Bad law, bad politics – and a really bad attitude

by | 3 May 2023

Other than the damaging political cost, the issue that bothers me most about the proposed justice reforms isn't just what they change but why they exist in the first place.

As if there wasn’t enough going on to cause concern, the Scottish Government has created a new battlefront which is going to be yet another painful one – its current justice proposals. It is hard to see how this is going to bring any good and it is almost certain to cause major problems for a government not in need of them. It is hard to understand why it is so keen to press ahead.

When I write about justice issues I always begin by being clear that justice policy is probably the area of public policy about which I know least and I’m certainly not a trained lawyer. There is already a lot of legal commentary about these proposals and I will leave the finer points of law to those who understand them better. There are just two points I want to make, one philosophical, one political.

First and briefly, what seems obvious to me is that removing the ‘Not Proven’ verdict isn’t going to lead to more convictions but more ‘Not Guilty’ verdicts. It is populism not good policy – people who get Not Proven verdicts are angry and blame the verdict for the trial rather than the other way round. This ‘whatever victims want’ is bad law. If you must, return to Proven and Not Proven, but I can’t see the benefit.

Likewise the reduction of the numbers on a jury from 15 to 12. I presume this is a pure money-saving move and I can hardly get agitated about it, but I must say that this just seems like the Anglicisation of an ancient, independent justice system which I regret.

The big issue is the proposal to pilot ‘justice without juries’ in rape cases. There is so much to worry about. This is not based on law but on ideology, the belief that convictions rates are too low so much be increased. But that means there must be a threshold where they aren’t too low, which makes this effectively an unspoken target. Justice through targets is a terrible idea.

So is the creeping sense that we’re creating a set of bespoke justice systems based on the identities of victim and accused. So is creating the precedent for moving to elite justice when justice of your peers isn’t doing what you want it to.

And that is what is at the heart of my philosophical point. These proposals follow a trend that has worried me for a long time. That trend is for the ruling classes to assume that the ruled classes don’t know what they’re doing and need protected from themselves.

I have identified this attitude everywhere in public administration. Public administration is massively, massively dominated by the Professional-Managerial Class (PMC). This is a large social class which does a university degree with the intention of moving into public management (or does so subsequently), often in the public sector or its agencies.

Senior members of the Professional-Managerial Class really do believe that Scotland’s centralised, anti-democratic public structures are all there to protect Scotland from the uneducated

Much has been written about the PMC but it is insufficiently understood in politics. It is wealthy and socially liberal but small-c conservative on the issue of social change and pretty Big-C conservative on economic change. It is one of the main propagators of identity politics, is incredibly urban and talks in a weird consultant-speak dialect not spoken by anyone else.

The PMC has good pay and great pension arrangements but they still intend to spend the twilight of their career monetising their insider knowledge somewhere in the private sector. And, like any ruling class, they have an ideology that explains and justifies their privilege – they are the grown-ups who run things for the plebs. They are powerful because their personal attributes make it so.

I’ve been among them my whole life and it is worth saying that there are many more public administrators who are in it for the greater good of society than there are who are high on their own supply of moral and personal superiority. But the more senior they get in the public sector machinery the more convinced they become of the righteousness of their position.

And if there is one thing I’ve learned about the senior reaches of the Professional-Managerial Class its that none of them have ever met anyone who doesn’t have a degree unless that person is providing personal services for them for cash. They don’t know non-graduates so they infer that everything that keeps going wrong in society must be something to do with the uneducated.

Perhaps they’re too lazy to work. Perhaps they are unproductive not because of a failure of capital investment in Scotland’s economy but because they’re thick. And lazy. They smoke and drink and get obese. They expect a comprehensive, free and effective NHS and (get this!) they want someone else to pay for it.

Even as they get older and their children near adulthood, they still haven’t worked out that they’re supposed to send their kids to conversion therapy – sorry, I mean a university degree. So they pass their failure down to their children. And damn them they keep voting for the wrong things. They’re sexist, racist and generally not to be trusted.

I exaggerate very little in the above. Senior members of the PMC really do believe that Scotland’s centralised, anti-democratic public structures are all there to protect Scotland from the uneducated.

Among comments I’ve heard at tables I’ve sat round are ‘of course they’ll take freebies if we let them’ (that was prescription charges), ‘god, you can’t let them decide how you actually spend the money’ (that was participatory budgeting), ‘could someone in the room just explain to them that they can’t have the NHS they want’ (on demands for more funding) and ‘if we let towns decide their own planning permission it’ll be chaos’ (on local democracy).

Now we’re hearing that the problem with jury trials is that the juries think all women are asking for it and a little bit of rape isn’t that big a deal (or words to that effect). The possibility that the working class people on a jury understood the judge’s instructions that they must find evidence and corroborating evidence to a standard of justice of ‘beyond reasonable doubt’ and that that can be hard to achieve in rape cases isn’t considered.

I am very unpersuaded that the Scottish Government will manage genuinely to improve the justice system with these proposals but certain this is going to be a long and bitter battle

I find this whole affair objectionable. My experience on a jury was that some of those who didn’t have degrees understood the case better than those who did. Some of the graduates at the trial I was on the jury for were certain it was cleverer to try and work out the defence the accused should have presented and prosecute him on that.

It was a non-graduate who pointed out the judge’s instruction to us was to assess the primary evidence (a man who claimed another man had slashed his face with a knife) and the corroborating evidence (a doctor who dismissed the defendant’s claim it was an accidental injury caused by falling on glass and who confirmed it was inflicted with a sharp metal blade). We found the accused guilty and only then discovered the guy was a violent serial offender.

Juries get it wrong (look at the US), but so do judges (look at the US). They simply tend to get it wrong based on different class biases. That’s why mixed juries of varying social classes and varying personal identities carefully assessing evidence based on clear legal guidance remains our best hope of justice.

My question is therefore a simple one – do you really trust these major reforms to a Professional Management Class whose meritocracy brought you Edinburgh’s tram debacle, the ferry-building debacle, the smoke-detector debacle and many, many more debacles appearing in a newspaper near you soon? Meritocracy? Do you have any evidence for that? I’ll require corroboration.

It is a terrible shame that one more legacy of Nicola Sturgeon’s policy-by-slogan agenda is that this proposal has landed on the blameless Angela Constance, one of the better members of Cabinet. Sadly she has decided to take yet another one for the team and defend this.

And that is my second point – why pick this fight at all? What is the Scottish Government getting out of this? Since my 20s the two aspects of the justice system about which I have always stopped to read an analysis when I’ve seen one is prison reform and how to improve the experience of rape trials for the victim. It’s clear to me that we haven’t cracked either issue yet.

But I’ve just never read an analysis which persuaded me that shortcuts to guilty verdicts is the solution. It is a recipe for miscarriages of justice. In the end (this shouldn’t be controversial but it is), the justice system isn’t about giving the victim closure but about dispassionately seeking the truth where a crime has occurred and the most important truth is that we should never use the power of the state to imprison an innocent person.

So I am very, very unpersuaded that the Scottish Government will manage genuinely to improve the justice system with these proposals. But I’m certain this is going to be a long and bitter battle with most of the legal fraternity, most of the civil liberties organisations and most of the public firmly on the other side.

When you’re a government which is accumulating albatrosses at a rate which makes you hard to see underneath them all, picking another damaging fight seems mad to me. I’m all for bold action, but if your actions cause real concern for points of law, might even be illegal, contain serious inherent philosophical problems and are opposed by all and sundry, you may be mistaking bold and foolhardy.

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