What’s truly interesting, and significant, about the anxious ferment surrounding the comments of Gordon Jackson, QC, is its thinly disguised sub-text. What we see, in fact, is a frenzy by the usual interest-groups because a Scottish jury had the temerity to acquit someone accused of sexual crime. That coupled with the absurd proposition that a defence lawyer is to be monstered for winning a case.
On the basis, solely, of one phrase – the full context of which is not known – the entire case strategy of a senior defence counsel, of peerless ability and impeccable reputation, is dismissed as “a complete disgrace”. The same interested commentator calls, to the surprise of no-one and not for the first time, for “an urgent overhaul of how these cases are dealt with”.
The direction of travel here is already a cause for serious concern. Since 1995 severe and debilitating restrictions have been placed on the extent to which defence counsel can actually do their job, a critical and entirely reasonable aspect of which is to test the credibility of complainer testimony. Evidence which undermines that credibility is routinely kept from juries, who are not permitted to know of its existence. This is not to the advantage of a person accused. It commonly results in juries being asked to return verdicts in ignorance of important, and entirely relevant, information.
Following on the recent introduction of “vulnerable witness” measures, complainers of sexual crime are deemed to be victims of crime. The inevitable inference, where there’s a “victim”, that there must have been a crime. This is the basis on which today, in Scotland, people are convicted of crimes that were never committed.
Where the most visible, and vociferous, reaction to an acquittal is sympathy for the accuser – and Mr Salmond’s is by no means an isolated example – then there is something seriously wrong with our expectation of our justice system.
The paradox is stark. The burden of proving guilt lies on the prosecution, and the test is, or at least should be, high. This is one of the fundamental protections of the rights of the individual in which we claim to take justified pride. And yet when a prosecution fails to meet that test, where an accused is afforded that fundamental protection, this is portrayed as a failure of the system. “Fault” is found and, with increasing regularity, placed firmly at the feet of the jury. This is particularly so where the verdict returned is one of “not proven”. We are asked to believe, with no evidential support for either proposition, that juries “don’t understand” their function, or that they are indulging in victim-blaming.
A developing, and similarly worrying, trend is in the use of the civil courts to “correct” these errors by their criminal counterparts. Consider the case of Stephen Coxen. Acquitted by a jury of the charge of rape, he was nevertheless branded “rapist” by a civil court, and ordered to pay damages – you might call it a fine – of £80,000.
There is a sinister, and growing, drumbeat: when a jury acquits of a sexual offence, they got it wrong.
If we allow this to continue unchallenged, if this attitude is permitted to become entrenched, then justice itself will be the first casualty. Closely followed by the numerous victims of its inevitable and ongoing miscarriages.