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Scottish National (Partly) Justice

In America, Events, Foreign Affairs, Home Affairs, Judicial Spotlight, Law And Order, Party politics on September 12, 2010 at 11:24 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Kenny MacAskill may not be an instantly recognisable name. Indeed, it may have continued forever in glorious obscurity had it not been attached to the Scottish Justice Secretary who released the equally splendidly named Abdel Basset al-Megrahi (whom some of my friends have mistaken for an Arabic liquorice allsort). Given that the SNP are unlikely to be returned at the next election, it seems reasonable to ask what this man’s significant contribution to law and order in Scotland has been.

For the benefit of those not familiar with Scotland, it does, in fact, have its own legal system. It is not dissimilar to other European systems, being most similar to the Irish, with Roman, Norse and Saxon influences. It runs alongside the English system, deferring to a UK system on only a few topics, such as extradition, while also accepting the European system, and ultimately, the ICJ. It is an historical oddity that Scotland preserves a distinct legal tradition; the Act of Union in 1701, and subsequently the Treaty of Union in 1707 was controversial enough then, and no-one has thought to go back and put the two now united kingdoms on the same legal footing. While this raises an interesting question about whether legal systems should run in parallel, and to what extent, we shall leave this to one side. Instead, we shall try to divine (since we Englanders never hear it explained) the judicial philosophy of the SNP.

The first act of Kenny MacAskill was to lift a ban on alcohol sales at rugby union games at Scotland’s main stadium, Murrayfield. This was a popular move, but ultimately had little effect on ‘Justice’ and its implementation in Scotland. After the abortive terror attacks on Glasgow airport, he made some remarks that the terrorists did not come from Scotland, as indeed they didn’t. He was progressing towards an inoffensive period in office.

However, he must have got somewhat bored. In this upcoming parliament, his department proposes two significant pieces of legislation. The first is to set a minimum price per unit of alcohol, due to an alarming amount of drunkenness in Scotland. The second is to allow those acquitted of serious crimes such as murder to be tried again should more evidence come to light. He also made the controversial decision over the Lockerbie bomber, for which he takes full responsibility.

The minimum price on alcohol could be seen as something of a reverse from his previous libertarianism at Murrayfield. The argument is that young people are drinking copious quantities of cheap beer and cider, purchased from supermarkets, then becoming drunk and disorderly. The counter-argument is that this measure – essentially a poll tax on alcohol – affects the poor much more greatly, and punishes the responsible drinker. It is interesting that MacAskill, who so vehemently opposed Thatcher’s poll tax, should introduce this. It takes the view that the state should actively remove those items that cause crime, even when the vast majority of people use it responsibly for the vast majority of the time. We might initially react that this is quite a pleasing move. After all, we all want to see less crime, and if the government can rake in some money to boot, what is wrong? Yet, how far should we extend this? Do we suggest a levy on kitchen knives, so often the weapon of choice in domestic assault, for instance? Do we add an additional tax on violent computer games, which some studies suggest lead to crime?

We can take this the other way – if alcohol is not restricted, and people use it irresponsibly, why do we restrict guns? I would say that alcohol and guns are essentially different; a gun is designed to cause harm, whereas alcohol is not. It may be a pragmatic measure to reduce drunken behaviour, but it lumps the innocent in with the guilty for no readily apparent reason. With guns, it is easy to see how an accidental discharge or opportunistic villain could cause great harm, and so there is a case for restricting them. But with alcohol, the SNP seem to be tarring all people with the same brush.

The second piece of interesting legislation introduces double jeopardy for serious crimes. This currently occurs in England, but not in Scotland, which does not admit any form of double jeopardy at present. With the application of new techniques, such as forensic science, police are discovering more data in ‘cold cases’, which lead them to the conclusions they had already drawn, but a jury did not uphold. It seems reasonable that the accused should be confronted with this new and additional evidence, and brought back to court. Yet there is the age-old principle that you can’t keep dragging a certain person before a court for the same reason again and again until the judge or jury, now thoroughly bored, hands down the desired verdict. However, this assumes malice on the part of the state and idiocy on the part of the jury. By and large, the state does not have it in for certain individuals, and juries are perfectly capable of understanding that if a person was found innocent before, a great deal more evidence needs to be presented for them to return a guilty verdict. If it were up to me, I would allow double jeopardy on all criminal trials for exactly this reason, allowing the transcripts (and a summary) of any relevant previous trials to be provided. I don’t think there would be that many takers without a significant new wad of evidence.

There is an oddity in the Scottish system that invites this. Scottish juries may return one of three verdicts: guilty, not guilty, and ‘no evidence’ – this latter being a way of a jury saying: ‘we think he did it, but the burden of proof has not been met by the prosecution.’ It seems incredible to me that there should be no double jeopardy with the return of such a verdict. The reform that is coming now is coming late, and is not coming in as full a form as the Scottish system needs. Incidentally, civil trials are more difficult, as a lot can be put down to interpretations of individual clauses or words. Civil law makes me very glad I’m not a lawyer; with cases such as libel, it can be terribly difficult to judge one way or another, and judges hand down different interpretations of the same law. Because it is not so clear-cut, I would not be so eager to have double jeopardy on civil cases.

Now, for Abdel Basset. MacAskill’s decision could have been motivated by any or all of three factors: genuine compassion on grounds of ill-health; lobbying from UK and corporate interests to improve relations with Libya; a need to avoid an embarrassing appeal, in which it might become apparent that al-Megrahi’s conviction was not as watertight as might be desired. I don’t buy Salmond’s line that the Scottish people are exceptionally compassionate – they’re about as compassionate as the next people group – but the medical reports do seem to suggest that al-Megrahi was on the point of dying when he left, and it was the compassionate thing to let him go. To me, it seems unlikely that BP exerted too much influence either, though this is what many in America would like to believe, to enhance the somewhat insipid narrative of the essential evil of BP. Libya has for a long time been positioning itself towards the West, since it can no longer guarantee support from an increasingly unpredictable Russia, nor that Islamic extremists will be happy to ignore Gaddafi’s crushing of Islamic-minded opponents. If Private Eye and some relatives of Lockerbie survivors are to be believed, al-Megrahi’s appeal may have had some weight behind it. I shan’t go into details, nor express an opinion here, but it seems that MacAskill has avoided a sticky and complex appeal that would likely have frayed US-UK relations, as al-Megrahi would be able to give a public airing to suggestions of incompetence of investigators.

It seems to me that MacAskill made a pragmatic decision here; he decided that it would be better to risk the flak of America claiming compassion rather than defending allegations of incompetence on the part of the UK-US team. It would have been even more unfortunate for him if al-Megrahi had died during appeal; he had already served 8 years while authorities delayed the appeal. It seems that, in this instance, MacAskill shied away from having the truth, whatever it looked like, out. The question of whether absolute truth is required for justice is again a tricky one, but it seems that al-Megrahi has essentially been granted a pardon (he is in Libya where no-one believes he is guilty) without actually being excused of the crime. A rather pragmatic and unsatisfactory solution.

This is what encapsulates much of the SNP’s approach to Justice in its four-year term. We can undoubtedly see that much of it is pragmatic, but when we take a look closer, we find that the thoughts behind it don’t quite fit with what we thought we’d find – a coherent philosophy concerning the nature and role of justice. Perhaps this arises from the SNP being a minority government, or perhaps it’s that the SNP is still a single issue party, and that single issue is not Justice. We’ll see who holds Holyrood come May 2011. My guess is Kenny MacAskill won’t feature in the cabinet, one way or another.


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