1 The trial was due to start on 6th November, and on that morning Mr MacDonald met Mr and Mrs Chhokar on their arrival at court, and showed them to a secure Witness Room which had been set aside for the sole use of the family for the duration of the trial. The Court layout and the involvement of prosecution and defence were explained to them. Another room was set aside for supporters. Norman Dowie, the Court Manager, High Court of Justiciary, Glasgow gave me this account of how the Chhokar family and their supporters were provided for -

"Some time during the week before the trial, I was approached by Alan MacDonald. He said that he wanted to make some special arrangements for the accommodation of the family of the deceased. He explained that he wanted a room for the Chhokar family which was basically a protected room. We had identified the North Court as appropriate for this trial. Behind the South Court there is a protected area and there is a protected witness room there. It is a suite with couches, en-suite toilet, table and telephone. I showed this room to Alan and he was keen that the family were given this room.

... The trial was due to start on Monday 6 November 2000. ... A number of things happened that morning.

I met the Chhokar family. I remember an older gentleman with a beard. I also remember meeting the mother of the deceased. We took the Chhokar family into the protected room. I think it was the mother and father, the daughter and another man. We took them into the secure area before 10 o'clock. I had been in touch with the restaurant about arranging tea and coffee at the request of Mr MacDonald.

Alan MacDonald was the principal liaison for the family. I was simply the facilitator.

Mr Anwar was with two groups that morning. He was moving between the family and a group of approximately 20-30 supporters. In relation to the peripheral family and the supporters, I had already made arrangements and had spoken to Mr Anwar in the morning about that. We had unempanelled jurors coming into the Court and the protocol is that unempanelled jurors do not mix with members of the public. I had made arrangements for the extended family and supporters to use another room. I explained to them that once the jury had been empanelled, they would be invited up into the Court room.

The reason for doing that was to keep the supporters and the family away from unempanelled jurors. There are potential 50 unempanelled jurors for each Court and there are five Courts. Generally about 35 jurors will turn up and there were, potentially 35 unempanelled jurors for the Court in which the Chhokar trial was due to commence. There is a potential hazard if you have either witnesses or a member of the public who know and have information about the case being in the public area and starting a conversation about the case with a potential juror. There is a possibility of contamination of a potential juror.

Mr Anwar understood this. I spoke to him about it. I also explained that the supporters could use the restaurant area but they would have to be careful about who they mixed with. I spent some time discussing this with Mr Anwar, approximately 5 minutes.

We are not used to dealing with a large number of people at the beginning of a trial. Large numbers of people often come towards the end of a trial. There is always a concern when there is a large number of people in a small area."

Commentary

21.2 In my view these arrangements were appropriate and satisfactory. The authorities at the High Court had to accommodate some unusual features of this case, and they did so.

Missing witnesses: the trial postponed

21.3 In the event the trial could not start due to the absence of one of the accused, Andrew Coulter, and two Crown witnesses (Alexandra Tierney and Ronnie Coulter) who had produced soul and conscience certificates22. Sean Murphy, the Advocate Depute at this trial, told me -

"One of the accused had not been brought from prison and I had to instruct police officers to go to the prison and get Andrew Coulter as the prison did not have staff to bring him. There were issues about the press and soul and conscience certificate issues for certain of the witnesses."

21.4 The judge (Lord Bonomy) accepted the reasons which were given for Andrew Coulter's absence; and the case was adjourned to 8th November to allow further enquiries to be made into the health of the two witnesses.

21.5 This information was given to Mr Anwar and the family, and they did not challenge it. However, Mr Anwar later made an issue of it in the press.23 Mr MacDonald's account of this to me was as follows -

"Aamer Anwar had to be satisfied regarding the absence of Andrew Coulter - if the judge was satisfied then I assumed that everyone else would be. I thought this had been satisfactorily addressed. Lord Bonomy was satisfied and so was Aamer Anwar at that time. Mr Anwar later raised the point in the newspapers and asked why Andrew Coulter had not been there. I didn't have an explanation at the time, as he had not been ordered out. I didn't know who should have ordered him out. I thought at the time that Aamer Anwar was satisfied; we couldn't have started anyway, as others were not there. When Aamer Anwar later raised this issue in the public domain I was surprised and disappointed. I could explain things until I was blue in the face but it was never enough. I didn't hear anything about the matter between the first day and the newspaper articles. Aamer Anwar approached me to find out why two witnesses could not turn up. Mr Anwar wanted to know who they were and why they were not there. I had instructions from the Advocate Depute regarding what I could say. He seemed satisfied, but he was dubious regarding why. I was apprehensive, I knew I had to be careful in case this was turned back on me at some point in the media."

Commentary

21.6 This dialogue did not seem significant at the time: it became significant afterwards, when Mr Anwar made an issue of it in the press. Mr MacDonald's comment reflects his growing unease as Mr Anwar used his standing as representative of the family to further his aims as a campaigner. This generated a distrust which impeded communication with the family.

A misunderstanding with Security

21.7 Two further incidents occurred that day which are significant for this Inquiry. The first is described by Mr Dowie in these terms -

"When the case called, one security man went to the room where the supporters were and brought them to the area outside the courtroom. This was prior to the jury being empanelled. I did not know that the security guard had done that. I saw the supporters and said to Mr Anwar that the jury had not been empanelled yet. He got quite indignant and said that the security guard had told them to move towards the Court. Mr Anwar was indignant, perhaps justifiably. ... People were upset and were emotional. I was aware of that. I was annoyed with the security guard. Once I had discovered that had happened, I apologised to Mr Anwar and to the girl who was with him. The group then went back to the room."

Commentary

21.8 This needs little comment. The security guard was out of order; people were upset; and the management, quite properly, apologised.

Campaign supporters

21.9 The defence raised with the judge the fact that outside the court supporters of the family were wearing ribbons. The judge required that they be removed. It was explained to the family that wearing the ribbons could constitute contempt of court. Mr MacDonald gave me this account and comment on the incident -

"Outside court the supporters were wearing ribbons. Mr Chhokar was annoyed when they were told they had to be removed. It could be contempt of court if they didn't remove them. Mr Chhokar was annoyed because his son had been killed. I did not know that Aamer Anwar had spoken to the Deputy Crown Agent about the court proceedings not being affected. The judge made a comment about the fact that the ribbons needed to be taken off. By the time I got out to deal with it, word had got round and people were taking the ribbons off before I got there. It was the defence who raised the issue before the judge. The jury were not in the room at the time, they were in another part of the building altogether. It could change the whole proceedings. The ribbons issue was not a good start to the family liaison, particularly as it upset Mr Chhokar."

Commentary

21.10 As I have noted in the preceding chapter, the Deputy Crown Agent had already advised Mr Anwar that `there should be no opportunity for the defence to delay matters or cause difficulties due to unfortunate publicity or demonstrations that might be seen by unempanelled jurors.' Mr Anwar professed to have heeded this warning, but he evidently did not succeed in impressing the weight of it on the campaign supporters. Not only did this incident give the defence a point to seize upon; it also caused distress to Mr Chhokar. I do not know whether Mr Chhokar had the significance of the matter explained to him, or if he did, whether he understood it; but I conclude that he was badly advised by Mr Anwar in this instance, to the detriment of his relationship with the officials.

The second day: Tuesday 7th November

21.11 On the next day Mr MacDonald telephoned Mr Anwar and explained that the information about the witnesses would not be available until Wednesday lunchtime and therefore nothing would happen in court the next day. Therefore, there would be no point in the relatives attending. On being asked, Mr Anwar stated that Mr and Mrs Chhokar were happy with the arrangements made for them and the support given.

Mr Chhokar as a witness: Tuesday 7th to Friday 10th November

21.12 Later in the same day Mr Anwar called on Mr MacDonald and asked him a number of questions about the trial, in particular when Mr Chhokar and Ronnie Coulter would give evidence. Mr Anwar said he was under the impression that the Deputy Crown Agent had given him an assurance that Mr Chhokar would give evidence and that this would be done at the start of the case. Mr MacDonald explained that the tactics and running order were a matter solely for the Advocate Depute (Mr Murphy) but undertook to discuss the matter with him.

21.13 I have taken evidence on this matter from several of those involved. I shall set it out at length -

Mr MacDonald -

"[at] 3:50pm I left a message for PETAL. [as he did each day - this would be for the benefit of Sanehdeep Chhokar] I also saw Aamer Anwar in the afternoon.

... Aamer Anwar said that the Deputy Crown Agent had told him that Mr Chhokar would be giving evidence early and therefore I was not to speak to Mr Chhokar again about it. Mr Anwar also wanted a running order, so that he would know when Ronnie Coulter would give evidence. I didn't know when this would be, but it would possibly be later on in the week. Mr Anwar asked me why the case was continued until Friday, rather than Thursday.

I expressed my concerns to the Advocate Depute that Aamer Anwar was too intrusive. I also called the Deputy Crown Agent to express my concern and clarify matters. I also phoned Elizabeth Bryce to explain what had happened at the High Court. It was then that Sean Murphy asked me to start taking minutes. It was difficult for me to perform my role as Fiscal Depute in relation to Mr Chhokar as a witness, if I was not able to speak to him. I was being told bluntly to keep away from Mr Chhokar.

...[On 9th November] I had received instructions from the Advocate Depute in relation to consulting with Mr Chhokar and precognoscing him with no one else there. ...

My instructions in relation to Mr Chhokar Snr were that I was to take his precognition with no one present. I was to ask him several things, (1) general background information, (2) about the identification of the body, (3) confirm when Mr Chhokar had separated from his wife, (4) confirm when Mr Chhokar Snr had last had contact with his son, (5) find out how often Mr Chhokar Snr was in contact with his son, (6) find out the full extent of the family, (7) confirm the sort of contact Mr and Mrs Chhokar Snr had with Mrs Chhokar Jnr and Elizabeth Bryce, (8) find out the nature of the break-up between Mr and Mrs Chhokar, (9) the circumstances in which the deceased met Mrs Bryce, (10) further background information, such as, if Mr Chhokar was called to give evidence, what he would be likely to be asked and in what context. I knew that on Friday it was likely to be background evidence only and therefore unlikely to be necessary for Mr Chhokar to be called.

... I took the statement in a separate room. There was only myself, Mr Aziz and Mr Chhokar there. Everyone understood what was going on, Aamer Anwar did not try to argue about it. I am not sure what his reaction to it was. Mr Chhokar did not say that he was unwilling to give evidence, we talked about it via the interpreter. He said that he didn't really want to give evidence, but that he would do so if the Crown thought it was something he should do. I don't know whether he thought that he had to give evidence, this became an area that he was unwilling to talk about without Aamer Anwar being present. He seemed uncomfortable and I formed the impression that he was apprehensive of doing something that Aamer Anwar might not agree with.

... [on 10th November] Mr Anwar did not seem content to leave the running order of the case to the Advocate Depute. He was saying that Mr Chhokar would give evidence and was detailing what it would be about. He didn't want Mr Chhokar still to be waiting to give evidence by the following Tuesday or Thursday. Aamer Anwar was saying that Mr Chhokar was only to be asked about the identity of the deceased."

Mr Aziz (the interpreter) -

"I do remember a statement being taken from Mr Chhokar by Alan MacDonald. Mr Chhokar indicated that he was not willing to give evidence. Mr Anwar wanted to put Mr Chhokar in the witness box but Mr Chhokar indicated to Mr MacDonald that he did not want to give evidence.

Alan asked me to help him in taking a statement from Mr Chhokar. Towards the end of this interview, Mr Chhokar said to me something like, `They are asking me to give evidence but in fact I never saw anything. I was in bed, the police came to my house and told me that my son was dead. They took me to the hospital to identify the body. If it is not going to make any difference to any evidence, then why should I give evidence?'

I then explained to Alan that Mr Chhokar did not want to give evidence. Alan never asked Mr Chhokar to give evidence or not to give evidence. Mr Chhokar was not surprised that he may have to give evidence.

I was not left in any doubt that Mr Chhokar did not want to give evidence. He made it clear to me.

When we came back to the room the rest of the family were there along with Mr Anwar. I always spoke to Mr Anwar in English. I said to Mr Anwar, in English, that Mr Chhokar had said he did not want to give evidence. Mr Anwar was not happy. He was visibly unhappy. You could tell by his face. He did not raise his voice. I think he did use the word `fuck' as well but I'm not sure.

Mr Anwar said to Mr Chhokar, `I did tell you that you were to give evidence. Why did you say that you didn't want to give evidence?'

Mr Anwar did not say in my presence that Mr Chhokar did not understand the word `witness'. I do not know if Mr Anwar later spoke to Alan.

No other family member was insisting that Mr Chhokar gave evidence. Mrs Chhokar was in favour that Mr Chhokar did not give evidence. Mrs Chhokar said, in Punjabi, `That's a good thing. It's just as well. He did not want to give his evidence in this case anyway'."

Mr Crowe said, in relation to Mr Anwar's statement that he had given him an assurance that Mr Chhokar would give evidence -

"No, that is not correct. I could not give that assurance and I explained to Mr Anwar that it was a matter for Crown Counsel. I said I understood his position and would pass that information on to Crown Counsel. I did sympathise with Mr Chhokar and I said I would report the matter to Crown Counsel for their decision. It is not within our power to excuse a witness from the High Court."

Mr Murphy (Advocate Depute) -

"At a very early stage there was a communication from Aamer Anwar via Alan MacDonald to me relating to talk of Mr Chhokar's right to give evidence. No witness has a right to give evidence, that is a matter for the trial Advocate Depute. Mr Anwar had made a specific request that Mr Chhokar give evidence about identification of the body and nothing else. That worried me because I can have no control over the defence line of questioning. I was aware that there was ill feeling between Mrs Bryce and the deceased's father and I did not know if the defence would play on that. The nature of the comment by Aamer Anwar was that Mr Chhokar would only like to give evidence about the point of identification. I asked myself the question, 'what does he know that I don't?' because that request caused me concern.

I also knew that it was likely to be a tough, no-holds barred trial by the defence. Subsequently, the defence did seek to bring out evidence of an assault by the deceased on Mrs Bryce. Mr Chhokar might have had information about that.

Following this, I sent Alan MacDonald down to reprecognosce Mr Chhokar on the relationships involved. Alan came back and read the notes of the precognition to me.

... I said to Alan MacDonald to ask Mr Chhokar at the end of the precognition exercise his views about giving evidence. That was not the main purpose of the exercise but I have done that in previous cases. Alan read me the notes of the precognition and I recall these included that there was no contact between the father and Mrs Bryce and that the father blamed her for the break-up of his son's marriage. He had also said that he was not particularly keen to speak in court but if I considered it important for the Crown case then he would do so. On the basis of the information contained in the precognition I decided to discharge Mr Chhokar. Alan MacDonald would then have to go back and tell Mr Chhokar he would not be required as a witness. This would allow him to sit through the whole trial...

I was also concerned that in legal terms Mr Chhokar was not necessary as a witness. It might have been perceived by the defence as seeking a sympathy vote because the evidence was thin. I have no doubt that would have been said by the defence.

There was a difficulty the next morning. There had been some representation by Aamer Anwar to Alan to me that Mr Chhokar had not understood the word `witness'. As I understood it, the word 'witness' had not been used. Mr Chhokar had been asked if he wanted to give evidence. I did not understand Mr Anwar's representation. It didn't make sense and I was a bit suspicious . I then told Alan to take the notes of the precognition to the interpreter, Mr Aziz, and to check with him if they were accurate. The notes Alan had read to me were consistent with Mr Aziz's recollection."

21.14 The matter came to a head on the Friday morning, just before the trial proper was about to start. Mr MacDonald had learned at the precognition (supported by the interpreter) that Mr Chhokar did not wish to give evidence. He relayed this information to the Advocate Depute who was happy to discharge Mr Chhokar from giving evidence. At 12.15 pm he met Mr and Mrs Chhokar and other relatives (but not Mr Anwar). He explained that the case was about to start and that it would deal with photographs only. At 12.20 pm, with his colleague George Macleod also present, he explained to the relatives (and Mr Anwar) that the Court was about to empanel a jury, and that once the jury has been empanelled they would all be allowed into Court to hear the evidence.

21.15 Mr Anwar then informed Mr MacDonald that Mr Chhokar wanted to give evidence. He said that Mr Chhokar did not understand the word "witness" and that the family were insisting that Mr Chhokar should give evidence. Mr MacDonald reiterated that if Mr Chhokar was a witness then he could not go into Court and it would be wrong for anyone who had been in Court to relay information to him as a potential witness.

21.16 At 12.40 pm the jury was empanelled, and Mr MacDonald advised Mr Anwar in the presence of Mr and Mrs Chhokar and other relatives that following the interview with Mr Chhokar their views had been passed to the Advocate Depute and Mr Chhokar had been discharged as a witness. Therefore, Mr Chhokar would not now be called as a witness and was free to sit in Court.

21.17 Mr MacDonald's account of this to me was -

"... Mr Chhokar, via the interpreter, said he didn't want to give evidence. A few minutes later after [my] seeing the Advocate Depute and returning to the family room, Mr Anwar said that Mr Chhokar and the family wanted him to give evidence. This was the opposite of what Mr Chhokar had said to me. I felt that Mr Chhokar had nothing significant to say in evidence, but it wasn't my decision to say whether or not he was to give evidence. I was told afterwards that Mr Chhokar actually wanted to give evidence and I wanted to know how that had happened. At 12:20pm I went back into the room with George Macleod and Mr and Mrs Chhokar and Aamer Anwar were present. We explained which witnesses would be called so that Mr and Mrs Chhokar would know what was going to happen. Aamer Anwar was now saying it would be good tactics for Mr Chhokar to give evidence, he was essentially telling me what to do as a Fiscal Depute. I couldn't believe it. When Mr Chhokar said that he wanted to give evidence, I was surprised and frustrated. Only 5 minutes before everything had been different, now there was another issue to deal with. Aamer Anwar said that there had been confusion because Mr Chhokar did not understand the word 'witness'. At that point I didn't know how to deal with that, I had been up and told the Advocate Depute about one decision and now I came back down to find that everything was completely different. If he was going to give evidence then he wouldn't be allowed into court, so we explained that. Finally, we said that if there was a problem he had to take it up at a later date, as the final decision had been made. Aamer Anwar said that the family were insisting that Mr Chhokar gave evidence. Mr and Mrs Chhokar, Mr Aziz, Miss Gufoor, George Macleod, possibly the sister, Aamer Anwar and myself were present.

When I went back to the room, Mr Anwar was angry or at least somewhere between annoyed and angry. He was visibly upset. You could tell by his face he was unhappy. I wanted Mr Aziz to tell me what had happened in my absence, but he did not want to get involved. The interpreters had had enough, you could sense they were becoming involved, but they just wanted to interpret. I was left with a dilemma, but we eventually said we had reached the end of the issue and had to move on. By this time I was beginning to feel that Aamer Anwar was not representing Mr and Mrs Chhokar very well, he was coming very close to committing a criminal offence and perverting the course of justice. He was interfering with the prosecution and the Advocate Depute said that himself. The Advocate Depute was affronted at Aamer Anwar telling him what the Crown tactics should be, I would have told Aamer Anwar that myself if I had backing and support. The word `witness' was never used during my conversation with Mr Chhokar. We had spoken about giving evidence and talk of witnesses was not relevant. Hence it was irrelevant whether or not he had understood what a witness was."

Commentary

21.18 Mr Anwar, a trainee solicitor, had formed the view that the prosecution team was incompetent - he said as much at a later stage in the trial, and he has described them to me as "bungling idiots" - and set about to manage the prosecution himself. Mr MacDonald comments in the extract above that Mr Anwar came close to perverting the course of justice. I do not suppose that that was Mr Anwar's intention; but the officials perceived that risk and had to take appropriate action.

21.19 It is also hard to escape the conclusion, from the accounts quoted above, that Mr Anwar was putting pressure on Mr Chhokar, sometimes against his will. There were three witnesses to Mr Chhokar's statement that he did not want to give evidence - Mr MacDonald, Mr Aziz and Mrs Chhokar - and yet within a matter of minutes of learning of this, Mr Anwar claimed - also in the presence of several witnesses - that Mr Chhokar did wish to give evidence. We do not know what passed between Mr Anwar and Mr Chhokar in the few minutes when Alan MacDonald was out of the room. The interpreters, understandably, did not want to be drawn on that. But if Mr Chhokar was persuaded to allow it to be said that he did wish to give evidence it was against his will.

21.20 The point of concern here for this Inquiry is that communication between the prosecution team and the parents of the murdered man - family liaison - was utterly frustrated. The liaison officer, Mr MacDonald, had been cut off from direct communication with Mr Chhokar, and was only able to talk to him direct and in privacy under the conditions of a formal precognition, and that only because he was at that stage still technically a witness.

21.21 These problems were very apparent to all the officials involved with the case; and at some point during these days - the exact timing is not recorded - the Deputy Crown Agent instructed that two people should be present when speaking to Mr Anwar and that notes should be taken.

A confrontation with security

21.22 At 10.20 am on 10th November Mr MacDonald, on going to the secure Witness Room, met Mr Anwar. Mr Anwar was `very annoyed'. He said he had been stopped by the Head of Security who had been aggressive with him and had tried to physically stop him taking a family member into the room. He asked whether the Security Guard would have treated a white solicitor in the same way. He said he wanted to make a complaint about the Security and made it very clear that he did not want anyone `hassled' or turned away. Mr MacDonald said that he would deal with the matter so that Mr Anwar could have unrestricted access to that room without experiencing further difficulties.

21.23 I took evidence from several witnesses about this incident: Mr MacDonald; Mr Barclay Williams, the Security Supervisor at the High Court in Glasgow, who was the man who stopped Mr Anwar on this occasion; and Mr Dowie, the Court Manager -

Mr MacDonald -

"... there had been a problem with the security guards and Mr Anwar going into the witness room with a relative. They wouldn't let him in and there was a confrontation, the security guards got the people in the room to identify the person who was trying to get in by describing him by the colour of his turban.

... It was Aamer Anwar who raised the problem with the issue of the colour of the turban. He was very angry that he had tried to get into the room and had been stopped, he said that the relative did not want to get hassle. He asked me if a white solicitor would have been treated in the same way.

After the turban issue Mr Anwar was allowed to come and go as he pleased and it wasn't raised again. The person wearing the turban wasn't there when the comments were made. The security guard went into the room and asked those inside what colour of turban the gentleman was wearing. That couldn't have been heard by the wearer of the turban and so he couldn't have been offended by it. Aamer Anwar was aware of who was allowed to go into the room. I suppose I might do things differently now, I would set parameters, it was a family room. As far as I was concerned the definition of family included Mr Chhokar's mother and father, his sister and any relatives, but not strangers or supporters. Aamer Anwar knew that. I don't know whether or not the security guards knew that. I did not tell the security guards that I had given Aamer Anwar my pass. The security guard was just doing his job, it was quite right that he should have stopped both of them."

Mr Williams -

"Mr Anwar tried to get into the family room with another man. I thought he was a member of the public. They came from the unempanelled jurors' room. I challenged Mr Anwar and he said that he was with the brother or brother-in-law (I'm not sure) of the deceased. I then accompanied the men to the family room. I went into the family room and asked one of the family members to come to the secure entrance to identify the gentleman. I asked the deceased's sister or sister-in-law (I'm not sure) to come out and identify the man as her husband. I think I may have asked the lady what the man was wearing and I think the colour of his turban was mentioned."

Mr Dowie -

"The arrangement between Alan and myself was that only one person had authorised access to the secure unit and that person was Alan MacDonald. I cannot comment on the behaviour of the security guard but what he did in not letting Mr Anwar through to the secure area was correct on the basis of the agreement and instructions I had given. Any contact in the secure area would have to be through Mr MacDonald.

The security officers were aware that Mr Anwar was a representative of the community and at times would be accompanying the family although he was usually in the company of the supporters' group. I understood that Mr Anwar's principal role was that he was representing the community and the supporters who were there. With regard to the family, I simply understood his role to be there as support for the family."

Commentary

21.24 Mr Williams was doing his job quite correctly. He had to establish the bona fides of the stranger, and it was sensible to ask a person inside the room about what he would be wearing. The answer to Mr Anwar's `would you treat a white solicitor the same way' would of course be Yes: the only discrimination which the security guard could make was between people who held a pass and those who did not.

21.25 More significant for this Inquiry is that this incident is the clearest evidence up to this point that Mr Anwar was out of sympathy with what Mr MacDonald was trying to do for the family, and had no patience with it. Mr MacDonald's perception was -

"I got the impression with Mrs [Sanehdeep] Chhokar that we were on the same side, but Aamer Anwar did not give me that impression. I suppose that Aamer Anwar was using me as a whipping boy for his complaints and concerns. If he had a problem and wanted something done, it was me that was approached. ... I felt there was a lack of respect for me as an individual. ... I would always treat people the way that I would expect to be treated myself. I felt demeaned by Aamer Anwar ..."

21.26 There is other evidence of this too, from later in the trial, which I shall come to in due course. I also came upon evidence incidentally, from Mr MacDonald's colleague Dr Griffiths, who told me -

"I did have some concern that Mr Anwar was perhaps taking advantage of Alan MacDonald. At one point Alan MacDonald came in to our office with a floppy disc and asked my secretary to type up a lecture which Mr Anwar was delivering at Strathclyde University on anti-racism. This request was refused on my instructions. There was a danger that Mr Anwar was taking advantage of Alan MacDonald and also a danger that Alan might be taken advantage of."

21.27 When Mr Anwar met with me, on 16th February 2001, he remarked -

"It was the same people involved in the two trials. I think they realised that the shit was going to hit the fan and they over-reacted. They were going around and getting glasses of water for the family. It was funny to see just how far you could make someone like a Fiscal Depute go to help somebody. It just shows how much they are going through the motions. It was if they were saying that everything is okay now, let's just move on."

21.28 Clearly, Mr Anwar was not interested in family liaison, since he treats it with derision.

Interpreters

21.29 As the family were about to go into court on 10th November there was a discussion regarding the use of the interpreters. Mr Anwar stated that there was an agreement with Crown Office that the interpreters would be used for Court purposes only. Mr Anwar would interpret at any meetings with the relatives.

21.30 I have noted above (at paragraph 21.5) that it is uncertain whether there had been such an agreement. The only additional point to make here is that Mr Anwar's proposition was accepted, and thus he further interposed himself between the officials responsible for family liaison and the family itself.

A meeting with the Advocate Depute?

21.31 In the course of the same discussion Mr Anwar said that it had been suggested that the Advocate Depute would meet with Mr and Mrs Chhokar that afternoon to introduce himself and to discuss the case. Mr MacDonald said that Mr Murphy was prepared to meet with Mr and Mrs Chhokar at the end of the day in the presence of the interpreters and not Aamer Anwar. Mr Anwar continued to maintain that he had agreed with the Deputy Crown Agent that he (Mr Anwar) would interpret at any meetings. In the event, since Mr Anwar was unwilling to agree to a meeting without himself being present, there was no meeting with the Advocate Depute during the trial.

21.32 I got Mr Murphy's account of this -

"Alan MacDonald went to explain to the family that Mr Chhokar was not required. He came back with word that the family wanted to see me and I would then inform the defence that I was to meet with the family. The message then came back that the family were insisting on Aamer Anwar being present at the meeting, but as I understood it, it was Aamer Anwar who told Alan that. I explained to Alan that I had to maintain my position during the trial and that I could not meet a representative of a campaigning group in those circumstances. There is a question of prosecuting impartially in the public interest and the responsibility stops with me. I spoke to the Lord Advocate and explained to him that I would meet with the family and Aamer Anwar after the trial but was unable to do so during the course of the trial. The defence had brought to my attention a public rally at which Aamer Anwar was due to speak. Aamer Anwar was therefore involved in the political arena and I could not be seen to discuss the case with him.

I had concerns about Aamer Anwar's representations on the points of Mr Chhokar giving evidence and wishing to discuss my tactics during the case. I was suspicious in the sense that it was the second occasion when something had been narrated to me by Alan MacDonald from Aamer Anwar which was inconsistent with other information. The Deputy Crown Agent has no authority to bind Crown Counsel. The other difficulty in relation to discussing tactics etc is that these things can get out to the press.

If Aamer Anwar had been introduced to me as a family support person then I would have had no problem in meeting with him, but Mr Anwar had a very public role in this case."

Commentary

21.33 Mr Murphy had a clear perception of Mr Anwar's legitimate role as a campaigner, and rightly insisted that it could not be confused with that of an interpreter or family friend. He was aware, as Mr Anwar was not, that it would be highly prejudicial to the prosecution for him to have anything to do with a public campaigner during the course of the trial.

Provision of witness lists

21.34 Mr MacDonald has recorded that copies of the Indictment and Notices etc together with a full list of witnesses were made available on this and subsequent days to Mr Anwar and the relatives. I asked him about the background to this, and he told me -

"Aamer Anwar also wanted the Crown list of witnesses, I am not sure why, but I said he couldn't have it. This was intrusive. He said the police had it and the Clerk of Court confirmed it was in the public domain and so I thought there couldn't be any harm. I didn't really know why he wanted it, he later said it was on behalf of Mr Chhokar. He wanted a copy of the indictment and a list of witnesses. I put these in booklets for the family, but I didn't have this translated."

21.35 Mr Murphy told me a different story -

"I have a master running order [of witnesses] ... which goes to my Crown Junior and myself. I then have extracts of that each day for the defence and the court macer. It is never given to anyone else. That running order sometimes bears no relation to what actually happens for unforeseeable reasons, usually problems over witness availability ... I think Alan MacDonald also had a copy of the running order, but he only had access to it in order that he was able to marshal the witnesses.

Alan MacDonald was told to give the family an overview of the evidence, for example, scene of crime officers, eye witnesses, pathology, etc. This would allow the family to know the direction the case was taking, and they would also need a forewarning of evidence such as the pathology evidence."

Commentary

21.36 Mr MacDonald was right to see this as intrusive. He should not have made witness lists available to a third party. There are several dangers in making witness lists available -

· Witnesses are often reluctant when called on to help the police and the courts: if they knew that their names and possibly their addresses or places of work could be put into the hands of victims' families or of a campaigner, they would be even less likely to co-operate.

· If the lists are put into the hands of a third party there would be nothing to stop him from carrying out his own investigations.

· The Crown should not release witness lists, lest the prosecution be jeopardised through allegations of potential interference with the evidence. That may, importantly, prejudice the right of the accused to a fair trial.

Note-takers, and segregation, in court

21.37 Later in the same day (10th November) Mr Anwar made two complaints. One was that his note-takers had not been allowed to sit in the front row of the public benches. The second complaint was that, on entering the court building, white supporters of the campaign were being directed to the canteen and Asian supporters were being directed to the unempannelled Jury Room; and in court itself white people were being directed to the left and Asians were directed to the right. Mr Anwar pointed out that it was not just Asian people who were supporting the campaign.

21.38 Mr Anwar returned to this issue in the public statement he made at the end of the trial, on 29th November, claiming that there had been a deliberate policy of racial segregation within the courtroom -

"Even at its most basic level, we noticed that on the first day of the trial the head of security adopted a deliberate policy of segregating the court room by pointing white people to one side of the court and blacks to the other, this continued until it was complained about. Why are court officials allowed to harass the black and Asian community as though they are criminals."

and he repeated it to me when I met him with members of the Chhokar family -

"There was segregation in the court. White people were made to sit at the left and Asians to the right. An assumption was made by the guards that white people would not be supporting the family. The majority of the 150 people there who were supporting the family were white.

There is a rudeness by people who deal with you. This was pointed out to the Crown. I said to the Crown 'once again your colour blind approach did not even see segregation in court'. The response by them was that they were not in charge of that."

21.39 The police have responsibility for security in the courtroom and for the safety of everyone in the building. I took evidence on the police role from Inspector Eddie Haggarty of Strathclyde Police, Courts Branch. He explained the briefing he had had on this case, and put it in the perspective of his job generally -

"I was kept abreast of the plans being made in respect of this case by Norman Dowie and Dr Griffiths. We had a number of discussions about the case. They had intelligence about a possible demonstration and also about the numbers of supporters who were expected to come to Court. This case was a high profile murder case but we get lots of murder cases here. The most difficult type of situation for us to deal with is where, for example, a young boy has been killed by another boy in a street fight situation and the families come to Court, sometimes bringing weapons with them, and becoming very confrontational. The Chhokar case was one of the better cases to manage from our point of view."

21.40 In respect of the seating arrangements for note-takers he said -

"We always try to keep the front two rows clear because the dock is very close to the front rows and it is a security matter. I was made aware that individuals had complained that they were moved from the front two rows in the Chhokar case. No reason was given to me about why they wanted to sit in the front rows but it might have been that they had a difficulty in hearing the case. The two benches immediately behind the dock are not used. The benches to the side are used by the press ... The individuals in the Chhokar case were then directed to other parts of the Courtroom. After the intervention of the Procurator Fiscal, however, they were allowed to sit in the front two rows. I think Mr Macleod of the Fiscal's Office came and said that they were allowed to sit in the front two rows. I believe the Procurator Fiscal had phoned my Superintendent and as a result the matter was out of my hands."

21.41 With regard to segregation in the public benches he said -

"... the deceased's family had several white people with them. We generally try to separate one faction from another and indeed they generally separate themselves within the Courtroom. There were whites with the [Chhokar] family. We will try to separate different factions from a common sense point of view."

21.42 Mr Dowie, the Court Manager, also gave me a perspective on this issue -

"I did not see or observe any racial segregation. I was made aware of a police decision later on in relation to this but the decision was not explained on the basis of racial grounds but on the basis of separating the family and relatives of the deceased from the family and relatives of the accused. At the end of murder trials emotions are generally running high between the two families. These emotions can spark off riots and near riots. We are dealing with full-time experienced Court officers who look at the local circumstances within the courtroom. It is a matter of judgment for them. Had I been aware of someone complaining about racial segregation I would have acted quickly and asked the police about it. If I had been told that the segregation was on the basis of keeping the families apart, then I would not have interfered. If I had found out that there was segregation on racial grounds, I would have intervened. From what I understand from this situation, the police were following a recognised protocol where a large number of people from (two) separate groups were attending in court at the conclusion of the trial. It is not unusual in these situations for both parties to behave up until the verdict and then all hell to break loose in court thereafter."

21.43 Finally, I asked the judge in the case, Lord Bonomy, whether he observed segregation of members of the public on the basis of their race. He said -

"People do often seem to be segregated in court depending on their relationship with the accused or deceased. I cannot tell on what basis there may have been segregation in the Chhokar case. The family was generally sitting in the same place in the court."

"I observed nothing in this case which was not normal practice. I suspect the police take steps to ensure separation between different groups of people. The separation of different groups appears to be under the control of the police for public order reasons. I have on occasions asked for additional security prior to a verdict being returned in a murder case because that is a point at which the emotions of the families and friends of those involved run high".

21.44 I accept these explanations.

Footnotes

12 See Appendix 16 for explanation of `concert'

13 Criminal Procedure (Scotland) Act 1995, section 281(1) provides that "...it shall be presumed that the body of the person identified in [an autopsy report lodged as a production by the prosecutor] is the body of the deceased identified in the indictment or complaint..." unless the accused gives prior notice that the contrary is alleged.

14 Manjit Sengha is quoted in The Scotsman of 11th March 1999 as follows - "We expected three men to go on trial. When we arrived at the High Court and saw just one man on trial we were very confused. We have never been given any explanation why this happened."

15 See Appendix 16 for explanation of this term

16 See Appendix 16. A `production' is a document or article which may be produced as evidence in court.

17 the document containing all information relevant to the case including draft charges, draft list of witnesses, summary of facts, all precognition statements etc

18 A standard form of letter from the Crown Office, containing further instructions to the precognoscer, which may include, for example, reprecognition of certain witnesses, a request for further productions, or that checks be made to ensure that all productions are labelled and numbered correctly.

19 A case where records are kept on paper, not on computer.

20 This and the following quotations are from The Scotsman

21 HMA v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah

22 ie medical certificates or letters from a doctor testifying, on soul and conscience, that the individual is unfit to attend court

23 Chhokar Family Justice Campaign Statement read at a Press Conference following the verdict in HMA v. Montgomery and Coulter - 28th November 2000

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