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It’s time again to check what “intellectual challenge from the neck up” party (© Joanna Cherry) – or the SNP as it is commonly known – until. Having finally found the auditor (although, rather embarrassing for the pro-independence party, there is not one auditor anywhere in Scotland willing or able to take on the job) Holyrood government decided to reform the Scottish criminal justice system. In one of her previous roles as Minister for Justice, the First Minister is now introducing the Hate Crime and Public Order (Scotland) Act 2021 – an Act that many groups have described as having a chilling effect on freedom of speech, as criminal as expression. opinions in the privacy of one’s home. It has proven to be a controversy that more than 2 years after it passed, it has not come to the force.
What could possibly go wrong with the proposed Victims, Witnesses and Justice Reform (Scotland) Bill? Yes, what could be wrong with what Jolyon Maugham KC complained about recently, although he was eager to show that his project continued to lose because the judges were pressured by the executive for being in Turkey and Poland (rather than because his legal arguments were inappropriate), he it misses the real problem that this bill does. There are four problems:
1. The Bill undermines the independence of the judiciary
how? It gives the Lord Chief Justice, the judge, the power to remove a judge sitting in the Sexual Offenses Court for any or no reason and without due process – or any due process. This is the first time such a power has been given to any judge. Breathing in the scope, this undermines the security of the judge’s rank and, therefore, independence. How can a court composed of judges appointed under these circumstances be considered free and impartial? Otherwise, then Article 6 of the ECHR which states that the accused accused of a criminal offense has the right to a fair hearing by an independent and impartial tribunal will be violated. If the bill violates the ECHR then – rejoice! – is not within Holyrood’s legislative competence. Westminster can again wheel out S.35 of the Scotland Act and Holyrood has another grievance. Is this the real goal?
2. Not trying to be fair
The bill establishes a pilot for rape trials without a jury, a proposal put forward by Lady Dorrian, one of Scotland’s most senior judges. The pilot is set to be reviewed by the executive and the report sent to Holyrood. Some rape trials will be considered experimental laboratories for policies that depart from the principles of criminal justice in England. The bill specifically states that one of the objectives of the pilot is “to consider the impact of single judge trials on the results.” In short, the goal is to increase confidence. Put that with a judge who has no security of tenure and it’s not hard to see the obvious pressure a judge will feel.
Ah – but will the judge submit to that pressure? It is worth reading this Times article by Matthew Syed on how corruption thrives. He showed “reciprocity rule” to explain how even small favors create an obligation, often subconscious, to do favors in return. A pressure unknown to those involved. When the judge in the court, effectively, works at will and knows that the executive is looking for confidence, how can the defendant be sure that this will not interfere with the judge’s decision even if he claims not to or not. t? We can’t. Why would someone accused of a serious crime agree to be a part of the pilot?
3. Alice in Wonderland approach
Everyone wants rape offenses to be properly investigated, the perpetrator tried and, if the evidence is strong enough, convicted. But the way to determine the punishment in a matter like the result, even more so, because the order to ensure a fair trial to the accused who, after all, is innocent until proven guilty. Rape convictions are very low. But this is not due to the presence of the jury. That’s because the investigation is lacking and the delay before trial is too long. If you can get back from the result you want, and remove all the obstacles in the way, you are pretty much guaranteed to do injustice. Rape is a great injustice to women. However, you did not respond, by doing injustice to the accused. Two wrong etc. This approach – it can come back from the results you want or expect because you’ve set it up – is the same approach that led to the Post Office Horizon scandal. It is not good just because the subject of rape is not fraud.
4. The general does not explain the specifics
The explanation for the pilot is so that the judge can decide the evidence without falling victim to the various rape myths that the jury is told. The proof of this myth influencing the jury is the pilot based on mock trials (not real). But the problem with this approach is that (a) it assumes that judges also do not believe this myth; (b) they can be trained out of them – which adds strength to the question that the main goal of the pilot is to increase confidence, even at the expense of a fair trial; and (c) ignores the fact that in the actual individual case evidence may indicate an acquittal even if this appears to outsiders as if the jury believed the myth. For example, it may be true as common to say that a woman does not make allegations of rape or that a woman does not fight back does not mean that she has consented. But you can’t say this in each case. The defendants are not judged in general but on specific evidence, on individual facts and these facts may point to acquittal even though, to an outsider, it may seem otherwise.
There has been much criticism of this aspect of the Bill with many lawyers indicating that they will not act in such cases. So it remains to be seen whether this bill will move forward without amendment. This is not the first time, of course, that Holyrood has sought to remove a jury. Ms Sturgeon tried during Covid to seek an 18-month jury trial adjournment. Now pilots are used instead. What is it with our rulers who keep returning such false proposals? It took 3 years before Raab’s horrible Bill of Rights was thrown out. How long before progressive Scots stop trying to be the Hungary of the British Isles?
Cycle free
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