Lord Carloway's right to silence

Earlier this year, the Scottish Parliament's Justice Committee launched an inquiry into "the role and purpose of the Crown Office and Procurator Fiscal Service," to focus on:

"... its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime. The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology."

How Scotland's independent prosecutors are functioning seems just the kind of thing which ought to interest our parliament's lead committee in justice matters at the best of times. But these are not the best of times for Scotland's independent prosecution service. The Lord Advocate's department hasn't been immune from the belt-tightening across Scottish budgets. And new priorities are always accumulating.

The stresses and strains of trying to do more with less in our criminal courts are showing. Just a couple of days ago, the government's People Survey yielded some ambivalent evidence about Crown Office staff's experience of their working environment. Early in September, a number of senior lawyers expressed concerns about Crown Office capacity. Seasoned criminal silk, Brian McConnachie QC, feared that Scottish prosecutors: 

"... don’t have the kind of resources they require to properly carry out the prosecution of crime from low level Justice of the Peace courts all the way up to the most serious crimes in the high court. It does seem that there are cases that are not being properly prepared, cases having to be put off on numerous occasions because COPFS has had trouble finding witnesses or providing full disclosure to the defence." 

Mr McConnachie's observations may be well founded or not -- the Justice Committee inquiry is an excellent opportunity for a candid assessment of the challenges facing modern prosecutors in a time of spending constraint. To build a complete picture of how procurators fiscal are doing, Parliamentarians hoped to speak to a wide range of folk who interact with prosecutors -- including judges. But MSPs face a challenge this morning, as the Herald reports that the Lord President - Lord Carloway - has written to his fellow judges, telling them that he wouldn't be giving evidence to MSPs, and that he expected every serving judge in Scotland to follow his example, from High Court judges down to Justices of the Peace. This isn't a wholesale refusal to cooperate. The committee will have the benefit of the judicial perspective in written submission from the Scottish Courts and Tribunal Service.

In response, the new Tory justice spokesman in Holyrood, Douglas Ross makes a fair point: "It seems astounding that judges or sheriffs wouldn't be in a position to give evidence on the Crown Office. They are watching it in action every day and seem like they would be ideally placed to speak to the Justice Committee on what needs to be improved," he said. So what is Lord Carloway's explanation for this prima facie curious refusal to appear before parliament? The Justice Committee have published the full text of the Lord President's letter, which sets out his reasons for this policy. And I must say, I find them extremely unpersuasive.

Lord Carloway expresses a series of objections. In the first place, he suggests it would be "constitutionally" improper for him - or any other judge - to meet MSPs "informally" to discuss the inquiry. "Any such meeting would require to be a public one," he argues, for reasons of transparency and because any comments or criticisms" of prosecutors should be made in a forum which allows them "to respond properly." This seems eminently reasonable. Judges shouldn't conduct whispering campaigns or backroom briefing against the lawyers who appear before them. Natural justice demands a more open process -- a process best served, you might well think, by judicial participation in public hearings, rather than boycotting them.

But here we turn to Carloway's second objection, and here the Lord President loses me. He begins on an admirable note of modesty. He worries he may not be best placed to speak to prosecutors' systematic effectiveness: "it is difficult for the Lord President to comment on the overall efficiency and effectiveness of COPFS as, sitting as a judge, he sees only a part of the work of COPFS; in effect the end product of the Crown's work. Inevitably that is a very limited perspective. It would be inappropriate to draw conclusions based on subjective experience of a small pool of cases and therefore a narrow view of these matters." But he also extends this logic to his brother and sister judges. His legal secretary writes: "He does not consider that individual judges and sheriffs are in a position to comment on the various issues, given that such comments would be based either on anecdote or an incomplete understanding of the facts."

This is a baffling rationale for barring his judicial colleagues from giving evidence. Professor James Chalmers put the central point neatly this morning. "If anyone had a 'complete understanding', the Committee could just interview them and be finished in an afternoon." This is basic social research. You don't have to know everything about an organisation to be able to say something significant about your experience of how well it works. Of course, this perspective will be limited. Of course, we should be cautious about drawing wide-ranging conclusions from witnesses with partial perspectives.

But contrary to the Lord President's assertions -- judicial experience isn't just empty anecdote or irrelevant subjectivity. Judges see the law in action. It seems perverse to argue that just because judges don't know everything about how the Crown Office operates, they shouldn't share any of their many informed impressions about the quality of the "end product" of prosecutors' work.  And after all, aren't its "end products" quite important, in evaluating the effectiveness and efficiency of an organisation? 

Lord Carloway - who deals almost exclusively with appeals work - may be unable to speak to the effectiveness mass of routine prosecutions for lower level offending which takes place, for example, in Glasgow Sheriff Court. But why prohibit those judicial officers do have that insight from sharing their experiences with parliament? 

It is not as if the Appeal Court maintains a self-denying ordinance in these matters. Lord Carloway and his colleagues fairly often pass general comment on how Crown Office lawyers handle their cases, extrapolating from individual facts and circumstances to more general problems and challenges faced by prosecutors. A single case might be an "anecdote" -- it might also neatly encapsulate problems which are more systematic. This is precisely what Margaret Mitchell's Committee is trying to do, according to their own lights. 

Of course individual judges don't have a complete picture of the issues facing COPFS, but they must have a perspective which could usefully add to that picture. Ultimately, it is for MSPs to pull that picture together. It is for parliamentarians to weigh up the credibility and reliability of the evidence they hear. It is for them to make the judgements about how far they ought to extrapolate from witnesses' observations, and how far they should treat the evidence they hear with caution. Lord Carloway invokes constitutional propriety in his letter. Just how constitutionally appropriate is it for the Lord President to take it upon himself effectively to decide these questions for the Committee in advance? Strange times.

You have the right to remain silent

How does a profoundly deaf man, with no speech and only basic sign language skills, give evidence in court? This was the difficult question undergirding the Court of Criminal Appeal's decision in McDougall v. HM Advocate, published today. Louise McDougall, 24, was indicted in the Sheriff Court, accused of threatening or abusive behaviour towards the 86 year old complainer, and an assault to his severe injury and permanent disfigurement with a fireside implement in his Dundee home. 

In response, McDougall told the police that it was the complainer who first sexually assaulted her and threatened her with a knife. The injuries inflicted on the old man, she said, were the result of legitimate self-defence. It was this allegation which gave rise to the third charge McDougall faced: that she had attempted to pervert the course of justice. The Crown argued this whole story was a tissue of lies and there had been no sexual assault. 

The complainer's evidence was clearly critical to the Crown's case. But how could he testify? It was proposed that the complainer's long-term companion interpreter, Jennifer Ramsay, should facilitate the presentation of his evidence to the court. Ramsay practised as a specialist interpreter in "minimal sign language", and knew the complainer very well.

Indeed, she'd had dealings with him for the last seventeen years, dealings which had only increased after a stroke in the spring of 2013, some months before the incident with the young woman occurred. This proposal was challenged by the defence, who argued that there was a "real risk of prejudice" if someone so personally close to the complainer was permitted to act in court as his sign interpreter and translator. 

Evidence was taken, during which it was revealed that there were a number of alternative interpreters available, but "there had been no attempt by the Crown to seek or to instruct any interpreter other than" Ramsay. Nevertheless, the sheriff concluded that she was "not satisfied that there was a real risk of prejudice" to the accused and a "real risk to the interests of justice" if the complainer's "evidence was not properly interpreted." Ramsay, concluded the sheriff, "was clearly the best person to achieve that." 

You may sympathise with this assessment. Taking the complainer's impairments into account, someone with an intimate knowledge and experience of interacting with him may well be best placed to comprehend, decode and relay the significance of his gestures. But there remained a nagging doubt. Was Ramsay too close to the fray? Too personally involved with the complainer? Even if she did her very best to be cool, impartial, and to interpret the complainer's testimony in an unbiased way, could she avoid human sympathy for the complainer? Even unconsciously?

And as Ramsay herself recognised in evidence, it would not "be impossible for another interpreter to interpret for the complainer so long as that interpreter was able to spend a couple of hours with him beforehand, to become familiar with what was, in his case, required." The Appeal Court thought not. Quashing McDougall's conviction on grounds that a miscarriage of justice had occured, Lady Smith concluded that:

[13] The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant. In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance. The point was not whether or not Mrs Ramsay would in fact be deliberately biased; no one suggested that she would be deliberately biased. Partiality may, however, be conscious or unconscious and a trial can be rendered unfair by the presence of partiality, whatever its source and whether actual or apparent. If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one.  

[14] All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk. The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination. It was a risk which did not, in the circumstances, need to be run.

Appeal judges also revised a Crown motion to grant authority to bring a new prosecution against Louise McDougall - a request which was delined, partly because of the length of time she has already spent in custody, partly because "the Crown were not without fault in this matter", presumably in failing to canvass alternative interpreters.

You can understand the human sympathy for the complainer which may have animated this decision by the prosecution. In submissions, the Advocate Depute argued that "it was important to equip a frail and vulnerable witness so as to enable him to give his evidence" and in view of the complainer's "particular circumstances", the use of a well-known interpreter was justified.

He might also have argued that employing Ramsay was the best way of securing the best evidence from a complainer, for whom communication could clearly be challenging. But this seems ultimately unpersuasive. The Appeal Court must be right about that. In its efforts to accommodate the complainer's needs, the accused's rights and entitlements slipped too far from view.

McDougall is also an important reminder that victim-centric decision-making can risks losing sight of other important aims and values in criminal justice processes, not least that the accused should be tried fairly. There is a presumption of innocence, not a presumption that the complainer is telling the truth - even, or perhaps especially, a complainer whose personal characteristics render them, in the Advocate Depute's phrase, "frail and vulnerable".

This is an all too-human case. You sympathise with the choices made, and why they are made. This was, I think, an all-too human mistake by the procurator fiscal. One that Lady Smith and her colleagues - more coldly seeming, perhaps, at a bit more emotional distance - put right today.

"Answer for your actions, Harry..."

As I type, Harry Clarke is being questioned by the Solicitor-General in Glasgow Sheriff Court. Lesley Thomson is seeking to establish the circumstances leading up to the unconsciousness which gripped him at the wheel of his bin lorry last December, and which killed six people. And Harry Clarke? Harry Clarke is mum. Save for the occasional, slightly more detailed response, each question is being met with the same reply: "I don't wish to answer that question." Yet the examination continues unabated. 

Journalists are sharpening their pens. I expect Mr Clarke will be crucified in the pages of the media tomorrow for his failure to answer. But if you are prepared to think critically about the driver's position, and to be fair to him, his silence may not be admirable, but it is rational. It is self-preservation. And more than that, it is almost certainly on his lawyers' advice. Let's unpack this a little. 

Clarke's omerta has been a powerful source of frustration for those close to the trial. The media have reported that family members of those killed have left the courtroom in disgust. But to be perfectly honest, today's spectacle, today's fruitless inquisition, is the logical consequence of some of the families' decisions to charge ahead with the idea of a private prosecution. It should surprise nobody. I'd bet my bottom dollar that the families were well-advised about the implications of raising, or even threatening to raise, a bill of criminal letters against the bin lorry driver. So long as there was any threat of prosecution hanging over his testimony, Mr Clarke was almost certain to take the judicious course and keep his mouth shut. Why?

In our criminal courts, an accused person has a right to silence. If questioned under suspicion by the police, you are obliged only to give some scant details - your name, date of birth, place of birth, nationality - but you are not obliged to answer any other questions. Police officers aren't entitled to interrogate you till you crack under the pressure. It is for the prosecutor - usually, for the state - to establish their case against you beyond a reasonable doubt. If you appear as a witness in our criminal courts, you must answer legitimate, relevant questions which are put to you. If you prevaricate, or refuse to answer, you commit a contempt of court. 

But if you are in the dock, you cannot be forced into the witness box to give evidence against yourself. You are not obliged to answer questions which might incriminate you. In Scotland, at least, your silence isn't - or shouldn't be - held against you.  Countless accused people every year avail themselves of this right, and let judges and juries test the evidence which the procurator fiscal is able to marshal against them. This privilege against self-incrimination is an essential part of a fair trial. If the Crown Office had decided differently, and Harry Clarke had been indicted for some criminal offence, he would have been entitled not to enter the witness box. He wouldn't have to "answer for his actions" at all.

Some of the families of those tragically slain before Christmas last year have indicated that they want to take private criminal proceedings against the Glasgow City Council employee. Looking at the legal hurdles they will have to overcome, I'm sceptical about the likelihood of them securing the blessing of the High Court and succeeding in this endeavour. At this stage, however, the families' intentions remain entirely opaque. What charges would they hope to pursue against Mr Clarke? Fraud? A driving offence? Culpable homicide? 

Some ideas have been bandied around in the pages of the press, but Mr Clarke stands in the witness box today, with no idea what parts of his testimony may or may not be relevant to the private prosecution which some of the families want to pursue. He cannot judge what parts of his evidence might or might not be used against him. Sheriff Beckett told him at the outset that he need only tell the inquiry his name and address. Anything else - any other query - he is entitled to decline to answer. He is exercising that right. At the current rate, he may be exercising it for some hours and days to come in the Sheriff Court. 

But if you found yourself in his position, would you ignore your lawyer's advice? If so, you may well be a nobler and more self-sacrificing character than this man. Perhaps the right thing to do would be to stand behind your deeds and your mistakes, and to take what comes.  Reading reports from the inquiry over the last few weeks, I'm struck by the all too human qualities of Harry Clarke. An unfit, unhealthy man of a certain age with limited education and limited skills. A man who had his trade - and who desperately wanted to keep it. A man who succumbed to the all too human desire to keep his livelihood, little thinking, little imagining, the gruesome consequences of the white lies he thought he told. I don't know about you, but I can see clearly, all too clearly, how this might happen. 

I expect the full weight of public opinion to come crashing down on him today and tomorrow. The principal purpose of the fatal accident inquiry is becoming ever more obscured by the idea that this is the trial of Harry Clarke. But in our legal system, accused people do not have to "answer for their actions", in the Daily Record's phrase. It was only freedom from the risk of prosecution which might have ennabled the driver to speak freely about his faults and failings.

It was only this that didn't require this terribly ordinary man to show extraordinary courage, and candour, and contrition in telling his story. But it turns out he isn't extraordinary, or brave. Few are. I doubt I would be either, in his circumstances. Whether you think it was rightly or wrongly taken, by trying to circumvent the Crown's decision not to prosecute Mr Clarke, the FAI families will suffer again today for two more all too human frailties - for caution, and for fear. 

Corroboration: will you or nil you?

Polarisation does silly things to debates.  Black and white, all good or all bad, disagreements organised around extremes rarely do justice to the grey shades, the advantages and disadvantages, which characterise almost every innovation or reform. So it is proving with the discussion around the Scottish Government's intention to abolish the corroboration rule in Scottish criminal cases.  

Unlike most Scots lawyers, who seem inveterately opposed to the idea, I find myself swithering, undecided, about it.  This indecision isn't particularly down to a sense of loyalty to the origins of these reforms. A partisan Nat I may be, but I've grumbled many a grumble about the SNP's approach to a number of big-ticket criminal justice issues over the years.  In this case, my wavers are down to the to-and-fro of the arguments which have been offered on either side of the debate.  The justifications offered by the doctrine's detractors and defenders all seem to me to overstate their case.

It's about access to justice, stupid.  In Holyrood this week, Kenny MacAskill described the proposal as  "a long overdue step in ensuring that victims have access to justice". There's certainly some force in this argument. Today, as a result of the corroboration rule, a number of cases can never be put before our courts.  Achieving corroboration of the essential elements of an offence can be particularly difficult, even impossible, where events take place in private. Perhaps most difficult of all are sexual assaults.  

On one extreme version of the case for reform, you'd think that the abolition of corroboration will, of itself, herald a new age in criminal justice. Victims, previously abandoned outside of our courts, will all be welcomed in, their testimony examined, considered, and a verdict reached.  Realistically, though, this is a fantasy, or a very distant aspiration. 

Our prosecution system is rammed. Our courts are rammed. Our prisons are rammed.  If some proponents of corroboration were to be believed, you'd think Scotland was full of idle procurators fiscal, flush with underspent budgets, lunching sheriffs taking the afternoon off for want of criminal business, and empty jail cells. None of these visions remotely approach the reality, and simply doing away with corroboration won't make them true.  

Eliminating corroboration may eliminate one set of hurdles facing complainers' access to courts, but realistically, there will still have to be hurdles. Most likely, the untransparent exercise of prosecutorial discretion to decide which cases are put before the courts. This argument doesn't necessarily favour abolition or retention. Better, you might think, to take decisions on bringing cases before the Court on a qualitative rather than a quantitative basis.  Nevertheless, the idea that this measure will "ensure that victims have access to justice" as MacAskill suggests elides the many barriers which exist, and probably have to exist, if our creaking, overloaded criminal justice system isn't to collapse under the overwhelming pressure. 

If parliamentarians and pressure groups, supporting this measure, are to give any substance to their rhetoric about access to justice, they should be asking Kenny about what funding concessions he was won from John Swinney to fund the necessary expansions in the court, prison, prosecution and legal aid budgets, so that accused persons may be properly defended. The idea that these aspirations can be met out of existing budgets deserves a black laugh.  Absent hard cash, it's hot air, amounting to a false prospectus for eliminating corroboration.

No person should ever been convicted on the evidence of just one person.  Superficially, I can see the force of this argument. How can reasonable doubt be dispelled, when the case essentially comes down to the believability of one witness, over another?  The problem is, Scots law already does this in a number of ways. Today, courts recognise the "special" self-corroborating confession, first recognised in the case of serial-killer Peter Manuel, hanged in Barlinnie 1958.

In rape cases, our criminal courts have held that the complainer's distress can corroborate the absence of consent. But this isn't corroboration in the ordinary sense of two independent pieces of evidence capable of pointing to the commission of the offence.  Assuming there's no other evidence in the case, both pieces of evidence regarding consent originate with the complainer, and corroboration in the ordinary sense is essentially dispensed with.

The Moorov doctrine performs a similar task.  First established in 1930, in Moorov the High Court held that a series of offences showing an underlying similarities may be treated as mutually corroborating. The doctrine has been allowed prosecutions to take place against people who commit a series of sexual offences against different children.  I didn't sit through the trial, but Moorov almost certainly played a role in the recent prosecution of Bill Walker for domestic abuse, with one wife's testimony about Walker's behaviour being taken to corroborate the evidence of another where there was no other evidence that the crime took place.  

Moorov employs a totally different idea of corroboration to that which is normally required.  In the absence of any other evidence, proof that John assaulted Jack is taken to corroborate the fact that John assaulted Jeremy. This produces potentially perverse results. On account of Moorov, if John assaults Jack and Jeremy, he may be brought to court, prosecuted and jailed. If, he only attacked Jeremy, the case is unlikely to see the inside of a court on the basis of the lack of corroboration, despite the fact that Jeremy's evidence about what John did to him would be identical in both cases.  

If it is never appropriate for an individual to be convicted on the word of one person, where are the objections to the application of the Moorov doctrine? Or to the idea that an allegation of rape is capable of being corroborated by distress? If we're serious about the absolute necessity of corroboration, we would expect to hear calls for Walker to be freed from jail. On the other hand, if convicting people on the basis of evidence from a single source is sometimes justified, as even many Scots lawyers would accept, then the case against abolishing corroboration isn't what it appears - and claims - to be.

Closely related to this argument is another familiar line from the anti-reform camp: But corroboration protects us from miscarriages of justice.  But does it really? Here, it is important to bear in mind what corroboration actually requires.  Usually, folk talk about "the evidence of two witnesses", conjuring up the image of credible twin wifies, testifying that they saw wee Jimmy making off with the stolen pie down Perth high street. Certainly, this is one way for prosecutors to achieve corroboration, but it is by no means the only way of doing so.  

Importantly, the courts have held that corroborating evidence needn't necessarily be incriminatory, it only needs to be capable of bearing the inference that the man in the dock committed the offence. To corroborate, the evidence needs only be consistent with the witness' tale. It might also be capable of an innocent explanation.  In effect, there are cases being tried in our criminal courts where deciding whether or not to convict or acquit the accused hinges - almost entirely - on the credibility of the complainer, thinly supported by additional evidence which might be equally consistent with the accused's innocence.  

Quite apart from being a powerful shield behind which accused persons can huddle, corroboration can represent a pretty thin defence against state power when you are dragged before the court. This isn't necessarily a reason to keep or to dispense with the doctrine either, but it does chip away at the retentionists' most powerful, and most repeated, argument.

But back to the abolitionists: Fear not. We're introducing new safeguards. Well, up to a point Lord Copper.  MacAskill has proposed to increase the jury majority required to convict from a bare majority of eight of fifteen, to ten of fifteen. Problem solved? Well, not really. Although juries loom large in the public imagination, they loom small in terms of the day to day realities of criminal justice in Scotland.  Juryless Justice of the Peace and Sheriff Courts soak up over 90% of criminal trials. Amended jury rules introduce no additional safeguards in these cases. 

Swithering yet? There are plenty of other arguments which could be made on body sides of this debate. In private, some procurators fiscal will argue that it is easier for complainers to be told that their cases can't be pursued because of a lack of corroboration, as opposed to informing them that prosecutors won't pursue the case because they lack credibility and haven't been believed.  Is there any truth to this? Perhaps.

Abolishing corroboration won't necessarily end the practise that Scottish police officers patrol in pairs. But in our penny-pinching times, does its abolition make it more likely that Police Scotland will revise its practises before long, leaving more officers to tread the beat alone? Almost certainly. Is this a good thing? Perhaps not.

And thus, I swither on, but for criven's sake, let's ditch the zero-sum mentality.

For you, Mr Walker, the war is over...

... and you've been defeated, utterly. This morning, Sheriff Mackie sentenced the former MSP in Edinburgh Sheriff Court. Her sentencing statement is damning.  Jailing Walker for the statutory maximum available to her, a full twelve months, Sheriff Kathrine Mackie criticised Walker's unrepentant, stubborn sense of his own victimisation. The scabrous, Vogon PR he secured from Iain Maciver after his conviction can't have helped.  Mackie observed:

"I have also had regard to all that has been said on your behalf about the consequences in terms of reputation and financially, and to the terms of the reports that have been prepared.  I have noted from those reports that you maintain your denial of any wrongdoing, and that you perceive yourself as the victim of various conspiracies, amongst your former wives, political opponents and the media. 

While it cannot be denied that there has been considerable media attention in this case and issues thought to arise from it, even before the conclusion of the legal process, I share the opinion of the author of the Criminal Justice Social Work Report that your incredulity at being convicted of these offences and your perceived victimisation are further indications of your abdication of responsibility for your behaviour.  I have also noted from the terms of the reports, as I noted during your evidence, what can only be described as contempt for your former wives and your stepdaughter and the derogatory manner in which you refer to them." 

Ruling out enrolling Walker in the Caledonian men's programme as a non-custodial disposal, Sheriff Mackie continued:

"Having noted the extreme denial and minimisation of behaviour displayed to the authors of the reports prepared it is in my opinion unrealistic to believe that a programme designed to change men’s attitudes condoning domestic abuse has any prospect of success.  There is no basis for believing that the intense media scrutiny combined with your public position has had any bearing on your willingness to be accountable for your behaviour or that this might change within the time frame of the Caledonian Programme, whatever time frame might be allowed. "

That the Sheriff felt it necessary to impose the statutory maximum penalty on Walker poses its own questions. Her statement doesn't contain a breath of criticism or comment on the Crown's choice of venue. As I blogged at the time of Walker's conviction, in Scotland, prosecutors generally have a free hand to select where and how people are tried before our courts.  In Walker's case, he originally appeared to answer an indictment in solemn proceedings, and could have anticipated being tried by a jury, if he refused to plead guilty.

Reviewing the case, crown counsel decided to demote the case to summary proceedings in the sheriff court instead, reducing the court's sentencing powers from five years to one, if Walker was convicted. I very much doubt we'll be hearing any more from the Crown Office about the relevant factors considered by Counsel in reaching this decision, but serious questions remain unanswered.  Just how many counts of domestic violence does a man have to be charged with to face a jury in this country? The regrettable answer, it seems, is more then twenty four.

Discussing the case with various folk, a number of people have suggested that Counsel's real rationale for shifting venue was suspicion of juries. Aren't they awfully unreliably, apt to be taken in by a plausible accused, a risk to the whole endeavour, a threat to conviction? Much better to try Walker before a reliable sheriff. Much less risky. I find this unconvincing.

Firstly, this seems a rather dubious basis for prosecution decision-making. Although a soup of factors push decision-making hither and thon, the idea that a senior Crown Office lawyer reduced the severity of the charge just because they were feart that they'd lose the case seems incredible. Yes, the case was historical. Yes, recollections fade. But if the Crown believed their witnesses were credible and reliable enough to persuade Sheriff Mackie of Walker's guilt, I struggle to accept the idea that they thought they weren't up to winning over fifteen ordinary punters.

Secondly, there really isn't an awfully lot of evidence suggesting that juries are significantly less likely to bring home convictions than professional benches. Certainly, you can find the odd Clive Ponting case, where juries disdain to apply the law to the facts in a fashion which legally-trained judges are unlikely to follow, but Walker's prosecution was hardly one of those cases.

I leave the last word to Sheriff Kathrine Mackie.  Your can read her full sentencing statement here.

The Missing Crown Affair

In the newspapers this morning, there is much understandable outrage and calumny that, even if sentenced to the maximum term for his crimes, Bill Walker cannot be deprived of his seat in Holyrood, despite the MSP's comprehensive condemnation in Edinburgh Sheriff Court yesterday.

The Scotsman calls for his resignation. The Herald argue that "that this convicted violent offender has not resigned his seat and cannot be forced to do so under existing parliamentary rules is an affront to women and a disgrace to Holyrood".

That Walker cannot be forced from office unless sentenced to more than a year in prison has been treated primarily as an unhappy quirk of electoral law by the press. Today, the Herald floats the (to my mind, legally implausible) idea that Holyrood may have the power to introduce its own recall law. I doubt it can. In the alternative, they suggest that Westminster should be encouraged to enact reforms, including perhaps the abortive, long-delayed proposals to introduce a right to recall parliamentarians. 

Largely escaping scrutiny on today's front pages and leaders dealing with this story are the Crown Office and Procurator Fiscal Service's decisions in this case.  That Walker won't be disqualified from office, and will effectively decide for himself whether he stays on, isn't just down to how the Representation of the People Act 1981 is drafted.

It is also down to a decision, taken by Scottish prosecutors, to try Walker in a summary court, with maximum sentencing powers of twelve months.  As I argued yesterday, for an organisation which makes much of its commitment to dealing robustly with domestic violence, to treat a man in this fashion who has committed over twenty assaults, against four people, across decades, seems bewildering. Few folk I mentioned this to yesterday could credit it.

Curious to know more, I send the Crown Office a wee inquiry this morning.  Why and how was the decision made to prosecute Walker before Sheriff Mackie alone, given the scope of his offending and the Crown Office's repeated public commitments to take domestic violence seriously? Here was what a spokesman had to say:

To unpack that a bit, the statement confirms that the local Procurator Fiscal initially intended to see Walker tried by a jury, on indictment. I'm told that the charges numbered around thirty at this stage rather than the twenty-four which proceeded before the sheriff in Edinburgh. If the Procurator Fiscal had proceeded with this plan, today, Walker might well have been facing the serious possibility of being relieved of parliamentary office, and a sentence of anything up to five years in jail. So what happened, and why?

From the statement, consideration of Walker's case clearly climbed up the Crown's hierarchy, ending up on the desk of the prosecution service's senior figures, Crown Counsel, who usually spend their time prosecuting cases in the High Court, and generally concern themselves only with the most serious of criminal cases.  On one level, that the case was considered at this level in the organisation isn't surprising.  Walker is a public figure, a sitting MSP, and his prosecution was destined to be attended by controversy.

But why did Crown Counsel decide Walker's case was fit for summary decision, given the scope of the charged against him? The statement offers only the usual boilerplate. Further questions might be asked. Was sufficient weight given to the public interest in the effective prosecution of domestic abuse? For example, the Crown now, as a matter of policy, follows a presumption that knife-carriers who are caught a second time, carrying an illegal weapon, will be prosecuted on indictment in the sheriff court.

Why was the Walker case regard as any less of a priority? The historical nature of "facts and circumstances of" the offences? Surely not. So why? Did the Crown perhaps miscalculate, assuming that Walker would make a guilty plea, but finding him stubborn, and consequently itself stuck in a procedure which on some views, was inadequate to the gravity of his offending? Did the Lord Advocate Frank Mullholland sign-off on, or was he consulted in the decision-making process to demote this prosecution to summary level?

More answers, if and when I receive any.

UPDATE

Late yesterday afternoon, while I was out carousing, I received this supplementary statement from the Crown Office. Asked about what role, if any, Law officers played in the Walker decision, the spokesman responded:

"I can confirm for your background that the protocol with cases involving members of Parliament is that the Law Officers have no role in the decision-making process, which is dealt with by Crown Counsel."

Bill Walker's Prosecution: Zero Tolerance?

Just how many counts of domestic abuse does a man have to be charged with to face a jury in this country? 

Minutes ago, the newswires broke the news that Sheriff Katherine Mackie has convicted Bill Walker, who represents Dunfermline in the Scottish Parliament, of over twenty counts of assault and another of breach of the peace, committed against a string of his former wives and partners, and in one case, a step-daughter. He is due to be sentenced later in September.

As I detailed back when the trial closed, however, even if Sheriff Mackie imposes the severest penalty she has within her powers on Walker for these offences - a twelve month prison term - he won't lose his seat.

That's down to a quirk of electoral law, but it is also a foreseeable outcome of the decision to prosecute him in the sheriff court, without a jury. If convicted by a jury of his peers, Walker could have faced anything up five years in prison, including a sentence which would have deprived him of his seat in parliament.  Instead, whether or not he resigns office is now governed entirely by the sheen of his brass neck, and the pressure brought to bear upon him.

But significant questions must be asked of prosecutors' decisions here too. Unlike many cases in England and Wales, it is generally for the Procurator Fiscal to select the forum for prosecutions in Scotland. So why the devil did the Crown decide to prosecute Walker only summarily, given the scale of the MSP's offending and the numbers of people he has offended against? If twenty four corroborated and credible charges of assault and breach of the peace isn't sufficient, I'm blowed if I know what is.

It will be for Sheriff Mackie to discern what sentence she determines is proper, on the basis of the evidence before her. I find it difficult to understand, however, why the Procurator Fiscal decided this as a case which did not warrant being placed before a jury. The Solicitor-General, Lesley Thomson said recently that:

"A woman may have been assaulted approximately 30 times before she contacts the police – we recognise that there are huge barriers to women seeking assistance in such cases. We know that the pattern of violence used in this insidious type of abuse is controlled and controlling and the abuser will often wait until he is alone with his victim, or perhaps when the only witnesses are her young children."

What sort of message does a summary prosecution send out here, in this very visible case concerning a very public figure's sustained physical and emotional abuse, spanning decades? Is that really zero tolerance?

Even if convicted, the law won't force Bill Walker from office...

Counsel made their closing speeches today in the trial of Bill Walker MSP, accused of a string of domestic assaults against his former partners and a step-daughter. According to the Scotsman report, the case is adjourned until the 22nd of August, when Sheriff Katherine Mackie will pronounce her verdict.  It remains to be seen what verdict that will be, and I pass no comment on Walker's guilt or innocence of these charges.

I do want to highlight, however, a bit of a misconception which has been quietly percolating in the Scottish press. It is a commonplace observation, that if Walker was convicted of these offences, we can inevitably expect a by-election in his Dunfermline constituency.  Legally, this ain't necessarily so.  

The conditions for legal disqualification from office for MSPs are the same as those for MPs in Westminster.  One of the better-known grounds for relieving a parliamentarian of their office, in addition to appointing them Crown Steward and Bailiff of the Chiltern Hundreds, is where an MP is convinced of one or more offences, and thrown in the slammer for more than one year. Under the 1981 Representation of the People Act, the unfortunate parliamentarian, if they have not already offered up their seat, is deprived of it.  But how might all this apply to Walker's trial, if he was convicted? 

As the press reports indicate, the MSP is being tried summarily, which is to say by Sheriff Mackie alone, without a jury.  This choice of forum is down to the Procurator Fiscal.  So what? The critical point concerns the court's maximum sentencing powers.  While the penalties which the High Court can dish out are limitless, running from an eternity behind bars to an unlimited fine, sheriff courts have rather more limited sentencing powers. A sheriff sitting with a jury, for example, may impose a prison sentence up to five years in duration, and fines of the statutory maximum.  

But what of a single sheriff, like Sheriff Mackie, trying a controversy alone? Here's the rub. The summary Sheriff's maximum penalty is a twelve month spell in prison, and a £5,000 fine.  While sheriffs trying cases on indictment with juries may remit cases to the High Court for sentencing, to impose a stiffer penalty, sheriffs sitting alone cannot. Importantly, the High Court has held (in the case of Nicholson v Lees in 1996):

"Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute."

Even if Walker is convicted of all or most of the large number of charges on the complaint against him, and receives the maximum penalty Sheriff Mackie is capable of dispensing, the maximum prison spell which could be imposed is twelve months: still short of the period required for statutory disqualification from parliament. 

I dare say an MSP can serve his constituents but poorly from behind bars. Nevertheless, even if he is convicted, the law can't and won't force Walker from office. 

Hear no evil, see no evil...

Back on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, this morning, the High Court of Justiciary handed down its first major judgment under the legislation.  

The case was a Crown appeal against the acquittal of Joseph Cairns in Dingwall, who was prosecuted for "behaviour which the reasonable person would find offensive" under the Act, by singing "Roll of Honour" and "Boys of the Old Brigade" at a Ross County vs Celtic match.  According to the police evidence, "the majority of the Celtic supporters housed in the north stand" of Victoria Park joined in the singing.  In the Sheriff Court, Cairns was acquitted, the judge finding that he had no case to answer:

"Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent's behaviour was likely to incite public disorder."

On appeal, Lady Paton and Lords Philip and Brodie disagreed, drawing the sheriff's attention to section 1(5) of the Act.  As you may recall, not only do the Crown have to prove that the accused has "expressed hatred", threats, or "behaviour which the reasonable person would find offensive" at a regulated football match. Prosecutors also have to show that the behaviour is or would be likely to incite public disorder. During the law's speedy push through Holyrood, this incitement provision was characterised by Scottish Ministers as a safeguard, raising the bar of conduct criminalised by the Act. As the High Court recognise in this case, the government immediately lowered that hurdle by introducing the qualification that:

For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—  (a) measures are in place to prevent public disorder, or (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

The High Court explain the scope and significance of this provision in paragraph twelve, the critical section of the judgment.  In the absence of any disorder, or any real likelihood of disorder, the Act instructs judges to invent fictional incitees and to give them seats around the terraces. Theoretically, at least, this might include anyone under the sun, including furious North Koreans. The sheriff presiding at first instance, say appeal court judges, failed to exercise his imagination sufficiently.

[12] The sheriff correctly identified that to be struck at by section 1(1) behaviour ["offensive behaviour at football"] must not only be such that a reasonable person would be likely to consider it offensive but it must also either be likely to incite public disorder or would be likely to incite public disorder. Because, on the evidence led, the sheriff considered that there was no proper basis for inferring that any person who might be incited to public disorder would have been able to tell that the respondent was singing about the hunger strikers and the IRA, in his opinion there was no proper basis for inferring that the respondent's behaviour was likely to incite public disorder and, accordingly, the submission of no case to answer fell to be upheld. 

We cannot agree with that conclusion. As the advocate depute argued, it is by no means clear why the sheriff came to the view that he did on the evidence. Two police officers had given evidence that they recognised the song and heard certain of the words sung. As the advocate depute argued, if the police officers were able to recognise the song and hear the words, other persons must also have been able to do so. The sheriff appears to have adopted the view that the only candidates as persons likely to be incited to public disorder were the (apparently unperturbed) Ross County supporters. Why other persons might not be candidates, including persons standing close to or even among the "majority of the Celtic supporters housed in the north stand" is not explained by the sheriff. 

However, be that as it may, the sheriff does not appear to have considered the effect of section 1(5). That subsection provides that for the purposes of section 1(1)(b)(ii), behaviour "would be likely to incite public disorder" if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them. 

As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung.

In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder

As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

Paul McConville has more, as does Alex Massie over at the Spectator.

The Football Act: ending the shame of turnip on turnip violence.

Opinionated amateur horticulturalists, second-rate pie-sellers, brash turnip impresarios, and grinchly ticket-collectors, beware.  In Glasgow Sheriff Court last week, Sheriff Reid handed down an opinion on the interpretation of our old friend, Holyrood's Offensive Behaviour at Football (etc) Act of 2012. 

The case involved six characters, charged with forming a disorderly knot in the concourse of Glasgow Central Station. Five of the six admitted that, earlier that day, they'd attended the match between Ayr United and Hibernian football clubs, and travelled back to Glasgow by train from Ayr, with a view to cutting east, back home to Edinburgh.

According to the Sheriff's narration of the Crown's evidence, in the station, the group encountered a group of Rangers fans (and perhaps a smattering of Chelsea supporters), with whom the Crown allege the six gentlemen fell into disorderly confrontation.  No match involving Rangers had been staged that weekend, and none of the Rangers fans which the Crown argue were involved seem to have attended any match involving Ayr, Hibs, or anyone else that day. 

All six men were pulled up before the beak, charged with "threatening" behaviour which was likely to incite public disorder and "other behaviour that a reasonable person would be likely to consider offensive", the indictment alleging that "on the public concourse of a railway station form part of disorderly crowd, fight, gesticulate, throw missiles, challenge the lieges to fight and place the lieges in a state of fear and alarm." 

But did this behaviour, if proved, really "relate" to the regulated football match earlier that day between Ayr and Hibs? Their briefs argued not.  Section 2(2)(b)(iii) of the Football Act is explicit. "Offensive" behaviour isn't just criminalised on the terraces.  The legislation also extends to behaviour "on a journey to or from the regulated football match", by air, land or sea.  Oh.  And to any premises (save for a home say, or other cosy domestic spot) where a football match was televised, and presumably, to the journeys to and from those public houses.

The defence lawyers contended that there had to be a more substantial link between the regulated football match involved and the offensive or threatening behaviour criminalised under the new law. Sheriff Reid disagreed, and explaining his reasoning, offered this vivid assessment of the broad gamut of the new law.

[54] ...  a supporter within a football stadium during a regulated football match may become embroiled in a violent altercation with a pie seller. The dispute may have nothing to do with football or the match. It may relate to the quality of the pie. On both a literal and a purposive interpretation of the [Football] 2012 Act, the behaviour of both the supporter and the pie seller would fall within the ambit of the statutory offence. Likewise, a supporter on a return train journey home from a match may become offensive towards a ticket inspector. The argument may have nothing to do with football or the match. It may relate to an alleged unpaid fare. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of the supporter would fall within the ambit of the statutory offence.

Or the amateur horticulturalists, returning to their hotel from a visit to the Ayr Flower Show, who are drawn into a fight with fellow guests who are watching a live televised football match in the hotel lounge. The fight may have nothing to do with football or the match. It may relate to the size of turnips. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of all participants would fall within the ambit of the statutory offence. There is no absurdity in these results. It accords with the "overriding priority" (per the Policy Memorandum) of the legislation which is to improve the unacceptable behaviour and attitudes increasingly displayed at, around, or on journeys to and from, regulated football matches, whatever the motivation for the offending behaviour. Parliament has designated "trouble free" zones in the context of regulated football matches - and persons finding themselves, or happening upon others, in such qualifying locations must take particular care to moderate their behaviour accordingly.

The next time you fancy collaring a fellow "commoner gardener" in the hotel lounge, arguing that his prize swede is really a diminutive turnip, think twice. Oh. And be sure to check if Ayr are playing Hibs on the telly first.

"...after which they returned again to the transportations and hangings.."

Today, the Scottish Court Service has published recommendations which will, if enacted, substantially centralise the work of justice in our courts.  SCS proposes to curtail the circuit of the High Court of Justiciary, shutting and merging a substantial number of sheriff and justice of the peace courts, and limiting sheriff and jury trials to sixteen cities and towns.

The motto justice delayed is justice denied will surely be familiar to all of you. We ought to think seriously about geographies of justice too.  The cuts in the SCS budget are stark.  A 20% real terms cut in its operational budget, and a reduction in capital spending from £20 to £4 million, according to its Chief Executive. Even so, it is important not to lose sight of the importance and value of "street-corner" courts, closer to the vital forces of the communities they serve, accessible for those who have gone or been taken to law, who are able to bear witness in their own towns and centres.

Practical and effective access to justice means more than just funding legal aid (and as we know, that too is being trimmed to the bone both north and south of the border).  By declining to send judges out on circuit, you oblige witnesses, complainers and juries to do so. As the Law Society has noted, this is not without its difficulties.

For some queer reason, the report reminded me of this section of Lord Henry Cockburn's Memorials of His Time (1779 - 1854), where he discusses the circuits taken by the judges of the High Court of Justiciary in his day.  They gave it a long of swank in those days. No quiet entrances for them. Horses. Soldiers. Macers. Processions. Trumpets and drums. Law's grandeur and presence in the community, noisily declared in cloth and sound.  However, life on the circuit lacked some of the consolations of home. Cockburn relates:

"At Edinburgh, the old judges had a practice at which even their barbaric age used to shake its head. They had always wine and biscuits on the bench, when the business was clearly to be protracted beyond the usual dinner hour.  The modern judges - those I mean who were made after 1800, never gave in to this; but with those of the preceding generation, some of whom lasted several years after 1800, it was quite common. Black bottles of strong port were set down beside them on the bench, with glasses, caraffes of water, tumblers, and biscuits; and this without the slightest attempt at concealment.  

The refreshment was generally allowed to stand untouched, and as if despised, for a short time, during which their Lordships seemed to be intent only on their notes.  But in a little, some water was poured into the tumbler, and sipped quietly as if merely to sustain nature.  Then a few drops of wine were ventured upon, but only with the water: till at last patience could endure no longer, and a full bumper of the pure black element was tossed over; after which the thing went on regularly, and there was a comfortable munching and quaffing, to the great envy of the parched throats in the gallery.

The strong-headed stood it tolerably well, but it told, plainly enough, upon the feeble. Not that the ermine was absolutely intoxicated, but it was certainly sometimes affected.  This however was so ordinary with these sages, that it really made little apparent change upon them.  It was not very perceptible at a distance; and they all acquired the habit of sitting and looking judicial enough, even when their bottles had reached the lowest ebb.  

This open-court refection did not prevail, so far as I ever saw, at Circuits.  It took a different form there.  The temptation of the inn frequently produced a total stoppage of business, during which all concerned - judges and counsel, clerks, jurymen and provosts, had a jolly dinner; after which they returned again to the transportations and hangings.  I have seen this done often.  It was a common remark that the step of the evening procession was far less true to the music than that of the morning."

I suppose not all judicial innovations are to be despised. *Hic*.

♫ We're the Jury! Dread our fury! (Vol 2) ♫

In my day job, I'm interested in studying law empirically.  One of the classic claims made by scholars adopting this sort of socio-legal approach is that often as not, the law on the books represents a poor guide for how the law actually works in practice. 

This discrepancy takes many different forms. The section of an enactment which legislators thought would apply only exceptionally, occasionally becomes the rule in practice. Environmental regulations are applied in the field - often literally - by officers enjoying substantial discretion over how infractions will be treated, and those encounters often produce a rather different regulatory regime in reality, than the neatly ordered official version admits.  The Housing Act places positive obligations on local authorities to house the homeless. In practice, the bureaucratic units making these decisions depart from and elaborate the legal standards for assessing these duties in a range of interesting (and sometimes concerning) ways. 

So too with our criminal justice system. Oscar Pistorius' murder trial in South Africa, and yesterday's queer conclusion to the Vicky Pryce trial in England, has stirred up the issue of trial by jury again. Defenders of the idea often tend towards grandiloquence. "The lamp that shows that freedom lives", a "cornerstone of our judicial system", or an "inalienable civil liberty" to be defended to the last ditch. It is one thing to argue that trial by jury in particularly serious cases represents an important safeguard, worth preserving.  It is quite another to imply, as some commentators often seem at risk of implying, that anything but trial by jury would be a judicial scandal, a betrayal of the grand old history of British jurisprudence, undermining the justice system as is. 

Why? Because trials by jury already represents a negligible, fading segment of our criminal justice system's work. The institution may be the most visible manifestation of criminal justice, and dominate legal dramas, but trial by judges alone is far, far more common. And guilty pleas even more so. To flesh this out a bit, the Crown Office has helpfully thrown together its case-processing data for the last five years, 2007 - 2012. They use the now-outmoded term of "District Courts", so I've used it too, but these now refer to Justice of the Peace Courts, whose Justices are generally not legally qualified and usually determine cases in threes. In these figures the Crown Office has aggregated the figures for legally-qualified Stipendiary Magistrates who sit alone (which only operate in Glasgow) along with those for summary sheriff cases, without juries.

The statistics distinguish between pleas ("cases which were disposed of at court without any evidence being led") and those which were tried ("cases where some or all of the evidence was led").  On the basis of these figures, we can identify precisely how many juries were actually empanelled in the last half-decade in Scotland. Let's take the most recent year for which we have data, 2011 - 2012.  As you can see, of the 8,070 cases where any evidence was lead in court, only 16% involved juries, either in the Sheriff or High Courts, 84% without.  Most cases were tried by sheriffs sitting alone, with the remaining almost-quarter soaked up by the District Courts. No juries here either. 

Nor was 2011/12 an outlier year. Across the half decade, just 16% of all proceedings which have reached trial and not been pleaded out from the outset involved juries in Scotland.  Focussing on trials, however, also tends to give you a distorted impression about how criminal justice in this country actually works. The picture wouldn't be complete without factoring the phenomenon of pleas, which suspend the necessity of going to trial, witnesses being examined and cross-examined, and either judicial or jury deliberations on verdict.  The sheer scale of pleas in Scottish criminal justice, which has this in common with many other jurisdictions, including England and the United States, is best depicted by contrasting the number of cases which go to trial and those which are pled out without any evidence being lead, and without a whisper of jury involvement. 

Whatever your views on its virtues and virtues, the institution's advantages and disadvantages, the idea that trial by jury represents a practical "cornerstone" of our judicial system is fantastical. Most folk facing trial in Scotland will meet the grim phizog of a sheriff, or JP. Most people who are convicted, fined, given community payback orders, or thrown in the slammer won't see hide nor hair of fifteen of their peers. In the overwhelming majority of criminal cases, guilt or innocence is not at issue. I don't have the English and Welsh figures to hand, but I'd wager that the rates of jury trial there aren't substantially higher than in Scotland. None of which is to contend, of course, that cases currently dealt with by juries - murder, charges of rape, serious assaults - ought to be taken from them.  

It does suggest, however, that drawing sharp distinctions between the South African system of trial by judge alone and ours is - in practice - rather silly.  If the system of trial by jury is the "lamp that shows that freedom lives", it affords pretty dim illumination about how criminal justice in this country works most of the time.

"I'm issuing an injunction!"

I'm always interested in the representations of law you find in popular culture. That needn't just mean fictional portrayals of courts and lawyers.  Like folk in the real world, characters in drama bandy about legal concepts more and less accurately much more often than one might think.  While it's common to envisage the law as something external and official, situated in courts, and above and apart from most people's everyday lives, the reality is rather different.  Law saturates our day to day interactions. Quietly, mutely, perhaps, but it is practically impossible to get through a day without engaging with some legally significant concept, whether it is property ownership, leases, sales of goods, contracts, remedies for debt, divorces - and so on. 

I don't regularly watch BBC Scotland's River City, it must be said, but last week's episode caught my eye.  It includes an range of scenes from the sheriff court, in an increasingly acrimonious case about child residency. Many hoary old clichés were dusted off. Juliet Cadzow, the dragonish sheriff: pert, judgemental, Anglicised and bourgeois. In deference to the formality of the occasion, the other characters wore suits, appeared nervous. Legal perceptions of the relevant issues, and those entertained by the two characters most invested in the dispute, were substantially mismatched. This mismatch caused frustration, precipitating interruptions, and increasingly heated transgressions against the stiff, formal atmosphere of the courtroom.

The legal characters, the solicitors and presiding judge, repeatedly emphasised that cool decorum was expected. Allegations and awkward questions were to be met with equanimity.  The moral? Displaying emotion in courts gets your card marked as an intemperate villain, you lose, and your life is ruined. Law courts aren't terrifically interested in your private sense of grief or injustice.

I'm sure any Scots lawyers watching it would have squirmed when Cadzow's sheriff cried "I'm issuing an injunction!" - an English concept not known to the law of Scotland, which uses interdicts - but such inaccurate marginalia are hardly unknown in Scottish drama.  As I argued back in October 2010, in Scotland we almost never see the inside of our courts fictionally depicted, and where such representations do occur, they invariably incorporate at least some alien American or English legal concepts.

What struck me as interesting, however, was how far the rest of the episode, outwith the majestic confines of the fictional Clydeinch Sheriff Cour, and out from under Cadzow's gorgonesque gaze, also turned on legal ideas of property, debt, security - and even licensing laws, egad.  Canny but unscrupulous characters take advantage of legal information asymmetries, and of wealth and access to professional counsel, to screw over others without these advantages.

You can make the case, I think compellingly, that it is actually soap operas, and not our Kavanagh QCs and Rumpoles of the Bailey, which represent our pre-eminent legal dramas, depicting the overwhelming presence of law in society, with only very occasional, uncomfortable and generally unsatisfactory forays into courts when one character is prosecuted for clobbering another, or pursues a dramatically arresting piece of civil litigation. Soaps' storytelling is rooted in communities, with large casts, and their plots revolve around their businesses and their interactions (and the ubiquitous centrality of the local boozer). Legal ideas and interactions are pervasive. 

It is a commonplace among curmudgeonly lawyers that court dramas tend to distort the reality of legal processes, generalising from the exceptional or eccentric litigant, and accordingly, cultivate a misleading impression of how civil and crime justice functions.  You can make a parallel argument about the idea that legal dramas must include gowns, wigs, a mute jury and officious ushers. Most legal disputes in our society are resolved without anyone donning a horsehair peruke. Most legal thinking in the broad sense occurs outside the courtroom.  

The World's End case: Ca'ing Canny...

It isn't exactly a seasonal dish, but ought this blogger to brace himself for a vast slice of humble pie? 

During the Double Jeopardy (Scotland) Act 2011's passage through Holyrood, several parliamentarians, and articles in the press, implied that the legislation would result in the reindictment of Angus Sinclair, accused of committing the so-called World's End murders of the seventeen year old Helen Scott and Christine Eadie in 1977.  As you will likely recall, Sinclair's murder trial collapsed in 2007 after Lord Clarke held that the evidence presented to the jury was insufficient in law, to sustain any conviction. Throughout the process of introducing these legal reforms, I was pretty sceptical about the likelihood that the specific changes which Holyrood enacted to the rules on tholing your assize would see the World's End case retried, despite the political pressure from various quarters to do so.

Today, however, the Crown Office have announced that they have applied to the High Court of Justiciary to have Sinclair's acquittal set aside, and the opportunity to re-indict him for killing Eadie and Scott.  This is the first application made by the Lord Advocate since the 2011 Act came into force.  The application will be decided by at least three judges of the High Court, and their decision is final and not subject to any appeal. So what will the Crown have to argue, if they are going to be granted authority to retry Sinclair?

There are three main exceptions to the general rule that you cannot be tried twice for the same offence in Scotland.  Firstly, your acquittal can be set aside if the trial was "tainted" - for example by someone threatening or bribing, or attempting to threaten or to bribe judge or jury or witnesses.  As far as I'm aware, there is no suggestion that the Crown is making an application under this section. The second exception is where the person admits their guilt after having been acquitted. There are some qualifications to granting reprosecutions under this heading, however.  The Court can only set aside the acquittal if four - prima facie rather stringent - tests are met:

1. That the admission of guilt "was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor" by the time of the original acquittal.
2. The "case against the person is strengthened substantially by the admission".
3. That "the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person"; and
4. That "it is in the interests of justice to do so".

Imagining myself invested with judicial grandeur, wig and gown, I struggle to imagine the circumstances where almost any credible evidence of a post-acquittal admission of guilt would not be regarded by the Court as substantially strengthening a case and heightening the likelihood of conviction.  Unless, I suppose, the case was fearfully, uncharacteristically weak to begin with. Again, it is worth emphasising that the Crown announcement today contains no information on which of these grounds they are proceeding, but a prison confession would be one possibility.

The final ground to set aside an acquittal is that "new evidence" materialises in the meanwhile. This ground is only available where the original trial was on indictment in the High Court.  Practically speaking, this means that acquittals pronounced in the Sheriff Court, whether by judge alone, or sheriff and jury, can't be overturned on the basis of "new evidence", pertinent or persuasive as it might be.  Critically, however, not just any additional evidence will do to knock an acquittal flat.  In echo of the strictures we saw around subsequent admissions of guilt, the Court may only set aside the acquittal if it is satisfied that:

1. The "case against the person is strengthened substantially by the new evidence";
2. The new evidence "was not available, and could not with the exercise of reasonable diligence have been made available" at the first trial.
3. 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.
4. And lastly, that "it is in the interests of justice to do so".

A few general observations about these qualifications. Firstly, it remains to be seen how expansively or restrictively the High Court will interpret these provisions, but the phrases which I've highlighted above at least gesture towards the Court taking a fairly strict line on what sort of new evidence might justify quashing an acquittal.  It certainly should not be taken for granted, for example, that the Court will agree with prosecutors' assessments of the significance and novelty of any new evidence which they wish to adduce. We might be able to agree, for instance, that additional evidence might strengthen an Advocate Depute's case, but it's a matter of judgement and context, rather than strict rule, what a "substantially strengthened" case might look like. Or for that matter, whether supplementing the prosecutor's case with the new evidence would make it "highly" likely, rather than simply more likely, that the jury would find the charges proven against the acquitted person. You might well think, however, that any additional material would have to be pretty darned incriminating, or at least, capable of an incriminatory reading.  

In particular, notice too that under the Act, the new evidence must not have been available at the time of the original trial. The evidence would not, for example, be "new" if it was available but simply not lead before the jury by prosecutors.  Similarly, want of diligence in ferreting out evidence on the part of the prosecutors and the police cannot be rewarded by a fresh prosecution, though the question of what sort of investigative techniques a "reasonably diligent" copper might employ is obviously open to interpretation at the margins. Our legislators, minds full of "cold cases" from the telly, and advances in forensic technologies, were probably thinking about evidence which it was scientifically impossible to obtain in the past, but are now the common currency of law enforcement.  

This paradigm doesn't seem to fit neatly with the facts of Sinclair's acquittal. While the murders of Eadie and Scott occurred in 1977, Sinclair's first trial did not take place until thirty years later.  It will be for the Lord Advocate to substantiate, between 2007 and 2012, rather than 1977 and 2007, that some additional significant evidence has come to light warranting the reactivation of criminal proceedings against Sinclair. While it is easy to envisage big changes in the investigative techniques available between the 1970s and the early 2000s, it is a bit trickier to see what radical technological innovations may have occurred over the last half decade, generating evidence where evidence formerly was unavailable. 

I've no insight whatever into the substance of the Crown's case, and it may well be that they have uncovered credible evidence of a confession, or new evidence within or outwith the natty fields of forensic science. No doubt we'll hear in greater detail, when the application is presented in open court some time in the new year. On the basis of what the Double Jeopardy (Scotland) Act says, however, there are still plenty of reasons to ca' canny at this stage about the High Court granting authority to the Crown for a second World End's trial to proceed.