Considerable attention has been paid to the Justice Minister’s response to Lord Bonomy’s review of the proposed abolition of the law on corroboration in criminal trials. This has eclipsed comments made the previous week by the Lord Justice Clerk, Lord Carloway, who initiated the proposal, about opponents to proposed changes in the law. These comments, in turn, prompted a response by the Chair of the Criminal Law Association, Thomas Ross.
It was reported Lord Carloway expressed the view that people who propose radical change, as he had done, may face “real hostility” and can be “undermined” by their own peers. Defending the right of judges to suggest legal reform, Lord Carloway said the “down-side is, however, a tendency in some quarters, notably the media, some politicians and certain reactionary elements of the legal profession, to personalise the attack on any reforms recommended by judicial figureheads that they wish to undermine.”
He also noted: “Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”
These are very significant words. Lord Carloway will not be alone in recognising these traits. Mr Ross, expressing concern about the way lawyers who represent accused people for a living are perceived, reportedly said he agreed with most of Lord Carloway’s proposed reforms and most of his speech but posed these questions: “Will Lord Carloway clarify who he means when he talks of ‘reactionary lawyers’, or are all of those who have publicly disagreed with him to be tarred with the same brush? If so, will his use of this pejorative term encourage or discourage lawyers of future generations to become involved in the process of law reform?”
This fascinating exchange leads me to ponder our ability to discuss difficult issues at a time of unremitting change – and to wonder about the implications for the expression of diverse points of view on topics of importance, points of view which are usually (though not always) held with sincerity and commitment.
Respecting those who have the courage to speak out is a central tenet of a thriving democracy. The Lord Justice Clerk has made proposals which are deeply unpopular but is to be commended for thinking differently and challenging the received wisdom. Similarly those who disagree and point to the essential protection which corroboration provides cannot all be special pleaders, and include people of gravitas and experience.
The problem here, at least in part, is the perception that issues like these are only capable of a right or wrong, for or against solution. Reality is often much more complicated than that. It is surely necessary to identify and discuss underlying political, social and legal objectives, balance competing interests and rights, recognise changes in technology and society, and appreciate the vulnerability of the human condition and human institutions. Depending on your experience, background, perceptions, unconscious biases and so forth, you may tend to one view or another. Different views require respect, combined with energetic discussion. It might be difficult to reach a generally acceptable conclusion. Such is life. Decisions need to be made. Leadership is about making decisions, some of which will not appeal to everyone. How we go about this defines us. How can we ensure rich, engaging and imaginative dialogue when matters are complex?
Nelson Mandela captured this well in appreciating life is full of shades of grey. His biographer Richard Stengel writes: “Shades of grey are not easy to articulate. Black-and-white is seductive because it is simple and absolute. It appears clear and decisive. Because of that, we will often gravitate toward yes or no answers when a ‘both’ or a ‘maybe’ is closer to the truth. Some people will choose a categorical yes or no simply because they think it appears strong. But if we cultivate the habit of considering both – or even several – sides of a question, as Mandela did, of holding both good and bad in our minds, we may see solutions that would not otherwise have occurred to us. This way of thinking is demanding. Even if we remain wedded to our point of view, it requires us to put ourselves in the shoes of those with whom we disagree. That takes an effort of will, and it requires empathy and imagination. But the reward, as we can see in the case of Mandela, is something that can fairly be described as wisdom.”
Let’s hope Lord Bonomy ‘s review will lead to solutions that would not otherwise have occurred… and that our decision-makers find wisdom as we wrestle with thorny issues at this fascinating time for Scots law and Scots lawyers.
This blog originally appeared in The Scotsman, 27 April