Lamont's reshuffle and 2016

Just a second, short thought for today. This afternoon, Scottish Labour leader Johann Lamont has reshuffled her depleted deck of Scottish parliamentarians. The party's diffident finance spokesman Ken Macintosh has suffered a complete fracture of the neck, and will be replaced by a revivified Iain Gray, his napper recovered from the wicker basket which the public consigned it to in 2011. 

Among the other critical parliamentary roles, the North East's Lewis MacDonald, always an uneasy fit with the Justice brief Johann bestowed on him in 2011, is to be replaced by Graeme Pearson, formerly a senior police officer. Kezia Dugdale elbows aside the lugubrious whippet-form of Hugh Henry, Labour's new education spokesman.  Jackie Baillie is relieved of her health brief, to be replaced by Neil Findlay.  Among other noviates, blooded after a year or two in the parliament, the constitutional gig goes to young Drew Smith of the Glasgow regional list.  Which got me to wondering: is this reshuffle a recipe for the Labour party eating itself alive going into 2016?

Health, education, justice - all three major portoflios, all going to new (and in some cases, quite accidental) elections from Labour's regional list.  In terms of parliamentary strategy, there are clear benefits to Gray over the nigh invisible Mr Macintosh. Several of the other folk Johann has tapped seem admirable enough characters too, as far as it goes.  

What seems much, much more problematic, however, is how the party is going to manage and maintain this team, going into 2016.  Bracket the independence referendum for a moment, ignore its outcome. Either way, in and into 2016, Lamont will be hoping to cultivate an image of an alternative government to set against Salmond's: credible, competent, waiting in the wings to take up the reigns of government. A band of folk with a political plan, and for electoral purposes, ideally both recognisable and savvy-seeming.  Given Lamont's disposition, and her current public profile, this'll have to be a team effort. 

And here's where today's reshuffle, despite its superficial lustre, begins to looks decidedly problematic. First, take Graeme Pearson, their new justice spokesman.  Elected to the South of Scotland list in 2011, Pearson came into the parliament from second place ranking on the Labour list in the region, after Claudia Beamish. While two of his party colleagues held constituencies in Dumfriesshire (Elaine Murray) and East Lothian (Iain Gray), Labour lost the two constituencies of Clydesdale and Carrick, Cumnock and Doon Valley to the SNP.  

If Labour's fortunes improve electorally, they might hope to reclaim these two constituencies - but what then for Graeme Pearson? In the South of Scotland in 2007, Labour held no regional seats whatsoever. Nor in 2003. Nor in 1999. The upshot? If the party's new Justice spokesman is going to keep his seat if Labour support increases, he'll have to muscle in on a winnable constituency. That or hope Labour experience another 2011-style trouncing. The first would-be minister in Lamont's government-in-waiting may well find himself waiting outside of Holyrood, even if his party won the 2016 election. Such things cannot encourage confidence.

The same goes for the Labour's new health spokesman and the lady now in charge of Labour's education policy. Neil Findlay was elected as an MSP for the Lothian region in 2011 by dint of his party's calamitous showing in the constituencies in that region.  Findlay was the third of the three regional Labour members elected after Sarah Boyak and the party's new education spokesman, Kezia Dugdale.

In 2007, Labour saw a single Lothian list MSP elected (the irrepressible Lord George Foulkes) and none in 1999 and 2003. If the party's fortunes revive in Edinburgh and its environs, Findlay is likely to find himself in electoral bother, looking for a constituency seat to scrap for, or warring his comrades for a decent ranking on the Lothians list. We all know how unseemly such internal internecine conflicts can become. Either way, the likelihood of both or either of Lamont's new education and health front benchers being re-elected in 2016 currently looks shoogly, and will need careful managing if it is to come off. 

The same uncertainty goes for Gray's new deputy and youth employment spokesperson, Jenny Marra, though her position looks more comfortable. Elected second on the North East regional list, since 2003, Labour have seen at least two regional MSPs elected out of the North East, and three in 2011. If Marra can sustain her list ranking, she should be able to hold on into the 2016 election, all things being equal.  By contrast, Drew Smith, elected on the Glasgow list, has cause to approach the next Holyrood election more fatalistically.

Looked at in the round, for her government-in-waiting, Johann Lamont has gathered about her a range of folk who may struggle to get back into Holyrood in 2016, even if Labour do splendidly well, and particularly if the party did splendidly well in constituency races. That is an unenviable position. While ditching the footering and ineffectual Ken Macintosh and the egregious Richard Baker can only be good news for Scottish Labour, the frailty of this new leadership team's grip on political office can only undermine Lamont's efforts to make her, and her crew, cut credible figures, ready for government. It has few of the hallmarks of a winning political slogan. Vote for us. None of us will take office if you do.

Labour hypocrisy? Gray sidelined? Or daring to disagree...

22nd January 2009; Foreign and Commonwealth Office Submission - Contingency Planning

"We now need to go further and work actively, but discreetly, to ensure that Megrahi is transferred back to Libya under the PTA or failing that released on compassionate grounds."

This sentence from the Megrahi correspondence, released by Sir Gus O'Donnell yesterday, has plainly left Scottish Labour in an awkward position. The Maximum Eck, always one with a lug for a telling phrase, styled it "Labour's organised hypocrisy". On Newsnicht yesterday, the BBC's Isabel Fraser presented Labour's improbable emissary, Richard Baker, with three options. Given their full-throated denunciation of Megrahi's release in 2009, and given the evidence that London Labour and Her Majesty's Government were all for it, was he a hypocrite? Alternatively, were Iain and the Shades of Gray consciously or casually sidelined by their party leadership? Finally, given this evidence - which by the by largely confirms suspicions entertained at the time - would Baker own up to disagreeing with the former Labour Government and turn his slurry-cannon of disparagement over them with the same vim and vigour he and his Gray foreman employed to soak MacAskill? Understandably enough, Mr Baker wasn't frightfully keen to accept any of these options and resorted to stammering, defensive circumlocution, as is traditional. 

So what is the answer? Some preliminaries which we ought to bear in mind. At the time, I expressed some doubts about the idea that all Labour Members (save for the supportive Malcolm Chisholm) wholeheartedly deplored the release. Similarly, I struggled and still struggle to believe that every SNP parliamentarian felt wholly supportive of MacAskill's decision. You will recall that the contemporaneous measures of public attitudes suggested sharp but close divisions of opinion. Wouldn't it be astonishingly improbable, a miraculous coincidence, to discover that those ambivalent public attitudes in the wider population aligned exactly with party political divisions in the parliament? It doesn't seem probable. This, it seems to me, is strongly indicative of the extent to which the subsequent furore was refracted through the prism of party political interest. As a consequence, I'm sure there were a fair few compromised consciences on both sides. Even bearing that in mind, Isabel Fraser's question is clearly pertinent. Here is my sense of things.  

Did Scottish Labour figures know what their government colleagues in Westminster were up to? 

Probably not. 

Was keeping them in the dark politically useful for the Labour Party?

Absolutely. While they may not have been informed about the machinations of the Foreign Office, it was clearly a politically productive ignorance. Baker's protestations that he hadn't the foggiest what his London Labour colleagues views were seems decidedly artificial, and their ignorance must have been an effort of will to maintain. While procedurally appropriate before the decision was made, I find it unconvincing that the Westminster Government maintained its conspicuous silence due to their pious observation of inter-governmental politesse. Qui tacet consentire viditur.

Did Scottish Labour know what their companions thought about it?

Probably not.

Should they have known and been able to deduce those views? 

Absolutely.

Was the failure to discover those views part of a conscious attempt to have it every which way, achieving foreign policy desires while allowing the Swine Purvuiant and the Snark to crucify Kenny MacAskill?

Wi' oot a doot. While the Scottish Labour leadership may have indulged in a species of mental reservation and substantive if not fully conscious hypocrisy, the muteness of their London Labour leaders has no such casuistic excuse. Taken at a party-wide level, the answer to Isabel Fraser's question is likely all three. At the level of Baker and Gray, the indictment is clear. They find the idea of releasing a sick man from prison on compassionate grounds appalling, but are happy to shrug and um and aw when they discover their fellows favoured release, purely for geo-political purposes. Spines suddenly extracted at the prospect of criticising their fellow Labour folk, their furious opprobrium is transformed into floppy diffidence. Colour me stunned. And the upshot? Firstly, this makes it decidedly unlikely that Scottish Labour will attempt make the release into an explicit Holyrood campaign issue, as I once wondered if they might. Secondly, I'm not terrifically convinced that this latest Lockerbie case reappearance will particularly assist the Nationalists, despite casting Gray and Baker and Labour in an unseemly light.  Most folk, I'd submit, are likely to be suspicious  about the idea that a Labour Justice Minister in Holyrood would have been immune to the views of their London colleagues, whether communicated through formal or informal channels. "If I was First Minister..." is an easy phrase to mouth, particularly when you aren't FM.

That said, my suspicion is that of those folk whose votes in May will be determined by the release - and it is difficult to say how many, if any, this might be - will nevertheless focus on the actual decision, which was made by Scottish Ministers. In that general context, remember this Ipsos-MORI poll from August 2010.  Respondents were asked:

Question: LOCKERBIE. Moving on, on Friday, it will be one year since the Scottish Justice Secretary, Kenny MacAskill, announced the release of the man convicted of the 1988 bombing of the Pan Am aeroplane over Lockerbie in which 270 people died. To what extent do you agree or disagree with the decision to release him? Do you..?

1. Strongly agree ~ Total 20%; Men 25%;  Women 16%
2. Tend to agree ~ Total 15%; Men 17%; Women 14%
3. Neither agree nor disagree ~ Total 8%; Men 6%; Women 9%
4. Tend to disagree ~ Total 9%; Men 8%; Women 10%
5. Strongly disagree ~ Total 45%; Men 42%; Women 47% 
6. Don't know ~ Total 3%; Men 1%; Women 4%

It is impossible on the basis of this data to say how attitudes towards the release might affect voting behaviour. A fuller exposition of these figures is to be found in my earlier post.

A serious pain in the thole...

Thursday was a justice day in Holyrood. The Justice Committee having published its stage 1 report on the Government's Double Jeopardy (Scotland) Bill, its general principles were debated and voted on by our tribunes. Regrettably, Richard Baker continues to give the erroneous impression that the Bill , if passed, will likely re-open the World's End Murders case. He said, yesterday:

Richard Baker: "A key debate following the publication of the Scottish Law Commission’s report on double jeopardy was on the issue of retrospective application and we are pleased that the bill will have retrospective effect. That is right because prosecutors now have access to new technologies and techniques, such as DNA evidence, that can show proof of criminality even in cases that are many years old. In the previous debate, a number of us mentioned the collapse of the trial for the World’s End murders, and there can be no doubt that the change in the law is important for the families of Helen Scott and Christine Eadie and for other families who face similarly tragic circumstances."

As I have explained elsewhere before, in reality this is exceedingly unlikely, a point raised by the gallant Baillie:

Bill Aitken: "The new evidence would have to be evidence that was not available at the time of the original trial and could not reasonably have been expected to be available. That is a further protection. To refer to a point that Richard Baker raised and Stewart Stevenson subsequently made, I have difficulty in seeing how the World’s End case—Sinclair v Her Majesty’s Advocate—could be reprosecuted under those terms. However, that is an argument for another day."

I've mentioned some of the other major issues in the Bill before. Should its precepts be retrospective, allowing past acquittals to be reopened? As drafted, the Bill currently allows any offence to be retried if its commissioner subsequently admits their guilty ways, or if the original trial was "tainted" by corruption or interference. By contrast, the general new evidence exception is more limited. The government, copying the English approach, have appended a schedule of offences which could be retried.  All agree it should attach only to serious cases, but agreeing on the practical definition and measure of seriousness proves more difficult. Tory Convenor of the Justice Committee, Baillie Bill Aitken, summarised the controversies and proposals thus:

"The range of offences that are to be covered by the new-evidence exception also sparked a variety of views. The committee firmly agrees with the Scottish Government that the exception should be made applicable only to a limited number of very serious offences. The committee also recognises the concern of respondents such as the Law Society over why some offences are included while other offences of commensurate seriousness are not. The committee therefore questions whether there could ever be a single, fixed list that would adequately and appropriately lay out the scope of the exception. The committee is, therefore, open-minded about exploring the possibility of replacing the list in schedule 1 with an alternative mechanism for restricting exceptions to only the most serious of offences, which is the unanimous intention of all concerned. My view, for example, is that there could be a restriction whereby only offences that were originally indicted in the High Court would come under this particular category. Again, however, that matter can be discussed in the weeks ahead."

On this issue, Liberal Democrat Justice Spokesman, Robert Brown, argued:

"There is fairly broad agreement that the new evidence rule as a basis for a new trial should be limited to serious crimes, but I do not think that the cabinet secretary’s approach of listing crimes works very well; in particular, I cannot see how one can satisfactorily define sexual assaults by separating out serious ones from more minor ones. I urge the cabinet secretary to follow the committee’s suggestion and make the dividing line whether or not the case was prosecuted on indictment. I am less clear, though, as to whether the case in question should be on indictment in only the High Court or on indictment more generally; that requires to be bottomed out."

In contrast with the position in England, where so-called "either way" offences allow the accused to select the forum they are tried in, whether by a lay magistrates' bench or before a jury in the Crown Court, in Scotland selection of venue is within the discretion of the Procurator Fiscal. Generally speaking, this selection is understood to proceed on the basis of the sentencing powers of the respective Courts and apprehensions about the seriousness of the offence charged and punishment merited. A sheriff sitting alone has a more minor sentencing powers compared to another, sitting with a jury. That changes in those sentencing powers have implications for the distribution of Court business is reflected in changing official statistics.

What to make then, of this proposal to limit the new evidence exception to cases indicted in the High Court of Justiciary? How many cases might this conceivably effect? I didn't have far to look. Late last month, the Scottish Government published a bulletin in their Crime and Justice series, giving statistics on Criminal Proceedings in Scotland, 2009-10. It shows that last year (2009-10), a total of 120,772 people had a charge proved against them in Scottish courts. Of these, only 741 people were convicted in the High Court of Justiciary, amounting to roughly 0.6% of the total number of convictions that year. A further 4,213 people were convicted by Sheriffs sitting with juries, accounting for a slender 3.5% of the total. The remaining 115,801 convicted persons were tried by Sheriffs sitting alone, adjudicating summarily (65,419 or 54% of the total) and by lay justices of the peace (50,382 or 42% of the total). I should emphasise, these figures don't capture the total number of people actually tried, but record only those who were convicted. However, in a general sense they crisply and starkly capture the very minor role which the jury system plays in Scottish criminal justice overall.

Given double jeopardy's concern with those acquitted, what about folk acquitted in the High Court of Justiciary? Unfortunately, the statisticians have disaggregated the data by offences but not by offences and the Court proceeded in.  This is problematic, for example, because an assault is competently prosecuted both summarily (before judge alone) and on indictment (before jury and judge). Severity and aggravating factors will have implications for which judicial setting the Procurator Fiscal selects. We can make a few observations, however. Certain offences are known as pleas of the Crown and can only be competently prosecuted in the High Court of Justiciary. These include murder and rape. The statisticians use slightly different concepts (for example, they combine rape and attempted rape. The latter, if I recall aright, is not a plea of the Crown and as a result, can be competently prosecuted in Sheriff courts. Since this is a rough and ready calculation, we'll assume all were prosecuted in the High Court). Focussing on these offences, from last year's best estimates, 82% of those accused in homicide cases were convicted, with 14% being acquitted (6% not guilty, 8% not proven). In rape and attempted rape cases, 46% of those accused were convicted, with 32% not guilty and 19% not proven). In their indeterminate report on the subject, the Scottish Law Commission suggested that if there was to be a new evidence exception to the double jeopardy rule, it should be limited to these two offences.

Overall, government statisticians estimate that some 86% of all crimes prosecuted result in a conviction (as distinguished from their statistical term of "offences", denoting more minor matters). That fact, coordinated with the other information on the number of persons convicted in each venue, gives some flavour for the sorts of numbers which limiting the new evidence exception to cases where the acquitted person was originally tried on indictment would encompass, whether in the Sheriff courts or the High Court of Justiciary alone.

Juxtaposition of the day...

Ed Miliband, on the 28th September 2010, on short prison sentences...

“Wisdom is not the preserve of any one party. Frankly, the political establishment too often conducts debate in a way that insults the intelligence of the public. When I disagree with the government, as on the deficit, I will say so loud and clear and I will take the argument to them. But when Ken Clarke says we need to look at short sentences in prison because of high reoffending rates, I'm not going to say he's soft on crime.”

Richard Baker (Swine Pursuivant) on the 31st of January 2011, as a presumption against short sentences comes into effect in Scotland...

“The SNP have proved themselves time and time again not fit to run Scotland’s criminal justice system. They are soft-touch and out of touch and our communities deserve much better than this.”

The Punting of the Snark ~ Fit the first...

After the chilling Lay of the Jabbereck, which set out Scottish Labour's electoral strategy for May's Holyrood election, it occurred to me that it might be worthwhile to try to commune with the forces that lie behind the veil that cleaves our earthly world from the realm immaterial. As the gaunt waifs and wights of our ancestors and departed contemporaries wander its muted gardens, so it is said, they often hear tell secrets of things yet to come. Having uttered the relevant incantations, offered propitiatory libation (piously poured down my own throat), the shimmering, gossamer form of Lewis Carroll erupted from the floor and handed me the following, scratched out in green ink on ghostly vellum. Although clearly open to different interpretations, as all such divinations are, it appears to furnish some further insight into the character of the Scottish Labour Shadow Cabinet and their schemes...

The Punting of the Snark

An electoral agony in eight fits

Fit the First

THE BLANDING

“Just the place for a Snark!” bold John Park cried,
As they huddled in Charlotte Square;
Designing how best their mate Iain to guide
Up the FM’s Bute House Georgian stair.

“Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true.”

Gray’s crew was complete: it included a Foulkes —
One Whitton, a Peacock includes —
With Wendy brought along to provoke their disputes —
And a Lamont, to lament her moods.

Forget not McNulty, whose thrill was immense,
Though he seemed without guile or flair –
Or their man Kerr who at a time before hence,
Held the whole of your cash in his care.

There was also a Baillie, who with spittle to fleck,
To the Sturgeon-Bird never kow-tows:
And had often (Gray said) saved their bacon from Eck,
Though none of the others knew how.

At his elbow, asked Park, "Why the Snark?"
With boozle-scratch baffling his napper.
"Add one part snarl to one part nark..."
So reasoned their Chieftain Eck trapper.

Curiosity dulled, the crew set to its work
A'-spreading the Snark's frabjous fame
Their task, they conceded, had this desperate quirk:
Most had wholly forgotten his name...

For fame and for fortune Gray gave not a fig,
And got not a fig for his pains.
From "What-was-his-face!" to "Thing-um-a-jig!"
His anonymity knew many names.

For those who preferred a more forcible word,
He had sprightlier titles than these:
His intimate foes called him "Giggity,"
And his enemies "LOLIT-SP."

"His form is ungainly—his intellect small—"
(So the pressmen would often remark)
"But his dryness is perfect! And that, after all,
Is the thing that one needs with a Snark."

He could drone with conviction, returning Eck's hoots
With an impudent wag of the head:
And he once went a walk, paw-in-paw, with a Broon,
"Just to keep up his spirits," he said.

The Snark, who was famed for a number of things
Forgot, when he uttered these quips:
That badinage, banter, aren't the gifts that he brings
As one of life's spanking wagwits.

The last of the crew needs especial remark,
Though he looked an incredible dunce:
He had just one idea— but, that one being "Snark,"
Our Gray man engaged him at once.

His name was R. Baker and gravely he dared,
Off the cuff, the guff-ready impeach.
For all seasons, he had a big cream puff prepared,
And never refrained he from speech.

Most strongly advised that the Baker should be
Conveyed in a separate ship:
But brave Snark he declared that would never agree
With the plans he had made for the trip.

But at length Gray explained, in tremulous tones,
That all Nat-work he deeply deplored.
From toad chorus required a host of gub-lines
By which Salmond would surely be floored.

Oor Baker's best course was, of course, to procure
A second-hand dagger-proof vote —
So that Baker advised it—and next, to ensure
They all got some Office of Note:

"Have scoff-flop students pay through the nose,
Their degrees to purchase and buy..."
But the Snark kept looking the opposite way,
And appeared unaccountably shy.

Mindful of Stevenson's winter tableau,
The man Kerr said, "Summer prevails!
Let's have two excellent Policies, one Against Snow,
And another against damage from hail!"

They had twenty-odd policies, carefully packed,
With Gray painted boldly on each:
And John Park's big wheeze was, in fact,
To leave them all out of his speech.

The Baker, who happened to hear Park's remark,
Protested, with tears in its eyes,
That not even the rapture of punting the Snark
Could atone for that dismal surprise!

Why the World's End murders are unlikely to be retried...

Further to this morning's post on the first draft of the Double Jeopardy (Scotland) Bill, introduced to Holyrood yesterday, I wanted to strongly emphasise one point about the proposals, so no further confusion is possible. Alex Salmond confirmed the Bill's inclusion in the SNP's Programme for Government, announced in the chamber on the 8th  of September this year. This dowdier, Eck-centric version of Westminster's ermined and sequinned flummery in the Queen Speech was followed by a parliamentary debate on the issues raised. Opposition politicians made a number of references to the proposed reform of the old rules on tholing your assize. Unfortunately, many of these contributions perpetuated a dangerous and singly unfair misunderstanding about what the Bill will do, in particular its relationship to the World's End Murders case of 2007. In a parliamentary debate on double jeopardy on the 24th March 2010, Labour justice spokesman Richard Baker opined:

"We all remember the trauma that was caused by the collapse of the trial for the World's End murders, to which Mike Pringle referred. Indeed, we all remember the Lord Advocate's statement to Parliament on the matter. If the law is not changed retrospectively, the hopes of the families of Helen Scott and Christine Eadie will have no chance of being realised..."

As most of you will already know, the World's End trial concerned the deaths of two seventeen year old women - Helen Scott and Christine Eadie - in 1977. The name derives from the pub in Edinburgh's Old Town where the two women were last seen alive. Some 30 years on, in 2007, Angus Sinclair was indicted for killing Eadie and Scott, yet the trial collapsed when Lord Clarke held that there was not a sufficiency of evidence to convict Sinclair. The proposed reforms to tholing your assize have regularly been linked to that case, not least by Kenny MacAskill. Indeed, Iain Gray did so again in the parliamentary debate after Salmond's speech:

"We agree with the Government that double jeopardy should end, and we will support the bill to achieve that. However, I wonder why that has taken so long; it is three years since the collapse of the World's End case, which clearly illustrated the importance of that measure."

All of these arguments are intensely problematic, not least because the World's End trial does not illustrate the importance of the legislation being proposed. Unless Sinclair subsequently confesses to the murders - or further new evidence comes forward which "substantially strengthens" the case against Sinclair, which seems highly unlikely - he will not be retried and could not be retried under the proposed legislation. It is quite, quite irresponsible, therefore, for Baker to suggest that retrospectiveness is the only thing standing in the way of a fresh re-prosecution of Sinclair for the deaths of the two women. Nobody, I think, is proposing that the Crown simply have an inexhaustible right to try, try and try again to bring home a conviction. Baker reprised the theme in the debate on the SNP government's programme, saying:

Richard Baker:

"When the Scottish Government produces proposals that we believe will help the victims of crime, we will support them notwithstanding our concerns over other aspects of its justice policy. For example, we will support the proposals to reform the laws on double jeopardy. It is intolerable when someone who is guilty of a crime walks free from court. When new evidence of their guilt is produced, there should be an opportunity to try that individual again. Parliament should support reform of the law, and with retrospective action, so that families such as those of Helen Scott and Christine Eadie—the victims of the World's End" 

For the reasons outlined above, this way of talking about the ambit of the reform has the potential to be exceedingly - unjustly - misleading, not least to the families of Scott and Eadie, with whom one can only have the fullest sympathy - and towards whom we owe ruthless honesty about the possibility that the prosecution against Sinclair be revived. The Holyrood debates weren't entirely misleading on that score. Helpfully SNP member of the parliament's Justice Committee, Nigel Don, rose to clarify just this point in the debate:

"The arguments around double jeopardy have been well rehearsed. There is a measure of agreement on the need to deal with the matter. Considerable reference has been made in the Parliament and the press to the World's End case. It is worth pointing out that the case came to an end because the judge ruled that there was insufficient evidence—double jeopardy has nothing directly to do with that. A lacuna in the legal system in that regard has already been remedied. If the World's End case is to be brought back to court, that will have to be because more evidence is found, not because there is a different ruling on the evidence that has already been put before the court. People need to be clear about that. If there is more evidence, of course, the proposed double jeopardy bill could apply to the case."

In this clarifying task, Don received some boon assistance from Holyrood's Cap'n Mainwaring, Liberal MSP Ross Finnie, who promised that:

"We will study carefully the precise proposals on double jeopardy. We recognise the points that the Scottish Law Commission made and we would hesitate if the commission's proposals were watered down. We remain puzzled about the precise connection between the outcome of the World's End trial, to which Nigel Don referred, and double jeopardy. In principle, we see the case for the reform and we accept the commission's position, but we will nevertheless want to study the proposals with care."

There is nothing responsive to the suffering of victims and their families about raising false expectations which are almost sure to be dashed. Nothing good or just or compassionate about that at all. So let there be no doubt, no dubiety. If Holyrood passes the Bill as it is drafted, they should not be permitted to convince themselves that they're categorically reopening the old files and summoning Sinclair to the dock to account for whatever role he may have had in the deaths of two young women. Whatever the truth of the matter, Eadie and Scott were brutally uprooted in the very flower of their youth. Honesty is the very least that we owe their families.

Miliband pulls Scottish Labour's alligators' teeth....

Today, the retiring Governor of HMP Barlinnie, Bill McKinlay told members of the press that he believes we jail far too many people in Scotland. Its one of the hardly-whispered statistics of post-devolution Scottish politics, but since 1999-2000 our daily prison population has increased by an astonishing 31%. The chart to the right shows changes since 1900. While in 1999-00, the average daily population numbered 5,975, in 2008-09, the average number  kept in custody in our penal establishments was 7,835 – or 1,860 more prisoners than just 10 years ago. When was the last time you heard anyone even mention, never mind take responsibility for, this penal devolution dividend? 

Not satisfied with a mere 31% increase in our prison population in ten years, Scottish Labour and Tory politicians ardently believe we live in a soft-touch Scotland in general, subject to the limp caresses of Scottish Nationalists in particular.  Indeed, one of the few things about the Holyrood 2011 election that seemed certain was that Labour intended to tack to the  illiberal right on criminal justice, hot with uncosted promises of ratcheting up the prison population still further and heavy on trash machismo rhetoric from buttery Justice spokespersons. Iain Gray's performance at First Minister's Questions on the 1st of July of this year seemed to set the tone and Labour's stated intention to slate the Nationalist government as a bunch of crim-loving pansies:

“Look, we should not be surprised that the Government ends this year by releasing 7,000 criminals from our jails. It started this year by releasing the Lockerbie bomber from jail. In between, the First Minister was found out providing testimony for a drug dealer. His deputy was caught trying to keep a serial fraudster out of jail. Why is it that Alex Salmond is always to be found on the side of the criminals and never on the side of the victims?”

On 30th June 2010, old Tory hand Kenneth Clarke, the new coalition's Lord Chancellor and Secretary of State for Justice, gave a speech at the Centre for Crime and Justice Studies, touching on the efficacy of short term prison sentences:

“It is virtually impossible to do anything productive with offenders on short sentences. And in the short time they are in prison many end up losing their jobs, their homes and their families. That is why this Government, as I will explain later, has committed to a full review of sentencing policy to ensure that it is effective in what it is supposed to be doing – deterring crime, protecting the public, punishing offenders and, the part where we’ve been failing most, cutting reoffending. We want a far more constructive approach ...

... In my opinion the failure of the past has been to use tough rhetoric and to avoid taking tough decisions that might prove unpopular in the short term. I am determined to make the right decisions. And I hope to deliver results that will deserve your support.”

This week, in his keynote speech, new Labour leader Ed Miliband frankly conceded that:

“Wisdom is not the preserve of any one party. Frankly, the political establishment too often conducts debate in a way that insults the intelligence of the public. When I disagree with the government, as on the deficit, I will say so loud and clear and I will take the argument to them. But when Ken Clarke says we need to look at short sentences in prison because of high reoffending rates, I'm not going to say he's soft on crime.”

Inevitably - and quite rightly - in the political tailor's shops that are the Scottish press, a kilt was  hastily manufactured and discreetly slipped across the story - “Ed Miliband contradicts Iain Gray on Sentencing”. Despite minor grumbles suggesting the contrary, we should remember that the leader of the Labour Party in Scotland is now Ed Miliband, while Iain Gray's status is limited to the Leader of Labour in the Scottish Parliament. Amusingly implausibly, the Telegraph article suggests that Richard Baker, the Swine Pursuivant, has already denied that Scottish Labour's regularly expressed views are at any variance with those of their new leader and that their soft on crime sayings are obviously animated by totally distinct concerns from those Miliband disavowed. Claims Baker, his repeated invocation of the phrase "soft on crime" and its cognates was actually inspired by the alleged underfunding of community punishments, not reducing the number of short sentences per se. A heroic attempt at flexibility on his part, but hardly plausible. 

As Stuart Winton has insistently and consistently reminded us, the devolution rationale can be intensely problematic for unitary parties who nevertheless attempt to adopt incompatible approaches. So it proves here. Much of the time, these inconsistencies might be ignored, masked by public and press indifference to an eccentric or specialist concern. Not so with what looked like one of the central planks of Labour's 2011 Holyrood campaign. The logic doesn't look promising -

In London, Ken Clarke is not soft on crime when he suggests curtailing short prison sentences. In Edinburgh, Kenny MacAskill and Alex Salmond are soft on crime when they curtail short prison sentences.

So, how might the Shades of Gray resolve this cognitive dissonance with any sort of consistency? Roughly, there seem to be two alternatives. Either they could admit and attempt to justify following a different set of principles, and hence adopt a different policy from their UK leader on short sentences. In the alternative, he could claim that the Scottish situation is somehow distinct from England & Wales and as a result, the same principles lead to diametrically opposed results. Sounding plausible yet? For instance, Gray could argue that short term prisons sentences work in Scotland, but not in England and Wales, but where is the evidence for that? Scottish Labour could try to claim that locking up a higher percentage of your population is a distinctive Scottish value, the sort that Holyrood was created to realise. Or in a combination of is and ought - that knife-crime and "knife-culture" is more entrenched north of the Tweed, entailing different expedients to minimise and eliminate the phenomenon. Even then, Miliband has frankly admitted that he does not regard curtailing short sentences as being soft on crime. Indeed he seems willing to support efforts made by the Coalition in Westminster to that end. Such an admission already paints big clown's faces on Iain Gray and Richard Baker - who can hardly now play penal hard-men and doomsayers as trumpetingly as they had clearly plotted. They now have to contend with this unreachable, incurable itch in Scottish Labour's law and order rump. Without regard or sympathy for the campaigns of his Scottish compatriots, Miliband has pulled out their alligator's teeth.

Eck's latest letter to US senators...

Lest we forget, that fellowship of formidable certainty, that band of speculative doubters Senators Menendez, Gillibrand, Lautenberg and Schumer are still about their alchemical business of transforming tragedy into political stature. Alas, their fortunes do not prosper well. Earlier this week, Foreign Secretary William Hague denied their "investigative team" access to British officials, presumably those with some knowledge of what transpired in the Prisoner Transfer Agreement negotiation. "So much for British hospitality" pouts the New York Daily News. After all their pomp, it is notable that none of the four American politicians have condescended to cross the water themselves and press their cases and pursue their doubts - however eccentric or conspiratorial - in person. No doubt they are busy folk, given the American Congressional Election in November. 

Presumably as a consequence of their reluctance to substantiate their allegations in person, the Senators' questing creatures will not meet Scottish Ministers but instead will merely encounter officials. I imagine these may be staff associated with the Cabinet Secretary for Justice with some insight into the compassionate release process. No doubt to their significant illumination, the group will also meet Richard Baker, Labour's liveried Swine Pursuivant in Justice matters. Heaven knows what he hopes to tell them. Still, a cup of tea and a digestive biscuit is always welcome. Presaging these encounters, Alex Salmond sent the following letter to all four Senators late last week. In the spirit of public record, I copy the correspondence below. It is easily the most combative of Eck's epistles to this gang of four and for those of us who have looked with scorn on their demeaning speculations and stubborn  conspiracy-theorising clowneries, its politely direct but sternly and frankly rebuking terms make for quiet joy.

10 September 2010

Dear Senators Menendez, Gillibrand, Lautenberg and Schumer,

Thank you for your letters of 19 and 20 August 2010.

Your letter of 19 August attempts to suggest that there is circumstantial evidence that commercial interests played a role in the release of Al-Megrahi. This seems to be a considerable weakening of your original position, but is still totally wrong. There is no evidence, circumstantial or otherwise, that links decisions made by the Scottish Government to commercial interests. Indeed, the substantial evidence that does exist shows that the Scottish Government specifically rejected any attempt to bring commercial or business considerations into the decision-making process on compassionate release, and stated that decisions would be based on judicial grounds alone.

I am also concerned that, in your letter of 20 August, you once again quote from letters published by the Scottish Government setting out the representations that were made to us, without drawing attention to the responses which make clear that commercial considerations would play no part in the decision-making process. To then accuse the Scottish Government of selectively publishing correspondence, when it is you who are selectively quoting from material published proactively by the Scottish Government, significantly undermines your credibility.

The evidence of commercial influence that does exist relates to the Prisoner Transfer Agreement (PTA) that the UK Government signed with Libya. Indeed, you quote Saif Gaddaffi as publicly commenting that the commercial issues were related to the PTA.

As I highlighted in my letter of 2 August, it was the Scottish Government, on 7 June 2007, which first drew attention to the UK Government's negotiations with the Libyan Government, highlighting our strong opposition to them. I asked you, in my letter of 15 August, for copies of any public comments on this important issue which you may have made at the time, either individually or collectively. It appears that when the Scottish Government was using every means at its disposal to oppose the PTA between the UK and Libya, you were silent.

You refer to extensive correspondence between the Scottish and UK Governments regarding the PTA. Once again, however, you fail to mention that this shows the Scottish Government consistently opposing the signing of any PTA unless it specifically excluded AI-Megrahi. This, and the fact that the application for prisoner transfer was rejected, fatally undermines your line of argument.

You refer to comments that the Scottish Government would have to deal with the consequences of the UK's decision not to exclude AI-Megrahi from the PTA with Libya. This is a statement of fact. The UK Government had gone against our wishes and left the Scottish Government to deal with any application for prisoner transfer that was submitted, a situation that it is clear we were and are very unhappy with. You suggest that it is uncertain how the Scottish Government dealt with those consequences. This is simply not true. The consideration and rejection of the prisoner transfer application are matters of public record and to pretend otherwise, as you attempt to do, appears very contrived.

Your letter of 19 August goes on to conflate the process of application for prisoner transfer with the quite separate process of applying for compassionate release. I have explained these separate processes at some length in our previous correspondence. It is of great concern that, despite these explanations, you seem unable or unwilling to understand the nature of these separate legal processes.

On some of the points of detail you raise, I would note that the only redaction from the letter of 22 June to the UK Foreign and Commonwealth Office was the name of the UK Government official to whom it was addressed. Permission to publish this name has been refused by the UK Government and, in any event, has absolutely no bearing on the facts of the matter. In the 16 July 2009 letter from the Cabinet Secretary for Justice to the UK Foreign Secretary, the only passage that has been redacted is due to the US Government withholding permission to release material relating to it. Finally, the letter from the Qatari Minister which was attached to correspondence from the Qatari Embassy in London dated 31 July 2009 is available on the Scottish Government website. The letter from Khalid Bin Mohamed al-Attiyah, dated 17 July 2009, was also received direct and therefore appears twice in the correspondence on the website.

Given the consistent and compelling information I have now provided, I would ask you to confirm you accept that:

The Scottish Government had no contact with BP in relation to decisions made about AI-Megrahi; The Scottish Government consistently opposed the signing of a PTA between the UK and Libyan Governments unless AI-Megrahi was excluded; and The Scottish Government made the decision on compassionate release on judicial grounds alone and made this clear to those who made representations to us.

If you are not able to accept these irrefutable and well-evidenced facts, which I have set out clearly in our correspondence and are supported by extensive documentation, it calls into question your ability to conduct any credible and impartial investigation into these matters.

I am aware that staff from Senator Menendez's office have been in contact with my office to try to arrange meetings with Scottish Government Ministers and officials. As I have said previously, the Scottish Government has nothing to hide and nothing to fear from any properly constituted inquiry, but the Scottish Government is rightly accountable to the Scottish Parliament and not to the US Senate. Nevertheless, as a matter of courtesy, I would be willing to make appropriate officials available to meet staff from your offices should they decide to visit Scotland. The purpose of any such meeting would be to provide whatever further background information may be helpful to your understanding of these matters. Officials would not be giving evidence in any formal context.

There are other points of detail in your 19 August 2010 letter, but none of these raises any new issues of substance or challenge the view that the decisions the Scottish Government made in relation to AI-Megrahi were made with integrity and according to the due process of Scots Law.

I believe that the Scottish Government has given every assistance to you and to the Foreign Relations Committee on this matter and, as noted above, I am content to offer the courtesy of an official level meeting if staff from your offices visit Scotland. However, as your recent letters raise no new issues of substance, I am now drawing a line under this correspondence.

ALEX SALMOND

New Lockerbie case poll on US Senate games...

Seems Richard Baker has decidedly misjudged his electorate. You may recall the Swine Pursuivant's caterwauling on the radio, sternly demanding that Alex Salmond and Kenny MacAskill should schlep across the Atlantic to line dance before the US Senate, while the question of Jack Straw's attendance was "purely a matter for him". Such a flexible fellow he is. As you will all undoubtedly know, Senator Menendez et al's peremptory summons was timely and fatally rebuffed by the Scottish Government. My sense throughout has been that many Scots would not take kindly to being kicked around by canting scoundrel American politicians, whatever their views might be on the release of Megrahi itself. Recall, after all, Galloway's celebrated jaunt to Washington. The still-present twinge of disgust at the perceived pandering of British political figures to American interests. Remember, in short, Blair's bichon frise routine. That underdog mentality, itching to raise two fingers to startle the presumptuous and ignorant and high handed American hypocrite - that is a tale calculated to resonate with many Scots, tingled by the small but significant frisson of independent-mindedness and the spirited resistance to a stronger power. Menendez instead had to contend with silence. He was denied his judicial moment in the chair. In his panic, he burbled to himself, for company's sake, reduced to increasingly shrill accusation, grasping at the rags of decorum to cover his nakedness.  

On any reading, Eck's sharper epistle to Senator Menendez was a excellent riposte, serving to concentrate these themes. And with tightrope poise, it balanced twin burdens. While the language of the text was sufficiently polite not to cause an risky hoohaa, the inflammatory sentences were pointedly crafted and by consequence, it was these that were covered in the media. Basically, as far as the Scottish electorate is concerned, he managed to wave an archer's salute at the American senators without causing the scandal which a more direct "awa' an' bile yer heid!" would undoubtedly have caused. Those were my suspicions and best guesses. This morning the SNP released some details of a poll exploring Scottish public opinion on precisely this question and I would suggest that the results overwhelming bear out that analysis. The poll's total sample size was 1,212 Scottish adults and the fieldwork was undertaken between 17th - 18th August 2010.  Here are the questions asked, with respondents' percentages for each response:

Question (1) A US senate committee invited representatives of the Scottish government to appear before their committee to explain their decision. The Scottish government declined to attend, on the grounds that they are accountable to the Scottish Parliament, not to US politicians. Do you agree or disagree with Scottish Government’s decision not to attend?

 

1. Agree – they were right not to attend 72%
2. Disagree – they should have attended 20% 
3. Don’t Know 7%

 

Question (2) Some US Senators have argued that commercial lobbying of the UK Government by BP played a role in the release of Al-Megrahi, while the Scottish Government insists that the Scottish Government was not lobbied by BP and that the Scottish Justice Secretary’s decision to grant compassionate release to Al-Megrahi was based solely on the rules and regulations of Scots Law. Regardless of your own view on the decision, which of the following best reflects your view?

 

1. The US Senators are correct – BP Lobbying played a part in the release of Al-Megrahi ~ 14%
2. The Scottish Government is correct – Al Megrahi was released solely in line with Scotland Law ~ 54%
3. Neither ~ 11%
4. Don’t Know ~ 21%

Question (3) Al-Megrahi was convicted in a Scottish Court and served his prison sentence in Scotland. Regardless of whether you think Al-Megrahi should or should not have been released, who do you think should have made the decision on whether or not to release him?
 

1. The Scottish Justice Secretary ~ 76%
2. A Minister in the UK Government ~ 13%
3. Don’t Know ~11%

Just a few points I want to emphasise. Needless to say, 72% to 20% supporting the Scottish Government's non-attendance is a mighty difference to make the politick would-be positioning of Richard Baker and the Scottish Labour Party look ill-judged to say the least. Also notice the difference in don't knows answers to question (1) and (2). 21% suggested they could not be certain about what the decision to release Megrahi was premised on, whether BP was involved or only the processes of Scots Law were observed. However, only 7% of don't knows were undecided when it came to whether a Scottish Government delegation should have headed to Washington. We can't tell from these figures how far the responses to the two questions correlate. For example, it is possible albeit unlikely that someone suspecting BP involvement might nevertheless not much care for American institutions and thus support non-attendance. Equally, however, it seems more probable that the 14% difference represents just how potent is that strand of opinion I attempted to describe at the outset. 

One final thought. Although I've no spy in the heart of the party's hierarchy, I would be exceedingly surprised if the SNP took this opportunity only to ask these three questions and weren't canvassing more generally on what the Scottish public make of Megrahi's release one year on, in the context of his ongoing life, if not vitality. Perhaps they did not do so on this occasion and indeed only posed these three enquiries, however, it beggars belief that no attempts are being made to gauge any "Lockerbie case" effect on 2011's Holyrood elections, however macabre that becomes. If so, I'd be exceedingly curious to know if such polling has been commissioned and what information the party has refrained from releasing into the public domain thus far.

Update

Coincidentally enough, it turns out that one of the respondents involved in this YouGov poll was Nairn and Spain-based blogger and twitterer Bill Cameron. He has exceedingly helpfully been able to confirm that he was indeed asked several additional questions in the course of the poll, including the crucial questions about respondents' attitudes to Megrahi's release. That answers my if question.  The SNP is clearly taking a close look at public opinion here. So what might the rest of the answers have been? Unlike the figures disclosed above, no doubt the responses to the central questions are somewhat more nuanced, breaking down along a number of lines and may take some time to digest. It may be that the other responses will never see the light of day. Either way, I'm sure they're giving someone a fascinating insight into this knotty ethical and political conundrum. . 

Reforming double jeopardy (Vol. II)

Following on from yesterday's post on the Scottish Government's intention to change the Scots law on double jeopardy, a Hootsmon report of this morning contains an indicative crumb or two on the likely shape of the Bill. The paper inform us that:

"The bill will mirror the Criminal Justice Act 2003 which ended the 800-year rule of double jeopardy barring retrials in England and Wales when new evidence came to light."

Yesterday, I quoted the list of offences which qualify for reprosecution under this 2003 Act, in the light of newly disclosed evidence. In Scottish terms, the article continues:

"It is also understood that Mr MacAskill intends to bring forward a bill closer to the English legislation in terms of what cases can be retried.The commission had suggested the change be limited to cases of rape and murder, but Mr MacAskill will also want it to apply for culpable homicide, other serious sexual offences and other serious offences. As in England it could also be extended to drugs crimes, although sources said a definitive list had yet to be finalised."

As an aside, you might well think it ironic that a nationalist administration, in this area as in other areas, seems to think in terms of "bringing Scotland into line with England" and regularly moves to legislate by taking English and Welsh legal texts and fiddling with them a bit. End of digression. This seems to answer one of my concerns of yesterday - at least in terms of the broad approach to reform. The "serious" crimes in question will be set out, haggled over and nitpicked by list.  However, seriousness remains a vague criterion. Serious assaults? Probably impossible to identify. Prosecutions under the new Sexual Offences Scotland Act 2009, far more feasible. I shouldn't be at all surprised, for example, if the Government attempted to add some of the new serious organised crime offences to this list too. From the boundless eagerness of beaver boy Richard Baker, the Government can no doubt anticipate that its proposals will be subject to scanty skeptical assessment. Rather, I imagine, Labour's energies will be poured into feteing the idea and busily agitating to emphasise their own role in changing the law.  I also notice, with interest, that the article suggests that the two Green MSPs - Patrick Harvie and Scarfinator in Chief, Robin Harper - will oppose the Bill. I've not yet been able to confirm or deny this position or substantiate its rationale. Even so, those opposed to doing away with a general principle of double jeopardy - while perhaps attempting a manful critical sally or two - do not now look to be in a position to secure a parliamentary victory. The vis inertia is spent. That said, it is worth remembering re-indictment will require new evidence. This isn't just a mechanism to try, try and try again if the first trial doesn't satisfy the forces of prosecution. As the advocate Robert Sutherland recently noted on Twitter:

"Scrapping of double jeopardy rule will probably not mean a re-trial in infamous World's End pub murders case as there is no "new" evidence.."

Despite the recent slew of headlines suggesting otherwise, as I understand Kenny MacAskill's proposals, double jeopardy is not being scrapped at all, but is to be qualified by novel exceptions, applicable in particular circumstances. That aside, I anticipate that the defence of this old concept will be assuming a rearguard formation, encouraging narrower legislation and a shorter list of qualifying offences. Such a task is a virtuous one. It will still be easy - all too easy - for this Bill to go far too far.

Carrying a knife-edge vote...

Attentive Holyrood watchers are used to razor-slim majorities. While technical amendments can romp home with thunderous general acclaim, on politically more sensitive matters, particularly those from which sections of the opposition hope to squeeze electoral and rhetorical advantage, single-digit margins of victory are familiar arrangements of the Scottish Parliament's proportional political abacus. Today was no different. I'm delighted to say that this morning Holyrood finally rejected Labour and Tory plots to install a presumption in law that Scottish courts send knife-carriers to jail for a period of at least six months. The vote to reject Labour's Swine Pursuivant's amendment (aka Richard Baker for the uninitiated) divided our tribunes 63 - 61 against.

As regular readers will know, during the Criminal Justice & Licensing (Scotland) Bill's stately progress through Holyrood's hesitant legislative halls, I've  consistently argued the case against Labour and Tory knife crime policy as wrong-headed, unproductive, illiberal, costly, unjust and unnecessary. Their political positioning and rhetoric, I suggested, also invoked a particularly macabre and gruesome form of identity politics, vividly encapsulated by the Committee testimony of John Muir.

The initial Conservative position - advanced by the not-long-to-be-lamented Baillie Bill Aitken - proposed a totally absurd level of penalisation - a two year presumptive prison sentence for those detected, armed with a bladed object.  If ever a policy position showed up its proponent as agitating in jest, indulging in an entirely spurious and  unserious use of politics to release certain degenerate, subconscious spanking desires, this was it. I  also have my suspicions about the earnestness of Labour's position, although prima facie it is less obviously Quixotic than the broken-lanced sally affected by the mule-mounted Baillie Bill. I try to cleave to the sense that reasonable folk can reasonably differ on policies, that we should talk about our disagreements without immediately crying Garde Loo! and tossing whatever foetid and incontinent allegations happen to slop into the more gutterminded stalwarts of our politics. Somehow, however, I can't help but doubt that all of the tribunes on the red benches are convinced by this policy and suspect that its primary use is a tactical, party political one. In short, a consciously dishonest attempt to cozen sections of the tabloid press and those parts of the population with particularly developed sympathies for retributive philosophies of punishment. Either way, it matters not now, with the scheme shelved for the time being. Judicial discretion will continue to be the order of the day when knife-carriers are hauled before the Bar. The Green Party's Patrick Harvie put it rather nicely in the debate attending the by-section votes this morning, saying:

"There are some things legislation is not good for.  Distinguishing between a frightened wee boy who made a mistake and knows he has and a genuine thug who poses a threat is something legislation can't do - the courts have to do that."

A welcome dose of epistemological modesty from the legislative benches. All in all, this result is testament to the happy fact that the wildly punitive Scottish Labour and Tory parties cannot command a majority in our parliament. Yet today will also be a missed opportunity. Per yesterday's post, this afternoon parliament has  voted on another presumption - this time to end prison sentences of less than three months. I'm befuddled, however, positively fogged over to understand the rationale behind the Liberal position, supporting three months, but opposed to the six month presumption advanced by the SNP. A bemusing missed opportunity - but definitely progress. On both accounts, one should also give Kenny MacAskill and the Scottish Government their due. It would have been easy, all too easy, to fold in the face of the emotionally charged knife crime campaign and the hostile coverage of the SNP's "soft-touch Scotland" which is sure to follow. Voters interested in a progressive politics on criminal justice, rather than anti-intellectual and reactionary pandering, take note.

Gallimaufry: sirens, tasers & student fees

I have blogged significantly and at length before, both on ongoing debates about Labour and Tory plots to impose minimum prison sentences on knife carriers and on the legality of the Taser pilot presently being conducted by officers of Strathclyde police. On the 3rd of June, both of these issues reappeared at Holyrood, during the Justice & Law Officers themed Question Time. Ted Brocklebank - not usually a Tory contender for would-be Inquisitor-in-Chief - pressed Kenny MacAskill by asking "... what percentage of those prosecuted for carrying a knife in the last year have received a sentence of six months or less (S3O-10781)? The answer for 2008-09 is 18%. Prompted, a certain Labour tribune took to his trotters. When Ian Gray doesn't feel like it, Richard Baker - Labour's Swine Pursuivant - is given this egregious, uncosted policy to play with. Usually his tenor is of pigling bland outrage, his rind seasoned just a little with the flippant spice of the student debater. Today, our punitive red roaster attempts stinging wry befuddlement. 

Richard Baker (North East Scotland) (Lab): Why has the cabinet secretary lodged an amendment to delete the provisions for minimum mandatory sentences for knife crime that were passed by the Justice Committee at stage 2 of the Criminal Justice and Licensing (Scotland) Bill? That is particularly puzzling, given that the president of the Association of Scottish Police Superintendents, Chief Superintendent David O'Connor, has said: "we find it increasingly difficult to oppose calls for the introduction of a minimum mandatory period of imprisonment of six months for any person carrying a knife ... in a public place."

Kenny MacAskill: I have done so because I take the advice of Chief Constable David Strang, Chief Constable Stephen House and Chief Superintendent John Carnochan of the violence reduction unit, all of whom have argued that the proposal by Mr Baker and others would not work. We do not need an unseemly bidding war, with six months from Mr Baker, two years from Mr Brocklebank and four years from Mr Bain, the member of Parliament for Glasgow North East—yes, four years he said, simply for carrying a knife. Why not add a zero to that or two zeros and let us get on with it? We have to support the measures that are working—tough enforcement, more stop and searches, visible enforcement in the courts and ploughing money back into diversionary activities to ensure that kids are given the opportunity to be all that they can be. Members can say what they like, but the record speaks for itself. In Strathclyde and elsewhere, progress is being made.

Rather well put, I thought. Matters subsequently turned to the legality of tasers. Canny Robert Brown asked the Scottish Executive about its responsibilities for policing - clearly echoing the human rights law analysis conducted by Aidan O'Neill QC on behalf of Amnesty International. MacAskill reiterated his entrenched position, namely, that ~

Kenny MacAskill: The Scottish ministers do not have legislative powers to direct the police on operational matters. We have no competence to issue guidance on the use of firearms, including Tasers, since the matter is reserved to Westminster. For the same reason, the Scottish Parliament has no power to legislate on that. In 2004, the Scottish ministers in a Labour-Lib Dem coalition supported trials of Tasers in Scotland, which led to the operational use of Tasers starting in 2005. Mr Brown might have been dealing with matters expeditiously then, but what we are seeing now is a bit of cant and gross hypocrisy. Members can rest assured that, when officers are in situations in which they and members of the public face danger, they will have the Government's full support in doing what is necessary. The matter is an operational one, but Tasers are used proportionately and legitimately by hard-working and brave Scottish police officers to defend themselves and other citizens in our communities. We will make no apology for that and we will never interfere in it.

Not to be outdone, and so we don't forget how pig-headed and vilely idiotic the man can be, Baillie Bill Aitken took to his feet and opined:

Bill Aitken (Glasgow) (Con): Does the cabinet secretary agree that the problems that are associated with Tasers have been exaggerated, and that if anyone wishes to avoid coming into conflict with police officers armed with Tasers, they simply have to refrain from acting violently?

I can almost imagine his pickled onion face, peeling in self satisfaction as he declaimed this profound self-evidence. Oh how we shall miss ye, Old Judgement, the People's Baillie.

Holyrood Student Fees Debate

The 3rd proved a rich debating day at Holyrood, in the afternoon turning to a motion on student fees sponsored by the Cabinet Secretary for Education, Michael Russell. Quite frankly, it astounds and astonishes me that Scottish Labour figures find a way to speak to Scottish students at all, never mind trying to dress themselves up as improbably champions of that constituency's causes. Their tribunes seem unabashed about their attempts to block the abolition of the graduate endowment - a move which ever student affected will be able to compute very tangibly to their benefit, to the tune of around £2,000. A clear dividend of Scottish Nationalist government, one grossly threatened by any upward march of the tattie tribunes in scarlet. I should be less innocent by now. From my own university days, one of the first things I learned about student politics was how Labour specialised in creating slavish toadies in the student class, attempting to promote these compliant souls to representative positions and generally quiet the student beast with their own placemen, all too keen to caper at the base of the greasy pole. The collapsed political (and no doubt to some extent personal) life of Labour's young erstwhile Westminster candidate in Moray, Stuart MacLellan is an essay in the type. Yet modesty and shame are not Labour virtues, I'm afraid. In his usual rollicking, imperious fashion, Mike Russell stuck it to the boisterous Helium Harpy, Karen Whitefield et al. A couple of Russell's particularly pungent leapt out at me as worth general mention. As vivid parliamentary prose goes, this is the good stuff.

Michael Russell: Every Labour speaker has mentioned the need for consensus, which echoes my own desire. However, consensus must be based on facts, and I want to give the facts about a number of things that front-bench Labour members raised, because they need to be corrected. The first is the delusion about resources and funding. The Scottish Government's budget has been cut by £500 million, and further cuts are coming. We must all face that problem. I was trying to think of a comparison to illustrate the Labour approach—this morning at First Minister's questions, this afternoon and no doubt in the health debate earlier—to the reality of the situation in which we find ourselves. The only comparison I could think of was that, astonishingly, Labour now resembles a group of arsonists who, having laid waste to the Scottish budget and the finances of this entire island, now run about complaining about the heat, the smoke and the sound of fire engines. They are the people who are to blame, and nothing will allow us to avoid that."

And stressing a point which can be cheerfully expanded to much of Labour's positioning (albeit with mild qualms about imagining either Ken MacIntosh, wee Clair Baker or Karen Whitefield as a clutch of life's natural sensuous sirens) ~

"I am not listening to the siren voices of Labour members, who just want me to say something so that they can contradict it. During this afternoon's debate, I was very much reminded of the remark from my old friend Andrew Wilson, who said in the first parliamentary session that, if the SNP had invented the light bulb, Labour would have called it a dangerous anti-candle device. That is precisely what we have heard this afternoon. We cannot say anything but it is contradicted."

Sheriff Principal James Taylor: Breast Inspector

The other day, I mentioned Sheriff Principal James Taylor's judgement in the breast inspecting case which saw the restoration of the license of one of Glasgow's lap-dancing establishments. For enthusiasts and the particularly keen, his full opinion in Kell (Scotland) v. Glasgow Licensing Board is now available here.

SNP must reject Labour's penal premise on prison...

Releasing the annual Scottish Government statistical bulletin on Criminal Proceedings in Scottish Courts is a delicate enterprise. Firstly, the figures reflect on a past year’s court work, which in turn reflects, in our clogged system, on crimes committed some time before. Secondly, like all quantitative work, they give us categories and numbers about categories – but quite how these relate to lived experience is riddled with uncertainties. Countless threats to the external validity of the figures can be imagined. Criminologists have, for some time, furnished us with a critical vocabulary to reflect on the temptations to make crude, causal remarks alleging a mistaken identity between formal, institutional statistics and the prevalence of crime out there. On their face, the numbers give us grounds to doubt. For instance, the just-published 2008 – 2009 figures are quite up front about some of the context and the significant gaps in our criminal accounting. Look at Chart 2, which I’ve attached to the side here. All figures shown are rounded to the nearest 100. Moreover, some reported crimes won’t be resolved in the same year. This is one of the consequences of artificial yearly divisions.

Although we begin at crimes committed, that category immediately fractures into silences, the crime undetected, unrecorded, reported to the polis but not recorded. Then we have the manifold disposals that never reach the stage of Criminal Proceedings in Scottish Courts, whether they are police warnings, or the procurator fiscal taking no action, or resorting to other, out-of-court, fine-based disposals. Predictably enough, most of the ensuing politics this morning have tried to turn the statistics to partisan advantage, focussing on proposed amendments to the Criminal Justice & Licensing (Scotland) Bill on knife-possession and prison. I stress again, we have to read these figures as an index of prosecutions and court-disposals, not as any easy indicator of crimes committed. Take – quite at random from the press-cuttings you understand – this dribble from Richard Baker, Labour’s Swine Pursuivant and Justice Gob:

“These figures show the absolute folly of the SNP plans to scrap six-month prison sentences. Knife crime is up (by 3 per cent) as well as a huge increase in lewd and indecent behaviour (of 34 per cent) and still justice secretary Kenny MacAskill presses on with his under-funded and dangerous plans.”

The idea that the various Scots bureaucracies of punishment make their choices about how to proceed in a vacuum is vacuous. The Crown Office clearly participate in the definition of knife crime as a Scottish “social problem”. Consider, for example, the Crown Appeal of last November on the ordinary “punishment part” of prison sentences in case of murder. The Lord Advocate, Elish Angiolini, particularly emphasised pointed weapons in her submissions:

“The Lord Advocate emphasised that murders committed with knives, swords and similar weapons were currently a matter of grave concern in Scotland. Although there were no figures available specifically for murder cases, she advised us that police figures for homicides as a whole indicated that for 2007/08 there were 22 per million in Scotland as against 14.6 for England and Wales and 14 for Northern Ireland. Just under half of the Scottish figures represented deaths caused by a pointed weapon.”

Said the Court...

“We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths.”

My speech marks around “social problem” were not to minimise the threat posed by people carrying offensive weapons day to day. Rather, what I’m trying to emphasise is that such conduct has already been singled out for heightened attention by prosecutorial authorities and police. Labour and Tories aren’t leading that campaign, but are simply plodding along afterwards, greasily trying to associate themselves with it, and by shouting loudly, attempting to assume an attitude of leadership. For these reasons, we might not be surprised that there has been an increase in prosecutions based on knife-carrying and associated crimes against the person. It does not indicate, however, that more knives are being carried on Scottish streets. If you look for something, you are more likely to find it. If knife-possession is defined as a social problem, you are more likely to see court prosecutions as a response to that perceived problem. Punishment bureaucracies don’t make their discretionary choices about who to prosecute in an organic, wholly autonomous way, which is simply expressive of the underlying experience of crime. They have their own agendas of selection. So much should be obvious.

I’ve made my own views on the problems posed by incarceration adamantly clear in two previous posts. There is a think a fair point to be made, argued loosely by Jeff this morning, that the position the SNP and Liberal Democrats are taking isn’t crystal clear. To my mind, part of this is the party’s defensive posture. There is a sense in which allegations of limpness have to be fended off by demonstrating that you are as hardy a punisher as the rest of them. The sagacious Liberal Democrat, Robert Brown, strikes the right note in his remarks, however, arguing:

“These figures show that rates of reoffending are appallingly high. Offenders frequently come out of prison as more hardened offenders than when they went in – and all at huge cost to the public purse.”

It is this point that the SNP should be hammering the penal morons with. What is Baker’s answer? More prison? What has Baillie Bill to say, beyond blinkered reiterations of the purposeless formulae of punishment? In this respect, the SNP could do worse than remembering – and reminding the commentating classes – about the Scottish Prisons Commission’s report Scotland’s Choice, and what it had to say about brief spells in jail. The SNP’s argument for ending short-term prison sentences will never emerge from its defensive position unless the premises of Labour and Tory policies are robustly rejected. Why is it tough on crime to perpetuate a social policy that generates crime and violence? We have the figures. What is their answer? Do they deny the significance of recidivism? Have they even thought about it? What about Kenny MacAskill's character - the "totally misguided person who thinks a knife gives extra protection". Do Labour and Tory really think that such characters don't exist? Alternatively, if they are willing to concede that they do exist, do they honestly hold that such a soul would be improved by two years in prison? Do they think his crime is so egregious that a Sheriff should have no discretion to distinguish the daft from the deeply dangerous? I haven't lost all faith in the Scottish Labour Party's capacity for the application of right-reason. Surely Henry McLeish cannot be the only man in the red ranks who disagrees with Richard Baker.