888
132. Use of Police Notebooks. Apart from Inspector Tin who kept careful notes in his police noteboon or his interviews with informers and prospective witnesses, the officers in the SIU either kept no notes at all or very inadequate note, and this observation applies equally to the SIU interviews with Fulton. It is not necessary to embark upon a detailed discussion of this issue, for it is of peripheral importance only. Suffice it to say that the reluctance to use notebooks was attributable to the sensitivity of the enquiries conducted by the SIU. According to Clancy, before he became D.C.I., notebooks were not used in the SIU due to the sensitivity of the information. After Mr. Clancy became D.C.I., the same practice continued with his knowledge. He saw no need to change it, though he would Inot have necessarily initiated the system. 64 Instead of notebooks, written reports (Pols. 155) were made and put into the appropriate files. 65 Mr. Clancy, however, agrees that notebooks should have been used at least to indicate in general terms where the Officer has been, that an informer has been in contact on a certain occasion, etc.66 He conceded with hindsight that the use of notebooks should have been “tightened up”. Quite clearly, according to General Police Orders, notebooks should have been kept and this was a view shared by Mr. Henry, the Commissioner of Police. The non-observance of General Police Orders was not improperly motivated.
133.
Conclusion. Probably out of resentment towards MacLennan, Brooks and Quinn approached and pressed Fulton to supply information, but in the end they did not obtain any evidence from Fulton. On the other hand, Quinn put pressure on Liu Man, in the circumstances not improperly, to supply information, and Liu Man in turn pressed Peter for names. Peter then disclosed the names of MacLennan and Logan. Peter's emergence was not prompted by any inordinate interest in MacLennan. The emergence of Peter formed the first credible lead against MacLennan which, according to guidelines laid down in the SIU Charter, had to be followed up because he was a member of the law enforcement agencies. (See also Chapter 4 Section G: The Charter). There was, therefore, nothing improper for the SIU to then pursue the MacLennan (and Logan) investigations with such vigor and speed as their resources permitted. In fact they were duty bound to do so. From the time of Peter, the interest in MacLennan was no more than ordinary police interest in a suspect.
134.
Having said the above, there were certain improprieties in the handling of the male prostitutes and the failure to use police notebooks. However, my view is that these improprieties were not prompted by any inordinate interest in MacLennan nor were they intended to produce any fabricated evidence. Quite the contrary, these improprieties were intended, at least in the minds of the SIU Officers, to force the witnesses to tell the truth which they had shown great reluctance to do.
135.
Having given very careful consideration to the matter, I find that the evidence against MacLennan was credible but improperly obtained in the manner described in the immediately preceding paragraph.
L. WHETHER THE CHARGES TO BE PREFERRED AGAINST MACLENNAN WERE PROPERLY
BROUGHT
136. Whilst members of the Legal Department can in no way be regarded as investigators, it is the duty of the Attorney General and DPP to satisfy themselves the charges against MacLennan were properly brought.
137.
It was necessary to establish whether or not there was sufficient evidence to proceed against MacLennan based on the statements contained in the Prosecution File. No doubt there were discrepancies and inaccuracies in the statements of the male prostitutes, particularly on dates and places. It is also true that the male prostitutes' statements were not corroborated (except that of Alan's, but he was not used as a prosecution witness). There were also some doubts as to the credibility of the witnesses, most of whom were street prostitutes with little or no moral scruples. These were the factors which Mr. Justice Macdougall and Mr. Duffy had to weigh very carefully, applying their long experience in prosecution and their local knowledge, against the evidence that was presented. This they had done with competence. Mr. Justice Macdougall rightly formed the view on 3 December 1979 that, despite the apparent discrepancies and inaccuracies and lack of corroboration, there was a good prima facie case against MacLennan, and so did Mr. Duffy on 3 January 1980. Before authorizing prosecution, both of them consulted the Attorney General, who gave his personal approval in both instances. It should be noted that the Attorney General was not obliged to, and did not, examine the evidence in detail himself. Having given careful consideration, I agree with the view of Mr. Justice Macdougall and Mr. Duffy that there was a prima facie case against MacLennan based on the evidence contained in the prosecution file.
138.
Next, I have to consider the question: were there any irregularities as to the method of the investigations which could have been detected by reading the police files? The answer is no, except on the one single point that the SIU Officers failed to caution the male prostitutes there and then when they admitted to procuration in their statements. Then the next question is: did the Attorney General or the DPP know or ought to have known anything that might cause them concern as to the propriety of the SIU investigation relating to MacLennan?
64 See Transcript page 9213.
65 See Transcript pages 9165 and 9212.
66
See Transcript page 9212.