31 March 2010

Sheridan Case III: "...the law's delay"

“For who would bear the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,

The pangs of despised love, the law’s delay,

The insolence of office and the spurns

That patient merit of the unworthy takes…”
~ Hamlet, Act III, Scene 1

Tommy Sheridan knows a good deal about the insolence of office and declaims regularly about what he takes to be the oppressors’ wrongs. That much we all know. Whether he has known the pangs of love – or was scourged by mistresses more mortal than cronely Time – that is a matter for the jury to decide. The Sheridans’ much anticipated trial for perjury – and in Tommy’s case, for attempting to suborn perjury from Colin Fox – also seems testament to law’s delays. Initially, it was expected that the trial would convene in February of this year. Not so, with Sheridan giving his leading counsel, the fantooshly face-furnitured Donald Findlay QC, his jotters last September. We’ll draw a discreet veil over what made him change his mind, and move on without speculation. Sheridan substituted in the less rambunctious Maggie Scott QC, who advised the Court in the following October that “given the interruption of Christmas, the start of the trial in February is wholly unrealistic”. As of this morning, the Court has determined that the 21st of September is the most realistic date for the trial’s commencement, some seven-odd months after the date which was initially mooted. Some of this is certainly attributable to the change in Tommy’s leading counsel. His wife, wee Gail, will be represented by Labour-turned-Tory legal gobsworth, Paul McBride QC.

Moreover, we might also reflect on the significant imbalances in the parties involved. After all, Crown Counsel, prosecuting, lean on a busy network of procurators fiscal, “little elves and sprites to do his bidding”. While disclosure of any evidence gathered is a theoretical mechanism to balance up the competition, defending counsel can still cut an isolated figure among his or her tottering towers of documents, with only a very small train of junior helpers. Let me remind you, this trial is anticipated to take a whopping three months to bring to its final conclusion, with the figure of 180 testifying witnesses being mentioned in the press coverage. With that much legwork to undertake, the pacing defender would develop well-turned cabriole legs in no time. One final point, connected to my recent post on the evidentiary rule requiring corroboration in Scots criminal law. I notice that press reports are quite accurately stressing the novel charge on the indictment – that Sheridan attempted to convince Colin Fox to lie in the 2006 defamation trial. Assuming that Mr Fox himself is the primary source of evidence on this charge – I merely remind you that corroboration will require something apart from Fox’s evidence to make a conviction for suborning perjury competent in law. I enlarged on the proposition when the indictment against the couple became public. The Crown are doubtless well-acquainted with this fact. Thus far, it is no clearer what mysterious piece of corroboration the Crown might have got its hands on. It seems that we’ll just have to lean on our patient merit and wait another seven months to find out.

30 March 2010

Update: SHRC & NIHRC "to defend Human Rights Act"

On the 17th of March, I brought it to your attention that the Scottish Human Rights Commission, chaired by Professor Alan Miller, had come out in support of the Human Rights Act 1998 (surprise, surprise) and against perhaps the most fatuous plank of the ramshackle Tory platform - repealing the Act and replacing it with some sort of "British Bill of Rights and Responsibilities". The whole text of the Commission's statement can be found in my previous post. In a further development, no doubt brought about by Miller scheming away behind the scenery - today the Scottish Commission has been joined by the Northern Irish Human Rights Commission, issuing a joint statement that argues in the name of internationalism and the minimum standards of European human rights law, for the retention of the 1998 Act and against the Tory proposals.

Interestingly, this regional institutional insurrection was a possibility broadly considered in the Justice report on "Devolution and Human Rights", which I've also mentioned before. The possibility of a divergent, devolutionary politics and political approach towards the Human Rights Act was also picked up in this article in the Guardian, with a quote of two from Kenny MacAskill. I'm certainly not suggesting that we should mistake these bodies for the whole corpus and extent of Scottish and Northern Irish opinion, nor that we should accept the Guardian's thesis too readily. After all, we can probably expect the other relevant, UK commissions to take a similar line. That said, these devolved institutional supports may well become important if the freshly convoked Westminster parliament is hung, or for that matter if the Tories whisker into office, with only a clutch of Scottish seats (as is pretty much inevitable). In that position, anticipate Holyrood debates on any proposed abolition of the Human Rights to conclude with fierce, thumping majorities against the Tory proposals. Just the sort of political ugliness and historically resonant "little local difficult" which the slapped-arse baby-face Conservative government, wobbling on its pins like a rum-sodden sailor, could do without. Here is their full statement:

Commissions defend the Human Rights Act

The Northern Ireland Human Rights Commission (NIHRC) and the Scottish Human Rights Commission (SHRC) have today (30 March 2010) issued a joint statement in support of retaining and building upon the Human Rights Act 1998. The statement has been released to inform public debate ahead of the UK General Election of the risks inherent in proposals to repeal the Human Rights Act and replace it with a UK Bill of Rights.

Professor Monica McWilliams, Chief Commissioner of the NIHRC said:

“Protecting the Human Rights Act is an issue of huge importance. Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights. It must not be the starting point for a debate in the United Kingdom. The Northern Ireland and Scottish Commissions are agreed that progressively building upon the foundation provided by the Human Rights Act is the only acceptable basis upon which to have a debate.”

Professor Alan Miller, Chair of the SHRC, said:

“Any government of the United Kingdom should uphold and defend the highest standards of international human rights obligations and not seek to reduce their influence in any way. The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.”

The joint statement reads:

1. The Northern Ireland Human Rights Commission and the Scottish Human Rights Commission agree that the UK Human Rights Act 1998 should be ring fenced and built upon as part of further progress in the promotion and protection of human rights within and across all jurisdictions including devolved, excepted and reserved areas.

2. Both Commissions agree that any process towards establishing a Bill of Rights and Responsibilities, or other similar statute, for the UK or any of its constituent parts, which seeks to repeal the UK Human Rights Act 1998 in part or whole would be retrogressive in terms of the promotion and protection of human rights. Both Commissions agree that they will oppose any such process.

3. Both Commissions agree that the above positions are consistent with adherence to the UN Paris Principles and the responsibilities and mandates of both national human rights institutions.

29 March 2010

*Exclusive* Those Committee names Holyrood rejected...

Man is a naming animal. In the Old Testament book describing the world’s birth, Adam has hardly drawn his first breath before the Creator processes before our first father “every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof” (Genesis 2:19). The Qur’an tells it differently, however. In the Sura Al-Baqara, Allah “… taught Adam the nature of all things; then He placed them before the angels, and said: ‘Tell me the nature of these if ye are right.’ They said: ‘Glory to Thee, of knowledge We have none, save what Thou Hast taught us: In truth it is Thou Who art perfect in knowledge and wisdom’” (Verses 31 & 32). For those of us less keen on God-allotted truths, we might feel more resonance with the Christian history of Adam, when it comes to the choices our own naming enterprises. Unlike Adam, we have a wealth of history and tradition to draw upon in affixing our labels to our environment. That being said, its precisely this richness and manifold options afforded to us which make our public choices about which history to highlight, which self-reflection to sanctify, which archetype to claim worthy of our curiosity. Although bigging up the power of naming can sometimes seem a bit hysterical, its daftness to deny that naming is a mere insignificance, just a common sense selection which tells us nothing about the sort of history we're choosing to remember, one eye always on the present and its interests.

On a simple level, having decided to follow Kenny Gibson’s suggestion to name Holyrood’s six committee rooms, the parliament was simply determining on a shorthand reference for particular familiar spaces, and allotting a smidgeon of their capital to the provision of a clutch of shiny door name plates to so describe. But it was also doing more than that. When the Parliament’s Corporate Body (which consists of MSPs Tricia Marwick, Mike Pringle, Alex Fergusson, Alex Johnstone & Tom McCabe) rubber stamped Gibson’s thoroughly reasonable suggestion, I argued that it is crucial for us to recognise that “…history is not gender-innocent in this respect, simple memory and uninterrogated prominence not to be trusted. Women’s absences and silences in Scottish history are progressively being addressed and their lives and contributions uncovered by the work of members of Women’s History Scotland and others, in academic garrets across the country.” The point can be extended beyond questions of gender, to encompass the whole list. Kenny Gibson proposed a list with no Scottish women, including:

1. James Clerk Maxwell

2. Alexander Fleming

3. Adam Smith

4. James Watt

5. John Logie Baird

6. William Wallace

As Hythlodaeus has already brought to our attention, the final list of names chosen to adorn the six Committee Rooms by Holyrood’s Corporate Body are:

1. Robert Burns

2. Mary Fairfax Somerville

3. Sir Alexander Fleming

4. James Clerk Maxwell

5. Adam Smith

6. David Livingstone

Gibson clearly had his nose pressed pretty close to the tea leaves, or was able to make a pretty perspicuous window into the souls of the Corporate Body, four of his six suggestions ultimately adorning the doors of Parliament’s smaller chambers. One woman out of six is hardly impressive. A fact vigorously pointed out by one of the goodly Scottish Labour MSPs, Malcolm Chisholm, in the pages of his local Edinburgh Evening News. Quoth Chisholm, “I think it's a disgrace having only one woman. What kind of message does that send out about the Scottish Parliament and Scotland?” Moreover, the Edinburgh MSP has tabled a motion in parliament, arguing, quite rightly, that …

“… the Parliament is seriously concerned about the inclusion of only one woman among the six Scots selected by the Scottish Parliamentary Corporate Body (SPCB) for committee room names; believes that this reflects a one-sided and distorted view of Scotland; welcomes the fact that a hundred exceptional Scottish women are recorded on panels near the entrance hall of the Parliament; notes that other names of Scottish women were put forward for consideration for committee room names, and calls on the SPCB to reconsider the matter in recognition of the very many great Scottish women whose contribution, like that of Scottish women in general, is every bit as important and distinguished as that of men.” (Motion S3M-6080)

For myself, I suspect that the deciders struggled with the (limited number) of women proposed precisely because they lack the prominence of their male alternatives. In this sense, the fact that only one woman was honoured is a factor of the lack of attention paid to the history of Scottish women, while also replicating and reinforcing the tendency.

The Holyrood press release, announcing the decision, referred to the “170 nominations put forward by 45 MSPs” which the Body considered. Being a curious creature, I wondered who the rejected 164 might have been. With the gracious assistance of parliamentary staff, I’m able to bring you, I think exclusively, the 76 names which I understand were considered by the Parliamentary Corporate Body. The 170 nominations referred to can be explained by doubling, tripling and mounting multiple suggestions of the same name. Many of those wished-for are partisan preferences, readily attributable to particular tribes of our tribunes. The late departed Bashir Ahmad, Winnie Ewing, George Younger, James Maxton, John Smith, Jo Grimond. Some sports enthusiasts clearly exercised their fawning muscles by suggesting, faintly ludicrously, that one might be called the Sir Chris Hoy Room, or for rugby fans, after Alan Lawson. Interestingly, MSPs also indulged in a spot of local caballing, some of them proposing places and landmarks as well as people. Berwick, Edinburgh, Solway, the Tweed, Na h-Eileanan Siar, (The Western Isles) Shetland and Orkney were all the subject of deliberation. For the pious, a small congregation of saints gathered, including the Sainted Margaret, Columba and Magnus. For literary fans, there were many of the old familiars. Alas, the Jacobites were unable to scrounge up much parliamentary support, the lonely figure of Flora MacDonald alone in the list, emblematic of that particular strain in Scottish history. Flora constituted one of the only twelve women ruminated upon by the Corporate Body.

You will undoubtedly detect different tendencies in this long list than I. Without further ado, here was the full list of nominations that Holyrood was working from:

1. Bashir Ahmad

2. Alan Armstrong

3. John Logie Baird

4. J M Barrie

5. Alexander Graham Bell

6. Henry Bell

7. Berwick

8. Jim Boyack

9. Mary Brooksbank

10. Robert the Bruce

11. Robert Burns

12. Andrew Carnegie

13. Saint Columba

14. Sir Arthur Conan Doyle

15. Brian Duncan

16. Rev Henry Duncan

17. John Boyd Dunlop

18. Edinburgh

19. Winnie Ewing

20. Alexander Fleming

21. Andrew Fletcher of Saltoun

22. Patrick Geddes

23. Robert Bontine Cunninghame Graham

24. Sir Samuel Greig

25. Jo Grimond

26. Jane Haining

27. (James) Keir Hardie

28. Hamish Henderson

29. Sir Chris Hoy

30. John Hume

31. David Hume

32. James Hutton

33. Elsie Inglis

34. John Paul Jones

35. John Knox

36. Alan Lawson

37. Jennie Lee

38. David Livingstone

39. Charles Rennie Mackintosh

40. Sorley MacLean

41. Kirkpatrick Macmillan

42. Chrystal Macmillan

43. St Magnus

44. St Margaret

45. Mary Queen of Scots

46. James Maxton

47. James Clerk Maxwell

48. John Loudon McAdam

49. Hugh McDermid

50. Flora McDonald

51. Bill Mclaren

52. Bob Mclean

53. John McLean

54. Thomas Muir

55. Prof. David Murison

56. Na h-Eileanan Siar (The Western Isles)

57. John Napier

58. Orkney

59. Robert Owen

60. Marion Reid

61. Sir Walter Scott

62. Shetland

63. James Young Simpson

64. Mary Slessor

65. Adam Smith

66. John Smith

67. Solway

68. Mary Fairfax Somerville

69. Robert Louis Stevenson

70. Thomas Telford

71. Robert William Thomson

72. Tweed

73. William Wallace

74. James Watt

75. Robert Watson Watt

76. George Younger

28 March 2010

Review: ♫ Wee three kings of Caledon-ia ♫

Wee three kings of Caledon-ia;
Speeches make as gloopy as tar:
Drab and dreary, dour and weary
Pretending that we’re par.

~ Quest of the Magi, adjusted for Scottish Labour Conference

Iain Gray didn’t strike me as terrifically Zoroastrian when I first saw him on the telly. Certainly, he dresses less well, less colourfully. It is hard to imagine him mounting a camel.

I count it one of life’s satisfactions that I’ll never (except prompted by some mischievous Satanic intervention) have to hear him mutilate the word ‘myrrh’, which I’ve no doubt he would exhale through clenched teeth, in his typical Tetanus jaw-tight phrasing. Few would mistake him for one of life’s Wise Men. Yet taking in yesterday’s Scottish Labour Conference in
Glasgow’s Science Centre, the comparison seemed to me striking. Gordon Brown, Jim Murphy and Gray himself toddled in succession onto the stage, the three wee kings of Caledonia. I imagine Gray must hate these Conference moments. Even if we credit him with an admirable modesty and the want of vanity, strategically, he must sense that his mere membership of the Scottish Labour high heid yin delegation makes him appear like a second or third fiddle. Or to put it most crispy, it doesn’t style him as first violinist, all be upstanding, whoop, whee, huzzah! This, in clear contrast to Alex Salmond, who plays his King Herod in glorious isolation, with all the puff and flummery of lonely leadership and First Ministerial airs. There is no doubt about whose gurning phizog is lashed to the party’s prow. In Scottish Labour, by contrast, both Gray and Murphy are like breasts hanging from Gordon Brown’s mermaid figurehead. They dangle pendulously in front.

Some of our Labour colleagues might well suggest that this difference of tone is all to the good – the people’s party is no personality cult, they might argue. Although I’m no fan of misplaced yearnings for authoritarian leadership, I don’t think the objection can be disposed of so easily. It seems to me simply the case that Gray is diminished by not being exalted at these party gatherings, and that this magnifies his smallness in the public consciousness. Which on any reading, can’t be much of a support come 2011 and the fresh round of elections to Holyrood. Although the BBC cut away from Gray’s speech before he had rounded it off, I’m disposed to be far more generous than our public broadcaster. His whole address can be read here. I just wanted to pluck out an issue or two for special comment, ridicule or emphasis. Firstly, Gray reiterated a now familiar Labour narrative, post 2007. Lingering on political recovery, on rehabilitation, of admitting past hammerings. In particular, however, I wanted to stress the Gray twist of self admiration with which he seasoned this homely dish.

“Eighteen months ago when you elected me leader, times were certainly difficult and perplexing …We were in opposition in Holyrood, on the back foot, without a leader, trailing in every Scottish poll. We had just lost Glasgow East to the SNP. It was hard to see what the opportunity was.”

He goes on to traipse through Glenrothes and Glasgow North East by-elections, arguing that Labour had to “find and hold our nerve”, to “rededicate ourselves anew to our core purpose” – but crucially, that they’ve now “walked that long road back together”. The emphasis in his first section is I’d suggest, significant. In the media, Scottish Labour’s “resuscitation” – or its veering away from the brink of total oblivion – has been regularly imputed to certain strategic decisions made by a long and lean Secretary of State for Scotland – crucially not Gray. By connecting the two themes, his election and Labour successes – the party’s Holyrood leader seems to be making a pitch about his own role and importance, at the expense of Mr Murphy. Squabbling over who gets to hand over the gold, perhaps. “I don’t want the frankincense, it smells funny!” It strikes me as highly improbable that he mentioned his own investiture simply to provide a bit of background and fill an extra 30 seconds of time. This looks like internal elbowing for position.

The main thrust of the next section seemed to be that Alex Salmond is the Tory Word Made Flesh amongst us. According the Gray, there are any number of things “we don’t have to imagine” about the Conservative Party and David Cameron. Despite all evidence to the contrary, Gray theorises that the SNP secretly wear blue knickers – and that if the Maximum Eck peeled off his paunchy curry suit, a resplendent and coiffured Cameron would emerge. His sickly, sticky fantasies include the suggestion that:

“We don’t have to imagine what happens when you have someone in charge who doesn’t care about Scotland’s defence contracts. Alex Salmond wants Scotland out of Britain and doesn’t care if that means thousands of jobs come out of Rosyth, Faslane, Kinloss, Lossiemouth, Leuchars and the shipyards of the Clyde.”

There is at least something rather inconsistent here. How can it be the Salmond Slump, if this is a global recession? How can Gray contest the idea of a London Recession by deploying worldwide economic arguments, only to get a thrill of enthusiasm for local politics and pile the blame on Salmond’s shoulders? What is more, I think we can all agree that nice school buildings, with good facilities are a good thing, something we can support. All of the usual objects and platitudes of shapeless Labour speeches – fairness, social justice, producing kids who can read and write their names, better hospitals, that folk should be able to work and achieve the means to secure paid employment – everyone will likely be able to pledge him or herself to some conception of the importance of these features of our public life and the provisions of our politics. Certainly, people will disagree about what is just and fair, and why. However, we should also bear in mind that the questions of how to bring about these policies and how best to pay for them are also substantial questions of fairness and justice. The two are not distinct. I can understand the thrill of irresponsible politics, the promise of bottomless jails, of endless indulgence in PPP cost-deferring and cost-mounting, peddling false pictures of the powers of Scottish ministers – but we should resist the temptation. That said, lets end on a gentle, mirthful note. Said Gray, no doubt all a’sparkle:

“On Thursday Alex Salmond called me Jim Murphy’s placeman. He was probably up all night crafting that brilliant rapier like riposte. But it is a bit rich coming from the man who would be David Cameron’s doorman.”

One of the features of a guilty mind is that it sees everywhere and in everyone the expression of its own sins. This from Gray, a man whose every attempt at gay wit and repartee – including the present jibe – bears the unmistakeable whiff of the lamp, even without the enhancements of his gluey, spiritless delivery. To whit, see Gray’s suggestion above that we should Forget the Celtic Lion, now Alex Salmond is the Celtic Kiwi. Frankly, I’ve no idea quite what this metaphor denotes. He is flightless? Cowrin’ and timorous with nocturnal habits? Surely not fluffy and cute? Or is Gray alleging that the Māori believe the Maximum Eck to be under the protection of Tāne, God of Birds and Forests?

24 March 2010

"I wasted time, and now doth time waste me..."

I wasted time, and now doth time waste me;
For now hath time made me his numbering clock:
My thoughts are minutes; and with sighs they jar
Their watches on unto mine eyes, the outward watch,
Whereto my finger, like a dial's point,
Is pointing still, in cleansing them from tears.
Now sir, the sound that tells what hour it is
Are clamorous groans, which strike upon my heart,
Which is the bell: so sighs and tears and groans
Show minutes, times, and hours.
~ William Shakespeare, Richard II.

That is the pretentious way of saying that I'm now paying for time I've wasted with the impending vengeance of a deadline that ought to be observed. Hence, anticipate a quietish week of blogging from yours truly.

There have been interesting things going on in Holyrood's Justice Commitee, however, which I'll just essay in brief for now. Yesterday, knife campaigner John Muir and Chief Constable David Strang, both of whom I've mentioned before, gave evidence as part of the Committee's Stage 2 work on the Criminal Justice and Licensing (Scotland) Bill. Predictably enough, the primary issue discussed was the respective Labour and Tory schemes to impose mandatory(ish- but discretionary, the mind boggles) prison sentences on those convicted of carrying offensive weapons. Little time was spent on the distinct merits or dis-merits of the proposals as distinct from one another - 6 months minimums, or 24 month minimums. Instead, the discourse largely broke down along the lines of those who supported any mandatory(ish) legislative provision, and those who didn't. The very real monetary implications of the proposals were also left, largely unexplored. That said, John Muir's evidence had a sociological interest quite separable from his concrete submissions on knife crime, to which I'll return later in the week when I've a minute or two to spare, to write up my argument. As a taster, it has to do with Muir's presence as a sign of contradiction contrasting with the more usual characteristics of Holyrood's policy engagement through its Committees, and how class and professional capital is implicated in the sections of the Scottish population with which the institution chooses to entertain discussion.

22 March 2010

Hanging with Frank in double jeopardy...

Did you know that, generally speaking, a confession is insufficient evidence in Scots law to bring home a conviction? A natural outgrowth of the evidentiary rule requiring corroborating evidence of the essential elements of the charge, if the only thing the prosecution and police can produce is the accused’s own admission, the charges against him can’t be sustained. The primary exception to this originated in the case of Peter Manuel. A serial killer, Manuel, who was dubbed the Beast of Birkenshaw, was hanged in HM Prison Barlinnie in 1958, convicted of killing eight people across the West of Scotland. He confessed to the police of his day, but crucially, demonstrated detailed knowledge that theoretically only the killer him or herself could have possessed (if we rule out the plausibility of hovering spirits informing particularly select psychics about their haunts). Bodies were discovered on the basis of Manuel’s directions. In these circumstances, said the Court, the confessions were self corroborating.

This arcane scratch of law and crumb of melancholy history came to mind, reading the Scottish Government’s remarks promising an imminent consultation on reforming “double jeopardy”, or to be more Scots about it, the rules on having “tholed your assize”. For those of you with a horror for such cavilling and disputatious legalisms as are sure to follow, further to the reference to Peter Manuel above, I found this charming, flinty little 1997 documentary entitled Hanging With Frank which is a portrait of Barlinnie prison’s execution chamber and a man that worked there in the 50’s”. Frank is a character, the dignified embodiment of a particular sort of excellence, full of workman’s virtue and pride in his labours, however dismal and morally questionable they may appear to those of us opposed to capital punishment. If you’ve a quarter hour to spare, its an interesting little window into a spent social world which has now collapsed into itself. For those of you with hath stomach to this fight of legal detail, lay on!

The Scottish Law Commission’s Report on Double Jeopardy proved a comparatively indeterminate enterprise. Kenny MacAskill’s news release is full of familiar (and largely fatuous) rationalising metaphors, the blubbery Whiggish stuff trotted out whenever law reform is contemplated “… updated for the 21st Century… modernising … fit for the 21st Century … in this day and age … clear direction of travel … reform needed…” What is broadly proposed is to “keep” the rule, but introduce exceptions, sanctioning fresh re-prosecution. “Can’t be retried” to be replaced with a “can’t be retried unless…” The consultation is on the exact scope of this ‘unless’. Some potentially significant language here. Quoth MacAskill, it shouldn’t be possible to gloat about your guilty post-acquittal. Nor should we constrain ourselves where “new evidence emerges which shows the original ruling was fundamentally flawed.” I assume he has in mind here, the subsequent imaginary case he alludes to – where tampering, corruption or intimidation seem to be implicated in an acquittal. He says that “it should be possible to have a second trial”.

Notice the language. Will this mean some sort of restriction on the exception, to one new proceeding? What about re-trying a retrial based on new evidence not available at the first retrial? We might be talking here, not about second trials, but thirds, fourths, fifths. Equally, what about evidence which is not lead at the first trial. We can talk about ‘evidence coming to light’ – but which light is it? If the prosecution have a piece of evidence but don’t enter it into evidence in the first trial, can this be thought of as ‘coming to light’? Could it? Should it? There is no specific limitation mentioned on types of offence where having tholed your assize – you would be faced with another. Should retrial, would retrial be available for all cases of acquittal, if one of the exceptions envisaged are made out?

Reference is made to the World’s End Murders. Its important not to let our critical engagement with the proposal become captured solely and wholly by that particular incidence. What about more minor offences? Moreover, detail is low on what the decision-making process would be in terms of commencing such re-prosecutions. Presumably, some judicial permission to reopen proceedings, based on ‘new evidence’, or a confession. The idea of a ‘new confession’ is also complicated, since the bare phrase “I did it” doesn’t necessary denote a confession for the purposes of the criminal law. Law’s idea of guilt and that of the more general moral discourse are certainly connected – but are ultimately separable, one from the other. Would you re-open proceedings and see how the chips fell? A final thought. What about the charge? We can talk about a second trial – but presumably a new indictment could contain a range of alternative offences, perhaps different from the first offences lodged in trial 1. Would this be sanctioned, or would the ‘repeat’ trial have less liberty to change the terms of the indictment? Or if the first trial produces mixed verdicts on more than one charge – some guilty, some not guilty – how to weed out those charges which have been tholed from those we might rethole in new criminal proceedings. This last point is largely a definitional anxiety. But one which we are inevitably going to contend with. Put in short, the proposed reforms (and questions for consultation between 22nd of March and the 14th of June) are the following...

* Whether consultees agree that there should be a new evidence exception

* The test to be applied in assessing new evidence

* What offences a new evidence exception should cover

* Whether a new evidence exception should apply retrospectively.

At least the Cabinet Secretary is making no bones about his own inclinations here, saying “we are minded to legislate at the earliest opportunity’. All of the questions I pose have answers, albeit potentially complex ones. The devil (or the angel) will be in the details. I'll be largely reserving judgement until we've got clearer answers to these questions.

21 March 2010

Review: Eck's speech in Aviemore

Humans are strange creatures. Take public speaking, for example. Timid little things who’d melt if they were forced to open their mouths in front of a small crowd, in relaxed company will cheerfully slam the merely competent orator for his want of spirit. Sportsmen are measured against a parallel, crooked standard. Even if we know we could never return that tennis ball, or survive that tackle, or snatch that soaring cricket ball from the air, we can despise those who stumble, fail, miss. They are more excellent than we perhaps, but that comparison is of no interest in assessing excellence. Each must navigate according to the victor’s lights. Humour is another case in point, where to try to be witty is risky, for the slump-wits in the crowd will devour you if your jibes falter. Although we might regard the hollow man without laughter with his own sort of contempt, the dull thing that knows his dullness is forgiven too much censure. He puts it not unto the touch, to win or lose it all.

Whatever his virtues, Salmond is not a natural static orator. A whiff of domesticity always seems to cling to him, that near-half-present jocularity that seems ill-suited to a lecture’s stolid gravity and the unspontaneous pre-prepared remarks. A harangue, he can do, but it will never been a particularly elegant affair. While he cuffs and clubs his way through First Minister’s Questions, he has the interesting habit of producing compound words in the heat of the phrase. Letters are dropped, syntaxes substituted, he roars and plunders on. The word ‘gusto’ seems to suit the First Minister, ironic mirth shoogling his aubergine-shaped frame, quick with the repartee. All of which contribute to a satisfyingly earthen sort of prowess. It isn’t the Senator, imparting sonorous wisdoms with gravity – or managerial listlessness. I’m not sure if I care for the politics of high inspiration, exactly; folk who clamber up on their soap boxes and then conspire to sound like bishops. It is sufficient to make my point, however, to say that I don’t think Salmond takes to this latter character terribly well. He’s more like one of the venal cardinals of Jacobean tragedy, jovially roving about in his belly-puffed red drapery, clutching a tart and a tankard.

All that being so, I’ve never thought that lectern-clutching speeches are really the Maximum Eck’s thing. Unless he particularly warms to his theme and keeps it brief. He's exceedingly nimble  when speaking spontaneously, but something about prepared remarks seems to douse his rhetorical fire. We can at least be grateful that he wasn’t issued a microphone and ordered to deliver his peroration without notes, shifting from foot to foot like a two year old who needs the toilet but can’t let on. On content, yesterday’s speech read to me as a long essay on Scottish Labour’s lost authenticity – and the now familiar attempt to situate the SNP as the natural successor to those lapsed social democratic values. Labour. The party who brought us into Iraq. A party of ID cards. A party of trident missiles. A party of nuclear power. Take this example. Salmond references Michael Foot. De mortuis nil nisi bonum, certainly – but I’d suggest that to choose to make the remark at all reinforces the notion of a Labour Party which has lost its way:

“Friends, the recent death of Michael Foot, another politician of principle and passion, brought to mind one of his most memorable speeches. He recalled as a child being taken to see a music hall conjuror. The conjuror took a splendid gold watch from a member of the audience, smashed it to bits, and then announced ‘I’ve forgotten the rest of the trick’. Michael Foot compared that to the economic policy of the Thatcher Government of the day. And in those dark days of the Tory recession Michael Foot had it right. The Tory response then left communities devastated and a generation of Scots out in the cold. Today, it is both Labour and Tory who have forgotten the rest of the trick. And they have forgotten the lessons of the past.”

This theme is made far more explicit in his section on Trident.

“A cosy consensus on Trident. The extent of their disagreement is whether we have three new submarines or four new submarines. But we say – no nuclear submarines. No nuclear missiles. No weapons of mass destruction on the river Clyde. Theirs is a consensus on nuclear power. On nuclear dumping. Consensus on the deeply flawed tax proposals from the Calman Commission - proposals that would see a 5p hike in income tax just to see Scotland’s budget stand still. Tory and Labour agree on student fees, punishing taxes on fuel, post office privatisation and post office closures.”

And thereafter, the final section.

“Because after 18 dismal years of the Tories, and 13 dismal years of Labour – Thatcher or Major, Major or Blair it’s always been a case of Tweedledum and Tweedledee. Friends, we remember Labour’s feeble fifty who stood by while the Tories imposed the Poll tax on Scotland. We remember Labour’s lobby fodder who voted shamefully for war in Iraq. Labour MPs who went to London to settle down. Who remained silent as the gap grew between rich and poor. As inequality in this nation reached levels not seen since the end of the Second World War. 13 years to make a difference – an unlucky 13 for too many Scots. Let down by the Westminster machine .And yes, people are raging. But friends, it doesn't have to be like this. With MPs who are champions for the people of Scotland. SNP MPs who will be at Westminster, to stand up for Scotland, not stand up for the system. To protect the people, not the perks. Not to settle down in London but to settle up for Scotland. Scottish MPs who will put our nation first. National champions, local champions. MPs worthy of the peoples trust.”

We can be languid if we like. Say that we are against things in the loose abstract, without lifting a finger to change them. We might repeat bland saws about all parties being the same as one another, and cultivate our private dislike of nuclear weapons and the great death of war through a secular transcendence of the very politics that make these weapons and these wars possible. If you are a Labour voter, however, committed to CND, how can you bring yourself to scratch in that ‘x’ every time? Do you whisper to yourself, tomorrow and tomorrow and tomorrow? If you dislike ID cards, how can you forgive your Labour masters? If you oppose war, how can you slavishly adhere to your warlike chieftains, murmuring increasingly desperately, tomorrow, tomorrow, tomorrow! Peace tomorrow! In England, you might argue that you are ruined by your politics, that you aren’t voting Tory. And find yourself voting Labour to the last syllable of your recorded time, overlooking, ignoring, forgetting. In Scotland, however, you have no cause to cling to the torn and degenerate rags of party. What is the diligent Labour party man’s answer to this? This message – and these urgent questions – seemed to me at the heart of Salmond’s story yesterday.

19 March 2010

Tales from Parliament House Vol. 2 - Army negligence

The grey face of Parliament House, with its Classical flourishes, always felt very Edinburgh to me. Slender sphinxes perched atop its pillared roof, the geometric sunburst stonework arches of its façade, recorded in grey. While in the centre of the Parliament Square, as Robert Louis Stevenson had it in his Picturesque Notes on Edinburgh, a "bandy-legged and garlanded Charles Second, made of lead, bestrides a tun-bellied charger. The King has his back turned, and, as you look, seems to be trotting clumsily away..." Erected in 1685, it is an appalling statue. The Spanielesque Charles II of the popular consciousness is rendered instead in the manner of an equestrian Roman general or Caesar, wielding something which resembles a decidedly plain club of state. The proportions are all wrong. Meanwhile, in composing the dedication chipped across its Craigleith sandstone plinth, the chipper (Robert Mylne, the Kings Master Mason in Scotland) seems to have failed to account for the spatial distribution of his script across the stone's face. His panic to fit it all in seems to mount as the text continues, here narrowly compressed, there inflated and elbowing neighbouring letters impertinently.

Inside the House of course, past its famous roof and hall, the Court of Session goes about its legal business. This week, I wanted to highlight just a couple of jurisprudential items. Firstly, we return to the plueural plaques litigation on the legislative competence of Holyrood's Damages (Asbestos-Related Conditions)(Scotland) Act 2009 and its newest episode. Against the strenous but somewhat Quixotic and desparate submissions of Richard Keen QC (Dean of the Faculty of Advocates and Counsel to the litigating insurers), 11 individuals who are potential beneficiaries under the Act have been granted leave to enter the insurers' judicial review proceedings under the Rules of Court. Functionally, this means that while it primarily falls to the Lord Advocate to vindicate the validity and competence of Holyrood's legislation in Court, the insurers will now also have to contend with the arguments of counsel representing these 11 folk. Coincidentally enough, their advocate is the sometime moonlighting Platonic-Aristotelian analyst, Aidan O'Neill QC. Although the latter made clear he won't be burdening the Court's time by replicating the Law Officers' submissions, between them they should give the chancer insurers a run for their money. And ultimately, I trust, these eleven folk their democratically mandated compensation.

Secondly, I wanted to mention the case of Margaret Valentine v. the Ministry of Defence. The case got some coverage in the Scotsman this morning. Valentine's son, Sapper Robert Thomson, aged only 22, died in Iraq in 2004. He was not killed by enemy fire, however, but was, in the words of Lord Bonomy's judgement "buried and crushed by the collapse of earth within a trench from which he and another sapper were engaged in recovering soil samples." The tragic, miserable facts were these:

[2] Many of the facts are uncontentious. At the time, Sapper Thomson was attached to 62 Works Group Royal Engineers located at Basra Palace. He was instructed by then Staff Sergeant, now Warrant Officer, Craig Lee Dutton to assist Sapper Craig Douglas Price who was tasked by Dutton to excavate a trench or trial pit, in order to obtain soil samples from various depths, using a light wheeled tractor similar to a JCB. These were required in connection with a proposal to build a jetty at the Shatt al'Arab Waterway. The digging was done within fifteen metres of the Waterway.

[3] Dutton described Thomson as a banksman to Price in retrieving soil samples. He was involved simply because he was available. He was to assist Price as well as act as eyes and ears for hazards, for example, any hazard he spotted in the course of executing the work or any person approaching the site. The task involved using the extending arm of the digger, with a bucket or hoe on the end of it, to dig out a trench which would be the width of the bucket (600mm or 750mm, no one was sure) or a bit more, and was in fact somewhere between 600mm and 1000mm wide, to the maximum depth that the digger could go, which was around three metres. It initially took around 30 minutes to complete the task. That involved identifying apparent changes in the soil composition and taking samples and measuring the depth where these occurred. Price operated the digger. He placed the bulk of the spoil to one side of the trench and sufficient, somewhere between a bucket and two bucketfuls, to the other side whenever a change occurred, for the deceased to shovel into a black plastic bag as a sample. When the task was completed, the area which had been dug out was reinstated by backfilling the spoil into the trench. The sample bags were then taken to the headquarters. When Dutton checked them, about half an hour later, he noted that what was apparently the deepest sample was too small. He directed Price and Thomson to go and get another sample at that depth. They realised that they had messed it up and readily went off to do so.

[4] It is not entirely clear whether they simply dug out the original trench again and took a further sample from the bottom, or dug a fresh one nearby. I consider that it does not actually matter in the end of the day, but tend to the view that, at least in part, what they dug out was a separate trench. I shall refer to that further at a later stage in this opinion. When Thomson signalled to Price that they had reached the maximum depth for the machine, Price stopped digging, moved the boom of the unit to the left away from the hole, and placed the buckets onto the ground to make it safe. He then pulled the seat lever to rotate the seat so that he was facing forward in the cab. His back was to Thomson as he began to dismount from the cab on the far side of the JCB from Thomson. By the time he was dismounting, no more than a minute after he had last seen Thomson standing one to three metres from the trench, Thomson was at the bottom of the trench trapped under clay material which had become dislodged from a point in the wall of the trench about one metre down and below. Frantic efforts to rescue Sapper Thomson ensued. Sadly these proved futile. No one saw how he came to be in the trench.

The Ministry of Defence argued that Thomson's presence in the trench was solely his own fault , his death wholly attributable to his own actions - or very substantially caused by the same. If you are interested, you can read the discussion in the case itself. In para [40], having cited particular reasonable preventitative steps, Lord Bonomy held that:

"the failure of the Ministry of Defence to take these reasonable steps to prevent a fall into the trench, the deceased would not have fallen in. That in the circumstances was a breach of the Ministry's duty of care to the deceased at common law. They failed to carry out an adequate risk assessment with the result that they failed to devise and institute a safe system of work for carrying out the task of taking the soil samples. In addition, the workplace was not safe as a result. The Ministry's breach of the duty of care owed to Sapper Thomson caused him to fall into the trench and thus caused his death"

That being so, he awarded damages to Valentine to the tune of £42,000. Knowing next to bugger all about the law on personal injury, I cannot mount a cogent critique or comment on the case from a legal angle. That said, Valentine and her family have my heartfelt sympathies for their loss.

18 March 2010

"Dr Finlay no more..."

There is much to be interested in in the Students in Higher Education at Scottish Institutions 2008 – 09 statistical report. Did you know that Scotland hosts some 279,615 students, of which 137,720 are labouring on their first degrees, or that last year there were 9,935 postgraduate researchers locked away in garrets, sharpening their quills? In 2008/09, the country’s most populous higher educational institution (HIE) was the University of Edinburgh, numbering 24,525, with the University of Glasgow only slightly smaller, with 24,240 students. By contrast, the smallest HIE institution is the Royal Scottish Academy of Music and Drama, with a slim 765 students last year. HIEs account for 82.7% of all students in the country. Then there are the wealth of Scotland’s colleges. Here are a few interesting details that particularly caught my eye, organised by broad theme.


Gender divisions in education prove interesting too. In terms of the total student population (all figures for 2008/09 except where given otherwise), only 43.8% of students are male, while 56.2% are female. Divided into HIEs and colleges, however, shows differences in the gender balance. Of the 231,260 folk in HIEs, 42.6% are male, with 57.4% of students being female. Of undergraduate entrants in 2008/09, 62.2% were female compared with 37.8% male. In brute numerical terms, 34,300 more women than men now study in a Scots HIE. In colleges, by contrast, males make up 49.5% of the 48,355 total, females 50.5%. Divisions by subject also show some striking deviations along gender lines. Focussing on HIEs, take ‘Medical Studies’, which includes subjects allied to medicine, alone with dentistry and medicine proper. A whopping 78.3 % of these students (there are 39,025 of them) are women, men toddling along after them on a mere 21.7%, the lowest % of male students of all subject areas. Dr Finlay this is not. Among students of veterinary science, the proportions are similar. 73.8% of students are female. Female dominance is also clear in education and languages. 76.2% of education students are women, and 67.1% of linguists. Similar figures are replicated in the college column. Contrast this with Science and Engineering subjects. In HIEs, 66.9% of architects are male, 85.5% of engineers, 80.4% of computer scientists, 56.3% of mathematicians. Even in law, with its crusty Old Boy image, basically replicates the average – 42.7% male, 57.3 female. Interestingly, perhaps contributing somewhat to an explanation of the quiet feminine voice in the blogosphere, students of economics and politics elbow the feminising trend, with 56.6% of students being male.


Consider your modal student. In their early 20s, probably? Although most students do fall into that age bracket, the figures also reveal a woof of more complexity, a more many-aged weave. 84,270 students are aged 30+, 44,540 aged 40+ and 4,890 60+. Interestingly, of the 52,695 who are undertaking postgraduate study, only a quarter are aged under 25 with over 50% (27,710) being between 25 and 39 years of age.


The subject of access to education is a post in and of itself, frankly. That said, here are the statistical headlines. The proportion of entrants to HR that come from the 20% most deprived areas in the nation stands at 14.9%, compared with the 19% of the population statistically held to live in those areas. The report uses the language of under and over-representation. In terms of which, 21.7% of entrants at colleges come from these deprived areas, while making up only 7.8% of the intake at the ancient universities.


There are also interesting stories about the international “life of the mind” of these Scots institutions woven through these figures. While 75.8% of students were Scottish domiciled (212,010) with 22,520 (or 8.1%) being English domiciled, some 39,085 students are classified as from being “overseas”. China, for example, furnishes Scottish institutions with 5,130 students, India with 3,975, the United States with 3,230. Ireland is next on the list, sending 2,830 across the waters, followed by Nigeria with 2,505 studying in Scotland. Interestingly, the distribution of participation seems to vary depending on origin and level of study. For example, in 2008-09, 13,850 EU nationals were educated in Scotland. 4,125 of them at postgraduate level, 8,820 on their first degree. Among Non-European students, the pattern sharply differs. Of a total 23,820 international students in 2008/09, 14,075 are in postgraduate study, with 6,690 labouring away at their first degrees. It was, after all, studying in Utrecht which partially enabled James Boswell to quip with feeling and authenticity.

“I am, I flatter myself, completely a citizen of the world. In my travels through Holland, Germany, Switzerland, Italy, Corsica, France, I never felt myself from home.”

Although the fact and its history is hardly understood by many of the students at that Dutch Universiteit, it is not insignificant that their language centre is called the James Boswell Instituut. It is partly through experiencing these institutions that I remain decidedly a nationalist and internationalist, both, without contradiction.