A Bill for Criminal Letters

"Criminal Letters" sounds like a pot-boiler crime novel, written by one of Agatha Christie's less talented impersonators.  But in Scots law, this evocative phrase has a more precise meaning. The overwhelming majority of criminal cases in this country are pursued by the Procurator Fiscal, prosecuting individuals in the public interest, under the superintendence of the Lord Advocate.

But if Scotland's principal prosecutor declines to pursue a criminal case against an individual, for whatever reason? Scots law leaves the door - slightly - ajar for ordinary citizens to take the initiative against those they believe have wronged them, and to pursue a private prosecution. 

But in order to do so - to lay the indictment, to summon the accused to the dock, and impanel a jury - first, a Bill for Criminal Letters must be presented to the High Court of Justiciary. If senior judges agree that the private prosecution is warranted, they will pass the Bill and the private prosecution can proceed. But if they refuse to issue criminal letters? That's the end of the matter. Case closed.

As you may have heard on the news this morning, at 10.00am in the High Court of Justiciary in Edinburgh, legal proceedings commenced against Harry Clarke, the Glasgow bin lorry driver who lost consciousness at the wheel on the 22nd of December, 2014, resulting in the deaths of six people. Lawyers for Matthew and Jacqueline McQuade and Yvonne Reilly - who lost relatives in the accident - are trying to persuade the court to give them permission to prosecute Clarke for criminal offences, as yet undisclosed. In parallel, the Stewart and Convy families are pursuing criminal letters against William Payne, who was involved in a separate road traffic incident in 2010 which resulted in the tragic deaths of Mhairi Convy, 18, and Laura Stewart, 20. 

The legal argument is set down for two days, Tuesday and Thursday.  Don't expect to hear any real detail about the arguments deployed by the different parties appearing before the Court. Judges have imposed strict reporting restrictions on the case under the Contempt of Court Act.  Why? Principally, the court is concerned with the  fair administration of justice. If criminal letters are granted to either or both of these families, more court proceedings against will inevitably follow.  Judges are anxious that nothing potentially prejudicial should find its way into the media.  

But we can say a thing or two about the general approach the court is likely to take in deciding whether or not to pass these bills for criminal letters. (I've blogged about this in detail last year, but wanted to give you a quick refresher.) In Scotland, applications for private prosecutions only come around once in a blue moon. But past cases highlight key issues which will preoccupy High Court judges this week. The notorious Carol X case from 1982 gives you, perhaps, the clearest sense of how the court will approach the decision and the legal tests involved. For the sake of clarity, I'll focus on the Clarke case only here. But everything I say applies equally to the Payne application being pursued in tandem. 

To secure the criminal letters they crave, the McQuade family will have to persuade judges of four things.

1.  Do the families have "title and interest" to prosecute?

Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an acquaintance. 

The same goes for a private prosecution. Carol X's title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexual assault. But sometimes title and interest may be less clear, depending on what precisely you are seeking to prosecute. The Sweeney and McQuade families have an obvious and overriding interest in the tragic deaths of their relatives. The loss is theirs. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant criminal charges?

Next, the families will have to present the court with sufficient evidence to prove there is a prima facie case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. As with much else about this case, this detail on this is not currently in the public domain. 

3. But are there "very special and exceptional circumstances"?

If these two tests are satisfied, the families will still need to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" and allowing a private prosecution to proceed. That's the test. "Very special and exceptional circumstances." 

In Carol X, there had been a clear and material change in the complainer's well-being and mental health. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual. Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." Does McQuade and Sweeney v. Clarke, or Stewart and Convy v Payne, pass that high hurdle? What makes these cases "special" and "exceptional"? This is the critical legal test. 

4.  And would allowing a prosecution be "oppressive"?

Lastly, the court will almost certainly be invited to consider whether it would be oppressive to allow Harry Clarke to be tried, in the light of the procedural history of the case, and the background coverage it has already received. In Carol X, the two accused - unsuccessfully - argued that "the widespread publicity about this case" in "the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland."

Similar considerations might apply here. The accident in George Square, its aftermath, and the FAI hearings and outcome, have been subject to wall-to-wall coverage in the national and local media. Taking that into account, can Mr Clarke, or Mr Payne, receive a fair trial?

These questions are for the judges of the second division to decide. The case continues.

Bin lorry crash: Matheson's populist move

This morning, Cabinet Secretary for Justice, Michael Matheson, announced that the Scottish Government has decided to extend legal aid to the families seeking criminal letters to prosecute Harry Clarke privately. The precise charges they want to press against him remain undisclosed, but may include causing death by dangerous driving, and fraud. The Crown Office announced it could not support the case against him in January. The final decision on whether or not to allow the case to proceed will now be taken by the High Court of Justiciary, after hearing legal argument. 

What judges will do remains unclear. In law, the families must demonstrate not only that they have a criminal case against Harry Clarke. They must persuade Lord Carloway's court that there were "very special circumstances which would justify taking the now exceptional step of issuing criminal letters at the request of a private individual". I've blogged on these matters extensively before. Here's what Mr Matheson had to say today, in justifying his decision to spend public money on this private action:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

“As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

“In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.  

The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision. 

Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime. 

The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

A few immediate reactions to the decision and the justification given by Mr Matheson for it. Firstly, this is a decision many folk will welcome. Public understanding of what Harry Clarke did and did not do, and did and did not know about his health when he passed out at the wheel in December 2014, remain lamentably poor. Open a newspaper. Talk to your cab driver. Misconceptions are everywhere. But misconceptions can be powerful social and political forces. 

Few people, I think, are liable to be troubled by the idea of bereaved people getting their opportunity to state their legal case in a clear and well-founded way. Even if you think their action is fundamentally misguided -- that the state is putting these families in a position to state it and state it clearly is no bad thing. There is, clearly, a public interest in this case. By giving the McQuaid and Sweeney families the chance to pursue this action without incurring ruinous costs is likely to contribute something to public confidence in the judicial system - win or lose. 

But beyond that, I think Mr Matheson's reasoning for granting the money seems pretty shaky. The first limb of his argument is that this case "raises fundamental questions that have not previously been tested in case law", and therefore ought to be supported. What these questions might be are far from clear.  Having followed this case closely, and scoured through the jurisprudence of Scottish courts on criminal letters, I've no idea what unlitigated fundamental questions Mr Matheson is alluding to.

He also says the Crown decision not to prosecute Mr Clarke gives rise to a case of "unique and special circumstances". But what precisely are these circumstances? Mr Matheson doesn't elaborate, but he must know there is nothing unique, or special, in the Crown deciding criminal cases will not be taken, that insufficient evidence is available, that the public interest wouldn't be served by a prosecution. Cases of this kind accumulate day after day after day - every day - in the offices of procurators fiscal from east cost to west. Disappointments of this kind for complainers are not the exception: they're routine. 

Are all such actions now to be supported from government funds, when complainers disagree with prosecutors? And what about questions of equity? Are all private prosecution bids to secure financial Scottish Government backing? If not, on what criteria? Is it simply decisions which are liable to get Scottish Ministers thwapped on the front pages of the Daily Record which are to attract the support of public money, while would-be private prosecutors in less notorious cases are to be left to fend for themselves? 

The Cabinet Secretary says private prosecutions "should remain exceptionally rare." Deciding to fund this action seems likely to generate precisely the opposite outcome. The fact that folk can be privately prosecuted in Scotland will have come as a revelation to much of the public. Public awareness of the criminal letters route is higher than ever. If you feel the Crown hasn't secured justice for you, and you have a good chance of getting ministers to foot your legal bill, why not pull together criminal letters against someone you feel escaped prosecution unfairly? Why wouldn't you do it? Despite his rhetorical wriggling about in his statement, has Michael Matheson precisely established a precedent with this decision?

Beyond the Scottish Government's stated reasons, the cynical among you will inevitably see the political side of today's announcement. With an election approaching, extending legal aid to these families is an easy choice. In terms of the public purse, the cost of the action is small beer. Tomorrow will no doubt bring positive rumblings in the media, about justice being well served by Nicola Sturgeon's government. 

If, by contrast, Michael Matheson had vetoed the use of public money to support those who lost loved ones in December 2014, you could expect a counterblast of editorial and comment, depicting ministers as closing ranks behind their handpicked prosecutor, slamming the door shut in the faces of victims, of cover ups, skewed priorities and heartlessness. You don't have to be a canny politician to spot - and take - the path of least resistance. And if, in future, a big pile of applicants stick in funding bids for their criminal letters? You can always quietly reject them down the line. The decisions are very unlikely to be publicly reported.

Although today's statement is at pains not to undermine the Lord Advocate's decision not to prosecute Clarke - you also wonder if ministers are hedging their bets here, squaring the families and the media, and subtly distancing themselves from contamination by unpopular Crown Office decision-making. Logically, I suppose, this is the flip side of prosecutorial independence. It's Frank Mulholland's call. If the families lose? Well, the Scottish Minister did their bid. But if, for some reason, the High Court of Justiciary does grant criminal letters against Harry Clarke - today's decision leaves the finger of blame pointing solely at the Lord Advocate, the animus engulfing prosecutors, and not politicians. 

Whether for high minded reasons of access to justice, or the low animal cunning of anticipating public opinion and avoiding the flak -- this is a neat, perhaps cynical, but populist move.

Harry Clarke: "insufficient evidence in law to prove a crime committed"

I've written a greal deal about the legal fallout from the tragic crash in Glasgow on the 22nd of December 2014, which claimed six lives. Regular readers may feel I've exhausted my arguments. I probably have.

But I wanted to add a brief word or two here about today's tidings: that the Lord Advocate has declined to extend his concurrence to the two bills of criminal letters which were placed before him, the one emerging from the bin lorry crash, the second from a separate and sorrowful incident in Glasgow, involving the deaths of two young ladies in similar circumstances to the better known 2014 tragedy. 

First, a technical point. As I explained here last week, this isn't the end of the story for the Sweeney and McQuade families. The Lord Advocate gets the first look at a bill of criminal letters, but he doesn't have the last word on its success or failing. This is reserved for the High Court of Justiciary, which will now presumably hear argument about why the families have title and interest to take Harry Clarke to law, and a relevant indictment against him, which is supported by sufficient evidence. They will also have to persuade senior judges that there are "exceptional circumstances" to justify departing from the general principle that decisions are taken in the public interest by a politically-independent prosecutor, on the basis of the evidence. 

Frank Mulholland will be represented at this hearing, as, presumably, will Harry Clarke. It remains unclear quite how Scotland's senior prosecutor will approach the case. In Carol X, the Lord Advocate of the day felt he couldn't concur with the application for a private prosecution, on the basis that he had sent letters to the two accused, telling them they wouldn't be tried. But Lord Mackay of Clashfern didn't actively oppose Carol X's motion before the High Court in the 1980s. Given his public comments on the case, will Mr Mulholland take the same stance? Can he credibly do so? I have my doubts. 

Explaining his decision today, the Crown Office spokesman explained “the original decision not to take criminal proceedings was made on the basis that there was insufficient evidence in law to prove that a crime had been committed and that position remains unchanged.” 

There is likely to be a public outcry if the Crown vigorously opposes the family's motion, but if this private prosecution goes ahead, that arguably places the Crown's reputation in the greater jeopardy. Public opinion remains in the grip of an understanding of the case which is sharply at odds with the evidence. And a vengeful mood sells papers. Mulholland cannot ride the populist side of public opinion in this case, and keep his prosecutor's soul. He can now only chose the least worst option, from a cynical, public relations point of view. 

The Crown have sometimes struggled to explain their decision in the Harry Clarke case. It is complex. The facts are knotty. The fatal accident inquiry was ongoing. And everyone hates lawyers. I do think these questions of culpability and punishment are nuanced things reasonable people can reasonably disagree about. But there is nothing duller, or more predictable, than the inevitable "lawyers are cold bastards, unlike me with my plain goodhearted ignorance of the actual facts" schtick.

The facts about Harry Clarke's medical condition, what he knew about it, and the very limited consequences of his dishonest, hardly impinge on the public consciousness at all, however much I harp on about them. But there it remains. There is no medical evidence Harry Clarke "ought to have known he was not fit to drive." And even if he had been honest, the evidence shows he would have retained his licence by 2014, after a nominal suspension. These essential have gone unreported in almost every newspaper and broadcaster's bulletin. Perceptions of reality have been shaped accordingly.

This is one of those predicaments where the Crown Office cannot win. They can only do the right thing in the teeth of public opinion. In declining to prosecute Harry Clarke for death by dangerous driving, or homicide, it seems to me that they've only followed the evidence, and done their duty.

Harry Clarke: in the dock?

News this morning that the families of Erin McQuade, and her grandparents Jack and Lorraine Sweeney, have submitted a bill of criminal letters to the Crown Office. The long-promised private prosecution of Harry Clarke has begun. Various outlets have the story, though the precise charge sheet remains a little hazy. 

The Times "understands that Mr Clarke could be accused of causing death by dangerous driving, culpable and reckless conduct, and fraud" but the full text of the proposed indictment hasn't be published. So how is this all going to work? What next? And who decides?

First, let's rehearse the ritual notices. We aren't quite in unexplored legal territory here, but as every commentator is statutorily obliged to point out, private prosecutions come along once in a blue moon in Scotland. This is an unusual procedure, involving unusual and unclear rules, with which even hardened criminal practitioners are unlikely to be familiar. As a result, making predictions about how the court will handle this application is also difficult. This is a case which will very much turn on its own facts. What we can do, however, is say something intelligible about the principles the courts will take into account in deciding whether or not to give these families permission to put Mr Clarke in the dock. 

So how will it be decided? The Lord Advocate gets a first look at the bill of criminal letters, but he doesn't get the last word. Procedurally, Clarke, the families and the Lord Advocate will now appear before the High Court of Justiciary, probably before three senior judges, if past practice is any guide. The court will hear legal argument and will either pass the bill of criminal letters, or refuse it. If the judges pass it, and the families find a mechanism to fund their case, Clarke will be set down for trial on the indictment they've presented. But if the judges struggle to see this case as "exceptional", and refuse the bill, the matter ends there. The long trial of Harry Clarke will be over.

The notorious Carol X case from the 1980s sets out the groundwork of legal rules judges will apply.  First, a bit of background. In that case, prosecutors dropped a rape prosecution, out of anxiety for the mental wellbeing of the complainer. Without her evidence, there was no case. In echo of Harry Clarke's experience, the Lord Advocate then sent letters to the two men, indicating that they would not now be prosecuted for the offence. The effect of these letters was pretty drastic. They deprived the prosecutor of the right to bring any proceedings against either of these two men in court. The Lord Advocate's undertakings couldn't be recalled; the courts wouldn't allow it.

But then? Then, Carol X's mental health improved. She remained determined to prosecute the men who had attacked her, and a private prosecution was the only way around the Crown Office's letters. In view of his undertakings to the two accused, the Lord Advocate of the day felt he couldn't grant his concurrence to Carol X's Bill, but prosecutors didn't actively oppose her action before the court. Some of you may remember the final chapter of this tale. The story gripped the Daily Record for months. Carol X secured her criminal letters from the court. Her attackers were prosecuted, convicted and jailed.

So what about Harry? First thing's first. Given his trenchant remarks after Sheriff Beckett's fatal accident inquiry, there seems like a snowball's chance in hell the Lord Advocate will concur with the families on any dangerous driving or culpable homicide charge. They gave Mr Clarke an undertaking he wouldn't, couldn't and shouldn't be prosecuted. You wonder if, in view of public feeling, the law officers might be tempted to concur with fraud charges against the bin driver, but for reasons I'll come onto in a moment, it isn't entirely clear that the Sweeney family have an interest in punishing frauds committed against other people. The Lord Advocate's view isn't decisive, but the court will surely take it into account. But beyond that, I think there are arguably four key things to look out for in the Harry Clarke case. 

1.  Do the families have title and interest to prosecute?

Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an aquaintance. 

The same goes for a private prosecution. Carol X's title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexaul assault. But sometimes title and interest may be less clear, depending on what precisely you're prosecuting. The Sweeney and McQuade families have an obvious and overriding interest in a death by dangerous driving charge. The loss is theirs. Reckless endangerment too, probably. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems far shakier. It seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant charges?

Next, the families will have to present the court with sufficient evidence to prove there is a prima facie case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. This, I imagine, shouldn't be terribly tricky, depending on the charges laid at Mr Clarke's door.

3. But are there "very special and exceptional circumstances"?

And if these two tests are satisfied? Then the families will have to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" in this case. What are those circumstances? In Carol X, there had been a clear and material change in the complainer's wellbeing. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual.

But here? Here, the crown say nothing which emerged from the FAI surprised them. They knew the extent of Mr Clarke's dishonesty. They understood the evidence about his medical condition. And they concluded that Clarke's actions weren't intentional, and they weren't criminally reckless. Prosecutors maintain that view now. So what's changed? As if to underline the point, today has seen a second bill of criminal letters submitted to Frank Mulholland, involving another motoring catastrophe which claimed the life of two young women in Glasgow in 2010. Sad. Horrific. But "very special and exceptional?"

Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." It is far from clear that McQuade and Sweeney v. Harry Clarke meets that high hurdle at all, whatever charges they hope to bring. On the other hand, this is not the 1980s. The deference extended to the crown office decision-making is not, perhaps, what it once was.  

4.  And would allowing a prosecution be oppressive?

Lastly, the court will almost certainly be invited to consider whether it would be oppressive, to allow Harry Clarke to be tried. In Carol X, the two accused - unsuccessfully - argued that "the widespread publicity about this case ... in the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland." 

Very similar considerations apply here. The accident, its aftermath, and the FAI, have been subject to wall to wall coverage. Much of it has been shrill, accusing, overtly partisan. Inconvenient facts emerging from the FAI which portrayed Mr Clarke's actions in a more sympathetic light received next to no column inches. How many potential jurors know there was no evidence Harry Clarke "ought to have known he was not fit to drive"? Sod all, I reckon. But who could forget "Harry's 170 insults to the dead"? As I've written, time and again, here and elsewhere, Mr Clarke's actions are not admirable. They have had tragic consequences. But this has been an affair of tar and feather. That may weigh with the court.

So will Harry find himself in the dock? Or will he escape criminal liability? Some movement today, but still far, far too early to say.

Judge: victim "condoned" and "acquiesced" in her rape

Lord  Carloway, who allowed the appeal.

HM Advocate v. SSM is a case of rape, and a case of the sexual abuse of children. In May this year, SSM was foung guilty by a jury in the High Court in Glasgow of seven charges. These are summarised in the Appeal Court's judgment this afternoon. I caution you. The details are unpleasant. But understanding the facts of the case is critical to contextualise the anonymous  trial judge's remarkable - and in many ways, appalling - commentary upon them. 

[1] ... The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. 

In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.

An ugly indictment then. What did the sentencing judge make of it? It is difficult to know where to begin with his commentary on the case. With characteristic understatement, the Appeal Court notes that "in his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults. Some of these may be regarded as controversial." "Controversial" hardly covers it. In handing down a five year prison sentence, and in explaining his decision to the Appeal Court, the judge made the following observations.

• Assessing the gravity of the anal rape of AM, "the judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He "considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level."
• He had this to say about the second adult complainer, CD: "CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on 3 or 4 occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate, the judge refers to CD “condoning” or “acquiescing in” the rapes. He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone."
• Explaining the fairly modest sentences handed down for the offences against the children, the judge indicated that he'd had regard to his "impression of the effect of the offending on the children" and "of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved." As the Appeal Court note, the judge "had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children." 

But it as paragraph 11 of the Appeal Court's judgment where we really slip into the jurisprudential twilight zone. Condemning the prisoner as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”, the trial judge decided to share his thoughts with the Appeal Court on a diverse range of considerations:

• In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially non-violent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved.
• The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline. He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.

But Lords Carloway, Matthews and Bracadale were having none of it:

"The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice."

Concluding that SSM "clearly poses a threat of serious harm to the public" and "notably women with young children", the Appeal Court quashed the five year custodial sentence and substituted an eight year prison term and four years of supervision after release in the interests of public safety. It is remarkable - quite remarkable - that any trial judge would treat a note of appeal against sentence as an opportunity for a general meditation on such diverse topics as prosecution policy and jury reactions to complainers. A jury having returned a guilty verdict in respect of all of these charges, it is remarkable that a trial judge would speculate on what might - or ought - to have happened if the indictment had alleged multiple sexual assaults of a different character. 

But it is the attitudes disclosed in the judge's note which are most disturbing. The Appeal Court's judgment relates only sections of this document. But the sections related stand starkly at odds with the hard-won modern understanding that rape is a distinctive and serious wrong. Lord Carloway summarises it well: 

"Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity."

The idea that a victim "condoned" their own rape, or that they "acquiesced" in it - the idea that the "guilt" of victims of child abuse weighs against a more severe penalty being imposed on their abuser - I'm stunned that any judge of the High Court would even contemplate these views, never mind setting them down in writing for senior colleagues, reviewing their sentencing decision.  Just stunned. Wrongheaded, outdated, and wrong, wrong, wrong.

You have the right to remain silent

How does a profoundly deaf man, with no speech and only basic sign language skills, give evidence in court? This was the difficult question undergirding the Court of Criminal Appeal's decision in McDougall v. HM Advocate, published today. Louise McDougall, 24, was indicted in the Sheriff Court, accused of threatening or abusive behaviour towards the 86 year old complainer, and an assault to his severe injury and permanent disfigurement with a fireside implement in his Dundee home. 

In response, McDougall told the police that it was the complainer who first sexually assaulted her and threatened her with a knife. The injuries inflicted on the old man, she said, were the result of legitimate self-defence. It was this allegation which gave rise to the third charge McDougall faced: that she had attempted to pervert the course of justice. The Crown argued this whole story was a tissue of lies and there had been no sexual assault. 

The complainer's evidence was clearly critical to the Crown's case. But how could he testify? It was proposed that the complainer's long-term companion interpreter, Jennifer Ramsay, should facilitate the presentation of his evidence to the court. Ramsay practised as a specialist interpreter in "minimal sign language", and knew the complainer very well.

Indeed, she'd had dealings with him for the last seventeen years, dealings which had only increased after a stroke in the spring of 2013, some months before the incident with the young woman occurred. This proposal was challenged by the defence, who argued that there was a "real risk of prejudice" if someone so personally close to the complainer was permitted to act in court as his sign interpreter and translator. 

Evidence was taken, during which it was revealed that there were a number of alternative interpreters available, but "there had been no attempt by the Crown to seek or to instruct any interpreter other than" Ramsay. Nevertheless, the sheriff concluded that she was "not satisfied that there was a real risk of prejudice" to the accused and a "real risk to the interests of justice" if the complainer's "evidence was not properly interpreted." Ramsay, concluded the sheriff, "was clearly the best person to achieve that." 

You may sympathise with this assessment. Taking the complainer's impairments into account, someone with an intimate knowledge and experience of interacting with him may well be best placed to comprehend, decode and relay the significance of his gestures. But there remained a nagging doubt. Was Ramsay too close to the fray? Too personally involved with the complainer? Even if she did her very best to be cool, impartial, and to interpret the complainer's testimony in an unbiased way, could she avoid human sympathy for the complainer? Even unconsciously?

And as Ramsay herself recognised in evidence, it would not "be impossible for another interpreter to interpret for the complainer so long as that interpreter was able to spend a couple of hours with him beforehand, to become familiar with what was, in his case, required." The Appeal Court thought not. Quashing McDougall's conviction on grounds that a miscarriage of justice had occured, Lady Smith concluded that:

[13] The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant. In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance. The point was not whether or not Mrs Ramsay would in fact be deliberately biased; no one suggested that she would be deliberately biased. Partiality may, however, be conscious or unconscious and a trial can be rendered unfair by the presence of partiality, whatever its source and whether actual or apparent. If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one.  

[14] All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk. The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination. It was a risk which did not, in the circumstances, need to be run.

Appeal judges also revised a Crown motion to grant authority to bring a new prosecution against Louise McDougall - a request which was delined, partly because of the length of time she has already spent in custody, partly because "the Crown were not without fault in this matter", presumably in failing to canvass alternative interpreters.

You can understand the human sympathy for the complainer which may have animated this decision by the prosecution. In submissions, the Advocate Depute argued that "it was important to equip a frail and vulnerable witness so as to enable him to give his evidence" and in view of the complainer's "particular circumstances", the use of a well-known interpreter was justified.

He might also have argued that employing Ramsay was the best way of securing the best evidence from a complainer, for whom communication could clearly be challenging. But this seems ultimately unpersuasive. The Appeal Court must be right about that. In its efforts to accommodate the complainer's needs, the accused's rights and entitlements slipped too far from view.

McDougall is also an important reminder that victim-centric decision-making can risks losing sight of other important aims and values in criminal justice processes, not least that the accused should be tried fairly. There is a presumption of innocence, not a presumption that the complainer is telling the truth - even, or perhaps especially, a complainer whose personal characteristics render them, in the Advocate Depute's phrase, "frail and vulnerable".

This is an all too-human case. You sympathise with the choices made, and why they are made. This was, I think, an all-too human mistake by the procurator fiscal. One that Lady Smith and her colleagues - more coldly seeming, perhaps, at a bit more emotional distance - put right today.

On perjury...

Perjury in Scots law is not lying under oath. Or not only lying under oath. I suspect many folk will be goggling at the news that Andy Coulson has been acquitted of giving perjured evidence in the case of Her Majesty's Advocate v Sheridan. The judge upheld a "no case to answer" submission by the defence on Monday. The news has been embargoed to allow the Crown to appeal against this decision. They declined to do so. Some supporters of Mr Sheridan took the opportunity to get their retaliation in first, under the veil of the Contempt of Court Act. Today, the jury was sent home without giving a verdict. Coulson is free.

Lord Burns held that Coulson's evidence was not relevant to the central issues in the Sheridan trial.  The judicial authorities have published the judge's explanation to the jury, and a longer note of reasons, explaining the decision. 

"After  two  days  of  legal  submissions  last  week  and  having  considered  the  matter,  I  decided  that  the  crown  had  not  led  sufficient   evidence   to   satisfy   me   that   the   allegedly   false  evidence was relevant to proof of the charge in Mr Sheridan’s  trial or to Mr Coulson’s credibility at that trial." 

As Lord Burns explains today, the lie must be relevant, going to the pith and substance of the earlier trial. And establishing that Coulson's dishonest testimony was relevant to the Sheridan case always looked a bit tricky. As far back as 2012, it was a point I made, and a point much more fully explored by the late Paul McConville on his Random Thoughts on Scots Law blog.  Folk now crying "conspiracy" should bear that in mind. This isn't corruption, it is the law. It isn't an expensive legal trick or a loophole. It is a point which any decent defence lawyer would make.

As this blog has consistently pointed out, against considerable misinformation encouraged by the ex MSP and his sympathisers, Tommy Sheridan was not convicted on the evidence of Mr Coulson.  The Crown did not rely on his testimony. Indeed, they disowned it. Coulson was a defence witness, with no knowledge of the key allegations made in the indictment against Mr Sheridan.

Go back to the charge sheet. Even if Coulson lied about his knowledge of phone hacking, how is this relevant to an indictment, alleging that you had attended a Mancunian knocking shop for a companionable evening, had a string of affairs, told your former party comrades about doing so, and lied under oath, in court, in dishonest pursuit of a significant sum of money, about your sojourning, your womenising and your confessions?

Had Mr Sheridan not sacked his lawyers, and conducted the case himself, Coulson would likely not have been called to give evidence. But he did give evidence. And on the evidence, Andy Coulson may well have lied under oath in the High Court about his knowledge of phone hacking in the News of the World. But mark this well: Coulson has not been acquitted of lying under oath today, but of perjury. As Lord Burns concluded today, "not every lie amounts to perjury." Not under the law of Scotland. A strange conclusion to a long case? An outcome which is liable to hold the common law crime of perjury up to public ridicule? Did the Crown screw up in failing to lead sufficient evidence about the relevance of Coulson's testimony?

Expect these questions to grip the media in the coming hours and days. 

Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders. 

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

• Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
• In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
• For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
• Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
• Filming should be subject to robust, clear and comprehensive guidelines.
• Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.

UPDATE

Lady Dorrian's full recommendations can be read here.

Paper Lords & Invented Traditions

In the writing of this recent blog, which I might have paraphrased Walter Scott and called Tales of a (Great)Grandfather, I took another look down the spines of our old bookshelf and turned up Francis Watt's (1912) Book of Edinburgh Anecdote. Including scandal, witticisms, gossip, apocrypha and often not-terribly-droll tales about the various doings of the city's native tribes of doctors, scribblers, painters, churchmen, lawyers and spooks - yeah unto the middle ages - it begins with a chapter on Parliament House and wigged and gowned creatures which roost on both sides of the bench. 

The usual cast are all in attendance. Cantankerous Lord Monboddo, who ardently believed that humans were descended from the beasts of the field, and suspected we had vestigial tails discreetly snipped off by industrious midwives. The caustic polymath, Lord Kames, who immodestly banged out tracts on every subject under the sun, from farming to social development, between his judicial responsibilities in court. And Lord Braxfield, the reactionary, grogblossomed old villain, who presided over the High Court of Justiciary as Lord Justice Clerk, and seems to have felt that a great part of the population would be "none the waur o' a hangin'." Particularly pert young men, with the bad grace to read Thomas Paine to weavers, as the not-terrifically-Jacobinical Thomas Muir learned to his cost. 

But there is a nice section devoted to the practice of investing our High Court judges with judicial titles when they are elevated to high judicial office: Lord this - and now Lady that. As regular readers will anticipate, I don't really hold with this kind of frippery. I mean no harm to the learned Lords and Ladies of Council and Session and Senators of the College of Justice, but I can't see how the modest, democratic tag of "judge" would do them any injustice or disrespect. 

It is one of the cherished but suspect saws of a kind of Scottish nationalism, that acute class-consciousness is an outgrowth of a more English sensibility and that a more egalitarian rule obtains north of the border. If there is anything to that spirit, the practice of dishing out magic names to senior Scottish judges remains untouched by it. But as Watt writes, this established tradition of "paper lords" of the court is historically considerably patchier than its current solidity and taken-for-grantedness suggests. There's also a nice passage, echoing Dr Johnson's splendid story about the touchy proprietor of the Isle of Muck. Vanity of vanities, sayeth the preacher.

"Now, Scots law lords at one time invariably, and still frequently, take a title from landed estate. This was natural. A judge was a person with some landed property, which was in early times the only property considered as such, and in Scotland, as everybody knows, the man was called after his estate. Monkbarns of the Antiquary is a classic instance, and it was only giving legal confirmation to this, to make the title a fixed one in the case of the judges. They never signed their names this way, and were sometimes sneered at as paper lords. Today, where the relative value of things is altered, they would properly prefer their paper title.

According to tradition, their wives laid claim to a corresponding dignity, but James V, the founder of the College of Justice, sternly repelled the presumptuous dames, with a remark out of keeping with his traditional reputation for gallantry. "He had made the carles lords, but wha the deil made the carlines leddies?" Popular custom was kinder than the King, and they got to be called ladies, till a newer fashion deprived them of the honour.

It was sometimes awkward. A judge and his wife went furth of Scotland, and the exact relations between Lord A. and Mrs. B. gravelled the wits of many an honest landlord. The gentleman and lady were evidently on the most intimate terms, yet how to explain their different names? Of late the powers that be have intervened in the lady's favour, and she has now her title assured her by royal mandate.

Once of twice, the territorial designation bore an ugly purport. Jeffrey kept., it is said, his own name, for Lord Craigscrook would never have done. Craig is Scots for neck, and why should a man name himself a hanging judge to start with? This was perhaps too great a concession to the cheap wits of the Parliament House, and perhaps not true, for in Jeffrey's days territorial titles for paper lords were at a discount, so that Lord Cockburn thought they would never revive, but the same thing is said of a much earlier judge.

Fountainhall's Decisions is one of those books that every Scots advocate knows in name, and surely no Scots practising advocate knows in fact. Its author, Sir John Lauder, was a highly successful lawyer of the Restoration, and when his time came to go up there was one fly in the ointment of success. His compact little estate in East Lothian was called Woodhead. Lauder feared not unduly the easy sarcasms of fools, or the evil tongues of an evil time. Territorial title he must have, and he rather neatly solves the difficulty by changing Woodhead to Fountainhall, a euphonious name, which the place still retains."

Coulson's conviction: Sheridan's release?

Guilty. In the Old Bailey this afternoon, the former editor of the News of the World and David Cameron's media henchperson, Andy Coulson, was convicted of conspiring to hack phones after a lengthy trial. If the immediate influx of hits in recent hours is anything to go by, those with an interest in Scottish politics and a decent medium-term memory are asking one question: surely Coulson's conviction throws Tommy Sheridan's conviction for perjury into doubt?

Remember, Coulson was summoned to Scotland to give evidence in Sheridan's 2010 trial. The Tory spinner was specifically interrogated about his knowledge and participation in unlawful invasions of people's privacy. He denied all knowledge of these nefarious practises, under oath. Surely, some folk are asking, if Coulson has gone down today for committing the very offences he denied in the witness box in the High Court in Glasgow, the safety of Sheridan's conviction must now be doubted? It certainly raises the possibility of further criminal proceedings in Scotland against Coulson for perjury. But is this the critical missing piece of the puzzle which will expunge the word "disgraced" from Sherry's biography?

I really doubt it, for reasons I set out at some length in a couple of blogs back in 2011.  The first - critical - and generally overlooked fact is that the Crown didn't rely on Coulson's evidence to convict Sheridan. Coulson was a defence witness, albeit a hostile one.  He was also a witness unable to speak to any of the charges set out in the prosecution's indictment against Sheridan, which the jury found to have been proven. His questioning formed part of the eccentric, implausible and frequently irrelevant defence case, that the former SSP MSP had been framed in a "wide-ranging" "fit-up".

Go back to the charge sheet. Even if Coulson was lying about his awareness of phones being unlawfully accessed, how is that relevant to an indictment, alleging that you had attended a Mancunian knocking shop for a companionable evening, had a string of affairs, told your former party comrades about doing so, and lied under oath, in Court, in dishonest pursuit of a significant sum of money, about your sojourning, your womenising and your confessions? 

Which brings us onto the point I considered in greater detail in this piece back in 2011. What test will the courts apply, in considering the impact of new evidence on the safety of a conviction? On appeal, the High Court must decide whether there has been a miscarriage of justice. A stringent test applies where an appeal against conviction is founded on new evidence - in this case, that Mr Coulson was a fibbing toad with an expansive knowledge of his paper's illegal invasions of people's answer-machines. The appellant must persuade appeal judges that the new evidence:

"... is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice."

In making this assessment, the court must be "satisfied" that the new evidence:

"... is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial." 

Does Coulson's potentially perjured evidence in Her Majesty's Advocate v Sheridan and Sheridan meet these high tests? Did it relate to the "critical issues" of whether Sheridan took himself off down to Manchester to make the beast with two backs, and whether or not he admitted to his SSP comrades that he had done so, and lied in court about it? I struggle to see that it does. 

I'm sure Sheridan is enjoying a prickle of schadenfreude today at Coulson's expense, their positions having been radically reversed. But his interrogation of Coulson on the stand was a politically astute but legally irrelevant smokescreen, summoned up to deflect from the compelling evidence that he was banged to rights and guilty as charged. It didn't persuade the jury back in December 2010. I'm blowed as to why it should persuade anybody else of his innocence now.

Our Constitutional Imagination #1: The Mission

The idea has taken on a quiet sort of momentum. Unheralded, it has become the constitutional common sense. An independent Scotland would have a written constitution, a unicameral parliament elected on a proportional basis, an extensive list of entrenched constitutional rights, including social and economic rights, and strong judicial review of primary legislation, giving judges the power to strike down laws which violate fundamental rights in court. At the periphery, places like Orkney and Shetland might be given more extensive powers of self government, but little in the way of systematic thought has been given to the sorts of government structures which the rest of the country should have, beneath the national level.  

We're racing ahead of ourselves, prematurely closing what should be a more open, imaginative conversation. We know that the Scottish Government propose that a constitutional convention with some sort of populist flavour should be charged with drafting the text.  But how can the people and their representatives make a real choice about the constitution they want, without a sense of the options and the alternatives? I worry that we're being drawn, unwittingly and to little advantage, into a vortex of conservatism, and a constitutional vision for the new state amounting to little more than the Scotland Act plus.

When it comes to the parliament, what are the key advantages and disadvantages of not having a second revising chamber? What benefits might we be forgoing if we carry on without one? What different international models might be borrow from and adapt to our circumstances? The Scottish Government propose to make the Court of Session and High Court of Justiciary collectively our supreme court. Why not consider creating a new apex court, or a distinct constitutional court like other countries elsewhere? What are the arguments on either side? The ability to vindicate your basic rights in court has obvious attractions. But what are the potential downsides and ambivalences?

And beneath the current constitutional consensus, there lurk a whole raft of potential conundrums and disunities. A proportionately-elected parliament, perhaps. But is the current electoral system the best? Against what criteria should the alternatives be evaluated? For example, the additional member system maintains a constituency link, but the d'Hondt method for allocating seats and the current regional structure favours larger parties. Should an independent Scotland fiddle with the system? We might, for example, extend the use of STV from our local to national elections. But that too will involve some compromises, privileging one set of values and principles over others. 

We owe it to ourselves, to our politics, to pause and consider these matters properly. If only to ensure that we embark on building the new nation with a clear understanding of what we're about. As a Yes vote in September begins to look possible, we're going to have to give serious thought to these questions, and resist the temptation to be railroaded into adopting an unsatisfactory basic law by conservatism, simple lack of imagination, or awareness of the alternatives. To that end, over the next four months I'll be writing a series of articles here, touring potential constitutional controversies, exploring the arguments on both sides and gesturing towards some of the informative international parallels which might inspire (or warn) us, as we set out composing our basic law. 

As you might expect, I have views and preferences about many of these issues myself, but the primary function of this Constitutional Imagination series is not to proselytise for particular constitutional causes.  It hopes to serve a more cartographic purpose, mapping some of the alternatives in an accessible way, aspiring to whet your constitutional imaginations, and get the cogs whirring. If Scotland is to have a constitution devised to a significant extent by its people, its people must begin to exercise their minds more seriously about the options.  Through this series, I hope to make a modest contribution towards that goal.  Watch this space.

The googling juror

A few weeks by, I blogged about the experience of being summoned but not balloted for jury duty in the High Court in Glasgow. As you might expect, there were one or two details I couldn't include in that sketch. The nature of the indictment. The involuntarily amusing moment when the first police witness told the court that, on his arrest, the second accused had uttered, spontaneously and unprompted, "well that's it, the game's up".  

While it isn't inconceivable that a talented advocate might offer a persuasive, innocent interpretation of that remark, it isn't the easiest brief in the world. It didn't help that this somewhat ropey-looking character had just been pried from a car crammed with material subsequently revealed to be class A drugs. From the get-go, his not guilty plea didn't look likely to prosper. And so it seems to have proved. Although the Daily Record report is a little unclear, both of the main co-accused have now either been convicted or entered late guilty pleas further into the proceedings, owning up to distributing large quantities of illegal drugs in Dumfries and Galloway and beyond. 

As an unballoted juror, one aspect of the case that was of particular interest to me was the "googling factor". The phenomenon of jurors conducting independent internet research on the accused is one of increasing salience and concern to the justice system.  The first googling juror seems to have been prosecuted and jailed during 2011 in the UK.  In 2013, a juror in England was jailed for six months for contempt of court having googled the accused, discovered his past convictions, and told her colleagues who promptly dobbed her in.  In his opening remarks to the jury in this case, Lord Kinclaven underlined the point several times that the fifteen men and women should not trawl online for evidence of the past misdeeds of those in the dock (or for the matter, of witnesses whose evidence they consider). 

The basic legal rationale for this ban is that jurors should decide the case on the evidence led and tested in court: not on some tabloid hack's biased summary of the matter. With the criminal justice system's repeat players, there's also a risk of disclosing past convictions if jurors go spelunking in the paper record.  Certain clear limits are imposed on the prosecution's ability to lead evidence of the accused's bad character or past bad acts in court. The classic defence of these constraints is that the prejudicial influence of adducing evidence of prior convictions outweighs its probative value.   

Does ten prior convictions for flashing make it more likely that you flashed this particular grandmother in Uplawmoor on or around 2.00pm on Christmas Eve last year? Maybe. But if you knew the person in the dock had this record of public wang-waggling behind him, would you be more inclined towards convict him, even if the evidence adduced by the authorities was shooglier than it ought to be? It's a serious possibility, perhaps even a likelihood, so we try to insulate juries from this kind of information. 

As it happens, the High Court case I brushed against is an excellent example of the importance of putting the fear of god (or at least, of the judge and google) into jurors' hearts. Having been discharged from service, curious, I popped the two main co-accused's names into the search engine revealing - yes you guessed it - several eminently prejudicial press reports of their recent convictions for a rich catalogue of essentially analogous drugs offences.  To be convicted once for dealing heroin in large quantities in south Scotland may be regarded as a misfortune, but twice and thrice? 

Although I probably ought to know better, unbidden, my mind leapt pretty quickly to the conclusion that the pair of them were more or less banged to rights and any explanation they might give would have to be phenomenally good to get them out of it. After a day or two, it seems that at least one of them came to the same conclusion. Little good it will likely do him, mind you, given that a guilty plea at this late stage does nothing to mitigate the costs for the justice system, when no fewer than eight advocates are briefed and ready to perform and the jury has been empanelled and heard evidence. 

Happily, the liberty of these men did not depend on my tainted judgement. But it is a salient example of just how easy, prejudicial and tempting it can be for the lay juror to compromise their objectivity in deciding on the guilt or innocence of folk in the dock.

Jury Duty

"I've been at the sheriff, but no up here before," a low voice behind me said. The South Court of the High Court of Justiciary in Glasgow feels much taller inside than it is broad. The decoration is tasteful, if somewhat faux Georgian in mode: columns and palladian squareness, whiteness, wood, and pale blue.  

The witness box and the advocate's questioning post beside the jury have something of the pulpit about them, though I dare say they see little in the way of preaching.  A bedside digital clock winks out from the judge's bench. Behind him sits the tinny-looking mace, representing the court's royal sanction. Two lions snarl from the wall above him. If they only squint down into the well of the court, this vertical illusion of classical simplicity and order dissolves into jurisprudential clutter: abandoned wigs and splayed lever-arch files, paper piles and jiffy-bagged and labelled crown productions, cast off black robes and the gangling connective tissue of wires and plugs. 

Buzzing around this colossal wreck, our regulars. While the prospective jurors sit, bored and wan in the public gallery, barely daring to move a muscle, and speaking if they speak at all in hushed tones, the macer gossips with the clerk in his crooked white-bow tie. A blazered court official ducks in and out. The advocates saunter around, in and out of the courtroom, idly footering with their files or their wigs, cracking jokes and taking the occasional if discreet squint out across the pooled jurymen and women. 

(It's been a while since I last set foot in a common law court.  Let me just observe from this recent outing: the practice of having advocates and judges wear wigs is patently absurd.  The two bare-headed solicitor-advocates representing the third accused in their gowns looked perfectly respectable. I'm sure their ability to pose pertinent questions was not impaired. Quite how dolling up as a cut-price Marie-Antoinette does anything for the dignity of proceedings is beyond me.  

Indeed, I'm told that primary impact of horsehair on scalp is that it encourages baldness. One wag on twitter suggested that I may not have made the ballot on account of my current, wigly, and rather silly twitter profile. It'd have been interesting to hear the immaculately peruked Lord Kinclaven explain why such headwear would offend the dignity of the court, while the bobbing horsehair of its well assists the proper administration of justice. But I digress.)

The lawyers are not loud in the traditional audible sense, but they comport themselves noisily - as assured folk do in their element. Whatever strange quietening discipline the court exerts on the jurors cited to attend, it doesn't hold for the circle of eight advocates. The whole morning has been characterised by its scrupulously polite assertions of quiet authority over the fifty or so folk, now nervously awaiting the ballot. Like many things we take for granted, jury service is a remarkable exercise in social power.  The simple authority of a letter commands our attendance here and now, and the majority comply.  

Many and most will never have set foot near the High Court before. Palpable nervousness and a hesitancy clings to the people approaching its threshold.  A few seemed to waver outside, like the foreign tourist repeatedly checking that he is on the right platform to catch the train to his destination, despite the fact that its name blazes clearly on the sign in the terminal above him. Like that tourist, many clutch their peach jury citation forms for grim death, like a sort of talisman, irrationally feart they are going to misplace the paper in their last few steps to the door, and feel the full force of the law. Throughout the morning, I am reminded again and again of the peculiar stupidity which seems to take over when you are abroad. It's nervousness, I think, havers born of uncertainty about how it is appropriate to behave and the inchoate fear you'll get it wrong, and slip into calamity.

Having been scanned, and stamped, and ordered from pillar to post, we pool in another tall-ceiling room, rather like a doctor's surgery, but without the convenience of out-of-date glossy magazines with advice on how to lose weight, decorate your home, or please your man. Despite tending by disposition towards earliness, the room is almost full by the time I arrive. The social temperature inside is remarkable chilly, as one might expect: fifty-odd strangers, in a strange place, hardly knowing how to behave. It is also strikingly tense and immobile. A few old hands project an attitude of bored assurance. A wee wifey obsessively turns through the Court's guide to jury duty. Others focus on a novel, or a newspaper. Nobody speaks. We wait, listless and clueless about what is really being transacted elsewhere in the building, or why. When the blazered official appears to hustle us into the court room, it comes as something of a relief. 

"Should we sit down?" a worried looking older lady whispers under her breath. "I guess so", I say, as the public gallery fills. We are met by the informal scene I describe above. The Canadian social theorist, Erving Goffman, used the metaphor of the theatre to help analyse social interactions, in particular the idea of fronstage and backstage behaviour. Curiously, as a prospective juror, you're afforded at least a limited insight into the backstage life of the court room which, with the appearance of the judge, is suddenly transformed into the main stage, in full public view.  Costumes are donned, the informality disappears, and the official roles of participants assert themselves.

The effect reminded me of the Citizens' Theatre's recent staging of Crime and Punishment (which I reviewed here). The curtain was already raised as the audience filed into the stalls. The actors struck no theatrical diorama. We do not first encounter them in character. Instead the ensemble limbered up against the gaunt, bare stage, checked their props, chatted - and at the appointed moment, became Raskolnikov, Marmeladova and so on.  The effect in the High Court yesterday felt similar. 

After a homily from the court clerk, who affably but ineffectively attempted to evaporate some of our anxiety, and the materialisation of the judge on the bench and the accused in the dock, to the ballot.  Where would fate's fickle finger point? Not, as you might have guessed from this blog, at me: nobody's fate lies, even slightly, in my hands.  The fifteen other souls having been empanelled by lot - the indictment against the accused is read - and the court adjourns briefly, to allow the jurors to divest themselves of their things backstage. Those of us which remained still could not leave. If it transpired that one of the selected jurors knew one of the accused or the significant witnesses in the indictment, one of us might still be snatched from obscurity to play our part in the process. In the event, nothing of this sort proved necessary and having been given the judicial nod, we were released.

All of this is done solicitously, of course. The judge and clerk thank us for our participation, and our patience in quietly enduring a process that takes the best part of two hours. But the underlying and explicit assumption of authority over you, to which you submit - you are not yet discharged, do not move - bears it own curious frisson. Inexplicitness marks many and perhaps most of the ways in which social power and discipline is exercised upon us most of the time. Rationally, you know that the judge isn't going to have you transported to Australia for a misdemeanour or a misunderstanding. But the prospective juror's proximity to this unfamiliar dread power, which assert that you are part of its system and unambiguously exercises its authority of govern your conduct, is a remarkable, straightening experience.

The Contempt of Court Act means that social researchers cannot legally do much in the way of jury research. Most people's experiences - evaporate - unrecorded.  But even for those who are not called upon to decide on the guilt or innocence of their peers, the experience of being cited and traipsing through the court processes is an original and strange and intimidating one - a brief but challenging moment of contact with our judicial institutions which, in ordinary life, few of us have cause to interact with.