Problem shared, problem solved?

Everybody seems to me to be asking the wrong question about Labour's brexit policy.

All of the focus is on whether or not we should be backing a second referendum but, with respect, this is almost irrelevant.

A significant number of Labour MPs will not vote to hold a second referendum, whether or not that becomes Party policy, and no more than a handful of Tory MPs will ever support a second vote, so there is no prospect of that proposition securing a House of Commons majority.

I should note, in passing, that there might have been some prospect of the Kyle/Wilson plan coming to fruition whereby the government conceded a second referendum in exchange for Labour support for the Withdrawal Agreement but it is clear that, with Mrs May's departure, the always very faint prospect of this has gone.

However, it is also clear that there is no majority in the current House of Commons for leaving the EU without a deal or any appetite at all on the part of the EU to remove the backstop. So, if we discount the farcical idea of proroguing Parliament, and the equally improbable eventuality of the EU throwing us out, one of two things will eventually happen. Either Mrs May's deal will pass, making a referendum irrelevant, or there will be a general election.

And the key question to be asked is not whether Labour would back a second referendum now but rather what Labour's policy would be at that General Election. It makes simply no sense for that policy to be a "better Brexit" (whatever that is) plus a referendum on that better "Brexit" with an option to remain. Why, if the government had been elected on a promise to Brexit, better or otherwise, would they then wish to give the public the opportunity to reject the government's own policy? How would the Labour Party anticipate campaigning in such a referendum? Against the "achievement" of its own government?

The truth is that calculated ambiguity may be a tactic for opposition but it is inconceivable as the position of a government. The Labour Party manifesto will have to say whether or not we support remaining in the EU. And if, advised by the first referendum, we don't, logically it should say that we would leave. And if we say we would leave, we will also have to say what we will do if the EU refuse to renegotiate the Withdrawal Agreement or at least to concede in full the changes we seek (whatever they are). Would we then leave on the best terms available or would we stay in? I point out that, if it is the latter option, the EU would have no incentive to renegotiate at all.

But of course things are not even as simple as that. For, even with the grip Corbyn and his allies currently have on the organs of the Party, I find it difficult to see how they would engineer a situation where the Labour Party manifesto committed us to leaving at any price. Most candidates wouldn't stand for it and most activists wouldn't work for it. "They did in 2017!" I hear you protest but 2017 was a long time ago and, frankly, nobody thought for a moment we had any chance of getting elected in 2017. Next time will be different (possibly).

Now you might think that the solution was, on a circular argument.........another referendum! But think through the logic of that. The only conceivable options in that other referendum would be Mrs May's deal or remain. But we are on record as denouncing Mrs May's deal as a terrible deal (albeit in rather unspecified ways) and have voted against it as consistently as the hardest of ERGers. Our manifesto could (surely) not say "we will let you have a vote and encourage you to vote to stay but if you don't we will go away and implement this terrible deal."

In the end leaving or remaining is a binary choice. Either Labour is for one or the other. There is no third way.

And by the way, pretty much everything I say above applies with equal force to the Lib Dems. Except that I am in no doubt about what their manifesto will say. "Bollocks to Brexit" works. "Bollocks to Brexit (subject to a referendum)" doesn't.

And also, by the way, Labour has a (relatively) easy way out of this dilemma. They could vote for the deal currently on offer (with some cosmetic changes to the political declaration) and defuse the car crash coming. They would then have to resign themselves to this Parliament going full term but by 2022 it might all just seem a long time ago and in any event a fait accompli. For what it's worth, if you listen carefully to Rory Stewart, that's what I believe, as PM, he would anticipate explaining calmly and logically as is his wont, behind closed doors to my own Party's leadership.

For if, by the time of the next election, we haven't left the EU, that's as much of a problem for Labour as it is for the Tories.

Question Time

I have a tribal allegiance to the Scottish Labour Party. I joined it forty five years ago and have been a member all of my adult life.

But, to be honest, it's pretty much finished.

I could write lots and lots about why that is, in a kind of melancholic way, but the truth is that Jack wasn't Donald, Wendy wasn't Jack, Ian wasn't Wendy, Johann wasn't Ian, Jim wasn't Johann, Kez wasn't Jim and Richard wasn't Kez. I'm ignoring Henry but would remind you in passing that such a person was, despite his utter mediocrity, capable of being, briefly, First Minister of Scotland. Because of the dominance, and hubris, my Party once enjoyed. But this hasn't just been about leaders. They all (except Henry), on assumption of office, promised a different way of "turning things round", from just about every shade of internal Party opinion. And they all, in steadily increasing degrees of failure, have failed.

But while there may be a point about talking about the past, for those who do not lessons the errors of the past are doomed to repeat them, I want instead to talk about the future.

The SNP administrations since 2007 have been, with one exception, utter failures. Nobody thinks education, or health, or transport have been improved under their dismal stewardship, Nobody. Few, except their most rabid partisans, truly tries to maintain otherwise.

Yet they have enjoyed two huge advantages. The first is their one success. It has been to convince a very significant section of the electorate that things cannot possibly get better until we are "free of the English Yoke". Whereupon things will somehow magically improve. You and I might scratch our heads over this but that's not the point. It is an undoubted accomplishment, of sorts.

However their second advantage has been the lack of a competent opposition and, with that, the lack of a credible alternative.

Back in 2016, Ruth Davidson got that. Her platform was, by her own admission, not to make her, there and then, First Minister, but rather Leader of the Opposition. An ambition in which she succeeded.

But, even then, the Nats relaxed in the knowledge that at any future contest, even if the Tories advanced further still, they would still lack allies to threaten the recent SNP hegemony. For the Labour Party would never enter a coalition with the Tories based, alone, on a common commitment to the continuance of the UK.

And that's probably a fair calculation.

Except that the changed landscape of the Brexit Referendum in 2016 may have crept up on them as the Independence Referendum of 2014 crept up on the Scottish Labour Party.

I was going to expand on this thesis, except that I know I have an informed readership, so I will leave you through to think that through for yourselves.

And also to work out why the SNP decided to set their cybernat dogs on Jo Swinson over what was nothing more than a two minute exchange on last Thursday's Question Time. About which Swinson was, on any objective analysis, subsequently proved correct.

An emerging alternative Government of Scotland is......emerging.

The next First Minister of Scotland will clearly be Mike Russell or Derek McKay, because Nicola clearly wont survive the Salmond trial, whatever the verdict. If Henry could get the job, then why shouldn't they? But the First Minister after that?

Things can only get better.

 

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.

 



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.





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.



"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.





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.




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



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.




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.



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.

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.

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 https://www.legislation.gov.uk/ukpga/1995/46/section/275
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.  

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.






                                                                       


 

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.