By Ian Hamilton QC
Rumour works in mysterious ways. Its latest is that Elish Angiolini, the retiring Lord Advocate, is to hear appeals in civil cases as a Sheriff Principal. We offer bewildered congratulations. Until now Elish has been nothing much, only the Lord Advocate. Before that she was a civil servant prosecuting summary cases in the lower courts. These mainly concern men pissing in the street. High or low Elisha’s whole professional life has been spent serving the state as a prosecutor. A prosecutor knows no civil law.
What criteria are required to be a civil judge? Maybe knowledge of the law is no longer necessary but it was once thought to be a help. I used to appear before judges who seemed never to have opened a law book since their voices broke, or they put up their pigtails. That was a matter for criticism. Is it now to be a matter for promotion?
The public don’t know it but mostly we make up our law from instinct as we go along. Mind you! There is a limit. Your instinct for the civil law isn’t enhanced by a man pissing in the street. What this lady has learned in her career qualifies her for little except the bench of a lower court. She knows nothing of the law on the division of property on divorce, for example, or how to construe a contract. Furthermore if I were suing the state I would prefer not to have her as a judge. She will do what the state wants. That is what a servant does and a civil servant is all she has ever been. She knows nothing of the instinctive independence required from a judge.
As Lord Advocate she knew her place. Never a word did she offer on any matter that troubles the legal profession; Mr Megrahi’s conviction and the importance of vengeance over justice? Not on your life: the release to the BBC during a trial of confidential productions? Not a word. An explanation why NEWS of the World journalists are permitted to investigate crime and pay witnesses? Keep quiet on that one. They’re the good journalists. Watch out for the bad ones; like Steven Raeburn the editor of the legal magazine, THE FIRM. Ms Angiolini has held him incommunicado for years. Keep the profession in ignorance is her attitude. Lawyers are troublemakers.
In this she is correct. No one is fit to be a lawyer unless they stand up to trouble. Both Dicey and Bagehot, the nineteenth century institutional writers, underlined the need for the independence of the courts. They said that the prime function of a judge is to stand between the citizen and the over zealous organs of the state. A person trained as a servant of the state can never do that.
But I must be careful. There is a difference between criticising a judicial appointment and criticising the judge herself as being unfit to hold it. This is a narrow distinction. I wouldn’t expect this lady to understand.
Therefore be it noted.
This rumoured appointment is the best possible appointment in the best of all possible worlds.
Xxxxxx (Good luck Sheriff Principal Angiolini. Your lovely smile captivated us all. Now it has got you a job.)XXXXXX
On reflection I very much regret the last comment. I have put it between brackets. It was sexist and demeans the serious argument presented above it. Writing is a lonely business and I have no editor to correct me. I tender an apology to Ms Angiolini.