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

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

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

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

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

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

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

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

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

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

Consultation on safeguards after the abolition of corroboration

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal Justice, Criminal Law, Protest For Justice, Scots Law

Why #ProtestForJustice really does matter

So much excellent writing has been produced on the ‘Protest for Justice’ movement that has taken hold of Scotland’s legal profession.  The movement is in response to the Scottish Government’s plans regarding criminal legal aid.

The concern from the legal profession is that the proposed changes to legal aid will harm access to justice for the poorest and most vulnerable in our society.  They are the people who are working and contributing to society, but are low earners who are living on the breadline.  They can ill afford the costs of living let alone significant contributions towards legal aid should they find themselves in the unfortunate position of requiring the services of a defence lawyer.

I have written before on just why criminal legal aid matters to everyone in society and not just those that people consider to be ‘criminals’.  It provides a few examples of how everyday situations can result in an otherwise law abiding person requiring the services of a criminal defence solicitor.  There are many more such situations where something a person does every single day of their life can suddenly result in finding themselves in a living nightmare facing, sometimes very serious, criminal charges.

Most of us knew that when the decision to strike was taken that there would be little support from the general public in Scotland.  Criminal lawyers are not particularly well liked by many in society.  They are seen to be earning salaries which often only partners in the bigger commercial firms have the potential to earn and while earning these salaries they are engaging in activities which society appears to find morally repugnant.

I’m not a criminal defence lawyer, but those who know me will know that criminal defence is the area that I want to practice in when I complete my studies in 2014.  When people ask me what type of law I wish to practice I get the same questions that those already practicing in the field get.  These questions are flawed in the presuppositions they make and are based on an understanding of the criminal justice system that is ill-informed and could even be described, on occasions, as prejudiced.

The role of a criminal defence lawyer is multifaceted.   However, the central principle is to ensure that the accused receives a fair trial (and that includes the guilty).  There is absolutely no obligation upon any individual to convict themselves.  A guilty person is perfectly entitled to run a trial and put the Crown to proof.  The burden of proving the accused’s guilt rests with the Crown.  It is for the Crown to prove the accused’s guilt and not for the accused to prove their innocence.  The system is built in this way primarily to take account of the power of the State against the power of the accused.

The State has at its disposal a vast array of resources that an accused person does not.  To begin with; the State has a professional investigation team (the police) to gather the evidence supporting the view that the accused is guilty of an offence.  It then as a professional legal team (the Crown Office and Procurator Fiscal Service) to assess the evidence, build the case and present it in court.  The professional legal team can instruct the investigation team to conduct further investigations, to take statements from particular individuals and conduct further (expensive) forensic examinations.

On the other hand the accused has their single defence lawyer (if the case is going to the High Court that lawyer will often be assisted by Counsel in the same way that the State is often assisted by Counsel in the High Court).  They don’t have an investigative team with the resources and experience of the police.  The knowledge and experience gap between the accused and the State is somewhat filled by the defence lawyer.  They will assess the evidence obtained by the Crown and advise the client based on that evidence.  If the defence lawyer can see no possible or realistic defence to the charges brought against the individual then the advice would be to plead guilty.  However; it is only advice and not an instruction.  The accused might not feel as though they are guilty or they might be able to bring something to the evidence at a later date which casts a different light on the Crown’s evidence.  In both circumstances the accused has the right to put the Crown to proof.

Putting the Crown to proof is simply telling the Crown: ‘you think I’m guilty, so prove it’.  There are incentives built into the system to persuade a guilty accused to enter a guilty plea.  For example, pleading guilty at the earliest opportunity can attract up to a one third discount on the sentence given by the Court.  In serious cases a third can be a considerable amount of time off a prison sentence.  You might argue that it’s not fair to reward an accused person for doing “the right thing”; that reducing their sentence is an injustice to the victim of the crime.  One could view it that way; or one could consider that a guilty plea can save the stress of the complainer having to give evidence to prove that they are a victim of a crime.  It also saves expensive court time and frees up the police and prosecution to focus on other crimes that have been committed.

The role of a criminal defence solicitor is essential in ensuring both the integrity and fairness of the criminal justice system.  It is essential that all those who cannot afford to pay for a lawyer can obtain the specialist services that they offer when facing a criminal charge.  If it was you who was in the dock protesting your innocence you would want someone fighting your corner.  Don’t let the Scottish Government remove that from you and others.

Further Reading

Sarah Prentice: Why I won’t desert the ‘sinking ship’ (Sarah Prentice, Scotsman)
Vulnerable left to count the cost of justice (Aamer Anwar, The Scottish Sun)
Courts face widespread disruption as angry lawyers plan first national strike (Gareth Rose, Scotsman)

Carloway Review, Corroboration, Protest For Justice, Scots Law

Response from Scottish Government

Earlier this month I wrote a letter to Kenny MacAskill primarily on Corroboration in Scots law.  That letter was an open letter and can be read here.  Today, I received a response from the Scottish Government and in the name of openness and transparency here is the response:

Dear Mr Sloan

Thank you for your email of 1 November to the Cabinet Secretary for Justice. I have been asked to reply.

The Scottish Ministers are aware of the concerns that have been raised by members of the legal profession regarding the potential removal of the requirement for corroboration. An analysis is currently being undertaken of all responses received. The Cabinet Secretary for Justice believes that it is important to consider all views expressed as part of this consultation process. This not only includes the views of the judiciary and legal professionals but also academics, individuals and the views of the Third Sector including those who support the victims of crimes.

Changing something so synonymous with Scots law has, quite rightly, led to a considerable debate on this topic. This debate has ranged from whether the rule should be abolished to identifying possible safeguards that may need to be considered if it is removed The Cabinet Secretary has made clear that he is fully committed to listening and reflecting upon these responses and considering how the reforms recommended by Lord Carloway can best be achieved.

The responses received are currently being analysed and we hope to be in a position to issue a report on the consultation exercise before the end of 2012.

Your comments with regard the role of the Lord Advocate have been noted.

Your sincerely

PATRICK DOWN