Monday, October 13, 2008

Scots Law Commission gets a new member …. change we think not

Business as usual at the Scottish Law Commission … which usually means not much changes as people come & go.

The Scotsman reports :

New man on Law Commission block takes advice from the old authorities

Published Date: 13 October 2008

Claire Smith meets Patrick Layden, one of the five guardians of Scots law

IN A revolving bookcase behind his desk, Patrick Layden has a collection of leather-bound books which include work by the 18th century lawyer David Hume. As the newest member of the Scottish Law Commission, Mr Layden has already found himself reaching for Hume – the nephew and namesake of the philosopher.

Going back to first principles is all part of a day's work for Scotland's five law commissioners, who work from a nondescript office in Causewayside.

He may be the newest member of the team, but Mr Layden, who has a formidable record as a lawyer working in government has been given a weighty first assignment.

Over the next few months, the QC who previously worked in London and Edinburgh for the Lord Advocate's office, will examine the principle of double jeopardy – the notion that a person should not be tried twice for the same offence.

"The basic principle – and this is found in Hume – seems to be that you shouldn't be put through the stress and the worry and the risk to your liberty and reputation twice if you have been charged with an offence and found not guilty," he says.

"If the jury has not accepted the evidence then the prosecutors should not be allowed to have another shot. A person is, after all presumed to be innocent until found guilty."

Mr Layden's enquiries will try to weigh up whether such a significant point of law should be waived in specific circumstances – and if so, in what circumstances.

"This is against the background of the Stephen Lawrence case," Mr Layden continues. "The MacPherson enquiry recommended that rule should be looked at in England to see whether exceptions should be made."

Stephen Lawrence, an 18-year-old A-Level student, was stabbed to death in South London in 1993. Five suspects were charged but only two stood trial. After the case collapsed due to lack of evidence, Stephen Lawrence's family brought a private prosecution against the accused – but this also failed.

The MacPherson report labelled the Metropolitan Police "institutionally racist", and in 2003 David Blunkett, then Home Secretary, introduced a bill to amend the principle of double jeopardy in cases where: "new and compelling evidence" is found. The notion of "fresh and compelling evidence" is enshrined as a principle in European law.

Mr Layden's job over the next few months will be to prepare a report to be discussed and amended by his fellow commissioners before a recommendation is drawn up and passed to Scottish ministers.

The commissioner will look at England, and also at the way the law has changed in Australia, New Zealand and the US. But he will also be going back to venerable figures such as Hume to try to uncover the thinking behind the original rule.

In keeping with the archetypal circumspect character of the Scottish lawyer Mr Layden retains an open mind.

"You start looking at the principles, find out what the law is, consult academic writing on the subject and consider these in the light of modern circumstances," he explains.

"It doesn't take much imagination to see that if you are a person of good reputation and you are charged with an offence, the result will be to disrupt your income and your family life. If you are found not guilty you would like to be able to carry on with life – that is the basis on which the law has been put together.

"But of course it sticks in the craw to have somebody walking about the streets if you know they have committed a crime but you can't get them convicted.

"It takes a really bad case like the Stephen Lawrence to experience that at its most compelling. However, bad cases make bad law. We have always taken the view in Scotland that it is better not to convict innocent people – even if it means you get the occasional guilty person walking free."

Although Mr Layden's recommendations may form the basis of a new law, he stresses that the decision rests with the legislature.

"The ultimate test of what the law commission does is whether the Scottish Parliament passes it into law. We can make recommendations but it is their decision."

He adds: "It is a great mistake to get too tied up with the beauty of your concept. Bills are made to pass as razors are made to sell."

Although he began his practice as a QC in Scotland, Patrick Layden has long experience of working alongside government ministers. He worked for the Lord Advocate's office in London for 22 years and, after devolution, came to Edinburgh to act as legal secretary to the Lord Advocate.

He says: "The Scottish Parliament is designed to be very different from Westminster. Westminster has two houses and there are five stages where you can amend legislation. Here there are two stages – which means legislation has to be front loaded – there is not as much chance to make changes."

Nonetheless it is important to be pragmatic when drafting potential legislation.

The lawyer says he was thrilled to move back to Scotland eight years ago to work for the reconvened Scottish Parliament. "Personally I was very excited because I had been working in public law for 22 years and to be involved in working a new constitution is one of the most exciting things you could imagine. I was lucky that it happened at a stage when I was young enough to move and old enough to have the experience to be able to contribute.

So far, he says, the 116-page Scotland Act of 1998 has been: "quite a successful piece of legislation – in that we have had no litigation.

"The fun of starting out with a new constitution is there are so many questions that are going to be asked which have not been asked before."

He believes there are important distinctions between English and Scottish law – which he is keen to see maintained.

"We always say that Scottish law works from principle to practice whereas English law works from practice. I think Scottish lawyers tend to be pragmatic and I think they are principled. You have got to be practical. You are not in this business to produce some aspirational view, you are in the business of getting something that will work.

"That is why I like the work here and I am looking forward to getting more involved."

Among the laws currently under consideration by the commission is the law of succession, which has been unchanged since 1964. This deals with the what happens when a person dies without writing a will – and rules which people are entitled to their heritable property. It is, Mr Layden says, a prime example of the way a piece of legislation a person may not even be aware of can make a huge difference to their lives – which is, he believes, the way things should be.

"A piece of law has an effect on the lives of people so the question is how do we make it better. If we can improve things then it is worthwhile.

"Most people will never think about it until it bites them in the shoulder."

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