tag:blogger.com,1999:blog-1638916042737526171.post1034600549788442697..comments2024-03-19T07:14:04.745+00:00Comments on Lallands Peat Worrier: Holyrood's last judgment...Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-1638916042737526171.post-84379136187906559642011-03-26T16:45:10.403+00:002011-03-26T16:45:10.403+00:00Thanks again — I've enjoyed this discussion an...Thanks again — I've enjoyed this discussion and feel I'm learning something about an area I'll happily admit to having no background in. The idea of 'judges as gamers' is nicely put, and confirms how I imagined they behave. You're quite right that a reform towards more transparent sentencing would be more honest, and would help to close the gap between the average citizen and the professionals. As with politics generally, it's important that those who currently feel divorced from the system are able to feel they understand it better and have more of a stake in it, if only as a sort of vaccination against more authoritarian solutions.<br /><br />Having said that, I'm still not sure why a liberal penal policy <i>in the absence of a more rehabilitative system within prisons</i>, which is the key point, is particularly desirable or indeed humane. To let unreformed, violent characters out early and hope for the best seems an act of dogma in the face of the evidence that says they are currently very likely to reoffend soon after. But if what happens within prisons were transformed (in a way that I can't imagine too many reasonable-minded people would object to, though of course it would cost a lot of money) then my hunch would be that a lot of the public desire for lengthy sentences - which at the moment, with such high rates of recidivism, is a rational desire for their own protection - would no longer be necessary and would in time diminish. The likely increase in the prison population would perhaps then be a short-term measure to help assuage public concerns about safety, but would buy us the time and support to move towards a penal system based not on an ineffective cycle of punishment but on a confluence of rehabilitation (where possible, which won't always be the case) and public safety.<br /><br />P.S. You're quite right to point out that, in this strict sense, Labour's proposals would be unaffordable in the context of their wider spending plans.Philosophical Zombiehttp://philosophicalzombie.wordpress.com/noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-32961703562260330172011-03-26T13:40:03.603+00:002011-03-26T13:40:03.603+00:00Bah! A lengthy remark got devoured. God rot blogge...Bah! A lengthy remark got devoured. God rot blogger. A brief re-iteration. Firstly, in defence of those who aren't my colleagues, I should say that I'm not a member of any branch of the legal profession. They will no doubt be relieved to be tried separately! For my part, I'm much more interested in <i>combining</i> sociological and legal perspectives. The gap in question - though I'd caution about being too binary here - is a fascinating example in point. Perhaps in the future I'll try and address it in a more thoroughgoing fashion.<br /><br />I concur with your position on knives and accept your gentle chastening on the language of "unaffordability". The crux of my position is not about the impossibility of finding the cash - though that does seem highly problematic, given Labour's current spending plans - but that this particular game isn't worth the candle and such significant spending simply wouldn't be worth it. <br /><br />Early release is a curious one. Objections to it tend to depend on the assumption that a judge sentencing an individual intends for them to be locked away for five years, but is frustrated by the floppy release system. This assumption seems unlikely to bear much scrutiny. After all, judges and sheriffs are highly likely to be familiar with release regimes - and calculate their sentences accordingly <i>(although I have no firm evidence to give you, demonstrating that this is the case).</i> We have good reason to hypothesise, I'd suggest, that judges aren't so much frustrated by the early release system, but operate as "gamers" within in, their sentencing being informed by an acute awareness of how it works. Moving towards a more systematic system of sentencing, more easily understandable by your average citizens, seems to have the virtue of being more honest. That said, you might argue that the present system has a dual functionality on this score, allowing feelings to be assuaged by pronouncing hefty sentences, while simultaneously engaging in a more liberal penal practice. It is easy to envisage that if the sentence given = time served, judges would be under serious pressure to hand out stiffer penalties, the unanticipated upshot of which being a further expansion in Scotland's growing prison population. That's just my hunch.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-67864248129519538122011-03-24T16:39:03.691+00:002011-03-24T16:39:03.691+00:00Thanks for your reply. I think all of us who worr...Thanks for your reply. I think all of us who worry about economic, social and cultural divisions in Scotland (or indeed in Britain) should be concerned about the gap you identify between legal actors and most of the public. Again, I would say it is incumbent on your profession to keep in mind the tragic and vulnerable figure I describe, to remember that his worldview is shared by a very large section of the public, and to realise how byzantine and remote the legal system appears to the uninitiated.<br /><br />No doubt Labour's approach is foolish. For instance, I agree with your take on their (and Bill Aitken's) policy of a mandatory sentence for carrying a knife. It needn't be 'soft' to imagine that those who are least likely to carry one only in self-defence are also those least likely to be deterred by such a policy. That's not to say that I would be inclined to leniency towards those who attack others, with or without weapons — merely that Labour's proposals, in seeking to criminalise people who haven't yet done any harm, and who in most cases won't do any harm, seem completely beside the point. (The question of automatic early release, as a contributing factor to the public's inability to feel at one with the justice system, seems more to the point — but with both parties eternally promising to do something about it at some point, I think we're entitled to treat it as we do other cast-iron or solemn and binding election pledges. However, I'd be very interested to hear your views on that specific issue.)<br /><br />The only point at which you lap into ought/is confusion (or perhaps just fatalism) is to say such policies are unaffordable. This is a political position. In my little unrelated corner of the public sector I could give you plenty of examples of money that would be better spent, one way or another, in the justice system or on protecting the public. The question isn't one of the money not existing, then, but of prioritisation of how we spend money. Unaffordability is really just a proxy for political difficulty, not impossibility. In essence the 'unaffordability' line of argument isn't a rebuttal of the opposing position, but a diminution of its importance.<br /><br />Anyway, I look forward to your thoughts in full.Philosophical Zombiehttp://philosophicalzombie.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-76356842844207222872011-03-23T17:36:03.719+00:002011-03-23T17:36:03.719+00:00Philosophical Zombie,
Quite a range of challenges...Philosophical Zombie,<br /><br />Quite a range of challenges and perceptions there! Where to begin? I'll probably defer giving a satisfactory answer to many of the points you raise until a later blog, as they are certainly worth considering at greater length. Just a few specific points for now then.<br /><br />I'm interested in your impression that I'm a fierce fellow for human rights. I'd actually describe myself as a moderate human rights skeptic on a political level. I'd much rather talk about the issues themselves, rather than perpetually couching everything in the rule-forming language of rights. My legal interest obviously tends to splice these in an awkward way, combining broader justice discourses with concrete instantiations, particular institutional disposals - and not always clearly distinguishing between more analytic and more normative elements; the technical-legal and the broader ethical and political ways of seeing things. <br /><br />I recognise this as problematic. Not least since the public consciousness of law is often strongly at odds with the understandings of traditional "legal actors", lawyers, judges and so on. We can also factor in other problematic and contestable ideas - about law as the simulacrum of our social values - or law as something more artificial and idiosyncratic. Again, our is/ought questions are not always neatly delineated. <br /><br />On prison, for example - I'd primarily oppose Labour's measures on the basis of their practical folly, negative consequences and unaffordability - rather than on the basis of some magic knowledge I might claim to have about the "real content" of the Rights of Man. <br /><br />You describe the frustrated, victimised figure very neatly. <i>"See your indecision! Isn't it all really straightforward? Can't we come up with common-sense, brisk, decisive solutions? Can't we just bang up the lot of 'em?"</i> Its a comforting, beguiling thought, without question and a thoroughly understandable one, in its way. How to decrease the pitch of feeling and embrace the incorrigible complexity of the thing? It is difficult even to begin to think through.<br /><br />On the election, I'm less pessimistic than your nationalist pal, but not confident of our chances either. It'll be a damn close run thing.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-67761100936642904142011-03-23T17:12:09.868+00:002011-03-23T17:12:09.868+00:00Shorter replies first!
Conan,
There must be a co...Shorter replies first!<br /><br />Conan,<br /><br />There must be a constitutional gag in there somewhere! You may be reassured to learn, however, that non-consummation of the marriage is no basis for a divorce in Scotland - while the English traditionally recognised such...Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-64998026325922520532011-03-22T11:28:02.126+00:002011-03-22T11:28:02.126+00:00Do you do divorce work Lallands?
http://www.newsn...Do you do divorce work Lallands?<br /><br />http://www.newsnetscotland.com/speakers-corner/1430-scotland-westminster.htmlConan the Librarian™https://www.blogger.com/profile/01904339261121451779noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-3815443851314065022011-03-22T11:09:34.887+00:002011-03-22T11:09:34.887+00:00Good morning. After a spell of neglect I've b...Good morning. After a spell of neglect I've been catching up on some recent blogs of yours and have a general comment or two to make. Throughout your posts, each of them thoughtful and fascinating, is a distaste for those who talk of 'soft touch Scotland' and who fail to value human rights as highly as you do. I think part of the problem is that the two matters — human rights specifically, and inconsistent and ineffective sentencing and high rates of antisocial behaviour, crime and violence generally — are often conflated in the public mind. Try to view the matter from the perspective of someone who feels victimised and whose life or neighbourhood is blighted by these problems: when hundreds of crimes are committed for each conviction, when it often takes many convictions to be sent to prison, when our efforts at rehabilitation have not so far been a great success, when many serious and violent offenders are let out of prison after serving half of their sentences (many of them to commit further crimes), when the police are generally unresponsive: can you really blame those people who suffer from this sorry situation if they fail to see the greatest problem in all of it as the potential infringement of the rights of those who victimise them? Can you blame them if they see themselves as the losers in a zero-sum game: one in which the establishment seems so little to be on their side that they assume it to be on the other (as we discussed a while ago, when I think you agreed with my comment about the widespread hoodwinking of judges and parole boards), and which dismisses their real anxieties as tabloid fantasies? It takes a mighty intellectual effort, if you have been a victim of crime, to see the matter in abstract terms: can you blame those who fail to feel liberal, generous and forgiving if they see an attraction in authoritarian solutions, and feel further aggrieved when comfortable intellectuals mock them for doing so?<br /><br />Personally I don't believe human rights are responsible for these ills, or that there need be any conflict between human rights and an effective and just legal system (one which rehabilitates wherever possible, and protects the public wherever not). But it is incumbent on you and your profession, if you want public support for human rights, to delineate the two, to explain why our failures in law and order are not the fault of advances in human rights, and to show how we can have human rights for all while still maintaining law and order. (If you want my advice, you could start by pointing out the similarities between '21st-century human rights' and 'our ancient liberties': many who profess to dislike the former will generally stand up for the latter.)<br /><br />Remember that humanity only progresses at the speed of its slowest members. Universal support for human rights is an advanced social state that can only come about after we have the universal rule of law rather than of force. Sadly, in too many parts of Scotland, it still appears to many that we have not yet rid ourselves of the latter. Tabloids and politicians can appeal to and sometimes worsen people's fears, but I doubt that they can entirely invent what would not otherwise be there in some measure.<br /><br />P.S. My mole in the SNP is convinced the election is lost and that we'll have some sort of Labour/Green deal after the election. He is an arch-pessimist so I'm seeking second opinions: any thoughts on the likelihood of that outcome?Philosophical Zombiehttp://philosophicalzombie.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-57022399815876294812011-03-22T08:00:45.400+00:002011-03-22T08:00:45.400+00:00obreption,
Although the Law Commissioner made an ...obreption,<br /><br />Although the Law Commissioner made an important practical point about the Bill, I agree with our tribunes insofar as it is not a fatal one for the argument for retrospective application. For example, it <i>is</i> possible, if rather unlikely, that wholly new evidence might materialise. In other cases, evidence does seem to be retained by the authorities, where the underlying case is classified as "unsolved", despite criminal proceedings already having been taken out against an individual. <br /><br />I don't know about the broader DNA retention rules - but on the double jeopardy point, England has had its own Act on this for some time. And of course, given the phenomenon of "hung juries" - which don't exist in Scotland - retrials are far more common in England anyway.<br /><br />On your ancient Scots points, I <i>believe</i>, though haven't checked, that private prosecutions using criminal letters may still be available, but rare. I'm rather fond of the idea of "Lawburrows", myself...Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-27081054517417291862011-03-21T22:22:42.118+00:002011-03-21T22:22:42.118+00:00There's been a DNA case going on in London usi...There's been a DNA case going on in London using very old evidence. It seems that the English justice system is quite keen to follow some of the Scottish DNA rules. Your piece discusses double jeopardy in very practical terms.<br /><br />From years back, I recall Bill of Criminal Letters and "asythment". Do they still exist in Scotland? I'm no lawyer, but I do remember a case over 30 years ago when this was debated. <br /><br />I did see a TV programme about the World's End sometime ago...obreptionhttp://obreption.blogspot.comnoreply@blogger.com