NOT for the first time, Donald Findlay QC is wrong. Last week the bewhiskered defence lawyer accused Elish Angiolini, the Lord Advocate, of "political interference" in Scotland's system of dispensing justice. He was taking issue with Angiolini's call that "life should mean life" for the country's most brutal murderers.
Lawyers will always saddle up the high horse when they detect a threat to the separation of powers between judiciary and executive. But there's an important distinction to be made between political meddling in individual cases and a political strateg
y to improve the way the law operates. The first must be resisted at all cost. The second is essential if the justice system is to have the confidence of the public.
Findlay is mistaken about Angiolini's reforms. All she is suggesting is a widening of the range of jail terms available to judges in murder cases, so they can – if they see fit – make the punishment more reflective of the crime. He is also wrong in suggesting that Angiolini, representing the Crown, is somehow a tool of the SNP Government.
Angiolini is a class act. It's a testament to her talents and her independence of mind that Alex Salmond decided to keep her on as Lord Advocate when the Nationalists came to power last year. She has broken new ground in the Crown Office, particularly in her overhaul of rape prosecutions (Angiolini has said they should be investigated with the same forensic rigour as murder cases) and her promise to raise the ridiculously low age of criminal responsibility in Scotland. She has a gift for addressing herself to issues that resonate in the public mind, realigning the legal system so it better reflects our gut instincts on what is just and what is unjust. I'm delighted that Scotland's prosecution service is in her hands.
Note, however, that it's she, and not successive Justice Ministers, who have made the running in reforming how we apply the law in this country. There's often a degree of unnecessary squeamishness among politicians about being seen to tinker with criminal justice. They fear the Findlays of this world will cry foul. The last Scottish politician I can remember stepping into this territory with anything approaching boldness was Michael Forsyth, during his tenure as Scottish Secretary in the mid 1990s. (At that time his target was the system that would see a criminal sentenced to 10 years in jail, only for him to be released after five. Early release remains one of the aspects of the justice system that most puzzles and perplexes the ordinary member of the public and it remains unfinished business.)
Squeamishness is not a trait we usually associate with Kenny MacAskill, the current Justice Secretary. And true to form he recently announced radical plans for sentencing policy. Yet while I welcome MacAskill's willingness to get involved, I have grave doubts about the issue he has chosen to stick his tackety boots into. Simply put, he wants the courts to stop sending people to prison for less than six months. These short jail terms should be replaced, he says, with a beefed-up system of community sentences that he insists will provide "both payback and rehabilitation".
The popular instinct on this one is pretty simple to divine. By all means keep fine defaulters and the like out of prison. But when someone is guilty of a crime of violence they should go behind bars. Simple as that. MacAskill's scheme would mean, for example, that Del Banks, a teenage thug from Perth, would have escaped jail for a brutal assault that the courts thought deserved four months' loss of liberty. And Lee Gosling would have been spared the four months he got for an unprovoked attack on a severely handicapped boy in Inverness.
MacAskill is quite right to be concerned about what he calls the "revolving door of reoffending", which sees only 26% of ex-cons keep a clean sheet for two years following their release. But surely the answer is to work harder at rehabilitating criminals when they are inside – a captive audience, quite literally – and to ensure sentences include a requirement to continue working with rehabilitation staff once the criminal is back in the community, especially if drugs or alcohol lie at the heart of their pattern of offending.
Calling the scheme "community payback" is a clever bit of political spin, putting a tough-guy label on a soft-touch policy. But it will not convince a sceptical public which wants to know that someone convicted of an act of violence will, first and foremost, be properly punished for their crime. What MacAskill glibly refers to as "free bed and board at the taxpayers' expense" is actually the most fundamental means the state has to impose its will on one of its citizens.
Perhaps the least edifying aspect of MacAskill's proposal is the suspicion that it stems not from a principled belief about the nature of crime and punishment, but rather the need to keep a lid on the number of prisoners in Scottish jails. The prison population is depressingly high – 7,760 at the last count, about a third more than it was 20 years ago and more per head of population than Russia or Turkey. But is it really acceptable that prison numbers dictate our criminal justice policy? Isn't that the most blatant example imaginable of putting the cart before the horse?
Unlike the measures being pursued by Angiolini, MacAskill's plan fails the test of whether it chimes with the public's gut feeling on fairness. Donald Findlay was wrong when he accused the Lord Advocate of political machinations. But in her grasp of the public's instincts she has shown that compared to MacAskill, she is the better politician.
