The Steel Thistle

It is accepted by many of the leading members of the Scottish judiciary such as Lord Hope that, after a certain period of imprisonment (18 years), the human personality begins to disintegrate. Any judge should therefore hesitate before imposing a sentence which would mean the prisoner serving more than 18 years. These profound considerations do not appear to form any part of the reasoning of the Lord Advocate, Elish Angiolini. Since 2006, she has held one of the great offices of state, an appointment which combines two distinct roles – chief legal adviser to the Scottish Government as well as chief public prosecutor for Scotland. Angiolini has an unusual background. A solicitor by profession, she began her career in the procurator fiscal service and continued in that service (apart from a couple of secondments to the Crown Office) until she was appointed Solicitor General (No. 2 to the Lord Advocate) in 2001. She was never an advocate. She never had to defend anyone. Her legal experience, then, is not fully rounded. In Scotland, the maximum ‘punishment part’ of any life sentence is 30 years (12 years after the human personality has begun to disintegrate); at that point parole must be considered. Angiolini wishes to remove this important qualification of Scottish sentencing. Earlier this month, she went to the Appeal Court in Edinburgh and called on the judges of Scotland to issue new guidelines which recognised that ‘a punishment part which will exceed the natural life expectancy of the accused’ may be appropriate in exceptional cases. Her argument in support of the change seems to be based largely on the incidence of homicide in Scotland. However the Scottish rate is stable and that there have been no dramatic changes in recent. In one specific recent case, the Lord Advocate’s desire to lengthen the punishment part of a life sentence ended in embarrassment. When it was known that the man convicted of the Lockerbie bombing had contracted terminal cancer, she persisted with her appeal against what she regarded as the leniency of the punishment part of the sentence (27 years). Then matters took a different course. The dying prisoner applied to drop his own appeal against conviction. In granting this application, the Lord President, Lord Hamilton, came close to rebuking the Lord Advocate. He said it was ‘of the utmost importance’ that she made an early decision as to whether she intended to continue with her appeal against the sentence. A few days later, she withdrew as gracefully as possible; which is to say, not very gracefully. In these matters, general as well as specific, the Lord Advocate has acted as the prosecutor she is by training and perhaps by instinct. It is not for prosecutors to consider at what point the human personality begins to disintegrate; it is for prosecutors to be steely. Angiolini is indeed a steely – one of the most heartless people in the whole Scottish judiciary. But that leaves in the air the matter of her co-existing but distinct role as chief legal adviser to the Scottish Government – and the troubling potential for conflicts of interest.

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