Tag Archives: Lord Carloway

Punishing schedule for Scottish Sentencing Council

The Scottish Sentencing Council is due to be formally constituted in October. As a new feature on the criminal justice landscape, the council was created as part of the Criminal Justice and Licensing (Scotland) Act 2010. Legislatively speaking, that was hard on the heels of the equivalent body south of the border, the Sentencing Council of England and Wales. Their council was created in 2009 and began work in 2010.

For reasons that are not obvious the Scottish Sentencing Council has been in suspended animation for the best part of five years. Nevertheless it has been recently confirmed that all systems are now go. The council will be chaired by the Lord Justice Clerk, Lord Carloway. According to the statute, he will be joined around the Sentencing Council table by:

Five judges viz a judge of the outer house of the Court of Session or the High Court of Justiciary; one sheriff (not including a sheriff principal); two persons who hold the office of stipendiary magistrate or justice of the peace; and one other judicial member (including a sheriff principal). By my reckoning that means there will be a sheriff principal.

Three lawyers viz one prosecutor; one practising advocate; one practising solicitor.

Three lay members viz one police officer; one person with knowledge of the issues faced by victims of crime; and one other person not qualified for appointment as a judicial or legal member.

The Lord Justice General, Lord Gill, will be responsible for appointing the judicial and legal members of the council. Police Scotland and Victim Support will nominate their members. It looks like one place, the ‘one other person’, will be open to applicants through the public appointments channels.

It seems beyond challenge that the establishment of the council is a good thing. Its statutory objectives are to promote consistency in sentencing practice; assist the development of policy in relation to sentencing; and promote greater awareness and understanding of sentencing policy and practice. Who could be against any of those?

Delivering the Howard League Scotland lecture at Edinburgh University last October, Lord Carloway predicted that the result of the imminent council’s labours could be to render obsolete existing sentencing jurisprudence ‘such as it is’ – four of the most chilling words I’ve heard from a senior judge. And anything the council can do by way of explanation will be welcome if it helps dissipate the febrile atmosphere around sentencing in which it has become practice for news media to invite victims of crime or their families to explain on the steps of the court how outraged they are at the inadequacy of the sentence that has just been handed down in their specific case.

The direct victims and their families are entitled to feel what they do. I have less sympathy for the opportunism of other campaigns in exploiting the victims and monstering convicted persons for their own ends. In his recent book, ‘So You’ve Been Publicly Shamed’, Jon Ronson reminds us that very few of us are evil 24 hours a day, every day, but treating us as if we are and as if we are therefore beyond humanity rarely leads to a positive outcome.

Interestingly, when the legislation setting up the Scottish Sentencing Council was first passed in 2010, I interviewed the chairman of the English Council, a then little-known judge called Lord Justice Leveson, for a steer on what to expect. He drew my attention to an interactive exercise called ‘You be the judge’ which you can still find athttp://ybtj.justice.gov.uk. Lord Justice Leveson said: ‘We know that, if asked at a general level, public confidence about sentencing is low and the general assumption is that it is too lenient. However we have taken “You be the Judge” to court open days in different parts of the country. Members of the public can also try it online. It has been remarkable that when people get a chance to view the details of a prosecution and take all the facts into account the sentence that they suggest generally undershoots what the judge on the bench actually decided. I think we all have a responsibility to explain more about what we do and why we do it’.

There are differences between the councils on either side of the border. The fundamental difference of principle is that the English Sentencing Council does its research and analysis, thinks through the resource implications and publishes its guidelines. It has been busy. Its 2013-14 corporate report shows guidelines on six distinct areas of law completed or under way – including, last month, its second report in three years on sentencing related to dangerous dogs after the legislators defined new offences.

There will be an intermediary stage in Scotland. The Scottish Sentencing Council will make its recommendations to the Lord Justice General who will accept them all, or in part or not at all. The E&W corporate report throws up another difference in practice if not in principle. Its budget is just over £1.5m. The Scottish Government’s financial memorandum to the Criminal Justice and Licensing (Scotland) Bill 2010 in which the Scottish Sentencing Council is founded estimated the set-up costs for the Scottish Sentencing Council at £450,000 and ongoing costs at £1.1m.

The indecorously described ‘headcount’ in England and Wales stands at 17.7 full time equivalent posts. I was advised that staffing and administrative support for the Scottish Council would be supplied by the Scottish Court Service. Given that the Scottish Council is expected to be up by October and active by November, I asked the Scottish Court Service what staffing it had budgeted to provide but was advised this was a matter for the Sentencing Council and that staffing is yet to be settled. As is the per diem rate for members. No doubt that will all be settled in due course.

The eternal optimist in me has hopes that the council and its urging of consistency, if not uniformity, will have a positive contribution to make. The division of labour in recent years seems to have established that Lord Gill as Lord Justice General and Lord President of the Court of Session has been sorting out the organisation of the courts with the aim of fitting them for life in the 21st century. Whether it was intended this way or not, Lord Carloway has been addressing issues around what happens within the courts. Proposals for the abolition of corroboration (and news from the expert committee set up to review that can’t be far away) and admissibility of new forms of evidence in criminal cases bear his stamp. I think it is fair to say that both are impatient with the concept of ‘established practice’ as a guide to future justice.

Lord Carloway trailed the view he will take from the chair of the Sentencing Council in that lecture to Howard League Scotland. The full title was, ‘The Purpose of Sentencing – From Beccaria to the OLR [Order for Lifelong Restriction] and Beyond’. The ‘Beccaria’ of his title was an Italian whose ‘Treatise on Crimes and Punishment’, published in 1764, was pioneering in arguing against the use of physical punishment and torture and in favour of punishments that would ‘make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal’.

Lord Carloway indicated that the Scottish Sentencing Council would be less definitive than its southern neighbour – less intent on drawing up a grid that could be superimposed on each case before any judge. He concluded: ‘Perhaps the best thing that could happen is that a new Beccaria will emerge, who could guide us all forward towards the promised land. That country may be one in which, whilst the offender who is assessed as a continuing danger to the public should be subject to some relatively restrictive regime of incarceration and/or intense supervision in the community, all others should be paying back to, and learning in, the community and not removed from it and put behind the walls and barbed wire that future generations may regard, as we now do the practices prevalent in Beccaria’s day, as barbaric’.

I wish the Scottish Sentencing Council the best of luck when ‘death by careless driving’ reaches the top of its to-do-list.

Lord Carloway takes on the criminal trial

Lord Carloway, Lord Justice Clerk, is no stranger to controversy as the author of the proposal to abolish the longstanding Scottish requirement for corroboration of evidence by  more than one independent source of evidence in a criminal prosecution.

Now he is setting his sights on the criminal trial itself and the associated rules of evidence that he suggests have trapped procedures in a structure that made sense in the 19th century and before but is no longer the guarantee of ‘best evidence’ in the 21st century.

It is a theme touched on before Christmas in a speech by Lord Judge who retired last summer as Lord Chief Justice in England and Wales in the context of slashing the number of children who are called to give evidence in court. But Lord Carloway has been thinking in far more radical terms.

I’m not sticking my neck out too far to predict that his latest intervention will cause no less apoplexy within the profession.

Speaking to me last week Lord Carloway said we need some “clear skies thinking” that will  make best use of technology in recording matters of fact and give more consideration to witnesses in offering their testimony at a time that is convenient to them rather than the diaries of paid lawyers and judges.

This idea that everybody comes together at the once place at the one time for a trial of the evidence is essentially borne out of the conditions that existed in the 19th century and before. There was no means then of accurately recording what people had said at the time of an incident. 

Equally there were no means of copying other than manually or recording the state of a “thing” – a production.  You had to have a system where the judge and the jury had to see and hear the witnesses personally. It was the only way it could be done. The ‘best evidence’ was to have the thing or the document or the witness ‘live’ in court in front of the judge and jury.

What I’m saying is that the system of justice should be putting in place systems for the gathering evidence that take advantage of modern technology. An eye witness could record what they saw  as soon as possible after an incident on a smart phone or similar. That is likely to be a more accurate account – reliable or not -  of what they they think they saw than a statement written down by a police officer which inevitably loses nuances and expression and which they may have to speak to a year or more after the event.

We should seldom require people to attend court when they could be giving their evidence at any time. Especially in relatively minor cases – though it would apply across the board – we could have a situation in which a witness can give evidence on video – even on a mobile phone at a time convenient to him or her and that would be accepted by the court as their evidence.

I’m not saying the current structure of the criminal trial isn’t by and large doing what it ought to do. I have faith in its general effectiveness but like all systems it has to change with the times. We could do better in the way we treat victims, witnesses and juries. Judges and lawyers are paid for their part in the process and have control over their diary. I think we need to give more consideration to the way the process affects the lives of the members of the public who are drawn in by chance and accident. Why doesn’t our system allow them to give their evidence when it is convenient to them and not when the legal professionals have fixed some dates in their diary that suits them?”

Lord Carloway suggests giving more consideration to the convenience of the witnesses may address some of the disruptions to prolong cases at inconvenience to all parties and at expense to court budgets: “Adjournments and postponements were not common features in the Victorian age but times have changed. Now trial diets are continued 3, 4 or 5 times when a witness or even the accused fails to turn up. Waiting time, which is fundamentally wasted time, is inherent and endemic in the current system and impedes rather than ensures justice in many cases.”

Lord Judge gave a speech at the end of last year saying that it is unsatisfactory that tens of thousands of children are called to give evidence and cross examined, sometimes for days, in court. Is that the best way of establishing the facts of their evidence? We are some years ahead in Scotland in that regard with the Children and Vulnerable Witnesses Act and the Victims and Witnesses Bill currently in Holyrood that allow for video-recording of  taking and testing of evidence ‘live’ but not necessarily at the same time as the rest of the trial. The video can be played to the trial.

The point I am making is that why should that not become the norm for all witnesses unless there is a strong reason for it to be done in court.”

Lord Carloway anticipates the predictable European Convention of Human Rights objection protecting the right to a fair trial. What, for example, about cross examination?

There is a right to examine witnesses. Article 6 of the ECHR sets out a right that has to be protected that an accused person – or indeed the prosecutor – has the right to examine a witness if that testimony is key or decisive. The fact that the right exists to challenge or test evidence does no specify that it should be done in a court room or carry with it the necessity that it is done at the same time as everything else.” 

News of Lord Carloway’s latest thinking caught Brian McConnachie QC rather by surprise. His first response was not enthusiastic.

Video recorded evidence has been available for child witnesses for some time. But children are the exceptions. I don’t think they represent a principle that has been demonstrated to be so successful it can be applied to all witnesses.

I am all in favour of using whatever technology we have to make life easier for people who find themselves cited as a witness but that is a long way from taking apart the criminal trial as we know it. Technology may be able to offer useful improvements but anything more far reaching than that should be sent to the Scottish Law Commission for detailed consideration.”

The reservations were echoed by Derek Ogg QC: “In my experience both as a prosecutor or defence lawyer live examination and cross examination in front of a jury and in the presence of the accused is best evidence. We now have systems of videolink for children and vulnerable witnesses but it is second best. That’s why the defence rarely object to it. We don’t want juries to watch evidence in the same way they’d watch reality TV.

The only law I’ve found infallible is the law of unintended consequences. We really need a royal Commission or similar to look at the whole of the criminal trial to make sure we don’t throw the baby – justice – out with the bath water.”