When ministers brand dissent as terrorism, it takes the courts to remind them that justice still matters — and that the public’s rights aren’t up for arbitrary proscription, argues Herald columnist Calum Steele

I suspect I’ve more experience of the courts than your average Joe. From the District Court to the High Court, I spent no small amount of time in them and, whether giving evidence or ensuring the solemnity of proceedings, they are without question one of the most important pillars of our democratic systems.

I’ve given evidence in trials that made me question the wisdom of wasting time on what, in the cold light of day, were crimes worthy of arrest at the time but hardly worthy of a conviction many months later. I’ve sat beside those accused of rape – where the evidence was overwhelming – only to see them acquitted, and I led a former colleague from the dock after he was convicted of attempting to pervert the course of justice in the murder of the Orkney waiter Shamsuddin Mahmood. Courts see it all.

Going to court was a big thing, and no matter how familiar you were with the process, there was always a degree of unease that you hadn’t adequately prepared for your evidence, or that a new lawyer, unbound by conventional niceties and keen to forge a name, would run you ragged in the witness box. Worse still if you encountered a fiscal or sheriff having a bad day, where you were at as much risk of a tongue-lashing as the accused was – if found guilty. You only had to cross the formidable Sheriff James Fraser or the equally formidable Fiscal David Hingston once to never make that mistake again (even if sometimes you were never quite sure what it was that caught their ire in the first place).

Beyond their core function of being the ultimate arbiters for the rights and wrongs of life, our courts are a rich seam of news to be harvested by our press. There is hardly a journalist in the country who hasn’t cut their teeth as a court reporter somewhere, and many contacts and sources on both sides of the criminal justice divide are fostered in them. The importance of proceedings being open to the public, and a de facto source of entertainment – for our hunger to consume the misfortunes of others for our own enjoyment – is as real today as in the ancient civilisations that laid the foundations for justice systems worldwide.

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But, for as much as our criminal courts are messy and infuriating, slow and inefficient, and as capable of delivering frustrating acquittals as they are needless convictions, their function is irreplaceable. They rest on a simple refusal to accept the word of authority at face value. Suspicion is not proof, and a charge is not evidence. Allegations must be tried, tested and, if necessary, rejected. Through that scrutiny, the rights of the individual are placed ahead of institutional reputation. And if that discipline is essential when the liberty of one individual is at stake, it is no less essential when the decisions of the state and its institutions affect us all.

It would be fair to say the recent court experience of public bodies and governments on both sides of the Border is not one to boast about. Institutional and organisational overreach has become something of a national pastime, leaving the impression that parts of the state are not merely out of touch with what people want, but alarmingly indifferent to the very standards of law and decency that have been fostered over decades.

The ultimate skelping delivered to Scottish ministers by the Supreme Court on what it is to be a woman brought unimpeachable clarity on a question I remain convinced was one of the most idiotic questions to ever require a ruling. That not one, but both of Scotland’s highest courts were found wanting is hardly comforting. Despite this, NHS Fife pressed on with endless episodes of ridicule and self-harm as it defended the indefensible in the claims by nurse Sandie Peggie. So too County Durham and Darlington NHS Foundation Trust, which acted similarly against its own nurses. The employment judge in the latter at least drew a line under the issue. The ruling on the Fife case, however, contorts and obfuscates, promising yet more drama to "entertain" the masses; and I call it now: it will further lampoon and humiliate the state in the weeks and months ahead.

The tendency of the Scottish judiciary to tilt towards the judgement of the state was again shown up by the Supreme Court in what are termed the rape shield provisions. The denial to an accused to lead evidence to support his defence is the very antithesis of fairness – something our government and prosecution authorities denied in the face of overwhelming evidence for years. As moral as it is to pursue rapists with the full might of the law, a willingness to distort the law to do so, and have that upheld as just by our own appeal courts, is a failure so fundamental that it has rocked confidence in the system to its core.

Scottish ministers were given the ultimate skelping by the Supreme Court over the legal definition of a woman (Image: PA)

The state “never being wrong” was again on display when journalist Mark Hirst was prosecuted for comments he made on the Alex Salmond trial. He was acquitted, only to be blocked from suing for malicious prosecution under a statutory immunity the courts themselves recognise breaches human rights. It is a perfect illustration of a system protecting institutions at the expense of individuals. This time it was a Scottish court that found the unfairness, though it may yet take the Supreme Court to deliver a fully effective remedy.

And finally comes last week’s ruling that the UK acted unlawfully in proscribing the protest group Palestine Action. I confess some smugness here, as back in October I predicted the Government would get a bloody nose when the inevitable human rights challenge arrived. The farce of ministers merrily endorsing the arrest of thousands for holding signs – treating a protest group like a terrorist organisation – is the stuff of tin-pot dictatorships, and humiliation is more than deserved.

These examples are a veritable roll-call of stupidity and overreach, and a reminder that our courts, however frustrating or slow, exist to protect us from the worst excesses of government and the state. They test power, demand evidence, and place the rights of the individual above all else. For that, we owe them thanks, and perhaps a little awe, for acting in the public interest when increasingly often those entrusted to govern us cannot.

Calum Steele is a former General Secretary of the Scottish Police Federation, and former general secretary of the International Council of Police Representative Associations. He remains an advisor to both.

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