Monday 10 December 2007

Criminal justice reform: last-ditch protesting

Today, a whole series of provisions in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 Act were brought into force (click here for the commencement order). They include, amongst other things, a substantial increase in summary sentencing powers (see earlier post), an important new power allowing appellate courts to excuse “procedural irregularities” (section 40) and provisions for trial of the accused in his absence if he fails to appear (section 14).

A couple of weeks ago, the president of the Glasgow Bar Association, Gerry Considine, published an article in the Sunday Times (25/11/07) headed “An attack on justice for all” (thanks to James Harrison for drawing this to my attention). The article, which is unfortunately not available online, starts off by saying:

“Over the next six months, the Scottish government proposes to introduce a series of changes to the legal system. The proposals have received little public attention, yet it is no exaggeration to say that they represent the most fundamental attack on citizens’ rights and liberties in our recent history.”

Many of the changes Mr Considine attacks are those contained in the 2007 Act, and there is a lot of sense in what he says. It would be impossible to engage with all his arguments here without writing a full-length article, but there is one key point underlying his argument, relating to the process of change:

“The proposed changes were drawn up by representatives of the Crown Office and Procurator Fiscal Service (COPFS) along with the police, the Scottish government and the Scottish Legal Aid Board (SLAB). There was not a single defence lawyer representing the rights of the accused. This is contrary to our obligations under the United Nations Convention.”

It would be quite encouraging to find a “United Nations Convention” which insisted that defence lawyers be represented on criminal justice reform committees, but unfortunately I have no idea what Convention this might be (please click here for a list of the 50 or so options, including the Convention on Registration of Objects Launched into Outer Space and the Convention on the Use of Electronic Communications in International Contracts, and submit your answers on a virtual postcard).

It is true that the McInnes Committee, whose 2004 report led to most of the present reforms and may or may not be the body Mr Considine refers to – perhaps not, as it had no SLAB representative among its members – did not include a defence lawyer among its membership. (That may not mean that none was invited to take part.) But in fairness, it must be acknowledged that it carried out a consultation exercise to which 117 responses were received, mostly on behalf of organisations (click here for a list). The Glasgow Bar Association did respond, but appears to be the only organisation of defence lawyers which did so. (The Scottish Law Agents Society also responded.)

When the resulting Bill was going through Parliament, the Justice 1 Committee received 51 written submissions (click here: some respondents made more than one submission), including ones from the Glasgow Bar Association, the Law Society of Scotland and the Faculty of Advocates, as well as one criminal defence lawyer.

What can we conclude from this? One of the great difficulties with law reform is that concerns about the reforms tend only to materialise at a late stage, often when legislation is close to being passed by Parliament. Polemical newspaper articles two weeks before legislation is due to commence, however well argued and correct they may be, have no hope whatsoever of influencing an Act passed in January 2007. If these reforms are “the most fundamental attack on citizens’ rights and liberties in our recent history”, why, when the consultations mentioned above were carried out, were there so few responses from defence agents and seemingly none from human rights and civil liberties organisations? If hardly anyone protests at the erosion of rights, liberties, and protections under the law, should we really be surprised when it happens?

Update (20/5/08): A correspondent has rightly pointed out that the Law Society representative on the McInnes Committee, Alistair Duff, was a defence solicitor. He was appointed a sheriff in 2004. The same correspondent has suggested that Mr Considine might have had the process leading to the Summary Justice System Model paper in mind. By that stage, of course, the issues of principle had been settled by legislation.

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