Justice Is Blind

Justice is supposed to be 'blind' in the sense that judges and juries must arrive at their decisions impartially - without showing fear or favour to the accuser or the accused.

But that is a different thing from refusing to address to an issue that is staring Scotland's  judicial system in the face - the need to remove the existing legal requirement corroboration or  third party witnesses in criminal trials.   

In a recent review of Scots criminal law, Lord Carloway recommended that the rule was archaic - and  had no place in a modern legal system.

Which I think is the correct call - because certain types of crime such as sexual assault or domestic violence will normally occur when there are no other witnesses present - other than the accuser and the accused.

Now this is not to say that an accusation will automatically lead to a conviction - far from it - because the wider circumstances and other available evidence will always need to be taken into account - before a judge and/or jury come to a decision.

So I was disappointed - though not surprised - to read that the Scottish legal establishment have all come out against Lord Carloway's proposal which the Scottish Government is minded to accept.

The Law Society of Scotland, The Faculty of Advocates and the Senators of Justice (which represents Scotland's judges) have all opposed Lord Carloway's  recommendation - and are urging the Government to think again. 

But I don't buy this argument for two reasons.

First of all other legal jurisdictions - i other countries - seem to function perfectly well  without adopting the need for third party corroboration in every single case.

Secondly Scotland's legal establishment is hardly progressive - conservative and reactionary  is a better description - and waiting for these folks to take the initiative is a forlorn hope i would say.

The problem with the law - in my opinion - is that it's dominated by lawyers and the legal establishment - but has little regard for common sense.

Here's something I wrote on the subject earlier this year. 

Scotland's Gain (3 January 2012)

I meant to write something about the public comments made by Strathclyde's police chief - Stephen House - back in December 2010 in the wake of the Reammon Gormley murder trial.

Reamonn Gormley was on his way home one night after watching a football match on TV in Blantyre - when he was set upon by two thugs who were both carrying dangerous weapons.

For refusing to hand over what his attackers wanted - Reamonn was murdered in cold blood - stabbed three times, once in the neck - before his killers ran off.

The thug who wielded the fatal blow - Daryn Maxwell - was defended in court by an expensive lawyer - Iain Duguid QC - who submitted a plea in mitigation on his client's behalf.

In which he stated that the murder was "street robbery gone wrong" and that - Reamonn Gormley "was in the wrong place at the wrong time".

But Strathclyde's police chief - Stephen House - spoke out and criticised these comments in a letter to The Herald newspaper in which he said:

"You included comments attributed to Ian Duguid, QC, who was Maxwell's defence advocate. I find both quotes to be incredibly insensitive and concerning.

I realise that it is the role of the defence advocate to show their clients in the best light, but to do so in a way which seeks to shift blame from the offender to the victim is something that I'm sure the public will struggle to understand.

Mr Duguid described the murder as a 'street robbery gone wrong'. This seems to me to suggest that it was just a robbery. Let us not forget that these two men went out armed to carry out their crime.

To try to explain their behaviour by suggesting they were only really looking to carry out a robbery is insensitive in the extreme.

Mr Duguid also suggests that Mr Gormley, the wholly innocent victim, was "in the wrong place at the wrong time". I know that this is a commonly used phrase, but I cannot help but think that this comment suggests that Mr Gormley made some kind of mistake that night.

Mr Gormley was walking home from a night out with friends. He did nothing wrong."

Now Strathclyde's top cop attracted some criticism himself for speaking out - some members of the legal profession said at the time that it was not his role to criticise the conduct of the trial - or the defence plea in mitigation.

But in my view Stephen House spoke common sense - the police know well the kind of thugs who murdered Reamonn Gormley - because they deal with them on a regular basis - often as repeat and violent offenders.

People who take knives out on the street must be prepared to use them - otherwise what are their weapons for?

In this case the crime was planned and premeditated - and the weapons were carried for a purpose - not as a fashion statement.

The problem with leaving public debate around the law solely to lawyers - is that important issues often get discussed in a lofty, remote, even superior way.

As if the practice of law is an arcane, academic, wholly 'professional' pursuit - not something that affects ordinary people and the way we lead our lives.

A plea of mitigation is one thing - using sophistry to try and stand reality on its head - quite another.

Daryn Maxwell received a minimum sentence of 19 years for the murder of Reamonn Gormley - while his fellow attacker - Barry Smith - got 8 years for culpable homicide - presumably because he did not actually strike the fatal blow.

The truth is that without acting together these two cowards and bullies would never have attacked Reamonn Gormley in the first place - yet one may be out of jail in four years or so.

Stephen House was interviewed for the job of Commissioner of Metropolitan Police - but I take my hat off to him.

To my mind London's loss - is Scotland's gain.