The fall out between the Lord Advocate & Lord Justice General hits the headlines, with letters released from both sides, criticising each other.
Prepare yourselves for the following match between Lord Advocate Elish Angiolini and the Lord Justice General Lord Hamilton, as reported in the Herald newspaper :
The Herald reports :
WORLD'S END: Lord Justice General letter to Lord Advocate
Lord Hamilton, has taken the unusual step of writing to Elish Angiolini, expressing concerns about her statement to the Scottish parliament about the collapse of the World's End murder trial of Angus Sinclair.
In that statement she described the trial judge's decision as "final".
The following is the letter:
The Rt Hon Lord Hamilton
The Lord Justice General
Parliament House
Edinburgh EHI lRQ
26 September 2007
The Rt. Hon. Elish Angiolini, Q.C.,
The Lord Advocate,
Lord Advocate's Chambers,
25 Chambers Street,
Edinburgh,
EH11LA.
HM ADVOCATE v SINCLAIR
I address this letter to you in formal terms because its subject matter involves an important principle concerning the relationship between the court and the public prosecutor in Scotland.
I was on leave when you addressed the Scottish Parliament on Thursday 13 September following the acquittal of the accused by the trial judge in the above case on Monday, 10 September. I have, however, now read a transcript of your address. I conclude from your reference (column 1765) to the judge's decision as "final" that you do not intend to refer any point of law arising in relation to that decision to the High Court under section 123 of the Criminal Procedure (Scotland) Act 1995. Given that such a reference could not result in a reversal of the acquittal, I can understand that position.
However, the resultant situation is that the trial judge's decision on the section 97 submission made to him is for all purposes final and that in your address to the Parliament you treated it as such.
At column 1766 you are recorded as saying - "Although I would not normally think it appropriate as Lord Advocate to comment following such a judgment, given the extent of the misunderstandings about the case and the Crown's approach, I feel that I have to set the record straight about the Crown's understanding of the case and the evidence that was made available to the court.
I am of the clear opinion that the evidence that was made available to the court was sufficient to put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court."
If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk.
You then set out, in a detailed and carefully crafted narrative, the evidence apparently adduced by the Crown and conclude at column 1769- "It was the Crown's position that the evidence in this case allowed '" an inference of guilt to be drawn."
It is clear that you were, as Lord Advocate, stating to the Parliament that in your "clear" opinion there was sufficient evidence to go to the jury. The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong.
Although I have read the whole of your statement to Parliament and the statement which the trial judge issued giving detailed reasons for his decision, I have formed no view as to whether or not that decision was sound in law. I am, however, concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).
Section 1(1) of the Judiciary (Scotland) Bill provides that certain office holders, including the Lord Advocate, must uphold the continued independence of the judiciary. That section, I believe, reflects an existing recognition that the Lord Advocate, among others, has such a duty. The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have that their decisions will not be openly criticised by other organs of government.
The public prosecutor may of course entertain private views as to the soundness of legal decisions. In the light of experience steps may be taken to amend the law or in a legal forum to challenge the soundness of an earlier decision. But public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.
My concern is not restricted to this case. The same situation might well arise in any case in which a trial judge sustained a submission under secton 97. It might also arise where, on an appeal against conviction, the court held that there had been insufficient evidence in law to warrant it. While such events commonly occur without public interest, they may well occur in controversial cases. It would be most unfortunate were the Lord Advocate to adopt a practice of publicly criticising such decisions.
I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him. But such support could have been afforded without public criticism of the judge. In particular, respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.
I have discussed this letter with the Lord Justice Clerk. He agrees with its terms. He also agrees with my view that the letter should be made public. I am sorry to have to write in these terms but I think it important that you know my views. If a discussion would assist, I would be happy to meet you at your convenience.
The Lord Justice General has made the letter public because of the importance he attaches to the issues which have arisen.
and now, the Lord Advocate's response to Lord Hamilton :
WORLD'S END: Lord Advocate response to Lord Justice General
HM ADVOCATE v SINCLAIR
Dear Lord Justice General Thank you for your letter of 26 September.
You express concern that I have publicly asserted that the decision of the trial judge in this case was wrong and that the independence of the judiciary as the final arbiter of legal issues is thereby put at risk.
You recognise, however, that it might be appropriate for me publicly to support the Advocate Depute without public criticism of the judge and you point out that respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.
I would wish to make it clear that in my statement to the Parliament, to which I am accountable, I endeavoured to stress the independence of the judiciary and the need to respect that.
I said explicitly that "as the law stands the decision of the judge is final and we all have to respect that".
I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances.
I do, of course, fully understand the importance of independence of functions in the criminal justice system.
My own independence is already recognised in statute, in the Scotland Act itself, which provides that any decision taken by me in my capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by me independently of any other person.
My independence does not and can not make my decisions immune from comment or criticism. In a democracy such as ours, where public institutions are subject to greater scrutiny and accountability, the Lord Advocate must be able to explain her position in public where that is necessary.
Law Officers and prosecutors are from time to time criticised and we must be free to respond publicly to that criticism in appropriate circumstances.
In the particular circumstances of this case I considered it necessary to respond to the criticism of the Crown's handling of the case which followed on the trial judge's decision. This criticism extended to adverse comment regarding the Crown's approach to the case, why evidence was not led and to the strength of evidence in other potentially related cases. There was an unprecedented interest in the actions of the Advocate Depute, there were calls for an inquiry and for a statement be made to the Parliament on the Crown's handling of the case.
It was suggested that the case had damaged public confidence in the criminal justice system. I considered that it was important for me to allay public concerns as quickly as possible and that this should be done by a full statement to the Parliament.
I chose my words to the Parliament with great care. I explained the background to and the basis of the Crown's decision making in the case and sought to address the concerns which I have set out above. In doing this I stressed the independence of the judiciary and the need to respect that.
I repeated this during questions following the statement. Indeed, in almost six years as a Law Officer I have avoided any public criticism of judicial decisions.
My comments were about the Crown's decision making, and not anyone else's.
I am happy to meet you to discuss the matter further if you would find this of assistance.
Elish Angiolini QC Lord Advocate
further report from the Herald :
WORLD'S END: Scotland's top judge slates law chief over murder trial collapse
Scotland's most senior judge today launched an unprecdented attack the country's chief prosecutor over her reaction to the collapse of the World's End murder trial.
The Lord Justice General criticised Lord Advocate Elish Angiolini over a speech made to the Scottish Parliament in the wake of the case's dismissal from the courts last month.
The law officer insisted to MSPs that there had been enough evidence to prosecute Angus Sinclair for the murders of teenagers Christine Eadie and Helen Scott.
But today Lord Hamilton, Scotland's most senior judge, took the unusual step of writing a strongly-worded letter to Ms Angiolini describing her comments, which implied judge Lord Clarke was wrong to dismiss the case, as "inappropriate".
In the letter, which was made public, he wrote: "Public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate."
The case against Sinclair, a convicted killer and paedophile, was thrown out at Edinburgh High Court last month after Lord Clarke ruled that there was insufficient evidence for the jury to reach a verdict.
The trial collapse caused further heartache for the family of the two teenage victims killed 20 years ago.
It also raised questions of the Crown's presentation of the case.
There were calls for a public inquiry by politicians who said that advocate-depute Alan Mackay had not led all the available evidence during the trial.
And criticisms were made over the Crown's decision to bring forward a prosecution at all if a conviction was not likely.
The Lord Advocate's statement to Parliament on September 13 was prompted by the attacks.
Public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.
She defended her department's handling of the case in the speech, describing its collapse as "deeply disappointing".
The Lord Advocate insisted: "I am of the clear opinion that the evidence made available to the court was sufficient to be put before the jury to allow them the opportunity to decide on the case against Angus Sinclair."
But in his letter today the Lord Justice General wrote: "It is clear that you were, as Lord Advocate, stating to the Parliament that in your "clear" opinion there was sufficient evidence to go to jury.
"The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong."
He went on: "I am concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong)."
The Lord Advocate concluded: "I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him.
"But such support could have been afforded without public criticism of the judge."
In a letter of response to Lord Hamilton, the Lord Advocate said she had chosen her words to Parliament "with great care".
Ms Angiolini stated that her comments related to her department's decision-making "and not anyone else's".
She wrote today: "I considered that it was important for me to allay public concerns as quickly as possible and that this should be done by a full statement to the Parliament.
"I chose my words to the Parliament with great care.
"I explained the background to and the basis of the Crown's decision-making in the case and sought to address the concerns which I have set out above.
"In doing this I stressed the independence of the judiciary and the need to respect that.
"I repeated this during questions following the statement.
"Indeed, in almost six years as a law officer I have avoided any public criticism of judicial decisions.
"My comments were about the Crown's decision-making, and not anyone else's."
The Lord Advocate stated: "I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances."
The First Minister, Alex Salmond, said during First Minister's Questions that Ms Angiolini was "absolutely right" to make a statement in Parliament about the collapse of the case.
"Given the public interest and concern in this case, no member of this Parliament and I think very few people in Scotland, would expect anything less," he said.
"Inevitably in giving that statement and then answering questions, the Lord Advocate is going to put forward the crown point of view - the prosecution service's point of view, as indeed was done in open court.
"I don't believe that should be taken as a direct criticism of a trial judge.
"That is surely a law officer responding to public concern, subjecting herself to parliamentary scrutiny."
Mr Salmond added that judicial independence is guaranteed in Scotland and a forthcoming Bill will further underline this.
Further report from the Herald :
Angiolini defies top judge over World’s End attack
ROBBIE DINWOODIE, Chief Scottish Political Correspondent
Scotland's top prosecutor yesterday rebuffed unprecedented public criticism from the country's most senior judge and made clear she would not back away from explaining the background to controversial court cases in future.
A remarkable exchange of letters between Lord Hamilton, the Lord Justice General, and Lord Advocate Elish Angiolini emerged in the wake of her statement to parliament on the collapse of the World's End murder trial.
The case against Angus Sinclair folded at the High Court in Edinburgh last month when Lord Clarke ruled there was not enough evidence for the jury to reach a verdict.
In her comments to MSPs two weeks ago, Ms Angiolini insisted that there had been a strong enough case to let the jury decide whether to convict double killer Sinclair for the 1977 murders of teenagers Christine Eadie and Helen Scott.
Lord Hamilton was on holiday when she spoke, but issued a three-page letter yesterday. Written with the full agreement of Lord Gill, Scotland's second most senior judge, he called Ms Angiolini's statement "inappropriate" and said she had not shown "requisite respect" to the judiciary.
He also claimed that it could have been illegal under a new law being considered because this would give her a statutory duty to uphold the independence of the judiciary.
Within minutes of Lord Hamilton's letter being made public, the Lord Advocate responded robustly, stating that she had chosen her words "with great care" and insisting: "I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances."
Asked whether the Lord Advocate's rejection of the criticism meant she would be prepared to do the same again, a Crown Office spokesman said: "Absolutely."
The open spat between the country's two most senior legal figures prompted the Conservatives to claim it proved the need for the head of the prosecution service to be removed completely from the political sphere.
Tory justice spokesman Bill Aitken said: "There needs to be a complete separation of powers. The situation whereby Scotland's premier judge and chief prosecutor are in conflict is unprecedented and extremely unfortunate. The Lord Advocate was quite correct in coming to the parliament to make a statement following the Sinclair case, but there was no doubt that some of this statement could have been construed as criticising the trial judge's decision and that is what has prompted Lord Hamilton's understandable concern."
Margaret Smith, of the Liberal Democrats, added: "A public disagreement of this nature between the Lord Advocate and Scotland's most senior judge is unprecedented. Many people will be concerned at any claim that the independence of the judiciary is under threat."
Alex Salmond came to Ms Angiolini's defence at First Minister's questions. He said: "Given the public interest and concern in this case, no member of this parliament and I think very few people in Scotland would expect anything less. Inevitably in giving that statement and then answering questions, the Lord Advocate is going to put forward the Crown point of view - the prosecution service's point of view, as indeed was done in open court."
He added: "That is surely a law officer responding to public concern, subjecting herself to parliamentary scrutiny."
For Labour, Pauline McNeill said: "We respect the independence of the judiciary. However the World's End case has raised an important legal point. To tackle this we should consider whether the Crown should have the right of appeal against the decision of a judge."
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