"Its alive!"

Firstly, I'm pleased to report that the fairies have finally let me go, and I've resumed my blogging station and am standing to attention, musket primed. Secondly, I note in my absence that the Scottish press and political classes have finally awoken to the implications of the litigation inspired by the European Court of Human Rights case in Salduz v. Turkey.  Last week I blogged on the case of Cadder v. H.M. Advocate, the wriggling speck of grit in our criminal justice oyster, but the issues at stake today were apparent enough in late October 2009. 

Dame Matron of Doily MSP Annabel Goldie, mentioned it at FMQs. Needless to say, she did not leave the panic button unpressed:

"If the pending judgment is adverse, and retrospective in effect, the doors to Scotland's jails could be flung open and there could be far-reaching implications for our criminal justice system, the safety of communities and victims' peace of mind. What are those contingency plans to which the First Minister referred? He needs to plan now and not start rushing around the day after the court judgment is issued.

We await the October judgement of the UK Supreme Court in Cadder, but things look iffy for the forces of Crown, prosecution and state - and if the Court's decision is adverse, it is no understatement to say that political stormclouds will bubble up, furious bolts of lightning will sizzle and fray. The metaphors will all be borrowed from the Old Testament. The legal political equivalent of sitting in the middle of the Book of Job. It has already started. "Chaos", quoth one. "Panic", says another.  "Justice in the dock". According to the transcript of the Supreme Court hearing, obtained by the Sunday Herald, the Lord Advocate Elish Angiolini adopted a similar prophetic  attitude of despair, describing the implications of defeat for the Crown's case by turns as "Catastrophic ... Seismic ... It could cause enormous disruption ... It’s hard to overstate its significance".

It is worth bearing in mind that these remarks were made in the context of an adversarial legal argument. By no means should we simply assume that Angiolini was unburdening her innermost thoughts to the Supreme Court, anguished and contrite. Nor am I suggesting she was fibbing either. Rather, policy doom and disaster is a fairly regular instrument of legal argument, opposing some expedient dreamt up by an inventive litigant and their lawyers. Slippery slopes, dangerous precedents, that way disaster lies - all are lines to focus the judicial mind and prompt the temptations of constraint and caution in reaching a decision. Up to a point, this anticipatory hue and cry in the press - and falling from Bella's lips in Holyrood - cannot but do likewise. It opens up terrifying vistas of uncertainty, conjures procedural collapse, institutional disrepute, malfunction and dysfunction.  Judges can be a timid lot, all said. Gloomily briefed about the reefs and wrecking shoals which surround the case, they may try their best to reach the "right" decision, without holing the ship of state below the waterline.  On that basis, if the Crown must lose - and that is by no means certain yet that it must - but if defeat proves unavoidable - then the legal mind turns to losing narrowly. Which frequently is to say, losing in a confusing maze of legal technicality, so loathed by newspapers seeking the simple nub of the matter - and so difficult to understand for litigants that they might well decide to stay home and watch the telly instead of spending any time, trying to expunge their wrongous or procedurally iffy convictions.