A Phony Consultation? Corroboration on its Way Out, Despite the “Divide” in Legal Opinions?

A fine example of the openness to differing opinions and the advantages of the Scottish system of consulting about legislative plans comes from the debate regarding dramatic changes to the Scottish criminal justice rules, including the abolition of corroboration, as recommended by Lord Carloway, in his recent review.

From the Law Society of Scotland Journal Online:-

Justice Secretary Kenny MacAskill has hinted that the Scottish Government is likely to proceed with its plans to abolish the corroboration rule in Scots law, despite the opposition of many in the legal profession.

In his speech to the SNP conference at the weekend, Mr MacAskill acknowledged the opposition to the change, which was recommended in Lord Carloway’s review of criminal evidence and procedure published late last year but has recently been opposed in submissions by the other Scottish judges, the Faculty of Advocates and the Law Society of Scotland, as well as local bar associations.

The Scottish Police Federation has also come out against the move, although it is supported by the Association of Chief Police Officers in Scotland.

Advertisement

Joan McAlpine MSP Gets It Oh So Wrong on the Supreme Court Asbestos Case – No Lassie No!

It is the job of Parliament, both at Westminster and Holyrood, to make laws. Whilst a parliament full of lawyers is a prospect too horrible to contemplate, one would hope that the MPs and MSP’s charged with passing legislation would have some grasp of the issues before them. That often seems lacking however.

In addition, as I have mentioned before, the standard of coverage of legal issues in the Scottish media falls far short of the levels of the past, and of what helps properly to enlighten the public.

On 20th September the Scotsman printed a fine example of the “double whammy” of a journalist and MSP producing a woefully inaccurate article.

Step forward Joan McAlpine, SNP list MSP for the South of Scotland. Ms McAlpine has had a distinguished career in journalism, and latterly moved into blogging with the acclaimed Go Lassie Go blog. In May she won a seat at Holyrood.

On 20th September however her piece was so incorrect and inaccurate that there was some discussion about whether or not it could have been part of a “Spot the Deliberate Mistake” competition!

Her article seems to have been written as a follow up to this earlier piece by Gareth Rose. Mr Rose wrote his piece, with comments from interested parties and despite an over statement of the effects of the particular condition referred to, namely “pleural plaques”, there was little to fault.

This would appear to have prompted Ms McAlpine to pick up her pen and she wrote, under the headline “Shameless Effort to Evade Justice may Affect us all” about the legal challenge brought to the UK Supreme Court by insurers seeking to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament.

 

 

 

“ANYONE who thinks the row over the Supreme Court is esoteric should pay attention to a case due in the next few weeks, when insurance companies ask judges to “protect” them from workers with industrial disease. The Supreme Court is asked to overturn an Act of the Scottish Parliament that compensates workers exposed to asbestos on the grounds that this popular legislation violates insurers’ human rights.

The decision is due this Wednesday 12^th October, the case having been argued at the UK Supreme Court, and televised live on the internet, in June. Mr Rose noted the due date for the judgment but Ms McAlpine seems to have missed that.

The case is not about insurers asking for protection from workers with industrial diseases either. The case is about whether or not the Scottish Parliament has the competence, standing the terms of the devolution settlement, to pass such a law. Whilst there are a number of claimants named in the proceedings who are persons alleging that they suffer from pleural plaques, they were not sued by AXA and the other insurers, but intervened in the case to have their voices heard, as they were allowed to do by Lord Uist reported at AXA Insurance and Others v Lord Advocate and Others [2010] CSOH 36.

The issue is undoubtedly an important one, but not for the reasons suggested by Ms McAlpine. And the popularity of a piece of legislation has no bearing, as far as I can see, on its legality!

 

 

Now you might think the man with damaged lungs is more deserving of legal protection than the loss adjuster. It’s one thing to respect the dignity and privacy of all human beings, no matter what they have done. But extending this principal (sic) from individuals to institutions is a bizarre development. Do insurance companies bleed? Do they gasp for breath?

Let’s pass quickly over the spelling mistake and move to the next errors. Ms McAlpine seems surprised that insurance companies are claiming the protection of “human rights”. Whilst that might, at first glance, look odd, the position has been clear for many years. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The full title of the ECHR refers to fundamental freedoms and is not restricted to human persons only. A company is, in law, a legal entity and it too has the right referred to under Article 6 for example. There is no issue therefore about a company having “human rights”. It does.

Ms McAlpine, echoing Shylock in the Merchant of Venice, then goes on to contrast the flesh and blood worker with the soulless corporation. But her reference to “gasp for breath” is, as I will show below, also inept.

If they prick us, do we not wheeze...or something like that?

 

 

Asbestos is now recognised as a carcinogen. The lagging and insulation material was once widely used in construction, and particularly in the traditional shipbuilding communities such as Glasgow, Clydebank and Greenock. Survivors tell stories of leaving footprints in deadly dust that covered workshop floors like a light dusting of snow.

Asbestos was hailed upon its discovery as a fantastic material – waterproof, fire-resistant and easy to use. However, it had one drawback – its use could prove fatal to those who worked with it or who inhaled the asbestos dust of fibres. By saying that “now” asbestos is recognised as a carcinogen ignores the fact that that has been acknowledged since at latest the 1970’s.

 

In 2007, judges in the House of Lords in their wisdom decided that pleural plaques were a condition that merited no compensation – reversing the practice of 20 years. The decision prevented future sufferers from pursuing a claim and those who had started one were then left with nothing – the UK government has now retreated and offered the latter a one-off lump sum which is time limited.

The 2007 case, known as Rothwell [2007] UKHL 39, was where the House of Lords overturned around 20 years of legal understanding by declining to treat pleural plaques as being a compensatable injury. This was not some heartless decision by faceless judges, but a reasoned and principles, though widely disputed, judgment. To see why it came about, we need to look at what pleural plaques actually are.

The British Lung Foundation website gives us information on them. It states as follows:-

What are pleural plaques?

Pleural plaques are areas of scar tissue on the pleura. The pleura is a two-layered membrane surrounding the lungs and lining the inside of the rib cage. In virtually all instances of pleural plaques there are no symptoms and you can live with them without having any long-term problems with your health.

If you have pleural plaques, it does not mean that:

• you will go on to get a more serious disease
• you have a more serious disease at the moment
• you are likely to get a serious disease in the future.

While exposure to asbestos does carry a risk of developing a serious lung disease, such as asbestosis, mesothelioma or lung cancer, scientific evidence shows that having a pleural plaque does not increase that risk. Pleural plaques are not the same as asbestosis and they are not a pre-malignant form of cancer.

…

Do people need treatment for pleural plaques?

No. If you have been exposed to asbestos, but have no symptoms, such as breathlessness, there is no need to have any treatment. If you develop a cough which lasts a long time (more than three weeks) or you cough up blood, it is important to see your doctor straight away. Although these are not symptoms of pleural plaques, it may mean that you have a different, more serious, illness.

Does anyone die from having pleural plaques?

No.

Do people need an operation?

No. There is no need to treat pleural plaques in any way.

———————————————————————

So we have a symptomless condition that, whilst being a marker of asbestos exposure, is not a guarantee that any further condition will develop, nor is it a step on the way to the deadly asbestos related conditions such as mesothelioma. It was for this reason that, after 20 years where claimants for asymptomatic pleural plaques might receive from £5,000 – £10,000 compensation, the House of Lords decided that, as there was no “injury” within the legal meaning, there was no right to compensation.

The insurers, some of whom have gone out of business as a result of asbestos related liabilities, were delighted. Whilst the sums awarded by way of damages were much smaller than in an asbestosis or cancer case, the fact was that the vast bulk of asbestos injury claims related to pleural plaques. This decision therefore saved the insurers possibly billions of pounds. Understandably there was an outcry, but the Rothwell case did not attack the awards for conditions where there was suffering caused.

 

However the Scottish parliament moved to defend victims inside its legal jurisdiction and in 2009 passed The Damages (Asbestos-related Conditions) (Scotland) Act to ensure the Lords decision did not apply here. It received cross party support in Holyrood. The insurance companies were shameless. This should not really surprise us – they had previously tortured asbestosis sufferers by dragging out their cases for years in the hope the claims would die with them.

Now I hold no great love for insurance companies – my professional career has been largely spent fighting with them, but we must acknowledge that insurers are a business looking to make a profit. As a result they try, as far as they can, to reduce what they pay out. However, the canard that they want to drag out cases till the claimant dies, and thus save money, is one long in the past. The law gives no advantage to the insurance company in these circumstances now, as the claim passes on to the deceased’s next of kin. In fact, some recent decisions at the Court of Session suggest that it might now cost insurers more where they claimant dies than if they survive.

To say that a business doing what it is legally obliged to do – namely to act in the interest of its shareholders, is shameless is unfair. Does Ms McAlpine wish the few remaining insurers based in Scotland, if “shameless”, to leave?

 

The companies challenged Holyrood’s 2009 Act, without a scintilla of embarrassment. Indeed they were brazen in their contempt, not just for the law but for the people of Scotland and the parliament we elected. When the Court of Session in Edinburgh twice throw out their challenge earlier this year, David Williams, the claims and underwriting director of Axa, was reported as saying the industry had always doubted that a Scottish Court would overturn an Act of the Scottish parliament. This insinuates our most senior judges are compromised by nationality.

The courts are there to adjudicate on legal disputes. Is Ms McAlpine suggesting that the insurers ought not to have been allowed to test the issues in court? I fail to see how using the procedures that are there can be seen as contemptuous towards the law, the people of Scotland and the Parliament. Ms McAlpine refers to the Scottish court twice “this year” throwing out the challenges.

In fact Lord Emslie, at [2010] CSOH 2, delivered a lengthy and erudite opinion running to 2409 paragraphs of detailed legal analysis. As might be guessed from the citation, that occurred in 2010, the decision being issued in fact on 8^th January that year.

The insurers appealed, as is their right, and this too was rejected by the Inner House, reported at [2011] CSIH 31. The Lord President, and Lords Eassie and Hardie determined that the insurers’ challenges failed. But at no time in either of these judgments did the courts indicate that they viewed the action of the insurers as ones of contempt. Indeed, in the penultimate paragraph of the appeal judgment, their Lordships stated “…while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.”

The insurers then proceeded to appeal to the UK Supreme Court. There has been a long-standing right of appeal in civil cases to the House of Lords, the UKSC’s predecessor. There are few of the constitutional issues which arose when some, including the First Minister, accused the UKSC of interfering in Scottish criminal law in the Fraser case. Whilst Mr Williams, quoted by Ms McAlpine, was not tactful, his comments were much less offensive to the judges, I would guess, than those of Mr Salmond and Mr MacAskill, who accused the UKSC of “ambulance chasing”! As Ms McAlpine is a staunch Scottish Nationalist, one might think she would be happy that the Scottish courts have a reputation for standing up for Scottish law!

 

Williams went on to declare the insurance companies intention of challenging the act outside of Scotland: “The Supreme Court is our best chance. We are bullish and will be preparing for the next steps of the case.”

There seems to be a refrain in the SNP of treating the UKSC as a “foreign” court. Yes, it sits in London, but generally has at least two Scottish judges sitting in any Scottish case. As has been commented in the context of the Fraser case, it seems odd that the SNP seem to dislike a court sitting in London comprising 40% Scottish judges, but welcome the European Court, where there is one British judge!

 

That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds – the case hinges on their property rights – though stranger things have happened.

As already mentioned, and indeed as had been reported in the Scotsman, the appeal was heard previously and the judgment will be issued on 12^th October. Having watched much of the case it is fair to say that the performance of counsel for the Scottish Government was unimpressive, leading to online discussion (not seriously I should add) as to whether or not counsel had been instructed to ”take a dive” so as to lose the case, allowing the SNP to complain that their laws were being overturned by a “foreign” court. Sad to say, Ms McAlpine’s article would actually lend weight to that frivolous theory! And again the snide reference to the case being heard in London – one can hear the sneer in our Parliamentarian’s voice!

After the invective directed at the insurers by Ms McAlpine for arguing about human rights, it is of note that she acknowledges that, in fact, the “property rights” case is observed to be the stronger leg of the insurers’ submissions.

 

But there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.

Once more we have a disparaging reference to London, ignoring the fact that the UKSC is, as the name hints, the Supreme Court for the United Kingdom! As already mentioned, if Holyrood has exceeded its competence, then it does not matter how “popular” the legislation is – it is ultra vires and cannot stand. For my part, I agree with the judges in the Court of Session regarding this issue, but there is an issue on the retrospective application of the Act which flies against commonly recognised legal principles.

Ms McAlpine’s complaint is that the UKSC cannot strike down a Westminster Act. Of course, under the present constitutional arrangements, like it or not, the Scottish Parliament is a creature of Westminster legislation. The powers of Holyrood derive from the Scotland Act, and Westminster can, short of Mr Salmond making a unilateral declaration of independence, increase or decrease those powers. That is what the present debate on the Scotland Bill is about.

It might be thought indeed that it is the Westminster position which is anomalous. After all, the US Supreme Court can strike down legislation as can the Supreme Courts in many jurisdictions. The courts can, and should, act as a bulwark against unconstitutional and unfair legislation.

 

This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it.

Ms McAlpine refers to the present arrangements as a “sham”. My trusty dictionary defines a “sham” as a “piece of pretence; something pretending or pretended to be what it is not”. The present arrangement is what it is – it is not what Ms McAlpine wants it to be. That does not make it a “sham”. And if and when the SNP get round to having their much promised referendum, we will find out what the Scottish people want, rather than having Ms McAlpine declare what that is.

 

Even if the damages legislation is not found to be in contravention of human rights law, the court may still grasp the opportunity to extend its authority over Scotland’s parliament. The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, breach European law or violate the ECHR. The insurers are also asking for a ruling that there is a right to appeal under common law as well – though the system is of course different in Scotland and England which complicates matters further. If the Supreme Court, in which only one of its current contingent of eleven judges is trained in and has detailed experience of Scots Law, said an act could also be reviewed on common law grounds, Holyrood’s status would be relegated to that of local council. It would open the floodgates and any law could be challenged on just about any grounds. Such a ruling would be a sort of ritual humiliation, but would we put up with it?

It is, I am sure, a political decision by the SNP to characterise the UKSC as an arm of Westminster, sitting in its “London” lair, striving to take control of Scotland’s affairs. The court has to deal with the issues put before it. Lord Hope did not ring up AXA Insurance to tell them “Between us, here is what I want you to argue before the court”. As their Lordships mentioned in the judgments referred to in the Court of Session, these issues are very difficult for the court to determine. One could easily see circumstances where a Scottish Government, of whatever hue, sought to pass a law which was abhorrent to the SNP, and where the Nationalists would be delighted for the UKSC to come to Scotland’s aid. But politically it suits for the judges to be disparaged.

As Lord Emslie said in his ruling “But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power (it would be) unthinkable that the courts should have no option but to hold themselves powerless to intervene”.

It is true that there is only one Scottish judge out of 11 just now. That is because Lord Rodger sadly died and for each Scottish case heard since his death, including in fact this one, one of the judges from the Court of Session has sat along with Lord Hope to make up the second Scottish judge.

Ms McAlpine is right that any law could be challenged on any ground. But the courts would kick out frivolous or nonsensical arguments, whilst applying full and rigorous analysis to serious cases. If the UKSC rules against the legislation, this would not be a “ritual humiliation” but a decision that the Parliament has gone wrong. We have had devolution since 1999. How many Acts have been declared invalid since then? If Ms McAlpine’s thesis is to be accepted, then this would have been a common event, even if only since the SNP took over in 2005. It has not happened. The decision in the AXA case will not leave Holyrood left akin to a “parish council”.

 

Alex Salmond v Lord Hope...or is it AXA Insurance v Scotland...

This is a David and Goliath clash, whatever angle you view it from. It should not be a party political matter. Kenny MacAskill, the justice minister has said the Asbestos Damages Act was the piece of legislation he was most proud of in the SNP’s first term in office. It had support right across the Labour movement and from industrial injuries lawyers such as the late Frank McGuire whose contribution fighting for justice was marked in a motion by Labour’s Johanne Lamont just this week.

It is interesting that a battle between on one hand insurance companies, and on the other, the Scottish Government is classed as a “David v Goliath” affair. I suspect that Ms McAlpine wishes to classify the UKSC as Goliath, and the plucky SNP as David. In either event, this is a gross distortion.

As mentioned above there is an argument about the payment of compensation to people “suffering” from a symptom free condition. If this was a situation where the law was created to allow payment of compensation for asbestosis or mesothelioma, that would be entirely different. But that is not what this Act is about. It relates to pleural plaques.

Ironically, the Surpreme (sic) Court challenge also comes at the same time as the 40th anniversary of the Upper Clyde Shipbuilders work in, which was commemorated in the parliament last week. UCS played a considerable role in boosting the campaign for Scottish Home Rule that gained momentum from the early 1970s.

Here we come to the nub – this, in the same way as UCS in the 1970’s, is being used by SNP politicians paying little or no attention to the legalities and realities of the argument, in a Scotland – good; London – bad argument. As I said at the start, this would be bad enough from a journalist, but far worse when coming from a Parliamentarian.

The remarkbale and greatly missed Jimmy Reid and the UCS workers

 

It was believed a parliament in Scotland would protect shipbuilding and the men who worked in the yards. Four decades later, it is appropriate that the casualties of that industry should be central to a battle over where power should lie.

The “casualties” referred to are not suffering. The issue is whether the Scottish Parliament went beyond the rules which govern its competence. The UKSC Justices will declare their decision on this on Wednesday.

It would be interesting to see what Ms McAlpine’s reaction would be to an order from the European Court that an Act of the Scottish Parliament was invalid – how would that square with her declarations of the people’s sovereignty?

 

Conclusion

For the avoidance of doubt, as lawyers are prone to say, I am happy that the Scottish Government legislated to make compensation payable to pleural plaque sufferers, as people with that condition had been so entitled for 20 years prior to Rothwell.

I have always been on the side of the “wee man” against the “big business”. But that is not the issue here.

We have a prominent politician and writer disregarding the facts for political purposes. I do not suggest that Ms McAlpine has written her piece having decided to ignore the truth which she knows. Instead she has written it, I can only assume, without having ascertained the full position.

It just goes to show that the standard of writing and comment on legal matters in Scotland, whether by press of politicians, is woeful, and I fully expect that the decision on Wednesday will do nothing to change that view.

 

 

 

Neil Lennon Was Not Assaulted by the Man Who Admitted Assaulting Him!

Lawyers are often sceptical of media reports of court cases where the media express shock at the decision of a judge or jury. The view amongst the legal profession is that, without having seen and heard all of the evidence, and legal submissions in the case, one cannot offer a properly informed opinion. It is generally not especially constructive to comment upon a court case based only upon the limited reports of proceedings in the newspapers and on television.

However, every once in a while there comes a case where even lawyers will say “What the @#%* happened there??!!”

One such reached a verdict today, in the case against John Wilson, heard before a jury at Edinburgh Sheriff Court. Mr Wilson faced charges that, at a Hearts v Celtic match last season, he had assaulted Neil Lennon, the Celtic manager, and had caused a breach of the peace “by conducting himself in a disorderly manner, running onto the field during the match, running at the away team dug out, shouting, swearing, making a sectarian remark, all to the alarm and annoyance of others and causing further disturbance within the crowd” and that both offences were aggravated by religious prejudice.

The jury returned a verdict of guilty on the charge of breach of the peace, with the sectarian element removed, and not proven on the assault charge.

Bearing in mind that the incident had been seen by several thousand spectators at the ground, by hundreds of thousands on television, and by large numbers on the Internet, it seemed astonishing that Mr Wilson was contesting the charges at all!

That surprise however was overtaken by shock at the jury’s verdict. How could this happen?

 

The “perverse” jury is an age old phenomenon.  John Liliburne was acquitted by a jury in 1649 on a charge of High Treason for his opposition to Oliver Cromwell, despite the clear direction of the court that he should be convicted. In Bushel’s Case in 1670  Edward Bushel had previously been a juror in the trail of the Quakers’ founder, William Penn. The jury had returned a verdict with which the judge had disagreed. The judge proceeded to “punish” the jurors, imprisoning and fining them. Bushel stood against this, and it was ruled that a jury could not be punished for the verdict it returned.

Even in recent years, such as in the case of Clive Ponting,  who had admitted passing on “secrets” to Tam Dalyell, MP, juries have stood against what they consider to be oppressive behaviour by the State. Mr Ponting was effectively guilty of a “Strict liability” offence under the Official Secrets Act 1911. The judge at his trial in 1985 was minded to take the case out of the jury’s hands as no legal defence existed. However the prosecution, perhaps concerned by political implications of a conviction without the jury “rubber stamping” the verdict, insisted that the matter should be put to them. Despite directions that there was no defence, the jury acquitted Mr Ponting.

It might seem strange to cite these important cases in connection with that of Mr Wilson. This, at first, seems more akin to a recent case before a jury in a Scottish court where the accused faced two charges. The Sheriff directed that he could be convicted of either, or of none, but not of both. After long consideration, the jury returned to court to seek the Sheriff’s assistance. Could they convict the man on both charges, as that was what they were minded to do? The Sheriff repeated the direction that it was one conviction, or none. After a further short break, and as the clock ticked past 5.30pm, the jury returned. A “Not Proven” verdict was delivered on both charges! The legal process puts itself in peril if it prevents a Scottish jury getting its dinner on time!

 

Already the theories regarding Mr Wilson’s jury being packed with Hearts’ fans or Rangers’ fans are doing the rounds. But comments by David Nicolson, Mr Wilson’s excellent defence counsel, seem perhaps to make the mystery clearer. He is quoted as having said in court that his client had earlier been willing to plead guilty to breach of the peace and assault under deletion of making a sectarian remark and being aggravated by religious prejudice, but the Crown had not accepted his plea.

On that basis, as an acceptable plea could not be agreed, the case had to proceed to trial.

From the evidence reported, it seems that there was only one witness who spoke in support of the “sectarian remark” allegation. As a consequence it could be argued that there was never any prospect of a conviction on that basis, and the jury, it would appear, seemed to decide to “punish” the prosecution by not convicting the man for an assault he had effectively admitted!

 

Why would the prosecution have taken such a stance, with the consequences it appears to have had?

As has been made repeatedly clear by successive Scottish administrations, there are certain types of criminal offence which are of particular concern and which the police and prosecuting authorities focus on stamping out. Offences motivated by prejudice, such as those aggravated by racial or sectarian hatred, domestic violence, and knife crime are all areas where the decision has been taken that extra effort is required to reduce, or even end, these blights on our society.

As a result, prosecutors have been given ever more strict guidelines as to how to deal with cases where there is one of these elements alleged to play a part. This can mean that prosecutors no longer have discretion, on a local basis, to remove such a part of a charge, without clearance from Crown Office in Edinburgh.

 

The net effect, as we see here with Mr Wilson, is that cases go to trial which really ought not to, and verdicts are arrived at which, frankly, make the Scottish justice system look ridiculous. The jury’s decision vindicates that plea of not guilty tendered by Mr Wilson’s legal team.

To an extent, one can sympathise with the Crown Office who must feel that they are damned if they do, and damned if they don’t. Only last week they were criticised  for not acknowledging a racial element in the killing of Mr Simon San.

 

However, it is clear amongst criminal defence lawyers that the approach taken by the Crown Office regarding these matters has resulted in verdicts which seem perverse, with victims having to give evidence in cases where they really ought not to have to, and to substantial additional costs in terms of court expense and Legal Aid. One of the vital elements of the Scottish criminal justice system has always been the discretion given to each local Procurator Fiscal, often deciding how to deal with cases “in the public interest” having taken account of local circumstances and conditions. A “one size fits all” approach is not the best here, I feel.

And also the insistence on the part of the Crown that the religious/sectarian aggravations stayed as part of the charges simply confirms what the late Sheriff John Fitzsimons discussed many years ago at a session for Dumbarton Faculty solicitors, where he was speaking about the difference between “racially aggravated offences” and “offences racially aggravated”. These “hate crime” aggravations have now been extended to other areas, as mentioned above, but the late Sheriff felt that these semantic distinctions, which were important as far as disposal of a case was concerned, were confusing enough for the Sheriffs, never mind the jurors who might be required to consider them in serious cases.

 

The chickens have come home to roost today and Mr Wilson has benefited, as far as his verdict goes anyway, from the apparent insistence of the Crown to have a sectarian element attached to his conviction, perhaps especially as this incident formed part of the shameful sequence of events surrounding football earlier this year which caused the SNP Ministers to promote the flawed Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and had the First Minister referring to the “cancer” of sectarianism.

We now have a man who undoubtedly was guilty of an assault, aggravated by the circumstances in which it took place, cleared of that offence. This makes the campaign against the curse of sectarianism seem lacklustre.

 

Hopefully it will not provoke the Justice Secretary into deciding that the Bill referred to above should be revised to make it easier to gain such convictions.

Instead it would be better if the level of Procurator Fiscal independence, within the Crown Office framework as was the case of old, could be restored.

If not, I suspect we will see continuing cases where apparently ridiculous verdicts are returned, and whilst this is a good thing for newspapers and bloggers with space to fill, it undermines and demeans the whole justice system.

Should Mr Al-Megrahi Be Sent Back to Prison? Newsnight and the Curious Thoughts of Geoffrey Robertson QC

Libya is in chaos and Mr Abdelbaset Al-Megrahi, the man convicted of murder in connection with the Lockerbie bombing, cannot be found. Politicians here and in the USA are calling for him to be extradited or sent back to prison.

Newsnight Scotland decided it would be useful to debate the issue with the assistance of two QCs, Gordon Jackson and Geoffrey Robertson. After a brief report including Nick Clegg saying  that he would prefer Mr Al-Megrahi to be back in prison, the 24^th August edition went back to the studio for the discussion. Mr Robertson took the lead.

What followed did a disservice to the viewers, and makes one wonder how Newsnight Scotland chose its guests (or one of them at least).

 

Geoffrey Robertson QC is one of the most eminent and well known lawyers in Britain. The catalogue of famous and ground-breaking cases in which he has been involved is long and his reputation is rightly illustrious. He is also a man who has been willing to serve, having been one of the judges in the UN Special Court for Sierra Leone for some years and a Distinguished Jurist Member of the United Nations Internal Justice Council since 2008.

As his biography on his website states, he has appeared “as leading counsel in over 200 reported cases, many in the European Court of Human Rights, the House of Lords, the Court of Appeal, the High Court and the Privy Council, with appearances in the Courts of Appeal of Singapore, Trinidad, the Eastern Caribbean, Malawi, Florida and appearances in various courts in Australia, New Zealand, Fiji, Mauritius, Malaysia, Anguilla, Antigua, in the World Bank Arbitration Court (ICSID) and in the Revolutionary Military Tribunal of Mozambique.”

He is a prolific author, and his The Tyrannicide Brief, about John Cooke, the lawyer who prosecuted King Charles I, is a masterful book, emphasising the rule of law, and the fact that even monarchs and rulers are bound to follow the law. I would heartily recommend that book to any reader, lawyer and non-lawyer alike.

One might think that having such a distinguished legal mind available to take part in the debate was a chance not to be missed. There was only one problem. Mr Robertson’s list of countries and courts where he has acted does not include Scotland. As far as I am aware, Mr Robertson, not being a member of the Scottish Bar, has never appeared in our courts.

 

As a very wise and clever man, I am sure he is more than capable of understanding points of Scots Law, but this Newsnight appearance did not demonstrate that. Why did Newsnight Scotland feel that, other than Gordon Jackson QC, there were no other lawyers practising in Scotland worth having on? Perhaps the answer is that they could not find any Scots lawyers to disagree with the position adopted, correctly I believe, by Mr Jackson. Perhaps the chance to have such a famous name as Mr Robertson on meant that Newsnight did not ask any other Scots lawyers. Was this a decision by Newsnight that there required to be “balance” even if that meant balancing the wrong view with the right view?

 

The Lallands Peat Worrier had done the hard work of writing about the legislation dealing with the question of compassionate release, and what the rules were governing any possible recall to prison. I commend his post to all readers. He made clear that, in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, Mr Al-Megrahi could only be recalled to prison under s17(a) if either of the following took place: (i) if the Parole Board recommended that the Justice Secretary recall him; or (ii) if the Justice Secretary decided that it was expedient in the public interest to revoke the licence and recall him to prison and it was not practicable for the Justice Secretary to await a Parole Board recommendation.

Mr Robertson did not trouble himself to make reference to these rules and he launched himself into the fray, with almost everything he said being incorrect in some way. My thoughts on Mr Robertson’s comments are in italics below.

 

First of all, despite it being a discussion about Mr Al-Megrahi, Mr Robertson started with Colonel Gaddafi, stating that there was “increased evidence” to show that the Libyan leader (or former leader, depending on when this is read) “gave orders to Mr Al-Megrahi to blow up the jet”. He later stated that the former Libyan Justice Minister had stated that he had proof of this.

                    Professor Black, on his Lockerbie Case Blog, noted that this proof, whist promised, had still to emerge.

 

He commented that Mr Al-Megrahi had had a fair trial “before eight judges”.

                    Many observers and commentators do not accept that the outcome of the trial was fair at all. Whilst the issue of Mr Al-Megrahi’s guilt or innocence  is not relevant, legally, to any question of recall (in law he is a convicted murderer the matter of his involvement remains at issue, as the Justice Form Megrahi campaign pursues its quest for a full inquiry into the atrocity.

                    The trial of course was before three judges with a further five hearing the appeal. There were a number of areas not explored at the trial or appeal, which are, apparently, identified by the as yet unpublished report by the Scottish Criminal Cases Review Commission.

 

He felt that “the country” should fulfil the promise made by Robin Cook, when Foreign Secretary, to Madeleine Allbright, who was the US Secretary of State, that Mr Al-Megrahi would serve 27 years in prison.

                    If Mr Cook did make such a promise, then he had no authority to do so. The matter of Mr Al-Megrahi’s release was one for the Scottish Courts, in connection with his appeal and the Crown appeal that the sentence was too lenient, or for the Scottish Ministers, not the UK Foreign Secretary. In any event, the reason for Mr Al-Megrahi’s release was his ill health and imminent death, not any assessment that he had tholed his assize.

 

He referred to the “extraordinary behaviour” of the Minister (presumably Mr MacAskill) who had been “conned by doctors paid by Libya” into accepting that the prisoner had only three months to live. He said that the doctors had been so wrong in their diagnoses that their findings should be questioned and that there had to be a proper examination by independent doctors.

                    Whilst one of the medical experts who provided comment upon Mr Al-Megrahi’s condition was an expert engaged on Libya’s behalf (and in a situation like this there is nothing wrong with a person hiring their own expert to offer an opinion) Mr MacAskill has always made it clear that the medical advice he considered was that from the Chief Medical Officer of the Scottish Prison Service. The suggestion that doctors “conned” the Justice Secretary is one which seems clearly defamatory, and it would not surprise me if the members of the medical profession involved took the matter further.

                    The implication of what he said was that Mr Al-Megrahi was either not terminally ill at all, or if he was, that his prognosis was far longer than three months .In either event, this is a serious allegation to make, and I suspect one that the learned gentleman had not thought through. His comments amounted to a suggestion that the medical experts deployed for the Libyan had produced reports not based upon their medical expertise, but instead influenced by their paymaster.

                    “Independent” doctors have already determined the position of Mr Al-Megrahi. The fact that a change of location in returning to his homeland and family, and an apparent new treatment regimen has extended his life beyond what was predicted is not, in my view, a cause for re-incarceration, and indeed the legislation does not see it as such when dealing with a “long-term prisoner”.

 

He pointed out, with reference to Mr Al-Megrahi’s recent appearance at a pro-Gaddafi rally, that if he was demonstrating in favour of his leader when he was on probation, that was wrong.

                    The Scottish Ministers have helpfully made a copy of Mr Al-Megrahi’s licence available to all. As Mr Jackson pointed out, there is nothing there which precludes an appearance at a rally, and, as Mr Jackson went on to say, how likely was it that Mr Al-Megrahi could have refused to attend if told to by Colonel Gaddafi.

 

Mr Robertson then referred to the application in 2009 made by Mr Al-Megrahi’s lawyers for bail due to his ill-health, which was refused by the High Court who, according to Mr Robertson, said that if Mr Al-Megrahi was sufficiently unwell, he should go to a “bail hostel” in Scotland.

                    This was on the premise that his appeal was continuing and was not connected to the matter of compassionate release from his sentence. Whilst the compassionate release granted could have required Mr Al-Megrahi, as a condition of his licence, to reside in Scotland, the medical evidence specifically referred to the benefits for him in returning home.

 

 

He then returned to Colonel Gaddafi, saying that he expected him to end up strung up from a lamppost, but that if he was captured, there would be an argument about whether Scotland or France would prosecute him first, as each would have the right to seek his transfer from the International Criminal Court in the Hague before the Colonel was tried at the ICC. I would not be surprised if the USA, and various other nations, thought they had grounds for seeking to prosecute him.

As the discussion neared the end, he went back to Mr Al-Megrahi, stating that it was “bewildering” that the “Scottish Probation Office” had not recalled Mr Al-Megrahi for breach of his licence, and that there should be legal proceedings taken to force them “to do their duty”.

                    As Mr Jackson had already pointed out (and the initial report by Julie Peacock had said) it did not appear that the licence conditions had been broken, so far. One reason why the “Scottish Probation Office” had taken no action is that such a body does not exist, nor indeed is Mr Al-Megrahi on probation. His situation, having been released, is monitored by East Renfrewshire Council. I would be interested to know who Mr Robertson thinks should be taking this legal action. Perhaps he might care to initiate it himself, if he feels so strongly about it?

 

It was not fair that Mr MacAskill had not met with the relatives of the dead but he had met with Mr Al-Megrahi before reaching the conclusion that the Libyan would be dead within three months.

                    The Justice Secretary did not reach any conclusion about Mr Al-Megrahi’s condition. He relied upon the expert medical witnesses for that purpose, as is right to do. Whilst there have been questions about the release, as Mr Jackson said, that was not what was being talked about now.

 

He concluded by stating that, if Mr Salmond and his Justice Secretary “had any guts, they would re-visit their earlier decision” to release Mr Al-Megrahi.

                    Here again Mr Robertson failed to get the point. There is no scope to “revisit” the decision to release Mr Al-Megrahi. That has happened. Instead the question is whether or not there are conditions satisfying the legal requirements for the licence to be revoked and a recall to prison ordered. As has been said elsewhere, it is not a breach of his licence to fail to die on schedule! Mr Al-Megrahi’s lawyer, Professor Tony Kelly, would undoubtedly act in the best interests of his client by challenging any decision to recall his client, if there was any scope for so doing. As matters stand, no grounds for recall exist, and the demands of American Senators and UK politicians have no place in that decision.

 

In contrast Mr Jackson sat in the studio talking nothing but sense. He seemed to have a rather world-weary air as he listened to Mr Robertson and tried to correct his errors. Mr Jackson pointed out that, in theory, it was possible, if the conditions referred top above were fulfilled, that Mr Al-Megrahi could be recalled to prison, but he saw that as extremely unlikely. It was not going to happen.  He told the presenter that the issues of Mr Al-Megrahi’s release two years ago had nothing to do with the question of revocation of his licence now.

Perhaps there was a problem with the link to Mr Robertson in London, because he repeatedly sought to talk over Mr Jackson, which is not an easy task to accomplish!

There is clearly great public interest in this issue. Mr Al-Megrahi stands convicted of a heinous crime and it appears that there are people looking for him to remove him from Libya.

However this debate was not helped by one of the contributors having no knowledge at all, it seemed, of the relevant legal rules applicable to the matter at hand. This could be contrasted with the later appearance on the programme of Lord Foulkes to discuss the differing university tuition fees charged in Scotland depending on the domicile of the student. His Lordship, notwithstanding a distinguished career in the House of Commons, the House of Lords and the Scottish Parliament, is not a lawyer. Legal niceties might understandably escape him.

Mr Robertson however does not have that excuse. His failure to acknowledge the “rule of law” in this matter is surprising given his very public stance regarding that doctrine over the years, and the rights people have to protect them from the vagaries or abuses of State power. I suspect John Cooke would not be demanding Mr Al-Megrahi’s return to Scottish imprisonment were he here today.

Perhaps next time Newsnight Scotland considers having a lawyer on as a guest, they should ask if the person actually knows about what the topic under discussion is.