Category: Politics

Why criminal legal aid matters to everyone and not just ‘criminals’

Some people believe that they will never require the service of a criminal lawyer; they obey the law and just go about life.  Every day when we wake up we do not know what the day will bring.  It could pass quite uneventfully, or something terrible could happen which results in being detained by the police and/or charged with a criminal offence.

Some examples might make this a bit clearer:

Example 1

It’s been a long at work and you get into your car to drive home.  You didn’t sleep too well the night before; the baby kept you awake most of the night.  As a result, you’re rather tired by the end of the day.  You’re driving along the road and you momentarily lose your concentration and before you know it you’ve been involved in a collision.  It’s fine; the insurance will sort it out.  However, a passenger in the car you hit dies as a result of the accident.  Suddenly, you find yourself in the middle of a police investigation.  You’re later detained by the police and suddenly find yourself needing the services of a criminal defence lawyer.  You get one and they steer you through the interview, but the decision is to charge you with causing death by careless driving.  It’s serious; you’re facing a prison sentence.  You‘re going to plead guilty, but you want the shortest sentence possible so you instruct a defence lawyer to represent you.  You’re not particularly well off, but suddenly you’re facing a three figure bill as a “contribution” towards your legal aid costs.  You’ve always tried to live a good life; you don’t steal things and such like.  However, you’re in the middle of the criminal justice system facing a prison sentence of up to 14 years.

Example 2

A lot of people like to go out and have a good time; often drinking far too much and becoming intoxicated with alcohol.  Someone rubs you up the wrong way and you give him a bit of a punch and they fall over hitting his head off a nearby table.  Unknown to you at the time you punched them the victim has a weak skull and dies as a result of your actions.  Thinking everything would be ok, but without checking, you walked away; you didn’t summon any help.  A few days later there is a knock at the door and a couple of police officers are on your doorstep.  They inform you of what had happened and detain you on suspicion of murder.  A little extreme you might say, but entirely possible.  You’re suddenly, out of a drunken shove, facing the most serious charge in our criminal law and the possibility of serving a life sentence.  Suddenly, you need the services of a criminal defence lawyer.   In the end you get charged with Culpable Homicide, but that’s still a serious offence potentially carrying some serious time in prison (up to and including life imprisonment).  You’re now also facing a significant contribution towards your legal aid.

Example 3

A third and final example of how easily it is from your life to turn into a living nightmare where you, an otherwise innocent individual, find yourself caught up in the criminal justice system as the accused.  Some new neighbours move in next door.  You don’t get on with them and a dispute begins between you and them.  Things don’t start off too bad at first, but the quickly escalate.  One day you’ve had a bit too much to drink and you start having an argument in the street with said neighbour.  Another neighbour calls the police who turn up and you end up back at the police station accused of committing a breach of the peace.  You think you’re fine and don’t get a lawyer at the police station.  Things don’t go quite how you expected them to and you’re charged with committing a breach of the peace.  You now consider that you need a lawyer, but when you find out that you’re going to have to make a contribution of your costs you decide you can’t afford to instruct a lawyer and you go it alone trying to represent yourself.  Any decent solicitor will tell you this is a bad idea; not because they lose out on fees, but because it usually ends up badly for the accused.  A non-legally trained individual trying to defend themselves against the might of the state which has money and qualified lawyers at its disposal is a significant imbalance in power and really isn’t going to end well.  Yes, the court will try and assist an unrepresented accused, but there is a limit to what the Court can do.   In this case it goes badly for you and you’re convicted of a breach of the peace.  You now have a criminal record; a criminal record that might have been avoided had you been professional represented by a defence solicitor.  A solicitor might not have got you acquitted, but they could have worked to reduce the level of fine or community service you get.

All of the above three examples sounds farfetched and extreme; “it’ll never happen to me” you might say.  However, they are examples of what could happen to any one of us on any given day (and there are many, many more).  All of them resulting in an otherwise law abiding citizen being caught up in the criminal justice system and needing the professional services of a criminal defence lawyer.  One day it really might be you and you are in need of criminal legal aid.  However, the legal aid has dwindled; it’s almost impossible to get because of government reform and requires you to put up considerable amounts of money that you simply might not have.  If you’ve never thought about it before I challenge you to think of all the things you do in a day which could lead to you needing the services of a criminal lawyer; I’m sure if you really think about it you will come up with many.

This is why criminal legal aid matters to everyone (it’s also why the right to a fair trial matters to everyone).

Letter to Kenny MacAskill MSP

On 1 November 2012 I sent the following letter to the Cabinet Secretary for Justice, Kenny MacAskill MSP.  I will post any reply that is received.

Mr Kenny MacAskill MSP
Cabinet Secretary for Justice
The Scottish Government
St. Andrew’s House
Regent Road

Dear Mr MacAskill,

Justice in Scotland

I am writing this open letter to you regarding the vitally important topic of Justice in Scotland.  As an observer and law student it appears to me that there is a sustained attack on Justice by the Scottish Government, especially in the sphere of the criminal justice system.

One of the first major concerns is the apparent lack of independence of the Law Officers from Government.  Over the years the Lord Advocate and Solicitor General are appearing more to be an extension of the arm of Government rather than office holders independent of the Executive.  The decision taken by the First Minister in 2007 to stop the Lord Advocate attending Cabinet on a regular basis appeared to be an affirmation of the independence of the Law Officers.

For centuries the Lord Advocate has performed a dual function.  The Lord Advocate heads up the sole prosecuting authority in Scotland, the Crown Office and Procurator Fiscal Service, and also acts as the Government’s most senior legal adviser.  This dual function appears to have worked well in previous times.  However, in a modern democracy having the head of the prosecution service as a member of the Executive doesn’t support the need for a separation of powers; essential to any democracy.  The fact that the First Minister also has the power to appoint the head of the prosecution service is also at odds with the thought that the prosecution service should be independent and separate from Government. The position of the Lord Advocate as the holder of both offices has, in my view, become untenable and the Government should be looking to split this role.

Another important matter is the issue of corroboration in our legal system.  You have recently indicated that you intend to continue with the removal of corroboration in Scotland despite the fact that there is a large portion of those involved in the criminal justice system that are not in favour of such a move.  You cite there being splits in opinion.  However, those splits are not as significant as one would have thought from your statements.  All but one of the Senators of the College of Justice have given evidence in support of retaining the requirement of corroboration.  There remains only one Senator of the College of Justice who supports the removal of the requirement; Lord Carloway, the author of the report which recommended its removal in the first place.  It is significant that the remaining Senators disagree with Lord Carloway; it cannot have been easy for their Lordships to so publically disagree with one of their number, especially one as senior as Lord Carloway.

Another important group who have come out in favour of retaining Corroboration is the Police Federation.  The Police Federation represents rank and file police officers; the ones who are on the ground every day investigating crime and assisting victims of crime to obtain justice.  If there was one group of individuals who one would have thought would support such a move it is them.  Removing the requirement for corroboration would make criminal investigations much less complex, a lot quicker and a lot easier to bring a suspect before the Courts.  Yet, rank and file police officers are against the removal of corroboration.  That, I suggest, gives a great weight to its value in the criminal justice system.  It is not just lawyers who are opposed to its abolition.

Personally I am a supporter of corroboration.  I am of the view that it has served Scotland’s justice system well and that the argument that it’s out-dated and archaic is not strong enough to consider its removal from our system.  Corroboration gives credibility to witnesses who on their own might be less credible.  Corroboration, gives weight to testimony rather than detracting from it.  If a witness presents a version of events that is supported by other evidence independent from the witness then it strengthens that testimony.  The removal of corroboration could conceivably lead to fewer, rather than more, convictions.  As we begin to remove the independent supporting evidence (perhaps not because it doesn’t exist, but because it’s not required it is not found) juries and Courts might find it harder to convict on the testimony of a sole crown witness who may not appear credible.  That is as much of a miscarriage of justice as an innocent person being wrongly convicted.

There is, of course, the argument that removing corroboration that more innocent people will be convicted a criminal offence.  That should concern anybody, especially the Cabinet Secretary for Justice.  Credibility of the justice system is essential and if we see a decrease in convictions and an increase in wrongful convictions the credibility of the system is severely harmed.  Witnesses lie on the stand, they make mistakes while giving evidence and their testimony can be clouded by long delays between the offence and trial.  The passage of time can affect a person’s recollection of events.  In the same way that the passage of time can cause a person to become less sure of events, they can also become surer of events which did not actually occur.  Without corroboration, a witness whose memory is so affected will appear confident and that could result in an innocent person to be convicted.

Despite the previous paragraphs in support of corroboration I am not wedded to it.  I don’t take the view that it would be the end of the world if it were to be abolished.  However, if it were abolished with no other amendments made to the system then there is a real risk that the trial process will become unfair and weighted too heavily in favour of the Crown.  If we are to abolish corroboration it is necessary, in my view, to consider whether it is still appropriate to accept, for example, an 8-7 split on a jury and whether we can continue to have three verdicts in our criminal justice system.  There are other systems which do not operate corroboration, but they do have other safeguards built into their system.  Scotland would need to consider what other safeguards would be required at the same time as abolition.  We must avoid another Cadder situation where Scots law is found wanting and we have to rush through emergency legislation which cannot be properly scrutinised prior to its enactment.

While I accept that Scots law can survive without corroboration I see no reason for removing the requirement.  Simply because something has been around for centuries doesn’t mean that it no longer has a place in our system.  I am a firm believer of the “if it isn’t broken don’t fix it” approach.

I am concerned in the way that the debate around corroboration is being presented.  The constant focus on sexual offences and domestic violence is, in my view, preventing a proper and considered debate on this matter.  It is not right or proper that when considering removing a fundamental element of our criminal justice system that the debate focuses on a small number of offences, particularly ones which are as emotive as sexual offences and domestic violence.  Removing corroboration will affect every single criminal situation; from the drunken person at the weekend committing the most minor of breaches of the peace all the way through the homicide.  As it affects the whole system, it must be debated in a way that considers the whole system.  Reforming the justice system should not be about placing victims and perpetrators against one another.  The criminal justice system exists for the wider public interest.  The need for retribution by a victim is an important part of that public interest, but only one part of it.  The protections of our system exist to protect those who are wrongly accused of a crime as much as, if not more than, those who are rightly accused of a crime.  Ignoring this group of people in any consideration of reform of the justice system is entirely wrong.

There are matters in our criminal justice system that are much more pressing and require the attention of Government and the time of Parliament.  I would urge the Scottish Government to give consideration to those (such as the independence of the Law Officers) ahead of a massive shake-up of our system that could do much more harm than it does good.

I look forward to receiving your considered reply to the matters raised above.

Yours sincerely,
Alistair P Sloan

A waste of money? The Scottish Government’s EU advice FOI appeal

The independence referendum coverage has been polarised on one issue lately: the position of an independent Scotland in the European Union.  This issue really came to the forefront of the political discourse following the Deputy First Minister’s statement last week which confirmed that the Scottish Government had not yet commissioned detailed advice on this question. This came in the context of a Freedom of Information request made by Catherine Stihler MEP of the Labour Party.

The debate that has ensued following the Deputy First Minister’s revelations and ignores the finer details of the Freedom of Information request and FOI law.  Ms Stihler had sought from the Scottish Ministers the legal advice they had received on the position of an independent Scotland in the European Union.  The Scottish Ministers had refused to confirm or deny the existence of the information pursuant to Section 18 of the Freedom of Information (Scotland) Act 2002 (FOISA).  To cut a very long story short Ms Stihler eventually appealed to the Scottish Information Commissioner who found that that the Ministers were not entitled to rely on Section 18 of the FOISA.  The Scottish Ministers initially appealed this decision to the Court of Session, but later dropped that appeal.

When it was revealed that the Ministers had not sought advice there were instant accusations of the Scottish Ministers wasting taxpayers’ money.  Those accusations related to the fact that the Scottish Ministers had went to court to protect advice that didn’t even exist.  This entirely ignores the purpose of Section 18 of the FOISA.

While it was frustrating that the Scottish Ministers decided to appeal the decision and while I personally considered the Commissioner’s reasoning in her decision to be correct and flawless, it was the right of the Scottish Ministers to appeal the decision.  The fact that the information did not exist is irrelevant.  That comes from the wording and purpose of Section 18 of FOISA.

Section 18 of FOISA provides:

(1)Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

(2)Neither paragraph (a) of subsection (1) of section 16 nor subsection (2) of that section applies as respects a refusal notice given by virtue of this section.

What does this mean?  Well, put simply it means that where a public authority believes that to reveal whether particular information is held (or not held) is contrary to the public interest it can issue a refusal notice under Section 18.  The public authority is not required to comply with the ordinary requirements of FOISA to confirm whether the information is held (and either release it or issue a refusal notice under Section 16 of FOISA) or whether it is not held (and issue a refusal notice under Section 17 of FOISA).  For section 18 to apply the public authority must be satisfied that if the information did exist that it would be exempt under certain exemptions of FOISA.

Section 18 has successfully been deployed, for example, where a police force was asked for information about a particular investigation.  It was found to be contrary to the public interest to reveal whether the information was held or not.  It was also successfully deployed by the Scottish Ministers in relation to an information request relating to the honours process.

There is very little in the way of case law from the courts in relation to the FOISA.  More than 1,500 decisions have been issued by the Office of the Scottish Information Commissioner since FOISA entered into force in 2005, but there are only about half a dozen reported appeals to the courts.  None of these have been in relation to Section 18.  In terms of the operation of FOISA it would have been particularly helpful to have had a considered judgment from the Court of Session (perhaps even the United Kingdom Supreme Court if it had gone that far) on the application of Section 18, especially given the nature of Section 18.  Undoubtedly the Scottish Ministers would have raised the Ministerial Code issue and it would have been very helpful to have had judicial consideration of the relationship between the Ministerial Code and FOISA.

On the issue of legal advice and FOISA, it is generally accepted that there is a strong public interest in public authorities being able to obtain legal advice and for that advice to remain protected.  The public interest in its release has to be particularly strong before it will be released.  There are few examples of the Scottish Information Commissioner or the UK Information Commissioner ordering the release of legal advice.  Where the public interest rested in respect of legal advice must, as with all FOI requests, be judged on a case-by-case basis as request are received.  Advice that has previously been protected under FOISA might later be released as a result of a subsequent request for information if the public interest balance shifts.

Section 18 is an important exemption; sometimes to reveal whether information exists or not is simply not in the public interest.  There has to be an exemption for that situation when it arises (although it should arise rarely).  Public authorities must be free to appeal a commissioner’s decision regardless of whether the information exists or not.  I am actually disappointed that this case never actually made it to court because we are lacking vital judicial guidance on both the application of Section 18 of FOISA and on the relationship between FOISA and the Ministerial Code.  By all means attack the SNP for appearing to make assertions which were not based on any legal advice, but don’t attack them for exercising their statutory right to appeal a decision of the Commissioner to the Court of Session.  That does not help the cause of FOI one bit.

Prisoners’ Votes and the Rule of Law

The row over prisoners’ voting trundles along at Westminster with Justice Secretary Chris Grayling MP announcing that Parliament had a clear right to ignore the judgment of the European Court of Human Rights.  The European Court of Human Rights found that the current position in the UK, which bans all convicted prisoners from voting, is incompatible with the European Convention on Human Rights.  The United Kingdom has been given until November 2012 to comply with the judgment, but the UK Government is continuing in is defiance.

This defiance raises a fundamental question about the rule of law.  There is a constitutional convention in this country that says Parliament is supreme.  Our legislature is, in theory, not subject to any restrictions or authority which dictates what it can and cannot do.  However, over the years Parliament has voted to limit its sovereignty and one of the ways in which it did this was to agree to be bound by the decisions of the European Court of Human Rights.  In 1966 the United Kingdom accepted the right of individuals to petition the European Court and its jurisdiction.

The fact that the United Kingdom has accepted the jurisdiction of the European Court of Human Rights means that it is bound to implement its judgments, even the ones that it disagrees with.  Litigation carries with it the very real risk that at least one party will be left disappointed by the decision of the Court; that at least one party will dislike the decision of the Court.  However much a person disagrees with the judgment of a court they are bound to accept it, unless there is a route of appeal.  If there no longer exists a route of appeal then the matter is final and the discontented party will simply have to live with the decision.

If people began to disregard the decisions of a court which they did not agree with the existence of the court would be rendered pointless.  There would exist no effective remedy for people who have seen their rights infringed in some way.  A court exists to act as independent arbiters of disputes between two parties.  In the context of the European Court of Human Rights those disputes are between the State and the citizens of that State.  Once all domestic avenues have been utilised a citizen can take an alleged infringement upon their “Convention Rights” to the European Court of Human Rights for adjudication.  That is waht John Hirst (and others) have done over the issue of prisoners’ votes.  The European Court of Human Rights has found that the blanket ban on prisoners voting is incompatible with the Convention.  As a result of this the United Kingdom is under an international and legal obligation to amend the law so that it becomes compatible with the Convention.

You may or may not agree with the Government’s stance on the issues, but that does not negate the serious implications for the United Kingdom if it ignores this judgment and does not amend the law on prisoners not having the right to vote in UK elections.  The first consequence is that the United Kingdom will be liable to pay compensation to prisoners whenever they are denied their right to vote.  That could be expensive.  The UK prison population is probably just under 100,000 over all the UK jurisdictions.  It could cost the UK hundreds of millions of pounds each time an election occurs (based on compensation of around £2,000 per prisoner).  This is money that the UK simply doesn’t have and would mean that funding would be taken out of essential services.

Aside from the financial implications of the United Kingdom failing to adhere to the European Court’s ruling is the reputational damage to the United Kingdom.  The UK does not have a perfect record on human rights (no State does), but it does generally have a good reputation internationally for upholding the rights of its citizens.  The UK isn’t slow in telling other States that their human rights record is unacceptable.  A decision by the United Kingdom Parliament to specifically ignore the decision of a body established to protect the rights of citizens would significantly damage the United Kingdom’s standing in the world and could cause tensions between the United Kingdom and other nations.

Furthermore, the ignoring of this judgment would set a precedent.  This would be, I suggest, a dangerous precedent to be set.  It would set the precedent that if Parliament doesn’t like future decisions of the Court that it can simply ignore those decisions.  What if the decision was a lot more fundamental than this one?  What if the United Kingdom decided that it simply did not agree with a decision relating to the deportation of an individual to a country where they would be executed or tortured?  The precedent would be there for the Government to simply ignore the decision of the European Court and go ahead with the deportation anyway.

Some might argue that this is an entirely different situation.  It may well be a different situation, but the precedent it sets is no less serious.  Human Rights belong to all human’s by virtue of their status as a human being.  When we begin to deny rights to groups of people we have disdain for we enter a dangerous path.  If we look at some of the worst examples of human rights abuses in the modern world they all have one thing in common.  The stripping of the rights of people who the State did not like.  It’s not entirely analogous and is an extreme example, but if one considers Nazi Germany and the model employed there.  Basic and fundamental rights were denied to humans simply because they belonged to a particular group of people.  Some may say that such abuses cannot and will not happen again, but today around the world people are denied basic rights because of the part of society they happen to belong to.  Women are denied education simply because they are women, homosexuals are executed simply because they are homosexual and adherents of certain religions also face execution because of their religious belief.  It has happened in Europe before and if we believe that it cannot happen again in Europe then we have not understood the lessons from the first half of last century.

The issue of prisoners’ voting (or the wider prisoners’ rights movement) may not be on the same scale as the genocides of Nazi Germany.  However, the precedent of abandoning human rights principles and of stripping groups of people of their rights based solely on their status in society is a dangerous one.  It is one that we should not permit.

Parliament has to do the right thing and accept the judgment of the European Court of Human Rights on this issue even though it may not agree with it.  Parliament has to extend the franchise to some prisoners removing it on much more objective criteria than simply the fact that a person is a convicted prisoner.

We can now deny that

I have written often on here about a Freedom of Information request made to the Scottish Ministers by Labour MEP Catherine Stihler.  You can read the history of this request here, here, here and here.

Today, Deputy First Minister Nicola Sturgeon MSP made the embarrassing confession that there was no legal advice on the position of an independent Scotland in the European Union.  The Ministers were ordered by Rosemary Agnew, the Scottish Information Commissioner, to reveal whether they held such advice and until today the Ministers refused to comply with that order.  They had lodged an appeal in the Court of Session which was due to be heard on 18 and 19 December 2012.

Taking a case to the Court of Session is not cheap; it’s really rather expensive.   The Ministers have wasted Government money and indeed money from the Office of the Scottish Information Commissioner by pursuing an appeal that aimed to keep secret that they had, until now, been lying to the Scottish people.  The very clear implication of the statements made to Parliament prior to today was that the Government had received advice and it was from that advice they were making their assertions.

The Scottish Ministers have said that the white paper will be informed by the advice they have received, but given that we know they’ve given an impression they had advice when they did not, can we really trust what this Government is saying on this vitally important issue?  Is the position of the Scottish Government simply going to be on what Alex Salmond has decided is the case rather than on any concrete evidence?  Of course, we’re unlikely to see any legal advice the Government ever actually receives because of Legal Professional Privilege so we have to go on trust and today the SNP will have, undoubtedly, lost some of the trust that the Scottish people had in them.

I still await a decision from the Commissioner on my request to the Ministers on whether they received advice over the competence of the Scottish Parliament.  A somewhat moot point now that a Section 30 order is to be made.  However, it does remain an important one in light of recent events.

Scottish Information Commissioner’s Decision 111/2012 – Catherine Stihler MEP and the Scottish Ministers

Release of Prince Charles letters blocked by Attorney General

The Attorney General, The Rt. Hon. Dominic Greive QC MP, has today signed a certificate under Section 53 of the Freedom of Information Act 2000 which overturns the decision of the Upper Tribunal (Administrative Appeals Chamber) in Evans v The Information Commissioner and Seven Government Departments ([2012] UKUT 313).

Section 53

Section 53 has become known as the “ministerial veto” and has been used by the current Government the most since the Freedom of Information Act 2000 (FOIA) came into force.  The veto gives an “accountable person” the right to issue a certificate in relation to any decision of the Information Commissioner, the tribunals or courts regarding an information request made pursuant to the Freedom of Information Act 2000 which has the effect of overturning the decision of the Commissioner, tribunal or court.

In essence it places a public authority given powers to make us of s.53 as the final arbiter in a dispute over whether they were correct to withhold information requested under the FOIA.  It was a key condition placed on the legislation by Jack Straw, the Secretary of State for Justice when the FOIA went through Parliament.  The Commissioner, Tribunals and Courts are there to act as independent arbiters who can look at the case with “fresh eyes” and perhaps more objectively than the public authority or applicant can.  However, at the end of the day the Government remains the ultimate controller of what information it holds it releases.

The Evans requests

The requests in question were made by Rob Evans, a journalist at the Guardian newspaper, in 2005.  They sought the content of correspondence between HRH Prince Charles, the Prince of Wales, and the Ministers of seven departments of central government.  Those departments were:  Department for Business, Innovation and Skills; Department of Health; Department for Children, Schools and Families (now the Department for Education); Department for Environment, Food and Rural Affairs; Department for Culture, Media and Sport; Northern Ireland Office and the Cabinet Office.

There exists, by way of constitutional convention, a right for the heir to the throne to be educated in Government business in order to prepare him (or her) for becoming King (or Queen).  The convention also provides that such correspondence is confidential and its existence or content should not be disclosed.

Upper Tribunal Decision

The Information Commissioner and First-Tier Tribunal sided with the Government and held that the public interest in maintaining the exemption (ss.37, 40, 41 of the FOIA and Regulations 12(5)(f) and 13 of the Environmental Information Regulations 2004).  However, the Upper Tribunal disagreed and in a 65-page judgment outlined the reasons why it decided that most of the withheld information should be released.

It could be argued that there is no public interest in the constitutional convention which provides a right for the heir to the throne to be educated in Government business and for those  pieces of correspondence to be confidential.  That argument is a simple one of democracy given that the Monarch is unelected and in a democracy unelected officials should really not be in a position to influence the way in which a democratically elected Government conducts its business.  This is an argument that I am minded to agree with, but I won’t set out my reasons in full for this here as it really does stray beyond the aim of this post.  However, I shall return to the influencing Government point later.

The Upper Tribunal has accepted the constitutional convention and applied it in this case.  Some of the information withheld properly, it decided, fell within the scope of that constitutional convention.  However, much of the correspondence that was withheld was not, in the Upper Tribunal’s mind, covered by the convention.  That correspondence was lobbying by HRH The Prince of Wales, sometimes on behalf of others.  It was nothing more than correspondence trying to persuade the Government to take a different course.  The Government receives many such letters each year from a wide variety of people.  All those letters would more than likley be capable of being obtained by way of in FOIA information request.  The difference in this case was that the lobbying was coming from the Royal Family and potentially has the influence behind it to cause a change of Government policy.  We might never really know whether the Government changed its policy on things as a result of correspondence received from HRH The Prince of Wales.

Constitutional conventions are not, the Upper Tribunal rightly pointed out, law.  They do not have the same position as a written constitution (such as in the United States of America) and have nowhere near the same effect.  They are essentially, in a lot of cases, nothing more than Parliamentary and Governmental etiquette.  The Upper Tribunal points to the convention that says a Prime Minister must resign from office if, after a general election, he (or she) ceases to lead a party with the majority of seats.  This is a good example of a convention to look at (and indeed we can look only to a few years ago to see it in operation).  Following the 2010 General Election the Labour Party no longer had the majority of seats in the House of Commons.  No party did, by the largest party was the Conservative Party.  While they did not have a majority they arguably had a mandate to govern the United Kingdom (certainly more of a mandate than the other parties did).  However, Gordon Brown remained Prime Minister for several days following the General Election.  Even once the Conservatives and Liberal Democrats had agreed to enter a Coalition there was nothing, in law, requiring Gordon Brown to resign as Prime Minister.  It is simply etiquette that when a Prime Minister looses an election he resigns (essential in a democracy, but not legally required in the United Kingdom).

The Upper Tribunal was placed in a rather unusual position in this case.  It was being asked to consider the extent of a particular convention rather than a purely legal question.  The Upper Tribunal looked at the convention and reached a decision which, from its judgment (and common sense), appears to be a sensible one which gives effect to the convention protecting correspondence educating the heir to the throne in matters of Government policy.  Discussion of this particular convention can be found in paragraphs 89-112 of the Upper Tribunal’s judgment.

The judgment of the Upper Tribunal is lengthy and I don’t want to spend too much time on going through it.  However, the key to understanding the Upper Tribunal’s decision is quite simple, in my view, it rests on the content of the correspondence.  We know from the Tribunal’s decision that HRH The Prince of Wales has been writing to the Government to lobby them on a wide range of issues.  This is not new news to us and has been covered elsewhere, such as in a Biography of HRH by David Dimbleby.   There is, I would submit, a strong public interest in the extent of Prince Charles’ lobbying of the Government.  Someone who is unelected and has as much power and influence as the Royal Family do, particularly senior Royals, must be subject to a level of scrutiny and the public interest in that is greater by the mere fact that they are not elected (in my view).

I won’t say anymore on the Upper Tribunal’s judgment.  I have linked to it at the bottom of this blog post and will now move onto the Attorney General’s s.53 certificate.

The veto of the Upper Tribunal’s decision

The decision to veto the Upper Tribunal’s decision that a large quantity of the withheld information ought to be released is a serious blow to democracy in the United Kingdom.   The Attorney General’s reasons for vetoing the release of the information read more like reasons for releasing the information than not.

The Attorney General makes reference to these being “The Prince of Wales’ most deeply held personal views or beliefs”.  The Monarch is, by constitutional convention, supposed to be politically neutral.  Releasing the information cannot harm the Prince of Wales’ political neutrality because that was harmed the moment his views were communicated to the Government through his correspondence.  If the Prince of Wales is willing to set out his views prior to taking to becoming King then it is not unreasonable to consider that he might be willing to use his influence as Monarch (when he becomes the Monarch) in expressing his views in the future.

This decision from the Attorney General is clearly wrong and undemocratic.  It strikes at the very heart of what the Freedom of Information Act aims to do.  It is open for Mr Evans to seek a Judicial Review of the Attorney General’s decision to use Section 53 of the FOIA.  I hope that he will do so, supported by the Guardian Newspaper.  To date the use of the veto by the Government has gone unchallenged and it risks the democratic process if the Government are not properly held to account over doing so.

Evans v the Information Commissioner and Seven Government Departments [pdf]
Statement of Reasons for use of veto by the Attorney General [pdf]
Criticism for government veto over release of Prince Charles’ lobbying correspondence

Offenders, ex-offenders and society’s attitude

There seems to be a desire in this country to endlessly punish those who have previously committed crime.  Society seems to largely place “criminals” (and especially “prisoners”) into a category of their own that is not recognised as being human.  Yes, some people commit despicable crimes and are deserving of a severe punishment.  However, they are still human and still deserve to be treated with dignity.

One argument that is often banded about when discussing the issue of the rights of prisoners/offenders/accused persons is that they had no thought or respect for the rights of the victim of their offences.  While that may be true, it does not mean that, as a society, we should disregard the rights of those who commit crime; at least not if we are a decent society.

There are a number of things that really frustrate me when discussing criminal justice with people, particularly around those who are serving or have served a prison sentence (although not exclusively).

The first of those relates to prison itself.  Fyodor Dostoyevsky said: “The degree of civilisation in a society is revealed by entering its prisons.” Prison is a punishment; it is the most severe form of punishment that we have at our disposal in this country.  As such, it really ought to be reserved for the most dangerous in society (including those who persistently offend).  The removal of a person’s liberty is a serious matter.  Think of all the decisions you take on a daily basis which rely on your freedom; there are a lot of them.  These decisions are removed from prisoners as part of their punishment.  An individual’s time in prison ought to be productive with those who are acting responsibly and complying with the rules of the prison being rewarded for that.  There does need to be some form of ‘carrot and stick’ approach in prisons; after all there is a far greater number of prisoners than there are prison officers at any given time.  Take televisions as an example.  There appears to be a great deal of upset by members of the great British public that prisoners have access to a television in their cell.  Normally, a television comes as part of the “standard” level of the Incentives and Earned privileges (IEP) Programme within a prison.  It doesn’t feature in the “basic” bracket.  Therefore, a prisoner who doesn’t comply with the prison authorities is liable to lose access to their television until such times as they are put back on the “standard” grade of the IEP scheme.  Prisoners usually have to pay for the privilege of having a TV in their cell as well (normally around £1 per cell with the cost being split between prisoners where there is more than one in a given cell).   There are other “issues” that many in society have with what prisoner’s get, but I’ll not address them in this post as I would like to look at some wider issues that go beyond just those incarcerated for their offences.

Once a person is convicted of a crime the court will sentence them to a punishment that it, with the help of statutory and non-statutory guidance, considers appropriate based on the particular circumstances of that offence.  No two cases are ever the same and as such seemingly similar offences may attract very different sentences.  That sentence might be a fine, a community order or a custodial sentence (there are many more sentences and combinations of sentence, but three will do for the purposes of this post).  The offender will serve the sentence handed down by the court.  They will receive a criminal record which will follow them for the rest of their life (although they may not have to continue to disclose their convictions once certain criteria are met).  That’s all fine and good and the individual should be entitled to go about their life.  However, in this country we seem to favour continually punishing offenders.  Employment all of a sudden becomes harder to gain, insurance premiums rise and it is assumed by many that a criminal record (no matter how old) means they will commit offences again.

There have been some very good examples of ridiculous situations arising because of criminal records that are decades old.  In England and Wales they will soon be electing Police and Crime Commissioners who will take on an important role in holding the local police to account throughout England and Wales.  A number of candidates for this office have had to withdraw from the campaign because of crimes they committed as teenagers; often 40-50 years ago.  It seems quite ridiculous that people who have overwhelmingly been law abiding citizens save for a “blip” half a century ago are still feeling the effect of that today.  What good does it serve society if, after such a long period of time, we are going to continue to judge a person by mistakes they made in the past?  Does such a situation not provide a disincentive to people to go “straight”?  Why stop committing crime if the crimes you have committed are going to continue to haunt you for the rest of their natural life?  The Rehabilitation of Offenders Act 1974 was supposed to prevent such situations from occurring.  However, there is an enormous list of posts which are exempt from its provisions and the periods set out in the Act which must pass before an offence becomes “spent” are ridiculously long in some cases.  I’m not saying that there should be no exceptions.  Of course a known paedophile should not be permitted to work with children.  However, the exemptions and the “rehabilitation periods” should certainly be tightened up a lot more.  Former Justice Secretary Ken Clarke had suggested doing this in England and Wales.  However, his party was not really behind him and as such it was never going to happen.

Another recent proposal, announced by Ken Clarke, which is an example of never-ending punishment, is to remove those with unspent serious convictions from eligibility to receive criminal injuries compensation.  If a person is given a custodial sentence of more than thirty months (2.5 years) then the Rehabilitation of Offenders Act 1974 does not provide a period after which the conviction is spent (i.e. it never becomes spent).  Such persons may, under this proposal, never be entitled to criminal injuries compensation.  Let’s consider a person sentenced to four years imprisonment when they are 16 for assaulting someone using a bladed article.  They are released from prison and live a law-abiding life from their release.  They go through life and in their fifties are seriously assaulted.  They continue to have an unspent conviction and would not be entitled to criminal injuries compensation.  Is that really fair? It’s nothing other than treating someone differently because of something they did decades prior to being the victim of a serious crime.  It’s simply prejudiced.

I firmly believe in and support the rights of those in prison and those convicted of crimes.  They may have transgressed the rules of society, but they are punished for that at the time.  However, I do also believe in offenders taking responsibility for their offences.  That should rarely mean being continually punished for the rest of their life because, for example, they stole when they had no money or did something reckless when they were younger.

I believe that we need a sensible, level-headed debate around criminal justice in this country.  Far too often punishment and rehabilitation are pitted off against one another when the two need to be looked at together, as part of the one system.  Punishment is essential as a way of ensuring those who commit crimes take responsibility for their actions, but at the same time we should be encouraging offenders to change and not putting brick walls in their way when they do try and change.  There are some excellent examples of people who have committed offences in the past, but have managed to turn their life around and make a success of it.  We should not place unnecessary barriers in the way of others who want to do the same.  Employers need to be more open-minded as does society as a whole.  We need to stop treating offenders and ex-offender like second-class citizens (or worse, as sub-human) and start engaging properly and effectively with them if we are to have a decent society.  Fyodor Dostoyevsky was correct.

Justice Committee’s FOIA conclusions – Part 2

Yesterday the Justice Committee published its report into the Freedom of Information Act 2000 (FOIA) following its post-legislative scrutiny of the Act.  I have already looked at the committees report insofar as it relates to the big FOI battles and in this post will look at the recommendations of the Committee that will strengthen the Act.  You can read the first blog post here.

One of the big frustrations about the way in which the FOIA operates currently is the way in which public authorities can kick requests into the long grass.  Under s.10(1) of the FOIA public authorities must respond promptly to a request and no later than 20 working days following its receipt.  There is an exception to this time limit provided for in s.10(3) of the FOIA which means where public authorities are having to consider the public interest they can take such time as is reasonable in the circumstances.  This has come to be known as the “Public interest extension”.  There is no upper limit on this and public authorities can (and do) take months to provide a response to a request.  The Committee has dealt with this point in its report by recommending that the current good practice guidance of the Commissioner be put into statute.  In essence this would mean that a public authority could only extend the initial 20 working day deadline by a further 20 working days to consider the public interest test.  Any further delay would only be permissible where a third party has to be consulted.  I understand the Committee’s reasoning behind the further extension for third party’s as it can be difficult to get private companies or individuals to respond in a manner that is timely so as to meet the time limits in the FOIA.  However, I would want to see other public authorities excluded from such an extension.  There is no excuse for another body subject to the Act not to respond promptly when they need to be consulted about a disclosure.

Another area of frustration is the length of time taken to conduct internal reviews.  In Scotland, we  have had since the introduction of our Freedom of Information legislation a clear 20 working day limit on  internal reviews.  In the FOIA the only real time frame was the requirement for a prompt determination under the code issue by the Justice Secretary pursuant to s.45 of the Act.  The Information Commissioner has issued guidance on internal reviews saying that they should normally be conducted in 20 working days and certainly no longer than 40 working days.  However, some authorities have had great difficulty in complying with this good practice guidance and it is clear that a statutory timeframe is needed.  So, it is very much welcome that the Committee makes such a recommendation.  The Committee said:

It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews

The Committee has recommended that a statutory time limit of 20 working days be placed on internal reviews.  Disappointingly though they also recommend that this can be extended by a further 20 working days where it is a particularly complex or voluminous request.  Putting it on a statutory footing will give the Commissioner some additional “bite” when it comes to dealing with extraordinarily long delays in dealing with internal reviews.  It will also provide a clear point at which a s.50 complaint can be made.  I would suggest that, as with the current position on the s.10(1) deadline, that a applicant should be notified within the initial 20 working day limit, in writing, when the deadline for a review is being extended.  That reflects current good practice of the Commissioner that is frequently ignored by authorities, even those who rarely take longer than 40 working days to consider a review.

Another welcome recommendation in the report is to the time limit on brining a prosecution under s.77 of the Act.  It is clear that the current position of a prosecution having to be brought within 6 months of the offence being committed is impractical.  Even with the strengthening of the time authorities have to respond to requests and internal reviews the Commissioner would be left with insufficient time to find sufficient evidence to bring such a prosecution.  Even in Scotland where there are two clear periods of 20 working days (one each forthe initial response and the internal review) the ineffectiveness of the equivalent provisions has been noted.  The Justice Committee has suggested that the offence be made an “either way” offence meaning that the 6 month time limit is no longer an issue.  It has also recommended an increase in the maximum penalty from £5,000.

This is important because the Commissioner has said publically a number of times that he has seen evidence of offences being committed under s.77 but has been powerless to do anything about them.  The Committee said in its report:

 The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.

This is a clear message from the committee then to those authorities that engage in criminal activities to avoid answering FOI requests.

I wrote recently, in light of the G4S Olympic shambles, on whether private companies delivering large public sector contracts should be subject to the FOIA in their own right.  I concluded that there certainly is a case for large companies carrying out public sector contracts to be covered by the FOIA in their own right making them more accountable to the public.  The Committee though does not see the need for such action to be taken and state:

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.

The committee is satisfied that the current system of placing clauses in contracts to ensure that private companies need to co-operate with public authorities on FOI is sufficient.  The power of course is there for partial designation and the Government should not be afraid to use it.  The Committee clearly doesn’t rule out entirely the use of s.5 of the Act.  The Information Commissioner and the Government should be monitoring the situation closely and be willing to partially designate a private company where problems exist.

One final recommendation made by the Committee that I want to look at is in relation to Disclosure logs and the publication of the names of those making information requests.  Currently, no public authority who operates a disclosure log publishes the name of the person who made the request.  The Commissioner doesn’t publish the name of applicants in decision notices either (although the Scottish Information Commissioner routinely publishes the names of both parties in decision notices).

There are Data Protection considerations here.  Publishing the name of applicants would be considered as processing personal data.  The Commissioner doesn’t publish the names of applicants in his decision notices because of Data Protection.  The Scottish Information Commissioner doesn’t have any bother, although this might be down to the way in which it is approached.  From the outset applicants for a decision under s.47(1) of the Freedom of Information (Scotland) Act 2002 are told of the Scottish Commissioner’s view on publishing names and are given an opportunity to state why they believe their name should not be made public.  If the Commissioner hears of no reasons at all it could be said that people have effectively consented to their name being made public as part of the decision notice.

Until there is a statutory basis of such a move public authorities would be well advised not to take such a step so as not to get into bother with the ICO (who regulates data protection as well as the FOIA).  It is a complex issue and one that I might devote a future blog post to.

On the whole I am very pleased with the report that has been published by the Justice Select Committee.  It is both fair and balanced.  It makes it clear that FOI is of a greater benefit than it is cost and I hope that the Government accepts its recommendations.  Change to the Act is some way off though.  The content of the report will need to be considered by the Ministry of Justice and the Cabinet.  I wouldn’t expect to see a Bill making amendments to the Act before early next year and it could be the end of next year before any changes made come into effect.  However, this report will certainly make it much harder for the Government to introduced amendments that will weaken the Act and will hopefully make those who continually try to discredit the Act quieten down, for a while anyway.

Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)

Justice Committee’s FOIA conclusions – Part 1

Today the Justice Committee produced their report on the Freedom of Information Act 2000 (FOIA).  This concludes the Committee’s post-legislative scrutiny of the FOIA and follows many written submissions and oral hearings of evidence.  I submitted my own written evidence.

The tone of the report was set from the very outset where the first words of the report declared Freedom of Information to have “been a significant enhancement of our democracy.”  From the very outset it was clear that the committee was not going to be recommending anything that would substantially reduce, restrict or harm the rights afforded to everyone under the FOIA.

There were some clear battles between proponents of the FOIA and those who were seeking to undermine its provisions.  Many from within Government were clearly wanting a return to the “good old days” of total secrecy and the ability to largely control what was released from the Government’s large archives of information.  In almost all of those battles though the Committee rejected the arguments of those seeking to undermine the provisions of the Act and have produced a report that if implemented would further strengthen the Act.

One of the battles that has emerged is the effect that FOI is having on the workings of Government.  High profile people argue that there has been a “chilling effect” where less is being written down about important decisions.  Lord Gus O’Donnell (GO’D) and others would have you believe that inside of Whitehall civil servants are paralysed with fear to send an E-mail or write down notes when on the telephone in case that bit of paper is released under FOI.  The committee were not convinced and stated so:

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act

Given that uncertainty, the committee say, they would not be recommending any changes to the current system.  The Committee points to the Commissioner’s decisions and Tribunal judgments which clearly recognise the safe space said to be needed for effective Government.  They also point to the ministerial veto which can be used for when the Government thinks that the Commissioner/Tribunal got the public interest test wrong.  To GO’D and the others concerned about the infringement upon the safe space the Committee recommends that people be reminded “that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary.”  The key seems to be about education rather than amendment.

In evidence the Attorney General accepted that there would be occasions on where the public interest does not lie in maintaining the s.35 exemption.  His comments came in relation to discussions about minutes made at meetings of the Cabinet.  The AG is quite right on that point and it is why it is excellent that the Committee has not recommended making s.35 an absolute exemption or creating a class exemption for cabinet minutes.  These things should be determined by what is in the public interest.

Another area of battle that has come about over FOI is the cost and burden to public authorities of FOI.  A lot of public authorities who submitted evidence complained about how much time it took or how much it actually cost to deal with FOI requests.  The Committee however pointed out in its report that when public authorities are looking at the cost of answering an FOI they are not looking at the wider benefits of FOI.  The Committee in their report state:

FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure.

It is important that when discussing the costs of FOI that we do not overlook the savings that are made or the potential for savings to be made as a result of the FOIA.  After the MPs expenses scandal and other scandals involving wasteful spending of taxpayers’ money, public authorities are more aware that their spending decisions are more likely to be scrutinised and be scrutinised to a greater extent.  No longer can public authorities publish meaningless budget figures which allow the public to see spending only at the highest possible level.  It is now possible for people to investigate those costs further and drill down to see exactly how money is being spent and wasteful spending can be identified.  This saves money for the public in the long-run and should force public authorities to think more carefully about spending decisions.  As time goes on hopefully public authorities will look beyond the nice shiny immediate savings and consider how in three or four years time their spending might look in that area as a result of the decisions taken today.

Recently FOI has revealed some financial issues which are costing the UK taxpayer.  The Telegraph reported that data from an FOI request showed that large numbers of EU students were coming to universities in the UK, taking advantage of loans and then either disappearing or going into arrears with the repayments.  This is a cost to the taxpayer and FOI has made this information public which will hopefully result in action being taken to ensure that this money is recovered and perhaps a look at the system to ensure that EU students taking advantage of loans here in the UK repay them.

The Committee looked at a number of ways that flat fees could be introduced to FOI.  They dismissed charging some and not others for simply making a request because of the applicant blindness requirement, but also because it would be easily circumvented and both difficult and expensive to police.  They also stated that introducing “fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act.”

Some public authorities had made mention of frivolous requests, such as those about plans to deal with a Zombie attack.  The committee was satisfied that this was a relatively small problem and that these “requests can usually be dealt with relatively easily, making it hard to justify a change in the law.”  Of course, it has been pointed out that not all requests which public authorities deem frivolous are such.  Local authorities have paid for exorcisms and the MoD has spent public money on collating information about UFO sightings.  As for zombie attacks, well some people are genuinely afraid of such matters and if spending a few quid to send them a letter saying “we have no specific plans, but our civic contingency plans would cover it” reassures them then that’s just fine.

If the law were to be changed to include frivolous requests to be refused then defining such requests would be a nightmare and no doubt a lot more money would be spent on appeals to the Commissioner and Tribunal than it does to just answer the request in the first place.  Vexatious requests are another matter and are provided for adequate in the current Act.

The Committee was seemed alert to the burden of FOI on authorities though in times of austerity and recommended a slight reduction in the appropriate limit of a couple of hours.  It rejected though suggestions that including the time spent reading and considering the information for disclosure.  Of that it said that these “activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.”

That concludes the first part of this run through the Committee’s report and looks at some of the major battles that have been going on in the world of FOI.  The next part of this run through will focus on the recommendations that the Committee has made which will strengthen the process and the Act.

Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)


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