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MSP says Justice system must be ‘open & representative’ as QC Paul McBride calls for reform of jury selection, tests & declarations for jurors

Top QC Paul McBride calls for jurors to sit tests to establish their suitability to be on a jury. REFORM of the current system of juror selection is a must if their verdicts are to be respected, says top Scots QC Paul McBride who believes jurors should be made to sit tests to establish their suitability for sitting on juries in Scotland’s courts. Mr McBride’s remarks come after the puzzling verdict in the Neil Lennon assault case, where a Hearts fan was acquitted of a sectarian assault after the jury removed the reference to making a sectarian remark from the charge relating to breach of the peace, and returned a not proven verdict for ‘aggravated by religious prejudice charge’.

Currently, the only requirements for people to serve on a jury in a Scottish Court are that they be over 18, be registered to vote and have lived in the UK for at least five years. However, the perception these requirements are somewhat lacking has been considered & debated for some time by leading law figures & observers of the way the courts operate, although many of those attending courts have observed over the years there are significant problems throughout the entire courts system from the judiciary down, not just with how juries are selected.

Scottish Justice in the dock as QC calls for juries to be reformed : Paul McBride QC on Neil Lennon Celtic v Hearts assault verdict (click image to watch video)

Mr McBride, speaking to the Herald newspaper, said he would like to see jurors be required to disclose their employment and whether they have been a victim of crime. The Herald reported : “This is an area that lawyers have been discussing for some time. Judges and lawyers undergo a high standard of training. The only area where there is no scrutiny at all on the people who actually make the decision, which is baffling. “You don’t have to be able to read or write or speak English. “We have got 15 people deciding whether a person is guilty and we know nothing about them.”

Mr McBride continued : “In Scotland, unlike any other country on the planet, a person can be convicted by one vote. Following the Lennon verdict a lot of people, and newspapers were asking about the selection process for juries. In every other country there is some kind of jury selection process to determine whether they have got the basic skills and whether they have committed a crime. A lot of trials are conducted by police statements. If a member of the jury can’t read or speak English that’s a bit of a disadvantage.”

It is noteworthy these calls for jury reform have only re-entered the arena of public debate after a case involving sectarian charges pursued by the Crown Office against a Football fan were found not proven by a jury, while coincidentally, the Scottish Government are pursing legislation in the form of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill which it is claimed, will give the Police more powers to deal with sectarian offences and threatening behaviour. Scottish Law  Reporter covers the issue in more detail HERE.

However, legal observers note there are arguably many more problems in the justice system relating to sectarianism than solely with jurors who might not manage a verdict which happens to be favourable to current legislative plans. Earlier this year, Scottish Law Reporter featured coverage on a report which the Scottish Parliament’s Petitions Committee had debated whether to publish or keep secret, academics had established there was evidence to suggest the courts system itself was sectarian due to studies on sentencing statistics involving religious minorities. The report, by Dr Susan Wiltshire of the University of Glasgow can be read online or downloaded here : OFFENDER DEMOGRAPHICS AND SENTENCING PATTERNS IN SCOTLAND AND THE UK and readers can draw their own conclusions.

John lamontJohn Lamont MSP, Scottish Conservative. Asked for comment on Mr McBride’s calls for jury reform, John Lamont MSP, the Scottish Conservative’s Justice spokesman said : “Jurors have a vital place within our justice system and it is important that we take the greatest care in choosing them. The idea of having more detailed information to help select juries is worthy of further consideration.”

Mr Lamont continued : “However, we must not undermine the principle behind trials by jury. We need to ensure that the privacy and impartiality of juries is maintained as they must always continue to represent all sectors of society if they are to provide a balanced judgement. The right to jury trial ensures that one class of people don’t sit in judgment over another. The public must have confidence in an open and representative justice system.”

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Racist murders in the East, Sectarian letter bombs & deaths in the West : Are Scotland’s Crown Office & Police institutionally out of touch with Scots society ?

Crown OfficeDoes the Crown Office have the will to investigate racist or sectarian crimes in Scotland? IN a country where the authorities appear to avoid investigating murders as racially, or even religiously provoked at all costs, and where members of religious or racial minorities are, according to academics, statistically more likely to be jailed by an apparently prejudiced justice system, it comes as no surprise that over a decade after the racially motivated murder of Surjit Singh Chhokar, there are now new calls for an inquiry into how the Crown Office and now, Lothian & Borders Police, avoided investigating the murder of a Chinese man from Edinburgh, Simon San in August 2010 as a racially motivated crime.

In a statement released by Lothian & Borders Police, the Deputy Chief Constable Steve Allen has apologised to the family of Mr San for not investigating the murder as a racist incident.

Simon San was attacked whilst at work in the Lochend area of Edinburgh in August 2010. He suffered injuries from which he died and Lothian and Borders Police launched a murder inquiry. Four young men were quickly identified and subsequently appeared in court.

The prosecution of those involved in the death of Mr San earlier this year saw the conviction of a 16 year old youth, John Reid, who admitted the culpable homicide of Mr San and was sentenced to five years for the killing. Two other 16-year-olds pleaded guilty to assault charges in connection with the case, however in April, Michael Roberts, had his original 42-month sentence cut to 26 months and Keir Rodger had his 34-month term cut to 24 months by appeal judges. A 14-year-old, who cannot be identified, who also faced an assault charge in connection with the death of Mr San, had his not guilty plea accepted by the Crown but admitted breaching bail conditions.

According to the statement released by Lothian & Borders Police, Mr San’s family made a number of complaints about the police response and an internal investigation was undertaken. This investigation, which was known as Operation Waymark, is now completed. The San family has been involved throughout and the report has been discussed with them.

Lothian & Borders Police Deputy Chief Constable Steve Allen said: “There is no doubt that Simon’s family have not had the service from my force that we would hope to give any family or any victim of crime. I have apologised privately to the family for that failure and would like to repeat that apology publicly.”

Mr Allen also apologised on behalf of the organisation for not listening to the family when they said they thought the attack was racially motivated; for not making them feel that their views mattered, and for not recording and investigating the attack on Simon as a racist incident.

He added: “We said that Simon was in the wrong place at the wrong time. He was not. Simon was at his place of work in a city that was his home. He was playing his part as an active member of our community, contributing through work to the economic success of this city. Simon was a fellow citizen who was killed tragically and pointlessly.”

The force is committed to learning from Operation Waymark and is now more alert to the needs and perception of family members. It has already taken steps to review its management of critical incidents and is refreshing guidance and training given to all officers and police staff in relation to identifying when a hate crime has occurred. The DCC has also spoken individually to all officers and police staff mentioned in the complaint.

Mr San’s family have been supported all along by Edinburgh and Lothians Regional Equality Council. ELREC’s chairman, Mr Foysol Choudhury, said: “We commend the family for their courage and perseverance to ensure the mishandling of Simon’s murder investigation is made public and other families who experience a similar event will not have their suffering prolonged. We also want to thank the enquiry team for their effort in delivering the answers the family had been seeking.”

Aamer Anwar, the San family solicitor, said: “Simon San’s family lost faith and trust in police because of the actions of these officers. They feel had they not complained about their treatment, they would have never found out about the mistakes made by the officers. The officers may well be disciplined but for Simon’s family they have played a role in lack of justice which they should have been entitled to as a grieving family.”

“Simon’s father believes his son lost his life and is convinced that the accused received a lesser sentence because the officers failed to investigate the racial motivation of this case. They also feel that they were treated in this manner because they were Chinese.”

‘Mr Trieu Seng San (father of Simon San) stated : “Simon San was the youngest of my six children. He was a good son and a good brother. Simon’s murder destroyed the whole family. I, along with my family, am very angry with the treatment we received from Lothian and Borders Police. The findings do not offer me any peace; they merely confirm that we were right that we have not been treated appropriately by the officers.”

“The racial motivation was completely denied by the officers despite there being evidence but though this material was provided to the Crown Office, the sentencing Judge and family were told there was no such evidence. The family welcome the findings and thank Lothian & Borders Police for their robust inquiry, but still feel they have been denied justice. They are now requesting that the Lord Advocate order an immediate inquiry into their actions following the findings of the Police Complaint.”

The Crown Office released the following statement in response to the apology to the San family from Lothian & Borders Police over their failures in the murder of Mr San. The statement from the Crown Office denies there was any evidence in law to show to show that the attack on Mr San was racially motivated , however as yet the statement does not appear on the Crown Office website.

The statement, from a Crown Office spokesperson said : Lothian and Borders police have today apologised for mistakes they have made in this case. In light of this apology the Area Procurator Fiscal has offered to meet Mr San’s family again to discuss any questions which they might now have.

The Crown was alert to the question of racial motivation from the beginning of the investigation and raised the issue with the police at an early stage. After careful consideration of all the available evidence provided to the Crown by the police, Crown Counsel concluded that there was no evidence to show that the attack on Mr San was racially motivated.

For a racial aggravation to be proved there must be evidence to demonstrate the motivation for the commission of the crime. There was no evidence in law to support this and this remains the case. There was evidence of a racial term used by the accused sometime after the crime but this was not evidence of motivation for the crime.

Notwithstanding this the Advocate Depute advised the High Court when John Reid pled guilty to culpable homicide in October 2010 that it was the strongly held view of Mr San’s family that the offence was racially motivated. In addition a victim impact statement was provided to the court which conveyed the family’s views on the motivation for the crime.

The Solicitor representing the family thanked the Advocate Depute prior to the accused pleading guilty for the sensitive way in which the family had been treated and the way the case was presented.

There are now, unsurprisingly, questions being raised why the Crown Office failed to prosecute the murder of Mr San as a racially motivated crime and there are now calls for an inquiry into the way the Crown Office handled the case. However, the Crown Office have refused calls for an inquiry into why the incident was not investigated as a racially motivated murder.

A spokesperson for the Crown Office said : “We can confirm the Lord Advocate will not be instructing an inquiry and is satisfied with the Crown’s prosecution of the case. Mr John Logue, the Area Procurator Fiscal for Lothian & Borders, has offered to meet with Mr San’s family to discuss any questions which they might now have.”

Last night on BBC Newsnight Scotland, the Deputy Chief Constable of Lothian & Borders Police Mr Allen was interviewed on his force’s investigation of the case, however Crown Office officials apparently refused to take part in the programme, or at least “were unavailable”, as is now the recognised code for nothing further to add.

Lothian & Borders Police DCC Steve Allen speaks on his force’s failures in the racially motivated murder of Simon San (click image to watch video)

The overall impression is that any lessons supposedly learned from the recommendations from the ‘independent inquiries’ carried out by Advocate Raj Jandoo of the Crown Office’s failure to prosecute the 1998 murder of Surjit Singh Chhokar as a racist crime, have after all these years, not had much effect on how racist cases are eventually prosecuted in the justice system. The accusations at the time of Surjit Singh Chhokar’s murder was that the Crown Office and the Scottish justice system was institutionally racist. Today, the same accusations appear to hold sway.

In a remarkable twist of fate, the author of the reports into the Chhokar case, Dr Jandoo, may well have been the victim of racism himself, after being convicted in 2005 of an incident involving a “bomb threat” aboard an aircraft flying to the Isle of Lewis.

Whilst it is now clear that racist crimes face an uphill battle to be prosecuted in the Scottish justice system, crimes involving sectarianism also appear to suffer the same problems, where a string of murders across Scotland in the past year, regarded widely by many in the communities in which they occurred as having sectarian connotations, have not seen even a hint of the notion being put forward by the authorities who appear to be doing everything they can to avoid any mention of religious divisions in Scotland.

Even the Scottish Parliament’s Petitions Committee who were considering a public petition, Petition PE1073 which challenged the Scottish Justice system for incarcerating religious minorities including Catholics at a higher rate than the rest of the population, met in secret to debate whether to even publish research carried out by an academic which backed up the Petition’s claims, such is the apparent fear of acknowledging sectarianism within Scotland and even our justice system.

The research, undertaken by Dr Susan Wiltshire of Glasgow University for the Petitions Committee, can be downloaded from the Scottish Parliament’s website, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Indeed, the only recent moves to tackle sectarianism by the Scottish authorities have come on the back of conflict between groups of football club supporters & online incidents involving death threats against individuals, after letter bombs were sent out to politicians, football personalities and even a Scottish QC, allegedly motivated by sectarianism & religious hate, issues which most in authority in Scotland appear to be keen to sweep under the carpet.

Clearly, there are still attitudes on religious & racist crimes within Scotland’s criminal justice system which are just as “Victorian” as our civil justice system and the impression is left that Scotland’s prosecution services are out of touch with Scottish society and its expectations of justice in the 21st century.

 

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Victorian,prejudiced,racist,sectarian & definitely a little crooked, yet First Minister feels Scotland’s justice system should be its own final arbiter

Scottish judgesScotland’s “Victorian” justice system in the dock after UK’s Supreme Court overturns yet another criminal conviction. AS the ash cloud caused by the Supreme Court’s ruling on Nat Fraser’s appeal continues to spark protests from First Minister Alex Salmond & Justice Secretary MacAskill of the necessity of the Scottish legal system being the final arbiter of cases brought before it, we would all do well to remember that Scotland’s justice system which has been branded Victorian, prejudiced, restrictive, most certainly a little crooked, open to political manipulation and by all accounts certainly racist and even sectarian, cannot in any circumstances be regarded as a justice system fit for a modern democracy which gives those brought before it in criminal law, or those who must use it for civil law, a right to a fair hearing or even a right to access to justice itself.

Yesterday’s ruling by the UK Supreme Court which overturned Nat Fraser’s conviction after a jury at the High Court in Edinburgh in 2003 found him guilty of killing his wife Arlene who vanished from home in April 1998 has led to accusations yet again that the Supreme Court in London threatens the independence of Scotland’s criminal legal system. However, the only real threat to the independence, (and don’t forget the integrity & credibility) of Scottish justice and Scots Law, is Scots Law itself.

First MinisterFirst Minister Alex Salmond being sworn in by .. Scottish judges. Predictably, the First Minister reacted bitterly to the perceived intervention of a court outside Scotland which decided Mr Fraser’s rights to a fair hearing had been breeched. Mr Salmond said : “I have no comment on the specifics of the case, which is live. But what needs to be addressed is the underlying issue – the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.”

Mr Salmond continued : “Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second guessing Scotland’s highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.As we said in our evidence to the Scotland Bill Committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal.”

A legal observer, commenting on the ruling & the criticisms of the Supreme Court by the First Minister pointed out the Scottish legal system, with Scotland currently a member of the EU must be ECHR compliant. He said : “First thing is that the London Supreme Court was simply upholding the ECHR, which applies to the UK and by direct application, Scotland.”

Criticising the now notorious woes of Scots Law, he continued : “The Scottish legal and political system is the worst in the British Isles, even worse than the system in the Republic of Ireland. I´m all for further intrusion by the Supreme Court in the Scottish criminal system.”

Let us take a closer look at the charges facing Scotland’s Justice system, both criminal & civil :and judge for ourselves whether it is fit for a modern democracy as we are supposed to be.

VICTORIAN.

Lord GillLord Justice Clerk, Lord Gill branded Scots civil law “Victorian” yet clearly Scots criminal law also has major problems. It wasn’t too long ago Scotland’s Lord Justice Clerk, Lord Brian Gill said in a speech to a Law Society of Scotland conference which preceded publication of his Civil Courts Review, branded Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms … in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.” Clearly the judge said it, so it must be true. Lord Gill said a lot more and put forward many recommendations to fix Scotland’s “Victorian” justice system yet the reaction of the Scottish Government to Lord Gill’s damning indictment of Scotland’s civil justice system was to launch another review of Lord Gill’s review, which I reported on here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month ‘time wasting’ review by retired sheriff.

Many of the same failings of the civil justice system are also true of Scotland’s criminal law system, which is clearly out of touch on many occasions with human rights issues, so out of touch the Supreme Court also had to correct the rights of accused to be able to consult a solicitor when being interrogated by Police, as occurred in the Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) ruling which caused similar huffing & puffing from Mr Salmond & Mr MacAskill, who were apparently keen to maintain the lack of such rights to accused, before the Supreme Court’s ruling.

A review of a very damning review and attempts to restrict the rights of individuals already accepted across Europe does not inspire confidence in the need to update a justice system Mr Salmond claims is already fair and should be its own final arbiter.

PREJUDICED, RESTRICTIVE, SELECTIVE.

Do you need legal aid to fund legal representation ? Whether its a civil or even a criminal case, the Scottish Legal Aid Board may very well refuse it, clearly hindering your right to a fair hearing or a fair trial. Legal Aid refusals appear to be based more on personal prejudices of some in the justice system rather than whether a case stands a chance of success or not.

Don’t have a lawyer ? then don’t expect to get into court, and expect a lot of grief if you try to do it. Try taking a civil case to the Court of Session as a party litigant after being denied legal representation simply because solicitors do not wish (for a variety of reasons including orders from on-high) to progress your case. Never has a class of litigant been so prejudiced in the entire UK as party litigants are in Scottish courts. The eyes of the £200,000 a year judge and equally costly defending counsel before you in the court say it all “Why does this person exist. What gives this person the right to intrude into our cosy club and challenge our right to stand here with the full backing of the legal establishment and decide who should come before us.”

EVEN A LITTLE CROOKED.

From the Law Society personally targeting the lives of those who complain against their solicitors, to our judges being controlled by male prostitutes, to Police Officers leaking data to criminals to fingerprints being planted at murder scenes, to lawyers getting away with legal aid fiddles, to the law itself being manipulated by its servants to bring charges against individuals, one may argue the Scottish justice system is a lot more crooked than the media can keep up with all the scandals requiring exposure.

OPEN TO POLITICAL MANIPULATION.

The Lockerbie Trial, and the controversy that will never go away over the hearings at Camp Zeist and the subsequent conviction of Abdelbaset Al Megrahi for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988. Just imagine what may have happened if, rather than being conveniently released on compassionate grounds by Justice Secretary Kenny MacAskill, who was obviously keen on avoiding making the Scottish Court of Appeal look even more a fool than it is, Abdelbaset Al Megrahi had finally been able to take his appeal to the Supreme Court in London ? If the court had ruled in his favour and quashed his conviction, how much huffing & puffing would the First Minister and Justice Secretary done in that event.

RACIST.

In the case of Surjit Singh Chhokar, the Crown Office was and still is, branded as “institutionally racist”. There is little doubt race and racial discrimination places a huge part in Scotland’s justice system today, no matter how many statistics the Crown Office may tout on hate crimes or race crimes.

As the Telegraph newspaper reported at the time : “SCOTLAND’S most senior lawyer announced sweeping reforms of the Scottish criminal justice system yesterday following the publication of two damning reports into the murder of an Asian man. Although the reports reached conflicting conclusions on institutionalised racism, both investigations uncovered serious mistakes by the prosecution service in its handling of the Surjit Singh Chhokar case.”

“Comparisons between the Chhokar case and that of Stephen Lawrence had been made followingthe acquittal of three men accused of murdering the Sikh waiter three years ago. Addressing the Scottish Parliament, Colin Boyd, the Lord Advocate, admitted that the legal system had “failed the Chhokar family” and offered his apologies to them. Mr Boyd accepted the findings of a report by Raj Jandoo, Scotland’s most senior Asian advocate, which found evidence of institutionalised racism in the way police officers and the Procurator Fiscal dealt with the bereaved family.”

We all of course remember what happened to Scotland’s most Senior Asian Advocate Raj Jandoo after he wrote the report, BBC News reported Mr Jandoo was convicted of endangering an aircraft and breach of the peace for mentioning a bomb and being regarded as terrorist causing fear and alarm to passengers and crew. Meanwhile other [white] Scottish legal luminaries dragged off aircraft & charged with offences, had their charges dropped.

Racism is still very much alive in the Scottish justice system today.

SECTARIAN.

Surprise ! Even though no one wants to admit it, Scotland’s justice system is just as sectarian as those individuals or groups the Justice Secretary now seeks to legislate against with what will probably be poorly thought out laws rushed through the Scottish Parliament which may well end up being challenged on ECHR compliance later on, possibly in the Supreme Court once again.

According to a report authored by Dr Susan Wiltshire of Glasgow University for the Scottish Parliament’s Petitions Committee, there is firm evidence to show the Scottish Justice system is itself sectarian, holding harsher positions, verdicts & gives out longer term sentences against catholic defendants and other religious minorities than other groups who come before it on criminal (and quite possibly civil) matters, according to coverage from Scottish Law Reporter, available here : Report published by Holyrood Committee says justice system may be prejudiced against Catholics, confirms higher numbers in Scots jails.

The report, which msps were reluctant to publish, presumably because it revealed there were indeed sectarian issues in the Scottish justice system itself, can be downloaded from the Scottish Parliament’s website, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Is such a justice system worth defending when clearly it fails to serve Scotland and the Scottish people, rather only serving its own vested interests and of those who support it ?

First Minister Alex Salmond’s criticisms of yesterday’s Supreme Court ruling and his views on Scotland’s justice system being its own final arbiter are not consistent with the realty of justice in Scotland. Little wonder therefore that those who require a fair hearing in criminal or civil law should now look to the Supreme Court and even Europe because Scottish justice is unfair and all the things above.

Of course, Mr Salmond, you’d know all this anyway if you actually spent some time in the justice system yourself …

 

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