30 April 2009

Nobody expects the shrieval inquisition!

Shrieval is a nice, curious word. For those amongst you who are not Robin Hood enthusiasts or close followers of Scotland’s busiest courts, it is the adjective associated with sheriffs. If, for example, you are a pulpsome, bitter tongued curmudgeon with a fondness for being physically chastised, and you make frequent visits to a professional woman to assist and facilitate this pastime, these sessions could, reasonably, be characterised as shrieval in nature. Amongst other things.

On which note, I hope those of you who lack my own lawful enthusiasms will forgive one final, brisk legalese reflection in what has been, I admit, a somewhat law heavy week on the blog.

As covered by the Herald today, with a flourish of self-justifying expertise merchantry from the Government here, my favourite bendy and quasi-eloquent Cabinet Secretary, Kenny MacAskill has ordained that Sheriff Principal Edward Farquharson Bowen QC should peek over his fellow sheriff’s shoulders, and conduct a review of the procedures surrounding solemn trials in the Sheriff Court. As some of you may be familiar with, Lord Bonomy – now a Judge of the United Nations International Criminal Tribunal for the former
Yugoslaviapublished his report into High Court of Justiciary practice in 2002. Symmetrically, the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 directly emerged from the report produced by the Summary Justice Reform Committee, chaired by Sheriff Principal John McInnes. It is logical, for completeness, that solemn sheriff trials are investigated in a similar way and where needed, reforms introduced.

As if by glad coincidence, I posted earlier on the number of jury trials in
Scotland, wherein one can find the brute numbers of cases Bowen will be tasked to explore. Interestingly, one can detect an obvious trend in the years I cite, of increased rate of activity in the sheriff court, involving jurors.

While I doubt that, in his cycle around the country, the BBC’s John Knox will find many of our goodly courtyfolk who would list this sort of “technical” reform as one of the best things Holyrood has done. How much they influence the lives of ordinary folk who’ve only ever walked by a
Sheriff Court, and never into one, is obviously limited. Other cares are more pressing. Nevertheless, Holyrood makes space – and perhaps even more importantly – time for dealing with these questions which have been, for so many years, neglected by the Westminster Parliament.

Although all of us may well wish to avoid finding ourselves pinioned in the grinding, half-oiled and rusted mechanisms of Scottish justice, having a care for the rights of others is crucial. It must be recalled, again and again, that public systems are creatures of public authorship. And as the old legal maxim runs, qui tacet consentire videtur. In loose translation, "silence gives consent."

Scotland, with so much public power under Parliamentary and Governmental control – with so much of the fabric of Scottish social life and the levers of Scotland's state power subject to their jurisdiction – we, the tacit consentors, are becoming increasingly implicated in the mischief or mismanagement of these elected processes of deliberation and justice.

When you've got all the power you need radically to change processes and ideas which seem odious or desiccated, your inactivity becomes culpable. This idea, I hope, is something Holyrood and the Scottish people are coming to appreciate more clearly. To touch, briefly, on a prior post before rounding this one off - I would suggest willingness to consider Margo's proposals are an expression of this strength - with all of the quivering and discomfiture which real, difficult judgements are attended by. Slowly, but I think significantly, we're learning the possibilities - but also the modesty - which such authority brings.

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