Braveheart's last stand

Scottish Supremo tries to quell northern rebellion ... English accused of eroding Scottish law ... "You can't take our freedom" ... Conflicts for horseracing barristers ... Leverhulme with London Calling 

The Hydro: fitting venue for the study of offendingThe Hydro Hotel, which sits high above Dunblane in Scotland and is reminiscent of Jack Nicholson's digs in The Shining, was the venue of a controversial speech from a Supreme Court judge last weekend.

Lord Hope of Craighead attended the annual conference of the Scottish Association for the Study of Offending and managed to offend a few in his home country.

Since we have all been told how to behave by the Solicitors Regulation Authority, my acute sense of diversity awareness compels me to identify Lord Hope as a Scot.

The Scottish legal system has been in turmoil. Some see it as an English plot.

The Supreme Court sitting in London last year in a case called Cadder ruled that European law overrode Scottish law and police could not interview a suspect without a lawyer being present.

A review by Lord Carloway, published the day before Lord Hope's speech, called for the scrapping of the age-old requirement of corroboration.

Carloway: went further than expectedNo-one in Scotland can be convicted without two sources of evidence. 

Carloway went much further than many thought he would. He described the system as medieval and archaic.

There were predictable howls of anguish from the legal profession. The greedy so-and-sos had benefited from Cadder because admissions made in the absence of a lawyer could not be used as corroboration.

It gave resonance to the phenomenon of getting off scot-free.

Lord Hope waded straight into the loch.

The press reacted with glee.

They seized upon his remark that there was a corrosive "anti-English sentiment" in Scotland's courts.

These were not his words apparently, but the uncorroborated comments of the late Lord Rodger of Earlsferry, another Scot on the Supreme Court, who passed away recently.

Lord Hope used the speech to pay tribute to his colleague.

"It was no secret among his colleagues that Lord Rodger did not think much of devolution. 

He had worked closely with the powers that be at Westminster. He knew how their system worked, and he admired it. Faced with legislation for devolution that he did not much favour, he dug his heels in. He took the legislation literally, warts and all.

He relished the contact which devolution issues gave him with Scots criminal law, to which he had devoted so much of his time before he went onto the bench. But his approach to the legislation was to take the words of the statute as he found them." 

Scottish press reaction to CraigheadIn Scotland the Scottish appeal court has the final say in criminal matters but cases involving the European Convention on Human Rights can go to the Supreme Court in London.

Earlier this year the Scottish government accused the Supreme Court and its judges of eroding Scots law and threatened to withdraw funding.

Some in Scotland see it as an English power play, but ironically. as we know, Hope and Rodger hail from north of the borders.

Lord Hope put matters into perspective.

"We have refused leave in 19 cases since the jurisdiction in devolution cases was transferred to the Supreme Court in October 2009 and given leave in only two. Only 29 cases in all have gone to a full hearing since the jurisdiction was introduced 12 years ago: 14 of them with leave given by the Appeal Court, six of them on references by the Appeal Court or by the Lord Advocate and nine in which we gave leave to appeal.

This is an average of about two and a half devolution cases heard a year... It is worth repeating that in the majority of cases that have been taken to a full hearing it was the Appeal Court in Edinburgh that gave leave or sent the case to us on a reference.

We have disagreed with the Appeal Court on the question of leave on only nine occasions since the jurisdiction came into operation in 1999." 

The struggle goes onAs my American friends tell me, the Scottish/English thing goes back to Mel Gibson who painted his face blue and white and was promptly hung, drawn and quartered in London.

I remember a cricket match at Trent Bridge between Australia and England not long after the film Braveheart came out.

About a dozen or so Caledonians were making fools of themselves in the crowd. I knew they were Scots because they were all called Jimmy and had tartan hats to which was attached some luxuriant false red hair.

The ringleader went too far and was marched off by the Old Bill. His colleagues called out as one: "You can take our friend! But you can't take our freedom!"

To the roars of the Nottingham crowd the whole lot were then arrested. 

*   *   *

Last week a pal was teaching negotiation to fairly senior lawyers.

He split the class of 24 into two groups: the As and the Bs.

His technique is to give them four negotiations and he handed out confidential instructions to each side.

They are then put in opposing pairs for the first negotiation.

The teacher noticed two Bs without partners and asked the class if anyone was sitting in the wrong seat, but there was silence. He assumed he had miscalculated.

One of the lonely Bs said she would play an A and although it was not ideal the trainer agreed.

Fifteen minutes into the negotiation, a pair of lawyers who had been arguing against each other quite vigorously announced they were both As. At least they feigned embarrassment.

Diversity awareness compels me to say the course was being held in Belfast.

It's a wicked observation but maybe the Northern Irish have been fighting each other for years without realising they are on the same side. 

*   *   *

Hodgman: never saw a conflictMany years ago legendary Tasmanian lawyer Michael Hodgman QC advised his junior counsel that their appeal to the race committee on behalf of a jockey, exquisitely named Rosalene Last, was bound to fail.

"The committee employs the stewards," he intoned. "They are hardly likely to find against them."

Hodgman, himself a race club committeeman, albeit of a different club, often represented jockeys and trainers, but never saw a conflict.

But what about a barrister who appears regularly for the racing authority and is punished for apparent dishonesty by his own side?

Graeme McPherson QC, who trains 33 horses in his spare time, suffered this fate last month when he was fined £3,000 by the stewards because his horse Traditional Bob was what they call, a non-trier.

The jockey was rubbed out for 14 days and the blameless nag copped 40 days. Poor old Bob could hardly have known he wasn't trying.

The whole case was embarrassing because McPherson has been one of the British Horse Racing Authority's top silks since 2006.

As it happened, after proffering a lengthy written submission, Macca won his appeal. Apparently, the stewards hadn't seen the video from two other camera angles.

It is refreshing that he leaves without a stain on his character.

But, back to Hodgman.

When the hearing of the Rosalene Last appeal commenced, the first witness was a steward called Mr Wayne Kirby.

Hodgman cross-examined thus:

"You're a greyhound steward, aren't you?

Yes.

Greyhounds?

Yes.

Dogs? You don't know a great deal about thoroughbreds, do you?" 

It was all too much for the Chairman who intervened.

"I'm sorry. You've lost me Mr Hodgman." 

Hodgman's reply was swift, but excruciating for his junior. 

"Well, well Mr Chairman. I wasn't expecting to lose you so early in the hearing."