Category Archives: Law Reform

Lord Carloway, formerly of the SFA Judicial Panel (And Much Else), Appointed Lord Justice Clerk

Lord Carloway QC has been appointed by the Queen to be the new Lord Justice Clerk. He replaces Lord Gill who was recently appointed as the new Lord President.

Lord Carloway was nominated by the First Minister taking account of recommendations made by an independent selection panel.

Lord Carloway was appointed a Judge in February 2000 and was appointed to the Second Division of the Inner House in August 2008. He was admitted to the Faculty of Advocates in 1977 and was appointed Queen’s Counsel in 1990. Continue reading

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Filed under Courts, General Scots Law Rambling, Law Reform

The MacAskill Plan to Save Scots Law Gangs Agley

Last year, according to Kenny MacAskill, Scottish Justice Secretary, the Cadder ruling by a “foreign” court put the future of Scots law at risk.

As part of the defence mechanism Lord Carloway was asked to chair a review into Scots criminal law post-Cadder.

The most distinctive feature of Scots criminal law the world over is the need for corroboration before a criminal conviction.

Lord Carloway’s 414 page report has concluded that the need for corroboration is “archaic” and has recommended its abolition.

So the unique distinguishing mark of Scots law is to go?

Perhaps there will be a hunt to see if His Lordship can be classed as “foreign”?

The report covers much more, which I will consider later, but this point seemed note worthy!

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Filed under Cadder v HMA, Criminal Law, Human Rights, Law Reform

Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

 

 

Following on from the furore regarding the acquittal of John Wilson on the charge of assaulting Neil Lennon last season at Tynecastle, Paul McBride QC turned up on Newsnight to discuss the verdict.

Mr McBride is one of the finest lawyers in Scotland, and his courage in dealing with having an alleged letter bomb allegedly sent to him is much to be admired.

However I think that he was slightly less than fair in all that he said, and I wonder if his comments are a preview of a position which will become more widely adopted.

Mr McBride expressed astonishment at the verdict passed by the jury. He commented that he had spoken to no one, whether in the legal profession or outside, who could remotely understand the verdict of not guilty on the assault charge. As he was speaking, various people, some with legal backgrounds, were seeking to explain the verdict if not seeking to justify it.

Chris Fyffe, a Dundee solicitor-advocate, in a detailed and thoughtful analysis commented at length regarding the matters which had been publicised to point out how the jury might have arrived at its decision.

The process by which a jury reaches its verdict is shrouded in mystery, and under Section 8 of the Contempt of Court Act 1981  it is an offence to “obtain, disclose or solicit” details of the jurors’ deliberations. The Scottish Courts have regularly confirmed that it is impossible to go past the jury room door once the judge has sent the jury off to consider its verdict, for example in the case of Scottish Criminal Cases Review Commission, Petitioners in which the decision was handed down on 25th July 2001 and which is reported here.

So all that anyone can do is to guess at quite how or why the jury reached its verdict as regards Mr Wilson.

Mr McBride however did appear to be well aware of what was, in his view, relevant to the decision. He commented that the Crown had presented an excellent case. Bearing in mind that Mr McBride was not present in court throughout the case, as I have had confirmed to me, one wonders how he is in position to comment on how the case was presented. It is not uncommon for an apparently watertight case to leak like a colander once the lawyers start talking, and witnesses enter the witness box. That is why, after all, we actually hold a trial!

Whilst I have read and heard opinions expressed that the Crown must, in some way have botched the presentation of the case, I am in an equally poor position as Mr McBride to comment on how the case was laid out in court as I was not there either. Any criticism I have of Crown Office relates to the background of the apparent removal of discretion from the individual prosecutor, rather than anything done in Edinburgh Sheriff Court by them.

But Mr McBride concluded with a statement which is, to me, of great concern. Whilst he did not specifically relate it to this jury (and neither he nor anyone else is capable of speaking with authority about this particular jury) his comment by implication did seem directed towards the jury box at Edinburgh Sheriff Court.

He complained that in Scotland, unlike many other systems, we had jurors who could not read, who could not write and who were laden with prejudices. Something had to be done, said Mr McBride, to resolve this problem.

Mr McBride, as well as his prominent position in the legal firmament, is closely linked with the Conservative Party, having left the Labour Party behind.

In light of that, might his musings about the defects in the jury system be given greater credence, than those of other lawyers?

Many lawyers over the years have blamed the jury and its quirks for a case ending in a way they did not like. This applies equally to prosecution and defence. It’s like blaming the referee for losing a football game, or the doctor stating that the operation was a success, but the patient died.

Is the Scottish court system imperilled by illiterate, innumerate and prejudiced jurors? Have we now reached a stage where the jurors’ oath and the directions of the judge are no longer sufficient to ensure that justice is done? Does Mr McBride want a return to the days of “peremptory challenges” of jurors, where generally the defence would object to any teacher sitting on the jury and if a person turned up for jury duty with a suit, bowler hat, rolled umbrella and copy of the Daily Telegraph, they would be objected to before they had had a chance to move towards the jury box?

Does Mr McBride want to have jury vetting, as in the United States? In a recent high profile case there, where the baseball star Roger Clemens was tried for perjury, jury selection went on for over a week, before the trial, having started, collapsed on Day 2! Whilst the legal profession might delight in the extra work such a process would bring, it would do nothing for the hard pressed courts and the amounts of work that has to be processed.

Should there be pre-jury service questionnaires to establish competence on the part of prospective jurors? I suspect some would try to “fail” such tests so as to avoid service! Should we revert to some form of property or other qualification for jurors? For example, must they be a home owner and in employment, and how does that deal with the questions of competence and prejudice?

I may be making far too much of a throw away remark by Mr McBride QC, but he is not a man known for that. Generally his comments are well thought out and delivered clearly. If he feels that the jury system needs revised in some way, then I am sure he could persuade others to that view. Where might that lead?

In conclusion, the maxim that “Hard Cases make bad law” is figuratively engraved on anyone who has studied law. Taking unique or especially troubling, distressing or baffling cases or incidents and trying to establish some across the board change as a result is usually a recipe for disaster, for example with the Dangerous Dogs Act. Let’s hope that the decision of the jury in Mr Wilson’s case, who were of course the best placed people to determine the issue of Wilson’s guilt or innocence, is not used to make radical changes of any sort.

 

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Filed under Courts, Criminal Law, Jury System, Law Reform