Category: Criminal Justice

Julian Assange

The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions.  In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.

I am no expert in International law and there are people far more learned than I in these matters who have commented.  I have linked to some of their writings and other commentary at the end of this blog post.  There are serious issues at play in this case and I thought I would put my two-penneth in.

This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange.  EAWs are a way of ensuring the co-operation between member states of the European Union.  When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months.  There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received.   Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him.  A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.

One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK.  Indeed, there is no uniform process of criminal procedure in the United Kingdom.  The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point.  This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”  In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning.  Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW.  However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.

I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others.  However, I do propose to consider the developments of the last few days and also some of the wider implications.

I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations.  They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence.  I make no comment on his guilt or innocence in relation to these allegations.  However, they are extremely serious allegations and the women who have made them have rights as well.  They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden.  He may be guilty and he may be innocent.  The only way in which that can be determined is for Mr Assange to face the Swedish judicial system.  If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations.  In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.

There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty.  Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty.  The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg.  Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4).  This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty.  Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.

Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum.  This caused outrange amongst the British and Swedish Governments who strongly criticised the decision.  The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador.  It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them.  This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government.  To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK.  They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.

The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”).  The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind.  As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused.  A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.

The Embassy of Ecuador is being used for the purposes of its mission.  I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy.  In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises.  This, I would suggest, is not really a viable option and would be a severe abuse of the legislation.  Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon.  It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.

Storming the Embassy is not really an option either.  It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out.  Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador.  Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.

The outcome of this case is likely to be rather dull than any of this.  It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London.  What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities.  It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).

In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him.  He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK.  By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries.  The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status.  Although, with Mr Assange anything is possible!


The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)
Assange (@PME200)

Menacing Character: the “Twitter Joke Trial”

By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003.  If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).

This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers.  This was the third time that Paul Chambers had sat waiting for an appeal judgment.  The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.

There has been a lot of comment and discussion on this case.  Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety.  Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.

John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”.  To do so they looked to another area of English law, Blackmail, which included reference to “menace”.  Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29)  However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)

The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent” (para 31).  Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this.  However, the Court’s judgment states at paragraph 31:

In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.

The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.

The High Court also said (at para 32):

In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.

The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities.  They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency.  No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet.  The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.

The High Court also noted (para 33):

the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message

In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures.  They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.

The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided.  The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33)  Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)

The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)

In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.


There is no denying that the tweet in question was not the most sensible thing to put out into the public domain.  There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom.  However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”.  We have never really meant it and it will have normally been an expression of our frustration over a particular situation.  The matter, when taken out of context can look a lot worse than it actually is.  In this case, the context was important in understanding the meaning of the message.

The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature.  This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.

This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.

The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers.  For the most part, it’s probably unfair.  They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting.  One can understand why though given the terrorism threat in the UK.  Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities.  It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.

Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.

High Court’s Judgment in Chambers v DPP (pdf)
Chambers v DPP on BAILLI (web)
Communications Act 2003


No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape (Hume ii at p 385)

There has been a definite shift in policy at the Crown Office and Procurator Fiscal Service.  Over the last five years there has been a definite reduction in its independence from Government.  As the years have passed the Crown Office has become more and more an arm of the Justice Directorate.  The current Lord Advocate and the Solicitor-General are very much in the media, something which one might not have seen so much in the past.

It is often thought that the prosecution is on the side of victims and in recent years the prosecution service in Scotland has aligned itself with a “victim’s agenda”, championing the rights of individual victims.  In doing so they have wrapped up their arguments for the abolition of the rule of corroboration in emotive subjects (sexual offences and domestic violence) which makes it hard for people to try and oppose their arguments.  Politically it could be painted that someone against the abolition of corroboration is against convicting rapists and those responsible for abusing their spouses/partners.   It stifles debate and proper consideration of the facts, including what would need to be put in place to replace a safeguard if it were removed.

The decision in Cadder v HMA Advocate has been a good opportunity for the newly politicised Crown Office and the Government to argue that there needs to be a re-balancing of the system because the balance had went too far in one direction.  That is an argument that I do not really accept, but won’t examine here.  There seems to be a clear agenda to make it easier for the Crown to obtain convictions and harder for the defence to defend the accused.  Of course, society wants to see more people who have committed crimes convicted.  For a guilty man to walk out of court free is frustrating, but that is the nature of our criminal justice system.  Sometimes the prosecution can’t produce the necessary evidence to convict someone.  There are two responses to this situation.  First (and it’s my preferred response) is to simply accept that as a consequence of the system and that it can’t get it right every time.  The second is to effectively move the goalposts making it easier for the Crown to get a conviction.  This has its own consequence and it is one that I would much rather avoid: a greater number of innocent people are likely to be convicted.

The nature of criminal law is such that it ought to be difficult for the prosecution to convict the accused.  Convicting a person of a crime is more than a simple finding of fact.  When a person is convicted of, for example, murder, it is not simply saying that the victim was killed by the accused, but that the accused is guilty of murdering him.  In other words, the accused is deserving of punishment.  The accused could be guilty of killing the victim, but not guilty of murder.  For example, if the accused was an armed police officer and shot the accused because the accused had been shooting a gun in the direction of him and his colleagues; the police officer is guilty of killing the accused, but is probably not guilty of his murder (in simplistic terms).  The criminal law is about delivering punishment.  I suspect most people have at some stage in their life been punished for something that they have not done or been punished unjustly.  Those who have been in that position might remember what it was like to be punished for something that you knew that you had not done.  While, we have done away with the ultimate sanction (death) in our criminal justice system, the punishment that can be dished put by the system is still severe.  For example, a person wrongly convicted of murder will be given a sentence of life imprisonment.  Such a person is unlikely never to be released because the parole board would never consider someone still protesting their innocence as being of low enough risk to release on licence.  Perhaps we don’t like to see the fallibility in our system because we do not want to consider the consequences of it?

Contrary to popular belief, prison is not a nice place.  While prisoners have three meals a day, access to education and most have a television in their cell, they are still in prison.  Their freedom has been removed from them.  Outside of prison we make decisions all the time that you take for granted: to have a take-a-way for dinner, to go out to the cinema, to meet friends, to spend an extra hour in bed and so on.  The issue here is not that everyone in prison is innocent, but rather that prison is a punishment and it is wrong to lock away innocent people, perhaps for lengthy periods of time, simply to satisfy the demands of some victims and victims’ groups.  The very fact that a guilty verdict might result in a person going to prison, perhaps for the rest of their life, is a strong reason as to why it ought to be difficult for the Crown to convict a person.

There seems to be a worrying shift in public perception of persons accused of committing a crime.  Whether this is a reality or simply a perception created by certain media outlets is another matter.  That perception seems to be that people are beginning to believe that if a person is on trial they must be guilty (and if not of what they are accused certainly something else and should be punished anyway).  This challenges a presumption which is at the heart of our system: that a person is innocent until they are proved guilty by evidence in a court of law.  The presumption accepts that the police (and everyone else involved in the justice system) are human and make mistakes.  They miss evidence or become so focussed on onlyone line of enquiry that they convince themselves that a particular person is guilty, regardless of the truth (sometimes even to the point that they make the evidence fit their version of events).  The presumption recognises the inherent fallibility of the system.

There have been a couple of examples recently, granted they have come from England, that underline the way in which the presumption is being disregarded by some in society.  I’ll look at the John Terry example.  John terry, an English premiership footballer, said some nasty things.  That is a fact; he admitted such in his evidence.  However, he was found not guilty by the Court and there was a complete outrage on Twitter, on Facebook and in pubs up and down the country.  Some of my friends some of those who were part of the “angry mob”.  The outburst failed to recognise that simply because he admits having said the nasty thing in question doesn’t mean he was guilty of the offence charged.  There was, demonstrably, a great deal of misunderstanding about exactly what Terry was charged with.  People focussed on the racist aggravation and as a result appeared to conclude that because he admitted saying the racist things he must be guilty.  That is not how the criminal law works though.  For a person to be guilty of an offence there are certain things that the Crown must prove to the required standard.  If the Crown fails to do that, as they did in the John terry and Simon Harwood cases, then the accused must be acquitted of the charges.

The criminal courts do not exist simply to satisfy the needs and desires of the public.  They exist to look at matters in a more objective way, to consider the evidence and to make a finding based on the evidence.  Simply moving the goalposts to obtain more convictions doesn’t mean that justice is being achieved anymore than it was before.  When victims leave court believing they have had justice when the reality is an innocent person has been convicted, they have not received justice but have been cheated by the system.  I do not want to see more victims cheated by believing that they have had justice when the true perpetrator still walks free.  That is not fair on either the innocent person or the victims.

Put simply, more convictions does not always equate to better justice.  It is necessary to have safeguards in place to ensure that, so far as is reasonably practicable, only the guilty are convicted.  Having those safeguards in place will mean that guilty people walk free from court, but that is preferable to a greater number of innocent people being punished.  Many of the safeguards in our criminal justice system are there to protect the innocent, not the guilty.  Yes, the guilty will benefit from them, but that is a consequence of the system.  However, it is a necessary one.

I started this blog post with a quote from Barron David Hume’s commentaries.  It is effectively saying that it is better that some guilty men escape punishment in order to reduce the likelihood that an innocent man suffers punishment.  It is framed very much around corroboration and how corroboration acts as a level of protection.  Of course, no system is perfect and even under the current system some innocent people are convicted.  However, it is clear that its abolition is all about increasing the number of convictions to satisfy some victims, some victims’ groups and some others in society.  Many of the arguments advanced for its abolition are, in my view, weak.  The idea that we can abolish corroboration and leave the rest of the system as it is quite frankly is dangerous.  It demonstrates fully the real reasons for abolishing corroboration: convictions, not justice.  If we’re going to abolish corroboration and replace it with something else, why bother with the upheaval if the reality is the situation isn’t going to be much different?  Not much has changed since Hume wrote the words quoted right at the outset of this blog.  Justice demands that obtaining a conviction be hard.  Those victims who have not seen the offender in their case convicted deserve sympathy and help to rebuild their lives.  However, we cannot simply create more victims in order to try and help them find closure and move on or to satisfy what they have in their mind.  When we convict innocent people we create more victims and the original victims are victims for a second time.  The support for those wrongly convicted and then later exonerated is all but absent.  It’s as if the system doesn’t accept that it makes mistakes.

We need a proper debate about justice in Scotland.  It must be one that doesn’t simply pit the guilty against their victims.  Those innocently caught up in the system wrongly accused must be considered too.  It is largely for their benefit that defence protections exist.  Of course, they exist for the guilty to: it is necessary that punishment is proportionate to the offence.  It also needs to be an objective debate that isn’t wrapped up in emotive cases or offences.  The results of such a debate are likely to weaken, not strengthen, the justice system in Scotland.  The corroboration requirement came into existence in Scots law at a time when it was arguably far more vengeful than it is now, but yet we seem to be willing to trade in essential protection for innocent people in order to appease the needs of some for vengeance.  That’s not justice

Sam Hallam: what are the wider lessons?

Sam Hallam has featured heavily in the news over the last couple of days.  Sam was convicted of the murder of trainee chef Essayas Kassahun in central London and sentenced to life imprisonment.  However, seven years on a catalogue of failures by the police, prosecution and courts have resulted in the Crown withdrawing any opposition to Sam Hallam’s appeal and his conviction being quashed.

A lot has already been written on this case.  I draw attention to it not to pour over the mistakes of the police, the CPS and the judiciary.  Rather, I draw attention to the case because it demonstrates a number of quite fundamental things in a clear way.

Today there are many people in the UK who support the reintroduction of capital punishment for those convicted of Murder.  There are a growing number of murder convictions which have been spectacularly overturned many years after conviction and after the Court of Appeal had rejected appeals.  Sam Hallam’s is another one of those.  It is an important one though.  Sam Hallam would almost certainly have been executed by now had the UK retained the death penalty.  An innocent man would have lost his life for a crime that he had not committed.  This was not simply a case of the police getting it wrong.  The ineptitude of the Metropolitan Police in this case has been blown open for all to see.  They were, in essence, lazy and grossly negligent. They did not conduct the investigations they should have and had they Sam Hallam would never have seen the inside of a Court let alone a prison.   In this case the police are not solely to blame: the CPS, the prosecution Barristers, the trial judge and the original Court of Appeal judges all permitted the miscarriage of justice to happen and to continue.  This is not a case of a technicality overturning a conviction.  This is about the whole system having got it very wrong from the very outset.  Sam Hallam’s case is not alone in this though and others have been released following it being discovered that there is absolutely no way that they could have committed the crime in question.  Sam Hallam is not innocent because there is some reasonable doubt over the conviction.  He is innocent because there is no doubt of it.  He was nowhere near the murder when it took place.  These are the cases that demonstrate clearly why capital punishment should remain consigned to the history books.  While releasing someone from prison after they have served time for a crime they did not commit and paying them a large amount of money in compensation (quite rightly) is not enough to make up for the years lost to prison it at least allows the individual to live the rest of their life.  Capital Punishment is final.  Once the sentence is carried out there is no going back and when it’s discovered that a huge mistake was made and an innocent man was executed there is absolutely nothing that can be done about it.  Sure the conviction can still be quashed and an apology issued to the family of the victim, but that does not bring the wrongly executed individual back.

The case also highlights another vitally important point and that is the funding of the criminal justice system.  Without the correct levels of funding going to the police, to the prosecution, to the courts and to the defence teams the number of cases where innocent individuals are convicted will only rise.  As the police have to find savings in their budgets will their investigations routinely be scaled down?  Will vital lines of inquiry routinely not be followed up as they hope they’ve “got their man”?  Will the CPS spend less time weighing up and evaluating the evidence before decided whether to charge or not?  Will the prosecution team have to spend less time on preparing the case and thus not disclose vital material to the defence or notice a huge gaping hole in their case?  Will the defence have to cut back on the amount of work they put in the case and risk missing the bug gaping hole that the prosecution has already missed?  This could be the reality of the future.  Already defence counsel and defence solicitors are providing vast amounts of their time doing work for their cases which is essential but for which they have little hope of receiving remuneration for.  Legal Aid rates are being cut and are moving towards fixed fees.  Lawyers do have a professional obligation towards the court and to their client.  However, when they need to feed their own families and keep a roof over their heads will the amount of time spent on cases for no pay reduce as their time is taken up with a greater number of cases to continue earning enough money?  It’s a serious possibility and is already occurring.

Many in the public think lawyers get paid too much as it is.  Some lawyers do make obscene amounts of money.  However, you can be almost certain that their vast earnings do not come from legally aided work.  No, their vast earnings come from private client cases where the client can afford to fork out thousands upon thousands of pounds to be represented.  There is a great skill to the law.  Few people could walk into a court and successfully represent themselves, let alone another individual.  It takes year of study and many more years of practice to refine the skills and the knowledge needed to be a good lawyer.  The work undertaken by lawyers is vital to the continuing harmony of our society.  Without lawyers and the legal profession the rule of law would likely breakdown.  If lawyers are unable to dedicate the time to cases because they can’t afford to then public confidence in the system will be reduced as more and more miscarriages of justice are revealed.

What about the police?  They are under huge pressures at the moment, particularly in England and Wales.  The Home Office is passing on cuts of 20% to English and Welsh police forces.  That’s a lot of money.  What that means in real terms is fewer officers on the streets to respond to incidents, fewer officers available to properly and thoroughly investigate crime.  That means guilty people getting off and innocent people getting convicted.

Yes, we are undergoing extraordinary public spending pressure and every area of public spending needs to bear some of the cuts.  However, an improperly funded justice system means that any hope of justice gets squeezed out of the system.

Do we want more Sam Hallam’s?  If not then we must ensure that the justice system is efficient and properly funded.  That’s the entire system:  the police, the prosecution service, the courts and the lawyers.

R v Liam Stacey

So, today I read on the Guardian’s website a very interesting comment piece on Liam Stacey.  Stacey was handed a custodial sentence at Swansea magistrate’s court for racists tweets he made in the aftermath of footballer Fabrice Muamba’s collapse during a football game, a collapse that was as a result of a life threatening medical condition.

Stacey made one tweet directly related to Muamba and several other racist tweets in response to those who chose to challenge his views.  For this he was given 56 days in prison, quite a stiff sentence for a person who had never before been in trouble with the law.  In the aftermath the public and the media were praising the judiciary for their tough action in relation to some pretty offensive behavior.  However, offensive behavior isn’t necessarily a crime in its own right.

There was a lot of confusion around what Stacey was actually convicted of.  As can be seen from the Guardian piece, different media outlets said different things.  After reading the Guardian Article I thought that I would check again the Judgment refusing the appeal against sentence.  The Judgment stated that Stacey had pleaded guilty to an offence under s.31(1)(b) of the Public Order Act 1986.  This was, as far as I could see, not reported in any media outlet.  So, I decided to go and look at what the offence actually said.  However, it turns out that s.31 of the Public Order Act 1986 was repealed in its entirety in 2000 (repealed by paragraph 1 of Schedule 3 to the Football (Disorder) Act 2000).  What was even more interesting is that when I looked back at the various versions of the section that had existed since their introduction in the Public Order Act 1986 I could find no trace of the section ever having created an offence.  The section was making provision for other offences that were committed in connection with football.  So, even the Crown Court’s official judgment is incorrect.  The question remains what did Stacey actually plead guilty to?

It might seem irrelevant, but the Guardian comment make some very good points in relation to this case (and the law more generally).  Should the media be supporting a sentence without actually knowing what offence was committed?  Should the media be providing such support without informing the public as to what was actually tweeted by Stacey?  I would suggest that both of these questions should be answered in the negative.

The tweets quoted within the Crown Court’s judgment are offensive in the extreme.  They use extremely racist language and make other offensive comments in relation to those to whom Stacey responded.  The tweet that Stacey made directly about Muamba (as quoted by the Crown Court in their judgment) is not actually racists, although it is offensive.  The Crown Court in their judgment state that many of the messages criticising Stacey used “abusive language” (paragraph 8).  One media organisation pointed to an offence under s.4A of the Public Order Act 1986, although some have questioned whether such a section could even have applied to the tweets Stacey made.  I will not comment on that.

What does need to be clarified in my view is exactly what offence did Liam Stacey plead guilty to.  If he in fact plead guilty, as the Crown Court states, to an offence under s.31(1)(b) of the Public Order Act 1986 then he hasn’t actually pleaded guilty to any offence and should therefore not be in custody (although I would be rather shocked to disocver that the Magistrates, the CPS, the defence solicitor, the barristers and the Crown Court all missed this, so I am sceptical as to whether this is actually the case).

I am not in any way condoning what Stacey wrote.  As I have already pointed out his tweets as quoted by the Crown Court were offensive in the extreme.  I write this to demonstrate the continued problems with the media’s reporting of the criminal law.  It is, in my view, highly irresponsible of the media to report a person’s conviction (whether that conviction was byway of a guilty plea or by being found guilty by the court) without first being clear what the conviction was for.  That information is essential in order to ensure the public are adequately informed.

So, what offence did Liam Stacey plead guilty to?

Criminal Procedure: Time to start from scratch?

Criminal Procedure in Scotland is broadly governed by the Criminal Procedure (Scotland) Act 1995.  This Act sets out much of the way in which a criminal case is conducted from initial contact by the police with a suspect and/or witness through to the rules governing appeals against conviction and sentence.

The Act is incredibly out of date and has been amended on a number of occasions.  The first major challenge to the provisions of the 1995 Act was the now infamous Cadder case which focused on sections 14 and 15 of the 1995 Act, and in particular the failure of the law to provide for a suspect detained under section 14 of the 1995 Act to have access to legal advice and representation.  In that case the United Kingdom Supreme Court rejected the decision of the High Court in McLean v HM Advocate and held that the failure of the 1995 Act to provide for a suspect detained under Section 14 of that Act to have access to legal advice while in custody was a breach of Article 6 of the European Convention of Human Rights (ECHR).

The Cadder decision resulted in amendments being rushed through the Scottish Parliament which provided for, inter alia, the provision of access to a solicitor by a person detained under Section 14 of the 1995 Act before they were questioned by the police.

The Criminal Justice and Licensing (Scotland) Act 2010 made changes to the 1995 Act some of which have now come under scrutiny by the High Court.  In Cameron v procurator Fiscal, Livingson the Appeal Court held that the amendment in question was a breach of Article 5 of the ECHR.  The amendment in question was the insertion of paragraph (cb) into section 24(5) of the 1995 Act.  Section 24(5) of the 1995 Act sets out the standard conditions for a person released on bail.  The Court can add further conditions to that bail, but the standard conditions will always apply.  Paragraph (cb) provided that as standard a person who was on Bail must do two things if reasonably required to do so by a Constable.  Those things were (i) participate in an identification parade or other identification procedure; and (ii) allow any print, impression or sample to be taken from the accused. The remaining standard bail conditions are fairly, well, standard and cover things that one would reasonably expect such as not committing other offences, not interfering with witnesses, turn up at court when instructed to do so etc.  However, the insertion of paragraph (cb) into the standard conditions is slightly controversial.

Previously such conditions as those found within paragraph (cb) would have been added by the judge presiding over the bail application.  The Court would have to have been satisfied that such conditions were necessary.  However, now anyone on Bail would be required to adhere to such conditions and they are quite invasive.  Sample could cover anything from a urine sample, to a DNA swab to a blood sample, all of which are invasive procedures and normally if taken without consent may well constitute an assault.

In any event, this blog post is not about the latest decision per se, but is more about the 1995 Act.  It is not fit for purpose.  Criminal procedure in Scotland has fallen behind in terms of adhering to basic standards of human rights.  Successive Scottish Parliaments and Administrations have failed to ensure that Scotland’s procedures in bringing offenders to justice and protecting the public comply with human rights.

The two pieces of legislation passed in 2010 to amend the 1995 Act, particularly the post-Cadder emergency legislation, are nothing other than sticking plasters over a rotting limb.  What is required is an urgent, full-scale review of the 1995 Act and for it to be subsequently repealed and replaced with a brand new piece of legislation.

The review recently completed by Lord Carloway at the request of the Justice Secretary is a good starting point for this urgent and important piece of work.  However, it is important that the 1995 Act is not merely amended with whatever recommendations are accepted from Lord Carloway’s report, but that the accepted recommendations form the basis of a brand new piece of legislation that aims to codify the current law (including the case law).

It is important that this review canvases the opinions of all criminal justice stakeholders from victims groups to criminal justice social workers, solicitors, Counsel, COPFS and anyone else who has an opinion.  It’s important that criminal procedure keeps up-to-date with developments in human rights.

I do hope that in response to this latest judgment that the Justice Secretary and First Minister do not launch a hysterical attack against the judiciary and announce a serious attempt to look at criminal procedure in Scotland.  I hope that they appoint a review team who are knowledgeable and experienced in the criminal justice system and that any review team is not confined to just judges and lawyers but that representatives from all the major stakeholders are present to ensure that we have a system that is fit for purpose and is beyond challenge from a human rights perspective.

Prison Suicides

Today the news carries reports of another young person taking their own life in custody.  A 20 year old man who was serving a four year prison sentence at HMYOI Portland was found dead in his cell having hanged himself from the cell window on Saturday morning.  As with all deaths in custody the Prisons and Probation Ombudsman will investigate the circumstances surrounding the death and make recommendations to the establishment as to how they can stop such tragic events happening again.

This sad death was the third young offender to take their life in YOI custody in the space of one week.  In the last 22 years, 244 people under the age of 21 have taken their own lives in prison (on average roughly one person per month).  This is a shocking statistic.  Whatever the reason for them being there these young people have been in the care of the Government and as such the Government has a duty of care towards them.  Surely now we are beyond the stage of having individual investigations into each death?  Would it not be better if a proper investigation is carried out to see what can be done to reduce the number of suicides in custody?

People in prison may not generally get the sympathy of the public.  Some might go so far as to say “good riddance” to a person who kills themselves in custody.  However, that would be an utterly disgusting approach to take and anyone who does adopt such a stance is not (one would hope) representative of the UK population.

What caught my eye in the BBC News particle about the suicide was that, despite the young man having known psychiatric issues and being on anti-psychotic medication, HMYOI Portalnd does not cater for psychiatric issues among its inmates.  That raises two questions.  First, why does it not cater for psychiatric issues among its inmates.  The establishment has a duty of care towards each and every single person held in its custody regardless of their medical background.  Secondly, why was a person with known psychiatric issues held in an establishment that does not cater for such prisoners?

Generally, the suicide rate in the UK prisons is considerably higher than that of the general population (up to about 15 times greater).  That is, quite frankly, a shocking statistic.  Simply because a person has committed an offence that has placed in them in prison does not mean that we should care any less about them than we would if they were not an offender in custody.  The Government has a duty of care towards all in its custody and it is about time that they looked seriously at how they can reduce the numbers of people successfully or attempting to take their own life.

Initial views: Lord Carloway’s report

Lord Carloway today published his report into criminal procedure and evidence in Scots law following a review of around 12 months.  The recommendations made by Lord Carloway were mostly expected, but one has caused particular controversy within the legal sector already: the recommendation that the requirement for corroboration be abolished in Scots law.

The report is in excess of 400 pages in length and it would be foolish to comment in any great detail or come to a definitive position on the content of the report at this stage.  There is a lot to take in and digest.  However, there are some things that can be said initially about some of the recommendations that have been made in the report.

Arrest and Detention

It is certainly a good idea to move away from the idea of detention an arrest being separate.  Providing a constable with a general power of arrest where reasonable suspicion exists is probably the way forward in terms of Scots law.  The move to reduce the maximum period of detention from 24 hours to 12 hours is also welcome.  There was no real evidence at the time the Scottish Parliament passed the emergency legislation last year following the Cadder case to increase the maximum period of detention to 24 hours.  The recommendation to require a custody review to take place at six hours is also welcome.  The evidence coming from the police is that in most cases post-Cadder detention has been less than six hours anyway.

The recommendation to allow the police to liberate a person from custody either pending further investigation or while waiting to go before the court after charge or report is something that also appears to be a sensible recommendation.  The recommendation that the maximum a person can be conditionally liberated from police custody pending investigation to 28 days appears to be immensely sensible.  Looking south of the border to England the lack of a maximum period to which a person can be bailed pending further enquiries is resulting in some people (albeit a very small number) being on police bail for many months, even as many as 12 months.  That represents a significant burden upon a person who may not have committed the crime being investigated and is, as far as the law is concerned, an innocent person.

The recommendation that periods of detention broken by periods of conditional liberation by the police should not exceed the twelve hour maximum does appear to be a sensible recommendation initially.  This would certainly prevent any abuse of detention by the police and ensure that they are only detaining a suspect when it is absolutely necessary and they have a purpose for doing so.  It does seem rather odd that currently a person is kept in custody while investigations are ongoing in what are relatively minor offences.

A route of appeal to a Sheriff against any of the conditions imposed by the police on a person whom they are liberating is an important safeguard to ensure that a suspect who may not have committed any crime, and is innocent in law, is not overburdened by restrictions upon their liberty.


The recommendations made in the report that relate to waiver, vulnerable adults and children appear, initially, as sensible.  A statutory framework for waiver would ensure that a standard procedure is applied across the country would appear to be a sensible proposition.


At a first glance the recommendation to abolish the requirement for corroboration appears to be an unsupportable suggestion.  Throughout the day the Law Society of Scotland as well as individual solicitors have come out against such a move citing it as an important safeguard in the Scottish legal system.  The fact that it is an “archaic” rule and that Scotland is in a minority by retaining the rule are not, I submit, strong enough arguments for its abolition.


The recommendation to repeal the power granted to the High Court if Justiciary last year to be able to refuse to hear an appeal following a reference by the SCCRC is to be welcomed.  The provision was not properly considered before being enacted during the passing of the emergency legislation last year and fundamentally undermined the role of the SCCRC.

The above are by no means detailed or settled points of view on the content of Lord Carloway’s report.  It will no doubt take several weeks to properly read and digest the content of the report so expect more on this issue in the weeks and months to come.

Is there really a gap in the law?

One of the Scottish Government’s main reasons for introducing the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill is that there is allegedly a gap in the current law to deal with these offences.  It is undeniable that Breach of the Peace has continued to be re-defined in a way that excludes a lot of conduct from it.  However, in 2010 the SNP Government introduced a new offence of Threatening or Abusive Behaviour (Criminal Justice and Licencing (Scotland) Act 2010, s.38) to deal with these cases.

This new offence has been in force for little over one year now and the Scottish Government are continuing to maintain that the law is in adequate.  If indeed the law is inadequate then the question as to why they did not do more in the last Parliament to deal with this problem needs answered.  However, it doesn’t actually appear that there is a gap in the law.  Earlier this year I published on here figures that had been released by the Crown Office and Procurator Fiscal Service (COPFS) in answer to an FOI request I had made on the s.38 offence.  I have since followed that up with another request seeking more detailed figures and today a response was sent to me by COPFS.

This second FOI request related to s.38 offences that had been aggravated by religious prejudice pursuant to section 74 of the Criminal Justice (Scotland) Act 2003.  The figures released today by COPFS cover the period since the offence came into force until 31 October 2011.

COPFS had received reports from the police containing 331 charges under s.38 where the alleged offence was said to be aggravated by religious prejudice.  Of those 331 charges, 309 were prosecuted (with decisions on 4 charges still to be taken).

Of those prosecuted 16 were prosecuted on indictment with seven of those resulting in a conviction and a further seven still to come to trial.  Out of the 293 charges prosecuted summarily, 192 resulted in a conviction and 82 are still to come to trial.

The COPFS were unable to advise how many of those offences related to football as the database does not record that data.

This suggests that the existing provisions are being utilised by the police and there have been a significant number of successful convictions for threatening or abusive behaviour that has been aggravated by religious prejudice.  The fact that COPFS cannot confirm how many offences have been committed in relation to football is an important gap in the data and is something that should really be explored before the Scottish Government declare Scots law to have a gap that needs fixed urgently by legislation.  The fact remains that the Scottish Government are making assertions that simply cannot be supported by evidence and where evidence does come to light it suggests that the Government’s position is even less credible than it was prior to the new evidence coming to light.

The Scottish Government really ought to scrap this Bill and look at the issues properly.  Assessing the evidence is an important aspect of deciding on an appropriate way forward and it would appear that the Scottish Government have failed to properly assess the evidence.

Offensive Behaviour at Football etc. Bill: Further assessment of the Bill (Part 3)

This is the third and final part of a series of articles on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill coming after the Scottish Parliament Justice Committee issued its stage 2 report on Thursday in support of the Bill (by majority).  The first part which gives a brief background to the Bill and looks at the first offence to be created by the Bill can be read here while the second part which focuses on the second offence can be read here.  This final part will look at more general matters and come to a conclusion on the Bill.

One of the first more general aspects to be looked at is the so Committee’s support for a clause within the Bill requiring the Scottish Government to review the legislation at a defined point in the future.  This strikes as an admission that the legislation is not actually right.  Legislation should, as a matter of course, be under constant review to ensure that nothing needs to be altered and tweaked as society changes and the interpretation of international instruments such as the European Convention on Human Rights develops.  Why the Government insists on rushing this through is beyond comprehension.  It featured nowhere in the SNP manifesto in the election and seemed to somewhat come out of the blue following the events of some football games earlier in the year, rushed legislation is never good legislation.  While the initial timescale was extended to allow further time for the legislation to pass it has not been extended enough.  This type of legislation is extremely complex and takes time to ensure that it is right first time.  There is little point in passing legislation and then discovering that it criminalises people for conduct which the Government had not envisaged or even worse doesn’t catch that conduct which it was intended to catch.  It’s worth noting that it took the UK Government a number of years to pass its religious hatred legislation as it was refined and made better so that what was passed was something as close to right as was reasonably practicable.

There is no doubting the SNPs desire to tackle sectarianism and indeed it is hard to imagine any MSP in the Parliament who would not be so determined.  The First Minister’s rhetoric that suggests those who do not support his legislation are part of the problem is entirely unhelpful.  The exchanges during First Minister’s Question Time on Thursday revealed that this has become about political point scoring.  This issue is far too important for politicians to be trying to score one over on each other.

The proposed legislation itself will not eradicate sectarianism; in fact it won’t even come close to it.  The problem is far wider that football and it infects the wider society.  Sectarian comments and references can be heard in circumstances entirely outside of football.  Any changes in the law on this issue must come as part of a wider plan to tackle sectarianism.  The legislation ignores the fact that it is a wider societal problem.  There needs to be a co-ordinated plan looking at the criminal law (if it were accepted that changes are needed, something which is heavily debated) as well as education.  Much of these behaviours are learned behaviours.  Children pick them up as they grow and develop.  They hear their parents and other role models in their lives conducting themselves in such ways and pic these behaviours up.  Getting into schools and communities to educate and build bridges is essential.  The Government keep telling the people of Scotland that they are working on a wider plan beyond the legislation.  However, the plan should have come before the legislation.  The legislation should have been in response to a wide-ranging expert review on the issue.  Unilateral changes in the criminal law on issues as complex and important as this one is will do more harm than good.

Passing legislation gives the First Minister and his party the sound bites they want.  It allows them to point to a piece of legislation and say that they enacted it and that this proves their credentials as being tough on sectarianism and committed to eradicating it.  It ignores the evidence provided to the Committee.  This is dangerous.  Why bother asking for evidence and examining witnesses if it is simply going to be ignored and Committee members are going to vote along party political lines.  The case has not been made out and the MSPS on the justice committee, regardless of political persuasion, should have reported this.

When the First Minister won his historic election victory in May he said that while the SNP had the majority of seats it did not have the majority of wisdom.  At the first real test of the Government’s belief in this it has spectacularly failed.

Other general issues with the Bill include the inclusion of other “protected characteristics” within the legislation.  While it might be necessary to deal with other behaviours, such as the making of homophobic remarks, this Bill was introduced with a clear aim: to deal with sectarianism in football.  The other “protected characteristics” included within the Bill seem to have just been added there for the sake of it.  They do not help with the main published aim of the Bill.

The Justice Committee has decided by a majority (With only the SNP members voting in favour) that the Government had made out its claims that the current law in Scotland was insufficient in dealing with the sectarian problem currently facing Scotland, particularly around football, and that legislation had to be introduced to deal with these problems.

This is a totally illogical position for the majority of the Committee members to have arrived at and can be demonstrated by simply reading the report.  Throughout the report the Committee constantly contradicts itself.  The Committee seeks clarification on an area of the law to which it said it had heard little evidence on its operation.  That wouldn’t be too much of a problem if it were not for the fact that this particular area of the law was one to which witnesses were pointing to as a reason why the legislation is not required.

This particular area of law is the offence under Section 38 of the Criminal Justice and Licencing (Scotland) Act 2010.  The Committee and the Government have focused on Breach of the Peace in their deliberations over this Bill.  However, the SNP Government brought in the s38 offence as a way of dealing with the inability of Breach of the Peace to cover certain situations.  There has been no proper analysis of this legislation and its use in relation to football.  A request for information under the Freedom of Information (Scotland) Act 2002 revealed how frequently the offence is being used generally across Scotland.  Clearly it is serving a purpose given that at the time these figures were obtained the offence had been in place for less than 12 months.

The length of time that s38 has been in existence is also a consideration.  If legislation is passed it needs time to operate before the Government can declare that there are gaps in the law.  The fact that this offence is still less than 12 months old suggests that not enough research and analysis can have been conducted on it and that more time would be required for this to happen.  Indeed, as pointed out in part 1, the Justice Committee pointed to specific examples of where s38 had been used in relation to football related sectarianism.

Politicians can fall into the trap of thinking that they can legislate to fix every problem in society.  If legislation stopped people from doing things then there would be no crime at all.  Problems as complex as this and which have an intrinsic social element cannot be dealt with by unilateral changes to the criminal law; they need a more focused solution.  That may indeed involve criminal legislation, but it will also involve education and certainly education will lie at the heart of any successful plan to tackle this problem.

 The only conclusion that can be drawn at this stage is that the Bill in its current form is not fit to be passed as legislation.  There are too many concerns around rights and freedoms in the way the Bill has been drafted, particularly with the wide way in which it has been drafted.  The Government has fundamentally failed to demonstrate that the current Bill represents a proportional means to a legitimate aim.  The current law has not been proven to be lacking and in view of that it cannot be argued that this Bill is even necessary.

 The Bill will go back to the Scottish Parliament before the end of the year for Stage 3.  No doubt many amendments will be proposed to the Bill and voted on.  No doubt much more will be written on the Bill between now and then.  However, if you are in agreement that the Bill is wrong in its current form then it is important that you make this known to your MSPs.  Remember there is not just your constituency MSPs but also the MSPs representing the larger region within which your constituency lies.  Write to them all expressing your concerns.  This is far too important an issue to remain silent on.