Following the first appearance at Edinburgh Sheriff Court of former First Minister Alex Salmond on a number of charges of sexual offending, much of the commentary on solemn criminal procedure in Scotland, including some from newspapers and organisations with access to quality legal advice, has been surprisingly misinformed on certain of the basics of what has already happened, and what may or will now happen. Criminal procedure in Scotland is largely governed by the Criminal Procedure (Scotland) Act 1995, which has been amended numerous times since coming into force in April 1996[1], but remains the key statute. It is divided into two discrete types; solemn, for more serious cases, and summary for less serious ones. The maximum penalty for a single conviction in summary proceedings (except where it is proven that bail was breached by the commission of the offence) is twelve months imprisonment. In solemn proceedings, the maximum sentence that may be imposed in the High Court is life imprisonment, and in the Sheriff Court the maximum custodial sentence is five years imprisonment. Only trials in cases prosecuted under solemn procedure are heard before a jury. Unlike some other countries, the accused cannot elect to be tried by jury. That is a decision for the prosecutor alone, based upon the nature of the offences and the likely sentence in the event of conviction, although there are certain offences such as murder and rape which are of such an obviously serious nature they may only ever be prosecuted in the High Court. Terminology There are a few terms specific to Scots law that may come as a surprise to readers outside the system. The person facing the charge is not “the defendant”; in modern practice he or she is called “the accused”, although the older term “the panel” may still occasionally be heard. A witness who asserts that he or she is the direct victim of a crime is “the complainer”. When the Crown is ready to take the case to trial the accused is “indicted” (rhymes with “excited”), and the case will be prosecuted by the Lord Advocate, who is the chief prosecutor in Scotland, or one of his appointed prosecutors, who are entitled “Advocate depute”. In the lower courts, the prosecutions are undertaken by lawyers called Procurators Fiscal, who are paid employees of the Crown, mostly practice in specific local courts, and who hold commissions to prosecute on behalf of the Lord Advocate. The first appearance in court With a very few exceptions, everyone whose case is tried before a jury makes their first appearance before the Sheriff Court in answer to a petition proceeding in the name of the local Procurator Fiscal. This part of the procedure is quite ancient and its present-day requirements are quite simple. The fiscal presents to the court a petition which must identify (1) an accused person or persons, and (2) a crime or crimes known to the law of Scotland. The petition seeks authority of the court to carry out certain steps in the investigation of crime, some of which are now governed by statute, but this grants authority to the prosecutor to secure the documentary productions in the case, interview witnesses and cite them and to have enquiries carried out elsewhere in the country if necessary. In modern practice the petition also contains a brief summary of the Crown case so that the accused and his lawyer can be aware whether there is on the face of it evidence to justify the making of the charge. The charge on the petition need not be, and very often is not, the charge ultimately faced at trial, so the accused is not called upon to plead. Until 2017 it was possible for an accused to make a declaration before a sheriff or to be examined by the prosecutor in the presence of the sheriff (but not on oath) directly after a first appearance. The first of these was a relic of 19th century procedure when the accused was forbidden to give evidence in their own case. the law on this only changed in 1898. It was vanishingly rare in modern practice. The second was introduced in 1980 but soon discovered to be pointless, as no-one was ever advised to answer questions before having sight of the evidence, so both were abolished with few paying any heed. The accused therefore now simply makes “no plea”. The prosecutor may or may not oppose the accused being released on bail. Whether bail is opposed or not the sheriff must consider whether it should be granted[2]. In general, where an accused has no previous convictions, has a fixed address and employment and there is no indication of currently being engaged in a course of criminal conduct, bail will be granted. Unlike cases in the USA, this does not require the posting of any sum of money that may be forfeit; the penalty for non-compliance is an additional sentence that may be consecutive to any sentence imposed for the original offence. Even if acquitted of the main offence, if the accused failed to comply with bail conditions they may be sentenced. Where bail is granted, the accused is “committed for further examination” and no date is fixed for the next appearance. This may in practice be many months in the future. Where bail is refused the accused must return to court within eight days for a second appearance, known as “full committal” where the court may once again consider bail. Once again, no plea is tendered at full committal stage as the court is still considering the Fiscal’s petition. Proceedings on petition take place in private. There may be cases where information regarding offences later not proceeded with, previous convictions, threats to witnesses or flight risk may be considered without the hearing of evidence, so the reason for the hearings being held in private seem obvious. In certain parts of the country the potential pool of jurors could be tainted by information about past offending/alleged but unproven interference with witnesses becoming public knowledge. A hearing in private is of course not the same as a hearing in secret. The press and other media are allowed to report that a named person (different rules may apply where identification of children arises) has appeared on certain charges and been granted or refused bail. Comment beyond that is strictly forbidden, but there is nothing unusual about the press being advised of the charges faced. Preparation for trial At this stage, so far as the public is concerned, the case falls into limbo. The Crown carries out its preparation and must disclose its evidence to the defence[3] , while the defence will undertake its own investigations. Throughout this period the accused is subject to the protection of the court. If the Crown seeks to undertake investigations beyond these contained in the petition warrant (search of newly discovered premises, taking of physical samples), it must seek permission from the court. Both Crown and defence will be preparing long and hard for the forthcoming trial, but details of these investigations are considered strictly confidential. Throughout this period and until the case concludes with a plea or a verdict, the law of contempt of court applies. Public speculation on guilt or innocence, revelation of names of people granted anonymity (this applies to all complainers in sexual offence cases), assertions as to motives on the part of complainers, can all amount to contempt of court and can result in prosecution and punishment, including imprisonment. Again, the restrictions on comment on ongoing court proceedings often comes as a surprise to commentators in the USA. In high profile cases, the law of contempt of court can struggle when information is posted online from foreign countries, although sharing posts or re-tweeting within the UK will be considered publication and can still give rise to prosecution. The indictment Ultimately the Crown will determine which charges should be prosecuted, and an indictment is drafted in the name of the Lord Advocate specifying the precise nature of the charges the Crown seeks to prove, and in which court the case is to be heard. This is the first time the accused is formally aware of the charges that will be heard by the jury. The indictment may be served on him in person or may be served via his solicitor[4]. This will cite the accused to a first diet (sheriff court) or preliminary diet (High Court), and 29 days notice of the date of the preliminary hearing must be given. The Act further provides that where the accused is on bail the trial must commence within 12 months of first appearance. In order to prevent delay in trials the Act provides that where the accused is on bail, the preliminary hearing must commence within eleven months. Thus, in the case of Mr Salmond the Crown must (in theory) indict by 25th November for a preliminary hearing on December 24th 2019. However, where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified[5]. In practice, where the case is complex and/or likely to last several weeks, extensions of time are commonplace, so no-one should assume that the case of Her Majesty’s Advocate v Salmond will start hearing evidence in or before January 2020 The Preliminary Hearing will take place in a public court, and the details of the charges, although not the identity of the complainers, may be reported. The Crown and defence will have provided the court with written records of the state of preparation of their cases, which witnesses’ evidence will need to be heard and which witnesses’ evidence is formal and capable of agreement. Each side must specify when and how they communicated with the other side and what steps have been taken to agree formal evidence. Where the accused pleads not guilty, the defence must confirm that the accused is aware of the discount on sentence available for a guilty plea. The defence requires to submit a brief statement of its position in respect of the charges; where this involves a complete denial of guilt this does rather render the preceding question pointless. If the defence is a special one (for example, that on the date of an alleged offence the accused was elsewhere, or where the charge is of rape or attempted rape that the complainer consented), this must be intimated before the preliminary hearing. Courts expect both sides to be fully prepared for trial at the Preliminary Hearing unless there is good reason not to be, such as new evidence coming to light very late in the day a wholly unforeseeable issue emerging. In general, judges are reluctant to continue preliminary hearings and instead look to fix trials. Pressure on court diaries mean that it is exceptional for a trial date or dates to be available within the next month; motions to extend the twelve month limit are routinely granted to fit the court’s requirements, and those of the accused, witnesses and counsel. In practice trials may start two to three months after the preliminary hearing. Throughout this period the Crown and the court will remain diligent in its seeking to preserve the integrity of proceedings from any issue of contempt of court. Postscript Since this was written there has been much online comment on the private or secret nature of the petition hearing itself. Having practised in court for over thirty years I had not really considered how little non-lawyers understand about what happens in a petition hearing, so some further clarification is necessary - 1. The charges are not “read out”. The petition (and summary of evidence) is provided to the accused and considered by the accused and their lawyer before the case calls. 2. When the case calls, the only persons present are the sheriff, the prosecutor, the clerk of court, the accused plus lawyer, and court security staff. 3. There is no discussion of the evidence, nor is the accused called upon to plead, for the reasons explained above; the lawyer simply announces that the accused “makes no plea” and the Crown moves to commit the accused for further examination. 4. In all cases bail must be considered, although sometimes it is not requested. 5. Most of the hearing is taken up with consideration of the question of bail. 6. The defence may seek bail and the Crown opposes this. In this situation the Crown sets out its grounds of opposition (commonly nature of the charge plus one or more of previous convictions, breaches of court orders, alleged course of conduct, specific risk to witnesses, risk of absconding), and the defence sets out arguments in favour of bail (e.g. fixed address, in employment, willing to adhere to curfew/surrender passport, accept additional conditions to safeguard witnesses). The court then makes a ruling. 7. The defence may seek bail and the Crown does not oppose this, but seeks additional special conditions relating to specific witnesses, addresses, curfew, or restrictions on computer use and agreeing that police may have access to computer equipment. It is for the Crown to justify why these extra conditions are necessary and why standard conditions, which include a duty not to interfere with witnesses or affect the course of justice, will not suffice. Such arguments may be lengthy and may require the prosecutor to refer to matters in the police report that have not been fully investigated or verified. Once again, it is for the sheriff to decide whether additional conditions are necessary. 8. The defence may seek bail and the Crown does not oppose this being granted on standard conditions. This is usually fairly formal, although the sheriff still retains a legal right to refuse bail. There is some concern at the lack of information made public, although the press and other media may still report that a named person appeared in court on a specified charge or charges and bail was granted or the accused was remanded in custody. Since the coming into force of the Data Protection Act 2018, neither Crown Office nor Scottish Courts and Tribunal Service is willing to provide additional information. Unless the case involves a child, where Section 47 prevents the inclusion of “any particulars calculated to lead to the identification, of any person under the age of 18 years concerned in the proceedings” this is not due to anything contained in the Criminal Procedure (Scotland) Act 1995 but is a matter of legal advice on GDPR policy. Whether that policy is correctly applied may be a matter for argument elsewhere. [1] For the present version, see http://www.legislation.gov.uk/ukpga/1995/46/contents [2] Criminal Procedure (S) Act 1995, s. 22A [3] Criminal Justice and Licensing (Scotland) Act 2010. s.121 [4] Criminal Procedure (S) Act 1995, s. 66 (6C), Act of Adjournal (Criminal Procedure Rules) 1996 r. 2.2A [5] Criminal Procedure (S) Act 1995, s.65 (3)

Over the past months, much publicity has been given to the case of PF Airdrie v Mark Meechan[1], which relates to the consequences of Mr Meechan posting on YouTube a short video entitled “M8 Yer Dugs [sic] a Nazi”. As everyone now knows, in the course of this short clip, Mr Meechan’s dog lifted its fore paw in response to Mr Meechan using the words “Sieg Heil” and (apparently on 23 separate occasions) “Gas the Jews”. The existence of the video on a public forum came to the attention of persons who found its content grossly offensive, the matter was reported to COPFS, a summary prosecution was commenced under Section 127 of the Communications Act 2003 and after a trial lasting around four days, spread as is normal in present-day summary procedure over several months, he was found guilty and ultimately fined. Leave to appeal both conviction and sentence has now been refused at the sifting stage, and this has resulted in a great deal of criticism of the Scottish legal system, much of it ill-informed. The applicable law Mr Meechan was charged under Section 127 (1) of the Communications Act 2003, which states that a person is guilty of an offence if he – “(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent.” The charge can only be prosecuted summarily by virtue of Section 127 (6). There was therefore no question of the case ever being heard before a jury; Parliament has chosen to preclude that. In the context of the case, the key words were clearly “grossly offensive”. There could be no doubt that by electing to post the clip on a public site dedicated to the showing of video images, which could be viewed anywhere, the message was “sent”, and no counter argument was submitted to the sheriff. Some commenters, though, have taken the view that the role of the sheriff at trial is the same as that of Humpty Dumpty in Through the Looking Glass[2] – “When I use a word, it means just what I choose it to mean — neither more nor less.” On this view, every sheriff, magistrate or judge applies a purely subjective test, viz. - “does this offend me?” That is not the view the law takes. While the statutory offence is of recent vintage, verbal comments giving rise to offence and alarm have been criminal for centuries, and cases can be found at common law in respect of written communications as far back as the time of Baron Hume[3]. Sending a letter to a named individual in which threats were made to third parties, but not to the recipient himself, was found to be a relevant criminal charge in 1815[4]. Hume’s view was that to be criminal there needed to be more than mere insult; there needed to be “circumstances of rage and disturbance as to justify alarm with the fear of further mischief[5]”. As the common law developed in the context of breach of the peace, in the era where words travelled only as far as they could be heard and where publication was the province of authors and editors, the issue developed rather as one of disorderly conduct, although the use of offensive language directed at a third party not present at the time could still found a criminal charge into the 20th century; for example the comments made by the accused in PF Perth v Robert Mathieson[6], where a man clearly unhappy at the outcome of court proceedings accused a number of legal figures of being “cowardly, perjury-abetting vermin”. Modern methods of communication make it absolutely obvious that words causing grave offence can travel round the world in seconds. Should the uttering of such words be criminal? While some hard-core libertarians take the view that no words ever used in any context should attract criminal sanctions, even where the words impart direct threats to personal safety, the more common and practical view is that there will always be limits on free speech; there is no “right” to shout fire in a crowded venue to cause panic, no right to defame by making knowingly false allegations, and no right to place someone in a state of fear by uttering direct threats. Should the law become involved where the person viewing or otherwise becoming aware of the comment that caused fear and alarm was not in any sense its intended recipient? It is at least arguable that the import of the 2003 Act was not to create a whole new class of offence, but to ensure that behaviour that was criminal in other contexts could not escape punishment merely by virtue of it being sent electronically. Issues arising from the wording of the Act had come before the court several times. In respect of “offensive”, rather than indecent or obscene massages, the court had considered the sentencing issues in Rodgerson v PF Alloa[7], which involved an individual pleading guilty to making a number of grossly offensive remarks about the death of a child and sexual remarks about children. While the issue before the court related only to whether the offence merited registration under the Sexual Offences Act 2003, it did not express any disquiet as to the soundness of the plea. Again in Hill v HM Advocate[8], where the messages alleged that the complainer offered sexual favours to other men, there was no challenge to the validity of the conviction. The arguable distinction in Mr Meechan’s case, is that the persons offended were not the recipients of the original message. The actions of Mr Meechan On any view, Mr Meechan, while presenting himself as a champion of free speech, does not appear an obvious successor to the likes of Martin Luther King or Nelson Mandela, neither of whom ever gloried in the titles “Professional Shitposter” and “Edgi Boi [sic]”. His idea of humour is not one that many of an older generation would find amusing, although he seems unaware of the extent to which casual racism was a staple of mainstream television in the era in which Sheriff O’Carroll grew up. It must be said that his “comedy” is not notable for its subtlety, but the only issue for the courts related to a single video clip, posted in April 2016. It is not clear, nor does it matter, who first reported it to the authorities, but the Procurator Fiscal clearly formed the view at the outset that the content of the video was grossly offensive and thus merited prosecution. It seems to be accepted by all concerned that the words “gas the Jews” were repeated on 23 occasions, images of Adolf Hitler and the Nuremberg rally were shown, and strident music played. Equally, it seems beyond doubt that amongst those who viewed the video there was a significant proportion that actively saw it as racist, and as a vindication of their own racist views. Whether that was anticipated by Mr Meechan cannot be said with certainty, and he denies personally holding racist views, he seems at the very least to have been reckless as to the consequences of online publication. Proceedings appear to have commenced some time in 2017 (the statutory time bar under the Act being one of three years), with evidence being heard from September 2017 until 20th March 2018. Mr Meechan’s explanation was that the video was made as a joke, intended only to annoy his girlfriend, the owner of the dog. However, this seemed inconsistent with its being posted on a public communications network on a channel to which she was not a subscriber. He accepted that the phrase “Gas the Jews” was anti-Semitic though not, he said, when used as part of a joke. In this regard I am reminded of the phrase much used by the late Sheriff Irvine Smith QC when faced with a submission more notable for optimism than reality – “brave, but doomed”. Whether Mr Meechan realised that the video would be seen by Jewish viewers is not clear, nor is it immediately apparent to what extent he considered their reaction. It appears that if he considered something to be a joke, so would every other viewer, although his channel is reported to have borne the words “provides offensive social comedy and skits that get people thrown in prison”. In any event, evidence was led from witnesses, including Ephraim Borowski of the Scottish Council of Jewish Communities, who were deeply offended, and Mr Meechan gave evidence in his own defence. Ultimately, as we know, he was found guilty and fined, although he expresses his wish to go to prison rather than pay the fine. Freedom of speech Much of the criticism of the court’s decision is based upon its effect upon the concept of “free speech”. It might be helpful to note at this stage the relevant part of the sentencing statement (emphasis mine) – “[A]lthough I invited both legal representatives to make legal submissions during the trial about the law on freedom of expression, that was done only to a very limited extent. In the absence of focused submissions on that topic by either the Crown or the defence, all I can say is that, while that right is very important, in all modern democratic countries the law necessarily places some limits on that right.” Some have sought to draw unflattering parallels between the decision of the court and certain well-known comedy moments focussing upon Nazi Germany. It seems obvious, to me at least, that in the famous “Germans” episode of “Fawlty Towers”, that Basil Fawlty is the butt of the joke, not the innocent guests. Likewise, it is difficult to interpret the joke in “Springtime for Hitler” in Mel Brooks’ “The Producers” as directed at anyone other than the (Jewish) theatrical producers seeking to profit from staging the most offensive and badly performed show imaginable. I cannot see that teaching a dog to raise its paw in response to anti-Semitic language is comparable in comedy terms. In any event, it appears that there was no meaningful debate on the application of Article 10 of the European Convention on Human Rights or citation of its leading case law. Whether this was a deliberate decision on the part of his agent is not clear from the trial judge and appeal judge’s comments, but given that Article 10.2, read short, states “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….[and] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.” British courts have never supported an unfettered right to speak in any manner at all. Whether in private or in public, there has always within a mature legal system been recognition that where words cause offence, this can stray into the realms of the criminal law. That Mr. Meechan was convicted, the court having rejected his defence, was therefore not wholly surprising to lawyers, although some on the fringes of comedy where the boundaries of “offence” may be somewhat fluid clearly disagree. The Sheriff Appeal Court Having been convicted and sentenced, Mr Meechan exercised his statutory right to appeal against both conviction and sentence, and it is here where the expectations of his supporters diverge most radically from legal reality. In summary proceedings, where the sheriff is the master of the facts and the sole arbiter on issues of credibility, an appeal by stated case to the Sheriff Appeal Court[9] may only be made on a point or points of law. The right to submit an appeal exists in all cases, but following concern at the amount of court time taken up with disposing of appeals which had no merit, the court now exercises a gatekeeping function, based upon the written grounds of appeal and the contents of the stated case as drafted by the sheriff and finalised after adjustment by prosecution and defence. This paper review is conducted by a single appeal sheriff[10] who may either grant or refuse leave to proceed to a full court hearing. Where leave to appeal is refused, there is a statutory right to apply to a court of three Sheriff Appeal Court judges for leave to appeal, once again in writing; it “shall be considered and determined in chambers without the parties being present[11]”. The powers and duties of the court of three sheriffs are the same. This, I would suggest, is a wholly unremarkable system. Either there are valid grounds of appeal or there are not. Whether the grounds are valid or not, they can be summarised in writing by a lawyer and submitted for consideration. An appeal is not a “second bite at the cherry”, but a process in which a higher court determines whether a lower court has failed to apply the relevant law correctly. There needs to be an identifiable error. In modern practice, most of the appeal process is conducted in writing, and where an appeal does proceed to a hearing the court requires to see full written argument from both sides some weeks in advance of the hearing itself. Mr Meechan has elected to publish documents which confirm that his case failed at both the first and second stage, the court being unable to identify any error of law. Therefore, before any question of further oral argument could arise, no fewer than four senior sheriffs have considered the grounds of appeal and detected no error in the findings of the original sheriff. On any view, Mr Meechan has been given ample opportunity to ventilate his criticisms of the decision of the original sheriff. While some might argue that open justice suggests this should be done in public, the fact that Mr Meechan has chosen to post the decision online indicates both that the decision itself was not secret and the likely outcome of any oral submissions. At this stage I pause to note that a sum in excess of £190,000 was crowdfunded before leave to appeal was granted, on the surprising assertion that the costs of the appeal would exceed £100,000. Given that this was undertaken at a time when the SAC was considering paper documents, and when it was far from certain leave would be granted, the amount proposed in the crowdfunding request appears rather rash, and there will no doubt be a full accounting into how much was spent, and how money is to be refunded, given that an application to the Scottish Criminal Cases Review Commission (which conducts its own enquiries through public funding) will not generate much additional expenditure. While Mr Meechan seems determined at present to send himself to prison rather than accept his current penalty, the Terms of the GoFundMe site on which he sought donations offer very wide discretion to the fund manager – “[w]e assume no responsibility to verify whether the Donations are used in accordance with any applicable laws; such responsibility rests solely with the Campaign Organizer or Charity, as applicable[12].” Finally, some comments need to be made anent the trenchant criticisms made of the solicitor who conducted the trial and later plea. I was not present in court so can base my comments only on the terms of the letter from the SAC, and do not propose to name him. Many commenters were deeply concerned with the appeal sheriff’s obvious unhappiness at the way in which the plea was presented, but this is once again fundamentally misunderstanding the role of the defence lawyer post-conviction and pre-sentencing. While a case is at trial, the duty of the defence agent is to use his best endeavours, within what is permitted by law, to seek to have his client acquitted. His right to cross-examine witnesses and call defence evidence in accordance with his instructions is not restricted. However, once a verdict is delivered, the role of the defence lawyer changes. The appellate sheriffs recognise this, but it is less clear that the solicitor acted appropriately. There can be no criticism of an agent telling a court “My client maintains his innocence and intends to pursue the further legal avenues open to him.” Indeed, it is probably ethical to observe that an accused does not recognise the justice of the statute under which he was convicted, provided the agent recognises that everyone in the court is bound to conform with statute law as it exists at the time, and only the relevant Parliament may change or repeal the law. In my understanding it has never been regarded as appropriate for a solicitor, who is in addition to being the agent for his client an officer of the court and a member of a professional body with published practice rules to express a personal view on the soundness of a verdict. Law Society guidance[13] states that a solicitor “must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients”. In rejecting the finding of contempt of court against Aamer Anwar, who had made some public criticism of a verdict prior to sentence being passed, in July 2008[14] the High Court observed “If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and, second, that their comments are not misleading.” While the solicitor’s comments were made in the context of a plea in open court, it does appear that certain of his remarks went beyond the role of delivering a plea in mitigation; the suggestion of an “apparent attempt to intimidate the court” is clearly concerning, although I recognise that this may not be a wholly accurate assessment of what was said, and the solicitor’s reaction to the suggestion has not been made public. It is, though, worthy of note that the comments made by the appeal sheriff anent advice on contempt of court were based upon the trial sheriff’s report, rather than on the plea itself, the trial sheriff not apparently having considered the plea as giving rise to this possibility. While many view the case as demonstrating deficiencies in the Scottish system of criminal justice, and recognising that there is clear room for improvement in our summary courts, I do not find either the trial, verdict or appellate procedure to present any objective concerns for the present or future. [1] http://www.scotland-judiciary.org.uk/8/1962/PF-v-Mark-Meechan [2] Lewis Carroll, Through the Looking Glass, and What Alice Found There (1871) [3] Hume’s Commentaries on Crimes (3rd Edition, Ed. Ben R Bell), pub 1844, reprinted by the Law Society of Scotland 1986 [4] HMA v John Jaffray, Hume (op. cit.), Vol 1, p. 441 fn [5] Hume (op. cit.), Vol 1, p. 343 [6] The Scotsman, 6th July 1984, reported in Christie – Breach of the Peace (pub. W. Green 1990) [7] [2016] HCJAC 12 [8] [2016] HCJAC 35 [9] Under the Criminal Procedure (Scotland) Act 1995, s. 176 [10] CP (S) A 1995, s. 180 (1), (2) [11] CP (S) A 1995 s.180 (6) [12] https://www.gofundme.com/terms [13] Rules and Guidance, Para. B1.13 [14] [2008] HCJAC 36

In July this year a great deal of publicity was given to Scottish Prison Service statistics obtained under freedom of information legislation, which demonstrate that over the past three years around 20% of all prisoners released on Home Detention Curfew (HDC) were recalled to custody for breach of licence conditions[1]. This has been presented as evidence that the present Scottish Government is “soft on crime”, and by implication that the perceived failures of the HDC system were exposing the public to agreed risk. Is that, though, the only interpretation that should be drawn from the figures. The Legal Basis for Home Detention Curfew With effect from 3rd July 2006, the Management of Offenders (Scotland) Act 2005 introduced a new section 3AA into the Prisoners and Criminal Proceedings (Scotland) Act 1993. The salient parts of the section read – “(1)Subject to subsections (2) to (5) below, the Scottish Ministers may release on licence under this section (a) a short-term prisoner serving a sentence of imprisonment for a term of three months or more; or (b) a long-term prisoner whose release on having served one-half of his sentence has been recommended by the Parole Board. (2)The power ... above is not to be exercised before the prisoner has served whichever is the greater of—(a)one quarter of his sentence; and (b)four weeks of his sentence. (4)In exercising the power conferred by subsection (1) above, the Scottish Ministers must have regard to considerations of—(a) protecting the public at large; (b) preventing re-offending by the prisoner; and (c) securing the successful re-integration of the prisoner into the community. Subsection (5) creates a number of exceptions where a prisoner may not be released on HDC. At present these are where the prisoner is serving an extended sentence imposed under section 210A of the 1995 Act, the prisoner is subject to a supervised release order made under section 209 of the Ac, the prisoner is subject to a hospital direction or a transfer for treatment direction made under the relevant mental health legislation, the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or the prisoner is liable to removal from the United Kingdom. The former rule precluding recalled prisoners from re-release on HDC was withdrawn in December 2016[2]. Prisoners released in terms of the Act may be recalled to custody in certain circumstances. These are found in Section 17A of the 1993 Act, which provides that, where “it appears to Ministers that a prisoner released on licence under s.3AA has failed to comply with any condition included in his licence, or his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence, they may revoke the licence and recall the person to prison”. A person whose licence is revoked must, on being returned to prison, be informed of the reasons for the revocation and of his right to make representations in writing with respect to the revocation to the Scottish Ministers. For their part, Ministers must refer the case of any person who makes such representations to the Parole Board, which may, after considering the circumstances, direct, or decline to direct, the Scottish Ministers to cancel the revocation. Often the prisoner will have left his address, and his whereabouts may be unknown. However, failure to be home by a designated time even on a single occasion by a matter of minutes also constitutes a breach, as in some circumstances, is failure of the monitoring equipment to work satisfactorily. Change of address or permission to vary the curfew times for a specific reason (such as an important family event, or job interview) must be sought in advance, and may be refused. Leaving home during curfew hours, even to go into the back yard or garden to take the dog out or smoke a cigarette, will usually trigger an alert at the monitoring centre and breach action may be instigated. Only prisoners identified as low risk are eligible for HDC release. The majority of prisoners selected are short term as defined in the 1993 Act, serving less than four years, but HDC is occasionally available to long-term prisoners granted parole. Police may report a suspected breach to the Scottish Prison Service for transmission to the monitoring contractor, but have no power to arrest a suspect for breach alone[3]. Legal Consequences of a Breach of HDC In terms of s.17A (6) ‘‘on the revocation under this section of a person’s licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.’’ Thus, where a Home Detention Curfew is breached for any reason, the licence is revoked, and the prisoner, unless already in custody is liable to immediate arrest and return to custody for all the remaining days outstanding of the sentence, until release in terms of the 1993 Act is mandatory. A warrant to apprehend is automatically granted. Breach of HDC is not an offence in itself. This surprises some people, but arises from the distinction between the “punitive regime” constituted by the sentence imposed as punishment, and the “protective regime” arising from the need for public protection. As Ministers have already, by virtue of Section 3AA (4) above considered various statutory tests directed to public protection at the time release is directed, breach involves non-compliance with the protective regime, the offender’s freedom being curtailed by the terms of the HDC licence[4]. A Scottish Government Working Party Report on electronic monitoring in 2016 revealed a concerning lack of understanding of the system by some persons subject to monitoring; “There appeared to be a lack of basic knowledge amongst monitored persons about the 'rules' of electronic monitoring. It was thought that this lack of knowledge often left monitored persons' and their families unsure about contacting G4S or the issuing authorities to ask for advice in case they were perceived to be asking 'stupid' or 'phishing' questions. It was noted that this reluctance to communicate openly with G4S or the issuing authority may, in turn, lead to unnecessary breach of the monitored person's order.” What is clear from the widely publicised case of James Wright, convicted of murder committed in 2017 whilst unlawfully at large after revocation of his HDC licence, and not arrested after some five months, and from other cases reported in recent press reports, is that not all warrants result in the early arrest of offenders. This may raise issues both in respect of police practice and in respect of risk assessment, and it is to the latter that I turn first. Is the HDC system failing? The FOI figures reveal that in the three years from 2015/16 to 2017/18, a total of 4264 prisoners were released subject to HDC licence conditions, and 763 licences were breached; over the whole period that means licences were breached in 17.9% of all cases, although the percentage for the most recent year was the highest at 20.1%. This certainly suggests that the assessment process required by Section 3AA (4) above could benefit from being made more robust. Any offender released on HDC licence should have a fixed address suitable for release, in respect of which there are no obvious ongoing concerns. A number of prisoners are refused release on HDC due to concerns over the person with whom they propose to reside, or over the proximity to complainers and other witnesses. It does of course go without saying that in every case where release on HDC is granted, a judge has determined that there is no alternative to a custodial sentence. In many cases the offender will have failed to comply with previous non-custodial disposals. While the offenders will rarely have been convicted of the most heinous of offences, they will inevitably be perceived as, at the very least, a serious public nuisance from whom law-abiding citizens deserve respite. It is thus not wholly surprising that a proportion of such offenders struggle with the obligations of a home curfew. However, we must not lose sight of the fact that within this offender group, in most years well over 80% of offenders do comply with the obligations imposed. The orders must run for between 14 days and six months; in practice most will run for around three months or thereby. The average annual cost of keeping a prisoner in custody is £35,325[5] so over three years the saving to the public purse in respect of the 3501 prisoners released on HDC who would otherwise be kept in custody, and who avoid breach proceedings would appear to be of the order of 875 “prisoner years”, or £30.91 million. According to the Scottish Parliament’s Financial Memorandum on the Management of Offenders (Scotland) Bill[6] the annual cost per person of electronic monitoring is £2310; to monitor 875 persons for twelve months over three years would equate to £2.02 million – a net saving of over £28 million. While recognising that breaches of HDC cannot be condoned, perhaps some perspective should be retained; how many of the persons breaching the orders should have remained in custody? At present the figures publicised do not indicate the proportion who reoffended subject to HDC and the offences with which they were charged. There is therefore no strong published evidence of a pressing need for more incarceration for public protection. Thus, any improvement in the risk assessment process that ensures only those who present an objectively low risk of serious reoffending and have genuine prospects of rehabilitation, will result in more persons being kept in custody and will thus have a significant impact upon public finances. Spending more time and money on pre-release investigation would be welcome; during my time on the Parole Board many years ago I was struck on occasions by the limited risk assessment undertaken in the very early days of HDC, and trust that processes have become more sophisticated in the last decade. I cannot, of course, ignore the fact that persons released on HDC do on occasions reoffend, and as stated above in once case the offender committed murder (although it might be noted that had he been apprehended immediately and served his time he would in all probability still have been at large on the date of the offence). Extreme cases, horrendous though they are, cannot in themselves be the basis for wholesale changes in the law. I have observed earlier that is not yet clear, pending full inquiries by both the Scottish Prison Service and Police Scotland, how Mr Wright managed to evade apprehension for as long as he did, so further comment at this stage would clearly be premature. Given that many breaches are committed by failure to be home at a designated time, it is far from clear how many persons released on HDC from short-term sentences objectively present a risk to the public. Is it acceptable for persons breaching HDC not to be apprehended? Much of the criticism of the present system in the press has focussed upon a small number of released persons who have evaded capture for their breaches for significant periods. It is reported that fifteen offenders released on HDC have not been apprehended despite being unlawfully at large for over five years. Quite clearly not arresting someone in these circumstances implies failure on the part of the arresting authorities. It cannot be stated with certainty that all these persons are alive and living within the UK, although attempting to leave or re-enter the country with a valid passport should trigger automatic action. What can be said with a degree of certainty is that these offenders have not been apprehended for any further offending, as such an arrest should automatically result in the existence of the warrant being discovered (and use of false particulars should be uncovered if fingerprint and identity checking is undertaken). There is justifiable public concern at someone being nominally “on the run” for such a long period. While absence of arrest is not unequivocal proof of wholly blameless behaviour, it does suggest an ability to avoid situations where police interest is likely. What is perhaps less recognised in some of the more aggressive reporting is that the absence of proven reoffending over a long period is regarded in a great many circumstances as worthy of some credit. In respect of criminal appeals the use of a reduced sentence as a remedy for a long delay in determination of an appeal has long been recognised – see for example Gillespie v HM Advocate[7]. It is also commonplace, where a custodial sentence is quashed, for the court to defer consideration of sentence for up to a year, and where the person does not come to the adverse attention of the courts, to replace imprisonment with a lesser sentence. In Robertson, McCourt and others v HM Advocate [8] the High Court of Justiciary held that a delay of eighteen months in the issuing of an appellate decision interfered with the Article 6 rights of the appellants to have their cases determined within a reasonable time, and once again sentences were reduced to reflect this. In two unreported cases in March 2011 referred to in Reed and Murdoch’s “Human Rights Law in Scotland” the appellate court declined to grant warrants to apprehend unsuccessful appellants who had been on bail throughout a lengthy appeal process given the short period remaining of the sentence[9]. This, with respect to the critics of the failure to apprehend those who remain at large for over a year, is on all fours with current policy. It was certainly police policy in the fairly recent past that where a non-appearance warrant in summary proceedings had been outstanding for over a year without arrest, the police would no longer take active steps to enforce it, although were the offender to be arrested for a fresh matter the existence of the warrant would be discovered. A long period of good behaviour can also prevent extradition where the offence is not of the gravest nature. In Republic of South Africa v Headrick[10] the sheriff declined to order extradition on fraud charges where the warrant was issued in May 1996 and extradition proceedings commenced in 2004. A similar view was taken in the more extreme case of Commonwealth of Australia v O’Neill[11] which an extradition request signed in 2008 in respect of an armed robbery in 1979 where the warrant to recall to custody for breach of parole license was issued in 1986. There may also be supervening medical issues, unknown at the outset, that militate against the law taking its course. This was the situation in Lord Advocate for the Government of the USA v SN[12] which related to alleged bomb threats in 2012. By the time the case reached court unchallenged medical evidence showed that the accused now suffered from a plethora of medical issues including dementia. In conclusion then, there is clearly a strong case for increasing resources that will allow more robust risk assessment before release, and to increase the likelihood of swift apprehension of those unlawfully at large. However, I remain far from convinced that the case for root and branch reform of the HDC scheme has yet been made out. [1] For example, https://www.scotsman.com/news/snp-criticised-for-soft-touch-justice-as-home-detention-curfew-breaches-rise-1-4770085 [2] The Home Detention Curfew Licence (Amendment) (Scotland) Order 2016 [3] for further details, see http://www.scotland.police.uk/assets/pdf/151934/184779/electronic-monitoring-offenders-sop, published 25th May 2018 [4] For a fuller explanation of the distinction, see Stuart (Simon) v HM Advocate 2010 SCCR 498. [5] SPS Annual Report and Accounts 2016-17, Appendix 8a [6] http://www.parliament.scot/Management%20of%20Offenders%20(Scotland)%20Bill/SPBill27FMS052018.pdf, published 2nd February 2018 [7] 2003 SCCR 82 [8] 2012 SCCR 411, [2012] HCJAC 32 [9] Shepherd v PF Dornoch, Cairns v HM Advocate referred to at Para 5.187 [10] Edinburgh Sheriff Court, 27th October 2005 [11] Edinburgh Sheriff Court, 11th June 2010 [12] Edinburgh Sheriff Court, 23rd October 2017

Readers might like to note that, following the issuing of this paper, many of the more controversial aspects of the draft code were withdrawn or reduced in scope. The Scottish Legal Aid Board Criminal Code of Practice Consultation Comments by The Society of Solicitors in the Supreme Courts of Scotland For over 230 years the Society of Solicitors in the Supreme Courts of Scotland (“SSC”, hereafter in this paper “the Society”) has been a significant part of the Scottish legal landscape. It has been involved in legal education and training and its members have contributed to upholding the integrity and distinctive nature of Scots Law. While based in Parliament House in Edinburgh, it draws its membership from all parts of the country and its members have appeared in every court in Scotland. The Society is a constituent part of the College of Justice in Scotland. Its aims include participation, as Collegiate members of the College, in seeking to maintain the highest possible standards of professional conduct and expertise in the conduct of business before the Supreme and Inferior Courts, and helping to strengthen and uphold the Law of Scotland and to encourage members both in public and professional life. It welcomes the opportunity of responding to the Scottish Legal Aid Board’s consultation. The creation of a Code of Practice The Society recognises firstly that, in criminal cases, the Board is tasked with providing public money to solicitors carrying out criminal defence work, and that it has a duty to ensure that this money is spent appropriately. It further notes that Parliament has expressly provided power to the Board to create the Code. Section 49 of the Crime and Punishment (Scotland) Act 1997 (c.48), in force from 1 October 1997 introduced inter alia Section 25B into the Legal Aid (Scotland) Act 1986. That section provides that, without prejudice to the generality of its obligations, the Code may make provisions in respect of six specific areas of legal practice. The present Code was published in April 1998 and has not been substantially amended since then. The Society notes, though, that the Board produces no evidence that there are actual defects or deficiencies in the present operation of the Code, or that its requirements are regularly flouted. There can be no objection in principle to a body tasked with the distribution of state funds providing guidance to those persons and organisations receiving payment from these funds. Updating the Code The Board correctly draws attention to the fact that the original Code of Practice was published in April 1998, and has remained relatively unaltered since that time. The Society agrees that updating the Code (as provided for by Section 25B (8)) can be of assistance, and considers that a number of the provisions introduced into the new draft code are not controversial. Obligations to retain up-to-date legal knowledge, to operate proper case management systems, to keep a record of meetings and advice, to report outcomes and to advise the Board timeously of material changes in circumstance are all sensible and desirable, and thus suitable for inclusion in the Code. Other provisions, though, cause the Society more concern The Society notes with some concern that the present draft code focusses considerably more heavily upon issues regarding time recording, note keeping and retention, and letter writing than it does upon the core skills of criminal practitioners, namely in-court advocacy and the ability to convey information quickly, clearly and comprehensibly to persons who find themselves in stressful situations. It considers that this is, to say the least, regrettable. Indeed, it might be argued that the key principles enumerated in Paragraph 1.6 might be self-contradictory, as it is easy to envisage a situation where displaying a high standard of professionalism and independence, acting in a manner consistent with the client’s best interests might conflict with a duty to engage with the Board in a timely manner; one cannot simultaneously provide high quality advocacy and make oneself available to the Board in accordance with its expectations. While recognising the Board’s duties to ensure that public money is properly disbursed in respect of necessary legal services, by far the most important work done under a legal aid certificate is that which takes place within the courtroom. Again, the Society notes the absence of any evidence that sheriffs and judges are becoming dissatisfied by present advocacy standards and wonders why the Board feels that such wide-ranging extensions to the Code are now required. Are parts of the Draft Code ultra vires? At the outset, the Society observes that the present draft Code impacts upon several areas of professional practice that already fall within the regulatory regime operated by the Law Society of Scotland. All solicitors registered to provide Legal Aid are members of the Law Society of Scotland holding a valid current practising certificate and are subject to its professional disciplinary regime. Section F, Division A of the Law Society’s Section entitled “Rules and Guidance” contains a Code of Conduct for Criminal Work. The Society points out that it “does not have the status of a Practice Rule but may be referred to for guidance in assessing whether a solicitor’s conduct meets the standard required of a member of the profession”. Accordingly, in determining what the Law Society considers to be proper professional practice, the Code features the word “should” on 82 occasions and the imperative word “shall” on 11 occasions. It is clear that the Code favoured by the professional body with responsibility for monitoring the conduct of solicitors grants a considerable degree of discretion to the person providing advice and representation in a criminal case. In contrast, the word “should”, encouraging good practice, appears in the draft code 24 times yet the imperative “must” appears on no fewer than 116 occasions. Non-compliance with an imperative may expressly have severe consequences for a practitioner and it therefore seems essential that those matters where compliance is mandatory should not impact upon the professional decision-making of the solicitor. The Society observes that the Act authorises the Board only to prepare a draft Code of Practice. Section 25B (3) (a) requires the Board, after drafting, to “send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify”. The Code may thereafter be amended, but at the conclusion of this procedure it becomes the statutory responsibility of Ministers to consider the Code. Section 25B (5) grants authority to the relevant Minister to approve the draft Code “with or without modification”. It therefore proposes that the comments in this paper be disclosed both to the relevant bodies required under Section 25B (3) (a) but also to the Minister holding ultimate responsibility for bringing it into force. The Society has several concerns about the proposed Code. The monitoring of a solicitor’s performance with a view to a decision by the Board as to whether he should continue to be registered is governed at present by Section 25B (1) (e); the legislation provides that this monitoring is to include – (i) periodic review of his handling of particular cases by other solicitors or by the Board; (ii) (assessment of) the extent to which he attends courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics. Again, the Society does not view either of these requirements as controversial. However, the draft Code goes far beyond peer reviewing and verification of undertaking CPD, and many of its proposals seek to impose highly onerous requirements on practitioners without any direct authority in terms of Section 25B (in this regard the Society does not consider that the use in the section of the word “including” and the phrase “without prejudice to the generality of the foregoing” as sufficient in law to permit such radical changes) or any apparent prior discussion with the Law Society. For example, Paragraph 3.7 of the draft Code states - “Once registered, if a solicitor conducts fewer than twelve cases in any practising certificate year, they must attend or conduct a minimum of 15 hours of relevant courses in the following practising certificate year.” There is no reason given for this provision, nor is there any definition of what is meant by “conducts”. Where different solicitors appear at pleading diet, intermediate diet and trial diet, does each “conduct” the case? Does the solicitor who takes instructions in one office but asks the solicitor in the office nearer to the court to appear to tender the plea “conduct” the case? Absent clarification, this provision is likely to give rise to a number of differing interpretations. This provision seems likely to be highly prejudicial to practitioners in rural areas, who might retain registration for proper reasons (being instructed where there is a conflict of interest, change of agency, acting for third accused in a multiple accused case) but only occasionally appear in court. Is there any evidence that such solicitors are the subject of regular complaints regarding inadequate professional service? If so, should this not be specified? If not, why is this proposed? There must be a suspicion that the Board regards monitoring such occasional practitioners as an inconvenience, but that cannot be a legally valid reason for seeking to de-register a competent practitioner. Particular issues of concern Paragraph 4.1.2 creates certain obligations in respect of offering advice as to progress and resolution, including an obligation to advise on matters of sentence discount for early pleas. These must, we submit, be matters for the solicitor’s discretion, not for direction by the Board. Where an accused in custody vociferously protests innocence, states an alibi, and names potential defence witnesses, how can it ever be the duty (with consequences in respect of continuing registration of there is non-compliance) of his chosen legal representative to advise him of the potential consequences of an early plea of guilty? Many of the other duties imposed by draft Paragraph 4.1.2 proceed upon the assumption that the solicitor will be fully and timeously instructed throughout the case; experience tells us that this occurs in fewer than 50% of summary trials, but even where contact from the client, despite proper communication to him, remains minimal, the duty to communicate and advise remains that of the solicitor. This in effect pays little heed to the realities of criminal court practice. Paragraph 5 seeks to impose some strict requirements in respect of time recording, including duties in respect of retrospective amendments of timesheets. The obligations extend to making comprehensive file notes of all conversations, including telephone calls, texts and e-mails; the name of the person undertaking any work on the file must be recorded on file notes, including their status as well as start and finish times of all activities. The reason for this level of recording being obligatory, particularly in summary fixed fee cases where none of this work is separately remunerated, is nowhere explained. Paragraph 7.9 introduces, without consultation, a wholly new and quite radical obligation in a complex case: “a solicitor must establish, maintain and amend as necessary a structured and demonstrable plan for the preparation and perusal of productions. The plan must be submitted to SLAB if requested, and along with any request for sanction in relation to work or items of unusual or significant expenditure in the case referred to or relating to work covered by the plan. In consultation with counsel, the plan must include a process of determining priority items… to avoid either duplication of work or the perusal of material that is irrelevant, unnecessary or otherwise cannot be justified.” This impacts entirely on the professional discretion of solicitors and counsel. It obliges the solicitor, in his own time and at his own expense, to prepare a plan that will contain information usually regarded as both privileged and confidential. The Board may demand sight of it at any time, and therefore it must be presumed that the Board may seek to arrogate to itself the responsibility for case management. Paragraph 4.2.3 states “By electing to provide criminal legal assistance, solicitors accept that remuneration will be in accordance with prevailing fee structures and rates provided in the relevant regulations.” There is no explanation as to how this sits alongside the statutory right to request taxation of accounts found in Section 33 (3) of the principal Act. Nor is it clear how the mandatory withdrawal from agency provisions in Paragraph 4.2.6 (by implication, given reference to cases not meeting the criteria for exceptional case status, this refers to summary criminal fixed fee cases) fit with the solicitor’s professional duties, and how this will not operate to the prejudice of a second or later appointed solicitor. The Society submits that these proposed conduct obligations far exceed the obligations of the Board in terms of Section 25B (1) (b) No-one can seriously dispute the appropriateness of the Board issuing its own guidance to the profession. Statute, though, obliges the Board to “prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance”. A code of practice is defined in the Cambridge English Dictionary as “a set of who do a ja set of standards agreed upon by a group of people who do a particular job”. The Collins English Dictionary defines it as “is a set of written rules which explains how people working in a particular profession should behave”. Even allowing that the more purposive definition in Collins is the correct one, the definition does not go so far as to state that a Code creates mandatory obligations, non-compliance with which can have serious consequences. The code may regulate standards of conduct. However, the Society’s view is that Board’s new draft code seeks to impinge upon matters of professional discretion that do not fall within its remit. The appellate courts have regularly, since the decision in Anderson v H.M. Advocate 1996 S.C.C.R. 114, drawn attention to the wide discretion granted to professional advisers in the preparation and presentation of the defence case (see for example Ditta v HM Advocate 2002 SCCR 891, Scott v HM Advocate [2007] HCJAC 68). Where the defence case is not properly presented, the aggrieved accused has remedies through appellate procedure and through the complaints procedure through the SLCC, for which the profession pays a levy. The public therefore has adequate protection and there is no legal or moral justification for the introduction of a third tier of scrutiny. Even were it accepted that the provisions of the draft Code fall with the vires of the Board’s duties under Section 25B (which the Society disputes), issues regarding decisions taken as a matter of discretion should not attract potential penalties based upon the perception of the body funding the case; where a case is privately funded by the client, that accused’s right to challenge the solicitor’s conduct of the case is through professional channels, not by making his own determination. In addition, the draft Code seeks to grant to the indicators of compliance and the Board’s Handbook a status they cannot have. The Criminal Handbook offers guidance in many areas of practice; it does not have the force of law, and where the Regulations conflict with the handbook the regulations must prevail. It is therefore extremely concerning to note at Page 5 of the draft Code (author’s italics) – “a failure to follow the indicators which, had they been followed, would have achieved Code compliance, may be referred to in any procedures relating to registration or exclusion.” The Board states in terms that non-compliance with indicators in a non-statutory Code may be admissible in considering whether a solicitor can continue to practice in his or her profession. It therefore proposes that Ministers grant approval for this without adducing any evidence that such a step is either necessary, proportionate or rational. The evidential basis for this proposal is not produced; how then is the Minister to be satisfied that this provision is a proper one for ministerial approval? It is the considered view of the Society that in these and other particulars the draft Code, if brought into force, exceeds in several particulars the authority granted to the Board by Parliament under section 25B. These parts of the Code are proposed without any evidential basis, and seek to transform the Board into the regulator of all matters of professional discretion currently subject to the oversight of the courts and the Law Society; absent statutory authority the actions of the Board, being itself a creation of statute, must be ultra vires and unlawful. The Police Station Duty Scheme The Society understands that this remains by far the most controversial aspect of the Code. Parliament has now provided in Part 1, Chapter 4 of the Criminal Justice (Scotland) Act 2016 that, with effect from July 2017, every person in police custody has a statutory and unfettered right to legal advice. This includes a right to personal contact with a solicitor. There is no doubt that the provision itself is to be welcomed. The point of first arrest is likely to be a point where persons accused of crime are vulnerable and may not understand the implications of their status. The profession in Scotland took note of Salduz v Turkey (36391/02) [2008] ECHR 1542 and set in motion the train that led us, via several well-known cases, to this point. Scotland, though, has not arrived here via anything similar to the Police and Criminal Evidence Act 1984. There has been no long-standing culture of police station representation. Those who attend police stations in Scotland are thus those who conduct trials, including in many cases jury trials at Sheriff Court level. The nature of the advice given may be crucial to the outcome of the case and it thus appears essential that those offering police station advice are not only well informed as to the requirements of the law, but are fully able to devote their attention to the case. One major change in the admissibility of statements is imminent. Section109 of the Criminal Justice Scotland) Act 2016 relates to statements by accused, and inserts a new Section 261ZA into the 1995 Act. This provides - “(1) Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay. (2) Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence.” The suspect must therefore make an informed choice, based upon professional advice, as to whether to avail himself of this provision. Section 31 of the 2016 Act requires that a person in police custody must be informed of certain rights not more than one hour before interview; these rights include information about the right under section 32 to have a solicitor present during the interview. That Section provides that unless the person consents to being interviewed without having a solicitor present, a constable must not begin to interview the person about the offence until the person's solicitor is present, and the person's solicitor must not be denied access to the person at any time while a constable is interviewing the person about the offence. Compliance with these requirements by those also conducting court work will unquestionably be onerous. This is particularly the case where solicitors have child care responsibilities or responsibilities to family members that are elderly or disabled. Interviews are likely to take place at all hours, day or night. The police officers who conduct an interview in the early hours of the morning will virtually never expect to have spent all of the previous day or the next day giving evidence in court. The same cannot be aid of the solicitor. In order for the statutory provisions to function as designed, solicitors will be expected to provide legal services around the clock. In the absence of proper funding, similar to that offered to police casualty surgeons and other workers in essential services, the work will have to be carried out by court practitioners. This appears likely to conflict with employee rights granted in terms of the Working Time regulations 1998 The Society is concerned to note that immediately after two introductory paragraphs, the Board’s draft Code at Section 7.1.3 states that “non-compliance with this section of the Code relating to duty criminal legal assistance may lead to exclusion of a solicitor from duty criminal legal assistance arrangements, or preclude future inclusion. This may or may not also affect a solicitor’s on-going inclusion on the criminal legal assistance register depending on the circumstances.” The Board’s draft Code imposes, on the face of it, extremely far reaching responsibilities on solicitors and firms offering legal services under the duty scheme. While there is, on the face of it, some recognition that a solicitor cannot simultaneously be in court conducting a jury trial in Hamilton and providing police station advice to a client in Oban, Paragraph 7.1.9 proposes to treat this in some cases as “excessive use” of fall back provisions, amounting to a breach of the firm’s obligations. In the Society’s view this may be discriminatory against (a) small firms, (b) firms whose partners, principals or employees are single parents, new parents or have significant care commitments, (c) firms operating in the less populous parts of the country where travel will be more of an issue. Paragraph 7.1.10, read literally, ignores the possibility that the duty solicitor will be engaged in work in a court or prison at the time a telephone call is made to him or her. Other parts of the Code appear to impose specific duties on solicitors that go far beyond those regarded by the Law Society as good professional practice. The Law Society remains the body tasked by law with considering issues of professional misconduct, and the Society has concerns that the proposed Code trespasses to a significant extent upon this, without its increased powers ever being subject of Parliamentary or professional debate. Why should it be the specific responsibility of a solicitor to enquire into service of the Letter of Rights (paragraph 7.1.19), the duty to do so being that of the police? Where a legally aided client has been arrested on warrant following a failure to attend court without reasonable excuse, why is a consultation not only mandatory, but failure to respond to a request to provide advice may be regarded as a breach of the Code (paras 7.2.2 and 7.2.3, presuming there is an error in the numbering of the latter)? The reasoning behind this provision seems to pay little heed to the reality of the circumstances in which accused persons fail to attend court. In addition, the Society notes that a significant percentage of persons arrested on warrant have been subject to bail. In those cases, the Crown will almost always prosecute for a contravention of Section 27 (1) (a) of the 1995 Act. Even where the accused adduces a reasonable excuse for their failure to attend court and a trial diet is assigned, legal aid is not available for representation in the failure to attend proceedings. Despite this, it is now to become the duty of the solicitor to offer advice immediately upon arrest. Remuneration The level of remuneration for solicitors is not a matter that has fallen within the Society’s competence for many years, and it thus makes no comment upon each of the specific fees proposed and reported to the profession on 8th March. It is obliged to observe that those practising in the criminal courts have undertaken many years of study before qualifying, have undertaken in-office training before appearing in court and are required to provide evidence to their professional body of completion of a set amount of continuing professional development each year. In carrying out their duties to clients and to the courts they must be presumed to do so with a high degree of professionalism and integrity, and as such they are entitled to be remunerated at a level commensurate with their skill and responsibility. In particular, where professional legal advisers are expected to be available to offer advice to persons deprived of their liberty, and where this duty impacts upon their personal lives, they must expect proper reward. The Society is aware that, for example, an attendance at a police station taking a practitioner away from family and friends during the afternoon of a public holiday, or between the hours of 4.00pm and 7.30pm on a Saturday or Sunday do not attract any enhancement by virtue of this being undertaken during unsocial hours. This is unacceptable. If someone is expected by an organ of the state to waive their ECHR article 8 right to a private and family life by virtue of being a legal aid lawyer, they must expect in return that the state will provide them with a proper benefit in return. This is especially so where the person is expected to provide a proper professional service to a person in custody facing serious consequences. It can never be appropriate for remuneration to be so poor that the providers of such advice have to be deprived of sleep, an evening meal or a family life in order to comply with a Code of Practice. Conclusions The Society cannot endorse the Draft Code of Practice in its present form and cannot recommend that its members sign up to the Code as presently drafted. It is happy to engage with the Law Society of Scotland, The Faculty of Advocates (where the Code affects its members’ duties) and the Scottish Legal Aid Board with a view to creating both a Code and a fee structure that reflects the best interests of the public, the needs of the profession, and recognises the distinct and vital skills legal aid practitioners demonstrate in courts, police stations and prisons on a daily basis.

The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 Comments by The Society of Solicitors in the Supreme Courts of Scotland For over 230 years the Society of Solicitors in the Supreme Courts of Scotland (“SSC”, hereafter in this paper “the Society”) has been a significant part of the Scottish legal landscape. It has been involved in legal education and training and its members have contributed to upholding the integrity and distinctive nature of Scots Law. While based in Parliament House in Edinburgh, it draws its membership from all parts of the country and its members have appeared in every court in Scotland. The Society is a constituent part of the College of Justice in Scotland. Its aims include participation, as Collegiate members of the College, in seeking to maintain the highest possible standards of professional conduct and expertise in the conduct of business before the Supreme and Inferior Courts, and helping to strengthen and uphold the Law of Scotland and to encourage members both in public and professional life. It welcomes the opportunity of responding to the Scottish Legal Aid Board’s consultation although it is concerned to note that, in respect of draft legislation issued to the profession on 5th December, responses are expected by 7th December. Given the length of time during which the issues regarding solicitor attendance at police stations has been under consideration, and given that the date of 25th January 2018 as the inception of the new scheme was announced several weeks ago, it is extremely concerning that the Justice Committee expects full representations on this entirely new fee structure to be issued within barely 48 hours. In future, the Society and the profession will expect the government to allow a considerably longer time to make representations. As the Society has previously observed, compliance with these requirements by those also conducting court work will unquestionably be onerous. This is particularly the case where solicitors have child care responsibilities or responsibilities to family members that are elderly or disabled. Interviews are likely to take place at all hours, day or night. The police officers who conduct an interview in the early hours of the morning will virtually never expect to have spent all of the previous day or the next day giving evidence in court. The same cannot be aid of the solicitor. In order for the statutory provisions to function as designed, solicitors will be expected to provide legal services around the clock. In March 2017, we observed “In the absence of proper funding, similar to that offered to police casualty surgeons and other workers in essential services, the work will have to be carried out by court practitioners. This appears likely to conflict with employee rights granted in terms of the Working Time Regulations 1998”. In addition, the Society noted previously that a significant percentage of persons arrested on warrant have been subject to bail. In those cases, the Crown will almost always prosecute for a contravention of Section 27 (1) (a) of the 1995 Act. Even where the accused adduces a reasonable excuse for their failure to attend court and a trial diet is assigned, legal aid is not available for representation in the failure to attend proceedings. Despite this, it is now to become the duty of the solicitor to offer advice, including where requested face to face advice, immediately upon arrest. Remuneration When we last responded to consultation we observed that the level of remuneration for solicitors is not a matter that has fallen within the Society’s competence for many years, and we thus made no comment upon each of the specific fees as proposed and reported to the profession on 8th March 2017. We observed that those practising in the criminal courts have undertaken many years of study before qualifying, have undertaken in-office training before appearing in court and are required to provide evidence to their professional body of completion of a set amount of continuing professional development each year. In carrying out their duties to clients and to the courts they must be presumed to do so with a high degree of professionalism and integrity, and as such they are entitled to be remunerated at a level commensurate with their skill and responsibility. In particular, where professional legal advisers are expected to be available to offer advice to persons deprived of their liberty, and where this duty impacts upon their personal lives, they must expect proper reward. We note that the present fee proposals represent an increase from the previous ones, although there must remain some concern as to whether practitioners will in general be happy to accept an increase of 33% for unsocial hours work, when 50% would generally be regarded as the minimum increase in fees for work of this nature. The Society is aware that the Law Society of Scotland’s Criminal Legal Aid Committee, which has undertaken research into the social benefits of legal aid and of the potential financial impact of these proposals upon its members, will be submitting its own response. As that body has more experience of the likely effect of the proposals upon both urban and rural legal aid practitioners, we propose that Ministers and the Justice Committee have regard to this information and any representations. The Society is encouraged to note that the new definition of “unsocial hours” encompasses all times outwith 7.00am to 7.00pm on normal working days that are not public holidays. This is likely in itself to be acceptable to many of our members, although it must be reiterated that inadequate time has been provided for proper consultation. If someone is expected by an organ of the state to waive their ECHR article 8 right to a private and family life by virtue of being a legal aid lawyer, they must expect in return that the state will provide them with a proper benefit in return. This is especially so where the person is expected to provide a proper professional service to a person in custody facing serious consequences. One member of this Society was recently obliged to leave home at 11.50pm to attend a police station for consultation in connection with a serious allegation. Following consultation, it emerged that the police doctor would not be in attendance for some hours and the interview with the suspect could not resume until he had taken scientific samples, consent for which was given after consultation. The result of this was that the practitioner, who was duty solicitor, left the police station after 6.15am and required to be in court before 10.00am. It can never be appropriate for such a massive disruption to normal living patterns, where the advice may be crucial to liberty and livelihood of a suspect/accused person, to attract remuneration at a level actively discouraging to the qualified professionals tasked with providing the service.

This post was originally written in July 2018, when talk within the legal profession, and especially amongst those plying their trade in the courts of Scotland, was dominated by the shock and revulsion at the attack on a respected and experienced lawyer of 35 years’ standing, seriously assaulted with a knife outside his office a matter of yards from the entrance to Glasgow Sheriff Court. More recent events suiggest that the post requires to be updated; the original text below is between quotation marks. "Joseph Shields of Gallen & Company is not an SSC member, but the Society sends its sympathy and best wishes to him and his family at this difficult time, and hopes that he will recover from his injuries. Perhaps the greatest concern is the suggestion (although as yet unproven) that the reason for the attack was related to his work as a lawyer. Those who choose to practice in the field of criminal defence know that they will never win a popularity contest; there is widespread public distaste expressed towards those who have the temerity to represent those charged with the most heinous of offences, with little recognition that the right of every accused person to have someone speaking in their defence has long been a bulwark against arbitrary state power. The notion that every person accused of a crime is entitled to test the strength of the case against him or her is not always well understood; too many otherwise intelligent people take the view “you wouldn’t be charged unless you were guilty”, and thus regard the expending of public funds on criminal defence as unnecessary. Even as legal aid payment rates fall ever further behind the rate of inflation, and a reduction in crimes and prosecutions squeezes the criminal bar ever tighter, public attitudes show little sign of softening. The distaste for lawyers is not confined to the criminal courts. Society has become much less respectful of professionals, much less deferential, and the public expectation of service has changed markedly. In some ways this has been a good thing, as demonstrably inadequate services can now have consequences, although some feel the pendulum has swung too far. Anyone engaged in any form of litigation, and indeed many practitioners who never see the inside of a courtroom, must expect criticism, challenge and even abuse on a daily basis. In my thirty-plus years in practice I have seen vast changes in the attitudes of clients to the providers of legal services. In modern practice I almost expect my advice to be challenged, and every piece of advice is now put in written form as soon as possible. Verbal challenge, and sometimes confrontation, is a fact of life. The notion that lawyers owe a duty to the court and to their professional body, and thus are not there to act as unquestioning mouthpieces for the undeserving, has become lost in the public mind. Until recently, though, the notion that the provision of legal advice, no matter how unpalatable, would lead to physical violence was almost inconceivable. No lawyer should ever have to do their job looking over their shoulder worrying when they will be stabbed, slashed, or struck with a baseball bat merely for doing their job. It is twelve years since Leslie Cumming, the Law Society’s Chief Accountant was seriously assaulted outside his own home. That was regarded as unique, but in subsequent years both verbal and physical abuse of lawyers seems to have increased. There is evidence of lawyers seeking police protection. This cannot be ignored any more. People can and do react badly in times of stress, but the attack on Joe Shields appears to have been deliberate and targeted. No matter how aggrieved the person behind this attack may feel, this was an attack upon an officer of court at his place of business, presumably based upon his actions on behalf of a client. We must all fervently hope that the perpetrator(s) are soon apprehended, and then given a fair trial. What would be even more welcome would be some recognition by the state and the public that matters have gone too far, and that open disrespect has consequences. No-one is asking us to go back to the days when a lawyer’s advice was effectively beyond challenge, but in the era where racist and homophobic abuse, attacks upon emergency workers (and perhaps soon retail workers) see the full force of the law visited upon offenders, perhaps it is time for Holyrood to recognise the value court and other lawyers of all types bring to society, and treat us as worthy of protection. No-one should ever be afraid to do a job that should never carry the risk of physical danger." The above was written six months ago. To date no-one has ben arrested for the attack on Joe Shields, but the public perception of lawyers has probably continued to diminish, due in no small part to inaccurate press coverage of some high profile cases. While the profession both north and south of the border remains united in its view that cuts to legal aid funding have gone too far, and have driven able lawyers out of the profession, press reports continue to mislead the public as to how Legal Aid operates, with potentially serious consequences. As is widely known, late in 2018 a man named Jack Shepherd, in receipt of Legal Aid, was convicted in his absence of manslaughter by gross negligence, represented by solicitors and counsel, and sentenced to a period of imprisonment. After being unlawfully at large for some months, he is now in custody in Tblisi, Georgia, seeking to prevent extradition. I do not propose to address the question of whether trials in absence are a worthwhile addition to our legal system; suffice to say they are competent in both England and Scotland although only in very limited circumstances here[1]. Nor is it my intention to express a view on the offence of manslaughter by gross negligence, or upon the decision to grant legal aid to the accused. The fact remains that, rightly or wrongly, the Legal Aid Agency, England's equivalent to SLAB, granted legal aid for the conduct of the case by solicitors and counsel. A jury has reached a verdict, and an appeal has been marked against that conviction. Leave has been granted. Scottish readers will know that our appellate courts are not noted for the number of grants of leave to appeal, and for the experience in England I simply quote to comments of noted author and blogger The Secret Barrister - "If a High Court judge reading the application considers that you have a good argument that deserves a full hearing before the Court of Appeal, they will grant permission. To put this in context, 90% of all applications for permission to appeal are refused.[2]" While it is not difficult to understand why Mr Shepherd's personal conduct has generated little sympathy, it was both surprising and concerning to read in the "Daily Mail" on 2nd January that " Almost £100,000 of taxpayers' money has been handed to Tuckers Solicitors" and in addition that "The firm will now receive even more legal aid, having successfully argued the killer can have an appeal after citing the European Convention on Human Rights". The implications here are clear. Firstly, Legal Aid is handed over without any independent assessment of the work done on the case, and every penny goes straight into the pockets of the solicitors. For the record, the firm of Tuckers advises that their fee net of VAT was of the order of £30,000, and further observes that the appeal against convictuion is based upon matters of law. Not only have the firms efforts to explain the role of the defence lawyer received much less coverage than other aspects of the case, it was reported on 28th January that the partner representing the appellant has received a stream of threatening and abusive correspondence, culminating in a death threat purportedly from a Nazi supporter, which warned him he had 48 hours to state that he was "no longer supporting or providing (sic) legal aid" to his client or certain consequences would follow. The author claimed to be aware of his home address. This vmust not continue. No-one should ever be in fear of serious injury or death merely for providing a professional service, whether as lawyer, doctor, accountant, teacher or any other job involving dealing with the public. We have seen an MP murdered at a constituency surgery and the fear is that it is only a matter of time before the same happens to a lawyer as the result of their work. We as a profession recognise that attacks upon the children and the vulnerable, upon law enforcement officers, upon emergency workers, and violence in relationships with a power imbalance are all factors that aggravate the nature of the offence. Perhaps we too need the protection of the courts in which we practice. [1] Criminal Procedure (Scotland) Act 1995, s. 92 (2A), which may not yet have been used by any court [2] https://thesecretbarrister.com/2019/01/05/dont-let-the-jack-shepherd-stories-on-legal-aid-distract-you-from-the-governments-cynical-agenda/