Ignorantia juris: it's all Greek to me

Second annual APEX lecture given by the President of the Law Society of Scotland, on the rule of law and its essential components

Submission, 13 October 2004

Good evening ladies and gentlemen and thank you for the warm welcome here this evening.  I am delighted to be able to represent the Law Society of Scotland in presenting this the second APEX Scotland lecture.

Can I start by congratulating the APEX Chairman, John Cooney, and Chief Executive, Bernadette Monaghan, and their dedicated team  on the valuable work which their organisation has done over the last 17 years and continues to deliver in our communities today.  APEX’s mission is to address the employability needs of offenders, ex-offenders and young people at risk thereby improving the employment prospects of clients and therefore reducing offending and contributing to safer communities.  Projects, such as City Connexions in Edinburgh, offer innovative and practical intervention for individuals who are seeking to address their offending behaviour.  Rehabilitation of offenders is an important and necessary component of a successful criminal justice system.  Through tailored individual work programmes, APEX Scotland is helping these clients reduce their involvement in offending.  Such an organisation which gives offenders equality of access to the employment market, helping them to realise their potential, renew their self-confidence and re-establish self belief, can be proud of the contribution it is making to our society.  We are all aware of the modern maxim “tough on crime, tough on the causes of crime”.  The APEX strap line adds a vital third component – STARTING WORK STOPPING CRIME.

You may well recall that last year the First Minister gave this lecture speaking about Apex and the Scottish criminal justice system.  There was a significant difference between the actual text and what had been rumoured.  As a lawyer I have been schooled always to read to source and not to rely on the rubric or a commentary.

The First Minister urged us to assert shared values in society – values of respect, compassion, justice and responsibility – values which he believed should be at the heart of our criminal justice system – values which are central to the rule of law.  Values which the Law Society of Scotland upholds.

This summer I attended the American Bar Association and the Canadian Bar Association meetings.  I was impressed by the prominence and importance, which those two organisations give to the rule of law.  I believe that in a modern Scotland, democracy and the rule of law go hand in hand.  I believe lawyers are guardians of the rule of law and therefore essential to democracy.  It is the rule of law which gives life to the individual rights which are at the core of modern democracy.  Lawyers must promote the rule of law and publicise and give life to its ideals.

In the context of tonight’s speech I offer the Canadian academic Robert Wolfe’s definition of the rule law:-  

“The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone.  They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century.  In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty.  The central institutions of the legal system, including courts, prosecutors, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. ”

The rule of law embodies the values of which the First Minister spoke last year. The challenge for us all is to make these values real and deliver them in the justice system.  I want to focus on the rule of law and its components this evening.

Taking the first of these – public knowledge of the law.

It is a long standing ideal of the Scottish legal system that there can be no crime without law (nulla crimen sine lege).  That maxim – my first Latin one for this evening- states that no-one should be punished for an act which was not criminal at the time of its commission.  It is not necessary for an accused person to have actually known that the act was criminal, provided he or she could have ascertained its character following due inquiry.  So no one can avoid responsibility by claiming that he or she did not know what the law was.  This principle of legality is the corollary of the principle ignorantia juris neminem excusat – tonight’s second and I promise the last Latin maxim- ignorance of the law is no excuse.  The two concepts go hand in hand.  The ignorantia maxim attributes knowledge to the citizen as a means of social control, discouraging flippant or groundless defences and reinforcing the need for the citizen to be aware of both the criminal law and legal developments.

But what do we mean by “crime”?  Sheriff Gordon devotes the first chapter of his book, “Criminal Law” , to this very issue and acknowledges that it is not easy to define terms like “crime” and “criminal law”.  He ultimately categorises the criminal law as “that branch of the law which deals with those acts, attempts and omissions of which the State may take cognisance by prosecution in the criminal courts.” 

This definition makes no reference to what constitutes criminal law, or what factors will determine which acts are criminal.  Inherent in this is the view that serious crimes such as murder or rape and minor breaches of public welfare law such as drinking in the park are all crimes for the same reason – they are forbidden by the law.  It is not difficult to see, therefore, how one American writer concluded that “the criminal law is the formal cause of crime”  and how more prosaically, the punk rock band the Damned sang, “There ain’t no crime if there ain’t no law”. 

Although the law will be influenced by social and moral considerations, an act, once identified as criminal, is criminal not because it is immoral but rather because it has been declared criminal.  Lord Devlin in “The Enforcement of Morals” said, “Criminal law is not a statement of how people ought to behave; it is a statement of what will happen to them if they do not behave”.  It is for this reason that the sentence imposed on those convicted of crime is of such importance – a point to which I will return in due course.

What we have is a distinction between “true” crimes and public welfare offences.  “True” crimes are thought of as those crimes that are evil in themselves, or as the legal commentator MacDonald called them “mala in se” – not a maxim although I accept that it is in Latin.  Whilst the public welfare offences are thought of not as evil or immoral but as criminal and punishable because they are prohibited by statute.  I am sure that most of us here tonight have at one time or another contravened the criminal law.  How many of us have had a parking ticket? Does that make you a criminal if you have?  What if one parking ticket then became 100 such tickets; what if they relate to persistent misuse of for example, disabled parking spaces.?  Doesn’t cumulative administrative failure demonstrate an underlying contempt of the law and social values?  At least in road traffic law, totting up presents a number of advantages.  Its deterrent effect and its recognition of a more proportionate penalty for a greater number of offences means the driver is on notice that if he or she re-offends, he or she risks crossing a boundary and reaching a point where society imposes a heavier penalty for the repeated behaviour.

Today, more than ever, we can see a growth in the creation of statutory offences.  New laws – such as the Nature Conservation (Scotland) Act 2004, the Anti-Social Behaviour etc (Scotland) Act 2004 and the Fur Farming (Prohibition) (Scotland) Act 2002 – have created new statutory offences.  Separately the common law operates on the basis of linear progression and development, which requires specialist knowledge to ascertain what the law is.  Against this background, can we really impute knowledge of the law to the average citizen?  To do so we have to make the law accessible.  The rule of law demands that laws are within public knowledge and clear in meaning.

There is an ongoing debate about whether the Scottish criminal law should be codified.  The Law Commissions Act 1965 places an obligation on the commissioners to consider codification and last year, the Scottish Law Commission published for consultation a Draft Criminal Code for Scotland.  This is a challenging document which presents the arguments in favour of codification and attempts not only to restate the law but update those aspects of the criminal law which require reform. 

The principal argument in favour of codification is accessibility.  I don’t think that there is a lawyer, police officer, social worker or politician in this room, let alone a member of the public, who would not find some favour in being able to turn to one book to find the criminal law.  For lawyers, the task of identifying whether a statute has made conduct criminal, whether the statute has subsequently been amended or even whether the statute has been brought into force, is no easy task and often requires many hours in a very well stocked library, such as the one we are in.

To be truly accessible, of course, the layout of any Code and language used in its drafting would have to be consistent, concise and clear.  With the developments which have been made in IT, it is easy to envisage a document which could be accessed in a number of different formats and set out in an organised and principled fashion.

It would also surely have to be comprehensive.  But, how does this sit with devolution?  As a general rule, Scots criminal law is by and large devolved to the Scottish Parliament in terms of the Scotland Act 1998.  The enactment of Scots criminal law in statute is mostly a matter for the Scottish Parliament.  The areas of criminal law expressly reserved to the UK Parliament include the law on drugs, firearms, terrorism, health and safety at work, money laundering and road traffic law.  It could be argued that there would be little point in codifying only devolved aspects of the criminal law and that if codification is to proceed, then a comprehensive Code should be produced containing both statutory and common law offences across the board.  It should also cover general principles of criminal responsibility, defences and penalties, as well as making provision for specific offences.  It would address one of the main criticisms levelled at the common law.  Reliance on the common law has avoided legislation in some areas but arguably certain offences have become so all-embracing that they no longer identify with sufficient clarity the conduct which society wishes to control.

There are, however, counter arguments to codification, which favour the flexibility of the common law system to allow the facts and circumstances of each case to be dealt with on its merits and the law to reflect on an apolitical basis the changing values of society through judicial interpretation.  The debate on codification is far from settled even amongst the solicitors’ profession but it is necessary.  I am sure that it will feature in the deliberations of the Scottish Parliament as it continues to review the criminal law in Scotland.  The overarching objective must be to seek to make the law more accessible.  For the rule of law requires the criminal law should make clear the behaviour which the community forbids.

Accessibility of the law is, however, only part of the issue.  The rule of law will only be upheld if the rights of individual Scots are protected – including the right to live a life free from crime.  To help achieve this, we need to inspire the people of Scotland to better citizenship, encourage communities to take pride in local issues as well as supporting the desire to uphold the political and civil liberties that have gained status as universal human rights.  Citizenship education has a part to play in informing Scots about their rights and obligations and the Law Society of Scotland is committed to that aim. 

Recently the Young Citizen’s Passport was produced by the Citizenship Foundation in association with the Law Society of Scotland.  This booklet is a useful guide to the Scots law and sets out in a user-friendly fashion the rights and responsibilities of young people in society. 

The Scottish schools project, sponsored by the Society, is another initiative which introduces 10-15 year olds to the legal system and helps reinforce the message that the law brings responsibilities as well as rights.  Initiatives such as these encourage young citizens to become responsible participants in their local communities and in the wider world.

We all particularly in this audience need to think further about ways in which we can deliver this message more generally and encourage all citizens to be conscious of the rights and responsibilities that they value. 

Likewise the development and reform of the law is, in my view, a collective enterprise.  The Scottish Parliament echoed this belief in framing its founding principles.  It has given a commitment to embody and reflect the sharing of power between the people of Scotland, the legislature and the Scottish Executive and to do so in an open, accessible and responsive manner whilst developing procedures which make possible a participative approach to the development, consideration and scrutiny of policy and legislation.  Human rights are also at the heart of the new Parliament.  Section 29 of the Scotland Act 1998 states that if any provision of any bill is incompatible with convention rights, then it will be outwith the legislative competence of the Parliament, - ultra vires, and void.  This provision is the expression of the integral nature of human rights in the rule of law.

In the context of a unicameral Parliament, accessibility is underlined by strong pre-legislative consultation procedures, well-tuned dialogue with stakeholders and appropriate responses by the Executive.  All are essential components for the smooth operation of the legislative environment which we have in Scotland.  I take pride in the role which the Law Society of Scotland has taken in seeking to contribute to the development of new legislation through commenting from an apolitical and practical basis on the operational effectiveness of proposals for new law.  I can speak particularly of the Justice 1 and 2 Committees with which I am most familiar.  They along with the other Committees signal the Parliament’s overall commitment to openness accessibility and the gathering of evidence.  They allow individuals, community groups and organisations to participate fully in the democratic process and have a direct impact on policy formation and its translation into law

The speed at which the Parliament through these Committees has introduced new legislation in Scotland shows the potential the Scottish Parliament has for legislation which meets the country’s needs now.  Whilst many of the reforms which we have seen implemented over the last 5 years may have been introduced in Westminster through time, it is certain that legislative timetabling would never have permitted reform on this scale.  Since 1999, the Scottish Parliament has passed 74 Acts of the Scottish Parliament and 2691 statutory instruments.  It is perhaps too often forgotten the extent to which the Parliament has delivered much needed improvements in Scots law. 

There is thus both the appetite for change and the legislative opportunity but there is also a duty to deliver changes which are properly considered, consulted upon and which work.  The mechanisms are there and operate well.  Law is always about balance and with so much change so quickly our Parliamentarians must be careful to let that change deliver benefit.  Parliamentarians have the responsibility to act in the best interests of their constituents and work hard to do so.  The Law Society of Scotland will seek to encourage them to prioritise, and stay clear of change for the sake of change, or headlines but rather to modernise and improve Scots law, making it right for the people of Scotland.  

The definition of the rule of law to which I referred at the beginning of this lecture focused heavily on the issue of crime, the need for a fair and prompt hearing, and the presumption of innocence.  Recognising these principles, the Scottish Executive has driven the most fundamental review of the criminal justice system in over a decade.  The Scottish Parliament is taking this work forward – with both Justice Committees devoting considerable time and effort in their scrutiny of criminal legislation.

Victim’s rights have been to the fore, with a programme of work designed to improve the position of vulnerable people in the justice system culminating in the passage of the Vulnerable Witnesses (Scotland) Act 2004.  The Crown Office is to be commended in its initiative in developing the Victim Information and Advice Service VIA.  VIA has put in place a key element of the Scottish strategy for victims – providing a service which keeps individuals informed about the progress of cases and facilitates referrals to other agencies for specialist support and counselling.  It is right that attention and resource be given to those who are the victims of crime.

The Criminal Procedure (Amendment) (Scotland) Act 2004 implements Lord Bonomy’s proposals to reform the practice and procedure of the High Court of Justiciary and introduces greater certainty into the process through better communication between the prosecution and defence and the introduction of fixed trial diets.  It is anticipated that this will significantly improve the efficiency of the court system for all who interact with the High Court.

I believe the Scottish Executive was right in prioritising these developments for the people of Scotland.  These are important reforms and it is vital that they progress successfully.

One of the most encouraging aspects of this reform, however, has been the willingness of those organisations working at the heart of the system to come together and share experience and expertise to make the reforms work.  The Society is part of the team working together to drive the training programme for High Court Reform and deliver practical guidance on the vulnerable witnesses’ legislation.  It is true that there is much work still to be done before final implementation of the reforms next year but partnership working is the way to achieve the objectives.

Not only is there a desire to make the system more accessible and certain for those using it, there is also a desire to ensure that the assistance available to those within criminal justice continues to be of a quality standard.  For many years, Scottish solicitors have delivered a service of a high professional standard to the public.  The Society is building on this and has worked with the Scottish Legal Aid Board and Scottish Executive to develop quality assurance schemes for legal aid.  

The public expect that the Executive will seek to achieve value for money and I commend the Justice Minister’s focus on the need for deliverable outcomes.  The Law Society supports the need for value for money from the criminal justice system. It is clear that the criminal justice system, in common with other areas of public expenditure, must operate within a controlled budget.   The criminal justice system is a central feature of a civilised society and is responsible for ensuring that people can live and go about their daily business without fear of personal violation or destruction of property, it is therefore essential that the system is properly resourced and that the resources are directed where they are needed.

In delivering a criminal justice system, resources must be allocated to ensure that the procedures and processes involved operate fairly and facilitate the expeditious disposal of business.  Thus it must be recognised that the police should be properly funded to detect and investigate crime and to act as a deterrent; that the prosecution service is funded to prosecute in the public interest and the courts are adequately resourced to dispense justice.  Our modern society must also demand that the defence is properly funded to test the prosecution and ensure that everyone has the right to a fair trial.  Equality of arms between prosecution and defence is a fundamental human right.  I have no doubt that the public recognise the value of the justice system and the need for resources to be allocated to uphold the rule of law.  Not to mention returning to APEX that funding is made available to give the opportunity for the successful rehabilitation of those convicted of crime.

The last element of the definition of the rule of law relates to the independence and impartiality of the judiciary.  This element is the single most sensitive issue in most democracies and also the first to fall when democracy falls.  In this modern age, there is a need for increased transparency and accountability.  To deliver a system of justice, which conforms to acceptable standards of fairness, it is essential that a judge is independent and seen to be so. 

The incorporation of the European Convention on Human Rights (“ECHR”) has reinforced this need for independence in Scots criminal law.  To comply with Article 6 of the ECHR, the court which determines a person’s guilt or innocence must be independent and impartial.  Not only should there be no bias but there should be no appearance of bias.  The concept of impartiality has been considered fully by the courts  and ultimately resulted to changes in the law through the Bail, Judicial Appointments etc (Scotland) Act 2000.  That Act abolished the office of temporary sheriffs, created part-time sheriffs and altered the law in respect of justices of the peace.  These changes were introduced to ensure compliance with the Convention and dispel concerns about the impartiality of the judiciary.

The creation of the Judicial Appointments Board for Scotland lends further credence to the principle of independence and I would commend the Executive for the benefits, which the Board has brought.  The Justice Minister has given a commitment to put the Board on a statutory footing and I look forward to legislative time being made available for this to be done.  The public can have confidence that rigorous and valid due process is undertaken to appoint our judges.  I congratulate the Board and pay tribute to the service they are doing. 

The work of the Judicial Studies Committee should also be recognised and commended.  It is delivering training to enhance the knowledge base and improve the practical skills of the Scottish judiciary for the benefit of court users and to enhance public confidence.

Public confidence in our judges is crucial if they are to carry out their role effectively.  The public must be satisfied that they will exercise judicial discretion appropriately and with consistency.  But what do we mean by “consistency”?  Without being privy to the wealth of material available to a sentencing judge, it is difficult to make informed comment on the consistency or appropriateness of a particular sentence.  Rarely will two cases come before the courts with the same circumstances.  The name of the offence may be the same but the facts surrounding the commission of the offence or the injury sustained to the victim or the personal circumstances of the accused person will differ.  In sentencing a balance must be struck between public protection, appropriate punishment and crime reduction.  Our courts recognise that guidance has its place and how this may best be developed are issues with which the Sentencing Commission for Scotland will have to grapple when it comes to considering sentencing guidelines in the future. 

Judicial discretion is an important factor in delivering effective sentencing – sentencing which will take account of these competing factors – sentencing that is tailored to address the cause of offending behaviour – and sentencing which will be successful in achieving rehabilitation.  What will work for one person may not work for another.  Our judges have to exercise this discretion on a daily basis – they are selected carefully; they are trained well –The people of Scotland must be able to have the confidence that they will do their job properly exercising the appropriate discretion to make the punishment fit the crime in the interests of justice.

It is key to the interests of justice that further safeguards are in place to ensure that concerns about individual decisions whether thought too harsh or too lenient can be reviewed by the Appeal Court and that those alleging miscarriages of justice have access to the  Scottish Criminal Cases Review Commission. 

The rule of law, then, is about delivering a system of justice which is fair, certain and accessible for the people of Scotland.  I believe that it is my role as a solicitor, and that of other members of the Law Society to uphold and protect that rule of law and to make sure that the meaning of laws; the intentions of the judges and the determinations of the legislature are not “Lost in Translation”!   And to finish with some Greek "Suas eucharisto gia ten prosoxe suas" and not to loose anything in translation  “ thank you for your kind attention”.