Cat and Mouse

Scotland's Lord Advocate - Frank Mulholland - has made some interesting comments about whether our criminal justice system has 'lost the plot' - my words not his lordship's I haten to add.

Frank Mulholland's words come against the background of the so-called Cadder ruling - from the UK Supreme Court - which now means that a suspected criminal can't be interviewed by police - without a lawyer present.

Now that sounds fair and sensible - taken at face value - but the practical problem is that the baby tends to get thrown out with the bathwater.

Because I've yet to hear of a defence lawyer telling their clients anything other than - 'Sit tight, say nothing, admit nothing - just wait and see what the other side come up with'. 

So even if a suspect is genuinely remorseful for committing a crime - and wants to spill the beans - the smart advice and professional advice is always to let the other side prove its case.

The whole system is completely adversarial from the outset and Frank Mulholland appears to be questioning - whether this is really what the pursuit of justice should be all about.

Mulholland is reported as saying that the Cadder ruling tipped the system out of balance before going on to add:

"What is the criminal justice system for? It is for a fair trial in which the guilty are convicted and the innocent are acquitted. After Cadder the system is out of balance and has shuffled too much in favour of protection of the accused rather than ensuring a fair trial."

Now I interpret the Lord Advocate's comments as questioning whether the rules of evidence should be changed - because at the moment great stress is placed in Scots law on corroboration - which often means having an independent witness to the alleged crime. 

But of course many criminals go out of their way to avoid the presence of witnesses - and so certain categories of crime such as rape and sex crimes become very difficult to prove.

Seems to me there are no easy answers to the point the Lord Advocate is raising - though I do think he's on the right track to ask whether the law needs to be rebalanced in certain areas. 

Because much of the criminal justice system these days - seems like a cat and mouse game between the prosecution and defence - instead of a search for the truth.