Judicial Independence

What is it and why is it so important?

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The independence of the judiciary is the cornerstone of a democratic society and a safeguard for the freedom and rights of the citizen under the rule of law. It means that judges should be free to make impartial decisions based solely on fact and law, without interference, pressure or influence from the state. In Scotland, the principle was emphasised as long ago as 1599   when the Lord President of the Court of Session declared that the judges were independent of the king, “sworn to do justice according to our conscience”.

 Judicial independence is protected in several ways:

  • freedom from interference, influence or pressure from the  State through separation from government and parliament, which may be involved in disputes heard by the judge;
  • restrictions on removal from office – for instance, a full-time, salaried judge can only be removed before retiring at 70 if unfit for office because of inability, neglect of duty or misbehaviour; and
  • immunity from being sued or prosecuted for work carried out as a judge.

 To uphold their independence, judges should act with impartiality and integrity. When they are sworn in, judges take the judicial oath: “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.”

 The Judiciary and Courts (Scotland) Act 2008 enshrined judicial independence in law. It introduced a duty on Scottish ministers, the Lord Advocate and MSPs to uphold the continued independence of the judiciary, barring them from trying to exert influence through any special access to judges.  Read more

HMA v SHAUN McGOWAN

At Greenock Sheriff Court on 29 May 2014 Sheriff Hamilton sentenced Shaun McGowan to a total of four years and two months in prison following his eighth conviction for carrying a knife.

On sentencing, Sheriff Hamilton made the following statement in court: 

“You have pled guilty to being in a public place with a knife, and that without reasonable excuse or lawful authority. 

I note that when I passed sentence on you in 2012 I commented that then, the carrying of knives in Scotland was a very serious matter, and the public attitude to that was reflected in the increased sentences which are now authorised. 

The carrying of knives in this sheriffdom was then and still is a particular problem. 

The carrying of knives and other weapons undoubtedly leads to tragedy and loss of life. It does not matter the reason for having the knife. Having it can lead to unintended consequences for others, often those who are completely innocent. 

It is imperative therefore that the carrying of knives is treated with the upmost seriousness, and the penalties imposed have to reflect that. Currently Parliament is seeking to increase the maximum sentence for possessing a knife in public from four years to five years. 

Shaun McGowan, it is clear that you are someone who simply does not get the message that it is completely unacceptable to carry a weapon. You are only twenty two years of age, yet this conviction is your eighth conviction for carrying a knife. 

You have had periods of custody for each knife offence, yet you continue to carry a knife. A sentence of thirty months in May 2010 did not deter you from carrying a knife. You were released early from prison in 2011, but shortly thereafter you were again caught with a knife on the streets of Inverclyde.  On that occasion you were returned to prison to serve the remainder of your earlier sentence and you were further sentenced to a period of twenty two months in custody. That sentence would have been modified to take into account your plea and period on remand. That was the second occasion you had been returned to prison to serve the remainder of your sentence. It seems that these sentences have not provided a sufficient deterrent for you. 

Even however if you cannot be deterred from carrying a knife, this court has an obligation firstly, to send out a message to others who may consider carrying a knife, and that message is that this type of offence will not be tolerated, and will be dealt with by the imposition of lengthy custodial sentences, and secondly, to protect the public from people like you who are determined to carry dangerous weapons.

This is your eighth conviction for carrying a knife. 

The offence once again occurred very shortly after you were released from a lengthy custodial sentence, and you were on licence at the time of this offence. 

The period between the date of the current offence and the date of the expiry of your existing sentence is sixteen months. You will serve that unexpired portion of your sentence in full, and that sixteen month period will take effect from today. 

With regard to the current matter, in view of your record, the fact that you were on licence and the fact the offence occurred so shortly after your release, I cannot see that anything other than the maximum sentence available to me can be appropriate. At present the maximum available to me is four years. I am obliged to consider a modification of any sentence where there has been a plea of guilty. Where an accused seeks a generous modification from the court, that accused must take steps to tender a plea at the earliest opportunity. Those who delay pleading guilty will find that any reduction in their sentence will be limited.

Your plea of guilty was tendered at the First Diet. Further, the utilitarian value of your plea in this case is somewhat diminished by the fact that this was a straightforward case involving two police witnesses. To reflect the timing and the limited value of the plea of guilty your sentence will be modified to a limited extent. 

Your sentence will be further modified to take into account the period you have spent on remand on this matter. You have spent almost three months on remand. That is equivalent to a sentence of six months. 

I am satisfied that the appropriate sentence in your case is one of four years. That period of four years will be reduced by a period of eight months in view of your guilty plea, and a further six months to reflect the time spent on remand.  

Your sentence will therefore be modified from four years to two years ten months. That sentence however will run consecutively to the unexpired portion of your previous sentence of sixteen months. Effectively you will serve a period from today of four years and two months.”