Institutional Capture

The mess the SNP Scottish Government has got itself in to on Gender Recognition Reform is well documented and the reasons for that also well documented. 

In advance of the legislation they gave in to those with loud voices while others were not particularly interested or even noticing. Even if they had been asked. Which they weren't. 

Thus, the idea that the current Gender Recognition process was somehow traumatic or humiliating was established at an early stage as a given. Without any real evidence in support of that. That there were insufficient resources to gain a diagnosis of gender dysphoria was therefor written off as irrelevant because it didn't matter anyway. It would still be "traumatic and humiliating" even if it were the doctors willing to provide a diagnosis waiting for patients rather than the contrary. "Why?" remains the question never asked. Because there had been institutional capture. If you consult only those of a predetermined view, and nobody else, then you inevitably end up with their predetermined view as your own. 

Now, in the marketplace of twitter, that has led me in to allyship with women of strongly feminist persuasion. But tonight I may be about to fall out with them because I fear, in a different context, we may not agree. 

For the proposals to abolish by trial by jury for sexual offences betray a similar institutional capture. 

It proceeds upon a consultation on this matter headed by Lady Dorrian. 

But let us look at who sat on that consultation. The Judiciary (five Judges or Sheriffs) and their support team from The Scottish Courts and Tribunal Service (another five). Fine. The Polis and the Crown. Fine. Some legal bureaucrats from the Scottish Government and relevant agencies. (Again fine). And, finally three representatives of the defence. Again, up to this point, fine. All professional players with an informed view, even if I might not agree with their individual views. 

But then what happens? We need some lay representatives so who are they. One person from Scottish Women's Aid, one from Rape Crisis Scotland and one from Victim Support. And that's it. 

I respect the work of all three organisations but they hardly represent the totality of opinions here, Where was SACRO (The Scottish Association for the Care and Rehabilitation of Offenders)? Where was Justice or any other organisation involved in preventing miscarriages of Justice? Where was anybody to contest that the issue in rape prosecutions was not that 50% of all those accused of rape were acquitted but rather that 50% of people innocent of rape had been prosecuted at all? For that had been the verdict of a jury in each case. And, for what it is worth, where was the space for the conclusion of the defence bar  that, out of external pressure, the Crown themselves are prosecuting rape cases they know have little prospect of success.

I speak with some experience here. Rape is a difficult crime to prove. It involves a crime to which the complainer might have approved. In a way few complainers might ever have conceivably approved to being stabbed or robbed. 

But I want to choose another example Simple theft. If I was sitting on a jury assessing a person complaining of theft, I would undoubtedly give greater credence to someone who reported their loss five minutes after they knew of it rather than five years later. That would not be a theft "myth" other than it would be any other kind of "myth". It is simple life experience. Yet it is the position of those allowed privileged access to the Dorrian review that to hold such a view about an alleged particular type of crime is unacceptable. Just like suggesting that a man in a dress is not really a woman is equally unacceptable, (Sorry sisters),

Likewise and more specifically, I most certainly do not hold the view that rape must also involve other  physical injury but if someone gives an account of events, alongside the rape,  that would inevitably, have occasioned physical injury, and yet there is no such evidence, well I do think that might inform my decision making on credibility. There is equally no evidence of "myth" involved in that process

But even Lady Dorrian had to conclude she was faced with divided opinion on abolishing jury trials for serious sex offending. Quite how divided is a matter on which Her Ladyship remains silent but if it did not include the vast majority of lawyers involved then I suspect I am equally the Shah of Iran. 

And yet. 

The Scottish Government proposes to press on and do so. Not as recommended by The Lord Justice Clerk, as they claim, (for it wasn't) but by post event lobbying by the very lobby groups that sat on her consultation. And, in the process, managed to keep the prospect alive. Institutional capture yet again.

And while we are at it, if you consider the responses of complainers/victims, their main issue about the system is delay. I agree, But, somehow, this ends up in second place to them needing more, publicly funded, support by the very third sector organisations proposing that, Far from it being for me to criticise the Lord Justice Clerk but, in her position, I might have suggested that their presence in the room was to assist potential victims of crime rather than to find reasons to line their own pockets. Instead everybody else seems to have signed this idea off with a sigh,

I am quite a strong advocate of much else that is the current Bill. "Not Proven" should have been long since done in. Reducing Juries from 15 to 12? I shrug, even while thinking that doing so to bring Scotland in to line with England is an odd decision by...... the SNP. 

But on removing juries I have never seen a more united legal profession. It is a fundamental part of our system that you cannot get serious jail time without somebody beyond lawyers deciding that. That is the conclusion of defence lawyers who are free to speak our minds. Male lawyers and female lawyers; unionist lawyers and nationalist lawyers, Bur also prosecutors and judiciary who can't speak publicly but can speak privately. 

For the SNP? To paraphrase John Wayne, this should not be "Remember the Alamo!" but rather "Remember the Gender Recognition Reform Bill."

Here is hoping Angela Constance will. For this time Alister Jack won't be able to ride to the rescue.