Judges warn MSPs over “constitutional divide”

Judges yesterday warned that the important “constitutional divide” between the judiciary and government would be breached as a result of the proposals aimed tackling domestic abuse, resulting in a situation where politicians tell courts how to try cases. Lord Carloway, the Lord Justice Clerk and Scotland’s second most senior judge, voiced concerns over new laws which could force them to give directions to juries in sexual offences cases. He warned it could effectively see judges moved into the role of prosecutors. Lord Carloway was appearing before Holyrood’s justice committee, alongside leading Sheriff Gordon Liddle, to give evidence on the Abusive Behaviour and Sexual Harm (Scotland) Bill. “What is proposed is that the judge should essentially take on the mantle of the prosecution in making statements of fact dressed up as law,” Lord Carloway said in a statement to the committee. The proposed changes cover cases where the victim may have waited some time before reporting the crime or did not physically resist an attack. Judges will now be forced to tell juries there may be good reasons for this and it does not mean the allegations are false. But Lord Carloway warned that this “sets a precedent”. “If parliament is dictating what should be said to juries by a judge in this area, then no doubt in other areas, other people may seek to extend that and wish other directions to be given which is where we get into the constitutional divide.” Committee convenor Christine Grahame asked if this means the “very, very clear and important line between the judiciary and politicians will have been breached?” Lord Carloway replied: “Yes.” Sheriff Liddle, vice-president of the Sheriffs’ Association warned: “There are dangers involved.” He added: “I can see it almost having the adverse effect of what appears to be the desired effect where if it was necessary that such words have to be used in every case, then you have a set of circumstances where you really have to tell the jury `however that may not be the case.’ “You could confuse a jury because they would wonder why they’re being told one thing, then told another thing.” The sheriff warned that no two cases are the same and juries are looking from “indicators” in the directions they receive. Judges must “go out of their way” to guard against influencing them, the sheriff added.