Category: Legal System

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.

Judges unite in support for retaining corroboration

Yesterday the Senators of the College of Justice, excluding Lord Carloway, published their response to the Government’s consultation paper arising out of Lord Carloway’s report into reforming Scottish criminal law and practice.

Lord Carloway was asked by Justice Secretary Kenny McAskill MSP to investigate and report the ways in which Scottish criminal procedure could be reformed. This followed the UK Supreme Court’s controversial decision in the case of Cadder V HM Advocate. That case, as I’m sure readers will know, held that the Scottish practice of detaining suspects without access to a lawyer breached their article 6(1) right to a fair trial. As a result emergency legislation was introduced to the Scottish Parliament which provided for the right of suspects to receive advice and representation from a solicitor while in police custody. Lord Carloway’s report considered some of the issues that had arisen as a result of that legislation; issues which had not been properly considered because of the speed at which the Government pushed the amendment through Parliament.

The most controversial aspect of Lord Carloway’s report was his recommendation that the ancient requirement for corroboration be abolished. Since the publication of the Carloway Review; the Justice Secretary has made his position clear on the matter (that he supports Lord Carloway’s recommendation) and both the Lord Advocate and Solicitor General have gone into a political drive in support of its abolition.

Much concern about the proposal of Lord Carloway has been noted since the publication of his report. Many in the legal profession have come out in support of keeping corroboration and referring to it as an essential safeguard. Some have suggested the desire of the Government and the Crown to abolish corroboration is about trying to making it easier for the Crown to obtain a conviction. Others have suggested that the abolition of corroboration wouldn’t be a bad thing, but that other changes would be necessary to ensure that the right of the accused to a fair trial was not placed in jeapordy.

For what it is worth I am of the opinion that corroboration is absolutely essential to the criminal law in Scotland and that any attempt to abolish it would likely have severe consequences for the accused. I am also of the opinion that the move to abolish corroboration may, in part, be supported by the government with a view to increasing the number of convictions the Crown can obtain. That, in my view, would (if indeed it is part of the motivation) make it a very bad idea because it distorts justice (see this earlier post from me on Justice published on this blog).

The consultation response from the Senators of the College of Justice provides a glimmer of hope for the continued existence of corroboration in Scotland. All of Lord Carloway’s colleagues have united in support for corroboration leaving him on his own among the senior judiciary in Scotland. The weight and authority of the Senators should also cause the Justice Secretary to reconsider his position on the future of corroboration. When almost all of Scotland’s senior judiciary (who are responsible for upholding the law) you certainly be foolish to ignore them.

In the judge’s response to the consultation they state:

In our view, it is often difficult to assess the true facts on the basis only of the evidence of one witness. A witness may be credible and plausible, yet not be telling the truth (or the whole truth). The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.

There is little to say about this submission from the judges. It will always be the case that a case will be stronger the more there is to verify the evidence. The judges make a good point that simply relying on one witness is not particularly helpful. As they state a witness can appear as though they are a reliable witness, but the truth of the matter is that their version of events are not an accurate reflection of what happened. They state that corroboration acts as a major safeguard against miscarriages of justice. This is something that I would agree with entirely.

We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial: knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist).

This is an interesting point and is certainly one that is echoed by the few police officers I have spoken to. They state that it wouldn’t necessarily be about being lazy, but it would be a sensible way to use resources (particularly at a time when resources are under pressure). Of course, in the most serious or complex investigations there is unlikely to be much change. The very nature of such investigations is that corroborative evidence would still likely exist. The danger exists in the less complex and serious investigations. While they might be less complex or serious in terms of the gravity; a criminal investigation is sufficiently serious to ensure that a thorough and effective job is done. The effect on the life of a person who is convicted of a criminal offence can be significant: they may lose their job, seeking employment becomes more difficult, there may be financial hardship and the stress of an investigation and trial can cause marital and family problems. We cannot allow a situation to develop where it is more likely that innocent people will suffer the effects of a wrongful conviction. That is, in my view, a much greater injustice than a guilty person escaping conviction.

The judges also raise interesting points on the issue of increasing convictions. Their view is that rather than increasing the number of convictions it might well cause a reduction in the number of convictions obtained by the Crown. They cite a possible reluctance on the part of a jury to convict where it is a situation of one person’s word against the word of another. The senior judiciary have a wealth of experience from which they can draw such conclusions and I wouldn’t want to disagree with them on that point. It does, with a bit of consideration, seem like a conclusion that can be sensibly arrived at.

The judges broadly support Lord Carloway’s other recommendations, which are less controversial and do make sense in light of the line of authority developing as a result of Cadder. Their response can be read here.

Professional Juries…not a chance

Yesterday the Justice Committee of the Scottish Parliament took evidence on the role of the media in criminal trials. During the session Ian McKee, justice campaigner, made a number of references in support of the idea of introducing professional juries into the Scottish Courts. This is a very bad idea.

The jury was, rightly, described by Aamer Anwar during the session as the “jewel in the crown” of the criminal prosecution system in Scotland. It has featured as a fundamental part of our system for centuries. It is important that people facing serious criminal charges are judged by their peers. The idea of having professional jurors is a repugnant one.

Professional jurors would not resemble the system we have today where local people are drawn at random to sit on a jury and decide on issues of fact placed before them. They would in effect be state employees and would be reliant upon the state for the money that feeds their children and keeps a roof over their head every single month. Yes, jurors currently get reimbursed for losses incurred as a result of sitting on a jury, but this is quite different to relying on the state to pay your wages every single month for sitting on a jury permanently. There is a risk that the independence of the jury from the State is jeopardised. If no actual prejudice occurred, at the very least there would be the appearance of prejudice in the process.

Some of the reasons advanced by Mr McKee for the introduction of professional juries was quite frankly insulting to anyone who has ever sat on a jury. I have very little experience of the court system and certainly none as a practitioner. However, I have (as a fair few law students will have) sat in courts during trials. While I have been sitting watching proceedings juries have always struck me as a largely diligent bunch of folk who are genuinely interested in hearing and understanding the evidence.

There is also a risk of corruption. When you reduce the jury pool to a small number of people rather than everyone in a given area it becomes easier to locate and corrupt jurors. This would undoubtedly be bad for justice.

Any advantages there may be to a system of having professional jurors are undoubtedly outweighed by the disadvantages to the system. The jury system may not be perfect, but no system ever is. However, the system largely works and has done so for centuries.

Nonsensical codswallop

There is undoubtedly a growing reliance by some on what can only be described as codswallop in the defence of civil and criminal proceedings as well as in their pursuance of such proceedings against individuals and the state. I am, of course, referring to the growing Freemen-on-the-Land (FOTL) movement and other similar movements. Their dangerous pseudolegal arguments are resulting in serious harm to people who are quite often vulnerable.

A lot has been written about the movement on blogs, particularly after the Guardian published one of their incredibly dangerous theories in its “Comment is free” section. The reaction from lawyers who commented was, unsurprisingly, unanimous in its conclusions that it was dangerous and legally inaccurate information. It’s not unsurprising because, as a Freeman would suggest, they are part of the fraud that is the system; but rather it is unsurprising because the simple fact is that the arguments deployed by these people are nonsense.

I have been aware of this movement for a couple of years now and have had a great deal of enjoyment listening to the rubbish that their “experts” expel as fact. I, and others, may laugh at this nonsense, but the truth is that many people up and down the country are being taken in by this fiction and it is having a considerable negative effect on their life. When one remembers this the laughter soon dries up and it is replaced with a sense of anger that these “experts” are causing so much damage to vulnerable people in our society.

There are many different groups which adhere to the principles of the FOTL movement which go by various different names. However, in essence all the groups have one major shared characteristic: they all argue that he state (and its instruments) have no authority over them. The most common things that I have observed about these movements is that they will often adopt a split personality which argues that they (a human-being) are an agent or representative of a legal fiction (a corporation) which shares the same name as they do. They place arbitrary distinctions between their name written in lower-case and their name written in upper-case. Associate Chief Justice J.D. Rooke (Court of Queen’s Bench of Alberta, Canada) has issued lengthy judgment dealing with the freeman nonsense that he sees in his court on a fairly regular basis. The Respondent in the case in question deployed some of the FOTL arguments (or OPCA arguments as Associate Chief Justice Rooke styles them).

The judgment referred to above is lengthy, but is sets out in great detail the various types of arguments deployed by FOTL types and refutes them (using Canadian law, naturally). However, his excellent explanations of the various types of arguments deployed are an excellent resource for lawyers and judges the world over who are increasingly coming up against this codswallop. From there it doesn’t take too much to apply the law of England and Wales, Scotland, Australia or wherever necessary to refute the arguments being advanced.

There is, however, a much more serious issue and that is the effect that these things have on people’s lives. The “experts” from these movements will tell you that it works. However, it is clear that it does not. There are examples of where people have deployed these arguments and their desired outcome has been the result. However, that is not as a result of their arguments (as much as their “experts” might suggest that it is). Debt recovery is an area where these arguments are frequently deployed and are where a number of “success” stories come from. However, the more logical (and more likely) explanation for these apparent successes is that the company in question looks at the case and decides that to try and recover the debt through the courts is going to be too costly and it’s probably better just to take the “hit”. FOTL types have argued in the past that the creditor knows that what they are doing is illegal and they back down because the debtor knows and understands “the truth”.

I have yet to come across a single reported case which shows a court accepting a FOTL argument. Equally, I cannot find any reported cases in Scotland or England where the arguments have been rejected (although I am sure there are plenty in reality). However, Associate Chief justice Rooke provides a considerable number of reported cases in Canada where the arguments of the FOTL types have been rejected by the Courts.

The circular nature of the FOTL type arguments is such that even if there was an abundance of reported authority rejected their arguments it would do little to stop the courts facing such arguments. The FOTL types will simply put this down to part of the big fraud that they think they’ve uncovered and are fighting against.

The real sadness of all this is that vulnerable people in a desperate situation who are willing to try anything to get out of the situation they find themselves in are being duped and are suffering as a result of this nonsense.

Links
The law is not the enemy of protest but an essential tool of impartiality, Carl Gardner
We are the change: welfare, education and law at the Occupy camp, Comment is Free
The freeman-on-the-land strategy is no magic bullet for debt problems, LegalBizzle
Occupy Woo Street, LegalBizzle
Comment is free, but woo is sacred, LegalBizzle
Further adventures in woo, LegalBizzle
Meads v Meads, 2012 ABQB 571 (Associate Cheif Justice Rooke’s judgment)

Contempt of Court

Some crimes attract a great deal of public interest and with almost rolling updates on the progress of investigations through twenty-four hour news channels that interest can be intensified. There is a risk that comes with this level of publicity in criminal investigations though. In all of the UK’s legal jurisdictions there exists the presumption of innocence. That means all persons accused of a crime are, no matter how heinous the alleged crime, presumed innocent until such times as they are found guilty by a court (and of course they may not be found guilty). A finding of guilt may be as a result of an admission (a plea of guilty) or following a verdict of guilty by the judge/jury. There exists also, enshrined in the Human Rights Act 1998, a right to a fair trial. It is essential that if we are to have confidence in both the judicial process and the verdicts of our courts that the process is fair and beyond serious criticism.

In order to ensure that proceedings against a criminal accused are fair there exists the Contempt of Court Act 1981. Once proceedings against an individual are “live” the provisions of the 1981 Act take effect and restrict the rights of everyone else in society in respect of freedom of speech. This restriction is absolutely necessary to ensure that trials are not prejudiced by comments made publically. In the past it was really only newspapers, TV, radio and other such media outlets that had to worry about contempt of court as it was only really them who had the capability of prejudicing a criminal trial. However, with the advances in technology we have seen everyone becoming a publisher and become affected by the 1981 Act (whether they know it exists, understand it, want to be or care).

Recent high profile cases have demonstrated just how little the general public understand about contempt of court and the risks in publishing potentially prejudicial material. Cases such as the John Terry public order trial and the PC Simon Harwood trial both resulted in huge discussions on public Facebook groups and on Twitter before and during the trials. These discussions made clear pronouncments on the guilt or innocence of the defendants in those cases. The Attorney-General even considered whether to bring proceedings under the 1981 Act in the John Terry case following tweets by another premiership footballer.

More recently, the investigation into the death of Tia Sharp has revealed more issues around Facebook and Twitter, the public and the law. Some people fail to understand that their posts on Facebook and on Twitter are not like their conversations in a pub or in their living room amongst friends. Their tweets and Facebook postings have the capability of being seen by literally millions of people as they get re-posted or re-tweeted. The effect that this can have on a criminal trial is drastic. It seems as though some people fail to understand, and really need to understand, that if a trial is sufficiently prejudiced it may not be able to continue. That would mean that the accused is acquitted and walks free from court. If people really care about justice in these high profile cases as they state they are in their Tweets and Facebook posts then they really should be careful what they Tweet and write on Facebook. It might seem inconceivable that a Tweet or Facebook post by a “nobody” could have such an effect, but as your friends Re-Tweet/Re-post it and their friends do the same and so on the cumulative effect could be enormous. How many potential jury members are reading these posts? While mentioning this case in particular I would like to point out that criminal proceedings are active in this case and that the 1981 Act has now taken effect. The individual charged and the individuals currently on police bail in this case are entitled to the presumption of innocence and are entitled to a fair trial.

The failure of some people in society, who often make themselves all too vocal on Facebook and Twitter, to allow due process to take place is concerning. A lot of people seem to fail (or refuse) to understand that arrest and/or charge does not equate to guilt. Some people seem to bestow super-human qualities on the police. Some people take the stance that “there’s no smoke without fire” or that “they must be guilty” once someone is arrested or charged with an offence. We have seen a number of fairly high profile cases where people arrested, charged and even convicted have later been shown to be completely innocent (and that’s innocent in that they didn’t do it rather than innocent because the Crown couldn’t prove it or because of some technicality, not that there’s any real difference in law).

Last year a young man, Dane Williamson, was arrested and charged with serious offences in relation to the mass public disorder that took place last summer. The offences with which he was charged carried a potential maximum penalty of life imprisonment. His name was widely publicised and the usual Facebook groups were set up where abusive remarks were posted about him. He was abused in prison and lost everything when his flat was set on fire while he was on remand. Even prison officers, it was reported, were abusing him while he was in custody. In his own words “I was being treated as if I was already guilty.” He hadn’t been involved in the riots. He had been working all day and then indoors in the evening that the offence in question took place. His case underlines clearly the serious problems we have in our society that threaten to undermine the criminal justice process.

Another case is the more widely reported one of Chris Jefferies. He was arrested on suspicion of Murder in the Joanna Yates murder investigation. He was subjected to demonization by the press and again social media sites were jumping down the process and treating him like he had been convicted of the offence. The “hang ’em” mob were out in full force more or less from the moment his arrest was made public. Again, he was innocent of any involvement in that crime. Another man, Vincent Tabak, was convicted in that case.

There are numerous other examples of such cases which could be given. They underline the need for the Contempt of Court Act. They should also be acting as lessons for those who jump to the conclusion that everyone arrested or charged must be guilty of whatever it is they have been charged with. The 1981 Act exists to protect the innocent, to protect the guilty and to protect the public. It helps to ensure that those who are accused of a crime face justice in a fair way and it protects the public by trying to ensure that things that substantially prejudice the trial are not put into the public domain. It would not be in the interest of public safety to have dangerous people walking the streets because their trial had to be stopped on the grounds that it had been so substantially prejudiced as to render it unfair. Such a scenario means that the victims don’t get justice, offenders go unpunished and the wider public are at risk.

Social media is an excellent tool, but the Contempt of Court Act 1981 was written long before the advent of social media. The technological advances which mean that we have moved away from companies being the only publishers who can reach large audiences with members of the public regularly publishing material that can reach thousands of people within minutes; this creates a problem for the operation of the law. How do we ensure that those who use Twitter and Facebook are aware of the 1981 Act and what it means for them? How do we ensure that everyone understands that Facebook and Twitter are not forms of private communication between their friends? Twitter and Facebook, contrary to the belief of some, is not just like being down the pub with your mates. The messages posted on these (and other) social networking sites are mostly capable of being seen by anyone in the world. There are serious questions and it is essential that these are looked at to protect the integrity of the criminal justice system. It is my view that this is too serious a problem to react to when it’s too late. Action is needed before a serious case collapses due to prejudice stemming from Twitter, Facebook or another social media outlet.

Links
Contempt of Court Act 1981
Human Rights Act 1998
Police got the wrong man: Salford teen charged with Miss Selfridge arson during Manchester riots is cleared (Manchester Evening News)
The Lesson of Joey Barton’s tweets (The Guardian)
Contempt laws are still valid in the internet age (Comment is free, the Guardian)

—-
I have left the comments section open for now. If any comments are posted below which are (or may be considered as) a contempt of court will be removed. Please comment sensibly.

Julian Assange

The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions. In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.

I am no expert in International law and there are people far more learned than I in these matters who have commented. I have linked to some of their writings and other commentary at the end of this blog post. There are serious issues at play in this case and I thought I would put my two-penneth in.

This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange. EAWs are a way of ensuring the co-operation between member states of the European Union. When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months. There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received. Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him. A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.

One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK. Indeed, there is no uniform process of criminal procedure in the United Kingdom. The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point. This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning. Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW. However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.

I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others. However, I do propose to consider the developments of the last few days and also some of the wider implications.

I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations. They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence. I make no comment on his guilt or innocence in relation to these allegations. However, they are extremely serious allegations and the women who have made them have rights as well. They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden. He may be guilty and he may be innocent. The only way in which that can be determined is for Mr Assange to face the Swedish judicial system. If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations. In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.

There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty. Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty. The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg. Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4). This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty. Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.

Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum. This caused outrange amongst the British and Swedish Governments who strongly criticised the decision. The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador. It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them. This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government. To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK. They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.

The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”). The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind. As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused. A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.

The Embassy of Ecuador is being used for the purposes of its mission. I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy. In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises. This, I would suggest, is not really a viable option and would be a severe abuse of the legislation. Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon. It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.

Storming the Embassy is not really an option either. It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out. Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador. Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.

The outcome of this case is likely to be rather dull than any of this. It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London. What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities. It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).

In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him. He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK. By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries. The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status. Although, with Mr Assange anything is possible!

LINKS
The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)
Assange (@PME200)

Justice

No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape (Hume ii at p 385)

There has been a definite shift in policy at the Crown Office and Procurator Fiscal Service. Over the last five years there has been a definite reduction in its independence from Government. As the years have passed the Crown Office has become more and more an arm of the Justice Directorate. The current Lord Advocate and the Solicitor-General are very much in the media, something which one might not have seen so much in the past.

It is often thought that the prosecution is on the side of victims and in recent years the prosecution service in Scotland has aligned itself with a “victim’s agenda”, championing the rights of individual victims. In doing so they have wrapped up their arguments for the abolition of the rule of corroboration in emotive subjects (sexual offences and domestic violence) which makes it hard for people to try and oppose their arguments. Politically it could be painted that someone against the abolition of corroboration is against convicting rapists and those responsible for abusing their spouses/partners. It stifles debate and proper consideration of the facts, including what would need to be put in place to replace a safeguard if it were removed.

The decision in Cadder v HMA Advocate has been a good opportunity for the newly politicised Crown Office and the Government to argue that there needs to be a re-balancing of the system because the balance had went too far in one direction. That is an argument that I do not really accept, but won’t examine here. There seems to be a clear agenda to make it easier for the Crown to obtain convictions and harder for the defence to defend the accused. Of course, society wants to see more people who have committed crimes convicted. For a guilty man to walk out of court free is frustrating, but that is the nature of our criminal justice system. Sometimes the prosecution can’t produce the necessary evidence to convict someone. There are two responses to this situation. First (and it’s my preferred response) is to simply accept that as a consequence of the system and that it can’t get it right every time. The second is to effectively move the goalposts making it easier for the Crown to get a conviction. This has its own consequence and it is one that I would much rather avoid: a greater number of innocent people are likely to be convicted.

The nature of criminal law is such that it ought to be difficult for the prosecution to convict the accused. Convicting a person of a crime is more than a simple finding of fact. When a person is convicted of, for example, murder, it is not simply saying that the victim was killed by the accused, but that the accused is guilty of murdering him. In other words, the accused is deserving of punishment. The accused could be guilty of killing the victim, but not guilty of murder. For example, if the accused was an armed police officer and shot the accused because the accused had been shooting a gun in the direction of him and his colleagues; the police officer is guilty of killing the accused, but is probably not guilty of his murder (in simplistic terms). The criminal law is about delivering punishment. I suspect most people have at some stage in their life been punished for something that they have not done or been punished unjustly. Those who have been in that position might remember what it was like to be punished for something that you knew that you had not done. While, we have done away with the ultimate sanction (death) in our criminal justice system, the punishment that can be dished put by the system is still severe. For example, a person wrongly convicted of murder will be given a sentence of life imprisonment. Such a person is unlikely never to be released because the parole board would never consider someone still protesting their innocence as being of low enough risk to release on licence. Perhaps we don’t like to see the fallibility in our system because we do not want to consider the consequences of it?

Contrary to popular belief, prison is not a nice place. While prisoners have three meals a day, access to education and most have a television in their cell, they are still in prison. Their freedom has been removed from them. Outside of prison we make decisions all the time that you take for granted: to have a take-a-way for dinner, to go out to the cinema, to meet friends, to spend an extra hour in bed and so on. The issue here is not that everyone in prison is innocent, but rather that prison is a punishment and it is wrong to lock away innocent people, perhaps for lengthy periods of time, simply to satisfy the demands of some victims and victims’ groups. The very fact that a guilty verdict might result in a person going to prison, perhaps for the rest of their life, is a strong reason as to why it ought to be difficult for the Crown to convict a person.

There seems to be a worrying shift in public perception of persons accused of committing a crime. Whether this is a reality or simply a perception created by certain media outlets is another matter. That perception seems to be that people are beginning to believe that if a person is on trial they must be guilty (and if not of what they are accused certainly something else and should be punished anyway). This challenges a presumption which is at the heart of our system: that a person is innocent until they are proved guilty by evidence in a court of law. The presumption accepts that the police (and everyone else involved in the justice system) are human and make mistakes. They miss evidence or become so focussed on onlyone line of enquiry that they convince themselves that a particular person is guilty, regardless of the truth (sometimes even to the point that they make the evidence fit their version of events). The presumption recognises the inherent fallibility of the system.

There have been a couple of examples recently, granted they have come from England, that underline the way in which the presumption is being disregarded by some in society. I’ll look at the John Terry example. John terry, an English premiership footballer, said some nasty things. That is a fact; he admitted such in his evidence. However, he was found not guilty by the Court and there was a complete outrage on Twitter, on Facebook and in pubs up and down the country. Some of my friends some of those who were part of the “angry mob”. The outburst failed to recognise that simply because he admits having said the nasty thing in question doesn’t mean he was guilty of the offence charged. There was, demonstrably, a great deal of misunderstanding about exactly what Terry was charged with. People focussed on the racist aggravation and as a result appeared to conclude that because he admitted saying the racist things he must be guilty. That is not how the criminal law works though. For a person to be guilty of an offence there are certain things that the Crown must prove to the required standard. If the Crown fails to do that, as they did in the John terry and Simon Harwood cases, then the accused must be acquitted of the charges.

The criminal courts do not exist simply to satisfy the needs and desires of the public. They exist to look at matters in a more objective way, to consider the evidence and to make a finding based on the evidence. Simply moving the goalposts to obtain more convictions doesn’t mean that justice is being achieved anymore than it was before. When victims leave court believing they have had justice when the reality is an innocent person has been convicted, they have not received justice but have been cheated by the system. I do not want to see more victims cheated by believing that they have had justice when the true perpetrator still walks free. That is not fair on either the innocent person or the victims.

Put simply, more convictions does not always equate to better justice. It is necessary to have safeguards in place to ensure that, so far as is reasonably practicable, only the guilty are convicted. Having those safeguards in place will mean that guilty people walk free from court, but that is preferable to a greater number of innocent people being punished. Many of the safeguards in our criminal justice system are there to protect the innocent, not the guilty. Yes, the guilty will benefit from them, but that is a consequence of the system. However, it is a necessary one.

I started this blog post with a quote from Barron David Hume’s commentaries. It is effectively saying that it is better that some guilty men escape punishment in order to reduce the likelihood that an innocent man suffers punishment. It is framed very much around corroboration and how corroboration acts as a level of protection. Of course, no system is perfect and even under the current system some innocent people are convicted. However, it is clear that its abolition is all about increasing the number of convictions to satisfy some victims, some victims’ groups and some others in society. Many of the arguments advanced for its abolition are, in my view, weak. The idea that we can abolish corroboration and leave the rest of the system as it is quite frankly is dangerous. It demonstrates fully the real reasons for abolishing corroboration: convictions, not justice. If we’re going to abolish corroboration and replace it with something else, why bother with the upheaval if the reality is the situation isn’t going to be much different? Not much has changed since Hume wrote the words quoted right at the outset of this blog. Justice demands that obtaining a conviction be hard. Those victims who have not seen the offender in their case convicted deserve sympathy and help to rebuild their lives. However, we cannot simply create more victims in order to try and help them find closure and move on or to satisfy what they have in their mind. When we convict innocent people we create more victims and the original victims are victims for a second time. The support for those wrongly convicted and then later exonerated is all but absent. It’s as if the system doesn’t accept that it makes mistakes.

We need a proper debate about justice in Scotland. It must be one that doesn’t simply pit the guilty against their victims. Those innocently caught up in the system wrongly accused must be considered too. It is largely for their benefit that defence protections exist. Of course, they exist for the guilty to: it is necessary that punishment is proportionate to the offence. It also needs to be an objective debate that isn’t wrapped up in emotive cases or offences. The results of such a debate are likely to weaken, not strengthen, the justice system in Scotland. The corroboration requirement came into existence in Scots law at a time when it was arguably far more vengeful than it is now, but yet we seem to be willing to trade in essential protection for innocent people in order to appease the needs of some for vengeance. That’s not justice

Criminal Procedure: Time to start from scratch?

Criminal Procedure in Scotland is broadly governed by the Criminal Procedure (Scotland) Act 1995. This Act sets out much of the way in which a criminal case is conducted from initial contact by the police with a suspect and/or witness through to the rules governing appeals against conviction and sentence.

The Act is incredibly out of date and has been amended on a number of occasions. The first major challenge to the provisions of the 1995 Act was the now infamous Cadder case which focused on sections 14 and 15 of the 1995 Act, and in particular the failure of the law to provide for a suspect detained under section 14 of the 1995 Act to have access to legal advice and representation. In that case the United Kingdom Supreme Court rejected the decision of the High Court in McLean v HM Advocate and held that the failure of the 1995 Act to provide for a suspect detained under Section 14 of that Act to have access to legal advice while in custody was a breach of Article 6 of the European Convention of Human Rights (ECHR).

The Cadder decision resulted in amendments being rushed through the Scottish Parliament which provided for, inter alia, the provision of access to a solicitor by a person detained under Section 14 of the 1995 Act before they were questioned by the police.

The Criminal Justice and Licensing (Scotland) Act 2010 made changes to the 1995 Act some of which have now come under scrutiny by the High Court. In Cameron v procurator Fiscal, Livingson the Appeal Court held that the amendment in question was a breach of Article 5 of the ECHR. The amendment in question was the insertion of paragraph (cb) into section 24(5) of the 1995 Act. Section 24(5) of the 1995 Act sets out the standard conditions for a person released on bail. The Court can add further conditions to that bail, but the standard conditions will always apply. Paragraph (cb) provided that as standard a person who was on Bail must do two things if reasonably required to do so by a Constable. Those things were (i) participate in an identification parade or other identification procedure; and (ii) allow any print, impression or sample to be taken from the accused. The remaining standard bail conditions are fairly, well, standard and cover things that one would reasonably expect such as not committing other offences, not interfering with witnesses, turn up at court when instructed to do so etc. However, the insertion of paragraph (cb) into the standard conditions is slightly controversial.

Previously such conditions as those found within paragraph (cb) would have been added by the judge presiding over the bail application. The Court would have to have been satisfied that such conditions were necessary. However, now anyone on Bail would be required to adhere to such conditions and they are quite invasive. Sample could cover anything from a urine sample, to a DNA swab to a blood sample, all of which are invasive procedures and normally if taken without consent may well constitute an assault.

In any event, this blog post is not about the latest decision per se, but is more about the 1995 Act. It is not fit for purpose. Criminal procedure in Scotland has fallen behind in terms of adhering to basic standards of human rights. Successive Scottish Parliaments and Administrations have failed to ensure that Scotland’s procedures in bringing offenders to justice and protecting the public comply with human rights.

The two pieces of legislation passed in 2010 to amend the 1995 Act, particularly the post-Cadder emergency legislation, are nothing other than sticking plasters over a rotting limb. What is required is an urgent, full-scale review of the 1995 Act and for it to be subsequently repealed and replaced with a brand new piece of legislation.

The review recently completed by Lord Carloway at the request of the Justice Secretary is a good starting point for this urgent and important piece of work. However, it is important that the 1995 Act is not merely amended with whatever recommendations are accepted from Lord Carloway’s report, but that the accepted recommendations form the basis of a brand new piece of legislation that aims to codify the current law (including the case law).

It is important that this review canvases the opinions of all criminal justice stakeholders from victims groups to criminal justice social workers, solicitors, Counsel, COPFS and anyone else who has an opinion. It’s important that criminal procedure keeps up-to-date with developments in human rights.

I do hope that in response to this latest judgment that the Justice Secretary and First Minister do not launch a hysterical attack against the judiciary and announce a serious attempt to look at criminal procedure in Scotland. I hope that they appoint a review team who are knowledgeable and experienced in the criminal justice system and that any review team is not confined to just judges and lawyers but that representatives from all the major stakeholders are present to ensure that we have a system that is fit for purpose and is beyond challenge from a human rights perspective.

Culture, Practice and Ethics of the Press

Lord Justice Leveson was appointed in the summer to chair an inquiry under the Inquiries Act 2005 into the “Culture, Practices and Ethics of the Media”. The inquiry came after the extraordinary revelations of illegal practices at one particular weekly newspaper. That newspaper, the News of the World, is no longer in publication after it was revealed that the paper was involved in regularly breaking the criminal law by way of hacking into the private voicemail messages of people in order to get stories. Initially it was asserted that the practice was confined to one rouge journalist and one private investigator, both of whom were prosecuted for offences relating to phone hacking.

Since the fresh revelations over the summer various investigations and inquiries have been taking place. The Metropolitan Police are investigating the wider issues of phone and e-mail hacking, Strathclyde Police are investigating similar matters in Scotland at the direction of the Lord Advocate, House of Commons select committees have heard evidence on the matter, including from Rupert and James Murdoch, and much has been said and written in other forums.

The inquiries by Lord Justice Leveson and the House of Commons select committee have had to tread very carefully in order to safeguard any potential future prosecutions that result from the investigations by the Metropolitan Police and Strathclyde Police. The Police have suffered their own criticism though. The Metropolitan Police suffered some quite high profile casualties as a result of its failure to investigate the issue properly and fully in 2006 when it first came to light and Glenn Mulcaire was given a custodial sentence for phone hacking.

At the time the News of the World insisted that it was confined just to one journalist and to a private investigator therefore limiting the scandal to the Royal Family. However, as time has passed it transpired that the practice was, at the News of the World at least, quite widespread. It is understood that the paper hacked into the voicemail of Milly Dowler deleting messages from it when it became full. This gave the police and more importantly her parents, family and friends a false sense of hope that she might still be alive. The public, quite rightly, condemned this particular use of phone hacking and were quite clearly disgusted by it.

The evidence that has been given to the Leveson Inquiry has been rather interesting and has raised some important points and issues. It has, however, given us an insight into the mind-set of the tabloid press. Some of the most controversial evidence given to the Leveson Inquiry to date came from a former News of the World journalist, Paul McMullan. It’s hard to select just a few of the things that Mr McMullan said during his evidence that caused one to raise an eyebrow as there are so many examples from which to choose. However, as I have identified above the hacking of Milly Dowler’s phone I believe that this would be a good starting place to look at Mr McMullan’s evidence.

In respect of the hacking of Milly Dowler’s mobile telephone voicemail messages Mr McMuallan appeared to argue that the hacking was in fact a good thing. His argument was based upon the premise that the police can get nothing right and that their inability to investigate properly means that journalists need to fill the gap and investigate for them. This, I submit, is a false presupposition to have made. Yes, there are times in which the police do not investigate things properly. Indeed it probably happens fairly frequently. Senior officers can get drawn down lines of inquiry that they believe are the correct ones and ignore others resulting in innocent people being caught up in the wake of the investigation, or the investigation stalling, evidence being lost and the police without any further direction to take the investigation in. However, I would suggest that failings on such a grand scale, particularly in high profile cases, are really quite rare.

The press, no matter how well meaning they might be, should not be engaging in any activity that frustrates a police investigation. The Milly Dowler example is a good one for illustrating this point. The actions of those involved in the hacking were not only illegal, but because the messages were being deleted it brought a false sense of hope to the family and friends that Milly might still be alive, after all he voicemail messages were clearly being listened to.

Mr McMullan’s evidence to the inquiry was, in general, just as shocking as it was revealing. It appeared that he had no moral or ethical compass whatsoever and took the view that anything that was necessary to get a story was acceptable. Mr McMullan also failed to appreciate that there is a significant difference between what the public are interested in and the public interest. Simply because the public are interested in something doesn’t mean that they should in fact be given it on the pages of a newspaper.

There are some really quite perplexing problems to deal with here. It is clear that the press need to be ethical in the way that they carry out their duties. While the rule of law is important it is not inconceivable that a story of such great public interest cannot be obtained by any legal means. It would therefore be, in my view, appropriate to act outside of the law in order to obtain the evidence needed to reveal it. It should not, however, be a regular practice and should be reserved for only the stories which carry the gravest public interest considerations. The principle question in my view should be that in all the circumstances was the infringement of the law fair, reasonable and justified?

The word “regulation” has been bandied about an awful lot since the fresh revelations of phone hacking over the summer months. Principally it would seem that the argument that as the press has failed to self-regulate itself that an external regulator must now take over this role is becoming a somewhat popular one. I would fundamentally disagree with this proposition for two main reasons. Firstly, what is really meant by “the press” is “certain sections of the press, in particular the tabloid press”. As has been pointed out much of the press is more than capable of abiding by and upholding basic moral and ethical standards. Not all newspapers, for example, have been involved in the interception of voicemail messages, not all newspapers regularly engaged in “blagging” information, not all newspapers regularly employed the services of private investigators. We are, in effect, looking at one small section of the press and it is important to bear this in mind. My second reason for disagreeing with this proposition, and it is by far and away the most important, is that in a free and democratic society it is both necessary and desirable to have a free press.

Countries of whom the UK is often critical in terms of their adherence to commonly understood standards of democracy and human rights will often be ones where the press is heavily regulated or censored. It would be highly undesirable to follow those countries down the routes of licencing journalists and subjecting them to regulatory regimes.

There are, of course, laws in place to protect the morals and decency in society. It cannot be the case that journalists have a “get out of jail free card” by virtue of their chosen profession when it comes to breaking the civil and criminal laws of this country. Indeed the same would be applicable to the organisations that employ journalists.

When a journalist breaks the criminal law there is a balancing test that must be carried out. That balancing test is essentially looking at two competing elements of the public interest. First is the public interest of the story which they had written as a result of obtaining evidence by unlawful means. This then has to be balanced against the public interest in upholding the rule of law and prosecuting those alleged to have broken the criminal law. It is for prosecutors to decide, in the first instance, whether the public interest in prosecuting the journalist for their alleged infringement of the law outweighs the public interest surrounding the story that they broke.

Of course there are other factors that would need to be considered in any prosecution decision. Firstly, it would have to be considered whether the evidence obtained illegally could have reasonably been obtained in a way that was legal? Have all reasonable attempts been made to obtain the evidence legally?

The issues are not just strictly confined to the auspices of the criminal law. The issues surrounding press practices, conduct and ethics find themselves in the territory of the civil law also. Perhaps most acutely in terms of civil law areas are those of defamation and privacy. The latter of these two has proved to be rather controversial in recent years.

There is a fundamentally understood right to privacy. All people are entitled to a private and family life and there are elements of our lives that we all wish to keep private. That is not necessarily because, as Mr McMullan would have us believe, we are paedophiles or are up to no good. Privacy is not, as Mr McMullan would have us believe, only the space needed for people to do bad things. Yes, undoubtedly some people do get up to bad things in their private life. However, very few of us would be happy with, as an example, a copy of our full medical records published with nothing redacted.

There is a need, therefore, to consider carefully when to begin publishing details of a person’s private life for anyone to read. I remain entirely unconvinced that much of what has been published under the guise of being in the public interest in relation to people’s private life is indeed within the public interest. I rather suspect that it is more likely to fall into the category of things that the public are interested about (although I personally fail to understand why).

There are of course innocent people to consider in these situations. Anyone who has experienced the breakdown of a relationship because of an unfaithful partner will know the pain and suffering that it causes not only the other partner but any children who also happen to be involved. Imagine for a moment that your partner has an affair with another and the way in which you discover is by seeing it on the front page of the Sun. Imagine for a moment an incredibly painful and emotional time in your personal life being splattered across the pages of the Daily Mail. What if you opened the pages of the Daily Record and saw your partner kissing another person? Nobody wants that to be in public domain for everyone to read.

When we talk about privacy in these cases we are often talking about not only the privacy of the celebrity who has allegedly had the affair but also the privacy of their wider family. There appears to me to be little thought given to that dimension by certain sections of the British press.

I remain entirely unconvinced that a person’s apparent hypocrisy as portraying themselves as a faithful family orientated person necessitates the divulgence of the details of an alleged affair into the public domain. There might be, on some occasions, a public interest in such situations being divulged into the public domain, but I suspect that they would be few and far between and cannot think of any of the recent “kiss and tell” stories that have been divulged this year that would be sufficiently serious enough to justify their being published.

I am not suggesting that people’s private lives are completely off limits. There must be a public interest in interfering with that right though. An example might be the revelation that former Home Secretary Jacqui Smith had claimed for adult-rated films on her expenses. On its own the nature of what was claimed for might not have been in the public interest but in the wider scandal in which it came to light that might well have, and in my view did, shift the public interest balance in favour of identifying them as adult-rated.

I have written on this site before on the question of super-injunctions (those posts can be read here and here) and I do not want to spend much time considering them here other than to say that they are somewhat of an anomaly given the way in which social media is influencing the way in which people get their news. There are also jurisdictional issues to consider. An example would be the case of CTB and how a Scottish newspaper could openly name CTB while those in England could not.

Injunctions, or in Scotland interdicts, clearly do have their place. They are granted only after careful consideration of the evidence placed before a court. Evidence which people openly flouting them and breaking them on Twitter, or indeed on the floor of the House of Commons, probably have no knowledge.

It will certainly be interesting to see what Lord Justice Leveson proposes in his final report and just what will come to light as he continues his inquiry and as the police investigations continue. However, I would lament proposals for regulation of the press by way of an “independent regulator” as that would begin to take us down a path that endangers free speech and expression. Perhaps, as has been suggested by some already, that tough financial penalties for those press organisations who wilfully flout privacy rules in their quest for a story without good justification. The idea of punitive damages may not be such a bad one if it were to avoid going to down the path of regulating the press. I am only glad that it is not I who has been tasked with brining proposals forward on this issue because if the wrong proposals are brought forward it could have seriously damaging and long-lasting effects on our democracy.

FOI: Glasgow Police Station Duty Scheme

Following the coming into force of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 the Scottish Legal Aid Board (SLAB) devised a controversial police station duty scheme.

At the time it was heavily discussed and debated. Solicitors were complaining that they were left largely n the dark as to how the scheme was operating and even today controversies still remain. SLAB were unwilling to provide details of the scheme including the names of solicitors and firms registered on the scheme.

Many attempts were made through the Freedom of Information provisions and also out with those provisions to have information released into the public domain about the operation of the scheme. One person took SLAB all the way to the Scottish Information Commissioner. Today the Commissioner’s Office has published the decision notice issued dated 21 November 2011 finding in SLABs favour.

This is hardly surprising because of the legal position SLAB finds itself in when it comes to FOI. Under Section 26 of the Freedom of Information (Scotland) Act 2002 (FOISA) any information held by a Scottish public authority is exempt if its disclosure is prohibited by any other enactment. Under Section 34 of the Legal Aid (Scotland) Act 1986 any information that is furnished to the Board pursuant to SLAB for the purposes of the Legal Aid (Scotland) Act 1986 is exempt from disclosure without the consent of the person(s) who provided SLAB with the information. Section 26 of the FOISA is an absolute exemption (see Section 2(2)(a) of the Act) and as such there is no requirement to consider whether the disclosure is in the public interest or not.

The effect of Section 34 of the Legal Aid (Scotland) Act 1986 coupled with Section 26 of FOISA means that almost anything held by SLAB would appear to be exempt from disclosure under FOISA. The Legal Aid (Scotland) Act 1986 was obviously passed before the concept of there being a right to access information held by a public authority gained a wide acceptance. It might, therefore, be worthwhile that any future changes to FOISA consider such provisions.

The Commissioner’s decision can be read in full here