From death to life

Around 100 of the world’s 193 or so nations still take the lives of those who commit solemn violations of their laws. Capital punishment, execution at the hands of the state, is retained by a few industrialised democracies today, most notably the United States. Our legal system operates in the context of the wider world. From a safe distance, the death penalty may appear to be an abstract topic of debate. However its continued existence reinforces the need for the Scottish legal system to protect the values on which it is based.

This article does not seek to draw parallels between disparate legal systems. Rather, it is suggested that our legal system can perhaps learn from the failings of the US legal system – particularly in light of proposed changes to legal aid funding in Scotland which threaten to undermine the rights of Scottish accused and to introduce some of the deficiencies of the US system.

Capital costs

Thousands of miles from home, this author is currently working for the Georgia Capital Defender. Fresh out of university in Edinburgh, I often wonder whether I can contribute anything to a capital trial. Yet despite the obvious differences between our legal systems, it is apparent that safeguarding the fundamental right to a fair trial is something that both the Scottish and American systems must strive to protect. Given the backdrop of capital punishment in Georgia, it is doubly crucial that the rights of the defendant are afforded adequate protection in law.

In light of continuing legal aid cuts within the Scottish system, many of the issues facing us at present relate to a certain extent to the current problems facing the system in Georgia. Georgia remains the only state in America where state funding for habeas corpus appeals is not available. The Georgia Appellate Practice and Educational Resource Center – which represents death row inmates on a pro bono basis – has become of increasing importance in death row cases in recent times. Yet for budgetary reasons, funding has reduced significantly in the last decade. In 2012 some death row inmates in Georgia face losing legal representation for their appeals due to budget cuts.

The current decrease in funding comes despite the increase in the Center’s work on death row cases. As well as it being life that is at stake for the capital defendant, another factor unique to the Georgian position is that, given the cost of housing an inmate on death row, delays in appeals due to a lack of lawyers to manage cases actually result in the state losing significant sums of money. For example, a delay of five years whilst an inmate is on death row could cost the state more than $90,000 (see www.ajc.com/news/cuts-threaten-death-row-1283333.html).

The overarching factor in common between our legal systems is the inevitable truth that it is often the most vulnerable members of our society who come into contact with the criminal justice system and who require the protection of the state to enable adequate representation of their rights.

Life and death

Fortunately, no longer within our legal system do we inflict capital punishment. Until 1834, however, there were almost 50 capital crimes in Scotland for which the accused could face execution, including bestiality, hamesucken (“the felonious seeking and invasion of a person in his dwelling house”: Hume, i, 312), piracy, rape, robbery, theft and wilful fireraising. In that year and the years that followed this number was reduced until the death penalty was eventually restricted by the Criminal Procedure (Scotland) Act 1887 to cases of murder, attempted murder and treason.

The death penalty for murder was finally abolished by the Murder (Abolition of Death Penalty) Act in 1965 – the result of a Private Member’s Bill in 1964 launched by Sydney Silverman MP which contained the significant change of statutory language from “death” to “life”. The last execution in Scotland was of 21-year-old Henry John Burnett on 15 August 1963 in Craiginches Prison, Aberdeen, for the murder of seaman Thomas Guyan.

In the United States, 48 years later, on 21 September 2011, the execution of Troy Davis in Georgia for the murder of an off-duty policeman is still fresh in the minds of many who protested his innocence, the case having attracted global attention. Use of capital punishment within a legal system ostensibly aimed at ensuring the rights of the defendant remains the situation in the United States today.

Due process?

On 26 October 2010 the well publicised UK Supreme Court case of Cadder v HM Advocate saw revisal of the particular view of where the balance was to be struck between the public interest and the rights of the accused in the Scottish system of detention under s 14 and s 15 of the Criminal Procedure (Scotland) Act 1995.

That view was held to be irreconcilable with Convention rights, and out of keeping with the rest of the United Kingdom. Accordingly, in Scotland, the process begins with the accused being detained or arrested and being offered access to a lawyer. It ends, at the very most, with a sentence of life imprisonment.

In America, the process begins with the defendant being arrested and can end with a corpse being carried away from the execution chamber. Our legal systems are extremely different, yet it is useful to consider the position of the capital defendant in the United States in light of the potential effects of proposed changes to the Scottish system which threaten to impact upon the rights of the accused under Scots law.

Despite the United States having an entrenched constitution, under which constitutional rights should rank supreme, the regrettable normality is that the defendant in a capital trial today remains in an extremely vulnerable position. Most capital defendants in the United States are represented by a court-appointed attorney who is often greatly inexperienced in capital trials. Even attorneys who have the knowledge and the experience required to fight a capital case are often overworked and underpaid.

At a 1984 trial in Texas, the attorney slept through his client’s case yet the US Court of Appeals for the Fifth Circuit ruled that the US Constitution did not require the attorney to be awake. Defence by a sleeping lawyer was “not ineffective”, the court ruling that actual effectiveness need not be shown – to the effect that the defendant, Calvin Burdine, was sentenced to death. It was not until 2001, at a third round of appeals, that he was awarded the right to a fresh trial.

Beyond the issue of legal representation, the process of jury selection is often a further source of offence to the rights of the defendant in the United States. The jury is selected by the procedure known as voire dire – ultimately a process of death qualification. Several legal commentators have commented on the way in which this process significantly undermines the defendant’s right to a fair trial by an impartial decision-maker. For instance, Costanzo notes that jurors who remain in the pool following death qualification tend to be – or to become – “more conviction prone” (“Just Revenge” (New York: St Martin’s Press, 1997), 24).

Once in court, the initial – “guilt” – phase of the capital trial may be said to be, in broad terms, relatively similar to solemn proceedings in Scots law. The secondary, “penalty phase” of the trial, however, is a feature completely unique to capital procedure and one that constitutes a particular source of violation of the rights of the defendant in the United States. This is because the jury is entitled to decide whether or not the defendant should be sentenced to death. Albeit guided by sentencing instructions, it is the task of the jury to decide the fate of the individual whose life hangs in the balance. This can often give rise to biased and irrational decision-making. As Costanzo comments (“Just Revenge”, 37), “the pattern of death verdicts remains discriminatory despite the court’s efforts to restrain the discretion of jurors”.

The above realities faced by the capital defendant in the United States help to place our legal system’s strengths into perspective, whilst serving to highlight the significance of the accused’s rights under Scots law. More importantly, inadequacies in the protection of the defendant’s rights should reinforce the need to continue to uphold such rights as a fundamental backstop of our legal system. This is particularly important in light of imminent obstacles faced by the profession in terms of legal aid cuts and the proposal for an EU-wide system of criminal procedural law, issues to which we shall now turn.

Rights under threat in Scotland?

It is of fundamental importance that individuals are not denied legal assistance when they come into contact with the criminal justice system in Scotland. Although what is at stake at most is “life” and not death, when individuals come into contact with the Scottish courts they do so at crisis points in their lives. Thus as the Scottish Government highlights: “The legal aid system provides an important service for many people who could not otherwise pursue or defend their rights, or pay for their defence” (Final Business and Regulatory Impact Assessment – Measures to Deliver Savings in the Scottish Legal Aid Fund (2011), 3).

Cuts to Scotland’s budget, and (ironically) the Supreme Court decision in Cadder, establishing the importance of access to a solicitor, mean that the legal aid and advice budget is under increasing pressure in Scotland.

In our jurisdiction access to legal aid was intended as the fourth pillar of the welfare state. Yet legal aid cuts threaten to undermine the protection of the accused in Scotland. In terms of access to justice it is vitally important that people who are unable to afford representation have that paid for by the state. Reducing access to justice means that some of the most vulnerable people in society may be failed by our legal system from the outset.

The rights of the accused in terms of having their defence adequately put forward in court could be undermined given that legal aid cuts might encourage early pleas to save time and money. Tactical decisions ought never to determine access to a fair trial. As noted from the American experience, being overworked and underpaid can result in defence lawyers being unprepared for trial or not having adequate time to construct properly their client’s defence.

Furthermore, recent movements that could affect the Scottish legal profession, such as the present inquiry into the possibility of an EU-wide system of criminal procedural law , should also be considered in light of the need to safeguard the rights of the accused as fundamental to our legal system. Following the increase in EU criminal law powers in the Lisbon Treaty, the European Commission has expressed its intention to build on existing legislation in the field to develop an EU-wide approach to criminal procedure, in relation to which the UK Parliament launched an inquiry at the end of 2011 (see www.parliament.uk/documents/lords-committees/eu-sub-com-e/eupolicycriminalprocedure/criminal-procedure-evidence.pdf).

Although the most high profile aspect of the inquiry is arguably the European arrest warrant, the proposal for a European Directive on Victims’ Rights could affect not only the status of victims in Scots law, but also the rights of the accused. These could assume a new position if compromised by the need to balance competing interests.

Protection of fundamental rights

Consideration of the typically vulnerable position of the capital defendant in the United States should continue to serve as a reminder of the sensitivity of our own safeguards in Scotland and as a caveat that we cannot afford to allow the bar to be lowered. The consequences of an accused being failed by the Scottish legal system are thankfully incomparable to those in legal systems that continue to use capital punishment. Yet ultimately, regardless of whether it is life or death that is at stake, the rights of the accused should be paramount.