Friday, 19 April 2019

Ten Easter Paintings

I used to write about art quite a lot. It is one of my great passions. But "things happen" and I have largely given up since.

At the end of 2012, I wrote a blog, "Ten Christmas Paintings", fully intending to follow it up with a companion blog for Easter, if not in 2013, then certainly much more recently than now. But life is life and without a very long diversion to explain, that has never happened. But now, whether you wish for it or not, that blog is finally to be prevailed upon you.

The handful of you, if that in itself is not an exaggeration, who follow my art blogs, will know they follow certain rules.

They must all be of paintings I have actually seen (with one allowed exception) and they must be from ten different artists (again with one mulligan allowed). And at some point we will stop for lunch. These are the rules but the reader also doesn't take long to realise that my chosen paintings are entirely dominated by Italian Renaissance and Pre-Renaissance Art, for that is with what I am most familiar. Whatever "Pre-Renaissance" means anyway. But that is an argument for another day.

And you might find the occasional reference to contemporary politics dropped in on the way. For that's what I mainly write about. Who knows whether that will happen as I type this, for I haven't finished. Or even really started. So let's get going.

1 Lorinzetti. The Entry of Christ into Jerusalem. Basilica di San Francesco, Assisi.

 Image result for lorenzetti palm sunday

Where to start is part of the problem. All the concentration in high renaissance art is on the three days (we'll get on to that) but earlier painters saw the wider picture. There is a wonderful Duccio di Buoninsegna cycle in Siena which traces events from before Holy Week right through to the Ascension which I don't even have time for here. Here I only have time for this. I can't even remember which Lorinzetti painted this. Him or his brother. Obviously I could do a bit of googling and sort that out. But it wouldn't matter. It's very early, from the start of the 14th Century. Just to put that in context for Scottish people, around the time of Bannockburn. Like the Duccio, also Sienese. And just, I don't know why exactly, wonderful. At this point I could write another 10,000 words about Lorinzetti and his bro. Not least his (or the other one's) triptych in Arezzo within walking distance of my favourite restaurant in the whole world. But you will be relieved to learn I don't intend to do so.

2. Leonardo da Vinci. The Last Supper. Santa Maria delle Grazie, Milan.

So, let's instead just jump forward. This is where things start, for the first time, to get a wee bit difficult. I get that this is a good painting. A very good painting even. By a man who was, beyond peradventure, a genius. But, I don't know, it just seems a bit.....overrated. I spent twenty  years or so wanting to see this and yet , immediately afterwards, I found myself slightly disappointed. It's all just a bit staged. Nonetheless, few paintings have so many conspiracy theories attached. Not least that the the disciple immediately to Jesus's right looks like a woman. (look it up!)

3. The taking of Christ. Goya, The Prado, Madrid.

Image result for the taking of christ

Now here, lads, you might have been expecting the Caravaggio in Dublin, it is truly grand. However I've already planned ahead to another Caravaggio and would remind you of my own rules above. So this is by Goya. No artist probably painted in such a mixture of styles but this is a fairly traditional image from a very Catholic culture painted at the end of the 18th Century. And, although it is not Caravaggio, you don't need to look very far to spot his influence. More to the point, the painting is in Madrid. I love Madrid for many reasons but principally because it has not one, not even two, but three great art galleries. This is from the Prado, probably the greatest of the three. Nowhere better in the world for Goya, or Velasquez. Or indeed for a wee row on the boating lake just behind.

4. The flagellation of Christ. Palazzo Ducale, Urbino.

Piero della Francesca, Flagellation of Christ, c. 1455-65, oil and tempera on wood, 1' 11 1/8" x 2' 8 1/4" (Galleria Nazionale delle Marche, Urbino)

"The greatest small painting in the world". It is tiny, less than two feet across. But so much going on. Analysed expertly here . Urbino is a bit out of the way, over the Mountains of the Moon from southern Tuscany. For as long as I have been going to Italy, they have been constructing a viaducts and tunnels autostrada to cut the journey time. They probably still will be long after I've gone. That's Italy for you. If ever a country needed a strong man leader to bring a bit of ordine and get these great infrastructure projects completed...........I may have taken that too far.

5. The Crucifixion, Velasquez. The Prado, Madrid.

I'm struggling here a bit to contain the narrative, so Simon the Cyrene and Saint Veronica and various other major players will have to wait for any sequel. For the subject at hand, no writer has been more spoiled for choice. Obviously however there are many, many depictions featuring miscellaneous other actors at the foot of the Cross. But, with respect to them, I think that kind of misses the point. This doesn't. A work of genius.

6. Cristo Morto. Mantegna. Pinoteca di Brera, Milan.

The dead Christ and three mourners, by Andrea Mantegna.jpg

Again, for reasons of space, any number of great Depositions have had to go. Similarly Pietas, the greatest of which anyway, to my mind at least, is not in paint but in marble, in the form of Michelangelo's masterwork in St Peter's in Rome. Instead I give you this. I'll confess, I'm not the greatest fan of Milan. It is too "modern" a city for me. And a kind of "Imperial" city, in the model of London or Vienna, without ever having had the Empire to go with it. If you left it up to me, I'd be happily be rushed in and out to see the magnificent Gothic cathedral and the Pinoteca di Brera. Where you will find this. The perspective is stunning. The wounds at centre stage and the grief of the mourners only too real. Reminding you that, for two days, they really did think it was all over. That's all. Although it is obviously not all.

7. The Resurrection. Piero della Francesca. Museo Civico, San Sepolcro.

Piero della Francesca, The Resurrection, c. 1463-5, fresco, 225 x 200 cm (Museo Civico, Sansepolcro)

This is my very favourite painting in the whole world, a preference I share, somewhat improbably, with none other than Tony Blair. Notwithstanding Christ's dolorous expression, it is literally, a picture of triumph. Of life over death. I remain firmly agnostic with regard to religion but, when I see the likes of this, I really wish that I wasn't.

By now however you must be starving. And if you've read any of my  previous art blogs, you'll know that I like at one point to stop for a bit of lunch.

I was last in San Sepolcro two years past, when the Resurrection was in restauro and therefor only partly visible. The disappointment of this was only compounded by the ticket office offering to sell me a discounted pensioners ticket. The restoration is however now finished and I'm therefor planning to return by the end of June this year. Looking as young as possible. On my way back, I will most likely stop for lunch in Umbertide (I am a creature of habit). There is a wee trattoria, the Locanda Appennino there that I first stumbled upon more than twenty five years past. The food is everything that you would expect but its main selling point is that you eat under a pergola beside, in Summer, the dried up river bed. The flora and fauna are all around you to the extent that you wouldn't be entirely surprised to find St. Francis himself at a nearby table.

Anyway, after an expresso and a digestivo della casa, back to the action.

8. The Supper at Emmaus. Caravaggio. The National Gallery. London

1602-3 Caravaggio,Supper at Emmaus National Gallery, London.jpg
And, finally, to the Caravaggio.

In the Gospels, appearances of the risen Christ are actually relatively rare. This particular one only features, at least as at a specific location, in St. Luke. It is the painting I have seen most recently, for it was on loan to the Caravaggio exhibition at the National Gallery of Scotland last Summer. There is lots of iconography and symbolism within it but you can google that. I'd only draw you attention to both the realism of the characters and, as always, the wonderful use of light. Caravaggio, eh?

9. Noli me Tangere. Giotto. Scrovegni Chapel, Padua.

Giotto - Scrovegni - -37- - Resurrection (Noli me tangere).jpg

And so, from the very end of the high period of Italian art, back to the very beginning. The Scrovegni Chapel is one of the true wonders of the world situated in one of my very favourite cities in Italy. But I've also chosen this version of the Noli me Tangere for another reason. To show how the development of Italian art drew down inspiration through the generations. This is a complex picture but look at the sleeping soldiers around the tomb. And then look back to Piero's Resurrection above. The latter was painted 1463-65, while Giotto painted this 1303-1305. more than 150 years before. Yet the influence is obvious.

10. The risen Christ appears to the Apostles. 14th Century unknown artist. Notre-Dame de Paris.

Image result for risen christ in notre dame de paris

And that is more or less it.

This is the allowed exception that I referred to above. For, although I have been to Notre Dame, if I did see this then I have lost all recollection of having done so.

You don't write something like this blog without a plan, and my plan originally was to finish with the great mosaic of Christ in Majesty in the Cathedral of Monreale, near Palermo. But then this week we had the tragic fire at Notre-Dame. Where this small work may or may not have been destroyed. The extent to which all Europe, indeed most of the world, was seized by the event as it unfolded ranged far wider than those who were practising Christians but I defy anybody not to have been  moved by the film of the crowds singing the Ave Maria outside.

I don't like the phrase, Judeo-Christian for two reasons. Firstly it suggests a mutual harmony of co-existence which is hardly borne out by history. In one direction of persecution in particular. But secondly, it implicitly excludes from the conversation the third great monotheistic religion, Islam, in a way that is wholly unjustified. The Renaissance itself would have been impossible without the discovery, among Islamic scholars and in Arabic, of many major Greek texts otherwise lost in their original tongue. The preservation, in Spain, of  so many great buildings, originally built as Mosques in the reincarnation of modern Churches and, in Anatolia, of so many great Churches as latter day Mosques demonstrates the appreciation of a common cultural patrimony which exists to this day. As does so much else, not least the "Turkish" influence on as diverse recipients as Holbein, Mozart or, indeed, anyone simply desirous of a humble kebab.

I get annoyed therefor with the suggestion that this is "White Man's" culture from both the side that would claim for it an implied superiority, but equally from the "other" side that suggests that, for that very reason, in the modern age, it shouldn't be routinely taught, or learned, at all.

Easter is the greatest festival of the Christian Church. But, culturally,  it belongs to all of us as well.

Enjoy your lamb on Sunday.

Sunday, 14 April 2019

Not yet.

My mother died forty years ago yesterday. It was Good Friday. And forty years ago today, Saturday 14th April 1979, I went out to campaign for the Labour Party.

At the time, the immediate response when I turned up at the committee rooms was that I didn't need to be there. Nobody doubted my commitment to the cause but that at a time like this I should be with with friends and family. What they didn't understand was that those with whom I'd shortly head off to Paisley Town Centre, equipped with stickers, balloons and leaflets to carry the doomed cause of Jim Callaghan were, in a very real sense, my friends and family.

For more than thirty years the Labour Party was my life after I joined between the February and October 1974 elections. Almost exactly forty five years ago just now. Conferences, rallies, campaigns, elections and, of course, endless (just) "meetings". I have friends from various sources. My job, of course; St Mirren, certainly: but overwhelmingly from the Party. Some have held the highest office in the Westminster or Holyrood Parliaments. Others been prominent figures in local government or the trade union movement. Many however have been content to be humble activists. Many have now left but many more still remain. The phrase "Comrades and friends" ,with which I have heard so many speeches commence, has a real resonance for me. Still does.

But increasingly I have wondered whether some of those who flocked to "our" banner over the last four years are people who I would want as either my comrades or my friends.

Personal bereavement aside, 9th April 1992, when we lost that year's General Election, was probably the most miserable evening of my life. A long, long battle, internally and externally, to restore the Party to nationwide electability had fallen, undeservedly and, to me at least, unexpectedly, at the final hurdle. Neil Kinnock as PM, John Smith as Chancellor. That would have been some team.

I was never entirely resigned to what happened after that for, while I recognised the imperative to win, I always felt that too many compromises were being made on the way. Nonetheless I was proud of the many, many achievements of the three Labour Governments which followed, scarred only by the disastrous decision to support the invasion of Iraq, which I marched against and indeed over which my wife, Maureen, who I had met through the Party, resigned her own membership.

I was always for Brown over Blair and pleased when that succession occurred. When Brown fell, I voted for Ed Balls and then Ed Miliband as his successor for I thought the Party needed to move moderately to the left on economic policy. I would still regard myself as on the left of the Labour Party I once joined.

But I am increasingly coming to the conclusion that that Party no longer exists.

Since Maureen has been ill, now for more than ten years, activism has had to take second place to other responsibilities, so I watched with horror but from afar as the disaster of the 2015 leadership unfolded. I knew exactly what Corbyn's politics were, for they had always existed on the fringe of our Party. Anti-western, at best indifferent to democracy in many parts of the world, and with the whole thing held together with dubious associations and a willingness to embrace conspiracy theorising at the drop of a hat. All summed up in his immediate response to the arrest of the suspected rapist, Julian Assange, a man who is in no way a figure of the traditional left but "at best" a nihilistic facilitator of populism, whatever its colour. For this issue alone I would regard Corbyn as being entirely unfit to be Prime Minister. And there are many others.

But he did, undoubtedly, build a coalition of the angry, attracting to our Party an impressive, on one view, number of new members holding views similar to his own. Including people with no previous associations with our Party and, indeed, in many cases active membership of rival parties on the fringe left. Including, it is now also clear, a good number of whom are enthusiastic anti-Semites. And this was then compounded with a contagion of nepotism and patronage within the Party and among "new media" outlets where anyone willing to say "Yes comrade, no comrade, whatever you say comrade" finds themselves promoted, indeed often employed, with no regard to their ability or even basic honesty. Often even without regard to their previous political sympathies.

This has been hitched to an economic policy based on fantasy numbers and which, when you drill down, amounts to little more than running a siege economy. Which is why it was rejected by Labour in Government as long as 1976. Never mind a return to the untramelled Trade Union power, exercised  with our without democratic mandate, which brought that very Government to its knees.

Excepting 2017, I have campaigned in every election of my lifetime for a Labour Government with greater or lesser enthusiasm but always with a desire for victory. I could not do that for a Corbyn premiership. Indeed , I would regard such a development as a disaster for the Country.

So why don't I resign? As so many have. It is unlikely now than more than 50,000 of those who were in the Party in 2010 are still in membership. Most recently we have lost one of our very best prospects for the future here in Scotland, in the person of Cat Headley.  Partly I have stayed because I had previously the "get out of jail free" card that Corbyn could never possibly get elected. That's still broadly my view but the chaos of the Tories and the potential splintering of their electoral coalition raises the possibility of a Labour Government with as little as third of the popular vote. Possibly even willing to concede a second referendum to the SNP in pursuit of an absolute majority.

So, to be honest, it is partly because there is not, yet, a viable alternative not just to the Tories but to a very nasty version of the Tories. For whom I could never vote. Even I would rather have Jeremy Corbyn than Boris Johnson.

The decision of the Libs and Tigs to stand against each other at the European Elections is a farcical one, guaranteeing, under the electoral system in use, only mutually assured destruction. But it shows the difficulty of "breaking the mould" (to use a phrase) of the two Party system, not just because of First Past the Post.

But abandoning "the" Party is also because it is just a really difficult thing to do personally, for the reasons with which I started. Not least because I would feel I was abandoning those who had, even now, decided to stay. Would probably always stay. Many, many good people among then.

However, that notwithstanding, believe me, if a viable alternative was to emerge, then I'd be for it. Although I still suspect the day I left would still be an even sadder one than 9th April 1992.

Saturday, 16 March 2019

A legal tutorial (part 2)

Well here I am again, this time while hoping not to be too distracted by the rugby.

So, where have we got to?

The accused has declined to avail himself of s.76 to tender an early plea and so the Crown elect to bring the matter to trial by serving an indictment.

At this point, I am going to make certain assumptions for the sake of brevity.

Firstly that the matter will proceed in the High Court where the procedure is slightly different from before a Sheriff and Jury.These cases do go to the Sheriff Court but where the likelihood is, on conviction, of a sentence of five years or more (because of the seriousness or multiplicity of the charges) the High Court is usually the Crown's chosen forum. And it is their call.

Secondly, that there are no particularities in respect of the capacity (physical or mental) of the accused to stand trial.

Thirdly, that there are no preliminary legal issues relating to the relevancy or competency of the charges or as to a challenge to the admissibility of any intended evidence.

The next thing that happens then must happen within ten months of the appearance on petition  The Crown must serve an indictment specifying a date for the case to call for a "Preliminary Diet". The Criminal Procedure (Scotland) Act 1995 (hereinafter "the Act" provides that, when the accused is not remanded in custody, a Preliminary Diet must take place within eleven months of the appearance on petition and the Act also provides that the accused must have twenty eight clear days notice of the Preliminary Diet, thus giving you the ten months I refer to above.

The service of an Indictment is not something automatically in the public domain but it is not a secret either and a practice has arisen of the Crown (I presume) alerting the press to its happening together with the date of the first appearance. That is publicly reportable and the information disclosed at Petition stage repeated but otherwise no further details disclosed.

With the Indictment the Crown will normally serve a "Statement of Uncontroversial Evidence"  which will in the absence of defence objection be taken to be admitted. This is usually just Police procedural stuff, agreement that "paper productions" are what they patently appear to be and that any transcripts of evidence or video footage of interview(s) are accurate. If the defence objects, "normal" evidence is simply led at trial but there are imperatives on defence lawyers not to play games about this. In sex offence cases the Crown will also normally serve "Vulnerable Witness Notices" providing for the special measures such as screens or video links that they propose be used to take the evidence of the complainers or any other persons deemed to be vulnerable witnesses. This in itself could be the subject of a blog on its own but here I will simply assume that no issue is taken.

Seven days prior to the Preliminary Diet the defence must do two things. They must co-operate with and lodge the Joint Written Record I referred to in my earlier blog and they must also lodge a "Defence Statement" in terms of Section 70A of the Act. A defence statement indicates in general terms the nature of the defence but crucially it must give notice of any "Special Defence". Now there are a number of special defences in Scots law. Theoretically, in cases of the nature I am referring to, there might be the possibility of an alibi, or a plea of temporary mental incapacity but the key one here is consent. If the accused wishes to advance a defence of consent, notice must be given at the preliminary diet and if it isn't (and no other special defence comes into play) then the accused is left with the simple defence of "it never happened". The problem of course in cases where there are multiple complainers is that while a consent defence can be lodged in respect of each incident, that complies with the procedural requirement but, at trial, "they all consented at the time but they are all saying something different now" is a pretty high mountain to climb, even to the extent of raising a reasonable doubt.

But what the defence must do is not what the generally need to do. Here is section 274 of the Act:-

274 Restrictions on evidence relating to sexual offences.(1)In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—(a)is not of good character (whether in relation to sexual matters or otherwise);(b)has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge;(c)has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer—(i)is likely to have consented to those acts; or(ii)is not a credible or reliable witness; or(d)has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.(2)In subsection (1) above—“complainer” means the person against whom the offence referred to in that subsection is alleged to have been committed; andthe reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature.]
Now, to be clear, this applies not only to the leading of third party evidence by the defence but to the questioning of the complainer(s) themselves.
So, if the defence want to suggest, for example, that a complainer had consensual sexual relations with the accused before or after the incident charged, they need to get permission. And the scope for getting that permission is provided by section 275. I won't quote this in full but here's the link if you are interested
A section 275 application must be made seven days prior to the the Preliminary Diet and disposed of there (it's not quite as simple as that but this will do) and once disposed of the defence can only ask questions as allowed to do so. The disposal of such an application is, as you will appreciate, quite often a significant milestone in relation to the prospect of a "muddying the waters" defence.
With that to the Preliminary Diet itself. 
Unlike the appearance on Petition, in the absence of any court ruling to the contrary, this takes place in open court and the press can report the charges in full excepting not only the identity of the complainers but anything that might reasonably lead to their identification. 
Having disposed with the procedural issues outlined above and anything else that might arise, the judge fixes a trial date and trial must then commence within one year of the appearance on Petition. 
Except it is not as simple as that. Quite commonly either the defence or prosecution aren't ready to do that. Defence investigations are ongoing or Crown witnesses aren't available, or sometimes in relation to a potentially long trial, there simply isn't a courtroom readily available. So there is an extension to the twelve months granted by the court. This is much more common than you might think. Indeed,on occasion, can be for several months.
Anyway, finally, to the trial. 
This is in some way the easy bit. There are fifteen jurors. There are no opening statements. The Crown lead their witnesses and close their case The defence then make submissions of "no case to answer" in respect of any charge on which they think there is an insufficiency of evidence*. Assuming there is no  knock out blow, the defence lead any evidence they are inclined to do so. Prosecution and then defence speak to the jury. Then the judge does. The jury retire and, in respect of any charge for which there is a simple majority for guilty, that's what happens. All of the above which the press can report.
Obviously, if the accused is found not guilty, that's the end of it. 
Excepting the rare occurrence however where, although there is a finding of guilt only on trivial matters, more serious allegations having all failed, a finding of guilt is not the end of the matter. 
In Scotland, no-one who has never previously served a period of imprisonment can be sentenced to one without the court having first obtained a Criminal Justice Social Work Report. So sentence has to be deferred for that purpose. And even where imprisonment is more or less inevitable bail is usually continued for that purpose.  
But, generally within four weeks, as the rules provide, sentence is then imposed. 
As I say, imprisonment is almost inevitable for serious or even repeatedly individually less serious offending. But it is not just a matter of the jail. Any convicted person must be placed on the sex offenders register for a period the judge determines. He may also receive an "extended sentence" whereby although he has finished his prison sentence he remains subject to continued conditions of behaviour and/or supervision on his release. 
And then, excluding any appeal, that is finally it.
And that is finally me. 
Well done Wales, by the way.
*In what I have said above, for reasons of brevity, I haven't dealt with the issue of  Moorov sufficiency at all although this is the point where, if applicable, it would come into focus.  

Friday, 15 March 2019

A legal tutorial (Part 1)

I'm in a bit of an odd position this afternoon as I was meant to be in court and by the time it became that wasn't necessary, it was too late to make client appointments. Unfortunately, a couple of client appointments had already been made in anticipation of my return from court post 4pm, so I have to stay here for them. In the meantime however I have dealt with my mail, returned all my calls and even run out of "put off" work to fill my time.

So, I thought I would indulge in a wee bit of legal education, which is about the conduct of the defence in a historic sex offence prosecution.

Alleged serious historic sex offending proceeds under what is known as Solemn Procedure.

The first appearance is made in private and (in the absence of reporting restrictions, the press are free to report the happening of the appearance and the identity of the accused. The only other matters they can report are the general nature of the charges as provided to them by the Crown office and Procurator Service. (hereinafter "the Crown"). In non sexual cases the Crown will quite commonly give the press quite a lot of detail, e.g. "It is alleged that on 10th May the accused entered the Royal Bank of Scotland at 22 Main Street, wherever, armed with a shotgun, that he held members of staff hostage there, and robbed the bank of £50,000". In sexual cases this is not the practice, detail of the charge(s) usually being restricted to the nature of the offence or offences alleged, without reference to place or time.

The press are also allowed to report whether any "plea or declaration" was made by the accused (although invariably none is!) and, procedurally the case is then either, "continued for further examination" or "committed for trial". In practice, assuming the accused is admitted to bail (and failing previous convictions bail is invariably granted in historic sex cases) the route thereafter is identical. The accused is admitted to bail on standard conditions but usually with the additional condition that he (I'm just going to use "he" throughout as alleged offenders of this nature are overwhelmingly male) does not contact or attempt to contact any of the "complainers", that being the technical term for accusers.

This, until the next appearance, is as much as the press can say about matters until the next appearance in court, a matter I will come on to.

But what is visible to the world  is only a fraction of what has happened. Prior to appearance in court, the accused will have been served with a "Petition" which sets out in detail the charges he faces at that time. This will give details of place and date and not just the ultimate crime alleged but it's mechanism. My apologies for the explicitness of what follows but a historic rape charge might read (after a preamble) "on various dates between 1st January 2004 and 31st March 2004, at 22 Main Street, Wherever, you did repeatedly strike and punch Jane Doe, your then partner, forcibly remove her clothing, insert your penis into her vagina against her will and did rape her."

You will note the accused is given the name of the complainer although that never, ever features in the public domain even if the accused is acquitted after trial.

You will also note the date I have given. In 2009 there was a major change to Scots Law in
relation to sexual offences by virtue of The Sexual Offences (Scotland) Act 2009. That redefined or re-categorised  certain offences but it also put them on a "Statutory" footing so that what had previously been common law crimes became crimes charged as a contravention of the 2009 Act. But the criminal law cannot be retrospective, so pre 2009 offending is still charged under the old law, as per  the example I give.

But at first appearance the accused is also given what is known as the "Crown Summary". This is, literally a summary of what the Crown says is the evidence they intend (or at least hope) to adduce if the matter proceeds to trial. This document normally runs to several pages but to precis, in relation hypothetically to the charge above, it would consist of details of the parties relationship; greater detail of the circumstances surrounding the alleged rapes; any contemporaneous supporting evidence such as medical records;  what happened subsequently in terms of the parties separation; why and how the complainer first went to the authorities; a narrative of the police investigation which followed, including any details of anything said at interview by the accused and, finally, any reply to caution and charge.

Anyway, that's what the defence know now but shortly they will know more.

Following the first appearance, the defence request from the Crown what is known as "disclosure", which consists of all statements taken or provided in connection with the case, including any statements upon which the Crown do not intend to rely. Disclosure also involves copies of any Police forms or other documentary productions, including medical or other records if appropriate.

In an "early arrest" case, such as a robbery, all of the evidence might not yet be available, at least in disclosable form, but historic sex abuse cases usually come "pre-packed" in that all Police Inquiries are concluded before the accused appears in court, so disclosure usually follows fairly quickly.

Now, when I started out in this job, more than forty years ago, there was no disclosure except of productions. All you got by way of witnesses was what was known as a "provisional list" of those the Crown were currently thinking of calling. The defence had to arrange their own statements to be taken but once they had what generally happened was....nothing. You just sat and waited for the Indictment (of which more later) and any discussions about pleas awaited its issue.

Since then, however, there has been a complete game changer. What is now section 196 of The Criminal Procedure (Scotland) Act 1995, introduced as part of the "founding" Statute by the Crime and Punishment (Scotland) Act 1997.

It provides quite expressly that an accused person will receive a discount in sentence in exchange for an early plea. In a series of judgements since, most significantly in Spence v HMA in 2008 the High Court has set out what an accused might reasonably expect that sentence to be and, crucially, that discount is a full one third of the term that might be imposed. Now there are still discounts available at later stages but these reduce the closer it  to trial before the case resolves. And there is also double whammy for the accused. Someone facing a five year full fat sentence, with a one third discount, ends up with a sentence of three years, eight months. That then is a sentence of under four years, qualifying them for automatic remission of one half, meaning they serve only 22 months. The five years is obviously over four however, and the remission drops to one third, meaning you would serve 40 months. For the same crime, based on decisions the accused has made before conviction.

So there is real pressure on accused persons to take advantage of s.196 by authorising their lawyers to approach the Crown to resolve the case before an Indictment is served. This is particularly so still when the accused faces multiple charges, where the Crown might be content to drop certain charges in exchange for a plea whereas insisting on proceeding with all charges if the matter goes to trial.
And just to emphasise this, if the defence do just wait for an Indictment, they must then prepare what is known as a "Joint Written Record", which is essentially a document signed by both prosecution and defence, indicating what steps have been taken to agree evidence or establish contentious legal issues. One of the questions the defence must answer on this standard form is to expressly confirm the accused has been advised of the provisions of s.196.

If an agreed plea is reached at this stage, then the defence sends the Crown a letter as required under section 76 of the Criminal Procedure (Scotland) Act indicating the intention of the accused to plead guilty on the agreed terms and the matter then calls in Court under an accelerated procedure for the plea to be tendered.

What happens then, I will deal with later.

And I've run out of time! In the end I did have more to do this afternoon than I thought.

I'll try to get  this finished at some point over the weekend.



Thursday, 21 February 2019

New Party or new politics?

Who among you has ever heard of a Scottish politician called Alan Rennie?

Me neither.

But at the 1983 General Election, Mr Rennie, a Liberal, stood, as part of the SDP/Liberal Alliance,  as a candidate for Parliament. Those of you old enough will recollect the general platform on which Mr Rennie would have then been standing. For devolution. For social liberalism but economic responsibility.  For continued membership of the European Union and NATO. For a considered political dialogue within which your opponents did not necessarily need to be your enemies. 

So, good chap (probably) Mr Rennie. Except that his fellow candidate in this local contest, Monklands East, (I'm beginning to give away my punchline here) was none other than John Smith. Who triumphed comfortably, I suspect to the not inconsiderable relief of Mr Rennie himself. For they stood for almost exactly the same thing!

I wasn't for the SDP. Never even really thought seriously about it. And, to be honest, I never,until recently, really had to seriously even think about voting for them or their successors, the Lib Dems. For until the Tsunami of 2015, I had always lived in safe Labour seats and, even now, live in one where Labour is the only conceivable alternative to the SNP. (A point to which I return).

But I live in Kilsyth. And just to my west lies the East Dumbartonshire Parliamentary Constituency.  Where, in 2017, I would have faced the choice as to who to vote for to remove the then SNP MP, John Nicolson. Labour was represented by one Callum McNally, who came a heroic fourth but who may well have been as worthy a person as Mr Alan Rennie. However only person who had any chance of beating Mr Nicolson was the Lib Dem, Jo Swinson,  As she then did. So, here is my confession. I would have voted for Jo Swinson.

I might have woken up the next day thinking that her 5,000 plus majority hadn't needed my contribution but I wouldn't have swapped that for worrying, the night before, that sticking to Party might have seen Nicolson returned by a single vote.

So, even I get that I'm failing to come to the point.

This week, eight Labour MPs and three Tories have formed a new "Independent" Parliamentary group. The suggestion is that others will follow.

There are those who think that the logical conclusion from this is a new political Party which stands "everywhere". But mibbee it is not.

Why conceivably should it stand against Amber Rudd, if she stays with the Tories? Or Yvette Cooper, if she stays with Labour? Why, even if it does not reach a formal arrangement with the Lib Dems, should it want to shave off votes from the existing Lib Dem MPs?

"The BBC rules" is kind of the answer. "If you don't stand everywhere, you are not entitled to equal coverage". How's about calling out these rules? As the SNP have already done.

So, if the Independent Group goes forward as a Party, how's about it only stands where the likely winning candidate of one of the major Parties stands on its extremes? And otherwise says vote for Amber Rudd. Or Yvette Cooper. Or Tom Watson. Or Justine Greening?

And in Scotland, where the further fragmentation of the "unionist" bloc serves only one purpose, how's about it doesn't stand at all?

Because here is my final and most shocking confession. Never mind voting for Jo Swinson in East Dumbartonshire in 2017. Had I lived in Dumfriesshire, Clydesdale and Tweedale, I'd have voted for David Mundell.

New politics requires new thinking. First past the post, traditionally applied, serves only the interest of Boris Johnson or Jeremy Corbyn. And I'm not inclined to vote for either of them. 

Sunday, 20 January 2019

A light at the end of the tunnel?

It has been a recurring theme of mine that we could be sleepwalking to disaster on a hard Brexit. Despite repeated statements from centrist politicians across the Party divide that there is no majority for in the House of Commons for such an outcome, it remained and remains the fact that  this is what is currently enshrined in Primary Legislation and is scheduled to happen unless contrary legislation is passed at some time before 29th March.

And I have pointed out repeatedly that it is exceptionally difficult for Members of Parliament to pass Primary Legislation without the co-operation of the Government. For the Government, even without a majority, normally controls the business that Parliament can conduct.

Against that background, while Parliament can pass all sorts of motions, even wrecking amendments tagged on to different legislation, unless they can gain control of the "levers of power", the statutory clock keeps ticking. And, unless there was a different Government, either as a result of a General Election or as a result of a political earthquake leading to an (at least temporary) Government of National Unity,  (neither of which seemed very likely), I couldn't see how that would change.

And, last week, both of these options essentially disappeared. For having ruled out, for the moment, endorsing this Government's deal on Tuesday past, the following day they, in one vote, also effectively ruled out the possibility both of a General Election or of a different Government being formed from within the current Parliament.

Which on the face of it made things look even bleaker. We were continuing down the track to a point where it would indeed be "This deal or no deal" and it certainly could not be ruled out that the determination of nobody to lose face would end up with the fifty or so hard Brexiteers on the Tory back benches aligning with the twenty or so hard Brexiteers on the Labour front benches to carry their way against the more than five hundred of their colleagues otherwise minded.

But, I may have spoken to soon. For something else happened last week. A group of like minded MPs did finally come up with a plan to stop (at least for the moment) a hard Brexit, without having Government support.

The plan is in two parts. Firstly, masterminded by Dominic Grieve, it involves voting to change the standing orders of the House so that, temporarily at least, Government business no longer automatically takes priority and that proposed legislation with a certified advance level of support (the suggestion is 300 MPs) should be found Parliamentary time to proceed. This appears likely to pass.

The second bit is however that legislation. The European Union (Withdrawal) (No.3) Bill, likely to be introduced by Yvette Cooper with the support of the Tory Remainers, Liberal Democrats and Nationalist Parties.

This does two things. Firstly, it changes the Exit Day contained in the European Union (Withdrawal) Act 2018 from 29th March to 31st December. Secondly, it instructs the Government to seek an extension of the Article 50 process to align with that date.

I am sure Corbyn won't want to vote for this but it is difficult to see how he could justify not doing so and thus this is also likely to pass. Obviously, it also has to pass the Lords, where the Government might try to deny it time but there is a big remainer majority there so I think that could be overcome. Finally, assuming it becomes law, the Government might still refuse to act as instructed I think that an unlikely response, particularly as, by then, it would be too late to have a General Election before 29th March.

So we can all then breathe a temporary sigh of relief.

BUT, this still does not solve the problem of where this ultimately ends up.

So I want to move on to that and to the strategic problem of those opposed to a hard Brexit. They are split more or less down the middle on what they want instead.

On the one hand there are those who want a second referendum. Now, this is all very well but there are simply not enough of them. Last week, 71 Labour MPs signed a letter to Jeremy Corbyn calling for this to become Labour policy. That is, with respect, considerably less than a third of the Parliamentary Labour Party.  Sure, there are some front benchers who couldn't sign and, we are told, a few other back benchers who didn't sign for "logistical" reasons (whatever that means) but nobody seriously suggests  that would get us to anything like half of Labour's Westminster representatives. Why? Setting to one side the handful of Brexit true believers, three reasons. Firstly, some, no matter how disappointed they might be with the June 2016 vote, believe it wrong in principle and dangerous to our democracy to try and reverse it, particularly without even an election mandate to that effect. Secondly, others fear what such an attempt might mean for the longer term electoral fortunes of the Labour Party in leave voting areas. Thirdly, others still think that we would just lose again, only this time with much less scope to argue that our defeat meant anything but the hardest of Brexits. Obviously, there is a degree of overlap but that there is a combined PLP majority for the conclusion that a second referendum is not the answer, isn't really in dispute. And,to be fair to Corbyn, this is a dilemma that would face any Labour leader. To that extent his personal euroscepticism  is largely irrelevant.

But then let us look at the other side of the coin. If there is not going to be another referendum, what do we want instead? Let's start by saying this. For resigned leavers ("wish we weren't leaving but we are"), there is actually nothing very much wrong with Mrs May's deal. The legally binding bit does not deal at all with our future relationship at all, excepting the backstop bit which, in leaving us in regulatory alignment with the EU potentially in perpetuity, understandably annoys the ERG, but, since we want to remain in that regulatory alignment anyway, should hardly bother us. Sure it's not as good a still being in the EU but it doesn't even rule out that being the long term conclusion of being "rule takers not rule makers". It just gets us out in an orderly manner. As for the "political declaration" if there is a real criticism it is in its vagueness. But it is only a political declaration. It cannot prevent a future British Government from wanting relations between the EU and the UK to develop in a different way, whether that Government is lead by Boris Johnson or Anna Soubry or even (more improbably) Jeremy Corbyn. So, in the end, as I have said since I started writing about this back in October, all logic points ultimately to Parliament approving something that, if it is not Mrs May's deal, certainly looks very much like it. If you see Keir Starmer interviewed in detail on this, he struggles to say what is wrong with the Agreement (as opposed to the political declaration) and yet, in a legally binding sense, we are only voting on the former.

The question ultimately is who holds out against that? The ERG and DUP certainly but I fear the second vote crew might themselves be becoming as much of an obstacle, particularly if Corbyn continues to make an unholy alliance with them in voting, to the death, against Brexit and in favour of something indefinably "better".

I've said from the start that ultimately Labour votes will decide this. For good or ill. But at least we might now have a bit more time to decide.

Sunday, 13 January 2019

In Defence of Alex Salmond.

I have tried to avoid commenting on the Salmond matter for the very good reason that I have no idea if there is a substantive matter at all. Nobody does.

Certainly I am aware that there is an ongoing Police Inquiry (a matter to which I will return) and that it appears that it relates to allegations of some sort of  past sexual misconduct. But that is all I know.

I do not know if the allegations are true and/or, even if taken pro veritate, they would constitute criminal offending. Nobody does.

That is what even the Police are only still trying to find out.

I defend people for a living. Many are guilty. Even some of them found not guilty were probably guilty!  But it is a far from unknown phenomenon for someone to be investigated in good faith by the Police only for them to be entirely cleared  and/or for it subsequently to be called into question whether there was ever any crime at all. Don't just take my word for it, consider the couple who spent two nights in the jail before Christmas accused of flying drones around Gatwick Airport.

Now, it is no secret that I have no time for Mr Salmond but that is not the point! He is as entitled to the presumption of innocence as much as the next man and it seems to me that some of his political enemies have completely lost sight of this. An internal SNP source is quoted in today's papers as attributing the difficulties the Party is in to Mr Salmond having found himself complained about. But, with respect, that would only be the case if the complaints were well founded. And, unless there has been an outrageous breach of confidentiality, that is something the source cannot possibly know. Similarly, Richard Leonard took it upon himself in the Scottish Parliament to describe the complainers (a word I use in the technical legal sense) as "courageous". How does he know this? Has he met them? Does he even know who they are? If not how can he possibly pre-judge their credibility and reliability in this manner? If (and it is a big if) this matter should ever proceed criminally these are remarks upon which any competent defence team will undoubtedly seize. Mr Leonard should shut up. As indeed should any other politician tempted to comment on the substantive background here.

And that leads me on to my second point. No matter what a mess the Scottish Government (both political and permanent) made of the original investigatory process here, the idea that there could be a public inquiry of some sort at this time is absurd. If (again I emphasise a big if) there ever are criminal proceedings then inevitably the matters to be covered by such an inquiry would involve testimony that would also be potential testimony at any trial. What were the nature of the complaints?  Were they the same complaints as had been made in 2013? Why were they referred to the Police in 2018 but not in 2013? What has Mr Salmond previously said to third parties, not least Nicola Sturgeon, about his response to the complaints? What has Mr Salmond himself got to say about it? Actually, I'll answer that final question, because like any person under criminal investigation, he would be entitled to say nothing at all. Indeed, that would almost certainly be the legal advice that he would be given. But, never mind that, in the aftermath of such an inquiry, how could Mr Salmond conceivably receive a fair trial when much of the "evidence" had already featured in every newspaper in Scotland? Enough of the amateur Perry Masons at Holyrood. Let due process take its course. There might well be cause for an inquiry when other matters are concluded but, on any view, we are still some way from that.

And thirdly, there is another criminal inquiry, albeit not by the police but by the Information Commissioner, now underway in which, at least on the known facts, Mr Salmond has legitimate cause for complaint. How the fact a referral was being made to the Police ended up on the front page of the Daily Record?  Consider what happened here. In mid August, Leslie Evans told Mr Salmond that the outcome of the (until then internal Scottish Government) Inquiry was to refer matters to the Police and that the intention was to make that referral public. Mr Salmond then indicated that he would intend to take legal action to prevent the public element of this as he believed the investigatory process to be flawed. A matter on which he was vindicated last week, albeit not, as I read it, on quite the same basis as the challenge was commenced. Now, that original proposed challenge might have been a hopeless battle, in that the referral itself was not something that could be prevented in the civil courts and once a Police inquiry commenced matters would inevitably, at some point, have reached the public domain. But again that's not really the point! For, to head off any possibility, of the matter remaining confidential, somebody decided to tell David Clegg.  I make no criticism of Mr Clegg. It was a great scoop and if it was reprehensible for journalists to publish leaked Government information then the political pages of  the newspapers would become pretty dull places. Nonetheless, whoever leaked this, assuming they did so deliberately, almost certainly broke the criminal law. And did so for the precise purpose of damaging Mr Salmond. It will almost certainly prove impossible to establish an individual's guilt for Mr Clegg will, quite properly, protect his source. Thereafter, while only a small circle of people could have done the leaking,  it is still quite a big small circle, albeit clustered around one, or possibly two, particular people. It is an open secret that Mr Salmond's team have a principal suspect and that that suspect is not part of the permanent government. Nonetheless, even if individual guilt is not established, it is important to acknowledge what happened. And to deplore it.

But my final point is this. Everybody should calm down. The Police Inquiry is not concluded and, even when it is, in a matter of this nature, any final decision is highly unlikely to be taken by the Police but rather by the Crown Office.

All of that will take time, most likely several months. And (as I have made clear above nothing should be read into this "and") if there is a prosecution it is highly unlikely matters will be concluded in this calendar year. So let's respect the presumption of innocence and the right to a fair trial. These are both fundamental to all of our civil liberties. Not just Alex Salmond's.