System on the slide
A defence solicitor believes Scottish criminal justice has deteriorated since the 1980s, through changes in statute and by the Appeal Court, in legal aid, and in the way the prosecution service is run
As I approach the 30th anniversary of my admission as a solicitor, and contemplate a retirement into the great unknown of pipe and slippers, I considered the changes in law and practice over my career in the criminal courts.
I well remember my first trial at Renfrew District Court – an acquittal – which was quickly followed by two further findings of “not guilty”. The next Petrocelli had arrived in Paisley. The following six months saw a series of convictions and errors on my part, as I learned the hard way that I knew very little about criminal law.
At that time, however, we had a criminal justice system that was genuinely the envy of the world. We had real corroboration, not the pathetic excuse that is paraded today. We had a real desire to ensure that justice was done and seen to be done. Neither seem to be very important today. We had an Appeal Court that had a desire to do the right thing, regardless of the consequences. We had a legal aid system that, although underfunded, was able to give the profession the opportunity to honour its commitment to the client and be paid for doing so.
Today, none of these seem important in our system. Too often have I sat in the Appeal Court and watched the law be reinterpreted to ensure that an appellant stays in prison. The recent round of appeals under s 65 of the 1995 Act (Uruk v HM Advocate 2014 SCCR 369 et al) showed no regard to law or convention, but rather showed a court more concerned with budgets than justice.
Budgets have become king. What makes things worse, however, is that the budgets seem to be controlled by people who have no comprehension of how the criminal justice system works. A few years ago we had a prosecution service that was supported by “precognition officers”, whose job it was to prepare solemn prosecutions. Wisdom directed that we reduce or abolish this post. Doubtless this will have saved the COPFS a sizeable sum. Unfortunately, it cannot be said to have saved money from the justice budget. In addition to preparing cases, precognition officers were also able to identify the problems at an early stage. Cases where “I was really drunk and can’t remember what happened”, and “I don’t remember ever making a statement to the police, and if I did, I don’t know if it was true or not”, were weeded out at this stage. Now, we wait for the trial diet to deal with this. Yes, the Crown have cut salaries, but at the expense of court and shrieval time, inconvenience and cost to witnesses and jurors, and further wastage on an already pressed legal aid system. Is it too much to expect some joined-up thinking?
Decisions on corroboration have undermined our reputation. Proof beyond reasonable doubt? Don’t make me laugh. How can our system take itself seriously when we allow a conviction based on one witness, and a second piece of evidence that says “maybe” something might have happened, and then, with an 8-7 majority, a citizen is guilty beyond reasonable doubt and imprisoned?
Our political masters have interfered too often, those who should know better have allowed that interference, and our system is gravely undermined as a result. What has happened to the safeguards for an accused? How can a fair trial be achieved when witnesses are allowed to hide behind screens as they are “too scared” to face the accused? How does that sit with the presumption of innocence? There are a few genuine cases where witnesses need, and should be granted, special measures, but there are too many who seek to take advantage of this when it is not needed. I have conducted trials where special measures have been sought, the Crown forget to have an identification parade, and suddenly the measures are miraculously no longer required and the witness happily gives evidence in the traditional manner in order to facilitate a dock identification.
Destruction of rights
We cannot have a justice system where the interests of the witness are equal to those of the accused. This cannot be forced on us, as it is the accused who loses their liberty if they lose their trial. Those who are peddling the interests of the “victim” (can we have a victim before we establish that a crime has even been committed?) should consider that true equality would mean a suitable punishment for the complainer if an accused is acquitted. That would be a ridiculous position to adopt; almost as ridiculous as the suggestion that “victim’s” rights have to be balanced with those of the accused.
And yet those more learned than me seem determined to strip every remaining right from an accused person. I dread the delivery of my Scottish Criminal Case Reports, as each edition seems to include further destruction of the legal safeguards for an individual who is facing the might of the state-funded prosecution. There seems to be an agenda to anglify our legal system, but without enacting the additional safeguards found south of the border such as unanimous verdicts or 10-2 majorities. Where will it end? I suggest that it will end with yet another series of major miscarriages of justice.
I well remember the boast of the Scottish justice system that the plethora of miscarriages in England could not happen in Scotland. The realisation that we had our share of such cases has not, as in England, led to a tightening of systems to prevent future errors, but rather we have charged headlong into a period of reducing and eliminating every existing safeguard in our system. I live in hope that, in 50 years' time, lawyers will look back on these dark times and wonder what we were all smoking in the early 21st century!
When I began my career, the fiscal service was manned by experienced, able and sensible deputes. Cases could be fairly resolved by meaningful discussion, and discretion was fettered only by logic. Today, we may still have able and sensible deputes, but they are conditioned to avoid the exercise of discretion, and logic takes a back seat to the current political will of their masters, or perhaps that of tabloid editors. One of the underlying principles of the justice system was that all accused should be treated equally. How can that principle remain when deputes are not allowed to negotiate on certain types of offences, such as domestics, racial or sectarian breaches etc? As a result, those charged with such offences are not being treated equally.
Likewise our judges, once the jewel in the crown of justice, are now prevented from doing their jobs by rules and laws that have effectively neutered them. Too often have I made a legal argument to be met with sympathy from the bench, but a ruling that goes against me. Our judges have also had discretion restricted by political interference.
Currently, morale on the bench, in the fiscal service and among defence agents is at an all time low. Hundreds of intelligent and experienced lawyers cannot all be wrong.
Burdens on the defence
The legal aid cuts have further reduced the confidence in our system. This is not an article designed to secure a pay rise for the profession (I will leave that particular dead horse to be flogged by those more able than me), but rather to highlight the dangers of paying defence lawyers an hourly rate that is closer to the minimum wage than to the remuneration expected by plumbers! The introduction of Crown disclosure was a very helpful development in our law, but was immediately met with a refusal to pay for defence precognitions. I know that SLAB will say that they will pay for this work if it can be justified, but the judge who determines justification is SLAB, and I don’t know of any solicitor who has won that argument with any regularity. As a result, the “independent” defence lawyer must advise his client based solely on information provided by the Crown. Police officers often hide significant information from the Crown, or include it in “non-disclosable” sections of reports. We are entirely dependent on the integrity of a police department that seems to have forgotten that its role is to secure justice and not just tick a box that someone has been charged regardless of guilt. Does anybody else see a problem here?
“Anderson” appeals have led to closer scrutiny of solicitors. The economic need to do a high volume of cases in order to pay ever-rising costs, with fee income effectively capped for a generation, makes it nothing short of miraculous that every conviction does not lead to an automatic appeal on defective representation grounds.
Government cuts in mental health care have imposed a further burden on the system. I am not medically or psychiatrically qualified, and yet I am expected to detect signs of mental incapacity in a client who would previously have been hospitalised, but is now in the “care in the community” myth. To compound matters further, we need SLAB sanction for an expert to determine fitness. Try getting that from SLAB. A recent application submitted was rejected as the accused did not have a history of mental illness. By that logic, an accused with no previous convictions must be innocent, as he has no history of offending. Try floating that idea before a court.
As well as having to identify psychiatric problems in clients, we have to manage them. I was disappointed by the apparent surprise at the recent survey that showed how many of us have been victims of violence or extreme abusive behaviour. Any solicitor with even fleeting experience of the criminal justice system will know that we live with such issues on a regular basis. And if you do succeed in managing such a client through the justice process, you will often find that the courts are unable to deal adequately with such issues.
Short changed on sentence
And finally I turn to the question of sentence. With the presumption against short term sentences, I am left wondering what we are doing in the summary courts. How can a court demand respect from a public that is aware that judges are being actively discouraged from sentences of imprisonment? Why not call it what it is – a Government too stingy to build enough prisons but too scared to admit it?
I do not profess to have all the answers to the issues in our system, but at lease I recognise some of them. The many changes in our system over the last 30 years have not been for the better. Something needs to be done before those who should know better are allowed to turn our country from the envy to the laughing stock of the world.
Gordon Ritchie is a consultant with McCusker, McElroy & Gallanagh, Paisley