Interview: Donald Findlay, QC

'IT'S not as grand as it sounds. There are no ceremonial functions and there's precious little acclaim involved," according to the new chairman of the Faculty of Advocates Criminal Bar Association, Donald Findlay, QC.

But his FACBA election gives Findlay an opportunity for reflection on the state of Scottish criminal law at a time of greater turmoil than at any other point in his 37 years as a defence advocate.

The UK Supreme Court is considering its judgment in a case about the rights of a suspect in Scotland to legal advice that could render questionable thousands of past convictions; the secretary for justice has indicated he is persuaded that it is time to reconsider the 110-day rule, a discipline unique to Scottish criminal justice that allowed us to claim superiority over those that keep accused men and women in custody for months or years; the Scots Law Commission has been pressed to review the law on double jeopardy to allow the Crown another go if it does not secure a conviction first time; the judiciary maintains its apparent lack of interest in prejudicial coverage in the main media and on the internet.

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You would expect the highest-profile defence advocate of the past two decades and more to regret these apparent erosions of old certainties. But more than that, Mr Findlay is concerned at the drip-drip effect on public confidence of daily second- guessing the outcome of the criminal justice process. There is a constant vuvuzela drone in the background that the victims have been let down, the accused got away with it, or the sentence was too short.

"The fundamental issue goes to the way we, as a free society, approach the criminal justice system" he says. "It is a fundamental concept that the accused person is presumed to be innocent and it is for the Crown to establish guilt. I regret the habit that has developed in the media, or among some politicians, to choose a particular case and suggest that principle should be suspended for some reason that is not always clear.

"It doesn't seem to me to be the mark of a civilised society that people who have not heard all the evidence somehow claim they know better than the jury that did.

"If an accused person is presumed to be innocent and the charge is not brought home as the result of a trial, then that is a triumph for the legal system. It means in a free society an allegation is not enough. I look forward just once to seeing a tabloid headline saying, 'Triumph for Scottish justice', following an acquittal after all the evidence has been heard, rather than another headline about a failure of Scottish justice. I still approach the matter in the same way as I did 35 and more years ago – that it is better that 99 guilty men go free than one innocent person is sent to prison."

For those whose guilt is yet to be determined, the 110-day rule put the pressure on the Crown to bring to trial an accused person who had been remanded in custody. Speaking in the Scottish Parliament last week, justice secretary Kenny MacAskill indicated he was persuaded by the argument that the limit should be extended to 140 days.

Findlay says: "110 days used to be an article of faith, but it has largely been frittered away for years. When judges are asked to give an extension 'for management reasons' – sometimes because the Crown is having difficulty in scheduling court time and sometimes because the defence needs more time – they nearly always agree. My view is that we shouldn't give it up easily. I'd prefer to see the judges interpret requests in a robust way; that, is taking the perspective of the accused first, rather than the convenience of the administration."

Findlay has been expressing for several years his concern that the internet has driven a coach and horses through old assumptions about ensuring a jury considers only admissible evidence presented in court under oath and exposed to cross examination. He says: "It worries me greatly that jurors can have access to all sorts of information by surfing the internet when they go home – partly because the information they find is prejudicial and because it is often completely wrong.

"The danger is that there will be a catastrophic miscarriage of justice. The accused will have been described on the internet as a beast of some sort. It will then turn out some years later that the verdict was improperly influenced by such information that was not part of the trial.

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"This is not to imply that jurors are dishonest or acting with malice, but we should understand that the temptation to Google or Yahoo! is almost irresistible. Once a juror has that information, it is very difficult to ignore it. Even if he doesn't tell the other jurors about it, it is likely to influence his part in the deliberations."

Much nearer on the horizon is the likely fallout on the Cadder case on legal advice currently before the UK Supreme Court. Mr Cadder's legal team has challenged his conviction on the basis his interview by police while he was detained under section 14 of the 1995 Criminal Procedure (Scotland) Act was unlawful in terms of the European Convention of Human Rights (ECHR).

The Crown has issued instructions to police to allow a suspect access to legal advice before any interviews between now and the October judgment day.

"Everybody seems to be assuming the decision will go against the Crown. I don't know if it will or, if it does, precisely how the judgment will be framed.

"If it turns out a suspect is entitled to have a solicitor present prior to and during an interview under caution, solicitors are going to spend hours in police stations on Friday and Saturday nights when they would rather be at home or, frankly, anywhere else. That will impact on them quite dramatically.

"If it does go against them, I'd be surprised if the Crown didn't attempt to bring in some legislation that would draw a line, though that won't be easy as it must be ECHR- compliant. The view has traditionally been the law is what the law is and what it was yesterday is neither here nor there."

So what is the state of Findlay's morale as the sands shift under the feet of his FACBA colleagues?

"Are you asking whether I'm considering a career change? I don't think so, as long as I still have my marbles. My belief and passion remain undiminished. It is the right way to go about things – for the state to put its allegations before a jury. The only reason for the existence of the defence lawyer is to ensure guilty people are punished – but only guilty people.

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"It's a combination of that and a thrawn, implacable, unchallengeable belief that the increasing power of the state should be resisted that keeps me going."