Scottish Human Rights Law Group

This article appeared in The Scotsman on 16th February, 2009

by John Scott

Who should we help – the rapist or his victim? Not even a real question, is it?

In the Scottish Parliament this month Christina McKelvie MSP criticised the grant of legal aid to Adam Carruthers. Carruthers was jailed for 11 years in 2001 for raping two women while serving as a police officer in Dumfriesshire. He is taking court action in a bid to have his full police pension restored.

One of his victims, Jane Dearie, was part of a protest recently outside Dumfries Sheriff Court where the pension case was being heard.

Justice Secretary Kenny MacAskill confirmed his intention to hold talks about the issue, adding: “These are matters I will be discussing with the Chief Executive of the Scottish Legal Aid Board (SLAB).”

Ms McKelvie said: “I agree with the Justice Secretary that legal aid must primarily help the victim – not convicted perpetrators,” she said.

“Though there will always be issues around human rights legislation when it comes to legal aid this case has caused significant concerns.

“I hope SLAB will consider whether the criteria they apply are the right ones.”

Media reports have claimed that the Scottish Legal Aid Board has awarded Carruthers “up to £100,000” of legal aid and questioned the Board’s decision to grant legal aid. This figure has been invented by someone who has no idea and less responsibility, and thereafter repeated in numerous newspapers. It is almost certainly at least 10 times more than the actual figure which will be paid when the case is finished. This wilful distortion is unhelpful when trying to have reasoned discussion about an emotive case. Not such a good story though, if told on the basis of facts.

Similar ructions were caused at the time of the slopping out cases. Why should prisoners or convicts get any help from the State? The outcry overlooks our responsibility to treat everyone humanely and recognise that even those we despise may have legitimate grounds for court action. Conviction for even serious crimes no longer results in civil death, with all rights forfeited. Nor should it. The death penalty has gone. Only a very small number are condemned to life in prison, beyond all hope of redemption, and even they have rights.

The choice offered at the start of this piece is wholly misplaced. We should treat victims with respect and humanity. That does not mean that we should deny the same to prisoners. To do so would not necessarily assist victims in any way. The answer to my earlier question is that we should help both to get access to the courts if they have cases which require it.

The Justice Secretary will need to be careful in how he proceeds. He cannot simply remove legal aid from those who cannot afford a court case with a sound legal basis and reasonable grounds of success. It doesn’t matter who they are. The grant of legal aid cannot become a popularity contest. Many of those most in need of it are those who would fare poorly if that was how decisions were made.

Prisoners, asylum seekers and other minorities have little enough voice without trying to silence them completely. By all means let us argue their cases on their merits. We cannot, however, deny them the opportunity to have access to the courts. We expect everyone, even prisoners, to resolve their disputes in accordance with the law, and in court if necessary. The other side of that arrangement is that we need to ensure that access to the courts is available to everyone.

JOHN SCOTT

SOLICITOR ADVOCATE

CHAIR, HOWARD LEAGUE FOR PENAL REFORM IN SCOTLAND

12.2.09