Lord Advocate is accused of 'undermining the judiciary'...
SCOTLAND'S most senior judge yesterday launched an unprecedented attack on the Lord Advocate, accusing the country's top prosecutor of undermining the independence of the judiciary in the wake of the World's End trial collapse.
The Lord Justice General, Lord Hamilton, rounded on Elish Angiolini, saying a detailed statement she gave to parliament on the handling of the case was "inappropriate" and disrespectful to the trial judge, Lord Clarke.
His comments - which came in a letter that was made public - triggered an open spat between Scotland's two most important legal figures, with Ms Angiolini issuing a public written reply defending the outspoken comments she made to MSPs, and forcefully rejecting any suggestion she had been disrespectful.
The row has triggered a debate about how much public comment should be made about judges, within a legal establishment that is highly protective of its centuries-old principles.
The sacrosanct nature of judicial decisions is founded on the principle that courts should be completely independent, and free from undue influence by the prosecution and/or politicians, when dispensing justice. It is a principle reflected in the continued existence of the offence of publicly criticising, or "murmuring", a judge, or for jurors to openly discuss their deliberations after they reach a verdict.
Such a clear separation of powers within the justice system is distinct from other countries such as the United States, where discussion of ongoing court cases is far less restricted.
The seeds of the row were sown last month in the World's End murder trial when Lord Clarke threw out the case against Angus Sinclair, ruling there was not enough evidence for the jury to reach a verdict.
Following a public outcry over the prosecution's handling of the case, Ms Angiolini took the unusual step of delivering a statement to MSPs in which she insisted there had been a strong enough case to put to the jury. If she had the legal right to do so, the Lord Advocate added, she would appeal against the decision by the trial judge to throw out the case.
It was these comments that led Lord Hamilton to issue an open letter to Ms Angiolini, in which he wrote: "It is clear that you were, as Lord Advocate, stating to the Parliament that in your 'clear' opinion there was sufficient evidence to go to jury.
"The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong."
He went on: "I am concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).
"Public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate."
The shock collapse of the trial led to calls by politicians for a public inquiry.
Many raised concerns that advocate-depute Alan Mackay had not led all the available evidence during the case. Mr Mackay failed to turn up to court to hear Lord Clarke's decision and has not returned to work since.
Ms Angiolini later hit back at the senior judge, saying her words were carefully chosen and reflected on the Crown's, and not the judge's, decision-making.
In a written reply to Lord Hamilton, she added: "I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances."
Last night one constitutional expert said Ms Angiolini had been right to make her statement.
Colin Munro, professor of constitutional law at Edinburgh University, said: "Parliament and the general public are naturally interested in the prosecution of serious crimes, whether justice has been done, and if not, why not.
"The independence of the judiciary is an important principle, but the concept should not be stretched so far as to shield judges from all discussion of their actions, especially nowadays when judges decide on human rights laws or express their views on a DNA register or on constitutional reforms.
"It sometimes used to be said that criticism of judges was wrong because they had no opportunity to answer back, but as this particular instance shows in one way, that is not entirely the case."
First Minister Alex Salmond has said that Ms Angiolini was "absolutely right" to make her statement in parliament.
Full account had to be given - and there was no attack on judge
NO-ONE has argued more passionately than I in defence of the independence of the judiciary. So I take very seriously the assertion by the Lord Justice General in a letter to the Lord Advocate that, in making a statement to parliament on the World's End murder trial, she acted in a way that posed a threat to that independence. In my considered opinion, the Lord Justice General is wrong.
Leaving aside my personal view, I refer to a new report by the House of Lords Select Committee, Relations between the executive, the judiciary and parliament. The committee comprises a former Lord Chief Justice, two former Attorney-Generals and many experienced constitutional experts. They addressed the problem of frictions arising because the then home secretary and prime minister publicly criticised court judgments.
The report says: "The second aspect of defending the independence of the judiciary was dealing with ministers who attack individual judges. Lord Falconer (then Lord Chancellor) explained how this duty applied to the question of ministers commenting on individual cases: 'If you disagree with a decision, say what you are going to do; if you are going to appeal, say you will appeal; if you are going to change the law, say you will change the law. If you cannot appeal and cannot change the law then my advice would be to keep quiet...'"
The committee then said: "Therefore, it is acceptable for ministers to comment on individual cases, but, as Lord Falconer told us, 'what is objectionable... is something which expressly or impliedly says that there is something wrong with these judges for reaching this conclusion'. Lord Lloyd of Berwick agreed, saying: 'What I think is intolerable... is a personal attack on judges'."
I agree entirely. Ministers should not publicly criticise judges on any personal basis. They can, and sometimes should, criticise decisions. When they do, they should, if the law allows, appeal the decision or ask parliament to change the law.
I have studied the Lord Advocate's statement. I believe she had no choice but to make a full statement, following the shocking collapse of such a high-profile case. She could not "keep quiet". She said, "given the extent of misunderstandings about the case and the Crown's approach, I feel I have to set the record straight about the Crown's understanding of the case and the evidence made available to the court." She did precisely that. She did not criticise the judge. There was no personal attack. She just explained her conclusion that the evidence was sufficient, from which it followed that the judge was mistaken in holding that it "insufficient in law".
She described the judge's decision as "final". The Lord Justice General refers to that, saying it follows that she should not have made her statement.
But the decision is "final", only in the sense the Crown cannot, by successfully appealing, get the case back on the rails and resume the prosecution. However, as everyone accepts, there can be a "Lord Advocate's Reference" to have the legal decision reconsidered by Appeal Court judges.
Those senior judges would give a definitive ruling between the two conflicting views as to the legal sufficiency of the evidence.
The Lord Advocate can still refer the decision: I repeat my advice to her to do so. Not only is the question itself seen by the public to be important: the public differences between the Lord Advocate and the Lord Justice General make it essential the matter be taken for resolution to the High Court.
In addition to the obvious, legitimate public interest in reviewing the unexpected ruling, a reference would, especially if the Crown's view prevailed, provide a sound basis on which to consider possible reforms, such as abolishing the alien "No case to answer" procedure, or giving the Crown a right to an effective appeal against an adverse ruling. It would also give Appeal Court judges an extremely valuable opportunity to provide guidance to trial judges sitting alone in such tragic cases, where murder has silenced the victims.
TOP LAWYER WITH A CARING TOUCH AND A ZEAL FOR REFORM
ELISH Angiolini became the first female Lord Advocate when she was appointed to the role almost exactly a year ago.
A coalman's daughter from Govan, Glasgow, she is also notable for her down-to-earth, personable manner.
Ms Angiolini, 47, was very much a surprise choice when, in 2001, Jack McConnell, the then first minister, gave her a leading role in reforming Scotland's ailing prosecution service.
She completed several firsts in being appointed Solicitor-General for Scotland. She was also the first solicitor, as opposed to an advocate, to take the office, and the first person from the procurator-fiscal service to be promoted to number two in the prosecution service.
Ms Angiolini was also the first solicitor to have the letters QC after her name; only advocates had previously "taken silk" to become a Queen's counsel.
Educated at Notre Dame High School, Glasgow, and Strathclyde University, Mrs Angiolini had served as a prosecutor in Airdrie and Glasgow and held senior positions in the Crown Office, where she advised on the implications of the European Convention on Human Rights and drew up a blueprint for a victim-liaison scheme. Later, she became regional procurator-fiscal for Grampian, Highlands and Islands, based in Aberdeen.
Mr McConnell hailed her as a "quality lawyer" with a "track record of putting victims and ordinary people first".
Ms Angiolini has always paid tribute to her husband, Domenico, who gave up work as a hairdresser to allow his wife to further her career.
She once remarked that, in spite of shortcomings, Scotland had the best prosecution service in the world.
• The Lord Advocate, assisted by the Solicitor-General, heads the country's system of criminal prosecution and leads the investigation of deaths.
It is also her job to provide legal advice to ministers, a role that has attracted controversy amid claims that she may be susceptible to political interference, causing the clear distinction between politics and law to become murky. As a result, the SNP government decided after May's election that the Lord Advocate should only attend cabinet meetings when legal advice was needed.
'AN INDIVIDUAL OF SUBSTANCE AND INTEGRITY'
LORD Hamilton, the most senior judge in Scotland, has enjoyed a distinguished career spanning 40 years.
But he had been regarded as an outsider in the race for the post of Lord President and Lord Justice General.
Born in Glasgow, the 65-year-old studied at Glasgow, Oxford and Edinburgh universities. In 1968, only a year after completing his studies, Arthur Hamilton was admitted to the Faculty of Advocates. He "took the silk" to become a QC 14 years later.
As an advocate depute between 1982 and 1985, he was responsible for prosecuting some of the most serious criminal cases. He has also held the posts of chairman of the Medical Appeals Tribunals and president of the Pensions Appeal Tribunal. Over several months in 1992-93, he acted as a temporary Sheriff Principal in Tayside, Central and Fife, while he also served as an appeal judge in Jersey and Guernsey.
In 1995, he rose to become a Senator of the College of Justice and between 1997 and 2000 was a full-time commercial judge. In 2005, he was appointed to his present role. The then first minister, Jack McConnell, said:
"He is an individual of substance and integrity and will lead Scotland's judiciary with independence and distinction."
• The Lord President is the head of the Court of Session and, as Lord Justice General, head of the High Court of Justiciary.
He routinely presides in these courts, dealing mainly with appeals. In addition to his judicial duties, the Lord President has general supervision over all the business of the Court of Session and the High Court, and is responsible for the policy governing these courts and the judges.
He makes appointments to certain tribunals sitting in Scotland and, as Lord Justice General, recommends on whom the rank of Queen's Counsel might be conferred.
As the most senior judge in Scotland, the Lord President is routinely consulted on a wide range of matters concerning the law and the legal system, and he deals with communications and consultations with the heads of foreign and Commonwealth judiciaries.
The Prime Minister makes a recommendation to the Queen on the position of Lord President, but may not recommend any person who has not been nominated by the First Minister.