Is Scots Law Promoting Justice?
The Internal Consistency of Due Process in Scots Criminal Law
Craig Archibald McIntyre
Page 232 2012 SCOLAG (October)
Justice: a term with which generation after generation of young Scots lawyer has grappled. Pride of place in the legal dialect; it is supremely abstract yet intuitively corporeal in its distinctiveness and familiarity. It is something to which the complicated statute books, the suspiciously peaty smelling academics, and the fairy-tale-like Chambers Street and Royal mile seem to lead towards. It can be used as a confirmation of the legal system solving a particular case satisfactorily: "justice was done"; or abused to escape legal argument in favour of manipulative emotivism: "it's simply not justice". It is the end to Scots law's means, and it is certainly something that ought to be promoted by it, but first of all, what it is really?
Those reading who have already began feeling dizzy in anticipation of half an hour of eye-rolling, unexcited by the prospect of being lectured about such lofty concepts by not-another-young-idealist, barely in his twenties, whose only prior practical experience of such discourse was informing a tutor that he thought his exam mark "a bit harsh", need not worry. Modes of the divine will be left to another writer for the simple reason that this one does not know the answer. Indeed, it is for the reason that most people have their own idea of justice that there is any need for a justice system in the first instance, let alone for the development of one as historically envied as the one found in Scotland. Without a legal system, we wouldn't know whether to cut off the thief's hands or just ask him nicely to return the telly. Theoretically, the will of the people is tapped into through the democratic process, and crystallised in rules that provide predictability, consistency, and congruence. One man: one vote, one woman: one vote, six million people: one process. Justice is in the correct application of this system through compliance with the fundamental principles that the justice system purports to be in place. In short, the Scots legal system is justice, and it promotes justice by being true to its principles. This essay will assess the extent to which Scots criminal law remains true to its procedural rules.
The Internal Perspective
It might seem unusual or uncomfortable to say that justice is an internalised concept. Generally when such points are raised the instinctive course of argument pertains to Nazi law. The discussion then proceeds in the fairly reliable format of Radbruch-Hart-Fuller (in no particular order) until coffee flasks run dry and cigarette packets hollow and individuals take to leave, each happily resigning to the mutually satisfactory conclusion of agreeing to disagree. It seems shallow to suggest that atrocities could be carried out in the name of law and be called "justice", yet the unjust law not being law gives rise to the unanswerable question that Leff boldly articulated as: "who sez?"
The best way to justify this internality of justice is by considering where we consider it occurs in the justice system. Veitch analyses an example provided by Rabelias, where Epistemon and Pantagruel discuss whether rolling a dice would adequately solve a hard case, as the 'aporia' fills both of the avenues that legal judgement could reasonably end. Veitch criticises this, claiming that hard cases mean full reasoning is all the more morally imperative. Expanding on this, I have the following to offer: as far as possible, imagine an unfathomably terrible sheriff. Despite his best efforts he is so awful that he fails to successfully interpret and apply a single subsection, and so ignorant of common law that he thinks Donoghue v Stevenson pertains to a frog in a bottle of limeade. In terms of Dworkin's Hercules this man is the alopecic Samson. This sheriff notices that every single time he makes a decision the legal journals brim with ink enough to make an octopus blush, all in unanimous criticism of the outcome, and so he decides that instead of persevering with his well-meaning attempts, he would simply roll a dice, as at least that way there would be a probability of the correct outcome. Does this change the immanent justice to be found in the rolling of the dice? The answer, of course, is that it does not; the result of the throw remains arbitrary and unguided. The injustice is found in the failure or refusal to engage the rules that operate at a level over and above the sheriff, as it is only by engagement with which that he can successfully operate his important institutional role. Justice then, is internal and layered. In Scotland, the upper layer in moral terms is the rule of law.
Not only can this be made sense of from a hard-line positivistic sense, but as MacCormick suggests, acceptance of and adherence to the rule of law constitutes an independently moral position. Irrespective of the consequences of such an embrace, the act of a legal system limiting itself under certain rules in order that such consequences (which are overwhelmingly regarded as positive) will flow is an ethical position in itself. In my opinion, the rule of law operates as an ethically responsible "who sez" for the Scottish legal system to uphold.
The Conditions of the Rule of Law
There is no question that, constitutionally, the laws of Scotland function under the rule of law. Under the Scotland Act 1998, the competence of Parliament is limited by the European Convention on Human Rights, which describes in its preamble that adherence to the rule of law is assumed. Other notable international documents, such as the UN Declaration of Human Rights are also to be interpreted on this understanding. These cold observations on the imposition of the rule of law are unnecessary, though, as it is more reflective of the reality to say that the legal system enthusiastically champions it, and had done so for a long time before these documents were conceived. Before examples of Scots law overstepping its boundaries are provided, a brief summary of what is required by the rule of law will be helpful in framing them. There are two main conceptions of the rule of law, found in "thick" or "thin" formulations. Thick formulations are more comprehensive, tending to put the concept across through a collection of rules,such as the definition provided by the International Bar Association. Thin formulations, notably Dicey's, strip the rule of law back to its essentials. While advocates of the former claim that thin formulations fail to capture the concept in a practical way, the latter argue that thick formulations are an unnecessary step forward into implementation as opposed to description, resulting in the rule of law losing the potency of its core meaning. Innumerable pens have run dry in the attempt to capture the essence of the rule of law, but one particularly convincing attempt was made by Raz, who set a limited number of conditions for a rule of law abiding legal system, maintaining the simple potency of thin formulations in conditions such as clarity, coherence and non-retroactivity, with the key aspects of thicker formulations such as access to a fair trial. What can be taken from this is that where a legal system acts inconsistently with the principles it propounds, particularly when these concern the fair trial, it clearly violates the rule of law, and thus fails to promote the justice it is intended to deliver.
The query is to what extent, then, does Scots criminal law remain faithful to these standards? Is it reasonably clear and coherent in its application of proper criminal legal process to activities that are properly regarded as crimes?
Criminal law and its internal formulation
Criminal law is not an "ontological reality". Just as we cannot gaze into a telescope, or dig deep into the earth to find the axioms on which to base our rules, we cannot simply apply logic in order to establish what should be criminalised or what to be called a criminal should entail. It is apt to note that if democracy alone provided the answers then Scotland would probably have the death penalty, and human rights would be fundamentally alienable.The rule of law serves to frame state-sanctioned violence in moral terms, and while arguably all legal interpretation is the application and legitimisation of violence, criminal law is particularly so. When the liberty of the citizen is at stake, or even just the ramifications of labelling someone a "criminal" are considered, extra care has to be taken to ensure that justice is done (and thereby promoted). Criminal law holds a somewhat special place in Western legal systems, including Scotland's, in that its distinctiveness is viewed socially and legally as more decisive than any other. Aside from some deliberate overlaps (such as the law of Delict), criminal law is seen as one independent area of law, with the rest falling under the "civil" classification. Contract law is contract law, but everything else is not generally considered not-contract law; even then, imagine the outrage if the sacrosanct principle of consensus in idem were to be departed from in a standard agreement! It is reasonable to assume that the initial distinction of criminal law is maintained for a reason. If it can be shown that the distinction is not worth anything in practice, it would be folly to maintain it. As far as my lecturers made me aware, in order that justice is not only done but seen to be done, the criminal laws of Scotland rely on several fundamental and general principles that constitute this distinction. It is once these defining characteristics are isolated that we can then easily and logically assess whether new or old laws fit within them. The beauty of this is that it does not question the sovereignty of legislators; rather, it asks whether the system is promoting the formulation of justice that it has set for itself. It does not mean that upon my arrest for some vague offence that I can avoid the violence of sentencing based on my opinion that the legislation is incompatible with the condition of clarity, but it does mean that I can sit in my cell, safe in the knowledge that I am now a martyr; injustice manifest. Punishing criminals is a function that I want the state to offer, but it is impossible to view unprincipled deprivations of liberty being imposed on a private citizen by a body allegedly functioning under the rule of law as much more than well organised vigilantism. The European Court of Human Rights has established its own test for determining criminal law, known as the 'Engel' criteria. It was developed to identify what the court classes as criminal laws masquerading as civil penalties in domestic legal systems. The first criterion is that if a member state declares something as criminal law then it is criminal law in the eyes of the court, while the two remaining criteria judge in terms of behavioural and penal severity. Strasbourg's formulation of a test to detect alleged civil law that is actually criminal, while simultaneously ignoring criminal law that might really be civil, is strong evidence of criminal law having significant power to jeopardise the rule of law; something that the court is sworn to uphold. Clearly, criminal law's exceptional violence, observablein the application of punishment, is its first distinguishing feature (a position supported to some extent by the definition of the criminal jurisdiction in the Summary Procedure (Scotland) Act 1864, though any such definition has failed to reappear since its equally historic repeal). The Criminal law deals with more serious violations of the social norms, and therefore the consequences for breaking it are more serious, in terms of pecuniary loss, loss of liberty, and reputational detriment. The feature that I will be structuring my examples around flows directly from the first; the more serious the applicable consequences, the greater the moral imperative to protect the liberty of individuals by following through with the demands of the justice system - rolling a dice will not suffice. In acknowledging such, the legal system constructs a system of principles to follow in order to legitimise the safe conviction of an alleged criminal.
Examples of Departure from Procedural Principles
Criminal process does not wholly concern itself with whether one is factually guilty; instead it holds 'legal guilt' as the relevant consideration. The best examples of this in Scots law are probably double jeopardy and corroboration, where further conditions are put on finding a verdict of guilty irrespective of how compelling the source of evidence is. Without legal guilt, the result that is produced by the legal process fails to legitimate the application of sanctions. One of the clearest areas of departure from legal process is found in road traffic legislation. One method that has been used to escape the due process requirements in order to secure easier convictions has been by purporting to decriminalise behaviour. White argues that moves to decriminalise can result in retaining criminal punishments but dropping the labels, safeguards and limitations those ought to entail. A case in point is the Road Traffic Act 1991 which claims to decriminalise certain parking offences and leave them to be enforced by local authorities. However, what remains sanctions offending vehicles being towed away, release fees, penalty charges, as well as increases to penalty charges, all of which are capable of being registered and enforced as Sheriff and Justice of the Peace courts debts. For non-payment of these debts, without any trial process, a motorist may be arrested on a warrant, have the penalties recovered through civil diligence or be ordered to comply with the terms of a supervised attendance order, the alternative to which is a term of imprisonment; and all this on the say-so of a single local authority parking attendant. This shows how coherence of sanctions, when compared with coherent process, can be disregarded by legislation that is not expressly criminalising. Incidentally, this statutory method of parking charges bears no semblance to the rights under private law offered to individuals whose properties are parked on unlawfully. What remains is a system of criminal punishment with an absence of criminal procedure, a lack of clarity and consistency as to what it means to be punished in a criminal context. White is of the opinion that civil and criminal offences only significantly differ in their means (as opposed to substance) of enforcement. I am unsure whether, based on the evidence, even that level of certainty can be supported. This is an unsatisfactory state of affairs, as ignoring the intimate relationship between punishment and process undermines the careful balance of the requirements of coercion and justified intervention. By functioning under a statute which claims to decriminalise but in reality simply avoids procedural rigmarole, Scots law is failing to promote justice. Probably the paradigm principle of criminal legal process in Scotland is the presumption of innocence. It is legal rhetoric that is embraced UK wide, and reinforced from a supranational perspective by Article 6(2) of the European Convention on Human Rights. The famous phrase from Woolmington v DPP is apparently supported by the juridical system today; "A person is only guilty if the state can prove his guilt beyond reasonable doubt. This is the 'golden thread' which is always to be seen 'throughout the web of the English criminal law'. Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent." Despite Lord Sankey's admission that this "golden thread" was subject to certain statutory exceptions, to remain as such they must be less numerous than to overly fictionalise the generality of the rule.
It seems trite that the presumption of innocence is justified by the overall aim of legal process - to ensure only legal guilt suffices to implement enforcement; nevertheless, despite this, several threats to the presumption of innocence exist. By directing attention to some of these, it will become quite obvious how Scots law is becoming less and less faithful to its own ideas of justice. It is important to note that the presumption of innocence is not a presumption in the usual evidential sense; rather, it is an integrated concept which underlies the legal mindset to which criminal process is approached and formulated in concepts such as the burden of proof falling upon the prosecution. There are myriad instances of assaults on the presumption of innocence, from the seemingly innocuous onwards. The crime of dog fouling in Scotland assaults the presumption of innocence by requiring the evidence of only one witness to convict, a departure from the usual requirement of corroboration. A recent example of a reverse burden that was mitigated judicially is found in the Terrorism Act 2000. Critiques of this legislation are not hard to come by on a variety of grounds, such as its vague provisions falling foul of the legality principle. Discussion in terms of the impact on the presumption of innocence gravitates around s.11 of the 2000 Act, which sets a reverse burden on the accused to prove that their behaviour was "reasonable." Despite the legislation indicating that a legal burden was intended, it has been read down under s.3 of the Human Rights Act 1998 to merely an evidential burden, but with a relatively strong minority dissent it was a close shave for perhaps the most fundamental and significant inhibitor of arbitrary state power in a sober area of law, and still problematic in that it severely impacts the ability of the accused to clear their name in court.
Alternatives to prosecution are sanctions for criminal behaviour which have blossomed since inception; an initiative to limit the cost, time and uncertainty of the full criminal process for the accused and the court system. Two models of this are the fixed fine and the Scottish "fiscal" fine (or "prosecutor" fine outside of Scotland). The fiscal fine is particularly interesting as it is a more explicit exchange of prosecutorial immunity for money. The high use of fiscal fines sends out a questionable message of the seriousness-process balance of the criminal sphere, as if something is worth punishing criminally, even though the civil law seems comfortable to take on high penal sums, then trivialising it by disregarding process weakens the attention paid to its legitimising role. Although alleged offenders have the option to turn down the fine and go to trial (the statutory presumption is against this) the comparative consequences of summary conviction combined with the economics of risk aversion make the fiscal fine an offer that almost can't be refused. Alternatives to prosecution in general carry implications for the idea of fair labelling as they ignore justice issues of publicly decrying an offending party as a "criminal" and further still by their not being recognised as prior convictions two years after imposition. Private settlements between alleged criminals and the prosecutor might be a convenient way of applying sanctions, but when they become the norm it is clear that they blur the line between a civil and a criminal wrong, misinterpreting the structure of legitimisation the legal system claims to uphold, and denying alleged offenders the unclouded option of pursuing their innocence in court. A decision not made easier, of course, by current trends of legal aid provision.
One final example (though there are so many others to explore) of a modern enforcement phenomenon which has clear ramifications for the presumption of innocence is the Anti-Social Behaviour Order, or ASBO. Although claimed to be explicitly non-criminal and 'preventative, not punitive', ASBOs are widely criticised for the uncomfortable position they hold in relation to the civil-criminal divide. Restrictions on space prevent fuller insights into the ASBO, but two particular features weigh heavily on the purity of the criminal process. Not only is the ASBO a civil order which carries a criminal penalty for non-compliance, but the conditions that can be attached to it are virtually limitless and very demanding, including restraint of spitting, swearing, shouting and travelling through certain areas for a minimum of two years. One imagines that many would readily swap this "civil" restriction for a swift "criminal" fiscal fine. The heightened standard of proof required by ASBOs, despite their being meant for a civil order are all the more indicative of the confusion not only between what is criminal behaviour and sanctions, but what distinguishes criminal process. Scotland was particularly keen to ensure that anyone who is old enough to be anti-social is old enough to receive an Anti-Social Behaviour Order, extending the privilege to 12-15 year olds in part 2 of the Antisocial Behaviour (Scotland) Act 2004.
This essay has attempted to give a range of examples as to how the Scottish legal system has lost touch with its roots. Although only a few examples were given, readers will certainly be able to supply their own for which there was no space here, from section 57 of the Civic Government Scotland Act to section 38 of the Criminal Justice and Licensing Act 2010.
Scotland possesses a legal system that is based on sound notions of fairness and justice, but current legislative movement seems to be undoing what centuries of history built up. Common law crimes are being replaced year-in and out for statutory crimes which have the ability to attack the foundation principles of Scots criminal law, and unfortunately all too often do. It seems that Scotland is being left with a civil code without the simplicity or explicit protections that they usually offer. The saddest part of it all is that it would appear that many of these changes are down to sheer laziness. The attitude seems to take effect on two levels:
- A) Dog fouling isn't so serious, so why bother with trying to round up all the punters who were in the park at the same time, drag them to court to waste a morning and an afternoon all for the sake of making the convicted £40 lighter?
- B) Terrorism is a very serious offence, and it is risky to let terrorists roam free, so why ought we give terrorist suspects more opportunity to prove their innocence as, say, someone who merely permits their dog to do its business in an inappropriate place?
This legislative attitude is wrong for the reason that when the legal system adopts it, it fails to meet its own standards of excellence. It fails to follow the procedures it asks of itself andit fails to treat citizens as independent and free from arbitrary punishment. It fails to meet the standards of the rule of law, by failing to coherently apply its own. It fails to promote justice.
- A A Leff "Unspeakable Ethics, Unnatural Law" Duke Law Journal 1229 1979
- S Veitch "Doing Justice in Particulars" in E Christodouldis (ed) Communitarianism and Citizenship (Ashgate 1998), pp 220-234
- N MacCormick "The Ethics of Legalism" 1989 2 Ratio Juris 184-193
- Accessible via www.ibanet.org/AbouttheIBA/IBA resolutions.aspx (last accessed 19/04/12)
- M Krygier "Four Puzzles about the Rule of Law: Why, What, Where? And who cares?" 2010 22 University of New South Wales Faculty of Law Research Series: CLS Annual Lecture 2010
- J Raz "The Rule of Law and Its Virtue" 93 The Law Quarterly Review volume (1977)
- L H C Hulsman "The Abolitionist Case: Alternative Crime Policies" 1991(2-4) The Israel Law Review 681-709, pg 682
- R Cover "Violence and the Word" 1985-1986 95 Yale L J 1601-1629, pg 1601
- J Chalmers and F Leverick "Fair Labelling in Criminal Law" 2008 71(2) MLR 217-246
- Engel v Netherlands (1979-80) 1 EHRR 657
- Sir G H Gordon Criminal Law (3rd ed) M G A Christie (ed) (W Green 2000), paras 1-01 - 1-02
- J Thaler "Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial" 1978 Wis L Rev 441-484, pp 441-442
- R M White "'Decriminalisation': A Pernicious Hypocrisy?" 2009 13(1) Edin L R 112-116, pp 114-115
- R M White "'It's not a criminal offence' - or is it? Thornton's analysis of 'penal provisions' and the drafting of 'civil penalties'" 2011 32(1) StatL R 17-37, pg 36
- Woolmington v Director of Public Prosecutions  AC 462
- 16. R (on the application of Adams) v Secretary of State for Justice  1 AC 48, para 116
- Supra Woolmington pg 481
- W F Fox Jr "The 'Presumption of Innocence' as Constitutional Doctrine" 1978-1979 28 Cath U L Rev 253-269, pg 258
- Dog Fouling (Scotland) Act 2003, s.1(4)
- See generally J Hodgson and V Tadros "How to Make a Terrorist out of Nothing" 2009 72(6) MLR 984-1015
- Attorney-General's Reference (No 4 of 2002)  3 WLR 976
- P W Ferguson "Proof of Innocence" 2004 36 SLT 223-227, pg 224
- P Duff "The Prosecutor Fine" 1994 14 Oxford J Legal Stud 565-587, pg 584
- In-depth attention to which can be found Supra Chalmers and Leverick "Fair Labelling…", pp 223-239
- www.cps.gov.uk/legal/atoc/anti socialbehaviourguidance/#an01 (last accessed 24/03/12)
- See generally P Squires (ed) ASBO Nation: The Criminalisation of Nuisance (Policy Press 2008)
- Crime and Disorder Act 1998, s.(1)(10)
- E Burney "'No Spitting': Regulation of Offensive Behaviour in Englandand Wales" in A P Simester and A Ashworth (ed) Incivilities: Regulating Offensive Behaviour (Hart 2006), pg 206
- Supra Crime and Disorder, s.1(3)
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