The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: constitution

Juries are crazy, sometimes

In the shadow of the Neil Lennon look-we-have-a-video-it-happened-on-TV Not Proven verdict Scott Greenfield writes about a law review article across the pond about how the exclusionary rule — one of the central procedural concepts in all litigation that’s ever heard of England articulating the principle that, for various reasons, some evidence is simply too unfair to be shown to a jury — is back firing on criminal defendants.

Greenfield’s primary criticism of the article is fundamentally that it’s a case of throwing the baby out with the bath water and I find him as persuasive as ever on this. The problem is jurors’ imaginations running amok rather than the ability to exclude, for example, torture confessions.

The problem is sort of a reverse CSI-effect where instead of juries assuming that, if the accused actually did it, there would be DNA and fingerprints; they assume that the accused did do it and there’s something horribly incriminating that their sleazy defence lawyer got buried. The jury then takes it on themselves to imagine what that non-existent evidence is and convicts accordingly. I don’t know how common this is and the rules on jury interviews in the UK makes it tricky to find out but it’s potentially a very serious problem, not least for what it does to the presumption of innocence.

I imagine this comes straight from police dramas where the sleazy defence lawyer is always getting stuff buried. It’s looking increasingly like your odds of conviction in solemn trials depends more than it should on if your jury prefers CSI to Law and Order.

The lesson seems to be that juries sometimes do unpredictable things, whether that’s returning unexpected verdicts, assuming evidence is normally definitive or that it even exists in the first place. We still have to be careful about constitutional safeguards, especially in jurisdictions where the constitution is as flexible as ours.

H/T: Simple Justice



Hands off our ice

s. 14 Scotland Bill 2010-11

You may not know that there is a new Scotland Bill going through the Westminister Parliament just now. This is to partly to tidy up operating issues which the whole having a new Parliament in Scotland have exposed over the past decade and so.

Partly it’s also got elements of the completely crazy too.

Clause 14 is a bizarre provision which the explanatory notes says is supposed to “re-reserve” Antarctica from Alex Salmond’s legislative grasp. By Antarctica I do indeed mean that one that isn’t even in Scotland.

The proposed amendment is headed L7 and Heading L is the Miscellaneous heading of the Legislative Competencies section — weird little things that the Parliament expressly cannot do things about.

H/T: I thought that we were surely done with Heading L at this point (where do you go after outer space?) and I found out about this through Iain Nisbet’s Absolvitor post where he gets a brilliantly belt and braces answer from the Scotland Office (it’s not already in there, so, well…)


Search queries: How law lords are elected in supreme court

Short story

They’re not, they’re appointed.

Long story

I’ve been noticing a number of Supreme Court related search queries in the blog stats and thought this was a good question to be searching for because the Supreme Court is a new and critical part of our constitutional framework. I’ve studied the House of Lords reasonably well for mooting etc but I’ve read very little on the Supreme Court because it’s just not yet bubbled down to me. Therefore, pinch of salt should follow.

The Supreme Court is a horizontal shift for the House of Lords. It doesn’t actually gain any new powers but the judges get new emails, a new building and court room and they lose their robes and wigs (which I think is a shame).

There are 12 Justices of the Supreme Court who have simply stopped being Law Lords and started being Justices of the Supreme court one day. It’s really probably the best way to get your bench of venerable and well experienced judges from one court to another.

I think that elected judges are a pretty dangerous situation. You don’t actually want the guy who can literally send you to jail trying to appeal to people who read the Daily Mail, you’re not going to measure up. You end up with situations like the US where judges need to differentiate themselves through how tough they are on criminals. It makes wonderful headlines but it’s not exactly Baron Hume. I think there are considerable problems with the appointment model, it appears to be self propagating etc, but it is a better curtailing measure against concentrated state power (a very New World ideal) than if they and the legislature were both chasing after the same votes from the same voters. I think you really want a little bit of heterogeneity in your government.