In case you didn't notice, there is an election in Scotland tomorrow, May 5 2011. If you are eligible to vote, it is your privilege, right & duty to do so, no matter how cynical or critical you are of our politicians, the justice system, Scotland's economy or even if you have a beef with the coalition Government at Westminster. However, as you are probably here to read topics of justice, rather than politics, there are some things you may wish to take into account before casting your vote ...
The short version of what I am about to say is “If you are here looking for advice on who to vote for, vote for a party other than those leading the polls so at least there’s a chance of the winners being held to account, and reigned in on any daft, crazy policies which will ultimately do Scotland a great deal of harm.” Remember, Annabel isn’t so bad after all, and unlike some this time around, she does make a lot of sense.
Now, the dreaded long version. One thing which has been glaringly obvious over the past four years since 2007, and indeed much longer than that, probably going back to the 're-imagined' Scottish Parliament of 1999, is that our beloved Scottish justice system is simply not up to the mark, not up to any real level of honesty, in fact, perhaps our beloved Scottish justice system is up to far too much dishonesty to merit & justify Scotland's independence from the rest of the UK. I mean, really, what use to Scots is independence if the justice system is bent ? None, as far as I can see, and as we know, the justice system has more bends in it than a corkscrew hazel tree.
Individuals and entire groups or classes of people have been discriminated or prejudiced against at the hands of the Scottish justice system, some even thrown in jail for crimes they did not commit, others persecuted by the very legal system itself for daring to criticise it, stand up to it, take issue with their own circumstances by demanding a fair hearing, and there are of course, even those who have suffered at the hands of the legal profession itself, who have used the law & courts as a weapon to deny anyone they do not like, access to justice. It happened yesterday, it will happen today, and it will happen tomorrow.
While the arguments & excuses still rage over the now famous Cadder v HMA ruling at the Supreme Court in London in October 2010, you only need to look back to the Cadder case and what happened to understand that the Government of the day in Scotland, in this case, the SNP, and indeed all previous administrations believed it was right for anyone arrested by Police to be questioned without a lawyer present. Good for a quick guilty verdict of course, saves a lot of detective work and of course a lot of money along the way for the likes of the Legal Aid Board.
Amazingly while such a highly dubious arrangement of interrogating suspects has not been practised in the rest of the UK, and indeed quite a few countries around the world for many years (some jurisdictions would call such interrogation without a lawyer "unconstitutional"), no one in the Scottish legal establishment bothered to raise it as a case until the European Court ruled in Salduz v Turkey and made the law as it now stands.
Did a Scottish court react to this change in European Law first, considering there must surely have been a few outstanding incidents where people were denied access to a lawyer while being held by the authorities ? No. After the European ruling, it took a court based in England, the UK's Supreme Court to rule on the Cadder case, and decide Scots, like everyone else in the rest of the UK and many other jurisdictions, had the right to a lawyer being present while being interrogated by the authorities.
Take it from me, Scotland's Court of Session would never have done the same. Indeed, this is exactly why the Cadder case ended up in the Supreme Court in London, because the Court of Session thought it was fine (and I dare say would like it still to be fine) to hold someone, whether guilty or not, and get an admission without the right to having a lawyer present. Easy money for the judges, the prosecution team, and someone put away with a protracted press release touting yet another "successful prosecution" and triumph for the authorities. Great, until someone realises the wrong person is behind bars.
If the Supreme Court had not ruled as it did, as Scots, we would still not have the right to a lawyer being present during interrogation, and the courts would be fine with it, but of course Cadder and its outcome goes much further than that, sending a shot across the bows of Scotland's antique justice system where the right to a fair hearing, the right to legal representation, or even the right to have funding for legal representation all appear to be a right too far those in the legal establishment who sometimes feel it is in the interests of the justice system to deny justice to certain individuals or cases.
If we were independent, you can kiss goodbye to the Supreme Court in London. If not immediately, certainly when it issues another controversial ruling requiring Justice-Secretary-for-Life Kenny MacAskill to change the law. You might also kiss goodbye to certain parts or maybe all of European Commission Human Rights Legislation (ECHR) which any future independent Scottish Government may begin to find 'inconvenient' to its management, or as we have seen in the past four years, lack of management of Scotland's justice system.
For another comparison of recent events in the English justice system compared to our own, look at the death of Ian Tomlinson, who, a jury in London yesterday decided had been "unlawfully killed" by the actions of a Police Officer. Does anyone really think a Sheriff presiding over a Fatal Accident Inquiry in Scotland would have came to such a decision in a similar case had some Policeman did the same north of the border ? Fat Chance, and we all know it. The bereaved family would be fighting for justice for years, and they themselves would probably end up being victimised by the legal system for daring to take issue with it.
Look around the Scottish justice system and you will see a litany of miscarriages of justice, where for instance, the say so of dubious witnesses or even Police Officers themselves have contributed to guilty verdicts and long sentences of 'the so-obviously guilty', only to be found later the investigation was compromised, perhaps even evidence was falsified, and those dubious witnesses lied through their teeth. Result : Someone ends up being freed after 12 years in jail for a crime they didn't commit and spends the rest of their life trying to clear their name while politicians sit back, promise much yet do little, and all the while the court, the judges, the legal system carrys on regardless.
How about the Lockerbie case and the long running controversy over the Lockerbie bomber Abdelbaset Al-Megrahi's conviction & release. Despite all the calls for independent inquiries, calls for, & half hearted attempts at the release of documents to answer the many inconsistencies in the case, nothing has changed other than the fact Mr Megrahi was released back to Libya on compassionate grounds by Justice Secretary Kenny MacAskill, so conveniently avoiding any further progress in Mr Megrahi's appeal at the Court of Appeal in Edinburgh, where the gritted teeth of the judges (one looked like he had bruxism) was much more obvious to most who saw the spectacle rather than any hope the court would turn its attention to matters at hand and quash a verdict which many around the world question. Last time I checked, this farce happened under an SNP administration.
How about Legal Aid ? If you really need it, do you think you might really get it ? It appears if the Scottish Legal Aid Board don't like the look of your face, or someone, perhaps a someone of very high standing or position in the legal system puts in a bad word for you, perhaps accompanied by a long poisoned pen letter saying why you shouldn't get legal aid, you don't get it. No legal aid for you, therefore no access to a lawyer and no access to justice.
Yet over the past four years, certain lawyers as I previously reported, have been claiming hundreds of thousands of pounds of legal aid for themselves, collectively, millions of pounds, yet many of their clients never really had access to justice, and guess what ? the Scottish Government just let it happen. Yes, all those millions of pounds of legal aid, paid for by taxpayers, ended up lining the pockets of a few solicitors who were never prosecuted for one penny of misuse of public funds, rather than that legal aid going to those who really needed it, or to those lawyers who really do represent their clients.
How about the much heralded Scottish civil courts review by Lord Gill, the big "sea change" for our "Victorian" justice system which was supposed to give access to justice for all ? The Civil Courts Review has said much but achieved little under the SNP. Admittedly though, the same could well have been true no matter which political party was in power. Lord Gill's "groundbreaking" Civil Courts Review is now just another piece of history in the shattered landscape of Scotland's justice system, a review which itself is now being reviewed, and all the trappings of easier access to justice which many expected to come from it, are but a pipe dream.
Do you think independence might change all that ? No. The same people who still rave about independence did nothing about clearing up the justice system in the past four years and did nothing about giving justice to those who are denied it. These same people will do nothing to clear up Scotland’s justice system. In fact, some of those raving about independence and taking back the oil wealth for Scotland, have in some cases I am privy to, actively blocked access to justice for many people denied it .. even some of their own constituents. To be sure, the only constant here in Scotland is, "Nothing Changes" when it comes to justice.
As an observation from someone who has seen many cases where the legal system has been used as a weapon against those who take it on, or those who dispute the legal establishment's line on all things justice, Scotland's justice system is probably worse off now than it was in 2007, and that's saying something. All of those people who said the system will change with a new party in power after 2007, where are they now ? Still fighting the same battles, still arguing over the finer points of detail and still knee deep in inquiries which will end up changing nothing.
It is certainly not my job to tell you who to vote for, but you must vote if you want to have a say in Scotland's political future. By this, I'm not telling you not to vote for the SNP, and I'm not telling you to vote Labour, Scottish Conservative or Liberal Democrat, or Independent, or Green or for any of the other parties out there, but I am asking you TO VOTE, and to ensure that consensus politics, fairness and even justice is delivered in this next Scottish Parliament.
Make the next five years Scotland's five years, make the next five years your five years to give all Scots a say in our country, access to justice, and the right to be heard against those groups & vested interests who regularly talk over or even interdict our expectations of reforms, jobs, financial security, justice and life for the better. If you want to be part of something positive, vote, and vote to make sure those who you elect are held accountable to you.