What on earth is our near-neighbour, Lord Carloway, up to now? One would have thought that with his views on Contempt of Court, Corroboration and the infamous Named Person legislation, he would have been wiser leading a quieter life, but no. He's back again, this time as Lord Justice General of Scotland, and again on shoogly ground with what appears to be his pet subject, Contempt of Court. First, however, a little bit of background.
In 2008, Colin was the trial judge in a terrorist-related trial in the High Court after which the solicitor for the convicted man made quite improper comments about the proceedings. Colin thought those comments may have amounted to Contempt of Court and reported the solicitor to a higher court of three judges. There, the trio accepted that, while the comments were improper and fell below the standards expected of a solicitor, the comments, on examination, did not amount to Contempt of Court.
Some time afterwards, The Scottish Government, via that demented Justice Secretary, Kenneth MacAskill, asked Colin to look into, and report on, Corroboration. Corroboration, as we know, is a cornerstone of Scots Law and some in authority, notably MacAskill and the Lord Advocate of the day, one Frank Mulholland, were against Corroboration being a requirement of prosecution. Colin duly reported that Corroboration be abolished. The furore over the proposal for abolition was unprecedented and has never dissipated.
Next, the infamous Named Person case. Colin, now Lord Justice Clerk, was hearing the appeal of parties who opposed the Named Person legislation and refused their appeal, describing their claims as 'hyperbole'. That decision of Colin's was duly rescinded by the Supreme Court of the United Kingdom who decided that the parties' claims were genuine and anything but 'hyperbole'. This case has become quite an embarrassment for the Scottish legal system.
Now, Colin is in hot water again - very hot water, actually - with recent remarks about Covid and potential Contempt of Court in the current Covid Times. Quite why he had to raise the matter or, indeed, make any comment at all is unfathomable. There simply wasn't a problem, or, at least, a problem that required the intervention of the Lord Justice General of Scotland.
In a New Year Edict, Colin said that 'in some instances we may need to reinforce the importance of respecting safety measures by highlighting to those breaching requirements that the court may regard any future breach as constituting a contempt of court'. Quite, Colin, quite, and really and truly putting your feet in it.
Lawyers' reaction was instantaneous, predictable and brutal. In a strongly-worded letter to Lord Carloway, the Glasgow Bar Association pointed out that 'the court estate has insufficient accommodation to allow court practitioners to obtain their client's instructions in a manner which allows privileged information to be discussed privately and safely in the current pandemic. You have to date been relying upon the goodwill of practitioners to persevere but that goodwill is being rapidly exhausted. To compound your message with the ultimate sanction of contempt is a matter we strongly object to'.
What the Glasgow Bar Association was saying to him was to 'get out of that ivory tower you inhabit in Edinburgh and get your court system fit for purpose before you start firing off those crazy missives. You haven't the foggiest idea what goes on in the criminal courts of the West of Scotland and the dreadful working conditions we have to contend with. Head back to Carloway and get your feet firmly on the ground'.
Sometimes, Colin, the best thing to do is simply to keep schtum, let it wash over you, and let things take care of themselves.
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