Friday, December 21, 2012

A Bad Law Made Badly By Bad Lawmakers For Bad Reasons

The suggestion that Angus Sinclair may be retried for the so-called 'World's End' murders is, in my view, an extremely sad one, heralding as it does the advent of an era in which any citizen who has ever been acquitted of any crime will now never be free of the shadow of process.

The abolition of double jeopardy in Scotland is a law which, in my opinion, was pushed through Holyrood by the SNP solely in order to enable Sinclair to be retried in an attempt to gain popular support for itself in the Lothians area (the crimes were committed in Edinburgh).You can bloviate about 'centuries old liberties' as much as you like, but the reality of the situation is that double jeopardy had stood untouched for many centuries until the SNP took office. They can't blame Blair or the Tories for abolishing double jeopardy. Double jeopardy has nothing to do with the oil. Double jeopardy has nothing to do with the Highland Clearances. Double jeopardy has nothing to do with the grandiose wind expelled by Alex Salmond about Scotland taking its rightful place among the nations. The abolition of double jeopardy means, that, to my mind, the only group of nations which a Scotland divided from the Union would be likely to take its rightful place among would be those in receipt of negative reports from Human Rights Watch (one of the more extreme ironies of the times in which we live is that the civil liberies and human rights of the Scottish people are under violent and prolonged assault, getting battered, getting a doing, at precisely the time when we have more human rights lawyers than at any other point in our history; in this really quite dark hour, it is up to them to determine whether future historians will examine their actions and find them wanting). 

Double jeopardy was there once, and now it's not there anymore, because a Scottish Parliament allowed a Scottish Executive formed from the Scottish National Party to remove this essential legal protection from the Scottish people. By acting in the way they have, they prove to me that they do not consider the civil liberties of the Scottish people to be the property of the Scottish people. They consider them to be the property of the SNP instead. If they cherish liberty, they would not have done this. They say we are not free, yet they pass laws which oppress us, for it is an oppressive law. There are no two ways round it. There is no way of tarting it up as having been enabled by improvements in forensic technology and then accessorising it with a lot of flashy 'ifs' and 'buts'. Even although there is apparently a 'new evidence' test, the door towards oppression has been opened by just that first little crack, and such little cracks always get wider. The law abolishing double jeopardy is now on the books. That's the step that matters. The limited circumstances under which a second prosecution can be mounted after an acquittal can now be changed at the whim of a Scottish Parliament. It used to be an absolute of our law, and it's now entirely in the hands of a group of people many of whom have never won an election. By behaving in this way, they prove to us what a Scotland divided from the Union would be like; in the immortal words of Samuel Johnson, it would be one in which "Slavery is now nowhere more patiently endured, than in countries once inhabited by the zealots of liberty".

That is the nature of their vision for us: always keeping one eye over our shoulders. It was not enough for them to abolish double jeopardy; it was abolished in such a way that the citizen is at risk of re-prosecution even if they were originally acquitted of the offence for which it is proposed they be retried before the abolition of double jeopardy; in other words, it doesn't matter when you were acquitted in relation to the date of double jeopardy's abolition, you are still at risk of retrial. It will not be long before that part of this law is struck down by the European Court of Human Rights. It's what the SNP does then that will be really interesting.

More than any other, that act, the act of oppressors, is the Scottish National Party's most gross act of bad faith towards the Scottish people in this matter. There is no other way of putting it. There is no other way of describing this pustulent manifestation of the Scottish National Party's contempt for, if not outright hatred for, the Scottish people. It is bad faith, pandering to the ignorance of those who shout 'We've not had justice!' when their real desire is for vengeance, those who not only fail to understand but also seem never to have been properly instructed that justice in our courts is dispensed by those courts for the benefit of all, not for the sole benefit of victims. That the legal fact that a crime against one is a crime against all is so widely misunderstood or indeed unknown is part of the tragedy which has led Scotland to this pass. When a crime is committed, it is committed not against the victim but against the law; and if you mess with the law in order to get what you want, someone else will suffer. Not in the same way as you have, if that matters to you at all, which it probably doesn't, but in other ways, and some of those people whose suffering is coming will have done nothing to merit having that suffering being imposed on them; and you'll have helped bring that suffering on them, by having shouted 'We've not had justice!' when you don't know what justice in this country really is, and people have been too polite to point that out to you.


The position now is that acquittals have changed from being conclusive in fact and in law to merely being moot points; the permanence of acquittal has ceased to be a judicial prerogative and has become a prosecutorial prerogative. There is no doubt that this is an oppressive law, one which will very possibly lead to the status of the Crown Office and Procurator Fiscal Service changing from being mere litigants before the court like any other to being the final arbiters of guilt or innocence; for they may one day be able to prosecute you until you've had enough and just plead. Being a law of the Scottish Parliament, it has presumably been drafted less intelligibly than the efforts of a TOEFL class in Alma Ata: mediocre legislative draughtmanship has been one of devolution's depressing constants. It's not just a bad law, it'll probably be a badly written law into the bargain; I've seen takeaway restaurant menus which have been composed with greater gravity of purpose and care for clarity than many laws of the Scottish Parliament.


The abolition of double jeopardy and the proposed abolition of corroboration, urged on by the more shrill rape charities - conclusive acquittal is now a matter in which 'Yes' definitely can mean 'No' - are our first steps down the wynds and vennels which will lead to tartan tyranny. There is no doubt in my mind of that. No matter what it says the SNP is not inclusive. They will say all things to all men to get what they want, for sure, but the civic narrative they will unfold is one over which they plan to hold complete editorial control, perhaps even, in my view, going so far as to criminalise the act of criticising the leader of the SNP. It's certainly a personality cult. They've already diluted the franchise by extending it to 16 years olds for their SurveyMonkey referendum, they've already abolished double jeopardy, and they propose to abolish corroboration - given that they've done and are doing all that, have effected and are effecting such radical changes to our way of life, why wouldn't they make it a crime to criticise Alex Salmond?

And if they can't get at you directly, will they try and get at you through your sons instead? That's the sort of people I think they are, you know.

Upon the creation of the Irish Free State, it was the reddest of red hot republicans who joined An Garda Siochana, the body which bears the greatest civic guilt for the perpetuation of sexual abuse of children by Catholic priests in the Republic of Ireland; the republic had to be a success, and so therefore not only did it have to have law but it also had to be seen to have law. The Irish would therefore be law-abiding, whether they wanted to be or not. The founders of An Garda Siochana are the absolute proof of Flaubert's maxim that inside every revolutionary there lurks a gendarme. An Garda Siochana is a national police force; the SNP has abolished the eight Scottish regional forces and created the Police Service of Scotland. Let us hope it will be at our service, and not the SNP's.

The Scottish National Party is proving itself to be of precisely the same stripe as those who founded An Garda Siochana, gendarmes lurking inside revolutionaries: and pretty unpleasant, pretty oppressive gendarmes at that.

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