The controversy over the outcome of the World’s End murder trial (No 679) took an even more fundamental turn on 27 September 2007 when the Lord Justice General (Lord Hamilton) and the Lord Advocate published an exchange of letters on the case. Lord Hamilton criticised the Lord Advocate’s speech in the Scottish Parliament on 13 September in so far as it seemed, in his opinion, to attack the decision of the trial judge, Lord Clarke:
The plain implication from [your] statement was that you were publicly asserting that the decision of the trial judge was wrong. … I am .. concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong). … The independence of the judiciary depends in my view not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have, that their decisions will not be challenged by other organs of government.
The Lord Advocate responded in characteristically robust style:
You express concern that I have publicly asserted that the decision of the trial judge in this case was wrong and that the independence of the judiciary as the final arbiter of legal issues is thereby put at risk. You recognise, however, that it might be appropriate for me publicly to support the Advocate Depute without public criticism of the judge and you point out that respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.I would wish to make it clear that in my statement to the Parliament, to which I am accountable, I endeavoured to stress the independence of the judiciary and the need to respect that. I said explicitly that as the law stands the decision of the judge is final and we all have to respect that. I do not think I could have gone further expressly to afford greater respect for the final decision of the trial judge in the circumstances.I do, of course, fully understand the importance of independence of functions in the criminal justice system. My own independence is already recognised in statute, in the Scotland Act itself, which provides that any decision taken by me in my capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by me independently of any other person. My independence does not and can not make my decisions immune from comment or criticism. In a democracy such as ours, where public institutions are subject to greater scrutiny and accountability, the Lord Advocate must be able to explain her position in public where that is necessary. Law Officers and prosecutors are from time to time criticised and we must be free to respond publicly to that criticism in appropriate circumstances. In the particular circumstances of this case I considered it necessary to respond to the criticism of the Crown’s handling of the case which followed on the trial judge’s decision. This criticism extended to adverse comment regarding the Crown’s approach to the case, why evidence was not led and to the strength of evidence in other potentially related cases. There was an unprecedented interest in the actions of the Advocate Depute, there were calls for an inquiry and for a statement be made to the Parliament on the Crown’s handling of the case. It was suggested that the case had damaged public confidence in the criminal justice system. I considered that it was important for me to allay public concerns as quickly as possible and that this should be done by a full statement to the Parliament.I chose my words to the Parliament with great care. I explained the background to and the basis of the Crown’s decision making in the case and sought to address the concerns which I have set out above. In doing this I stressed the independence of the judiciary and the need to respect that. I repeated this during questions following the statement. Indeed, in almost six years as a Law Officer I have avoided any public criticism of judicial decisions. My comments were about the Crown’s decision making, and not anyone else’s.
The Lord Advocate’s position attracted support, some from surprising quarters (e.g. Lord McCluskey, normally her nemesis – see The Scotsman 28 September 2007); but the Lord Justice General was not without backers too, notably Alastair Bonnington (Times, 28 September 2007) and, thoughtfully, the BBC’s Scottish political editor, Brian Taylor (http://www.bbc.co.uk/blogs/thereporters/briantaylor/2007/09/judging_the_matter.html). Scots Law News thinks it hard for the Lord Advocate, whatever the protestations of her undoubted express recognition on 13 September of the judge’s sole right to decide, to escape the plain implications of her statement that I am of the clear opinion that the evidence made available to the court was sufficient to be put before the jury