Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders. 

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

• Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
• In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
• For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
• Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
• Filming should be subject to robust, clear and comprehensive guidelines.
• Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.

UPDATE

Lady Dorrian's full recommendations can be read here.

#Indyref Prison Blues

Go to jail. Go directly to jail. Do not pass the polling station. Do not collect your voting papers.

That's the Court of Session's message to prisoners this afternoon, rejecting an appeal challenging Holyrood's decision to exclude prisoners from the independence referendum franchise. Lawyers for the petitioners have shown considerable creativity in putting together their case, running arguments based on the European Convention on Human Rights, European Union law - and the curious idea that our right to vote is fundamentally protected under the common law of the realm, whatever may or may not be set down in election statutes. 

Lord Glennie accepted this last claim in his decision at first instance, but managed to leap free of its implications by holding that your fundamental rights didn't extend to referendums, leaving the old lags wanting a say in September without a vote. That decision was inevitably going to be the subject of an appeal to the Inner House of the Court of Session. And after today's decision from Lady Paton, Lord President Gill and Lord Menzies, a further appeal to the UK Supreme Court looks inevitable.

For my part, the reasoning in today's Inner House decision is disappointingly sparse on some of the key issues raised by the appeal, particularly on human rights grounds. The Scottish senior judiciary has come in for some flak in the past for its failure to engage seriously with fundamental rights arguments. Professional anxieties about this lay behind the sturdy defence which maintaining the jurisdiction of the UK Supreme Court found amongst many practitioners. 

(It should also represent a cautionary tale for those who think a straightforward solution to Scottish political problems after independence is a vast constitution, with a dizzy array of social and economic rights, protected by strong judicial review in the American mould. If the history of public law litigation in Scotland since 1998 is anything to go by, the Court of Session seems singularly uninterested in assuming this radical role, and can be expected to adopt a conservative and deferential approach to the interpretation of any constitutional rights). 

Under Article 3 of Protocol 1 the European Convention, your right to vote is protected.

"The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

Under the Scotland Act, if Holyrood legislates in violation of your fundamental rights, it exceeds its powers and its laws are liable to be struck down in court. As I have written here in the past, if you examine the jurisprudence of the European Court, the prisoners' legal challenge never looked particularly promising. Strasbourg has, on several occasions - and recently - held that A3P1 of the Convention doesn't extend to referendums, or to presidential elections, but only to elections to the legislature. No protection, no prisoner votes. It was on the basis of this clear line of decisions, and a reluctance to innovate without Strasbourg's nod, that the Inner House reached its decision on the ECHR limb of the argument today.

Yet to my knowledge, Strasbourg has never decided on a disenfranchisement case involving fundamental questions of self-determination. And let's face it, the independence referendum is not like other referendums. It involves a fundamental decision about the lasting future government of the state. It isn't a poll-count about introducing a congestion charge, or a plebiscite on the privatisation of local water authorities. In an essential sense, it engages the choice of a legislature, and broader principles of popular democracy. 

Should we be ruled by Westminster from London and in devolved matters by the Scottish Parliament, or should all of these decisions be made by the distinctive democratic institutions of an independent state? If we are giving 16 and 17 year olds the vote on the basis that the future of their nation is engaged by this poll, doesn't the same go for the 18 year old fine defaulter, jailed for a couple of weeks, or a twenty year old sneak-thief serving a six-month term?

It is at least arguable that the #indyref is a "choice of legislature" question, though contending that it is an "election" may seem a bit trickier. On the other hand, Strasbourg has recognised, time and again, that Convention concepts must be interpreted "autonomously" from domestic law. National law may have a definition of a "home", for example, but your right to privacy and a home life under Article 8 can and must be interpreted independently of those domestic definitions, having regard to the basic principles the ECHR is established to protect. 

While we traditionally think of an election as being a choice about political representation, in principle, I don't see why we have to adopt such a narrow, formalistic approach. As the Court itself has recognised - to significant controversy - in Hirst v the United Kingdom, "the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion."

Moreover, the European Court has repeatedly emphasised (1) that the Convention is a "living instrument" and must be interpreted in the light of present day conditions and (2) that the rights it protects must be construed so as to make them "practical and effective" in scope, rather than "theoretical and illusory." What are the implications of this? Firstly, it means that the Court's decisions aren't set in stone and it is willing, for good reasons, to depart from established precedents. And secondly, it means that Convention rights should be interpreted without excessive formalism, construed with a view to promoting the fundamental purposes of your rights.

There is room for a nuanced exploration of these issues in considering the scope of prisoners' rights to vote in the independence referendum. Curiously, this "choice of legislature" argument, rooted in the sui generis character of a referendum on self-determination, was backgrounded in Aidan O'Neill QC's extensive submissions at first instance. He seems, however, to have recovered the theme and put the argument to the Inner House of the Court of Session more forcefully -- which essentially ignored it in today's decision. The petitioners argued:

[8] ... that there was no clear and constant body of  Strasbourg jurisprudence against the principle that A3P1 applied to referenda, particularly a referendum of the nature of the Scottish independence referendum. Secondly, the ECtHR in Strasbourg would undoubtedly seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that article 25 of the ICCPR was habile to include participation in referenda.

Thus the ECtHR, if construing A3P1 in circumstances such as the present, would extend it to referenda, particularly in view of the nature of the Scottish independence referendum, which arose from a legal obligation, focused on the breaking-up of an existing state, and was sufficiently similar to parliamentary elections in that it involved “the choice of the legislature.” Support for the petitioners’ contention could be found in the fact that the UK Supreme Court had shown a willingness to go further than existing Strasbourg jurisprudence where the particular facts and circumstances had not been before the Strasbourg court.

The Court's failure to address these arguments in any thoroughgoing way today suggest this case is ripe for further appeal to London, and another round of argument before the Justices of the UK Supreme Court. On balance, the Inner House's decision about the scope of ECHR rights is probably the right one on the law as it stands. Politically, my own preference is for prisoner voting rights to be vindicated through democratic rather than judicial institutions. But I'd hope and expect these trickier arguments, about the practical and effective protection of democratic rights, and the distinctive character of a referendum on self-determination, to be explored more carefully in that forum than they were in the Court of Session's decision on prisoner voting today.

Scotland's green salad justices & ancient juniors...

Few folk embark on a judicial career in this country out of a raving thirst for publicity, but this is just silly. This week, the UK Supreme Court has turned out its old guard, appointing three new Justices.  In America, the installation of a single judge is now invariably met with a press ruckus, pompous senators sounding off ad nauseum in televised hearings, while the nominee practices judicious evasion and studied non-answers to the politicians' usually none-too-forensic political cross-examination on the hot-button jurisprudential controversies of the day.  

On this side of the Atlantic, the idea of subjecting your Lord President Would-Bes, judges and Justices to such treatment hasn't gained much purchase. Everything is rather stuffier, enveloped in cosy, impenetrable officialdom. As a consequence, I'm sure a vanishingly small percentage of the UK population could distinguish any of the Justices from Adam (or in one instance, from Eve).

Adam Wagner styled the three appointments an "attack of the clones". All three new justices are men of a certain age. Baroness Hale remains the Court's first and only female justice to serve.  The story stirred barely a whisper in the Scottish press, despite the heightened visibility the Court has enjoyed in Scottish politics in the last year or two, adjudicating politically controversial constitutional cases. 

By convention, two seats on the Court are filled by Scots lawyers. Court of Session judge, Lord Hodge (above, right), will fill the seat vacated by Lord Hope, who has achieved sufficient antiquity that he's obliged to retire, aged 75.  All that despite, employment as a judge in this country's apex court seems an excellent way to preserve one's anonymity.

The gendered angle on the story was the subject of commentary elsewhere.  As I argued back in January of last year, of the Lord Presidency snaffled by Lord Gill, it's important to think about our overwhelmingly male-dominated higher courts with our historical periwigs on, and examine how this narrow pool of candidates came to be. 

To my eye, one of the most worrying features of contemporary recruitment to the Scottish bar, which seems likely to dominate high judicial offices in this country for the foreseeable future, is the continuing dominance of men among their intrants and devils. As I noted in the piece, of the 12 advocates called to the Bar in 2011, three were women. Of the 10 in 2010, only four. 

To bring it right up to date, of the 13 called in 2012, three are women. It is also worth emphasising, the age profile of the new-sprung advocate seems to have evolved since the 1970s and 80s. No longer the preserve of bright young men, (MA Oxon, LLB Edinburgh), a quick glance through the newer Faculty roll reveals many grizzled faces with at least a decade or more of work as a solicitor behind them.  You might find the odd cherubic phizog, but many of these juniors aren't so junior, and probably won't be in post long enough to make it to the Supreme Courts.

A comparison with the two Scots lawyers who'll now sit on the UK Supreme Court is an instructive one. On admission to the Faculty, the second Scottish judge on the Court, Lord Reed, was about 27 years old, Hodge was 30.  In judicial terms, both of the Scottish justices are now in the green salad days of their youth, Lord Reed 56, and Hodge 59 years of age.  That's a half-decade younger than their most youthful English or Northern Irish colleague. 

Barring ill-health or disaster, both men potentially have more than a decade and a half of judgin' in London before them. If Reed and Hodge prove as zesty as Lord Hope, the  no vacancies sign will hang outside Middlesex Guildhall for a substantial period of time and they can expect to be colleagues on the Court until the late 2020s. Unless, of course, we win the referendum in 2014, in which case the brace of Justices will have to seek gainful employment elsewhere...

Scotland, slander & calumny...

Terence Ewing is a vexatious litigant.  In 2008, believing himself to have been defamed by the Times newspaper, and his case before the English courts having failed, he took himself away on a little jurisprudential tour, up to Belfast and to Edinburgh.

Having arrived in the capital, Mr Ewing hied himself to a public library, where “he downloaded the internet version of the article and read a hard copy of it”.  He promptly raised further legal actions in the Scottish and Northern Irish courts, claiming again that the Times had defamed him.  

In the Court of Session, his case was dismissed in an acid opinion from Lord Gill – the incoming Lord President as is – who described Ewing as a “serial litigator with a long and well-documented record of mischievous and irresponsible ligitations”.  In Gill’s judgment, Ewing had “no connection with Scotland and has no apparent reputation here to defend”, and his appeal was comprehensively refused.

It takes a particularly committed warden of a reputation, actively to travel across jurisdictions to read an article in which you are dishonoured, and I dare say few folk are as committed as Mr Ewing to the business of protecting their names. Yet for calculating so-and-sos, libel litigation on their mind, there may be clear advantages in selecting the legally most congenial forum for the airing your disputes.  For my part, I’m no expert on the law of defamation in any of the UK’s jurisdictions, but I’ve been wondering recently if we’re failing to spot the potential implications of the Westminster government’s upcoming reform of the English and Welsh law of libel and slander. Scotland isn’t exactly inundated with defamation actions at the moment, but might that all be about to change?

Save for Tommy Sheridan’s disastrous foray into our civil courts, we don’t hear a great deal from the Court of Session about alleged calumnies, slanders and libels, reputations ruined and restored.  The Times Scottish correspondent Angus MacLeod unsuccessfully sued the publishers of the Sunday Herald for defamation in 2006, over slighting observations made about his analytic nous in Alan Taylor’s diary.  More recently, former SSP MSP, Frances Curran, sued the Daily Record, over an article which appeared in its pages, in which she was branded a “scab” by the Satsuma Socialist after his successful defamation action of 2006.  Curiously, the Court of Session held that “scab” was not defamatory, as it was “criticism of public conduct in the context of a political struggle” which fell “well within the latitude permitted by the law where comments are made about persons acting in their public capacity”.

By contrast, down south, libel law has been a point of more directed political agitation for some time, and formed part of the Labour, Liberal Democrat and Tory manifestos in the 2010 Westminster General Election. Calls for reform were encouraged by controversial cases, including the British Chiropractic Association’s extended libel litigation against Simon Singh, who criticised their activities in a Guardian column.  The litigation took two years.  

For would-be libel reformers, a major spur to their endeavours have been concerns about free speech and the way in which libel law has been manipulated by powerful interests. While theoretically universal, there to protect the reputations of all persons against malicious falsehood, the expense associated with resorting to the law of libel primarily protects those with wealth enough to retain lawyers.  Yet much of this zealous, reforming advocacy talks about chimerical concepts - “British courts”, “UK law”, “our law” - which gives the impression that we currently have a uniform law of defamation in this country. Which of course, we don’t. 

So what might we be overlooking? While in Scotland we’ve got almost no libel reform pressure to speak of, in Westminster, the coalition have finally introduced a draft Defamation Bill to curb the vigorous jurisdiction of England’s libel courts.  In Scots law, defamation is defined as anything which “tends to lower the pursuer in the estimation of right thinking members of society generally”. The question a court must ask itself is: “Would a reasonable man [sic], reading the publication complained of, discover in it matter defamatory to the pursuer?” In England and Wales, by contrast, the Westminster government wishes to qualify this test.  Assuming that the critical section of the draft Bill passes through parliament unaltered, in future, a statement will not be “defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

It should be obvious that this will be a theoretically much more stringent test for the English litigant to overcome than a Scottish pursuer pursuing a defamation action will have to satisfy. The draft Bill also proposes to amend the defences available to English defendants, including specific protections for “operators of websites” which host defamatory comments, and attaching privilege to peer-reviewed statements in scientific or academic journals.  

No reforms are currently envisaged for the Scots law of defamation, and the coalition government’s Bill currently extends to England and Wales only.  I’m conscious that we get into very tricky terrain here, with thorny legal questions raised about where websites are hosted, which courts have or should have jurisdiction, or whether damages are calculated in Scots law will encourage or deter litigious jaunts north of the border, if this Bill passes. 

I’m no practitioner in this field, and currently ill-qualified to take an informed view on the likelihood one way or the other.  It may well be that Scottish courts will be able, by deploying a range of techniques, to protect themselves from an influx of opportunistic litigants, keen to avail themselves of our soon-to-be less stringent rules on what is or is not defamation of a person’s reputation.  However, as the Sunday Herald’s legally canny publication of a certain “unidentified” footballer’s phizog on its front page ought to remind us, it is generally very unwise to forget that the UK doesn’t have one legal system, but several.  Neglect the impact they may have on one another at your peril.

"Not a model of draftsmanship either in structure or in expression..."

"Not a model of draftsmanship either in structure or in expression". That was Lord Justice Clerk's Gill's assessment of an Act of the Scottish Parliament in court last week. The case is just the latest in which Holyrood legislation has been set against human rights norms - here rights to property - and been found wanting. Although at first sight the issues involved seem off-puttingly technical, Lord Gill's judgment smartly summarises the statute challenged, the reform it affected and the rationales advanced in Holyrood in 2003 for it.

To introduce the point of contention very briefly, the Agricultural Holdings (Scotland) Act 2003 intervened retrospectively to render ineffective legal arrangements used by landlords to deprive agricultural tenants of security of land tenure. The 2003 Act, argued the litigating landlord, violated his right to property under Article 1 Protocol 1 of the European Convention and consequently was outwith Holyrood's powers. Extensive reference is made in the judgment to comments made by parliamentarians in the course of their speeches in the chamber and in committees. In his dry, understated way, Gill is also rather scathing about the reasoning proffered by former Labour MSP and Deputy Environment Minister Allan Wilson.

Last week, I quoted Joan McAlpine to the effect that she - and I'd guess other MSPs - basically think of Holyrood as a quasi-sovereign body, that shouldn't have to trouble itself over much with legal technicalities. Democracy on their side, and supported by popular election, surely their deliberations ought to prevail whatever? At least under the present dispensation, no so. That is not to say that that parliamentarians exhibit no sensibility for the limits of their powers - many are acutely conscious of their moderate to non-existent jurisdiction over decisions in welfare, foreign affairs, defence and so on - but the constraints on legislation within areas of devolved consciousness do not always seem adequately to have been attended to. Treating them as technical points of tedious detail, as naught before their political sway, our tribunes seem to prefer to defer to the reassurances of Ministers - and whizzbang - enact anyway.

More importantly perhaps, this vice doesn't solely relate to those bodies of norms - human rights, EU law, reserved matters - which constrain Holyrood's powers, but can also contribute to an overly-constrained vision of what the Scottish Parliament can and cannot do. Insufficiently close scholars of the Scotland Act - which provides no enumerated list of devolved powers, but instead only things reserved to Westminster, making life difficult - you sometimes get the impression that our politicians do not always realise the full extent of what they are empowered to do under devolution. Even Nationalists are given to mutely conceding devolved fields as areas where London should enjoy priority or even exclusive competence. The underlying issues raised by the Leveson inquiry are a case in point. 

In any case - another court action, another Act of Holyrood teetering on the brink of being declared beyond its powers - which should serve as a small reminder that while MSPs are representatives and politicians, they are also lawmakers, and the evidence at least suggests that they have not yet developed mature legislators' sensibilities for this aspect of their job. The procedures adopted by the Scottish Parliament don't much assist them to develop rugged independency on this score. From its inception, it was envisaged that parliamentary committees would undertake the main labours of scrutinising the details of legislation in Holyrood. In the event, and entirely unsurprisingly, partisan hackery has tended to reign. You don't have to have particularly sensitive ear to note that the concept of "holding the government to account" enjoys only very modest purchase in the discourse of Scottish parliamentarians. In a queer way, proportionality has arguably encouraged this disposition, encouraging all of the parties to hang desperately together, and to avoid dissent or rebellion from their respective leadership's line, and instead to kick outwards. By no means am I arguing that Holyrood's committees do no good work - they do - but their primacy in the scrutiny of proposed legislation simply has not produced the results intended and hoped for.

In addition to partisanship, partly this can be ascribed to the last act of legislation in Edinburgh, which can totally vitiate the virtues of methodical examination of a proposal. Right up until a Bill's last day in the parliament, amendments are typically brought forward, justified by the scantiest ministerial representations, and are promptly voted on - and raced through. There is no moment of pause, no second taken to ensure that these over-speedily adopted provisions combine into the best, intelligible text parliament can contrive to work its will. At the end of this blistering process - a vote on the final object is taken, and if successful, the Act is forwarded to the monarch for her Royal Assent.

It shouldn't surprise anyone that the results of this wholly unnecessary haste are chimerical final texts and poorly-drafted laws, ill-serving the parliament's declared ends.  It is not untypical for parliamentarians more and less mildly to resent what they perceive as judicial interventions in their sphere of competence. They would do well to think on the fact that it partly by dint of their adopting of muddy legislation that litigation and adverse judicial rulings are generated.

Represented by a unicameral parliament, Scotland has no "revising chamber", no delaying, scrutinising site to subject the government's proposals to concerted and in-detail examination.  Another one of those interesting questions for an independent Scotland, I should say. Should we have our own House of the Ancients, a Scottish Senate? Elected, appointed, some muddle-guddle mix of the two? I for one would have no truck with the fripperies, ribbons and peeled mustelids of a Scots Hoose o' Lairds, but depending on the outcome of the independence referendum, we ought to give serious thought to the virtues of forming a second institution in our democracy to undertake some of these neglected tasks Holyrood seems, at present, ill-suited to perform.

Encouragingly, Holyrood has instituted self-reflection through its Standards, Procedures and Public Appoints Committee, who published their first report into reforming parliamentary business in Edinburgh last December. I know some of you are shaking your fists at the screen, damning me for a drab jurisprude whose passions ought to be animated by other things - but this stuff matters and will, I fancy, have a significant impact on an approaching controversy in Scottish politics.

More on that tomorrow...

Leveson LJ's "objective appearance of impartiality"...

Remember Robbie the Pict's crusade against the Speculative Society? In 1998, Robbie was convicted in Dingwall Sheriff Court for non-payment of the £5.70 toll on the Skye road bridge, now suspended. The Pict subsequently petitioned the nobile officium - the equitable jurisdiction of the High Court to afford extraordinary remedies - and in the third of his preliminary objections to the constitution of the court in his second petition, he complained that Lord Osborne was a member of the Speculative Society of Edinburgh, and as such, should not be permitted to sit in judgment in his case. As Lord Justice Clerk Gill narrated in 2003...

"The Speculative Society, according to the petitioner, is a closed debating society that has been described in its own literature as a secret sodality and a brotherhood bound by intangible ties of shared loyalty and common tradition. According to the petitioner, each member of the Society has a personal four-digit number and signs a members' roll. The secrecy of the members was, he submitted, similar to that of freemasons. For a better understanding of the matter, the petitioner invited us to read the History of the Speculative Society (1968), to which Lord Osborne contributed a chapter. The petitioner further submitted that in a series of judgments relating to the Skye Bridge tolls, 12 out of 14 involved the participation of judges who are members of the Speculative Society. He said that there was widespread public disquiet about the influence of the Speculative Society amongst the judiciary. He referred to recent media comments on the subject. He submitted that in this case, as in numerous previous cases, there was an appearance of bias, actual or potential."

Gill was, quite rightly, concerned with "the objective appearance of impartiality", reconvening a differently constituted bench of the High Court to decide the issue, none of whom were members of the Society.  The Pict's line of argument made a significant press splash at the time, reinforcing representations of the Scots legal Establishment as a suspect and reactionary class, dominated by the tedious and the affected. I've treated this topic in greater length in Scotland's coelocanth, the legal establishment.  Other details about the Speculative Society contributed to the effect. Their reported archaisms, disdaining to avail themselves of electricity in their rooms in Old College; their exclusion of women; the prospect of interminable marble-mouthed speeches, each dreary drollery prompting port-soaked guffaws and claret cackles from the assembled jurisprudes. At the time, the Scottish Legal Action Group acidly observed:

"... the Speculative Society meetings are, in the main, reactionary gatherings of over-privileged, idiot, boy students who enjoy pompous role playing. In this guise it is no more a threat to democracy and justice than other self-indulgent antics found among a minority of yahoo students at many universities."

That said, the published list of members admitted to the Society between 1947 - 2002 includes a great many high profile names in the legal world, past and present, including the current Lord President, Arthur Hamilton. Past members of the Society include Sir Walter Scott and Robert Louis Stevenson.  Safe to say, you won't find my name on there, but while I was at Edinburgh University, I was approached about the society, but declined to take any interest. I'm given to understand that the Speculators continue to hold their meetings under the nose of the majority of Edinburgh's law students - who are now overwhelmingly women. I suspect most students would be surprised to discover that such a body still congregates and attracts a congregation in contemporary Scotland.  In his disposal of Robbie the Pict's application, Lord Gill afforded this insight into how the Society selects its creatures, based on an affidavit from one of the Society's office bearers:

"The society is a society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any."

In the final analysis, Robbie the Pict was to be disappointed, but the gently wry quality of Lord Gill's judgment is pleasing for those, like me, who find the reported mores of the Society immediately distasteful, particularly its exclusion of women, its sticky homosociability, the stuffy, clubby selectivity. Gill held...

"On the information before us, we conclude that the Society is never secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters."

This issue of judges maintaining an objective appearance of impartiality was summoned back to mind this morning by disclosures about Cameron's appointee to lead the public inquiry into phone hacking. Further to an article in the Telegraph, which reports that Lord Justice Leveson has attended parties at the house of Rupert Murdoch's son in law, fellow Scot and English lawyer Charon QC writes that...

"In the present climate – I am surprised that the Prime Minister, aware of the minor connection between Lord Justice Leveson and the Murdochs as reported in The Telegraph – thought it fitting that Leveson LJ should head the inquiry.  I am sure that Leveson LJ would be impartial.  He is highly regarded.  But on this very complex and emotive issue of #Hackgate – it is surprising (a) that this story was not announced at the time Leveson LJ was appointed and, frankly, (b) that Leveson LJ was appointed, and (c) accepted the appointment."

I agree. Without impugning the integrity of Leveson in any way, it is bizarre that David Cameron didn't pause and seek out some other judge, any other qualified judge, without a scintilla of contact with the extended Murdoch clan and their dubious hospitality. Early on in the developing scandal, Simon Hughes appeared on Newsnight, arguing that the selection of the judge to conduct any independent investigation would need to be very sensitive, ensuring that any judge selected didn't paddle in the same social pool as those they are investigating. Hughes particularly mentioned senior police officers and masonic lodges - but we needn't stretch our imaginations too far to imagine other sites in which senior judges, based in London, might find themselves fraternising with prominent figures from the press and the police. 

Like Robbie the Pict's case, the issue is one of the objective appearance of impartiality, which is clearly potentially compromised when the judge moves in the social milieu as the journalists, executives and officers they are examining. On twitter and in a comment after an article by David Allen Green at the beginning of July, I asked - why not appoint a Scottish judge to lead the inquiry? This wasn't intended as rank Scots legal nationalism, nor as a slight to the many upright Daniels on the English Bench who could do the inquiry justice - but specifically to address the point raised by Hughes. The physical and social distance between Edinburgh and London, I suggested, would rapidly foreclose any fears about the inquiring judge's social connections and knowledge of those being investigated. Senators of the College of Justice do not, in general, swim in London's social pond. Also, a certain douce, precise Scots air might have been just what an inflammatory inquiry into such seedy activities needs. Given today's disclosures about Leveson's wee drinkie with the Freuds, and assuming the details ennumerated by the Telegraph are accurate, this is precisely the sort of compromising connection which Simon Hughes was so concerned about. Much more baffling is cloth-eared Cameron's decision to appoint Leveson, in full knowledge of his links and drinks. Charon QC argues that Leveson should recuse himself.  Perhaps it is time to "activate" - Lord Justice Clerk Gill?

Anticipating the UK Supreme Court...

As I mentioned yesterday, I don't have a lot of time on my paws to blog at the moment. However, I do intend to compose something on the ongoing furore about the jurisdiction of the UK Supreme Court before the end of the week. The whole affair is a complex and increasingly messy salmagundi, including the political ingredients of nationalism and Unionism, a sprinkle of legal nationalism which is not incompatible with a Unionist politics, the conceptual universality of human rights and the knuckly difficulty this poses in a multi-jurisdictional state like Britain; the palpable inadequacy of the High Court of Justiciary's approach to human rights claims in Scots criminal cases, in particular its total failure to take seriously the Crown's unjust follies in in the Nat Fraser case; the inarticulacy of SNP figures, in distinguishing their general point about the independency of Scots law from the outcomes of these particular cases (specifically Cadder and lately, Fraser); the disavowed Unionist politics of their opponents, who attempt to present the status quo as expert ordained and de-politicised, which it ain't; misunderstandings about the differences between the institutions of the UK Supreme Court and the European Court of Human Rights - I could go on. And on.

As a primer for thinking through the issues involved, I think it is helpful to try distinguish some of the different elements on this gristly platter. Let's start with the judgements in the Nat Fraser v. H.M. Advocate. It is worth reading, and contrasting, the 2008 judgment of Lord Justice Clerk Gill in the High Court of Justiciary appeal, and contrast it with Lord Hope's in the UK Supreme Court.  Kenneth Roy, writing in the Scottish Review, has an admirable summary of the issues raised in the case, for those who don't fancy teasing through the judicial prose.  (If you wanted to read one of the judgments from the perspective of general interest, I'd say that Lord Hope's treatment is less densely written and more generally accessible). Grown familiar with the facts and circumstances of the UK Supreme Court's judgment on Nat Fraser's devolution minute, I'd be astonished if many of you would care to defend the proposition that the High Court of Justiciary came to a fair or just decision. By dint of a precognition (which are not generally admissible in Court), the Crown acquired evidence on a key plank of their case against Fraser which seriously undermined the narrative they invited the empanelled jury to accept in convicting Fraser. This information was simply not disclosed to the accused, who was convicted without getting sight of it, and did not do so until well after the verdict. It is ludicrous to suggest that it is a failure attributable to the tardiness of defence representatives, not to ask witnesses about evidence which it had enjoyed no access to.  That the SNP has decided to make its case for the "sanctity" of Scots Law, riding on the back this palpable unjust set of proceedings - is crackers. As Lord Hope noted at paragraph [32], this is not a case of new evidence emerging after a trial, which was unavailable to both sides during the course of proceedings....

"It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial."

That despite, there are a number of more toothsome morsels on this mixter-maxter platter. When the issue last burst onto the political scene in March of this year, I composed a couple of posts, trying to outline the legal position, on the jurisdiction of the UK Supreme Court over Scots criminal matters. In the course of the first, I was highly critical of Fiona Hyslop's basically misleading presentation of these issues on BBC Newsnicht.   In a lower key way, her mad March is/ought muddle has only been enlarged in the subsequent arguments this week. In the second, I offered a critique of a piece by John McTernan in the Hootsmon, which argued that the SNP were engaged in "trumped up posturing" on the jurisdiction of the Court. He needed reminding, I submitted, about the extent to which his own position was politicised by a Unionist politics, rather than the value neutral, humble, technocratic and commonsensical conclusion of dulldog legal reason. That point too, I think, obtains today. Both posts may be a helpful starting point for folk trying to tease out the various elements so hurriedly and untidily knotted together in today's debates on the jurisdiction of the Supreme Court.

Thus primed, I intend to trudge back over this territory, later this week.

The Holyrood assizes...

Oral evidence continues at Stage 1 consideration of the Scottish Government's Double Jeopardy (Scotland) Bill, which proposes (1) to enshrine the principle of tholing your assize in statute (having been tried and acquitted, your judicial ordeal is over and the disposal is final) and (2) delineate clear exceptions which will allow acquitted individuals to be retried in Scotland under particular circumstances. I'm conscious that the issues raised by the Bill are simultaneously politically important and interesting - and often befuddlingly technical. No sane soul, consciousness unassailed by a legal education, can much care for the legal draftsman's style, which invites the reader to leap to and fro in a tangle of clauses and subsections. Its all too easy to trip up. Today, I thought I'd quickly summarise what the Bill proposes and emphasise one or two of the issues raised by learned lawyers in their submissions to Holyrood's Justice Committee. I've previously discussed the evidence of the Scottish Law Commissioner Patrick Layden QC, who informed the Committee that unlike the unsolved "cold cases" of telly cop dramas, in cases where the accused is acquitted, physical evidence is currently disposed of, destroyed, lost. The upshot of which being, practically speaking, that this reform will not allow new science to be applied to old physical evidence locked away in some police archive, where there has been an unsuccessful prosecution.

Summary of key sections of the Bill...

As currently drafted, these include "tainted acquittals" (§2), allowing re-prosecution for the same or similar offence - where the acquitted person or some other person has been convicted of an offence against the course of justice in relation to the trial - or where the Court is persuaded, on balance of probability, that an offence such as bribery or suborning perjury has taken place. It does not matter what offence the individual was acquitted of. Any competent charge could be retired, with the permission of the High Court, if the original trial is shown to have been "tainted" for the purposes of the Bill.

The most prominent proposal in the Bill is to introduce a "new evidence exception" (§4). In contradistinction to the "tainted acquittal" provision, this aspect of the Bill would only apply to a select series of offences. The draft Bill would empowers the Lord Advocate to apply to the High Court to set aside the acquittal and grant authority to bring a new prosecution. In considering whether to do so, the Bill requires the High Court to consider the following on any "new evidence" (§4(3)):

(a) the case against the accused is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable
diligence have been made available, at the trial in respect of the original offence,
(c) on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence (had, in the case of an offence mentioned in subsection (2)(b), such an offence been charged), and
(d) it is in the interests of justice to do so.

Criticised by some as being unnecessary given the foregoing general section, nevertheless the draft Bill picks out admissions of guilt after an acquittal in largely similar terms. Remember, the proposed Bill limits the availability of any new evidence re-prosecution to a selection of offences. In this respect, MacAskill has largely copied the existing model in England, albeit with different offences listed. They are as follows:

Offences against the person
Murder; Culpable homicide

Genocide etc.
Genocide (s1 of the International Criminal Court (Scotland) Act 2001); A crime against humanity (ibid); A war crime (ibid).

Sexual offences: common law
Rape; clandestine injury to women; abduction of a woman with intent to rape; assault with intent to rape or ravish; indecent assault; Lewd, indecent or libidinous practice or behaviour; Sodomy.

Sexual offences: offences under the Sexual Offences (Scotland) Act 2009
Rape; Sexual assault by penetration; Sexual assault; Rape of a young child; Sexual assault on a young child by penetration; Sexual assault on a young child; Causing a young child to participate in a sexual activity.

Other sexual offences
Incest; Sexual intercourse with a stepchild; Unlawful sexual intercourse with a girl under 13

As it is currently drafted, the Bill would permit the Government of the day to add or delete offences from this list, by subordinate legislation (§4(7)).

Justice Committee evidence...

Yesterday, the Lord Justice Clerk, Lord Gill, gave evidence to Baillie Bill Aitken's parliamentary Committee, which heard last week from Richard Keen QC, Dean of the Faculty of Advocates - Alan McCreadie, deputy director of law reform with the Law Society of Scotland - John Scott, former chair of the Scottish Human Rights Centre - and Shelagh McCall, a commissioner in the Scottish Commission for Human Rights.  Interesting remarks were made by a number of parties, particularly on the idea that this legislation should only apply to serious cases. 

But how to do it? The Government are proposing a list - but the list is potentially problematic, in that its present drafting might conceivable coverage comparatively minor issues, first prosecuted before a sheriff alone. Most offences in Scots criminal law are triable summarily (before a Sheriff sitting alone, with more limited sentencing powers) or on indictment (before a Sheriff sitting with a jury or before a Senator of the College of Justice and a jury in the High Court of Justiciary. Both have enhanced sentencing powers). Certain offences - such as murder, rape, treason - are traditional Pleas of the Crown and must be tried in the High Court. Unless you limit the list to these of potentially re-prosecutable offences to these charges - it is very difficult to abstractly to limit re-prosecution to serious cases. Any reference to assault would encompass a drive-by bruising from a flung bread roll. Any reference to fraud would include wry schemes netting the fraudster millions or only pennies. The point is that Scots law generally doesn't distinguish between seriousness at the level of offences, but on the forum chosen to prosecute, the sentencing powers of the forum - and the punishment imposed. This presents a real difficulty for the list-based approach the Government is adopting, even before one falls into a discussion about whether drug offences, robbery - and attempts - ought to be included.

As I understand Alan McCreadie's evidence - the Law Society have suggested a cunning wheeze to get around the problem. Why not, they argue, only permit a new evidence re-prosecution in individual cases where the acquitted person had been tried on indictment? Rather than scribble a list of qualifying offences - problematically open for the government to add and subtract from - primae facie this approach would only permit reprosecution in cases which the Crown Office and Procurator Fiscal have already identified as sufficiently serious to warrant proceeding on indictment, before a jury. Given the exceedingly small number of cases in Scotland tried in this way - off the top of my head, a scanty 5% of total trials - it would significantly limit the ambit of the reform.

I do wonder about more extensive indictments, however, where a case was brought in the High Court on the basis of a serious offence - with a number of more minor infractions tacked on. After being acquitted on all counts, the Crown could then recall the acquittal and reactivate (with "new evidence" and the High Court's consent) the associated more minor offences, which in themselves may have only warranted summary proceedings before a Sheriff.  What this emphasises, as much as anything else, is that a measure of arbitrariness and unpredictability is inherent in the proposed reform. So too is a familiar tendency of Scottish law reform - pass sweeping new offences or devolve broad powers - and then trust in the Crown Office not to use them as drafted. This exchange been Tyrant Bill and Lord Gill exemplifies the attitude:

Lord Gill: "... Of course, you also have a considerable safeguard overhanging all of this, which is the position of the Lord Advocate, who exercises wise judgment in the public interest. The office of Lord Advocate is a considerable constitutional safeguard."

The Convener (Baillie Bill): "We are totally reliant on the Lord Advocate and her successors adopting an attitude towards the provisions that will ensure that they are used sparingly."

Lord Gill: "Yes. That is why, in this country, prosecutions are not conducted oppressively. The office of Lord Advocate is such that before any prosecution is launched, the public interest is carefully considered."

Its simple! Once we've over-criminalised great swathes of conduct and empowered our prosecutors to pick and choose who really deserves being thoroughly radished by public power - we have room to be just and persecute the deserving while delivering the meek and the "blameless". Its a perverse mode of legislation, but one which our Parliament is frightfully keen on.

Tales from Parliament House Vol. 5.

I thought the relevant passage was in Robert Louis Stevenson's Edinburgh: Picturesque Notes, but a quick look suggests I'm mistaken. At any rate, somewhere in the limited canon of literature which mentions the Court of Session, an author sketched one of the "Parliament House characters", infamous in his own day. This anonymous soul had a reputation for enthusiastic, serial and spurious litigation. Off the top of my head, I seem to recall that the piece comically recounted how this chap had simultaneously attempted to sustain two logically incompatible pleas in two different courts. Their Lordships happening to confer over lunch, the wretched man lost both causes. In any case, his hunger for actions and causes was not abated by this minor setback and he continued on his long, unsuccessful career as a long suffering party-litigant. The character came to mind yesterday, when I happened across the disposition of the reclaiming motion in the case of one Terence Patrick Ewing v. Times Newspapers Ltd. In this case, however, the serial suer was not a homegrown eccentric, but a English tourist who went to extraordinary lengths to try to be defamed in Scottish jurisdiction. Lord Gill, the Lord Justice Clerk, along with Lords Marnoch and Mackay of Drumadoon brought a brutal end of Mr Ewing's litigation in the Court of Session with the assessment that he had:

"... inflicted needless expense on the defender. He has imposed a needless burden on the overstretched resources of this court. It is time to bring down the curtain on this action before further time and money are wasted."

The whole judgements effuses a sort of measured, starchy disgust. So what the devil did Mr Ewing do? A number of things, as it happens. From the judicial documents, the whole story and its characters lurch from absurdity to pitiful absurdity. The action originated in an article which appeared in the Sunday Times and online on Times Online concerning planning applications in Weston-Super-Mare (one has to love the trivial sites in which law's stately grandeur unfolds). I quote from the Scottish Court's judgement:

"The essential points in the article complained of are that a body called the Euston Trust, with which the pursuer is associated, took a secret payment of £10,000 to drop its objections to a £16 million development in Weston-super-Mare; that the Euston Trust had objected to dozens of developments across Britain since its inception four years earlier and was suspected of taking money from other builders; that the pursuer told the Sunday Times that he intended to target the £2 billion redevelopment of derelict rail yards at Kings Cross and that in September 2005 at a meeting with a firm of housebuilders the then secretary of the Euston Trust, Keith Hammerton, said that he believed that the pursuer had often taken payments from other developers. According to the article, the minutes taken by an independent solicitor recorded a comment by Mr Hammerton that he had suspected for some time that the pursuer had received payments from developers to pull out of intended judicial review challenges. The article recorded that the pursuer emphatically denied having been offered, or having taken, payments from developers and said that Mr Hammerton, from whom he had dissociated himself, had not passed on the £10,000."

The paper basically alleged that Ewing was a rather dishonest and conniving "professional nimby", who turned his oppression into a not-so-quick buck, with planning applicants paying him to sod off  This Euston Trust was "an unincorporated and unregulated body run from a North London council flat by the claimant" - namely Mr Ewing - who amongst his other accomplishments is also "a convicted fraudster". Owing to no less than 37 actions raised by Mr Ewing, in December 1989 the English High Court declared him to be a "vexatious litigant," imposing certain judicial limitations on his capacity to indulge in his apparently endless and obsessive litigious hobby. Since 1989, Ewing has apparently petitioned the High Court to allow him to institute proceedings in no less than 19 other matters. A thirst unquenched, methinks. In the Scots judgement, the Lord Justice Clerk numbered:

"Ministers of the Crown, the Director of Public Prosecutions, the Security Service, the Registrar of Companies, the Criminal Injuries Compensation Board, the Legal Services Ombudsman, local authorities and developers are among his many victims."

One English High Court judge described him as having a "veracious appetite for civil litigation" and a rampant disposition not to pay the costs he imposes on those he takes it into his mind to sue. His case against the Times was just another in an unsuccessful train of actions, with Mr Justice Coulson refusing him leave to bring proceedings in England in 2008. The judgement is full of odd flourishes and droll understatement from the learned judge, which I can hardly do justice to in this truncated summary.  It also adds another charming feature to the twisted and knotted grain of Mr Ewing - in his legal letters, he likes to lapse into insulting and racist language and freely confess his pettifoggery. But what to do now? Despite an appeal, his English case seemed to have sputtered to a halt. Here is where the matter takes on a Scottish savour. Having had his claims repelled on a number of bases in England, he was not so readily to be defeated. Mr Ewing then promptly:

".... travelled to Scotland where he downloaded the internet versions of the article and read a hard copy of it in a public library. In June 2008 he raised the present action."

And to keep as many legal irons in the fire as possible, Mr Ewing took another wee trip. In Lord Justice Clerk Gill's words:

"At about that time the pursuer, seeking to be defamed in Northern Ireland, travelled to Belfast, downloaded the same versions of the article and read a hard copy of it. He then served two writs on the present defender in the High Court of Northern Ireland."

Things got a bit sticky for our "hero", however, when in December 2008 the Scottish judge Lord Brodie, ordered Ewing to produce £15,000 in caution in part citing Ewing's past conduct as a:

" ... determined recreational litigant with little regard for the constraints that the courts have attempted to impose, no appreciation of the proportionality of his actions and no concern for the financial interests of others."

The appeal before the Court of Session was primarily concerned with this caution. As noted at the outset, the hope was forlorn and the judgement crashes down in a quietly damning, understated way:

"The present action arises because the pursuer came to Scotland to acquire a cause of action. He has no connection with Scotland and has no apparent reputation here to defend. If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted. Even if there were to be a vestige of merit in the claim, this action would be disproportionate to its value."

To fritter away one's days with these persecutions, wringing happiness and significance from serving writs - its a pitiful caviling game. To offer Mr Ewing some constructive advice, might I suggest that he delves into some Stoic philosophy - the Meditations of Marcus Aurelius may be a splendid start - and slowly learn the art of not staking his happiness on other men's souls. It'll make for a far more healthsome and satisfying existence, I assure you.

Tales from Parliament House Vol. 4

Make no mistake. If you stand up in the dock and respond "Guilty M'lord" and subsequently think the better of it, don't expect to find sympathetic judicial faces at your appeal. You can understand the suspicion. Why plead guilty in the first place? And what's more, it looks more than a little iffy to suddenly realise you didn't want to confess, after you have been sentenced - perhaps significantly more harshly than you had anticipated. Yet in Nicola Gallagher v. H.M. Advocate, Gallagher attempted to do just this.  And  rather astonishingly, succeeded. The facts of her case are worth paying attention to, as they disclose the extent to which ignorant people can be prodded around by their lawyers, how the theoretical "equality of arms" between citizen and state is readily, all too readily transformed by the bustle and rush and shove of procedures - into a version of Kafka's The Trial. Nicola Gallagher had been charged with fraudulently obtaining Working Tax Credit by failing to disclose her husband's earnings and claiming them on the part of her son - who is deceased - to the tune of £23,927.35.  She plead guilty to an amended version of the charge, limiting the sum alleged to £16,000, and was sentenced to a year a prison. The appellant said:

"...that she pled guilty only because her former solicitor, Mr Matthew Berlow of Beltrami Berlow, solicitors, Glasgow, told her that unless she did so, he would withdraw from acting and leave her to defend herself. Furthermore, she did not understand the nature of the charge to which she was pleading guilty. She therefore did not give a true and informed consent to the tendering of the plea."

Not a point of appeal you'd generally get good odds on. Here is the evidence, as it was set down in the opinion. Much of interest here, for outsiders peering in, trying to get a sense of how plea bargaining works in our criminal justice system. Not a pretty sight, I'd say. First, here was the evidence adduced by the appellant, her side of the story:

[5] The appellant said that she had had no previous experience of the criminal courts. After being interviewed by HM Revenue and Customs, she consulted a solicitor; but the solicitor left practice soon after. She then approached Beltrami Berlow. At her first meeting at their office, Mr Berlow was stuck in traffic. She saw Mr Beltrami instead. On this occasion, she signed legal aid papers. There was no discussion of the case. There was no further meeting at that office. She had one conversation with Mr Berlow on the telephone. He seemed not to be familiar with the case. He told her that he would discuss matters with her on the day. She met Mr Berlow for the first time on the morning on which she pled guilty. The question of his negotiating a plea was then discussed for the first time. Her conversation with Mr Berlow took place in the street outside the court building. It was a busy main street with buses passing. The conversation lasted for about ten minutes. She said that Mr Berlow told her in forceful terms that she would have to plead guilty and that if she did not, she would have to represent herself or explain to the court why she did not have a lawyer. Her position was that although she had not declared income, she thought that she did not have to do so until the renewal of Working Tax Credit in July, at which point her benefits would be calculated and any adjustments would be made. Mr Berlow said that if she was admitting that she had worked but had not declared that, then she was guilty. The appellant said that she never told Mr Berlow that she wished to plead guilty. She did not ask him to negotiate a plea to a reduced amount. She pled guilty because she felt that she had no choice.

Gallacher's solicitor, Matthew Berlow, gave this account of the situation and his conduct:

[6] Mr Berlow said that the appellant had come to the office of his firm and instructed the firm to represent her. On that occasion she filled up legal aid forms. There was a general discussion about her case. He thought that he had seen her on that occasion; but he could not specifically recall it. It was possible that he did not meet her on that occasion. She might have met his partner. He had consulted with the appellant in the street because of the lack of interview facilities at the Dumbarton Sheriff Court annexe, which was being renovated at the time, and for reasons of privacy. He had been told by his assistant, Mr Sinclair, that the appellant had instructed him to negotiate a plea. She seemed not to understand the difference between guilt and mitigation. He told her that there were stacks of evidence against her and advised her to let him negotiate a reduced plea with the procurator fiscal. She instructed him to do so. Her general position was one of guilt. He had negotiated a plea with the procurator fiscal in the restricted sum and the procurator fiscal had agreed to drop the second charge. The figure that was negotiated was an arbitrary figure. There was no rhyme or reason to it. The appellant then gave him instructions to plead to the reduced charge. He also advised her about sentence discounts. Mr Berlow added that nothing that the appellant said to him left him in any doubt that she was guilty. He accepted that he indicated to her that he was considering withdrawing from acting for her. He felt that they (sc his firm) were compromised because she had clearly given an indication to Mr Sinclair to negotiate. When asked if he had made clear to her that she would be on her own, he said that he did not know if he had used those words, but that he had probably said that she would have to represent herself that day and then find new solicitors. When asked if it was possible that she took what he said to her to mean that she had to plead guilty or look after herself, he replied yes, and that that was correct from a professional point of view.

I have no idea who Ms Gallagher is and cannot speculate on her situation. That she was put in this situation by the man meant to be representing her legal interests is scandalous. It is easy enough to imagine oneself in her place, disorientated by a bemusing edifice of law and lawyers, not much bothered about you or your understanding, your attempted gauche exculpations. In a study of an English Crown Court, Paul Rock suggests that a different sense of time predominates for professional lawyers and judges - accused persons, witnesses and complainers. For the lawyers, the daily churn makes for a cyclical apprehension of time, day after day  spent dealing with similar matters, similar disposals. For the second group, coming to Court generally does not assume this cyclical form. Their experience of crossing the threshold of Law's Temple is embedded as an episode in life's linear account of time's passage. Witnesses wait to take the stand, give their evidence, and then cease to be a witness. They have little in the way of the criminal lawyer's eternal return. The grim fact is that many, many accused persons will experience "justice" in a manner very similar to that complained of by Ms Gallagher. The hurried scurrying of insiders, all significance, the alien shuffling of papers, the discomfort of being a stranger in a strange place, surrounding by professionals who seem to know what is going on, but don't let on. Yet, exceptionally, the Court accepted Ms Gallacher's argument. And quite right too. Said that Lord Justice Clerk Gill, in his usual assiduous, judicial way...

[11] It would be unfortunate if in deciding this appeal we had to attempt to resolve the conflicts in the evidence of the appellant and Mr Berlow, particularly since Mr Berlow was not represented in these proceedings for his own interest. I think that that course is unnecessary in the circumstances. From the evidence that we have heard there are, I think, five indisputable points. First, there is no direct evidence that before the day of the hearing the appellant had ever evinced a desire, orally or by letter, to plead guilty. Second, it seems to be accepted by Mr Berlow that, as the partner dealing with the appellant's case, he had no meeting with her to discuss the case, and may not have met her at all, before the day of the plea. Third, Mr Berlow did not give his critical advice to the appellant to plead guilty until the morning of the hearing, and then only minutes before the case was due to be called. Fourth, he gave this advice in a conversation on the pavement of a main road that was busy with traffic and passers-by. Fifth, he gave the advice with the clear and overt warning that if the appellant did not accept it, he would withdraw from acting and leave her to represent herself that day before the sheriff.

These circumstances, said Lord Justice-Clerk Gill, were "demonstrably prejudicial to the appellant", the on the hoof persuasion to plead guilty "unsatisfactory on any view" and concluded that "the appellant did not have a proper opportunity to consider the implications of the step that she was being pressed to take. In my view, the circumstances were clearly prejudicial to her. The conviction must therefore be regarded as a miscarriage of justice." Given the facts, this is a remarkable, humane judgement by the Court. It also has the paradoxical result that by zealously extorting his client to plead guilty, Mr Berlow has managed to have her conviction quashed. Let nobody argue that law lacks a sense of irony.

Wigs, hats and juicy English spiders...

Fear not, I haven’t expired. I’m now fully embedded in the autumnal south of England, which at the moment feels profoundly Keatsian…

SEASON of mists and mellow fruitfulness,
Close bosom-friend of the maturing sun;
Conspiring with him how to load and bless
With fruit the vines that round the thatch-eves run;

The sleepy plants are degged with dew and dappled with juicy garden spiders and I’m tucked in my new Victorian garret. All is well, calmness rules and blogging can now continue. Unfortunately, the bloggus interruptus fell in a phase when a bumper crop of stories of interest rumbled through the public consciousness. The new Supreme Court first swore and sat, sans wigs but with one gratuitous hat, Kenny MacAskill published the Legal Services (Scotland) Bill which promises to generate a good deal of ill-natured banter between Scotland’s groansome legal professions, insisting on their civic intent, and others pushing a discourse of choice, consumerism and the dismantling for monopoly and limitation.

Finally, and probably most significantly, the group chaired by Brian Gill has published its Civil Courts Review. Civil justice reforms and courtly institutional realignments may not be what drags the electorate to the polls. It is however, in my humble submission, precisely was the Scottish Parliament should be concerning itself with. For me, devolution, if nothing else, is a sharp call to public and political responsibility. Glance about the country, it insists, seek out mischiefs, disclose injustices. Change is within your power. Of course, there are limits – these constraints being grist to the nationalist mill and the stuff of the intellectual case for independence. Without underestimating these limitations, Holyrood is already empowered radically to alter swathes of Scotland’s public life. Due to its arid associations, and long roll of pages, I don’t expect too many of you will have read both volumes of the Review, published on the 30^th of September. For those who are interested, a brief synopsis is available here.

Gill is the Lord Justice Clerk, an authoritative insider, and he does not mince in words. I particularly want to highlight how trenchantly the pert Gill words his critique of Scotland’s current judicial structures. It is worth quoting the first page of his introduction to the review, which contains many of the overtly and deliberately combustible phrases.

The theme of this Report is that the legal system is a public service and that in the allocation of the resources available to it the public interest is of vital importance. Since resources are limited, the excellence that the system cannot at present achieve must be pursued in the most cost‐effective way.

The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century. Meanwhile, fast moving changes in the social and economic life of Scotland in recent decades have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue. The structural and functional flaws in the working of the Scottish civil courts prevent the courts from delivering the quality of justice to which the public is entitled.

The Scottish civil courts provide a service to the public that is slow, inefficient and expensive. Their procedures are antiquated and the range of remedies that they can give is inadequate. In short, they are failing to deliver justice. Public confidence in our system is being eroded. The much admired qualities of fairness, incorruptibility and expertise of our judicial system will have little significance if the system cannot deliver high quality justice within a reasonable time and at reasonable cost. One of our basic propositions is that since the legal system, as a public service, must be adequately resourced, its structures and its procedures must be so arranged as to eliminate needless delay and unreasonable cost. If the civil justice system cannot do that, it perpetrates injustice.

An efficient civil justice system is vital to the Scottish economy. It is also vital to the survival of Scots law as an independent legal system. Some Scottish commercial undertakings have so little confidence in our system that they enter into contracts providing for English jurisdiction and choice of law. If the Scottish civil courts and their procedures continue to fail the public, it is inevitable that Scots law itself will atrophy. We consider that minor modifications to the status quo are no longer an option. The court system has to be reformed both structurally and functionally.

Charged and biting analysis. After such a demolition of the credibility of an institution by one of its sons, change is in the fustian legal air, methinks. If our processes are flawed, let us alter them. If we perform the works of injustice, lets find ways to work differently. Just what devolution is all about.