The SNC/ SALVO/ LIBERATION RESPONSE

My objections to scrapping juries are included in this official response to the “ Consultation”

Steering Group of Scottish National Congress

September 5^th 2023

Submission on the Victims, Witnesses and Justice Reform Bill

To the Criminal Justice Committee of the Scottish Parliament

Dear Committee Members,

We write to you on behalf of the combined membership of Liberation Scotland and its campaigning group, Salvo, who are committed to upholding and restoring the distinct constitutional identity, rights and legal provisions to which Scotland and its people are entitled. 

In respect of the proposed Victims, Witnesses and Justice Reform Bill we wish to draw your attention through the submission below, to the threats posed by this Bill to impartial and reliable justice, to the distinct character of Scots law and to the constitutional compact between the Scottish people and their government. 

It is evident to us, as to many others, particularly within the Scottish legal profession, that should the Bill proceed in its present form, it would undermine the long tradition of fairness and justice in Scots law and threaten the integrity of human rights in Scotland.

The signatories below further assert that the Bill, if enacted, will place the Scottish Executive in breach of the Scottish constitutional compact and of its own position of public trust:

The Claim of Right Act 1689, which remains law and a “core UK constitutional statute”, deposed a king and a Parliament on the grounds that the monarch, the executive, had wielded an ‘arbitrary and despotic power’ and so “invaded the fundamental constitution” of this nation.

The Victims, Witnesses and Justice Reform Bill closely approaches an arbitrary and despotic overreach and, in Scots law, such an ‘invasion’ results in the forfeiture of legitimacy. Although the People of Scotland presently have no mechanisms by which to exercise our sovereignty, no ‘Convention of Estates’ by which to challenge ‘arbitrary and despotic’ action, nevertheless legitimacy may be lost while authority continues. 

Whether the Scottish government chooses to be constrained by what is constitutionally lawful in this nation or follows the example of Westminster in assuming the power to alter the fundamental constitution will determine its continued standing in the eyes of the people of Scotland.

Signed

Iain Lawson, Chair

For and on behalf of the Scottish National Congress Steering Committee

Submission of the Scottish National Congress (Steering Group), of Liberation Scotland.

Submitted that if enacted in its present form, the Victims, Witnesses and Justice Reform Bill would represent:

1. A sweeping reversal of long-established legal practice; the subversion of the principles of judicial independence and equality; the substitution of a political agenda in place of legal prudence and, rather than a remedy for injustice, the exchange of one set of injustices with others of equal gravity.

2. An ‘either or’, (binary), approach to a set of complex legal problems whose potential solution represents an opportunity for a considerably more just, nuanced and, in the long term, effective response.

3. An assault on the distinct legal principles of Scotland.

4. An attack on the distinct provisions of Scottish constitutional law which no government may dispense with without the agreement of the Scottish people. 

In respect of Items 1 – 3, (below) this submission is based on senior, Scottish Legal opinion.

1. Bad Law

1.1. Fundamental legal principle is overturned in the proposed legislation. 

The presumption of innocence in law, until and unless guilt is proven beyond reasonable doubt, is fundamental to any system of justice. 

The provisions of this bill, however, assume the guilt of the accused both in the title of the bill, Victims, Witnesses and Justice Reform and the definitions within it.

Section 14:

4. (4)  Subsection (3)(b) does not authorise the disclosure of information which leads, or is likely to lead, to the identification of— 

1. (a)  victims, 

2. (b)  witnesses, 

3. (c)  persons suspected of committing of an offence but who have not been charged in relation to that offence. 

Section 23:

“victim” means a person against or in respect of whom— 

1. (a)  an offence, or 

2. (b)  harmful behaviour by a child, 

has been, or is suspected to have been, committed or carried out. 

The status of ‘victim’, assigned where a crime is suspected but not proven to have been committed, clearly imposes on the accused the a priori status of offender. 

This is contrary to the legal principle of presumed innocence and prejudices the prospects of a fair and impartial trial.

Further, it may permit the grant of immunity for those guilty of false witness, perjury and malice, from the legal consequences of their actions. However infrequently it might occur, this would represent a grave misuse of the law and is an unacceptable ‘solution’ to the challenge of providing anonymity for traumatized and vulnerable complainers.

The correct term in the title of the Bill and in all internal definitions are complainers, witnesses and suspects/accused.

1.2. The removal of the right to a jury in specific, criminal (rape), cases creates new risks in place of the perceived inadequacies of juries – the apparent prejudice, lack of experience or lack of empathy of ordinary members of the public: 

• Judges are as prone to prejudice and lack of empathy as members of the public. The diffused knowledge and experience and the shared responsibility of a jury provides some insurance against the individual prejudices or lack of empathy of a single judge.

• It is inconsistent to hold that a jury is inadequate to the demands of a rape trial but may be trusted to reach a reliable verdict in a murder trial. In fact, it is not unknown for the wisdom of a jury to exceed that of a judge.

• Judges may be placed, or feel themselves to be placed, under pressure to ‘perform’ in terms of achieving a conviction rate.

• Political ambition with respect to the desirability of a higher conviction rate in rape cases, may lead to undue influence to achieve that result. This could find expression in pressure on the Lord President, for instance, to remove an ‘underperforming’ judge.  Judges will be inevitably conscious of that potential and liable, themselves, to be influenced by it.

• A serious threat posed by the proposal to remove juries from rape trials is the opening this would create to predatory abuse of the law. Political and judicial corruption have always existed. The potential for a judge to succumb to financial, political or other influence and to convict an innocent person in the service of such an agenda is as great as the potential for the corruption of any individual in any public office. Juries provide an insurance policy against such abuse.

The removal of a jury in any criminal trial, therefore, and particularly where there will inevitably be pressure on a single judge to achieve a conviction rate, threatens the independence of the judiciary, the likelihood of fair and impartial justice and the integrity of the judicial process.

This ‘reform’, therefore, while liable to produce a politically desirable rise in conviction rates, is unlikely to produce a rise in the safe conviction rate. 

Judge only trials appear to offer a ‘quick route’ to a higher rape conviction rate but while this has obvious political appeal it comes at a cost: 

the independence and integrity of the judiciary,

the reliability of a verdict delivered by a jury,

and the human rights associated with an independent and fair judicial system.

2. A Binary and Simplistic Solution

2.1. It is entirely possible to improve on the present system in all respects rather than improving a conviction rate by subverting justice itself. 

There are multiple, possible options available for remedying the dismal rape conviction rate and the, often brutal, experience of genuine rape victims. These options should be considered and evaluated for their potential to improve and enhance the efficacy of the present system. They include:

• returning to the practice of a panel of three judges

• choosing jurors from an appropriately qualified section of the population

• the introduction of specially trained lay judges (as in Germany)

• providing training for jurors

3. Abandonment of Distinctive, Scottish Legal Principle and Tradition

There is no attempt in the proposed legislation to maintain, or even to recognize the characteristic Scots legal system. There are, however, two proposals in the bill which serve no purpose except to introduce English legal convention in place of Scots.

3.1. The substitution of the English jury number, twelve, for the Scots jury of fifteen, (and in some instances seven), offers no other benefit than to Anglicize the Scottish system.

3.2. Unlike English law, Scots law is distinctively non-binary, allowing for a verdict of not proven in criminal cases. Implicit in this Scottish provision is the principle of reasonable doubt.  

Juries are asked to consider whether the evidence in a case is sufficient to satisfy them, beyond a reasonable doubt, of the guilt of the accused. If so, they are required to deliver a guilty verdict. If, instead, the evidence does not establish guilt beyond reasonable doubt, or if it points to the innocence of the accused, they must deliver a verdict of not guilty.

But there are cases in which the evidence itself is inadequate, possibly untrustworthy and incapable of establishing the truth of the matter.  In this instance a verdict of ‘not proven’ is a reflection, not of the status of the parties to the case, but of the limitations of the legal process. 

It is reasonable and sensible to acknowledge that a case is unsafe in and of itself. This acknowledges the non-binary world in which we live, where the facts do not always offer a clear choice between two opposing arguments. 

The not proven verdict also recognizes human limitation such that a case must sometimes be found lacking, rather than an unsafe verdict returned.This is unsatisfactory to many but it is an expression of an unsatisfactory truth; there are occasions when the inadequacies of the evidence allow no safe verdict. In those instances, requiring an either/or verdict will always produce an unsafe verdict. 

Scotland’s option of the not proven verdict is a feature of the nuanced character of our system of law and one that is considerably fairer and more honest than the black and white, binary verdict system of England. Abolishing it is a retrograde step which, as noted before, will be likely to increase the conviction rate but certain to increase the number of unsafe convictions. 

Removing the not proven verdict will certainly improve matters for innocent defendants who would otherwise have continued under the cloud of a ‘not proven verdict’. But it will also, and just as certainly, result in juries convicting despite more than reasonable doubt.

4. A Violation of Scots Constitutional Law

The longstanding, historic constitution of a nation is not subject to the whims of a transitory government. Rather, and notwithstanding the claimed absolutism of Westminster, government is subject to the limitations and provisions established by that constitution. 

Scotland’s constitution, both customary and statutory, preserves the limits of government and forbids, under the ratified Claim of Right Act, absolutism, arbitrary power, the right of a government to dispose of (cast and annul), laws protecting civil rights, the independence of the judiciary and the right to justice. 

What is thus preserved as a condition of the Union may not be ‘arbitrarily’ dismissed by a government whose authority is not wielded over the nation, its people and constitution but is subject to these.

4.1. The Victims, Witnesses and Justice Reform Bill proposes to dispense with almost twelve hundred years of Scots constitutional law.

The right to jury trial was first codified under Kenneth McAlpine, in what is referred to as the code McAlpine:

All persons suspected of any crime, shall suffer the inquest of seven wise and judicious men, or of any number of persons above that, provided the number be odd. . . 

While every schoolchild has heard of the English Magna Carta, few adults know of the Scots equivalent. Yet:

The “Code McAlpin” represents an early form of constitution for Scotland. This body of laws provided the basic structure for the governance of the kingdom, predating the English Magna Carta by more than two centuries. It set precedents for rights, responsibilities, and the rule of law that have shaped Scotland’s constitutional development to the present day (Barrow, 1981, p. 126). 

Conclusion: 

The “Code McAlpin” is a key piece in the puzzle of Scotland’s historical legal and constitutional development. Its laws laid the groundwork for the kingdom’s governance, contributing to the formation of Scotland’s unique identity.

It is inconceivable that any English government would consider overturning the principles of law established from Magna Carta onward and, should it do so, it would rightly face public outcry. Yet our own government, either in ignorance of, or disinterest in our own distinct and historic constitutional tradition, now proposes to discard it entirely in respect of certain crimes and to replace its particular characteristics with those of England in general.

4.2. In its present form the Victims, Witnesses and Justice Reform Bill, disregards centuries of the Scots tradition of justice.  

By opening the door to the potential for undue pressure, undue influence or corruption of the judiciary, the Bill specifically ignores the constitutional prohibition of such interference in with the independence of the judiciary stipulated in the Claim of Right Act, 1689. 

By Sending letters to the chiefe Courts of Justice not only ordaining the Judges to stop and desist sine die to determine causes But also ordering and Commanding them how to proceed in cases depending befor them Contrair to the express lawes and by chainging the nature of the Judges gifts ad vitam aut culpam and giveing them Commissions ad beneplacitum to dispose them to complyance with arbitrary Courses and turneing them out of their offices when they did not comply​ 

Here the executive, (King and Parliament), is declared to have acted in a manner “contrary to law”, by undermining judicial independence through direct interference, pressure, inducement and threat of removal. And, as Sir David Edward explains:

Protection of the judiciary against discretionary interference by the executive … remains an important element in the constitutional separation of powers, (Edward, Scotland’s Magna Carta).

The Claim of Right Act remains law in Scotland as a ratified condition of the Union and a ‘core UK, constitutional statute’. While it has been assiduously ignored by Westminster, it is unconscionable for the elected representatives of the Scots nation to exhibit a similar contempt. It is also ‘contrary to (the) law’ which is binding on government in Scotland. 

To quote Edward once more, “we may legitimately demand, relying on the Claim of Right”, that the freedom of our judiciary from undue executive pressure, influence or direction remains the protected right of the nation of Scotland.

References:
Barrow, G. W. S. (1981). Kingship and Unity: Scotland 1000-1306. Edinburgh: Edinburgh University Press. 

Edward, Professor the Rt Hon Sir David KCMG QC FRSE*. Scotland’s Magna Carta: the Claim of Right and the Common Law: The UK Supreme Court Yearbook · Volume 6 pp. 8–13 

It is, therefore, our considered advice and request that, the Scottish Government:

• extend the period of public consultation

• establish public hearings at which the implications for justice, both favourable and unfavourable, are fully set out by advocates

• amend the proposed legislation according to legal and public opinion

• introduce no legislation which alters Scottish constitutional provision except with the addition of the words, ‘subject to referendum’.

This submission has been lodged with the Scottish Parliament and has also been sent to every member of the Scottish Parliament. Please feel free to submit your own views at https://yourviews.parliament.scot/justice/victims-witnesses-justice-reform-bill/ This means you have to fill in a lot of different sections, an alternative method which is simpler is vwjrbill@parliament.scot

I am, as always

Yours for Scotland.

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