Scofflaw, footpad, pirate, shady crook...

Scofflaw, footpad, pirate, shady crook. Thou shalt not vote, recalcitrant. Hie ye back to your cell of disenfranchisement, there to reflect upon the philosophy that the lawless cannot craft laws. Capitis deminutio maxima. Which this House hereby pronounces for doom. 

Tragically, it now seems unlikely that Her Majesty's government will adopt my wizard wheeze to form prisoner constituencies. For my part, I've little vinegar in me for the issue of prisoner enfranchisement. I find the "principled" argument that those who break laws forfeit their rights to participate in legislation to be pretentious and patently a backwards intellectualisation of a previously held position. Love and Garbage put it neatly in a comment on Better Nation. If law breaking is the justification for depriving individuals of their votes, what is the rationale for allowing late night urinaters, spanked by Justices of the Peace, to keep theirs? Although the example is trite, it at least serves to make one thing clear. The delineating concern here is not really one of law breaking at all. Nor am I particularly keen on accommodating folk to the general notion that if you repudiate the social contract, the social compact repudiates you. Others may share my rather shapeless discomfort with such stark exclusionary figurations. Equally, the idea that giving prisoners the vote will have some efficacy as a force for rehabilitation seems equally absurd. Isn't this unnecessarily high flown for what is fundamentally a quotidian question? My answer to that question, left to my own devices, would be to afford all prisoners the vote, enfranchised in a spirit of indifference. As for all of the outraged conscience paraded in Westminster yesterday: be still my throbbing colon. A quick squint through Hansard revealed that no SNP MP spoke in the debate but three of them (Stewart Hosie, Mike Weir and Eilidh Whiteford) supported David Davis' motion:

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

Asked about this last year, Alex Salmond was disappointingly incoherent:

FMQs 23rd of September, 2010

Alex Salmond: The Scottish Government does not agree that convicted prisoners should be entitled to vote while they are serving a prison sentence.

Stewart Maxwell: Like many in the Parliament, I am totally opposed to rapists, murderers and drug pushers getting the right to vote. They have given up their right to participate in decent society by their actions. It is a disgrace that forces outside Scotland are trying to force such a change upon us ...

Robert Brown: The First Minister is missing the point. The UK is signed up to the European convention on human rights, so it is under the obligation to follow the protocol that refers to free and fair elections. Is he not aware that the European Court of Human Rights has made a decision on the matter? Is he suggesting that, if Scotland were independent, it would opt out of the European convention on human rights? What is the Scottish Government's position on that?

Alex Salmond: A couple of things would improve if Scotland were an independent nation. First, we would have the same protection against compensation claims as any other country has at the moment, instead of theoretically being liable for 10 years of compensation claims—members will remember that in connection with another thorny issue. That would be a distinct improvement if Scotland were independent. Secondly, I know that the Liberals are understandably keen on the European Court of Human Rights and the European convention on human rights. However, I cannot believe that, back in 1997 when there was blanket signing up to the ECHR, those of us who argued very strongly that human rights should be observed across the European continent thought that one of the key issues would be to give convicted prisoners the right to vote. For most people, that does not seem to be what we would consider to be an important human right.

Not one of the Maximum Eck's better days, I'd submit. I assume his stumble-mumble point about 1997 in the last paragraph refers to the Human Rights Act, passed by the Westminster parliament in 1998, but it is difficult to tell. As he would assuredly discover if he looked into it, elections were put under the authority of the European Court of Human Rights by the third Article of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms in 1963. It reads as follows, in pompous legal diplomatese:

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

Politically, I can understand the Scottish Government's position. One might expect signs of sensitivity in the SNP about the soft-on-crime millstone which certain parties are keen to make a necklace gift for them. Moreover, it is a matter for the Westminster parliament, in which the party has only a tiny clutch of votes. Why fashion the projectiles of Labour boors for them? While I thoroughly denigrate Stewart Maxwell's ridiculous little Scotlander bilge, in fairness we should also add the idea that Salmond and Shoal may actually burn hostile to prisoner voting and the calculation I mention is purely a secondary consideration. My sense, however, is that this is a classic example of Eckly weakness when it comes to the future, with the patently implausible reassurance that in Salmond's independent Scotland, we'll discover a land where all contradictions are resolved and what is indissolubly complex shall become simple...

Scotland on ... Sex

Sustained readers will know that I enjoy taking an occasional look at the raft of social statistics commissioned and published by the Government. While the Scottish Householder survey is a particular favourite, in great part because of the quotidian interest of much of its data, the field would not be complete without the Scottish Social Attitudes Survey. Last year, the survey indicated a strikingly lower and falling degree of faith amongst women that they could trust the Scottish Government to make fair decisions.

It also showed that Labour's Salmond slump rhetoric wasn't finding purchase in the minds of the public. On health, for example, of those who believed that standards improved in 2009, 55% credited the Scottish Government with this improvement, only 18% attributing it to Westminster policies. Of those who believed standards in the NHS fell, only 12% blamed the Scottish Government while 41% attributed falling standards to Westminster policies. On the economy, a similar tale was told. The 66% who thought there has been any improvement in the country's economic fortunes attributed this to the Scottish Government, with only 14% attributing positive developments to the UK government. For those who took a negative view of the economy, how blame was attributed was also striking. A slim 7% believed that the Scottish Government were responsible for the diminished economic circumstances, the UK government picked up 38% of the blame, while 44% suggested 'some other reason' was at work behind it.  The results of the 2010 Survey have not been published in their entirety, but this year will encompass the following themes:

Attitudes to discrimination and positive action

SSA 2010 includes a series of questions exploring attitudes to discrimination on grounds of age, disability, gender, race, religion or belief, sexual orientation and gender reassignment. Many of these questions were also included in SSA in 2002 and 2006, so we can look at how attitudes to different groups have changed over time. In addition, the 2010 survey also explores attitudes to different kinds of action government and private companies could take to try and increase equality.

Devolution and attitudes to government

SSA 2010 continues a long-running series of questions on public attitudes to government. These explore issues including political trust and the perceived impact of devolution on Scotland's voice in the UK. The 2010 survey also includes questions (funded by the Nuffield Foundation) on attitudes to options for Scotland's future, reflecting ongoing debates about independence, funding, and the devolution of more powers to the Scottish Parliament. Findings from these questions were presented at a seminar at the Institute of Governance in December. Click here for slides.

Public services

SSA regularly collects views on standards in key public services - including health, education and public transport - in Scotland. The 2010 survey also includes questions on who people think has most influence over local public services.

Social and moral issues

SSA 2010 includes questions on a range of social and moral issues, including: equality; welfare and redistribution of wealth; sex before marriage; abortion; and legalising cannabis. These questions have all been asked before on SSA and are also included in the 2010 British Social Attitudes survey. The findings will compare both change over time and differences in attitudes between Scotland and England.

Plenty of there to interest and when the copies hit the shelves, I shall winnow out bits and pieces  and pernickity detail which I find of particular interest. That said, the Scottish Centre for Social Research, who conducted the Survey, have already published some initial findings in rough and ready percentages. The topic? Scottish attitudes towards sex. Last year, they found the following:

Only 13% think that sex before marriage is always or mostly wrong.

As many as 69% think it is all right for a couple to live together without intending to get married.

Just 36% feel that people who want to have children ought to get married.

As many as 55% feel that contraception should be more easily available to teenagers, including those aged under 16.

A clear majority, 58%, feel that sex between two adults of the same sex is either 'rarely' or 'not wrong at all'. Ten years ago only 37% agreed with these statements.

Ten years ago just over half of Scots (54%) thought that people who wanted to have children should get married. Now only one third of people (36%) think this.

Regular churchgoers, who count for one in eight of all adults in Scotland, do not share the relaxed attitudes adopted by the majority of Scots.

As many as 49% of regular church goers feel that sex before marriage is always or mostly wrong.

69% believe that people who want to have children should get married.

Only 26% say that same sex relationships are 'rarely' or 'never wrong'.

It'll be fascinating to see the full breakdown on this, including the gendered and generational distribution on the issues. As to these brisk percentages themselves, what do you make of them? Shocked and stunned, ladies and gentlemen? Scandalised by this evidence of our permissive society that they used to fear and denigrate in earlier decades? Heartened by this evidence that  attitudes towards queer Scotia may have leavened?

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.

The saintly Augustine's Megrahi papers ...

The newswires are tingling with headlines from the Cabinet Secretary's release and review of previously unpublished UK Government documents pertaining to events surrounding Al Megrahi's release from prison. Predictably enough, the Conservative Party's shows every sign of regarding this as a splendid opportunity to stick it to their Labour opponents and are serve upon them indictments alleging implication, art and part guilt, opportunism, hypocrisy and so on.  The Cabinet Secretary's remit was clearly influenced by the antics of our old opportunistic chum, devolution expert and all round fair-minded inquisitor, American Democratic Party Senator Robert Menendez. As the paper explains....

The review has sought in particular to assess whether there is any new evidence that:

i. the UK Government directly or indirectly pressurised or lobbied the Scottish Government for the release of Mr Megrahi (either under the PTA or on compassionate grounds);

ii. pressure was placed on the Scottish Government by BP for the release of Mr Megrahi (under the Prisoner Transfer Agreement or on compassionate grounds);

iii. the Libyans were told there were linkages between BP‟s investment and the release of Mr Megrahi either under the Prisoner Transfer Agreement or on compassionate grounds.

As a substantial part of this release of documents, Sir Augustine "Gus" O'Donnell has published partially redacted correspondence from a number of figures from the defeated Labour administration. In line with past practice on this blog, I'll set down a portion of the text, for your scrutiny. O'Donnell's review and published correspondence runs to 142 pages in total. It can be consulted in full in .pdf form here, via the Cabinet Office website.

These documents include:

• 25 July 2007; footnote 6; letter from PM to Col Qadhafi;
• 19 September 2007; footnote 10; Ministry of Justice Submission
• 26 September 2007; footnote 15; letter from PM to Col Qadhafi
• 28 September 2007; footnote 11; Jack Straw to Gordon Brown PTA
• 2 October 2007; footnote 12; note from HMA Tripoli to the FCO
• 2 November 2007; footnote 18; record of phone call between Jack Straw and Kenny MacAskill
• 7 November 2007; footnote 17; Ministry of Justice Submission on PTA
• 19 November 2007; footnote 14; record of Simon McDonald meeting with BP
• 7 – 19 December 2007; footnote 21; correspondence between Jack Straw and Des Browne;
• 19 December 2007; footnote 22; record of phone call between Jack Straw and Kenny MacAskill;
• 18 February 2008; footnote 25; letter from Gordon Brown to Col Qadhafi; 
• 29 September 2008; footnote 26; Ministry of Justice Submission on PTA 
• 10 October 2008; footnote 27; Ministry of Justice Submission – Call with First Minister
• 13 October 2008; footnote 28; Ministry of Justice record Jack Straw call with First Minister 
• 17 October 2008; footnote 29; letter from Bill Rammell to Abdulatti Obidi 
• 21 October 2008; footnote 30; Cabinet Office Submission to Gordon Brown
• 24 October 2008; footnote 32; record of phone call between Jack Straw and Alex Salmond
• 3 November 2008; footnote 31; FCO Submission on handling Megrahi’s Health
• 7 November 2008; footnote 34; record of phone call between Jack Straw and Alex Salmond 
• 13 November 2008; footnote 35; FCO Submission on Judicial Agreements 
• 9 December 2008; footnote 37 and 39; FCO Submission – Advice to the SG 
• 15 December 2008; footnote 38; FCO letter to SG on foreign policy advice 
• 22 January 2009; footnote 41; FCO Submission – Contingency Planning 
• 25 February 2009; footnote 42; Cabinet Office record of Cross Whitehall meeting 
• 20 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi 
• 21-23 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi – PUS and Ministerial Responses
• 20 April 2009; footnote 44; FCO Submission – Ratification of Treaties
• 21 April 2009; footnote 44; FCO Submission – Ratification of Treaties – Ministerial Response
• 22 April 2009; footnote 45 & 51; Ministry Of Justice Submission – Jack Straw call with First Minister
• 29 April 2009; footnote 45; MoJ Record of Jack Straw call with First Minister
• 24 June 2009; footnote 50; FCO email – Foreign Policy advice to the Scottish Government 
• 29 June 2009; footnote 47; FCO Submission – Legal Advice to Scottish Government
• 13 August 2009; footnote 57; FCO Submission to No10 – Impending Scottish Government Decisions
• 20 August 2009; footnote 57; letter from PM to Col Qadhafi;

To give you an overall impression of the Cabinet's Secretary's review, here are his conclusions:

34. It is my conclusion that:

i. none of the materials that I have reviewed contradicts anything in the then Foreign Secretary's statement to the House Of Commons (12 October 2009) or the current Foreign Secretary's letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter;

ii. it is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on UK commercial interests in Libya and removal of any clause in the PTA whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former UK Government's decision to reverse its position and agree to the removal of this exclusion clause. And once the exclusion clause had been removed from the draft PTA, the former UK Government in turn held up final signature until progress on commercial deals had been achieved. The records show that Cabinet Office and FCO Ministers and officials were mindful of, and pressed Libyan interlocutors for progress on, the major BP deal (alongside other UK deals) in the context of agreeing the PTA. But:

a) while the PTA provided a framework to consider the transfer of prisoners, it did not permit transfer when an appeal was outstanding and, critically, in line with every other PTA, provided no automatic right to transfer;

b) any decision on an application for transfer of Mr Megrahi under the PTA was for Scottish Ministers alone to make. Scottish Ministers retained an absolute veto over any request for prisoner transfer in the case of Mr Megrahi, a veto they used in August 2009 by rejecting his application for transfer;

c) the PTA did not in any case form the basis for the release of Mr Megrahi;

d) there is no evidence that pressure was placed on the Scottish Government by BP for the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds);

e) there is nothing in the paperwork to indicate any pertinent contacts between BP and HMG after February 2008;

f) the Libyans were not told there were linkages between BP's exploratory agreement and the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds).

iii. it is clear from the paperwork that at all times the former Government was clear that any decision on Mr Megrahi's release or transfer under a PTA was one for the Scottish Government alone to take. The documentation considered by the review demonstrates that they were clear on this in their internal deliberations and, crucially, in their contacts and exchanges with the Libyans, including at the highest levels, and with the Scottish Government. In Gordon Brown's only meeting with Colonel Qadhafi, on 10 July 2009, he made clear that the decision was solely a matter for Scottish Ministers and HMG could not interfere.

iv. nonetheless, once Mr Megrahi had been diagnosed with terminal cancer in September 2008, HMG policy was based upon an assessment that UK interests would be damaged if Mr Megrahi were to die in a UK jail. The development of this view was prompted, following Mr Megrahi's diagnosis of terminal illness, by the extremely high priority attached to Mr Megrahi's return by the Libyans who had made clear that they would regard his death in Scottish custody as a death sentence and by actual and implicit threats made of severe ramifications for UK interests if Mr Megrahi were to die in prison in Scotland. The policy was primarily motivated by a desire to build on previous success in normalising relations with Libya and to safeguard the substantial gains made in recent years, and specifically to avoid harm to UK nationals, to British commercial interests and to cooperation on security issues. The desire to see such a result developed and intensified over time as Mr Megrahi's health declined and the imminence of his death appeared greater;

v. Policy was therefore progressively developed that HMG should do all it could, whilst respecting devolved competences, to facilitate an appeal by the Libyans to the Scottish Government for Mr Megrah's transfer under the PTA or release on compassionate grounds as the best outcome for managing the risks faced by the UK. This action amounted to: proceeding with ratification of the PTA; explaining to Libya in factual terms the process for application for transfer under a PTA or for compassionate release; and informing the Scottish Government that there was no legal barrier to transfer under the PTA;

vi. I have not seen any evidence that HMG pressured or lobbied the Scottish Government for the transfer or release of Mr Megrahi (either under the PTA or on compassionate grounds). Jack Straw stated clearly in his calls with Alex Salmond including on 13 and 24 October 2008 and his meeting on 28 April 2009 that this was a matter for the Scottish Government. Indeed, throughout this period, the former Government took great effort not to communicate to the Scottish Government its underlying desire to see Mr Megrahi released before he died. Moreover, it is clear that HMG considered that any attempts to pressurise or lobby the Scottish Government could be counter productive to achieving this outcome. Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr Megrahi's release by the Scottish Government on compassionate grounds. When the matter came to the then Prime Minister in August 2009, he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr Megrahi's release on compassionate grounds was a decision that Scottish Ministers alone could – and did – make.

Source.

The World's End (again)...

I've composed a post before on the relationship, if any, which the Double Jeopardy (Scotland) Bill might have with the World's End case. Given its regular reappearance on our tribunes lips and on Holyrood's official report, it is worth reiterating the point, in detail.  What follows will be written in rather heartless legalese. I know some folk find this sort of a prose a manifestly insufficient way of writing about the appalling nature of the case, coolly neglecting the suffering of those involved, their acute feelings of injustice suffered and hopes dashed. I have significant sympathy with that view and nothing which follows should be taken to imply that the legalities exhaust all that one can say about this case. They doubtlessly do not. They are, however, what a blogger with a legal background might most helpfully set out before you, better to understand the issues involved and practical outcomes made possible by reforming Scotland's double jeopardy rules.

As you will recall, Angus Sinclair's murder trial in the High Court of Justiciary collapsed when the accused's lawyers convinced Lord Clarke that an insufficiency of evidence had been lead to convict him of murdering Helen Scott and Christine Eadie in 1977.  There was, Lord Clarke decided, no case in law for the accused to answer. No statutory mechanism existed for the Crown to appeal against this determination. Sinclair returned to prison, where he is serving a life sentence for the murder of Mary Gallagher in 1978. Given regular public references to the case in the context of the Double Jeopardy reform,  you could be forgiven for thinking that Sinclair would be amongst the first to be re-indicted under any new legislation, if the Crown had it within their powers.  Just this week, in Holyrood, former SNP transport minister Stewart Stevenson said:

"For me—and, I suspect, for other members—one of the most chilling speeches that has been made to the Parliament was the speech by the Lord Advocate on the World’s End murder case. It was a lengthy speech that left the chamber as quiet as I have ever heard it. There was no fidgeting—there was a stillness among us as we heard the Lord Advocate lay out matters before us in a judicial manner to which we are not used. Those who listened to that statement—some members found it sufficiently disturbing not to stay for the whole of it—will understand the issue that is before us."

Under pressure from Baillie Bill Aitken, he subsequently qualified his remarks by adding:

Baillie Bill Aitken: "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."

Stewart Stevenson: "It would be useful if I said that I actually agree with the member. I just think that when members were confronted with the sort of detailed material that is presented to the courts, as people who are, thankfully, not normally in a court, that was a substantial wake-up call to us about the real world. Thankfully, most of our community, including members, are relatively isolated from that."

I mentioned Richard Baker's remarks to similar effect earlier in the week. He claimed inter alia that...

"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..."

One reason we know that retrospectivity matters to their families is because Morain Scott, Helen's father, wrote to the Justice Committee. He said:

"I feel I am a victim of crime as my daughter Helen was brutally murdered in 1977 and it was 30 years later before a person was charged and tried for the crime. The trial was supposed to last approximately six weeks but collapsed under two weeks on 10 September 2007.

I feel there was crucial evidence which the jury did not have the opportunity to hear and the case should have at least been left for a jury verdict.

I am sure there are other families who feel the same as me and I am only seeking justice for my daughter which I feel I have not had as yet.

Retrospectivity could be the only answer to all this."

As the law currently stands, there is no possibility for retrial. Hope, there is none.  Clearly, the retrospective application of any exceptions to the general rule about accused persons having tholed their assize is vital to those families seeking their sense of personal justice fulfilled. It is a necessary precondition, but critically, not a sufficient one. If the case against Angus Sinclair was to be reopened, reasons would have to be found from the statutory framework Holyrood is presently devising. Section 2 of the Double Jeopardy (Scotland) Bill, as introduced, provides that acquittals can be tainted and re-opened where the acquitted person or some other person were subsequently convicted of an offence against the course of justice in connection with the case, or where the High Court judges can be convinced on balance of probability that the accused or some other person has committed such an offence. Given the absence of such a conviction and the general factual background, there seems no reason to believe the World's End case families could derive assistance from this section.

Section 3 allows acquittals to be quashed where the acquitted person makes a confession the panel of the High Court finds to be "credible" on a balance of probabilities (s3(4)(a)); that "that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the acquittal in respect of the original offence" (s3(4)(b)); that evidence exists to corroborate such a confession; and finally, that the judges determine it is in the interests of justice to set aside the acquittal. So what for the World's End Case? To my mind, this is actually the section which is most likely to adduce new evidence capable of justifying a new trial. And when one reflects that all this requires is for Sinclair to credibly avow his guilt, you get a real sense of the unlikelihood we're talking about.

Section 4 contains the Bill's general new evidence exception. Although there is some controversy about the list of crimes to be included, there is no doubt that murder will be on every list as the most serious of all serious criminal wrongs. Section 4(5) makes clear that the Crown can only apply to the High Court to set aside an acquittal once. And not just any new evidence will do. The Crown must persuade the Court that the  novel evidence leaves "the case against the accused strengthened substantially" (s4(6)(a)); that this "new evidence was not available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence (s(4)(6)(b)); that given this evidence and that which was led at that trial, it seems to them "highly likely that a reasonable jury properly instructed would have convicted the person" (s(4)(6)(c)). Finally judges must determine, in all the circumstances, whether it is in the interests of justice (s(4)(6)(d)) to quash the acquittal. While it is not impossible that such new evidence materialises inculpating Angus Sinclair for the murders of Helen Scott and Christine Eadie, given the length of time which has transpired, this seems exceedingly unlikely. All the more unlikely, since we must remember that thirty years passed between the commission of the offences and Sinclair's abortive prosecution for committing them.  This was already a species of "cold case", made familiar by television drama.  With these provisions in mind, return to Morain Scott's letter to the Justice Committee, quoted above.  He argues that the Crown neglected to put evidence before the jury. However, the very fact that he knows what this evidence might be strongly implies that it was available when Sinclair was first prosecuted, and thus, is not "new" for the purposes of this section.

On my analysis, while this Bill may hold out some hope for the Scott and Eadie families, it is a faint, faint hope and it is quite wrong to imply otherwise, as I take Richard Baker regularly to be implying otherwise. This has been pointed out to him on a number of occasions by his fellow parliamentarians, yet he continues to make potentially exceedingly misleading comments about this Bill's capacity to salve past ills and injustice.  Alternatively, if you were making it your main business to have Sinclair re-prosecuted, I'm at a loss to see why Baker hasn't proposed to include a retrospective provision in the Bill that would allow the Crown to apply to the High Court to set aside a judge's decision on passed no case to answer motions and order a re-prosecution.  Although this doubtlessly raises issues under the European Convention, we have previously observed how decidedly blasé some in Holyrood can be about Convention compatibility, particularly in the early deliberative stages on legislation. It is one thing to strive with nerve and sinew to bring an outcome practically about, whether or not, in the final vote, you prove frustrated by the law or a lack of a parliamentary majority. It is quite another to play fake representative heroics with the wounds of others, and raise unreasonable hopes when hopes are faint.

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.

Holyrood Liberal ambivalences...

It is fair to say that many are salivating at the prospect of the Scottish Liberal Democrats being crushed in May's Holyrood election. Having dabbed their maws, various parties are sniffing about for potential disaffected voters to snap up. This is clearly a perfectly respectable stratagem in a competitive political field, and there's no blame in trying to wrestle an advantage for yourself and your political cronies. In that bunfight, I certainly have a partisan interest in the Scottish National Party prevailing. However, I am also vitally concerned with the overall character of the future parliament, the decisions it might make - and in particular the tendencies and temperaments of the institution's various potential majorities.

Take the following public policy issues which assumed a certain prominence since the last election. On higher education, the abolition of the graduate endowment was passed only with the votes of the multi-hued ensemble of the SNP, the brace of Greenies, Liberal Democrats and the solitary Labour figure of Elaine Smith (whether by error or design). On two issues I've discussed extensively before, short term prison sentences and proposals to install a mandatory(ish) minimum for knife possession, a similar poised coalition formed, 65 voting to install a presumption against  prison sentences of less than three months. More importantly to my mind was the 63-61 vote to reject the sticky tawse-fantasies of Tory and Labour members, who wanted to land every soul detected with a stiletto concealed in their garter in prison for between six months and two years at least.

Now, you might suggest that Labour and Tory growls, and "soft on crime" girns are a phenomenon of opposition, a cheap shot, cheaply taken, without much commitment. That is certainly a view some Labour folk have expressed to me. In the comments after Monday's post juxtaposing Richard Baker's remarks with those of his party leader, I noted that one Labour-supporting soul suggested to me that:

"... with the exception of Baker they [the Shadow Cabinet] all know the "carry a knife blah bla blah stuff is all hot air. I think get feel given the sheer number of empty pledges in the Nats' manifesto last time round, they're allowed this one..."

Now, I am perfectly willing to concede that it may be that Baker is simply the blockheaded dunceling whose blithe brand of law and order nastiness is being cunningly employed to front a venal and consciously dishonest Scottish Labour operation. After this post on the subject, I asked the Reverend Ewan Aitken, standing for Labour against Kenny MacAskill in Edinburgh East, for his view. He did me courtesy of responding and responding in a tenor which is surely foreign to his party's justice spokesman. Either way, whether Labour are merely feigning to be prison fetishists, or are actually uninterested in the vaulting prison population, keen only to increase it and fig the consequences, neither redounds to their credit. Let us proceed, therefore, on the assumption that they mean it and would seek to employ any combined majority to fetter judicial discretion and plump Scotland's already portly prisons. In the current parliament, on a number of issues, there is a very slender majority, pursuing a more liberal line. We shouldn't overstate this tendency. The SNP government have consistently brought forward vague, broadly-drafted criminal legislation which in my view, too often errs too strongly on solving definitional problems by resorting to prosecutorial discretion. Concerns expressed at the Committee stages of scrutinising Bills often collapse under the conciliatory assurances offered by senior police officers and procurators fiscal that certain offences would only be used sparingly to sting the real offenders and proper bastards, and the legislation is meekly passed. Paradoxically, politicians are only willing to do so on the basis that the legislation will go substantially unenforced. Incidentally, this isn't a phenomenon limited to Holyrood. Alex Massie notes a similar curious incidence of it in the case of control orders.

We should be cautious about how discretion is envisaged here, and how and why it can be problematic. One interesting thing revealed by popular reactions to the case of H.M. Advocate v. Tommy Sheridan is that the public really don't realise, in general, that discretion about who to prosecute is a structural feature of our everyday criminal justice system and its routine decision-making. Indeed, one can probably say that case selection is actually a necessary feature if we are to have any criminal justice system at all, given the limited resources we are willing to commit to the enterprise. This misunderstanding is aided by a particular version of normative rule of law arguments, citing equality before the courts and envisaging a seamless system of delineated rules that ostensibly removes any leeway from the decision-maker. It dreams of an iron cage in which discretion might be locked away, to operate without fear, favour, feeling. In practice, however, this vision isn't plausible at all - and tends to exaggerate the discretionlessness of applying general rules to particular situations. It is, nevertheless, a political argument one can make. However, it is one which faces particular practical hurdles and to reorganise the state around the principle would be far more revolutionary (and probably less successful in eliminating, as opposed to shifting, discretion) than most who make the argument in its simple form suppose. All that said, I think exceedingly vague laws remain problematic on their own terms, even if discretion is embraced as a necessary, unavoidable feature of decision-making. Both the SNP and the Liberals can certainly claim no distinct virtue on this front, in their scrutiny of legislation. Indeed the absence of any real discourse in the SNP about the liberties of the subject, practically enshrined in a criminal law which avoids over-criminalisation and by dint thereof, the excessive empowerment of police and prosecutors by resorting to vague statutes - this has long concerned me and strikes me as a major political deficiency. 

However, to return to the thrust of the article, on crucial political issues in this parliament, Holyrood's slender Liberal-including majority has been crucial to prevent Baillie Bill Aitken's and Richard Baker's sincere or insincere spittle-flecked penal preferences on the nation. Similarly on the issue of the graduate endowment. I can thoroughly sympathise with popular disgust at Liberal collusion and participation in the Westminster coalition's marketisation enterprises and want of sensitivity to other, vital values. It strikes me, however, those who hope to enjoy unalloyed and untroubled glee about any Liberal collapse in Holyrood - but do not share John Lamont or Iain Gray's conceptions of criminal justice policy, or education - may not find the middle ground of the new parliament terrifically satisfactory.