As the European Convention on Human Rights seeps into the consciousness of the Scottish legal system, sceptical citizens could be forgiven for being less than enthusiastic about their new-found human rights.
Reports of murder suspects being released on bail and suggestions that challenges brought under the terms of the Convention could well prevent attempts by the Scottish Executive to plug the so-called loophole which allowed the release or psychiatric patient Noel Ruddle from Carstairs have ensured that the public’s introduction to the Convention is largely by way of hostile afterthought in newspaper scare stories.
Chairman of the Scottish Human Rights Centre, Edinburgh-based criminal court solicitor John Scott, insists that tainted media coverage has fostered a misleading impression of the circumstances leading to Ruddle’s release in the same way as sex offenders are routinely demonised.
“The media will have to behave responsibly. Members of the public still think monsters exist and tabloids are only too willing to provide such images. There is no proper understanding of what the dangers are. Indeed there are some psychiatrists who believe there is no such thing as a psychopath, but that is never reported.
“Lord MacLean’s Committee is looking at this area already and must be allowed to do so properly. We need a proper definition of dangerousness and a suitable range of options to deal with psychiatric patients. What the Convention requires is the right to a review of any detention. Any proposals which ignore that will fail a legal challenge.
“If legislation is enacted without detailed analysis and people are kept in who should be released, then that is as great a sin as releasing someone who should be kept in detention. Care should be taken with the new ‘science’ of risk assessment.
“The Ruddle case has been badly handled. I don’t say that he should have been released, but Sheriff John Douglas Allan is extremely knowledgeable in these cases and considered the evidence and the law carefully. It’s certainly not a situation calling for knee-jerk legislation.”
Emergency legislation, per se, won’t necessarily always be contrary to the Convention, but is, according to John Scott, “almost never satisfactory”.
“That which caters for tabloid headlines almost never works. Drafting problems don’t become apparent until tested in courts.”
Certainly this accords with Lord Hope’s suggestion in July that “legislation passed as an immediate response to a sudden rise in criminal activity or to some outrage such as Dunblane” would be particularly vulnerable to judicial review in being contrary to the Convention.
Indeed, many of the Human Rights Centre’s long-standing demands now have widespread support, particularly the need for an independent police complaints commission, which is now regularly mooted in the wake of the inquiry into the police handling of the Stephen Lawrence case.
Similarly, concerns about a burgeoning prison population and the contracting of diseases in prisons is now part of mainstream liberal thinking, though John Scott does emphasise that in representing human rights they have strong links with organisations such as Victim Support, offsetting to some extent their image as an offenders’ organisation.
The organisation also fulfils an educational role, speaking to institutions like the police college. “They were surprisingly receptive to my speech on ethics. As a whole we have been busier than ever explaining the implications of the Scotland Act, though the majority of people won’t be affected until October next year.”
The partner in Edinburgh firm Gilfedder & McInnes rejects any notion that the Convention will lead to an opening of the floodgates and create procedural chaos in the criminal justice system. “In most respects the Scottish system’s safeguards are compatible and will pass tests for fairness.
“The temporary sheriffs matter will have to be resolved. The need for a judicial appointments board is clear, and is the best way for the public to be confident that the system is independent and impartial.”
Also high on the Centre’s agenda is improving police procedure in relation to Section 14 (of the Criminal Procedure Act) detentions. “Where police have six hours to question a suspect it should be standard practice for solicitors to be allowed access.
“Suspects often don’t understand the words of the caution, not realising that they don’t need to say anything. What are the police frightened of if they admit a solicitor?”
Reports have suggested that the incorporation of the Convention is likely to lead to an increased workload for already stressed fiscals. Does he have any sympathy for this added burden placed on fellow lawyers?
“There is a dramatic underfunding of the fiscal service. There are too few fiscals, not enough resources and the result is that the fiscals are under increasing pressure. Cases are often badly marked, and either not proceeded with or are brought at the wrong level. These wrong decisions aren’t being made because of incompetence, but pressure of work.
“The system is letting victims down and the Lord Advocate should be joining with us in saying the system is underfunded. The problem for him in doing so lies with the incompatibility of his dual roles as head of the prosecution service and a member of the Executive.
“Fiscals have recently undergone training to aid their understanding of the workings of the Convention. But on a political level it’s matter of embarrassment that prevents them from acknowledging the problem. If they admitted they were under-funded, support would be forthcoming from across the legal profession.”
The Convention might also form the basis to a challenge to mandatory life sentences for murder. “Murder shouldn’t be a special category where the judge can’t exercise judicial discretion and look at the background circumstances.
“What we’re trying to do is tap into people’s New Testament side, rather than the Old. The lynch mob is never too far away, but with issues such as the suicides at Cornton Vale, people were outraged at the scandal and it attracted overwhelming public sympathy.
“We shouldn’t have sacred cows dictated by the tabloids or by people who aren’t aware of the implications. If you can get accurate information across to people, studies have shown they can often be more lenient than judges. When the public sits on juries they take their responsibilities very seriously and more often than not when in possession of the facts get it spot on.”
A recurring theme is his desire for a more enlightened approach to the treatment of sex offenders. “There is often a refusal to accept they have any rights at all. The trend for divulging the address of sex offenders will only result in an increase to public danger. They will disappear. I’ve met a lot of parents of victims of sex offenders and it’s difficult to say to them they shouldn’t have the right to know. But if we publish only their details and think that solves the problem, a false sense of security can arise, when often the threat is from other family members.”
Despite a ready willingness to espouse his view on a variety of contentious topics, John Scott is aware of the limitations of both the Human Rights Centre and the Convention. He admits that notions such as the opening proclamation of the Scottish Declaration of Human Rights which “recognises that all of us possess inalienable human rights by dint of our humanity and that what it means to be human is to be placed at the centre of development of society” is meaningless for someone in poverty who can scarcely afford to eat. Then there is the argument that the 50-year-old Convention is itself no longer entirely relevant for modern society.
“The Convention is the absolute floor, we should be reaching way beyond that. In fundamental ways we are behind countries that we would regard as backward in a human rights sense. What is proposed, for example, as a Freedom of Information Bill is a wishy-washy, non-enforceable idea which will make the position worse than it was before. Hopefully the proposals from the Scottish Executive will be more robust.”
He agrees there could be scope for specialisation for solicitors in the field of human rights. “There will be lots to do on that front. At the moment there’s such thing as a stand-alone right to privacy. Organisations like police and local authorities have a bit of learning to do. There might also be scope for criminal lawyers to look at judicial review”.
John Scott is optimistic that the Convention and the Parliament can help herald a new era for Scots Law. “It’s a good time to be a Scots lawyer. There is an opportunity for renaissance in our legal system. Scottish links with the Continent have existed for a long time, now through the Convention we can look to Europe and beyond for a shared idea as to how the law in civilised countries should proceed. We will be able make reference to research carried out and quote cases from German or Scandinavian jurisprudence and generally use more information to get better decisions out of the courts.
“Scotland has sat back on its laurels for too long. Corroboration is unrecognisable from what it once meant. We need to adopt internationally recognised minimum standards and become familiar with the law throughout the world, and that’s a good thing. I’m proud to be a Scots lawyer, there’s a great history to our legal system and there are aspects rightly looked at with envy round the world. But it’s not as good as it was or it should be. With the Scottish Parliament, if it throws off the Westminster legacy, there now exists an opportunity for change. If we make a mess of it now we will all have to take responsibility”.
So how will he measure the change as both a solicitor and human rights campaigner?
“I would like to see a change in the sort of complaints I hear. In particular I’m concerned about our treatment of children in the court system; the implications of Strasbourg’s decision in the case of the boys who murdered James Bulger will be felt throughout Europe”.
As the Scottish justice system, reluctantly on some fronts, learns to adapt to the changes the Convention has wrought, John Scott is disarmingly credulous in suggesting “it would be nice for people to embrace the Convention because it is the right thing to do”.