Judging the matter
Judge. The clue lies in the title. Deciding on matters of law in a court is a question of judgement.
As was previously said in respect of fingerprints, it is not an exact science.
There is no algebraic formula which tells a judge that (x + y)2 = 鈥渢he accused walks free鈥. It is a question of judgement.
Does that mean, then, that the prosecution, the Crown, is entitled to question the judgement reached by the bench if that forestalls a case from being put before a jury?
That is the essence of the controversy underlying the criticism delivered by the Lord Justice General, Lord Hamilton.
He has complained about the statement made to MSPs by the Lord Advocate, Elish Angiolini, with regard to the collapse of the World鈥檚 End murder trial.
To recap very briefly, Angus Sinclair was charged with the murders of two young women, 30 years ago.
The case was prosecuted by Alan Mackay, advocate depute.
The judge, Lord Clarke, dismissed the case on the basis of insufficient evidence 鈥 with the effect, of course, that the issue was not presented to the jury.
We are in novel territory here. The Lord Justice General鈥檚 statement was issued with an advisory note conceding that it was 鈥渁n unusual step鈥 for Scotland鈥檚 most senior judge.
A fortnight ago, in making her statement to MSPs, the Lord Advocate had acknowledged that she would 鈥渘ot normally think it appropriate as Lord Advocate to comment鈥 following a judgement from the bench.
In truth, she may be wishing now that she had pursued her customary course.
As I have said before, I was not in court for the trial and do not feel qualified to join the legion of 鈥渁rmchair commentators鈥, criticised by Ms Angiolini for offering views on the conduct of the prosecution.
However, I was in the gallery at Holyrood to hear the Lord Advocate鈥檚 statement.
I must confess to feeling a little uneasy: both at the exceptionally detailed statement itself and at the subsequent Q&A session with MSPs which seemed, to me, to come very close on occasion to rerunning the trial.
Did she criticise the judge? No, not directly. Indeed, she took pains to stress that the judge was perfectly entitled to act as he did. The decision was, properly, his and his alone.
Did she criticise the judgement?
Yes, at least implicitly. The key section is where she said: 鈥淚 am of the clear opinion that the evidence made available to the court was sufficient to be put before the jury, to allow them the opportunity to decide on the case against Angus Sinclair.鈥
The only interpretation which can be placed upon that statement is that the Lord Advocate felt the judge was wrong to halt the trial and wrong to forestall the jury from casting their verdict.
The Lord Justice General says that the Lord Advocate鈥檚 overall statement 鈥渄oes not afford the requisite respect鈥 to judges.
To the contrary, he argues, it may tend to undermine the necessary confidence in the judicial system.
At Holyrood today, the First Minister Alex Salmond defended the Lord Advocate鈥檚 statement, insisting that it was justifiable, indeed vital, in a system of Parliamentary accountability.
But, if that is true, then who speaks in Parliament for the defence? Who speaks for the judge? Are we only to hear the Crown view of cases which have caused public and political controversy?
I am far from offering a fixed view on this. The atmosphere surrounding these hideous murders perhaps called for comment. The Lord Advocate was undoubtedly responding to pressure from MSPs.
But might that not be said, in future, of other cases? Might it not be better, on balance, if prosecution, defence and judgement were conducted solely in court?
Might it not be better, again on balance, if MSPs confined themselves to setting the parameters for our judicial system including, if warranted, a Crown right to appeal against such judgements?
In short, might it not be better if our politicians stuck to making the law rather than prosecuting it?
I'm 
Comments
Seems clear cut to me, merely a women trying to ensure she got the last word, miffed as she was at the outcome; unfortunately for Ms Elish Angiolini it proved not to be the last word.
Sexist beast I hear those feminists cry, this the most normal of the chosen attacks, employed as it is in order that the truth be subverted, employed most normally after reasoned debate has exited via a convenient window.
Ms Elish Angiolini may now realise that there are some things best said in camera; rather than choosing as she did a path to let everyone know she was correct all along and no fault lies with her.
As I said at the time the only way we would know who was right and who was wrong was if we were permitted to see all the evidence; I feel Ms Angiolini and the Judge are each guilty as charged of a face saving attempt.
Good to see 大象传媒 Scotland on Holyrood Live managed to get Lord Foulkes into the studio for his unbiased and measured comments as usual. Is he on the permanent staff of the 大象传媒? Furthermore, we've had speculation about an election ad nauseum for the past few days and relentless reporting from the Labour Conference. As Scotland is an irrelevance to the Labour Party at Westminster, why was so much time in a programme of only one hour given to this matter?
Brian,
I do tend to agree with your thoughts on this mater BUT and it鈥檚 a big But do you not think that the good lady was in effect answering the media on this one.
The third estate has itself, become a problem it can not keep up with the medium that we are at this time using.
With space on all the papers difficult to sell has sensationalism in all its forms now become the must have in the circulation wars.
The Noble Lord is also quite right in that if we are not careful on this mater the Judiciary will not be able to do their job. The Judiciary and Prosecution at all levels must seen to be out with the control and influence of the Politicians and Media was that not the reason the young lady herself was excluded from the current cabinet and was the previous incumbents appointment.
This is a really difficult one, Brian, and I think that all of your points on it are valid.
Like it or not, we live in a 24-hour media age. What is said in the court can (Should) be reported in the (Scottish)Six o clock News. MSPs get jumpy when controversy appears, hence the Lord Advocate being dragged before them like a naughty schoolgirl to explain what went wrong.
I don't know and will be happy to be enlightened, but isn't the way things are handled is that when a case is passed to the Procurator Fiscal for examination, there must be in the opinion of the Procurator a reasonable chance of a valid conviction before the case can proceed ?
The Lord Advocate tells us that she is of the opinion that the case was essentially sound. Lord Clarke tells us that he was of the opinion that the evidence was insufficient.
Who got it right ?
I personally am of the view that the case should have gone before the jury after the prosecution had been given the chance to present all of their evidence and the defence the chance to respond.
This case is gone now because the publicity surrounding the past of the alleged perpetrator means that he would be now be unable to get a fair trial.
There is no easy answer to this one, but somebody somewhere, be that the Judge or the Prosecutor, has made a mistake, and I think it fair to ask our Elected Representatives Who, What, Where, When, How and Why, and can it be stopped from happening again.
That doesn't mean, as far as I am concerned, interfering with the judicial process or the independence of the Judiciary. It means Oversight, and if not by our Elected Representatives, then by who ?
I remember the "Worlds End Murders" and the gut-wrenching fear that it laid over Edinburgh. For years, I could never walk past that bar without the creeps, I always had to cross over the road. Doubtless many of the MSPs in the chamber felt the same.
And like it or not, there is still a feeling in the Nation that Something Went Wrong with the Scottish Justice System of which we are so rightly proud.
If only the Lord Advocate had actually said the trial judge had made the wrong decision ... as he clearly did.
I鈥檓 completely with Roseanna Cunningham with this. I don鈥檛 think it at all appropriate to to have brought this before the MSPs. This was a controversial and complex case and I am unsure if half the MSPs in the chamber even had anything like the legal grasp or understanding to deal with it.
I鈥檓 completely with Roseanna Cunningham with this. I don鈥檛 think it at all appropriate to to have brought this before the MSPs. This was a controversial and complex case and I am unsure if half the MSPs in the chamber even had anything like the legal grasp or understanding to deal with it.
I'm surprised that the First Minister has thought it appropriate to wade in with unquestioned support for the Lord Advocate rather than keeping a watching breif on developments. In my view, it is understandable for Parliament to want an explanation from the public prosecutor regarding the failure of this prosecution. What is reprehensible is the Lord Advocate's outright attack on the decision of the trial judge. If the Advocate Depute was right not to lead certain forensic evidence and the trial judge has erred, and if the Lord Advocate beieves that the public deserve a proper airing of that debate, then the matter could be referred to the Appeal Court (although the acquittal would not be overturned.) However given her assertion that the trial judges decision was final, the Lord Advocate clearly has no intention of doing this. The Lord Justice General was entirely correct in the content of his letter.
The only thing that bothers me about this spat is that it would "appear" that judges are considered to be beyond criticism which is running close to the Westminster parliament where MPs can do no wrong and have a committee to ensure that this view prevails. Judges must be independent but are human, do make mistakes and should be prepared to at least acknowledge the possibility.
Does all this matter anyway?. The accused is in jail for life, so what would he have got had he been found guilty? Jail for life. The whole saga is academic. There are far more important issues facing Parliament - like the free prescriptions promised " immediately " by the SNP, but apparently now kicked under the table.
This is a tricky one is'nt it? Going back to the collapse of the trial, I was left with a distinct feeling of unease that 'something was not right with the system'
I am not sure that Holyrood was the best way to deal with this, but there is a widespread feeling that someone needs to explain this a bit more - accountability and all that. It seems odd that the trial even started if there was insufficient evidence and it all seemed so abrupt an ending. Yes the Justice system needs to be independent, but they are also accountable to the people are they not? How is this to be accomplished when it appears that they can throw out cases without explanation?
I am none too sure that this legal spat is enlightening the situation and have a horrible feeling that it could happen again, further destroying faith in our Justice system
Well done Brian for raising this one in the way you have. Our Scottish judiciary have not kept up with modern civic needs in a number of key areas, but I agree that the likes of opening this complex case up for a one-sided 鈥榙iscussion鈥 in Parliament was wrong and dangerous (as indeed has been shown).
The admirable Angiolini would not have intended matters to go the way they did, but it was unwise, to say the least, to open this case up in front of Parliament. But there again if such a ground-breaking case and subsequent collapse is not to be debated in that forum, then where?
I'd be a bit OK about the likes of Robert Brown MSP debating my legal rights... but Pauline? eh no thanks.
I suspect that the judge erred in a case that had out-stripped our existing conventions for judges (and the nature of permissible evidence) and that he should have allowed it all to be tested in open court decided by a jury.
As for the remark about George Foulkes allegedly having an arrangement with the 大象传媒 鈥 it was of course a joke; but you could extend the joke by alleging that Foulkes has the arrangement with 大象传媒 Scotland TV, and Henry McLeish has the arrangement with 大象传媒 Radio Scotland current affairs. McLeish is never aff Radio Scotland on anything whatsoever! They even had him a while back on the phone from USA deliberating on Scottish governance matters 鈥 I ask you, who at 大象传媒 thought that one up?! (and did they pay for the call?)
Hmm...tricky. But really I think the Lord Adv. should be applauded for actually letting slip some personal honesty in her speech and not just harping on boringly in politics-speak which only switches people off. And if the Lord Justice General is so miffed at the weight-of-media-involvement angle, why hasn't he done this on the quiet/behind the scenes? Methinks he doth protest too much...etc?