I applaud the reasoned contribution of Lord Uist to the proposals for juryless rape trials contained in the Victims, Witnesses and Justice Reform (Scotland) Bill.

It is an inevitable consequence of our conventional constitutional arrangements that serving judges do not comment on matters of Executive policy. For that reason alone we have to wait until Lord Uist retired before we are able to hear an expression of his views.

During my own judicial tenure I had to bite my tongue in public on a number of occasions when faced with Executive intrusions into judicial independence but I still found enough appropriate opportunities to make comments from the bench on Executive policy when that policy intruded into the actual operation of my court. I routinely required to use private judicial functions to formulate and express my criticisms of what I characterised as “Executive Creep”. I regret to say that on one such occasion a judicial colleague whom I could, but never will, name said to me “…it’s all right for you [to speak out]….you’re in the job that you want. Some of us have careers to look after.” That chilled me at the time and still chills me to this day.

The corollary of judicial silence is Executive respect for the constitutional conventions.

When, as has been the case for some years, we have an Executive which appears to have little understanding of the constitutional conventions, or if it does have such an understanding, chooses to ignore them, a time has perhaps come when the serving judiciary have to speak out publicly.

One of the express provisions of the shameful white paper of 2006 cynically entitled “Strengthening Judicial Independence” was “…to enable the judiciary to speak with one voice.”
That “one voice” was, of course, intended to be the lord president – who is now proposed to have unqualified power to remove a judge from a judicial function.

We don’t want a judiciary which speaks with one voice: we want a judiciary which speaks with as many voices as there are judges. If speaking out is still too much for the serving judiciary they have another remedy.

Each and every judge in the country should decline the invitation to participate in the “pilot” scheme for juryless High Court trials. Even easier, don’t do the required “approved” training course.

If they do so, each will be demonstrating true judicial independence – with one judicial voice.

T.A.K. Drummond KC
Retired sheriff