Open letter to the Scottish Judicial Triumvirate.
You each lead a part of the Justice System of Scotland. Mr Jackson QC as Dean of Faculty of Advocates, Lord Wolffe as Lord Advocate, Head of COPFS and Lord President as Head of the Judiciary. Therefore, I believe you are in the best position to answer my questions.
Mr Jackson QC – Is it not the duty of a defence barrister to do all in his power to ensure a fair hearing for his client? I have read your views on barristers being accused of defective defence and appreciate that people should be able to make mistakes without it being detrimental to their career. However, they should also learn from those mistakes to ensure they don’t happen again and to do so they must first acknowledge their mistakes to themselves, own them, then move on having learned a valuable lesson. It seems to me that continually denying mistakes, claiming that you made your decision in the best interests of your client (which appears to be all it takes to stop a complaint in its tracks) isn’t teaching anyone anything. When senior counsel adopts this attitude, it carries on to those they mentor who learn to care more about their reputation than gaining justice for those they serve. I know, and you know that you made a huge mistake in defence of my son at his appeal, you should have the integrity to accept this mistake and set an example to those who will follow you.
Lord Wolffe – How is it possible that one of your Advocate Deputes can encourage someone to lie in evidence? It is part of your duty to disclose all evidence, that may help the defence. In this case the defence disclosed this evidence to you, it consisted of 500 or so pages of Facebook postings. These postings made clear that your witness, the complainer, had lied at trial and having seen only a small portion of these the sifting judge granted us an appeal. Unfortunately, at the appeal the defence didn’t submit all the postings as they promised and didn’t properly get to grips with those they did submit but- is it really the job of the prosecution to take advantage of a mistake by the defence and use it to enable their witness to lie again just to maintain their conviction target? The witness has now lied under oath on three occasions – at trial, in an affidavit and in the appeal court and yet because your office encouraged this deception the witness was deemed credible. What is the point of an oath if it is acceptable to lie? We might as well do away with the trial and go straight to jail. Perjury is supposed to be a very serious crime so why do you encourage it? Perhaps you too could own your mistake and investigate what occurred at my son’s appeal.
Lord President- I believe you too take an oath in which you promise “to do right to all manner of people……without fear or favour”. Clearly, judges do not like to overturn the decision of a jury, but when that decision is made “in ignorance” without all the facts then surely it is only fair to consider those facts and act fairly. Both the prosecution and defence should be allowed to put their case before the court equally.
How, when the above is considered can the following be fair?
In his summing up Gordon Jackson QC stated he was going to quote from another judge, he began “one lie is enough” and suddenly, while presiding over the highest court in the land, Lord Menzies said “can I interrupt you, Mr Jackson, to ask an unrelated question?” he then appeared to fumble over said question then having got his answer from Mr Jackson said “thank you, we will move on to the sentencing appeal now”. Mr Jackson never got to read his quote, so fortuitously for the judges they didn’t have to address it in their decision and explain why they didn’t agree with their eminent colleague. Again, there seems to be little point in complaining because the response is – you can’t complain about that, the judge can run his court in whatever way he wants.
You argue that the oath you take puts you above reproach, it guarantees the public that you will be impartial, without fear or favour. If you hold yourselves to such high standards, then shouldn’t you also expect the same of those who appear before you and swear an oath. You should, but I fear you don’t, lying under oath doesn’t appear to matter.
It perhaps doesn’t happen very often, but in this instance, it appears that you are all on the same side. For a long time, I believed that Mr Jackson was distracted by Lord Menzies question and so didn’t return to his quote but after everything I have experienced since, I now question whether a man of his experience really wouldn’t know what was happening. I later asked him for a reference for the quote and guess what? – he couldn’t remember! I’m sure it would have been quite a simple task to ask one of his staff to retrieve his notes from wherever they are stored, though I don’t really think that should have been necessary, it must be an often used quote, certainly the judges recognised it.