Alex Salmond cleared?
No; simply ‘no further action’
A curious story appeared on the Scottish Daily Record website yesterday:
“Alex Salmond has been cleared of fresh sexual assault allegations after police ended their probe into the claims,” the paper reported. “Cops said ‘no further action’ will be taken after a complaint was made about the former SNP first minister and Alba leader.”
But what action could the police have taken against Salmond? He died last October.
Is there some provision in Scots law that allows dead people to be prosecuted and, if convicted, perhaps imprisoned?
No, the Record helpfully told us:
Dr Nick McKerrell, a senior lecturer in law at Glasgow Caledonian University, said: “Investigating alleged crimes involving deceased people is not without precedent in recent times. They obviously have difficulties with the absence of the key participants but there still can be public interest in carrying it out even though there can be no prosecution.”
And it appears that Police Scotland did indeed conduct some sort of investigation. Last November, the force said: “We can confirm that we have received a report of a non-recent sexual assault. The information is being assessed.” In a subsequent statement, Police Scotland told the Record: “Following a report of a non-recent sexual assault, enquiries were carried out and no further action will be taken.”
But taking “no further action” does not mean a suspect has been cleared. In the case of a living accused, it means there will be no prosecution, If the accused is dead, it means there cannot be one.
“Cleared” means, at the very least, that an accusation has been held to be unfounded. It is the term used when charges are dismissed by a court. It was not the expression used by Police Scotland in this case.
It is, of course, possible for courts to clear those they have previously convicted. In England and Wales — and no doubt elsewhere — it is possible to clear an offender posthumously.
Derek Bentley, convicted in January 1953 of murdering a police officer and executed later that month, had his conviction quashed by the Court of Appeal in 1998. “It must be a matter of profound and continuing regret that this mistrial occurred and that the defects we have found were not recognised at the time,” said an appeal court headed by Lord Bingham of Cornhill.
But the trial of a deceased person could never be fair. And once we start putting the dead on trial, where would it end?
In rare shock news, I disagree with this. NFA is a procedural term with legal meaning; 'cleared' is a colloquial or epistemic judgement. To place them in opposition ('one does not equal the other') in this way is nevertheless to locate them, in error, in the same conceptual category. It creates a non-trivial risk that the reader will make an invalid inference from the category error. Rather than; "taking 'no further action' does not mean a suspect has been cleared", it would be more accurate to say; "'NFA' cannot equal 'cleared' since the two terms belong to different categories; no inferences whatever can be drawn". Admittedly, all of that isn't very catchy in journalistic terms. But it would make a difference to someone who has been NFA'd after the cops have, for example, made a later-accepted error of identification at the point of arrest.
When newspapers and other media outlets use words in such a cavalier
fashion, it becomes even less surprising to me that, as a prime example of what I so often encountered when in practice, an intelligent ProBono client of mine whom I comprehensively advised would continue despite my endeavours to assert that her aggressive stalker of an estranged husband had been “charged” -or even “done”- for harassment or assaults upon her when in truth on her having complained to the. police he had been, variously, “spoken to”, interviewed as a volunteer and other times arrested and interviewed after caution, though in all those instances released without charged. To put it mildly her - genuine- inability to grasp those distinctions made her legal advisers tasks on her own arrests and interviews-usually because of her ex’s fabricated complaints- doubly difficult. She came out of it well in the end but………