JUSTICE Scotland: Having a new conversation about law reform

Addressing lawyers in New South Wales a couple of years ago, Justice French of the High Court of Australia talked of the danger of isolationism of some States – or Australia as a whole – of being inward looking:

“….we tend to think of [parochialism] as geographical in its focus. Parochialism can also be a term which describes a narrow view of the world by members of a particular occupation or profession or specialist subdivision within a profession. It is a kind of perceptual disorder. It can affect the legal profession including its practitioners and judges. The disorder at its worst is geographical and occupational. It is best cured by standing back and looking at the places where we live and the things we do from an external perspective.”

Keeping his comments in mind, the launch of JUSTICE Scotland is a welcome opportunity to stand back and look at where we live and work.

It is fortuitous JUSTICE Scotland should come into being at this time in the life of Scotland. I have been fortunate enough to be part of several discussions – mainly in our universities – about the shape of our country’s future. The government has initiated a National Conversation. Quite where our country will be in the next three to five years has really been thrown up in the air.

The path to this moment in our history was really started by the process of devolution. In the course of the many discussions about the shape of our country, one of the things I have heard on numerous occasions is that the coming into being of the devolved institutions and the relatively modest flurry of legislation, has not been matched by a flowering of debate; a mature debate about where we are.

I am loathe to look down south to contrast the number of organisations who contribute there to the debate about the shape of their society and law reform. There are so many. In Scotland there are so very few.

That has not detracted from the legislative progress that has been made in the Scottish Parliament. What is sadly lacking in my view, is a healthy debate surrounding, informing and commenting upon what is happening as distinct from comment upon the political process

In litigation, competing interests come before the court for adjudication. In submissions made to the court, each party’s interests are protected and are sought to be given primacy over the other. It is partisan – by the adversarial nature of proceedings, necessarily so – when the court adjudicates. In partisan litigation that is a concern: being so focused upon the issues that arise in the  context of their case, parties and advocates may fail to see the bigger picture.

In both these processes, political and legal, JUSTICE Scotland hopes to make a positive contribution. Our hope, our vision, is to be a well-informed, authoritative voice commenting upon and informing proposals for law reform. We would hope to use the as yet undeveloped power to ‘intervene’ in proceedings to assist the court in looking beyond the partisan interests of the parties appearing before it.

There is no better time to launch this initiative. The Scottish Law Commission has issued several helpful recent contributions to the area of law reform – in criminal law especially – on similar fact evidence, placing previous convictions before juries, reforming double jeopardy. Lord Carloway’s Review has been issued and the Scottish Government has initiated a consultation.

We have already started along our work on this. JUSTICE Scotland convened a workshop with academics at the University of Strathclyde only last week to look at the issue of corroboration and the consultation paper. Whatever one thinks of these proposals, when they eventually come to fruition they will set our criminal justice system upon a course that may well be cast for a generation.

Our part in that process is to assist – to assist legislators, judges and wider civic society. That is an ambitious aim.

JUSTICE Scotland has already embarked upon significant areas of work: it is already assisting parliament by giving evidence to the Justice Committee; issuing responses to consultation documents; it has assisted in training for solicitors and the UK Supreme Court in an intervention.

Chief Justice French’s concluding remarks have application and resonance for what we at JUSTICE Scotland are about to embark upon:

“In the end, the independence and durability of the profession will depend upon the extent to which it is able to demonstrate that what it does and proposes are things necessary in the service of a public interest that is wider than the interests of the  individuals who make up the profession. That wider public interest includes the protection and promotion of the rule of law,  the pursuit of justice according to law and the improvement of the laws to better deliver justice.”

Part of the landscape

JUSTICE was established in England in 1957 to promote the rule of law and to assist the fair administration of justice. Its first chairman was Hartley Shawcross, the chief British prosecutor at Nuremberg.

Another of the founders was Peter Benenson, founder in 1961 of Amnesty International.

The organisation claims a significant role in developing several innovations that have become part of the British legal landscape, including the Ombudsman, the Criminal Injuries Compensation Board, the Rehabilitation of Offenders Acts, the Data Protection Act 1998, and the Criminal Cases Review Commissions.

Momentum behind the creation of the Criminal Cases Review Commission in England was built during the 1980s and 1990s through collaboration  with television programmes, Rough Justice and Trial and Error, that had exposed a number of wrongful imprisonments.

Its most recent tactical development has been ‘intervening’ at appeal  level in cases that raise issues of fundamental human rights, including the Cadder case in the UK Supreme Court that led to the overhaul of the rights of a suspect in Scotland to legal advice before interview by police.

JUSTICE Scotland is at present a branch of JUSTICE with its own council chaired by Baroness Helena Kennedy and including representatives of all Holyrood parties.

JOHN FORSYTH

• Professor Tony Kelly is a partner with  Taylor Kelly solicitors and chair of the  JUSTICE Scotland executive committee.