9 April 2013

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

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

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

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

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

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

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

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

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

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

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