20 June 2010

"Its alive!"

Firstly, I'm pleased to report that the fairies have finally let me go, and I've resumed my blogging station and am standing to attention, musket primed. Secondly, I note in my absence that the Scottish press and political classes have finally awoken to the implications of the litigation inspired by the European Court of Human Rights case in Salduz v. Turkey.  Last week I blogged on the case of Cadder v. H.M. Advocate, the wriggling speck of grit in our criminal justice oyster, but the issues at stake today were apparent enough in late October 2009. 

Dame Matron of Doily MSP Annabel Goldie, mentioned it at FMQs. Needless to say, she did not leave the panic button unpressed:

"If the pending judgment is adverse, and retrospective in effect, the doors to Scotland's jails could be flung open and there could be far-reaching implications for our criminal justice system, the safety of communities and victims' peace of mind. What are those contingency plans to which the First Minister referred? He needs to plan now and not start rushing around the day after the court judgment is issued.

We await the October judgement of the UK Supreme Court in Cadder, but things look iffy for the forces of Crown, prosecution and state - and if the Court's decision is adverse, it is no understatement to say that political stormclouds will bubble up, furious bolts of lightning will sizzle and fray. The metaphors will all be borrowed from the Old Testament. The legal political equivalent of sitting in the middle of the Book of Job. It has already started. "Chaos", quoth one. "Panic", says another.  "Justice in the dock". According to the transcript of the Supreme Court hearing, obtained by the Sunday Herald, the Lord Advocate Elish Angiolini adopted a similar prophetic  attitude of despair, describing the implications of defeat for the Crown's case by turns as "Catastrophic ... Seismic ... It could cause enormous disruption ... It’s hard to overstate its significance".

It is worth bearing in mind that these remarks were made in the context of an adversarial legal argument. By no means should we simply assume that Angiolini was unburdening her innermost thoughts to the Supreme Court, anguished and contrite. Nor am I suggesting she was fibbing either. Rather, policy doom and disaster is a fairly regular instrument of legal argument, opposing some expedient dreamt up by an inventive litigant and their lawyers. Slippery slopes, dangerous precedents, that way disaster lies - all are lines to focus the judicial mind and prompt the temptations of constraint and caution in reaching a decision. Up to a point, this anticipatory hue and cry in the press - and falling from Bella's lips in Holyrood - cannot but do likewise. It opens up terrifying vistas of uncertainty, conjures procedural collapse, institutional disrepute, malfunction and dysfunction.  Judges can be a timid lot, all said. Gloomily briefed about the reefs and wrecking shoals which surround the case, they may try their best to reach the "right" decision, without holing the ship of state below the waterline.  On that basis, if the Crown must lose - and that is by no means certain yet that it must - but if defeat proves unavoidable - then the legal mind turns to losing narrowly. Which frequently is to say, losing in a confusing maze of legal technicality, so loathed by newspapers seeking the simple nub of the matter - and so difficult to understand for litigants that they might well decide to stay home and watch the telly instead of spending any time, trying to expunge their wrongous or procedurally iffy convictions. 

3 comments :

  1. Hi Lallands,

    Oh how I hope you are right in your last sentence in this piece, but there will be fortunes in legal aid fees to be made for lawyers presenting "appeals" against convictions for the clearly guilty. Unless some sort of a prori set of circumstances have to be fulfilled before an "appeal" can be launched, I forecast there will be an avalanche of just such cases all funded by the public.

    Regards

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  2. "Fortunes in legal aid fees"? In the Appeal Court? At current rates?

    I suspect that Rab o'Ruglen hasn't actually read the Scottish Legal Aid Board's table of fees. There is a reason why relatively few choose to appeaer regularly in the Appeal Cour, and it isn't just because the judges can be difficult.

    ReplyDelete
  3. I'm not a practising lawyer, therefore have happily avoided learning the detail of such legal aid matters myself. To the best of my knowledge, however, these are the rates of remuneration which the Voice of Reason is alluding to, for undertaking appeals work in the High Court. Costs for the advocate are obviously not factored into this. In the first section, junior counsel's remuneration is outlined. The first figure is the rate of remuneration, if that junior counsel is being lead by a senior (QC). The second obtains if they're Rumpole of the Bailey, working alone. Just for clarity and your information.

    1. Appeals, written work

    (a) Opinion on appeal

    £0; £60.00

    (b) drafting grounds of appeal against conviction, including any note of appeal

    £58.00; £82.00

    (c) drafting bill of suspension

    £0; £60.00

    (d) note of adjustments to stated case

    £58.00; £82.00

    (e) revisal of stated case

    £0; £60.00

    2. Appeals, conduct

    (a) hearing in appeal against conviction (per day)

    £223.00; £315.00

    (b) hearing on stated case or bill of suspension related to conviction or conviction and sentence

    £101.00; £132.00

    (c) hearing in appeal against sentence including fee for drafting note of appeal

    £41.00; £91.00

    (d) appeal relating to granting of bail

    £30.00; £30.00

    3. Consultations
    (a) in Edinburgh

    £71.00; £101.00

    additional fee if held in prison

    £11.00; £11.00

    (b) elsewhere within 60 miles journey by road from Edinburgh

    £132.00; £173.00

    (c) in Aberdeen, Inverness or Dumfries

    £264.00; 315.00

    So much for junior counsel. Here is what the QCs get for their trouble.

    1. Appeals, written work
    (a) Opinion on appeal

    £91.00

    (b) revising grounds of appeal against conviction, including any note of appeal

    £112.00

    (c) revisal of bill of suspension

    £91.00


    (d) note of adjustments to stated case

    £112.00

    (e) revisal of stated case

    £91.00

    2. Appeals, conduct

    (a) hearing in appeal against conviction (per day)

    £409.00

    (b) hearing on stated case or bill of suspension related to conviction or conviction and sentence

    £203.00

    (c) hearing in appeal against sentence including revisal of note of appeal

    £132.00

    (d) appeal relating to granting of bail

    £30.50

    3. Consultations
    (a) in Edinburgh

    £153.00

    additional fee if held in prison

    £11.00

    (b) elsewhere within 60 miles journey by road from Edinburgh

    £244.00

    (c) in Aberdeen, Inverness or Dumfries

    £469.00

    Finally, there is, as I understand it, also a maximum amount which obtains, capping these per diems and consultations - or at least, capping how much money lawyers get for them. The first figure is for junior counsel with a leader, then a junior alone and finally senior counsel:

    (a) Opinion on appeal

    £100.00; £132.00; £200.00

    (b) drafting or revising grounds of appeal against conviction, including any note of appeal

    £150.00; £200.00; £300.00

    (c) drafting bill of suspension

    £75.00; £100.00; £150.00

    (d) note of adjustments to stated case

    £75.00; £100.00; £150.00

    (e) revisal of stated case

    £75.00; £100.00; £150.00

    (f) hearing in appeal against conviction (per day)

    £625.00; £825.00; £1,250.00

    (g) hearing on stated case or bill of suspension related to conviction or conviction and sentence

    £225.00; £300.00; £475.00

    (h) appeal against sentence including drafting note of appeal

    £225.00; £300.00; £475.00

    (i) appeal relating to granting of bail

    £30.50; £30.50; £30.50

    ReplyDelete