Saturday, 6 October 2012

Career prosecutors as law officers have destroyed criminal justice system

[This is the headline over a letter in today’s edition of The Herald from Jock Thomson QC. It reads as follows:]

I see from the Scottish Legal News that Lady Stacey is to preside over a high-powered debate on the abolition of corroboration organised by the Scottish Association for the Study of Offending.

The outcome will be academic since Lord Carloway already has the green light – as ever, the devil will be in the detail.

History will show that the genesis of the destruction of our criminal justice system was the appointment of career prosecutors as law officers: beginning with (now) Dame Elish Angiolini QC as Solicitor General and continuing with a succession of senior members of Crown Office and Procurator Fiscal Service (COPFS) since who have become and will remain Lord Advocate and Solicitor General for the foreseeable future.

This has led to the unholy, unhealthy alliance of law officers and law makers: Kenny MacAskill and Frank Mulholland, in the same bed. There is no separation of powers. Constitutionally the system now is morally and mortally flawed.

The fall-out from Cadder led to the knee-jerk Cadder Reforms. Ms Angiolini's furore about lack of convictions in rape cases, many of which should never have been raised in the first place, led Mr MacAskill to appoint Lord Carloway to consider whether the law should be amended to abolish the need for corroboration. The current Lord Advocate wants to do away with the accused's right to silence and the logical follow-on from that will be to make the accused a compellable witness. Will the next inexorable draconian step be the replacement of the presumption of innocence with that of a presumption of guilt? It's beginning to look that way. And by that time there may be little or no Criminal Legal Aid.

[Here is something I wrote on this blog on 19 May 2011, when the present Lord Advocate’s appointment was announced:]

This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister).

The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.

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