Who shall guard the guards themselves?
No country can maintain a “rule of law” society if its people do not respect the laws. Most of us would consider this to be a self-evident truth, to borrow a phrase from the United States Declaration of Independence. Which is appropriate, since I borrowed the statement from the website of the American Bar Association. There, it is employed as the opening sentence in an analysis of the concept of the “rule of law”. Over there, as over here, the rule of law has long been recognised as the foundation of a fair and just society. Our politicians never tire of venerating it. They do so, generally, in a more narrow context as the foundation of our criminal justice system.
It works like this. We, as citizens, enter into a contract with the state. For the common good, we agree to be subject to the laws of the land, and to obey those laws. We cede, to the state, wide-ranging and often draconian powers to restrain and punish us, should we fail to make good on that agreement. We are, thus, subject to the rule of law by consent. In return, we require that the powers of the state are exercised within defined parameters. The laws to which we are subject must be publicly promulgated, equally enforced, independently adjudicated and consistent with our human rights. The laws must apply equally to those who make and enforce them as to the rest of us. And their application must be reasonable, and fair. The scope of the law – of which the criminal law is but one part – is such that it touches almost every aspect of our lives. This contract between citizen and state is at the heart of our democracy. It is at the heart of our democracy because its observance by both parties is, simply, fundamental to the stability of our society.
The powers of citizen and state are, of course, unequal. Also unequal, however, are the consequences of a breach of the contract by citizen or by state. For this reason, the responsibility on the state to honour its side of the bargain is a heavy one. The individual citizen who transgresses will be restrained, and punished. But what if the transgressor is the state itself? The stakes, here, are higher than restraint and punishment. For if the state fails, or refuses, to meet its obligations then how, the question goes, are we to expect others to meet theirs?
This question has of course been met, and sidestepped, before now. Lord Denning and his appalling “appalling vista” proposition come to mind. Denning was dealing, in 1980, with a civil claim by the still-incarcerated Birmingham Six against the West Midlands Police, concerning the brutal extraction by the police of false confessions that had led to their conviction. He dismissed the claim in these terms:
Just consider the course of events if their action were to proceed to trial…If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous…That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.””
Events, as we know, finally vindicated the Birmingham Six. As they did the Guildford Four. As they did the Maguire Seven. To name but seventeen. Denning’s approach was however starkly illustrative of the prevailing approach by the institutions of the state, then as now, to their own culpability. Just don’t ask the question.
The lessons of that dark period have been learned, we’re told. If they had been learned, then that might have provided some comfort to Paddy Hill, to Gerry Conlon, to Annie Maguire and to those others who suffered with them long years of pain and torment both inside and outside Her Majesty’s prisons. The suffering continues. And so, it is clear, does the myopic, “don’t ask the question” approach articulated by Lord Denning in 1980.
In August this year, Gerry Moynihan QC stood before the Court of Session and made, on behalf of the Crown Office, an admission that should, simply, be inconceivable. The former Lord Advocate, Frank (now Lord) Mulholland, had acted unlawfully in pursuing, against two individuals, prosecutions that were malicious and without probable cause. This month, Mr Moynihan again stood before the Court of Session and admitted that a third prosecution, against another individual, had been similarly malicious and, indeed, that there had “never been objective probable cause.”
The immediate consequences of this are likely to be severe. The wrongfully prosecuted individuals will be compensated, from the public purse, to the tune of tens of millions of pounds. Claims are proceeding against the Lord Advocate and the police, and significant interim payments have already been awarded.
But it is the wider implications that are most concerning. I do not know to what extent the former Lord Advocate was personally involved in the decisions to prosecute the individuals concerned. But it surely doesn’t matter. The Lord Advocate is Scotland’s senior legal officer. He represents the state in deciding who is prosecuted, and for what. The Lord Advocate is the person in whom is vested society’s trust for the state’s obligations under that contract I mentioned. It is hugely significant that we entrust to the Lord Advocate the judgement as to what is, and what is not, in the public interest. Prosecutions in Scotland run in his name. The groundless charges in these cases were pursued not by mistake, but knowingly, and through malice. A more egregious betrayal of the founding principles of our very democracy I struggle to imagine.
The response of the legal community has been, largely, silence. I can only assume that that is stunned silence. To those, like the lawyers, schooled in the workings of our constitution, what has happened here is truly astonishing.
We are in danger of losing our capacity to be astonished by astonishing events. To see why, we need only look at this particular episode against the backdrop of other, recent, developments. A Westminster Government has promoted legislation that, by its own admission, breaches our international legal obligations. That these obligations exist in the context of something as important as the “Good Friday” Belfast Agreement of 1998, which brought peace to the Island of Ireland, simply amplifies the seriousness of this. This Government “justifies” this legislation by explaining that it breaches the law only in “limited and specific” ways. A Prime Minister and a Home Secretary of the United Kingdom openly condemn lawyers for seeking to uphold the law. A Justice Secretary and Lord Chancellor of the United Kingdom pointedly declines to defend judges against the charge of being “enemies of the people”. And now, we learn that a Scottish Lord Advocate abused his office by pursuing prosecutions based on malice. Not once. Three times.
Who takes responsibility for this? The Scottish Government? The Scottish Parliament?
The Lord Advocate is notionally independent of the Scottish Government. Whether he is truly independent of the Government is a matter of some debate and, in the current circumstances, little import. He is the principal legal adviser to the Government, and he represents the Government in civil proceedings. He is, simply put, the Government’s man in the justice system. The Government, in any event, has a clear and obvious duty to preserve the proper, democratic, administration of justice. What does our Government say about this outrage?
The silence is deafening.
It is the responsibility of our Parliament to hold the our Government to account. It must now do so. The limited response of the legal establishment, thus far, has been to focus on the reputational aspects of this shocking episode. It has been described as “a shameful milestone in the legal history of this nation”, “a shameful episode in the history of the prosecution services in Scotland” and “nothing short of a disgrace”. That it is all of these things is beyond dispute. But the implications of this go further, much further, than mere recrimination can address. The arrogant abuse of power, and of trust, cannot be cured by PR. Proper inquiry must be made into how, and why, and by whom, this was allowed to happen. Because if we simply shrug our shoulders, we tacitly accept that our contract with the state is meaningless, and that the power of the state is unlimited. Among the many consequences of that, our workload at MOJO is going to get heavier.