Leave them judges alone

A dressing down like this usually goes on behind closed doors. Not this time. The letter on my desk is from the lord justice general of Scotland; he is head judge. The object of his ire is the lord advocate of Scotland; she is head legal officer … the procurator fiscal. The tonne of bricks on her desk is because she “publicly asserted that the decision of a trial judge was wrong”. And I can tell you that if the good lady lord advocate had said the same in private, she would have got a private dressing down. Lambasting a tribunal for its decision is, how shall we put it, “inappropriate”.

The letter arrived on my desk courtesy of Bob Davis, the chairman of the Adjudication Society. He and I see eye to eye on what we call the “bullying of tribunals”. It goes on during the dispute process and it goes on after a decision is handed down. It is ever so, ever so dangerous to beat up a dispute decider, because next time they might – only might – shrink from an unpopular or tough decision. No tribunal, whether under a judge, arbitrator or adjudicator is worth a ha’p’orth unless it is wholly and completely independent and fearless. The truth is, we don’t always know the effect of a dose of ridicule.

Let me tell you what happened in Scotland. Last week a senior trial judge threw out the prosecution’s case against Angus Sinclair. He was on trial for the murder of Helen Scott and Christine Eadie, both 17, in October 1977. The strangled girls had been dumped in East Lothian. It’s known as the World’s End tavern murders; that place is on Edinburgh’s Royal mile. Seemingly the march of forensic science provided the crown’s evidence.

Then, last week, at the trial, defence counsel made an application that there was “no case to answer”. That is not a point for the jury to decide. It is for the judge alone. The trial judge heard all the argument, thought about it for two days, and decided there was not enough evidence to ever convict Sinclair.

I bet anything you like the judge didn’t reach his conclusion happily. Mr Sinclair is serving a life sentence for the murder of another 17-year-old Glasgow girl, Mary Gallagher, in 1978, but that doesn’t make him guilty of this murder. Anyway, the advocate general, the prosecution team, the police were perplexed. The chief law officer saw fit to discuss the matter in parliament. She was, she said, entitled to set the record straight. In short, the evidence was in her view sufficient to put before a jury.

The advocate general, the prosecution, the police were perplexed by the decision. The chief law officer saw fit to
discuss it in parliament

Oh dear. “The plain implication,” said the chief of judges, “was that you were publicly asserting that the decision of the trial judge was wrong.” He went on to say that whether it was right or wrong, it was “inappropriate” to challenge it in a public and political forum.

The lord advocate in her reply says she had no intention of undermining the judiciary. Her intention was to counter press criticism of her prosecution colleagues. Be that as it may, it is not on. Here is part of the lord justice general’s letter:

“The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the lord advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such.

“If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions, can reasonably expect to have that their decision will not be openly criticised by other organs of government.”

All this might strike you as odd. I mean, if you can’t cope with criticism get out of the kitchen. Ah no, it doesn’t work so neatly as that. I bet that the trial judge is hard-boiled. But there are lots and lots of people who perform tribunal judicial decision-making jobs. If just one person shrinks from an unpopular decision– even unwittingly – the system collapses. Arbitrators, adjudicators and judges include some sensitive souls. Who knows what damage ridicule will cause?