Martin Hannan: Law of the land ripe for revision

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Edinburgh is a real lawyer’s town, home to the supposedly supreme courts of Scotland and replete with legal eagles and their most prodigious output – gossip.

It’s been a great year for gabbing lawyers in the Capital, what with the Tesco law reforms, more changes on the way, high-profile trials, and a bomb allegedly being targeted at much publicised QC Paul McBride.

It’s been nary a dull moment, especially when the legal establishment failed to engage with the UK Supreme Court riding roughshod over Scots law. As Alex Salmond and Kenny McAskill realised earlier this year, a threat to Scots law is a threat to our national status. They saw that the UK Supreme Court sitting in judgement on Scottish criminal cases was overriding Scots law, a bastion of our nation.

Though the language of the Supreme Court debate was a bit intemperate on all sides, the findings of the McCluskey Commission proved the First Minister and Justice Secretary were correct to contend that London rule of Scottish courts undermined our legal system.

And what thanks did Salmond and McAskill get from the supine Edinburgh legal establishment? No, I didn’t notice it either.

Incidentally, as an SNP member, I find the continuing attempts by unionist lackeys and hacks to portray the First Minister and my party as “bullying” to be utterly laughable, except that some critics are being deviously sinister in their attacks, trying to make out that all of a sudden an SNP majority at Holyrood is creating a totalitarian atmosphere in Scotland. As my dear old dad would have said, awa’ an bile yer heids, ya mugs.

The only near-totalitarian states in Scotland in recent years were certain Labour councils, and such ludicrous scare stories about the SNP only serve to make more people question why the unionists are so lacking in intellectual quality and reasoned arguments that they have to resort to yah-boo name calling out of the playground.

But I digress. I have had to conclude that the mantra that Scots law is the best anywhere is now a pile of hokum. The various recent commissions and inquiries are only scratching the surface of a legal system which has not moved with the changing times. Scots law is deeply flawed, and it is time for Holyrood to flex its muscles and bring it into the 21st century.

Here are some reasons why – we have been told for centuries that Scots law bends over backwards to be fair to the accused, and all of a sudden the Cadder case and others showed why that was nonsense. It is a simple fact that Scots law did not accord with the Human Rights Act prior to Cadder, and still doesn’t. That must be put right immediately, if only to stop the trail of convicts bleating that their human rights have been abused.

Our jury system is fundamentally unfair. The aforementioned Paul McBride has called for jury reform, to weed out biased and frankly stupid people. Well, would you want an idiot judging your case? It’s an idea at least worth trialling.

Then there’s the serious problem of court cases where a verdict is reached by a narrow majority of the 15 jurors. Yet people are only supposed to be found guilty if the Crown proves them guilty “beyond a reasonable doubt”.

It is bending logic to an unsustainable degree to allow verdicts agreed by only eight or nine members of jury of 15. If six or seven jurors are not convinced that the Crown’s case was made, surely that is sufficient evidence of “a reasonable doubt?”

England’s 12 person juries can only convict on a unanimous basis or by 10-2 majority at most. We should learn a lesson from our friends south of the border on this matter and bring in a rule requiring 12 out of 15 jurors to agree on a guilty verdict.

Accused people are given major assistance in Scots law – the rule of corroboration. It is time to ask why admissions from an accused person obtained on a tape recorder with his or her lawyer present still need to be corroborated. And how do you corroborate evidence in a case where a husband beats his wife, or vice-versa?

I shudder to think how many domestic violence cases have been set aside because procurators fiscal are aware that one person’s word isn’t enough to convict. When a person admits his crime on a tape with his or her lawyer present, no further corroboration should be required.

As for the “biggie” – the Not Proven verdict – it was a joke among civilised people and especially foreign lawyers even before Hearts fan John Wilson admitted assaulting Neil Lennon and got off “not proven”. Yes, there were peculiar circumstances in that case, but “not proven” has long been a hangover from history that is illogical and no longer justifiable. You’re either guilty or not – end of.

That’s just a few things of many that are plain wrong with Scots law in 2011. Lord Carloway’s review on reform is due later this month but given his early views on corroboration I seriously doubt he will suggest the fundamental changes that are needed.

I’ll bet there are more than a few Edinburgh lawyers who agree with me, but don’t hold your breath waiting for that docile mob to speak out.