When Tommy Sheridan was convicted for perjury, a small minority of commentators expressed certain qualms about his prosecution. The argument tended to go something like this. How can it be right to single out one perjurer from amongst the thronging host of witnesses who lie to Scottish courts, day in day out, while leaving the rest unpunished? Why try Tommy? And where does his prosecution leave the principle of equality before the law, anyway? Surely all should be tried, or none if even-handed justice is to be dispensed to the lieges. While this sort of logic may appeal to the committed theoretician, it shows a woeful lack of sensibility about how criminal justice really works in this country most of the time.
If you kill a fellow citizen, chances are you'll be detected and end up in the dock. If your spouse takes your driving points, you are unlikely to be caught in the lie, or face prosecution for the offence. It might be a little far to characterise our ideas of criminal justice as a "noble lie", but the fact is that we don't fund our criminal authorities - police, prosecutors, courts - anything like enough to even approach "zero tolerance" enforcement of our innumerable criminal statutes. And a damned good thing too, you might well think, given how broadly many of their offences are framed. It makes for an uncomfortable irony, but the justness of our society now relies to great extent on not enforcing our laws.
Although folk often overlook the detail, we've also invest our prosecutors with discretion about whether and how people who've probably committed offences are prosecuted. Theoretically, at least, this involves an individual assessment in all the circumstances of the case whether it is in the "public interest" to proceed and an assessment of whether there is a sufficiency of evidence. If we pan out somewhat, however, we see that prosecutors collectively have ideas, influenced (often legitimately in my view) by politics, about what offences, what agenda, should be a priority interest for police and procurators fiscal. Football offences furnish a convenient recent example. Devotees of Crown Office press releases will have noticed an upturn in the number of football-related cases which are reported therein. Even relatively minor offences generating a football banning order are now treated as individually newsworthy.
Quite apart from being a process characterised by equal treatment in practice, our criminal justice selects salutary examples, and metes out penalties pour descourages les autres. The discipline of criminology has studied this phenomenon in depth. Invariably, the number of crimes reported to the police are lower than the number of crimes committed. The number of folk actually charged with offences shrinks the figure again. And the number prosecuted and convicted, again. Our are jails may be stuffed, our prosecutors overtaxed, our criminal courts crammed, but the work of these formal mechanisms for delivering criminal justice are only the visible tip of a far deeper berg of unprosecuted, untried criminality. This may be an unsettling thought.
Tomorrow (or today if you are reading this on Monday morning), Chris Huhne and Vicky Pryce will be up before the beak, to hear what sentences each will bear for the offences they have been convicted of committing. This last week, my cronies have been having a lively debate about whether public figures should be treated more harshly than John Doe, convicted of the same offence.
The motto of the Crown in Scotland is nemo me impune lacessit: nobody provokes me with impunity. Sheridan was convicted of a fraud on the court, of conniving to employ the jurisdiction of the Court of Session, and its powers, dishonestly to acquire £200,000. If I dipped into your bank account and made off with equivalent sums, I doubt you'd feel much sympathy for my prosecution, on the basis that proceedings had been discontinued against a petty fraudster, who was only able to acquire a few hundred quid to fund an instantiate addiction to Elvis memorabilia.
For me, folk like Sheridan and Huhne can expect no mercy from our justice system. The effectiveness of criminal justice is fundamentally bound up in the image it projects, the story it tells and the deterrent anxieties it sometimes provokes. It can cope with enforcement of criminal statutes which is less than systematic. It can ignore petty perjurers in minor summary proceedings. Indeed, it arguably could not cope, at current resource levels, with systematic prosecution even of part of our criminal law. It struggles, however, to shrug off consequential people in the public eye, who might as well have set out to undermine its precepts and authority. The offence committed may be similar, but only one offender risks putting the legitimacy of the whole edifice to the question.
Folk talk about "public confidence" in our criminal justice system. Cynical though it might sound, often as not, it seems to me this "confidence" means entertaining seriously misguided ideas about the extent to which the law is really enforced. It means buying the noble lies and habitually unapplied principles of justice which critics of the Crown Office suddenly felt were important in assessing whether serving an indictment on Sheridan was equitable and fair. Our courts can soak up their share of day-to-day perjurers, and leave most folk who dishonestly take speeding points unprosecuted. Their very basis, however, is undermined when people in public life, and particularly politicians who are guilty as sin, do their sleekit darndest to fib their way out of their predicament.
Nemo me impune lacessit.