Lord Carloway's right to silence

Earlier this year, the Scottish Parliament's Justice Committee launched an inquiry into "the role and purpose of the Crown Office and Procurator Fiscal Service," to focus on:

"... its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime. The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology."

How Scotland's independent prosecutors are functioning seems just the kind of thing which ought to interest our parliament's lead committee in justice matters at the best of times. But these are not the best of times for Scotland's independent prosecution service. The Lord Advocate's department hasn't been immune from the belt-tightening across Scottish budgets. And new priorities are always accumulating.

The stresses and strains of trying to do more with less in our criminal courts are showing. Just a couple of days ago, the government's People Survey yielded some ambivalent evidence about Crown Office staff's experience of their working environment. Early in September, a number of senior lawyers expressed concerns about Crown Office capacity. Seasoned criminal silk, Brian McConnachie QC, feared that Scottish prosecutors: 

"... don’t have the kind of resources they require to properly carry out the prosecution of crime from low level Justice of the Peace courts all the way up to the most serious crimes in the high court. It does seem that there are cases that are not being properly prepared, cases having to be put off on numerous occasions because COPFS has had trouble finding witnesses or providing full disclosure to the defence." 

Mr McConnachie's observations may be well founded or not -- the Justice Committee inquiry is an excellent opportunity for a candid assessment of the challenges facing modern prosecutors in a time of spending constraint. To build a complete picture of how procurators fiscal are doing, Parliamentarians hoped to speak to a wide range of folk who interact with prosecutors -- including judges. But MSPs face a challenge this morning, as the Herald reports that the Lord President - Lord Carloway - has written to his fellow judges, telling them that he wouldn't be giving evidence to MSPs, and that he expected every serving judge in Scotland to follow his example, from High Court judges down to Justices of the Peace. This isn't a wholesale refusal to cooperate. The committee will have the benefit of the judicial perspective in written submission from the Scottish Courts and Tribunal Service.

In response, the new Tory justice spokesman in Holyrood, Douglas Ross makes a fair point: "It seems astounding that judges or sheriffs wouldn't be in a position to give evidence on the Crown Office. They are watching it in action every day and seem like they would be ideally placed to speak to the Justice Committee on what needs to be improved," he said. So what is Lord Carloway's explanation for this prima facie curious refusal to appear before parliament? The Justice Committee have published the full text of the Lord President's letter, which sets out his reasons for this policy. And I must say, I find them extremely unpersuasive.

Lord Carloway expresses a series of objections. In the first place, he suggests it would be "constitutionally" improper for him - or any other judge - to meet MSPs "informally" to discuss the inquiry. "Any such meeting would require to be a public one," he argues, for reasons of transparency and because any comments or criticisms" of prosecutors should be made in a forum which allows them "to respond properly." This seems eminently reasonable. Judges shouldn't conduct whispering campaigns or backroom briefing against the lawyers who appear before them. Natural justice demands a more open process -- a process best served, you might well think, by judicial participation in public hearings, rather than boycotting them.

But here we turn to Carloway's second objection, and here the Lord President loses me. He begins on an admirable note of modesty. He worries he may not be best placed to speak to prosecutors' systematic effectiveness: "it is difficult for the Lord President to comment on the overall efficiency and effectiveness of COPFS as, sitting as a judge, he sees only a part of the work of COPFS; in effect the end product of the Crown's work. Inevitably that is a very limited perspective. It would be inappropriate to draw conclusions based on subjective experience of a small pool of cases and therefore a narrow view of these matters." But he also extends this logic to his brother and sister judges. His legal secretary writes: "He does not consider that individual judges and sheriffs are in a position to comment on the various issues, given that such comments would be based either on anecdote or an incomplete understanding of the facts."

This is a baffling rationale for barring his judicial colleagues from giving evidence. Professor James Chalmers put the central point neatly this morning. "If anyone had a 'complete understanding', the Committee could just interview them and be finished in an afternoon." This is basic social research. You don't have to know everything about an organisation to be able to say something significant about your experience of how well it works. Of course, this perspective will be limited. Of course, we should be cautious about drawing wide-ranging conclusions from witnesses with partial perspectives.

But contrary to the Lord President's assertions -- judicial experience isn't just empty anecdote or irrelevant subjectivity. Judges see the law in action. It seems perverse to argue that just because judges don't know everything about how the Crown Office operates, they shouldn't share any of their many informed impressions about the quality of the "end product" of prosecutors' work.  And after all, aren't its "end products" quite important, in evaluating the effectiveness and efficiency of an organisation? 

Lord Carloway - who deals almost exclusively with appeals work - may be unable to speak to the effectiveness mass of routine prosecutions for lower level offending which takes place, for example, in Glasgow Sheriff Court. But why prohibit those judicial officers do have that insight from sharing their experiences with parliament? 

It is not as if the Appeal Court maintains a self-denying ordinance in these matters. Lord Carloway and his colleagues fairly often pass general comment on how Crown Office lawyers handle their cases, extrapolating from individual facts and circumstances to more general problems and challenges faced by prosecutors. A single case might be an "anecdote" -- it might also neatly encapsulate problems which are more systematic. This is precisely what Margaret Mitchell's Committee is trying to do, according to their own lights. 

Of course individual judges don't have a complete picture of the issues facing COPFS, but they must have a perspective which could usefully add to that picture. Ultimately, it is for MSPs to pull that picture together. It is for parliamentarians to weigh up the credibility and reliability of the evidence they hear. It is for them to make the judgements about how far they ought to extrapolate from witnesses' observations, and how far they should treat the evidence they hear with caution. Lord Carloway invokes constitutional propriety in his letter. Just how constitutionally appropriate is it for the Lord President to take it upon himself effectively to decide these questions for the Committee in advance? Strange times.

What are fatal accident inquiries for?

It's a fundamental question -- but listening to tonight's news headlines on BBC Radio Scotland, I found myself wondering if the answer to it is well understood. 

The airwaves have been crackling with stories about the health and lies of Harry Clarke for some weeks now. The Sheriff Court has heard evidence from a score of witnesses, suggesting that the Glasgow bin lorry driver was less than honest about his medical history during his recruitment by the City Council, and in his dealings with his medics and the licensing authorities. 

Striking, accusatory front pages are mounting up against him. Talk has turned to the feasibility of his private prosecution, after the Crown Office ruled out proceeding against Mr Clarke. Others are suggesting the driver ought to be liable to prosecution on a charge of fraud at common law. James Chalmers of the University of Glasgow has covered the issues well here.

These inventions cannot make comfortable reading for Mr Clarke - from whom, as yet, Sheriff John Beckett QC has heard nothing. Kenneth Roy worries that the FAI has been transformed into the trial of Harry Clarke, And listening to and reading the coverage of the proceedings before Sheriff Beckett, I can understand why the casual listener might find it easy to mistake the inquiry for an assize into the the life and lies of the now much-maligned Mr Clarke, whose white lies could be seen to have contributed to an unnecessary tragedy. But it is important for us to bear in mind (a) what fatal accident inquiries are for and (b) what precisely Sheriff Beckett will and will not be called upon to decide when he concludes hearing evidence.

First, the nuts and bolts. As you are probably aware, in Scotland, we have no echo of the English system of coroners' courts and inquests.  The Procurator Fiscal is responsible for investigating deaths and ordering autopsies if these are warranted. In addition, the Lord Advocate can apply to the sheriff to hold a public fatal accident inquiry. These are particularly important where an individual dies while in the custody of state authorities. The chief public prosecutor may also do so where they judge that it is:

"... expedient in the public interest ... on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern."

So what is it the sheriff's responsibility to decide? First, let's clear away some obvious misconceptions. One: the judge cannot decide on criminal or civil liability. They cannot jail or fine anyone. They cannot award damages or compensation. An FAI is not a criminal accusation or a personal injury claim. These are separate questions, requiring separate legal proceedings. 

Even if the judge reaches searing conclusions about individual or organisational negligence or incompetence - the FAI isn't a criminal case. The procurator fiscal isn't prosecuting - they are trying to assist the sheriff to get to the bottom of the case. So what will the sheriff have to decide? The Act charges him with five key duties. Having heard all the evidence, Sheriff Beckett must set out: 

1. Where and when the death and any accident resulting in the deaths took place;
2. Identify "the cause or causes of such death and any accident resulting in the death";
3. What "reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided";
4. "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death"; 
5. And finally, "any other facts which are relevant to the circumstances of the death."

The immediate cause of the accident seems tolerably well established. The driver of a collosal vehicle lost consciousness, losing control, tragically slaying six people in the middle of Glasgow on the 22nd of December 2014. But it is the legislation's emphasis on identifying systematic problems and institutional failures which has prompted the forensic analysis of Mr Clarke's medical history, and his failures to disclose these to Council authorities in seeking employment, and to the licensing authorities when in employment. 

Reading between the lines, Lesley Thomson's questions should not be understood trying only to pin the blame on the driver. The Solicitor General is trying to help the court illuminate and identify structural problems, and those opportunities which may have been missed - by the Council, by the DVLA, and indeed, by Mr Clarke himself -  to pre-empt and prevent this tragedy. An FAI isn't just a day in court. 

Its goal isn't - primarily - to give the families of those who have been slain the satisfaction of seeing the circumstances of their kin's deaths publicly explored. In principle, their purpose is more utilitarian - and perhaps more useful. What went wrong? What could we do differently? Let's look at these events critically. What lessons does a careful reading of the evidence suggest to us? WHat weaknesses in our procedures has it identified? These questions are now beginning to crystalise in the court on the south bank of the Clyde. 

Could additional safeguards be built into the system for recruting and monitoring heavy goods drivers? The answers to these questions may be unsatisfactory -- sometimes human systems fail. Sometimes little else could have been done to prevent ghastly things happening. Sometimes a sheriff can spot substantial problems -- and give our public authorities a useful steer in remedying them. But  in the torrent of scorn now engulfing Mr Clarke, and his mistakes, let's not forget that fatal accident inquiries are not criminal courts. Let's not forget what this trial is really all about.

Professor Chalmers: The law "cannot be stated with any degree of certainty whatsoever..."

As my regular readers will know, I’ve a raging hymenopterous beastie in my bunnet about the criminalisation of assisted suicide in Scotland. Two recent blog posts have examined Holyrood’s scrutiny of the late Margo MacDonald’s proposals to definitively legalise assisting suicide, and found it wanting.

Whatever you think of the issues, I argue, the law as it stands is intolerably value and unclear. Is it homicide to collect a vast stash of drugs and to give them to a loved one to take, to end their suffering? Is it murder, or culpable homicide, to assist your relative to mount a plane to the Dignitas clinic in Switzerland? What does the Lord Advocate think about these things? On all three, I argue, the legal answers are clear as mud, evasive, fudged. And that can’t be right.

Perhaps prompted by my girning blog posts, Patrick Harvie posed a number of these awkward questions to witnesses during a recent Holyrood evidence session on the Bill. Astonishingly, the Crown Office seems unable or unwilling to offer any guidance whatever on its understanding of the law here, complaining that they are subject to a live judicial review. Even taking this pending civil case into account, I find this reluctance to offer any meaningful steer to our parliamentarians on their understanding of the criminal law confusing, to say the least. But a seed of unease about the current law on assisting suicide seems to have been planted.

Interesting tidings, then, this afternoon from Professor James Chalmers of the University of Glasgow, who reports that he has been approached by Holyrood’s Health and Sports Committee "to answer a series of questions on the scope of Scots criminal law as it stands." Professor Chalmers’ full response to the Committee can be read here. But James provides this pithy, pretty damning summary of the law as it stands which should powderkeg the complacency which has characterised parliament’s analysis of the Scots criminal law on assisting suicide:

"... the core conclusion is a simple one: the scope of the criminal law in this area can not be stated with any degree of certainty whatsoever."

In its thoroughness, James’ analysis hammers home the uncertainty of the current law extremely effectively. Whether or not Parliament endorses this Bill, the criminal law cannot be permitted to remain as it is, uncertain, unprincipled, and relying on the untransparent exercise of prosecutorial discretion to avoid injustice.  

Under the European Convention on Human Rights, we are entitled to know what is and is not criminal, and the sanctions we expose ourselves to if we decide to transgress. These rights are fundamental, essential, minimal. In principle, the current legal regime on assisting suicide in Scotland fails to live up to these ideals, providing authoritative guidance for the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable.

That the Health and Sport Committee is seeking learned advice on this neglected issue is a very welcome development. They are to be commended for rejecting the Justice Committee's complacent incuriosity, and posing the tough questions. Let's see what they make of Professor Chalmers’ equally challenging answers.