Lord Carloway's right to silence

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

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

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

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

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

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

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

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

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

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

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

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

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

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