Compton Mackenzie
IT has long been my belief that the modus operandi of Scots law is greatly superior to that of English law. The Scots are spared that incompetent anachronism—a coroner's inquest. A trial for murder in Scotland is not prejudiced .by preliminary proceedings in a police-court before a magistrate, thereby involving the judge in the necessity of warning the jury to exclude from their minds anything they may have previously read about the case and to give their verdict solely on the evidence before them. The Press is usually made the scapegoat for this atmosphere of prejudice, but the Press will have merely reported the inquest and the police-court proceedings, and so long as these are open to the public the Press can hardly be expected to indulge in self- denial when their readers demand the news. Whether a jury of fifteen with a majority verdict is a better way of doing justice than a jury of twelve with a unanimous verdict may be arguable. Let it be remembered, however, that a Scottish jury is not called upon to give a verdict of guilty or not guilty; it is empowered to bring in a verdict of ' not proven." An English judge has to warn the jury that if it is not satisfied that the Crown has proved its case without any reasonable doubt it is the duty of the jury to bring in a verdict of " not guilty." and, if the day after that verdict fresh evidence should be forthcoming which would establish the guilt of the accused beyond doubt, he could not be re-arrested and tried again on the same charges.
This is equally true of the verdict " not proven," which, while it is an acquittal, does allow the jury to express its doubt of the innocence of the accused. Until about a hundred and fifty years ago there were only two verdicts in Scotland- " proven " and " not proven." The verdict of " not guilty " was imported from England. A common argument against the " not proven " verdict is that it leaves the accused under suspicion for the rest of his or her life. I do not know of any murder case with a verdict of " not proven " in which that verdict left the public with a sense of injustice. In every case with which I am familiar public opinion believed that the accused had been given the benefit of the doubt. Is the English method of reprieving the condemned man at the last minute from death and substituting penal servitude for life a superior way of expressing the belief of the Home Secretary and his advisers that the case against the condemned man was in fact not proven? Madeleine Smith was a more fortunate woman than Mrs. Maybrick, in whose case no Scottish jury would have brought in a verdict of guilty. Of course, verdicts of " guilty " in Scotland have been followed by reprieves.
The administration of justice in Scotland by Sheriffs and Sheriffs-Substitute is unquestionably more effective than by Recorders and Chairmen of Quarter Sessions. A practising barrister should not be placed in the position of being able to dictate the conduct of a case to counsel pleading before him at one moment and sat another moment be called upon to have his own advocacy criticised by the barrister he had previously squashed. This could happen in Scotland, but only most improbably.' There from the moment that an advocate assumes the functions of a judge he ceases, except very rarely in the case of a Sheriff-Principal, to enjoy an amphibious legal existence.
* * * *• Over twenty years ago now I was prosecuted under the Official Secrets Act, which involved three appearances at the Guildhall followed by a day in one of those astonishingly spacious docks at the Old Bailey. Inasmuch as the offence of writing my third volutte of war memories had been committed in Scotland, where I was domiciled, I asked to be tried in Scotland' because I knew that the case staged by what one newspaper reporter called " world-famous figures of the Secret Service present in Court " would be handicapped by Scottish common sense. However, this request was prudently denied to me.
The third hearing at the Guildhall took place in the old Court, by that time hardly ever used except by waiters for uncorking the wine at Guildhall banquets. While I was waiting for the proceedings to begin one of the officials said to me : " As a writer, you'll be interested to know that the Court in which your case is being heard this morning' is unaltered since the days of Charles Dickens, who used it as a setting for the case of Bardell versus Pickwick."
" Really ? " I said. " Then I should think this must be the most ridiculous case that has been heard in it since."
* * * I could. afford to laugh then at the combination Of Barden v. Pickwick with the trial in Alice in Wonderland; I did not laugh some weeks ago when I attended a trial at the Quarter Sessions in Lewes in order to testify to the character of a friend who was in grave trouble.
Judicial facetiousness has been accepted as endemic since the .days of Dickens, but I cannot think that a Deputy-Chair- man of Quarter Sessions should make facetious observations in the course of a case involving disgrace and misery for the accused man. The sentence he felt himself called upon to pass and his affirmation that " we have to protect the public " were not made more impressive by the previous little jokes " from the Bench. I hope that Mr. R. E. Seaton will consider quietly in the privacy of his own chambers what the effect may be upon a man older than hibaself with a wide experience of life, of hearing facetious interjections in a case that involves agony of mind for an unfortunate friend.
No doubt, Mr. Seaton was expressing a sincere belief when he affirmed that it was his duty to protect- the public, but many of us feel that, except in the matter of corrupting minors who certainly must be protected, the public are more anxious to be protected against brutal assaults, robbery with violence and blackmail than against homosexuality. The Criminal Law Amendment Act of 1885 has encouraged blackmail for all but seventy years, and I do believe profoundly that it has led to an enormous increase in homosexuality itself, for it is a fact that the danger involved in committing this kind of offence too often adds to the temptation. We are shocked today by the evidence that was accepted from the wretched young male prostitutes who testified against Oscar Wilde. Yet evidence from such creatures, for giving which they go free, is still accepted in courts of justice to secure a conviction. In Latin countries the law deals severely with the corruption of minors, but it does not intervene in other cases. The custom of holding such trials in open court in this country has a demoralising effect, and the first step in the direction of reform should be to conduct such cases in camera, which would prevent their being reported in the Press. Human nature' being what it is, the Press cannot afford to ignore these cases, and the'argument that publicity is a deterrent will not bear examination. No penalty, not even death, has availed to check homosexuality; it is a malady of the mind and in many cases of the body. Every intelligent man and woman recognises this, and the time has come to take it out of the hands of the police and put it in -the hands of the psychiatrist. Meanwhile, the reform of procedure in such cases is a matter of grave urgency for public morals; the existing procedure is antiquated, often unjust, and always obscene.
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