THE TALKING POINT around Parliament House this week is the “open letter” from the Dean of the Faculty of Advocates, Gordon Jackson QC, to his predecessor as Dean, the recently appointed Lord Advocate James Wolffe QC. After brief congratulations, Jackson wastes no time getting to the point: “Please allow others to make decisions. There is a perception..." That's a formulation generally signalling that the author doesn’t propose to beat about the bush with an evidence-based approach. Jackson – as it happens, a renowned criminal defence advocate – alleges that (what he acknowledges to be) the progressive move in recent years to give the victims of crime a proper place in the justice system may have gone too far. So far, he says, as sometimes to exert pressure and undue influence on the Crown to prosecute in circumstances where an independent prosecutor ought (in the opinion of the Dean) to conclude there are insufficient grounds in law for doing so. The pressure could also be to resist a plea bargain to convict on a lesser offence. In language that appeals to the Lord Advocate’s provenance as a distinguished silk, as opposed to a career Crown prosecutor as his predecessor was, the Dean expresses his confidence that Wolffe will immediately see the danger and take the steps necessary to reset the balance between the respective rights of the victim and the accused. The Dean’s concerns may be entirely justified. It’s just that the ordinary reader of the “open letter” – in effect, a press release – might wonder whether there is hard evidence, beyond anecdote and hearsay, to support the Dean’s contention. After all, there is some evidence to the contrary. The families of some victims of the Glasgow bin lorry tragedy felt so let down by the prosecution authorities that they were moved to launch a private prosecution. Their application was before three judges this week. There remain significant numbers of victims of sex abuse who feel let down by the system. The reader might also wonder whether these are the personal views of the Dean or those of the Faculty he represents. The danger of the “open letter” approach – as opposed to private correspondence on such a sensitive subject - is that cynics will be put in mind of football manager Alex Ferguson’s tactic of putting pre-emptive pressure on the referee before a big match by insinuating that the officials will “bottle” the hard decisions.
PSYCHOLOGISTS MIGHT point to the “illusory truth effect” coming into play. This is the proven tendency to believe information to be correct after repeated exposure. Essentially, if something is said or implied often enough and loud enough, eventually people believe it. Research has shown that, once repeated assertions become familiar, they become easier to process and this can lead to a belief that something is true even where there is knowledge to the contrary. So, for instance, a press release suggesting that the rights of the victims of crime are being prioritised over the rights of the accused could create that impression, whether or not it is true. The Dean would not have to intend his "open letter" to have this effect for it to do so. Equally, media coverage portraying crime victims as ignored could contribute to a public perception that this is true, whether or not it actually is. Both impressions could arise in different audiences resulting in competing narratives about whether the rights of victims are taking priority over those of the accused (as the Dean fears) or vice versa. Instinctive psychologists like Alex Ferguson (and José Mourinho) know how this process works on football supporters. US presidential candidate Donald Trump is another exponent. More broadly, anyone who is the subject of repeated, even if unfounded, insinuations knows the corrosive effect this can have on the opinions and behaviour of others. Or as the American poet and writer Carl Sandburg (1878-1967) said: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”.
THE DEAN’S LETTER comes in advance of the Scottish Parliament’s Justice Committee’s inquiry, to begin later this year, into the role and purpose of the Crown Office and Procurator Fiscal Service (COPFS). The inquiry will “focus on its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime”. The closing date for submissions is Wednesday 19 October 2016.
“CRIMINAL TRIAL ON INDICTMENT in England and Scotland: A comparative view from Hadrian’s Wall” is the title of the Eldon Lecture to be given by the Keeper of HM Signet, The Right Honourable Lord Mackay of Clashfern, a distinguished legal figure in both Scotland (former Dean of Faculty, Lord Advocate and Lord Ordinary) and England (former Lord Chancellor of Great Britain) on 27 October at Northumbria University in Newcastle. Lord Mackay will compare and contrasts some outstanding features of cases brought on indictment in the two jurisdictions. He will review the role of the Attorney General and the CPS and the central position of the Lord Advocate with his power to direct the police in their investigations. He will also consider the requirement for corroboration in Scotland, the available verdicts in both jurisdictions and the scope for private prosecution in England compared to Scotland with special reference to the Glasgow bin lorry case already mentioned. Further details and booking form are available from Northumbria Unversity’s website.
POLITICS AND CRIME are mixed together in the news that prosecutors are seeking a three year jail term for France’s former finance minister, Jacques Cahuzac, after his admission that he kept a secret Swiss bank account. Cahuzac, 64, a plastic surgeon before entering politics, wept in court on Tuesday as he was accused of tax fraud and money laundering. This was in marked contrast to the nerves of steel he showed in December 2012 when he declared, “I do not have and never had a foreign bank account, neither now nor before". A year later he introduced tough new measure to clamp down on tax evasion. Just three months after than he had to resign when the authorities traced that he had deposited euros 60,000 in a Swiss bank account. In mitigation, Cahuzac says President Hollande did not ask him explicitly if he had a secret bank account so, if he lied, it was by omission.
THIS WAS ONE LESSON for lawyers from politics that former MSP Gavin Brown did not pass on in his talk on the subject at the Signet Library. Deputy Keeper Caroline Docherty introduced Brown and explained that the event was an example of the WS Society’s approach to continuing professional development (CPD) for lawyers: putting as much emphasis on “how” things are done by lawyers as on “what” is done. Underneath this simple distinction, the WS Society’s developing approach to CPD is underpinned by the pioneering analysis behind the Society’s assessment-based accreditation scheme. This involved breaking down and articulating the complex compound chemistry – the competency model, as some call it – that typifies lawyers recognised by clients as direct, effective, valuable and successful. This generic analysis was used to design the assessment template, praised by those who’ve taken the assessment for its verisimilitude to legal practice, but is equally relevant to the design and modelling of CPD.
TALKING OF WHITE COLLAR crime, a headline in the Times this week heralded a “crackdown” on corporate complicity in financial crime. In fact, this was a microwave reheat of an announcement earlier this year about plans to make company boards liable to prosecution for failing to prevent “economic crime”. The fresh narrative spin is, of course, that, far from being existing policy announced by David Cameron in May, the move is all part of new Prime Minister Theresa May’s drive to “get tough on irresponsible behaviour in big business” and to tackle “vested interests”. The fact that May’s mood music was more a response to public perceptions of business ethics stemming from high profile cases like SportsDirect and BHS (both the subject of televised sessions before Westminster select committees) was not going to get in the way of a good headline. In fairness, Attorney General James Wright did refer to how digital technology and globalisation are generating ever greater opportunities for financial theft and wrongdoing. As part of its response, he re-announced (not that he put it like that) proposals to use the law as an instrument to change corporate culture. This is the language governments usually reserve for measures that they know are unlikely to lead to any actual convictions but may frighten people enough to alter their behaviour. Banking scandals – such as the LIBOR rigging cases – have aroused public anger with prosecutors in the UK unable to hold senior management to account for their alleged part in acquiescing or turning a blind eye to the behaviour of more junior individuals. He points out that other countries have successfully held British companies to account. The government is already analysing consultation responses about draft legislation and guidance for the new criminal offence of corporate failure to prevent the criminal facilitation of tax evasion.
GOLF HIT THE PUBLIC RELATIONS BUNKER again this week in the form of Chris Whaley, the president of Bridge of Allan Golf Club in Perth. Whaley was appearing before the planning inquiry into Judy Murray’s plans for a multi-million-pound tennis and golf centre at Dunblane. Tennis star Andy Murray made a surprise appearance at the back of the room to hear Whaley shoot himself in the foot by asserting that youngsters might prefer to use the proposed new six-hole trainer course at the new centre rather than join his 120 year old club, thereby rather confirming there’s a market demand for the new centre. As if this wasn’t bad enough, Whaley is reported to have complained that his 120 year old club was already suffering because of tougher drink-driving laws. It seems unlikely that the inquiry will consider this a valid planning objection.
TALKING OF LAND MANAGEMENT the National Trust for Scotland’s CEO Simon Skinner revealed plans to allow hotels to bid to develop disused properties in NTS’s portfolio. He spoke of cuts to NTS’s funding from Scottish National Heritage and did not rule out having to literally board up some properties and focus resources on “priority” properties. The loss of EU agricultural subsidies is another concern. A leader in The Times thundered about the importance of historic buildings to the tourist industry and to national pride. The WS Society has its own charity, the Signet Library Heritage Fund, directed at maintaining and enhancing this particular gem in Scotland’s heritage.
THE LONG ARM of the law is allegedly at the root of the biggest media-on-media story this week: the move of The Great British Bake Off from the BBC to Channel 4. According to Business Insider, an “enormous dispute” in 2014 between the corporation and Love Productions, the company which makes the baking show, broke out over the BBC 3 show Hair which Love claimed was a “rip off” of the GBBO format. Although the matter was eventually resolved out of court, multiple sources suggest relations between the two never recovered. With Channel 4 reportedly paying £1 million per episode the BBC could not match the financial package: presenters Mel Giedroyc and Sue Perkins immediately announced they would be leaving at the end of the current series with a trademark pun, “We’re not going with the dough”. With Love having already instructed TV copyright specialist Jonathon Coad of Lewis Silkin to sue in the 2014 case, no doubt any future appearances by the duo universally known as Mel and Sue, on any BBC programme will be closely scrutinised. Meanwhile, social media asks whether Channel 4 “have just paid £75 million for an empty tent”.
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