Lord Advocate: The reconciliation of rights between victims and the accused must remain dynamic

JUSTICE Student Network member Lidia Dancu gives her account of the Lord Advocate James Wolffe QC’s Human Rights Day lecture in Scotland.

JUSTICE marked Human Rights Day 2016 with a lecture on fundamental rights and the prosecution of crime, held at the Faculty of Advocates in Edinburgh, Scotland. The lecture, held on Friday 9 December – the eve of Human Rights Day, was delivered by the Lord Advocate, James Wolffe QC. Mr Wolffe is Scotland’s chief legal officer and public prosecutor.

The event was introduced and chaired by the Honourable Lady Scott, Judge of the Supreme Court and founder member of JUSTICE Scotland. She began with an affirmation of Scotland’s legislators’ understanding and commitment to human rights issues in respect of both the rights of victims, as well as those of the accused.

The Lord Advocate embarked on his address by emphasising the importance of an independent and objective justiciary to deliver fair, efficient and accessible services through appropriate mechanisms and implement strong safeguards against miscarriages of justice.

The Lord Advocate reminded the audience of his constitutional responsibility to act in the public interest, not as an agent of the victim. As such he highlighted that it is imperative for prosecutors to act as an independent and fair actor in the legal process. They must be agents of change in an overall legal machinery which requires a robust, forensic, objective and independent approach and which respects the dignity of both the victims of crime and that of the accused.

The Lord Advocate outlined the significant cases of Holland1 and Sinclair2 in relation to defendants’ rights to a fair trial, as set in Article 6 of the European Convention on Human Rights (ECHR) and went on to consider the seminal case of Cadder3, which confirmed the ECHR right for suspects to have access to a lawyer prior to being interviewed by police, ending detention without access to a lawyer, in Scotland. The irony was perhaps not lost on the audience, considering that rights to representation by counsel existed in Scotland some 200 years before they did in England and the rest of the UK.

However, as David Ogg QC highlighted later in the evening, the uptake of legal representation for police interviews in Scotland remains as low as 25 per cent. In a bid to ascertain the suspects’ motivations in waiving their right to legal advice, JUSTICE set up its first working party in Scotland, chaired by the Rt Hon Lord Eassie, Ronald David Mackay, to examine the legal advice given to suspects in police custody.

Considering that the evening’s lecture also marked the end of the 16 Days of Activism Against Gender-Based Violence campaign, the cases of M.C. v Bulgaria4, V.K. v Bulgaria5 and Opuz v. Turkey6 were provided as an excellent exemplification of the Strasbourg Court’s findings with regards to states’ undeniable positive obligations to protect victims from any form of gender-based violence. Doing so required a questioning of ‘private matters’, no matter if these centred on issues of non-consent or domestic violence; where victim’s rights are abused, the state has a duty to intervene and protect.

The relatively significant rate of 80 per cent of domestic abuse cases resulting in a conviction following trial in Scotland, the Lord Advocate suggested, was a clear illustration of the justiciary taking a rights based approach. Equally important however, he proposed, is enabling victims to come forward and give proper evidence and a large part of that responsibility befalls to the prosecution, who has a duty to engage with victims and support them to this end.

The Lord Advocate alluded to the preamble of the Universal Declaration of Human Rights and its recognition of the inherent dignity and the equal and inalienable rights of all members of the human family, as the foundation of freedom, justice and peace in the world. In a society where one is innocent unless proven guilty, the accused too has fundamental rights and consequently, prosecutions must be carried out by the state with rigour, fairness and independence7. The rule of law cannot be upheld without a vigorous and independent legal process. At such a significant moment of reform in the legal justice system in Scotland the debate on reconciliation of rights between victim and the accused must remain dynamic.

The evening was brought to a close with a few short but passionate remarks from David Ogg QC, Advocate and Chair of Justice Scotland, who reiterated the importance of access to justice, where those in most need of rights often have the lowest legal capacity.

Conventions on human rights are not enough; if we are to understand the meaning of pain and discrimination against each other, we require empathy to aid us in restructuring a justice system into one which is autonomous and universally respects the human family.

Lidia Dancu is a final year LLB student with the Open University and an aspiring barrister. She is the founder of the Scottish branch of the OU Law Society and serves as Officer for Scotland. Lidia is involved in a number of pro-bono initiatives, including the creation of Legal Awareness Clinic for victims of domestic violence, forced marriage and FGM. She is a student member of JUSTICE and is currently based in Edinburgh, Scotland.

Read the Lord Advocate, James Wolffe QC’s full speech here.
For more information see the Faculty of Advocates website.

  1. Holland v HM Advocate [2005] UKPC D1, 2005 1 SC (PC) 3
  2. Sinclair v HM Advocate [2005] UKPC D2, 2005 1 SC (PC) 28
  3. Cadder v HM Advocate [2010] UKSC 43
  4. M.C. v Bulgaria (Case 39272/98) [2003] ECHR 646
  5. V.K. v Bulgaria. Committee on the Elimination of Discrimination against Women (CEDAW/C/49/D/20/2008) 2011
  6. Opuz v. Turkey (Case 33401/02) [2009] ECHR 870
  7. Art. 6 ECHR.