Gordon Jackson QC is an outstanding lawyer and a thoroughly decent man. Criticism of his preparation for Alex Salmond trial is perverse. If anyone was so concerned about the privacy of the complainers as he prepared for a hearing on a train, oblivious to others, then they’d have intervened to tell him he was being overheard, not film it surreptitiously and give to a newspaper later. But it’s symptomatic of some of the poison that’s flowed from this case that someone’s done just that.
It did though bring back memories of my legal training many years ago now. I was fortunate to do my apprenticeship, as it was in those days, with a leading criminal lawyer in Glasgow. Like Gordon Jackson, my tutor was talented but thoroughly proper. He taught me about the duty to challenge.
Not every witness, let alone every accused, tells the truth. A lawyer has an obligation to put their client’s case but sometimes has to challenge their client. I well recall seeing my mentor heatedly telling an accused that his defence that the complainer simply fell upon the knife was impossible. Medical evidence clearly indicating that, given height differences and the nature of the wound, the victim would’ve had to leap up and literally impale himself.
This was necessary and it was right. That would have been the rigorous cross-examination by the prosecution. In any event, there’s a defence and there’s simply wasting the court’s time.
That said, a lawyer can never be judge and jury as even cases that look overwhelming can turn out differently. I well recall telling a young man charged with robbery that he looked “bang to rights” as they say. He’d a record for it and the eyewitness evidence seemed clear.
But still he protested his innocence and so, despite my advice that it might go easier if he pled guilty, we proceeded to trial. As it was, witnesses immediately acknowledged that certain identifications of the accused were in fact mistaken. That was also a salutary lesson for me.
Support and sympathy
So, it has to be a matter of balance but it’s why there’s still a duty to challenge not just the accused but the accusers. For sure we badly needed to move on from a society where agencies routinely treated victims as criminals themselves. Where allegations were doubted, and the treatment given was almost threatening.
Many cases, especially sexual ones, are deeply traumatic, and the victim needs support and sympathy. Thankfully, we’ve moved on from those days and that was badly needed. It discouraged folk coming forward and put them through a further ordeal.
But there can come a time when, frankly, the evidence just doesn’t stack up. That can be in the defence being put forward or in the allegations being made. The latter’s rare but it does happen. In my legal career, I did experience it and though almost invariably there was a mental health issue, it was equally traumatic for the accused. Some of the alleged crimes were extremely serious and the consequences would have been severe for the accused if convicted.
So, there’s a duty to challenge once evidence comes to light or issues arise that aren’t consistent.
‘Tainted by apparent bias’
It was something that applied just as much in civil law. If the facts weren’t supported by the evidence, there was a duty to challenge. Some lawyers, thankfully just a few, who took the line of “my client says” and continued on regardless of the facts were infuriating. They did everyone a disservice including, ultimately, they’re own client. In many ways, it was easier in civil cases given the invariably less serious consequences for the client but there was still that duty, on some occasions, to get them to moderate their behaviour, position or demands.
On other occasions where they refused, I withdrew from acting for them, stating that I had a professional reputation, never mind a wider duty to the court. Most lawyers acted likewise and so it continues to this day. I believe that’s what happened in the Salmond civil case in which the judge found the Scottish Government’s investigation of the complaints against him had been “unlawful”, “unfair” and “tainted by apparent bias”. The suggestion that seems to be made by some that once an accusation is made it requires to be treated as the Gospel truth ever after is absurd and deeply damaging.
For sure, the complaint and complainer need to be accepted and supported at the outset. But where it all begins to unravel or not stack up then there’s a duty to challenge.
Moreover, just because a crime is sexual in nature and requires even greater sensitivity in investigation doesn’t mean that the prosecution’s case is beyond reproach thereafter. The accused has rights as well as there being a wider public interest.
Kenny MacAskill is the SNP MP for East Lothian