Monday, 6 October 2014

In memoriam Jock Thomson QC

It is just over one year since staunch Justice for Megrahi supporter Jock Thomson QC died. Two years ago on this date a letter from Jock headlined Career prosecutors as law officers have destroyed criminal justice system was published. What follows is the blogpost reproducing that letter:

[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.

1 comment:

  1. All,

    As I commented at the time of the late lamented Jock Thomson's death, he was the greatest Lord Advocate that Scotland never had. A former seaman, police officer, defence advocate and QC, he was an individual of wide experience and perspective on humanity and its condition. In his signing on the dotted line when joining the Committee of JFM, he demonstrated a self sacrificing commitment to a highly contentious cause, which led him into an inevitable facedown with legal authorities.

    He was absolutely right to indicate that the Scottish criminal justice system was, and is, losing both its sense of basic principles and its reputation for the dispensation of fair and balanced justice for all.

    Another Scottish lawyer, of considerable repute and notoriety (whom Jock, perversely, but in the best of humour, actually prosecuted many moons ago) once related to that the way things were going, vis-a-vis the Justice Directorship and COPFS, he sensed the echoes of jackboots on cobblestones.

    So long the prohibition on double jeopardy. So long the right to silence. So long corroboration. So long the power of our professional and independent arbiter (the SCCRC) to tell the High Court to knuckle down and hear the appeals referred to the judiciary by them.

    Now we are entering an environment whereby anyone who takes the fancy of COPFS can be pursued to the grave until they submit. The burden of proof has now moved to the accused rather than the accuser having to justify the accusation. No longer will key evidence have to be corroborated. Finally, once banged up, the very institution that sent them down can turn around and refuse to hear an appeal on the ground that they do not wish to have their judgements questioned.

    This is the world we are entering. This is not justice, it is a dictatorship of convenience. It is not being established to bring a false sense of satisfaction to the victims of crime, whom I deeply sympathise with and support, these are changes being introduced to enhance the reputations of both COPFS and the government, which will lead to a rise in miscarriages of justice and the victims of crime being duped.

    Jock saw this with crystal clarity. He was a straight talker with his heart in the right place. He had no hesitation in joining the JFM Committee. The campaign fighting the Lockerbie investigation and the legal processes surrounding the al-Megrahi conviction provide an opportunity for the public at large to question the direction our criminal justice system is moving in.

    I too hear the sound of jackboots on cobblestones, but they are being very cleverly muffled.