Expedience should neither help the law nor protect it

Scottish Policy May 23, 2012 Add a comment

The Scottish system of justice needs to be looked at. We should stat with Lockerbie and work our way forwards from there. Until we do we should not consider piecemeal changes to the very meaning of justice.

Lots going on today but two things arrive together which again seem to feed into an important bigger question. The first is the Megrahi aftermath, the second another attempt to reshape Scottish justice. Both are complicated issues probably not best served by sloganeering (Ms Lamont…) and so both need to be guided by some calm, principled thinking.

Megrahi first. There are a couple of simple questions – does anyone really think we know all there is to know about what happened in the run-up to that night over Lockerbie? Even the official line is that Megrahi was not acting alone and that there are others who carry guilt who have not been held to account in any way. So this is not done. But then, does anyone really believe that the one conviction we have is really safe beyond doubt? Surely the answer has to be no. The Scottish Criminal Cases Review Commission certainly doesn’t seem to think so and nor does virtually any of the independent commentators I’ve heard or read.

And that’s it. That’s as much as I need to form my conclusion. We’re looking at the worst peace-time atrocity to befall the UK (never mind Scotland) and we know for certain that some of the people involved have not been caught and we know with a pretty high degree of likelihood that guilty or not there are very real problems with the Megrahi trial. Neither the judicial system nor the police and security services have put this to bed. That is the moment in society when it becomes the role of government to ask why. It is not necessarily to criticise (although it seems to me that criticism is inevitable) but it it is essential to create public confidence, the sense that things are being looked at honestly. The reason for not doing this is hard to pin down – that it might embarrass government, the Scottish legal system or (worst of all) expose the security services to some scrutiny. But these are the opposite of reasons not to do it – this is why it must be done. The role of government can’t be to protect institutions of state from scrutiny if things happen which (for one reason or another) make them seem as if they haven’t been perfect. In fact, lack of scrutiny of one’s imperfections is a guaranteed way to reinforce them.

Meanwhile, the suggestion that juries should hear about past convictions of defendants is now also kicking around. I realise the frustration. In fact I myself was surprised at how that piece of information changed my view of my own experience of being on a jury. We took what seemed like an age to come to a conclusion and we were all (really, all of us at least to some extent) not completely sure we’d got it right, just pretty sure. Only afterwards did we find out about who we’d really convicted – his past convictions were actually quite scary. On another occasion I was a young reported getting  taste of court reporting. I sat through most of the trial and to this day can’t understand how no-one was found guilty. (Well, actually I can understand it because it was a crowd and who knew who did what.) So I understand that it is annoying when bad people get to make their badness disappear in a court room. But the alternative is much, much worse. If we’d known about the guy we convicted he wouldn’t have stood a chance. It was possible (nearly, almost, just a tiny bit) that he didn’t do it, but he’d have been done no matter what.

And that also is the simple point. Justice is all about judging what someone has done, not who they are or what they were in the past. Expediency used to put more people in jail isn’t justice but – well – expedience. The whole ‘better ten guilty free than once innocent locked up’ is said without thinking about it, but it is true. All the reporting about one criminal found not guilty must never make us forget the other cases. In the last couple of years alone there are a handful of cases of people found innocent by new DNA evidence or evidence of police mistakes who between them have served 60 or 70 years in jail.

So this is a complicated question but a simple answer – expedience has no place either in protecting the justice system or in making its job easier. Something isn’t quite right in the Scottish system of justice right now. Piecemeal changes which change the meaning of guilt may be necessary at some point, but we have bigger questions to answer just now. We need to begin with Lockerbie and, if that shows wider failings, follow those. Once we have had a real, independent look at the justice system we will know what the size and shape of the issue is. Until then, we shouldn’t be tacking more problems onto existing problems.

Robin McAlpine

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