A Stitch In Timing
Readers will probably be aware that literally as you read this, the Scottish Government is in court trying to defend its policy of letting male murderers be housed in women’s prisons by arguing that the Equality Act 2010 (as ruled on by the Supreme Court in the For Women Scotland case) is incompatible with the Human Rights Act 1998, implementing the European Convention on Human Rights and Fundamental Freedoms (commonly referred to as the ECHR).
But this article isn’t about that case.
Because today the Court Of Session issued an unrelated judgment that an entirely different piece of Scottish law is incompatible with the ECHR.
Wings readers have been following the deeply troubling case of Mark Hirst since 2021. Mark was arrested in 2020 on ludicrous charges involving a tweet constituting an alleged “breach of the peace” against the anonymous complainers who’d made false allegations of sexual assault against Alex Salmond, who’d been cleared on all counts at the High Court earlier the same year.
Seven months later Mark’s trial collapsed at Jedburgh Sheriff Court with the sheriff ruling there was no case to answer. Later that year he commenced proceedings to sue the Lord Advocate for malicious prosecution, and today – a disgraceful four years and seven months later – those proceedings reached their conclusion.
Put simply, judge Lord Lake concluded that Mark DID have grounds for a claim of malicious prosecution against the Lord Advocate – Scotland’s most senior law official, head of the Crown Office and Procurator Fiscal Service but controversially also a minister in the Scottish Government – but that he was obliged to dismiss the claim because the Criminal Procedure (Scotland) Act 1995, (section 170) grants prosecutors total immunity, because Mark had not been imprisoned.
Lord Lake found that this conflict in law breached Mark’s right to fair treatment.
This might seem like an arcane technical point, but is in fact incredibly serious. Scots law has been ruled flatly incompatible with international human rights law, a situation which cannot possibly be allowed to continue. The CPSA will have to be changed urgently to avoid such grave injustices from happening again, yet it would take a bold gambler to bet on the Scottish Government doing so before May’s general election, or any time soon afterwards.
(It claimed to have no time to support Ash Regan’s bill on prostitution this week, despite it mirroring official SNP policy, but the Parliament did manage to debate a ban on greyhound racing despite there being absolutely no greyhound racing in existence anywhere in Scotland.)
The irony of this extremely rare legal scenario (declarations of incompatibility are vanishingly uncommon, for the obvious reason that most laws are carefully written to avoid them) coming up twice under the same administration, and in connection with the two most shameful episodes in Scottish Government history – the conspiracy, persecution and cover-up against Alex Salmond, and the imposition of violent male criminals on vulnerable women – is hard not to appreciate.
But in a country where nobody – least of all the Crown Office – is accountable for anything, irony appreciation is just about the only thing people have left to hold on to, as Scotland’s justice system dies slowly of shame.
Scots law, along with Scottish institutions and Scottish democracy, is being deliberately and systematically undermined and discredited in plain sight by a turned and ("Tractor" - Ed)ous SNP government and unionist civil service, police, judiciary, crown office and media.
It make you wonder if the incompetence of justice system in Scotland isn’t being done by design, in order to introduce the English system as it is in Wales as a alternative.
Lets be honest after the 2014 referendum every day has been a steady attempt at bring Scotland business, history, culture and our resources into the English/British way of live, so why not the justice system as well.
Its funny how someone can get hit by a bus and three cars spends 1yrs in hospital and the lawyers make more money than the victim, that’s UK justice.
I feel sorry for Mark, but I’m not surprised.
I’m almost tired of being tired of being outraged. It really seems that there is nothing that can actually be done to move things back to sanity.
Only the SNP could bring a bill before the Scottish Parliament to ban something that doesn’t exist in Scotland ( greyhound racing) What a waste of debating time.
John Burns @ 16.42.
Obviously inspired by their succes with the Fur Farming prohibition Act of 2002, our devolved administration find it easier and less controversial to spend their time addressing non existent challenges than genuine ones.
Well, got to “earn” those enviable salaries, expenses, pension contributions and subsidised fine wining and dining somehow I guess.