Constitutional Law, English Law, Human Rights, Legal System, Politics, Scots Law

Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

Human Rights, International Law

ECHR, international law and Abu Qatada

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election.  Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election.  The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way.  The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges.  Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial).  However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture.  This prohibition has achieved jus cogens status.  Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be.  The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153).  This means that the UK is bound by international law not to torture anyone.  Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law.  Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified.  In the international context it refers to the legal norms that have developed through the customary exchanges between states over time.  It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees.  The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33.  However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT).  Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988.  There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens.  However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured.  Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations.  That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR).  The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT.  The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State.  Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts.  In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does.  There is a substantial body of international law protecting the human rights of individuals.  The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm).  With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities.  Domestically we have the HRA incorporating elements of the ECHR into our law.  It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document.  However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to.  It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT.  If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.

Criminal Justice, English Law, Human Rights, Legal System

More ill-informed codswallop from the tabloid press

The Sun’s “justice” campaigners are out in force again with their ill-informed codswallop which appears designed to do nothing but misinform the public and create fear, alarm and distress.  It’s an absolute disgrace that editors feel at liberty to misrepresent the law in this way.  If a newspaper editor wishes to argue for the abolition of the Human Rights Act 1998 or the removal of the UK from the European Union (note the European Union is a seperate institution to the Council of Europe and it is the Council of Europe who is responsible for the European Convention on Human Rights and the European Court of Human Rights) then that is perfectly legitimate, but they should use legitimate criticisms and not invent it where none exists.

The Sun’s latest ill-informed piece is in respect of the Court of Appeal’s decision in a number of cases relating to the requirements to disclose convictions.  The system of CRB checks was tightened up after the murders of Holly Wells and Jessica Chapman by Ian Huntley.  However, the Court of Appeal found that the present system breaches the human rights of those who have been convicted of irrelevant and minor crimes in the past.

There is, as I have said before, a legitimate public interest in ensuring that those convicted of sex offences against children or who otherwise genuinely pose a danger to the vulnerable in our society are prevented from working with those groups.  However, there is not a legitimate public interest in forcing people to disclose cautions and convictions for the most minor of offences committed perhaps a quarter of a century or more ago.  Most people will remember the utterly ridiculous situation where people who had devoted their life to public service were prevented from standing for election as a Police and Crime Commissioner in England and Wales because of crimes they committed as children (some as many as half a century ago).  It is this disproportionate effect of criminal record checking that has to be addressed; it doesn’t serve any public interest and it certainly doesn’t protect the public.

In this country there is still far too much prejudice against those who have a criminal record.  Once a person is convicted of a crime they are branded a “criminal” and are forever going to be seen as one.  The prejudice actively harms society because those who are determined to become rehabilitated and live purposefully in society find themselves repeatedly hitting their heads against a brick wall when it comes to getting employment.  For many there is no real incentive to desist from criminal behaviour because there are few willing to give them a chance.

Whether you have a criminal record or not; what would the worst season of your life say about you?  Would you want to be forever judged based on the mistakes you made during that season in your life?  I certainly wouldn’t.  I dare say you wouldn’t either; perhaps most of all because it doesn’t reflect the person who you are today.  Why should it be the case for those who have committed criminal offences in the past that they should forever be judged by them?

I’m not talking about those people who genuinely pose a danger to the public.  A person who is sexually attracted to children or has a history of sexually abusing vulnerable adults should not be permitted to work with those groups in society.  That would be putting the public at risk and infringing upon the rights of children and vulnerable adults.  However, we must move to a system whereby only relevant convictions are disclosed.  The fact that a person stole some stuff twenty years ago is entirely irrelevant if in the intervening twenty years they have not been convicted of theft.

The judgment of the Court of Appeal will not lead to known paedophiles getting work in schools; it won’t lead to known abusers getting work with vulnerable adults.  What it will do is ensure that only those with convictions relevant to the work they seek to undertake will be required to disclose them and that the authorities will only be permitted to disclose those convictions which are actually relevant during the vetting process.

Criminal Justice, Human Rights, Politics

Prisons, prisoners and prison conditions

There has been a lot of talk over the last few days about prisons and the conditions within them.  We have seen the traditional tabloid/right-wing mantra of prisons should be tougher and they’re too much like holiday camps.

In Scotland it was suggested that prisoners should have phones inside their cells while in England and Wales the Secretary of State for Justice has said they are looking at the Incentives and Earned Privileges (IEP) scheme; particularly how they could make it tougher.  The former has resulted in condemnation while the latter has resulted in celebration by the tabloid press.

These types of discussions make me angry.  This pandering to prejudice does not help society; it actively harms society.  When talking about prisons and prisoners the terms used are dehumanising in nature: “thug”, “lag”, “lout”, “animal”, “monster” and “caged” are some of the ones I dislike the most.  In order to have a criminal justice system that works we have to proceed on the basis that we are dealing with human beings and not animals.  When we work on the basis that they’re sub-human or animals it becomes so much easier to treat them in a way that would ordinarily be condemned.

There is also a great misconception about prison.  A person is sent to prison as a punishment and not to be punished.  The two are worlds apart and when we recognise that it is prison that is the punishment and not what happens inside the prison; we can begin to think properly about what needs to happen in prison in order to ensure that prisoners are rehabilitated.

The idea of placing phones in each cell is a good one.  It is well known that family contact is important.  Currently there are so few phones in prisons for prisoners’ use that it is not possible to maintain a proper relationship.  Calls are short and there can be significant periods between calls.  The time available for prisoners to use the phone is limited due to the amount of time that they spend out of their cell.  For some it can be a choice between having a shower and making a phone call to their children/parents/partner or whoever else is on the outside.

There is of course written communication.  However, that is still conducted by way of ordinary post.  The time that it takes a letter to get through the system to the prisoner and for that prisoner’s reply to get back through the system it can easily be a whole week.  Visitation is also permitted, but it is also limited by time and numbers.

In other words, the current system isn’t very good at ensuring family contact is maintained.  However, the amount of time that prisoners spend locked in their cell in the evening and over the weekend could be put to better use.  Having phones in the cell will ensure that more prisoners will be able to have better contact with their friends and family on the outside.

Of course, processes would need to be put in place to ensure that the phones are not abused and that is the role of the prison authorities to work that out.  It shouldn’t be dismissed simply because it’s a “perk”.

The idea that prison should be tough is a false presupposition.  For most, the conditions inside of prison play little part in whether they offend/re-offend.  The Conditions outside of prison play more of a role than the conditions inside prison do.  It’s about the community that someone lives in:  if they’re surrounded by people to whom taking drugs and committing crime is normal then that is likely to play a significant part in whether a person begins taking drugs and committing crime.  It’s not the only explanation: people from good backgrounds where drugs and crime is not the norm still commit crime.  However, for those that re-offend after prison the community they go back to plays an important role.

A person can develop a determination to change while in prison; however, upon release the cold hard reality hits them.  They go back into the community from where they came and start associating with the people they associated with before they went into prison: they know nowhere else and know nobody else.  They are then surrounded by all the temptations of drugs and crime that they were before and very quickly they are living their old life again.  That might make people question the sincerity of their determination to change, but it shouldn’t.

Those who have a real determination to want to change should be offered a radical change in lifestyle.  They should be offered the chance to be released into a different location (one which is well away from where they were before prison) and should be placed into contact with people willing to help prisoners on release and who can help guide them through getting a job.  These ordinary people can introduce them to a new community; one where drugs and crime is not the norm.  It’s really an extension of the probation service, but it’s stuff that the probation service doesn’t have the time or the resources to do.  It can be offered to those who are serving both long and short sentences.

I think this kind of approach would radically change re-offending rates.  In order to break the cycle of crime we need to treat people like humans and give them real practical help to radically change their life.  Putting them back into the circumstances they came from is unlikely to really help them change.  Society has to take a greater responsibility for helping break the cycle of crime.  The ultimate decision is that of the offender, but if someone wishes to change then society should get round them and help them to do that.

Civil Liberties, Criminal Justice, English Law, Human Rights

Criminal record checks, Article 8 and fairness

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR.  The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8.  Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one.  It demonstrates a lack of commitment to their so called “rehabilitation revolution”.  Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government.  The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so.  No sensible person is suggesting that this shouldn’t be the case.  However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us.  If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence.  Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives.  There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public.  Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area.  Some of these convictions were40 years old and the individuals in question had dedicated their life to public service.  How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated?  It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past.  It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time.  However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved.  The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence.  The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.

Carloway Review, Civil Liberties, Criminal Justice, Criminal Law, Human Rights, Legal System, Protest For Justice, Scots Law

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law.  The Bill will now be submitted to the Queen for Royal Assent.  It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed.  However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny.  The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill.  It is a shame that this element of the Bill was overshadowed by the second part of the Bill.  Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland.  I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have).  The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial).  The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system.  That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result.  It is just one of many things to have arisen over the last few years that have caused anger.  Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights.  I am not a solicitor and I have not had many dealings with the Law Society of Scotland.  I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints).  However, it has always been something that has intrigued me about the legal profession.  I’m a supporter of Trade Unions and the representative functions that they undertake.  However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body).  That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have.  It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years.  There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two).  It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Carloway Review, Corroboration, Criminal Justice, Criminal Law, Human Rights, Legal System, Protest For Justice, Scots Law

Consultation on safeguards after the abolition of corroboration

On Wednesday the Scottish Government issued a consultation document looking at some of the safeguards that might be needed to be introduced to Scots law when the requirement for corroboration is removed.

I have expressed my views on corroboration before on this blog and I do not intend on getting into that issue in any great detail here; it is suffice to say that I am a supporter of the requirement for corroboration and a subscriber to the idea that if something isn’t broken then there is no need to go and fix it.  However, the Justice Secretary is clear that he wants to abolish the requirement for corroboration and that parliamentary arithmetic means that short of a rebellion by his own backbenchers (unlikely) then he will get his way.  It is therefore essential that everyone engages with this consultation to ensure that the protection for the accused in a criminal trial is not diminished.

Corroboration is a fundamental issue to our justice system.  The rule is not, as the media have been saying, that there must be two pieces of evidence before there can be a conviction.  It is rather more complicated than that, but it essentially requires that there are two independent sources of evidence to support each of the material facts of the case.  It applies in all cases before all criminal courts in Scotland.

The first thing to note about the Government’s consultation document is that it focuses almost exclusively on cases where a jury is involved.  Not everyone in Scotland is tried by a jury and there is no right to a trial by jury in Scotland.  The decision as to whether you are tried with or without a jury rests with the prosecutor (which has to be decided within the confines of certain rules; for instance some offences fall within the exclusive jurisdiction of the High Court of Justiciary where there is always a jury).   The Government’s almost exclusive focus on jury trials means that only those accused persons who are indicted benefit from the additional safeguards introduced post-corroboration.

The vast majority of criminal cases in Scotland are prosecuted on a summary complaint.  This means the cases is heard by a sheriff sitting alone in the Sheriff Court or by a lay Justice of the Peace in the Justice of the Peace Court (or if in Glasgow a legally qualified Stipendiary Magistrate).  There is no jury involved and as such the vast majority of criminal accused persons in Scotland are going to miss out on additional safeguards to reflect the lack of corroboration.

The very fact that the Government has issued this consultation is a recognition by them that corroboration is so fundamental to the justice system in Scotland that to abolish it means that additional safeguards need to be introduced to ensure that the accused is not disadvantaged.  If that is accepted by the Government then it applies equally to summary and solemn criminal cases.  It recognises that a lack of corroboration makes it somewhat easier to convict and that something needs to be done to address the balance to ensure that it is not too easy to convict.

The specific proposals contained in the consultation document are interesting.  The first is to increase the number of jurors required to be convinced by the Crown that they’ve proved their case in order to convict.  Currently, the system permits a simple majority of 8 out of 15 jurors to convict.  The consultation document suggests increasing this to 9 or 10.  I don’t see how increasing it by one or two is sufficient.  Having given it some brief thought I would think that something along the lines of 12 out of 15 would be more suitable.  There needs to be at least 12 jurors for there to be a quorum in Scotland.  If the number of jurors falls below 12 then that jury cannot reach a verdict.  If the number was fixed at 12 this would mean that losing three jurors would require a unanimous verdict.  That doesn’t seem suitable either, so as I’ve given it some thought.  My (brief) thoughts have resulted in a proposal which would see the number of jurors required to convict decrease proportionally in line with the number of jurors available; ensuring that at least three-quarters of the jurors were convinced by the Crown’s case.  That would mean in cases where there are 15 jurors that 12 would be required and where the jury falls to just 12 members the number required to convict would be 9 jurors.

I consider that this proposal is fair for both the accused and the prosecution.  It means that the prosecution always has the same task: to convince at least three-quarters of the jury that they have proved their case beyond reasonable doubt.  A fixed number would mean that in cases where jurors are lost (for example through illness) the crown’s task doesn’t get easier (for example only having to convince 60% of the jurors in one case and 75% in another).  It also avoids unfairness to the Crown because they will not be in the position where they find themselves having to seek a unanimous verdict in one case and a majority verdict in another.

The other proposal in the Government’s consultation is that where a jury fails to reach a verdict that the Crown could be able to seek a re-trial of the accused.  I would not support such a proposal.  It is the Crown’s job to prove a case beyond reasonable doubt.  If a jury fails to reach a verdict then the Crown has failed in that task.  There is such a procedure in England and there have been cases where the defendant has been tried three times before the Crown finally got the verdict it was seeking.  Is this fair?  Should the Crown be able to repeatedly prosecute someone until it gets the verdict it wants?  No, it’s not.  It is simply placing too much power in the hands of the State.  If the Jury fails to reach a situation whereby the required number of jurors cannot be convinced of the Crown’s case the accused should be acquitted.

In serious cases the Crown now has the opportunity of seeking a fresh trial under the Double Jeopardy (Scotland) Act 2011 where certain conditions are met.  If the only reason a person hasn’t been convicted is because of the ineptitude of the Crown I don’t see why the Crown should be able to repeatedly prosecute someone.  It will mean, of course, that guilty people will likely get away with their crime.  However, the solution to that is for the Crown to ensure that they have the strongest possible case before prosecuting someone.  Where the Crown has been unable to secure a conviction because evidence was genuinely not available to them at the time then the 2011 Act permits them to go back to the Court and seek permission to charge the accused with the crime again.  Had the 2011 Act not been passed then there might have been an argument to allow a retrial procedure as proposed by the Government.  However, with the existence of the 2011 Act there is no real argument for it.

The final proposal looked at in the consultation is the question of the “Not Proven” verdict.  I have for along time considered that having three verdicts in Scotland serves little useful purpose and we should move to a system of having only two verdicts.  Derek Ogg QC said on Newsnight Scotland (Wednesday 19 December 2012) that he had been persuaded that we should return to “Proven” and “Not Proven”.  I find this persuasive; although I do consider the arguments favouring “Guilty” and “Not Guilty” to be strong.  I don’t see the role for a third verdict which has the same practical meaning and effect as another.  Unless the third verdict were to mean something different to the aquittal verdict there seems little point in keeping it.  In my experience, what the public consider it to mean bears no reflection on the reality and it could be argued that a third verdict is simply confusing to those without an understanding of the criminal justice system.  Again, I’ve explored my views on the three verdict system on this blog before in detail so I will say no more on the question here.

As I have argued before on this blog it ought to be difficult for the Crown to secure a conviction.  That is not to say that it should be impossible; but the system should be weighted in such a way so as to ensure that the Crown is faced with some difficulty in securing a conviction.  A conviction in a criminal court is more than simply a finding of fact; it signifies that the offender has broken society’s rules and that he/she is deserving of punishment for that offence.  That finding could have a significant impact not only on the accused, but also on their family.  A conviction might result in a loss of liberty or a loss of employment.  Both of these situations might well have a profound effect on the family of the accused who are entirely innocent and will be indirectly punished by a loss of liberty or employment.  The stakes are so high that it is essential that the State cannot easily convict people.

The Government’s consultation is open until 15 March 2013.  I would encourage everyone to respond and engage with it in a meaningful way; regardless of your view as to whether corroboration should stay or go.  The likelihood is that it will go and it is important that properly considered safeguards are put in its place to ensure fairness in our criminal justice system.