Willie McIntyre: Jewel in the Crown no more

Willie McIntyre

I seldom go to the High court these days. High court generally means legal aid, and a recent time and study analysis showed fees earned on such work did not meet office overheads far less make a profit. Thus, the reduced number of High court cases I take on each year are regarded as pro bono because, I can tell you, they don’t do me or my bank manager a lot of bono.

This means that my trips to see the people in the mid-eighteenth-century clobber are reserved for certain deserving cases only. However, this is not another rant about legal aid. Most solicitors have given up thinking that the Scottish government has any genuine intention of providing meaningful access to justice for the less well-off in Scotland; the sort of people who can’t crowdfund a defence. No, what has struck me most on recent visits to the High court, is the continuing problem the court has in preventing delay in trials, especially trials for those remanded in custody.

According to the Scottish Parliament’s website, the 110-day-rule, now the 140-day-ish-rule, is referred to as ‘the Jewel in the Crown’ of the Scottish criminal justice system. On closer inspection, it seems that ‘the Jewel’ has turned out to be less crystallised carbon and more cubic zirconia.

Nowadays the suggestion that the court should fix a trial within the statutory 140 days receives with the sort of careful consideration my photo-portfolio does when I advise the producers of Love Island of my availability.

Well, why aren’t there more appeals? I hear those of you who know nothing about the present state of the criminal justice system cry. On counsel’s opinion to do so would meet with the same hearty approval Mrs May’s Brexit deal was given by Mr Farage. Apparently, it has already been decided at the highest level that extensions to the statutory time limits are merely a harsh reality of life in Scotland’s legal system. Certainly, it’s harsh and very real for those persons, presumed innocent, who are left to study four walls from all angles at close range.

So, what is the reason for these delays? It’s not like Scottish courts are busy. Reported crime is down after all – a trend that happily coincided with the closure of one-third of Scotland’s police stations.

Minor offences don’t see the light of a court day any more, Sheriff Court cases are reduced to JP level, most solemn-type cases are now on summary complaint, former High Court offences have been relegated to Sheriff and Jury, allowing the High Court to spend its days finding out what elderly men were doing forty-odd years ago and who they were doing it to.

On further enquiry, I’ve been told by someone who knows about these things, but would like to keep their job with Scottish courts, that there are simply not enough judges or courts or prosecutors to meet the deadlines. Now, I was noticeable by my absence from many a constitutional law lecture, and yet it seems to me that the current laissez-faire attitude to prisoners’ rights is an institutional failure on the part of the executive to which the judiciary appears to be turning a blind eye. It’s a state of affairs to send many a retired judge spinning in their New Club armchair. I once saw the late Lord Prosser (admittedly back in the day when Lanarkshire House dished out less food and drink and more life sentences) boot out a case of attempted murder when the Crown had problems commencing the trial within 110 days.

I’m sure the lack of solicitors and counsel willing to undertake such serious work at such laughable rates of pay, plays a part, but, the way things have been for so long now, I don’t see much changing very soon. Which all leads me to believe that it’s time for the Scottish Parliament’s webmasters to put aside translating their site from perfectly good English into Gaelic and Scots and instead pay more attention to content accuracy. Tell it as it is. There once was a jewel in the crown, but it has long since been dislodged from the Scottish criminal justice system’s diadem, rolled down the Royal Mile and into a drain somewhere outside Holyrood.

Willie McIntyre is a partner at Russel+Aitken. His latest novel, Fixed Odds, will be released on 7 July.

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