This is the second part in a three part series of articles examining the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill in the light of the report issued in favour of the Bill by the Scottish Parliament’s Justice Committee.  This part will focus exclusively on Section 5 of the Bill and the offence of Threatening Communications.  For part 1 (which gives some brief background and looks at Section 1 of the Bill) click here.

Section 5 of the Bill aims to introduce an offence of “threatening communications” to Scots law and it would be committed when a person communicates material to another person and where one of two conditions set out within the Bill are satisfied.  The first of these conditions essentially relates to threats of a seriously violent act.  The second element is essentially centres around religious hatred.  There is a statutory defence which the accused could raise in court which is essentially that in all the circumstances the communication was reasonable.

The debate around Section 5 echoed many of the concerns raised in relation to Section 1, particularly around freedom of expression.  Once again those who gave evidence to the Scottish Parliament’s justice committee essentially questioned the necessity for the offence and argued that the current law is more than adequate to deal with these issues.

The Justice Committee’s report details some of the concerns raised by the Lord Advocate into the current law, particularly surrounding the Communications Act 2003.  The report states the Lord Advocate as saying there was some confusion in England as to whether forms of communication like Twitter and blogging were considered sending communications.  Perhaps the Lord Advocate might want to speak to Paul Chambers, the defendant in the so called “Twitter Joke Trial”, as to whether this confusion exists or not.  The Lord Advocate also made some comments in relation to the offence only being able to be tried summarily and whether this was sufficient for some of the material to be found on the internet.

The Committee quotes the written evidence of Dr David McArdle (of the Stirling Law School) and Dr Sarah Christie (of The Robert Gordon University) in relation to this point, which argues that the Section 38 offence is sufficient with covering these offences also.  It is worth noting that the Section 38 offence provides for exactly the same powers of sentencing as can be found in this Bill for both the new offences.  The section quoted from the written evidence of Dr McArdle and Dr Christie is as follows (at paragraph 209):

The s38 provisions on threatening or abusive behaviour can also be read to encompass the offence proposed in s5 of the Bill. Section 38 is made out where the accused has behaved in a threatening or abusive manner which is likely to, intentionally or recklessly, cause fear or alarm to a reasonable person. ‘Behaviour’ in this context covers behaviour of any kind including, either as a single incident or a course of conduct, spoken threats, or threats communicated in other ways, and threats evinced through physical acts. If the individual were to have communicated material containing or implying a threat of serious violence, or material which is threatening and intends to stir up religious hatred, that would amount to behaving in a threatening, and no doubt in many cases abusive, manner which would be likely to cause fear or alarm to a reasonable person and so would be caught by that section. The Policy Memorandum queries whether s38 could cover all instances of behaviour intended to incite religious hatred but given the nature of material designed to inflame religious ‘hatred’, it would be hard to envisage a communication which was not sufficiently abusive to cause alarm to a reasonable person.

At paragraph 210 the Justice Committee recognises that indeed section 38 has been successfully used to prosecute a number of people for offences that would be covered by this Bill.  Within the footnotes the Justice Committee links to two separate news reports.  It also notes that at least one of these offences was successfully prosecuted on indictment.  This raises the maximum sentence to one of five years in custody and/or an unlimited fine.  It is of course for the Court to pass sentence taking into account all the evidence put before it including social enquiry reports.  There is nothing to suggest that introducing this Bill will in anyway change the sentencing of the Courts, indeed given the ranges of sentencing are identical as to what is current available in the law it is highly unlikely that sentencing patterns would change to any great deal.

The Justice Committee report quotes oral evidence from Professor William Buchanan who is an expert in matters of digital security and cybercrime.  The Committee’s report suggests that the evidence of Professor Buchanan was largely critical of the way in which Section 5 of the Bill is drafted.  In particular, at paragraph 211 of the report the Justice Committee quotes the following exert from Professor Buchanan’s oral evidence to the Committee:

no country really has control of the internet. However, Scotland might have the opportunity to start to define the proper and polite way in which to use the internet. The bill does not define that and just takes a black-and-white approach to matters, to the effect that if someone does something bad, they will be prosecuted, and if they do not, then they will be okay. The bill does not go into enough detail in that regard. As a country, we probably need to say what kind of things are allowed to happen on the internet and what are definitely not.

It is hard to disagree with what Professor Buchanan is saying here.  A black-and-white approach to these matters is undesirable and unhelpful. The lack of detail within the Bill creates a confusing situation that lacks the necessary clarity for the Scottish people to understand exactly what the law of the land considers to be right and what it considers to be wrong (thus potentially resulting in prosecution).  While, as with Section 1, it would be undesirable to define it too tightly it is equally, if not more, undesirable to have offences that lack any sort of clarity whatsoever.

ChildLine in Scotland raises some particularly interesting issues in terms of children.  The Justice Committee report quotes from their written evidence at paragraph 214 as follows:

large numbers of children being criminalised for cyberbullying, if they are threatening violence or if that bullying is of a religious or sectarian nature. We do not consider this to be the best way to deal with the problem of cyberbullying and are highly concerned at the implications for an already strained Children‘s Hearings System if legislation is created that catches an increasingly common form of children‘s bullying behaviour. We would strongly recommend that any accompanying guidance to the Act made clear that any children under 18 would only be referred to the Hearings System or prosecuted under this legislation in the most exceptional circumstances.

Much of this problem does stem from childhood.  It is at these ages that behaviours are learned.  In Secondary school children begin to develop their views, beliefs and ideas.  If children are brought up in a home and social situations where sectarianism is deemed to be normal and that there is nothing wrong with it they themselves are likely to form these conclusions.  This is especially true when it is not countered by others.

As a society do we really want to be criminalising even more children for conduct that would be better tackled by schools through proper education?  Bullying is often left to schools to deal with and the law only ever gets involved in the most extreme of circumstances.  If the police are, as they have been to date, going to be looking on social networking sites for offences being committed then inevitably children are going to be caught up in these searches.  Gaining criminal convictions in childhood can have a devastating impact upon the rest of a child’s future.  Of course, all persons above the age of criminal responsibility (now 12 in Scotland), are capable of being dealt with for their offences.  However, it is inherently unfair to apply the same standards to children as are applied to adults.  This is well recognised in Scotland and why the Children’s Hearings system exists.  It provides an alternative format for criminal allegations to be dealt with and has much more of a focus on addressing the offending behaviour than on punishment.  This point will be returned to in part 3 as some of the wider issues are addressed, but it was worth mentioning here.

Turning now to issues surrounding Section 5 and Article 10 of the European Convention, the Justice Committee were presented with a significant volume of evidence on this point.  The Christian Institute raised some rather interesting points in relation to what “threat” actually means within the Bill.  It wondered whether threats such as a person might go to hell or whether threats of being rejected by a community might be covered by the Bill (see paragraph 224 of the Justice Committee’s report).

At paragraph 225 of the report the Justice Committee have quoted from the Christian Institute’s written submission.  The quote in question is itself a quote from counsel’s opinion.  It reads as follows:

even if no prosecution was proceeded with, the fact is that having such a broadly defined offence on the statute book will exert a chilling effect on freedom of speech, with individuals indulging in self-censorship and/or harbour an unwillingness to publicly express their true religious beliefs for fear of running foul of the law

Self-censorship could be described as one of the essential aims of the Bill, i.e. that people stop themselves from communicating sectarian messages.  However, there comes a point where the balance between Article 10 (freedom of expression) and Article 9 (Freedom of thought, conscience and religion) needs to be struck.  Indeed, the Human Rights Act selects these two fundamental freedoms for special mention within the Act and require courts to have particular regard for the importance of these rights.

The powers of the Scottish Parliament are a consideration in all legislation that it passes and paragraph 230 of the Committee’s report looks at this briefly.  The report states that the presiding officer is of the view that the legislation falls within the competence of the Scottish Parliament.  There is no doubting that criminal law is something over which the Scottish Parliament has powers to pass legislation.  The report states at paragraph 230 “the Scottish Parliament must seek to ensure that any Bill it passes is ECHR compliant”.  It might be worthwhile then considering the inclusion of a section dealing with freedom of expression.  While, as the Lord Advocate pointed out, this would only have a declaratory effect because Articles 9 and 10 are engaged anyway, it would help demonstrate that the legislation is mindful of these considerations.

Professor Buchanan is further quoted in the Justice Committee report at paragraph 244 onwards.  Of particular interest is the quote at paragraph 245 from his oral evidence to the Justice Committee which reads:

The internet is a free world. Everybody can get into it and can post whatever they want. My signature does not exist on the internet, so how can you identify that it was I who sent you an e-mail? Anybody can spoof my e-mail address, anybody can pretend to have my identity and anybody can take my identity.

This is a real question of law.  For the prosecution to prove the guilt of an accused person they have to lead sufficient corroborated evidence that proves the guilt of the accused beyond reasonable doubt.  While some difficulty arises in attempting to define exactly what reasonable doubt is there is no doubt that this is a very high standard to meet.  The reliability of evidence from the internet is a significant problem in any criminal case.  This is where the requirement of corroboration in Scots law comes into play.  It is not sufficient to produce a copy of an E-mail showing that it was sent from B’s e-mail account.  Some other evidence would have to be led proving that it was indeed B who sent the E-mail.  That could present significant difficulties in a criminal prosecution, but equally it would save people being convicted wrongly.  Undoubtedly the jury would have to be very carefully instructed that simply because an E-mail purportedly came from a person’s account it doesn’t necessarily follow that they in fact sent the E-mail.

Finally Professor Buchanan explores the resources issues that arise with investigating this type of crime.  The level of investigation required in order to provide sufficient evidence to create a prima facie case against an accused person.  The very nature of the internet could mean that the investigations go beyond Scotland and indeed even beyond the UK in order to identify who committed an offence.  Significant resources will need to be invested in training more officers in the nature of cybercrime and the investigation of it.  These are just other issues to take into consideration along with the wide nature of the offence and the potential conflicts with Articles 9 and 10 of the ECHR.

• Criminal Justice
• Criminal Law
• Scots Law