Mr Salmond tholes his assize

Screen capture by Seán J Crossan from BBC Scotland’s website

Strange words i.e. uncommon: thole and assize.

Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.

Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).

Enough of history for now …

In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.

This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.

It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:

  • Not guilty
  • Not proven
  • Guilty

Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.

It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.

At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having to prove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.

I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?

Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …

Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.

We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).

It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.

Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.

A link to an article about the Salmond verdict on the BBC website can be found below:

Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.

Alex Salmond cleared of all sexual assault charges

BBC Scotland has also been running a podcast about the Salmond trial (please see link below)

https://www.bbc.co.uk/programmes/p0864016/episodes/downloads

Related Blog articles:

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2020/01/09/down-with-corroboration-i-say/

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 23 March 2020

Making (period) poverty history?

Photo by The Female Company on Unsplash

On 23 April 2019, Monica Lennon, a Member of the Scottish Parliament for the Labour Party introduced the Period Products (Free Provision) (Scotland) Bill (a draft law). There is nothing particularly unusual about this. After all, it is the job of our parliamentarians to make laws on behalf of the people of Scotland.

The purpose of this Bill captured the imagination of many and gained quite a bit of media attention due to its objective: the eradication of one of the sources of poverty endured by many women on low incomes in Scotland. In short, Ms Lennon’s Bill would ensure that women were given free access to period products.

Although the Bill’s objective was universally praised, the Scottish Government expressed doubts about its financial sustainability – and Ms Lennon, after all, is an opposition and backbench member of Parliament. Politics is politics after all.

Now, after some time in the equivalent of the parliamentary doldrums, the Bill has been given a new lease of life having been approved (the main principles of the proposal in any case) by a majority of Ms Lennon’s Holyrood colleagues.

That is not to say that the Bill will be passed as it was originally introduced to Parliament last April. It is more than likely that it will be subject to intense scrutiny by parliamentary committee and a range of amendments will be proposed.

What the shape of any eventual law will look like is anyone’s guess at this stage, but all credit to Ms Lennon who has persisted in pushing forward this important issue and keeping it firmly in the spotlight.

This is nothing new: most Bills will be subject to amendments as they undergo the scrutiny of the legislature. This is part and parcel of parliamentary life; compromises will have to be made in order that a Bill can be placed on the statute books i.e. can move beyond a mere proposal to something more concrete and lasting – an Act of Parliament.

An info graphic showing the current progress of the Bill (now at Stage 2) can be seen below:

Links to articles on the BBC website about the Bill can be found below:

Period poverty: Are Scots going to get period products for free?

MSPs have given their initial backing to plans to tackle period poverty by making sanitary products available to all free of charge.

Period poverty: MSPs back plans for free sanitary products

MSPs back the general principles of Monica Lennon’s bill but warn changes must be made before it becomes law.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/20/criminal-evidence-vulnerable-witnesses/

https://seancrossansscotslaw.com/2019/11/29/from-8-to-12/

https://seancrossansscotslaw.com/2019/10/04/smacking-banned/

https://seancrossansscotslaw.com/2019/05/28/ban-smacking/

https://seancrossansscotslaw.com/2019/06/04/more-bills/

https://seancrossansscotslaw.com/2019/04/29/private-members-bills/

https://seancrossansscotslaw.com/2019/06/13/stalkers-beware/

Copyright Seán J Crossan, 26 February 2020