Category: Criminal Law

Scotland’s Hate Crime Act…what is it and what isn’t it?

On 1 April 2024, the Hate Crime and Public Order (Scotland) Act 2021 entered into force. To say that there has been controversy in the two weeks since its coming into force would be an understatement. However, what is clear from the public discourse that’s taken place in the run-up to implementation and in the two weeks since it was implemented is that it is a very misunderstood piece of legislation.

Background to the Act

The concept of hate crime is not new in this country. There has been an offence of stirring up racial hatred in Scotland for more than 35 years. An offence of stirring up racial hatred was inserted into the Public Order Act 1936 by the Race Relations Act 1976. It was then re-enacted in the Public Order Act 1986 and has again, insofar as Scotland is concerned (the 1986 Act offence still applying to England and Wales), in the Hate Crime and Public Order (Scotland) Act 2021.

There have been other “hate crime” provisions within Scots law, such as the offence of racially-aggravated harassment within the Criminal Law (Consolidation) (Scotland) Act 1995.

In addition to those offences there have been statutory aggravations, such as a racial aggravation in the Crime and Disorder Act 1998, religious prejudice under the Criminal Justice (Scotland) Act 2003 and disability, transgender identity and sexual orientation in the Offences (Aggravation by Prejudice) (Scotland) Act 2009.

In 2017 Lord Bracadale (a retired judge of the High Court of Justiciary and the Court of Session and also a prosecutor in his career at the Scottish Bar) was appointed by the then Community Safety Minister to carry out an independent review of hate crime legislation in Scotland. Lord Bracadale published his report in 2018 and the Hate Crime and Public Order (Scotland) Act 2021 largely follows the recommendations made by Lord Bracadale (although, not entirely).

What does the Act do?

The Act does a number of things. Firstly, the Act is consolidating legislation. What this means, essentially, is that it has taken all of the existing provisions in relation to “hate crime” and re-enacted them into one place. It is now no longer necessary to look at lots of different pieces of legislation to locate the legislative provisions on “hate crime” insofar as it relates to Scotland (as can be seen above, the provisions that existed prior to the 2021 Act were scattered across a number of different pieces of legislation).

Section 1 of the Act consolidates the provisions concerning offences aggravated by prejudice. However, it does add in a new characteristic which had not previously been covered by the law: age (this was a recommendation made by Lord Bracadale in his report). With that exception, the law in relation to offences aggravated by prejudice did not change on 1 April 2024.

It is important to note that section 1 is not a “standalone provision”; it relates to the aggravation of an offence. In other words, for it to apply there must first have been an offence committed. So, for example, if someone assaulted another person because of their religious affiliation (or perceived religious affiliation) then that person could be charged with an assault and the summary complaint or indictment could also contain an aggravation of religious prejudice. This means that, in this example, if the finder of fact (a Summary Sheriff or Sheriff in the case of a summary complaint or a jury in the case of an indictment) decides that the accused assaulted the complainer they would then need to consider whether the assault was aggravated by religious prejudice. Unlike the assault, the aggravation does not need to be corroborated (in other words the evidence of one witness would be sufficient to enable them to find the aggravation proved); this is not a change in the law either: an aggravation did not need corroboration before 1 April 2024 either.

If the finder of fact found that the assault was aggravated, section 2 of the Act means that the offence must be treated more seriously by the courts: in other words, the court is required to impose a harsher sentence on the accused than would be justified if the assault had not been aggravated by prejudice. If the finder of fact decided that the assault had not happened, then the aggravation also falls away: the aggravation cannot exist without the offence (but the offence can exist without the aggravation).

The aggravations do not just apply to an assault. In theory any offence could be aggravated by prejudice by reference to one of the characteristics listed in section 1. It could be murder, a breach of the peace or the crime of threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

Section 3 re-enacts the offence that used to be in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 of racially-aggravated harassment.

Section 4 is where there has been the most controversy. Section 4 deals with the “stirring up” offences. Section 4 contains, in effect, two separate offences. The first re-enacts the decades old provisions in relation to stirring up racial hatred. This relates to situations where someone acts in a manner, or communicates material to another person, which a reasonable person would consider to be threatening, abusive or insulting and (i) in doing so the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins OR (ii) a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

The other offence created is stirring up hatred on the grounds of the characteristics of age, disability, religion (or, in the case of a social or cultural group, perceived religious affiliation), sexual orientation, transgender identity or variations in sex characteristics. This is new in Scotland (England and Wales, they do have a stirring up offence in relation to religion and sexual orientation in the Public Order Act 1986). The offence is essentially the same as the religious hatred one, but in relation to the other characteristics “insulting” does not appear – only “threatening or abusive.” The offences are not about causing offence, or being rude or anything like that. The conduct in question has to be more than that; it has to be likely to cause the reasonable person to suffer fear or alarm. The police and courts in Scotland are very much used to dealing with the concept of “threatening or abusive” behaviour given there is an offence of threatening or abusive behaviour”.

However, for the this offence to be committed, it has to go further than merely being threatening or abusive. The accused has to intend stir up hatred against a group of persons by reference to the characteristic of age, disability, religion, sexual orientation, transgender identity or variations in sex characteristics. That being said, behaviour which as merely threatening or abusive and was motivated by prejudice on the grounds of age, disability, race, religion, sexual orientation, transgender identity or variations in sex characteristics a person could be prosecuted for threatening or abusive behaviour under the Criminal Justice and Licensing (Scotland) Act 2010 with the appropriate aggravation under section 1 of the Hate Crime and Public Order (Scotland) Act 2021.

What about free speech?

Article 10 of the European Convention on Human Rights guarantees freedom of expression, including the right to hold opinions and to impart information and ideas. However, it is not an absolute right. It is recognised in the Convention that there may require to be limits on free speech when balancing against other legitimate interests. For example, defamation laws are a restriction on free speech, but it is right and proper that people are able to seek recourse when they have been defamed. There were also already existed restrictions on free speech in the criminal law prior to 1 April 2024: the offence of stirring up racial hatred is, as pointed out earlier in this post, one that has existed for a long time. The offence of threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 can be a restriction on free speech if it relates to things that are spoken or written. A breach of the peace can be a restriction on free speech if it relates to things that are written or spoken. Those are just a few examples, there are others.

There are specific protections within the Hate Crime and Public Order (Scotland) Act 2021 in relation to free speech. Section 9 of the Act sets out certain protections. Furthermore, the police, the Procurator Fiscal, the Lord Advocate and courts are all public authorities for the purposes of the Human Rights Act 1998 and cannot act incompatibly with people’s “convention rights” (being the rights from the European Convention on Human Rights listed within the Human Rights Act 1998). In exercising their powers and authority, each has to ensure that they are acting compatibly with, amongst other things, a person’s right to freedom of expression (and, indeed, their (qualified) right to respect for their private and family life).

What is missing?

It has been suggested that the non-inclusion of sex as one of the characteristics, particularly in relation to stirring up offence, is an omission on the part of the Scottish Parliament.

Lord Bracadale recommended in his report that sex be included, but the Scottish Government, when framing the Bill that became the Act, decided not to include it. That is a policy decision for which they are accountable and whether they were right to take that decision or not is not something that I am going to comment on in this post – it would be opinion rather than analysis of the statute. However, it is worth noting that the Scottish Government has said it is looking at the issue and that section 12 of the 2021 confers a power on the Scottish Ministers to add sex into the Act by way of regulations (so, if the Scottish Government were to decide to add sex in, it could be done relatively quickly without having to pass a new Act).

Is the Act unclear?

Another criticism that has been made of the Act is that it is unclear or vague in some sense. Those criticisms are, again, in my opinion, unfounded. All of the provisions within the Act either already existed within Scots law and have been applied time and again by police, prosecutors and the courts or build upon those provisions which have existed in the law for a long time.

Conclusion

In short, there has been a lot of controversy surrounding the Act. Much of it has been ill-informed (not helped by pronouncements made by Ministers and the police in the run-up to the Act coming into force which did not reflect the wording of the Statute). Little of the controversy has any sound basis in the text of the Act (the words used in the statute are what matter; those words and their meaning cannot be changed by way of statements made by Ministers or police officers – no matter how senior). Being offensive, even deliberately so, is not likely to result in a charge under the 2021 Act. However, if conduct were to be threatening or abusive then this may amount to an offence under other legislation.

A lot of what is contained within the Hate Crime and Public Order Act 2021 is not new, and the bits that are new are, essentially, extensions of what already existed. Those new bits are also based upon recommendations made following an independent review of the law in this area.

It is highly likely that the effects of the Act have been considerably overstated and that, in fact, the numbers of people caught by the 2021 Act will not be much greater than under the laws that went before it (although, recognition has to be given to the bits that are actually new and the likely effect that might have overall on the number of people caught by the 2021 Act). Holding and expressing, for example, gender critical beliefs would not, on its own, pass the criminal threshold. The conduct would have to go further: it would have to go into the realm of being likely to cause the reasonable person (that is, the ordinary man or woman on the street) fear or alarm. Referring to a trans man as a woman or a trans woman as a man, on its own, would not cross the threshold; again, something more would be required. Whether the behaviour is threatening or abusive is an objective test, not a subjective one. While the feelings of the complainer may be relevant, they are not determinative. What matters is whether the conduct would be likely to cause the reasonable person fear or alarm.  

Disclaimer: This post is for information purposes only and nothing in it should be taken as constituting legal advice.

The lockdown and public protest

On 25th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.

Conclusion

I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.

Coronavirus, guidance and the law

The United Kingdom, like the rest of the world, is in the midst of a public health emergency. COVID-19 is spreading through the world with devastating consequences for individuals, families and communities. Ministers in each of the four governments within the United Kingdom have made Regulations, either under the Public Health Act 1984 (England and Wales) or the Coronavirus Act 2020 (Northern Ireland and Scotland). Those Regulations can be found here:

England
Northern Ireland
Scotland (and the Scottish Amendment Regulations)
Wales (and the Welsh Amendment Regulations)

There is some difference in the form that the Regulations take, but there is very little difference in the substance of the Regulations applicable in each of the four constituent parts of the United Kingdom. I don’t intend on dealing in this post with the differences in substance that do exist between the Regulations in each of the four nations. Instead, my focus in this blog will be on something different. It will be on the difference between the guidance issued by the governments and the Regulations made by Ministers.

On social media there has been a large amount of concern expressed at the way in which the public health emergency is being policed. We’ve already seen examples of one police force arrest, detain and charge someone with an offence that didn’t even exist (the judge presiding over the case didn’t come out of it smelling of roses either) and of overly-restrictive interpretations of the law (such as only being permitted to buy “necessary” items when in the shops or only being permitted to make necessary journeys) and other examples of the law seemingly being made up on the spot (such as the South Yorkshire Police officer filmed telling people, contrary to the express words of the English Regulations, that they couldn’t be in their front garden).

I will say this before I go any further: of course there will be plenty of police officers applying the law diligently and fairly, having sensible and proportionate conversations with people in their communities; however, their good work is being over-shadowed by the poorly worded and inaccurate communications coming out from official police sources (such as social media accounts and websites). It won’t be the good work that determines the way in which the police will be viewed in light of this pandemic. What people will ultimately look at is the poor decisions, the unlawful actions and how wide-spread they were. Every poor decision, every unlawful action (no matter how well intentioned) will reflect badly on the police.

The Chief Constable of Northamptonshire Police was in the press this week declaring that the public had now had enough time to get used to the Regulations. Well, the same is true for the police. If police officers are unfamiliar with the Regulations then they should spend more time reading them and less time listening to press conferences by politicians.

There has been a considerable conflation between the guidance and the law. That doesn’t just extend to the Police, the Government has been equally unhelpful in this regard. I am not objecting to the police publicising the guidance nor am I objecting to the Police having conversations with people in their communities about the guidance. What I am objecting to is the conflation of the two. They are not interchangeable. The guidance contradicts the law in a number of areas; the guidance is far more restrictive than the law actually is. This has been known for some weeks and the law has gone uncorrected, we can therefore deduce that these difference were probably not a mistake and that the “gaps” in the law are not mistakes; instead, we must work on the basis that they were as a result of deliberate policy decisions taken by Ministers. It is not for the police, nor is it for the courts to attempt to fill perceived gaps in statutory provisions.

An example that keeps being used when the difference between guidance and law is brought up is the Highway Code. That, however, is a fundamentally misconceived comparison. The Highway Code was originally made under section 45 of The Road Traffic Act 1930. Section 38(1) of the Road Traffic Act 1988 expressly retains the Highway Code. The remainder of Section 38 makes provision for the updating of the Highway Code, including for scrutiny by Parliament of proposed amendments which are not made in consequences of the enactment, amendment or repeal of statutory provisions. Finally, the legislation expressly permits the Highway Code to be used to help prove or disprove liability in both civil and criminal cases. It is therefore a statutory code and is not an appropriate comparator for non-statutory guidance.

The guidance issued by Ministers in relation to coronavirus is non-statutory, indeed Ministers could have sought powers from Parliament when passing what is now the Coronavirus Act 2020 in order to issue statutory guidance or codes and made provision for how they should be treated. However, they did not. Where the guidance contradicts the express words of the Regulations, it will be entirely ignored by the Courts and it should also be entirely ignored by the Police when they are working out what powers the Regulations do and do not give to them.

While there are no cases from the appellate courts interpreting these Regulations we do not start from scratch when it comes to interpretation. There are clear rules, built up over a very long time, as to how statutory provisions are to be interpreted. These rules are well known to lawyers; Parliament will be deemed by the courts to have known them when passing the primary legislation and Ministers will also be deemed to have known them when making the Regulations. The phraseology used in the Regulations is clearly intended to be flexible rather then prescriptive. The lists of “reasonable excuses” expressly provided for in the Regulations is non-exhaustive and the list that appears in the Regulations is very different to the list that is repeated every day at ministerial press conferences. There is, for example, no prohibition in the Regulations on buying non-essential items (including luxury food items). Neither is there a prohibition on making “unnecessary journeys”.

Also, the UK Government has recently updated parts of its guidance in response to pre-action correspondence challenging the lawfulness of aspects of its guidance. That is a clear reminder that although the Government can issue non-statutory guidance it is constrained by the law as to what that guidance contains. It is therefore necessary to not simply look and see what the guidance says, but also to consider whether it is lawful (e.g. does it discriminate on the grounds of a protected characteristic). The courts will also, rightly, reject any part of the guidance which, while not contradictory to the coronavirus regulations, is otherwise unlawful.

The Human Rights Act 1998 still applies, it has not been amended or modified by any of the Coronavirus legislation. The Act does permit flexibility; however, legislation will always be sought to be read compatibly with it. Indeed, Secondary legislation (such as the Regulations linked to at the start of this post) is even more vulnerable to it than Acts made by the UK Parliament. It is almost certain that the appellate courts will seek to interpret the coronavirus laws as narrowly as possible given their considerable infringement upon our rights and liberties. It is unlikely to interpret it in a way that is wider than what is absolutely essential for the purpose that it was made for. Proportionality in the interpretation will be key; the courts will certainly not accept the more extreme interpretations given to them by some police officers.

I’m not just going to criticise the police in this post. I hope to provide some possible solutions to these problems; my ego doesn’t stretch to me assuming that anyone will pay the blindest bit of notice to them, but nevertheless it is important that I seek to balance the criticism with some suggestions of what the police could start doing.

The Police could help by starting to clearly differentiate between the guidance and the law in their public communications. Where they taking action in respect of criminal offences then they should leave out all mentions of the guidance and instead only refer to the law. Where they are encouraging compliance with the guidance they should leave out all references to enforcement.

Those mostly responsible within the police for public communications are not police officers, but the senior leadership of the police forces should get involved. They should be taking steps to establish protocols to ensure that confusing and inaccurate things are not published. Perhaps a senior officer with a good understanding of the Regulations could be appointed to work with the corporate communications team within the force? They could be a point of contact for the PR team so that they can run things past them before they’re published, someone who can field enquiries by the press and be the face of the local response to the policing of these Regulations. That would help to ensure clear, accurate and consistent messaging. If there isn’t a senior officer with a good understanding of the Regulations the Chief Constable could perhaps task one to spend time getting up to speed with what the Regulations say, how they differ from the guidance and where the guidance contradicts the law.

The conflation between the guidance and the law will not be helping the police logistically either. No doubt the police are being inundated with reports of conduct which, while not in compliance with the guidance, is not actually an offence. The police could probably do without unnecessary contact from the public. However, their current strategy is most likely going to be encouraging that contact by not adequately differentiating between things that they have powers to deal with and things that they are powerless to deal with. As police resources become stretched they will require to direct those resources towards people actually breaking the law (whether that be the coronavirus laws or other offences such as assaults, sexual offences, thefts etc.). So, changing their communications strategy is also in their interests from a resources perspective.

Finally, there is no contradiction at all in saying that people should seek to follow the governments’ guidance and apply common sense while at the same time the police should not be confusing the law with the guidance and should only seek to enforce the law. As an asthmatic who is entitled to the flu vaccination on the NHS each year I am in the “high risk group” (although I don’t fall into the very high risk category as my Asthma is generally well controlled). I’ve been following the government’s guidance. I’ve not left my property since Monday (when I went to buy food from the shops). I’ve been engaging in social distancing since before the laws were made. Indeed, by the time the Scottish Regulations were made (which are the ones that directly apply to me and to my life) I had already been in “lockdown” for over a week. Personally, I would quite like it if everyone just stayed at home so as to reduce the risk to me of contracting this virus. However, as a lawyer I am a firm believer in and supporter of the rule of law. It is sacrosanct; especially in emergencies. The rule of law is what makes us a democratic society rather than a totalitarian one.

Where crime and the civil law intersect: the case of DC v DG and DR

Today, Lord Armstrong sitting in the Court of Session in Edinburgh (and this is an important point to which I shall return shortly) has issued a judgment which has attracted much publicity over the course of today.  Lord Armstrong ordered that the Defenders, two former Scotland international football players, should pay, on a joint and several basis, the Pursuer £100,000 in compensation.  This follows an allegation by the Pursuer that the Defenders raped her in January 2011.

This is an important case, but it is necessary that some preliminary matters are covered.  The first is that although this case relates to an allegation that an extremely serious criminal offence has been committed, the Court of Session deals entirely with civil cases.  What we have here is a claim for damages raised by the Pursuer.  The Pursuer had made a complaint to the Police which initially proceeded to prosecution, but for some reason the prosecution was discontinued.  Lord Armstrong’s judgment does not go into detail on this (and the reasons why the criminal case was dropped are irrelevant to the task his Lordship was faced with).  The most likely explanation for the prosecution not proceeding would be that the Crown no longer believed that it had sufficient evidence to provide a realistic prospect of success in proving its case against the accused footballers.

Someone not familiar with the law may well reach the conclusion that such a decision by the Crown must be wrong in view of Lord Armstrong’s judgment; however, it does not necessarily follow that a finding of liability in a damages action means that the Defenders would be convicted in a criminal court.  In both the civil and criminal courts there is the burden of proof and the standard of proof.   The burden of proof generally lies with the party who bring the case (there are some exceptions to this, but they’re not relevant here and it may only confuse matters to explain them).  In a case brought in the civil courts, such as the Court of Session, the burden of proof generally lies with the Pursuer as the person brining the case.  In a criminal case the burden of proof rests with the Prosecution. That tells us who needs to prove their case, but how do they do that?  That is where the standard of proof comes in.

There are two standards of proof.  Where a case is brought in the civil courts, the pursuer needs to prove their case on the balance of probabilities.  Essentially this means that the judge deciding the case needs to be satisfied that the Pursuer’s version of events is more probable than not.  The judge deciding the case doesn’t even need to consider that the Defender’s version of events is more likely than the Pursuers.  If the Pursuer doesn’t prove their case on the balance of probabilities then they fail, even if the judge things the Defender’s case is a load of rubbish.  This contrasts with the situation in a criminal court where the Crown has to prove its case beyond reasonable doubt.  This is a substantially higher test to pass (and rightly so as the consequences of a criminal conviction are much graver).  It is not enough that the jury think that it is more probable that the complainer is the victim of the crime alleged and that the accused committed that crime than not; if they have even the smallest amount of doubt that has a reasonable basis, then the Accused is entitled to the benefit of that doubt and must be acquitted.

The effect of this is that it is much easier to prove something in a civil court than in a criminal court.  That means that although Lord Armstrong was satisfied that it was more likely than not that the events averred by the Pursuer occurred, it does not follow that if the same evidence were to be put before a jury that the jury would convict the accused.

Lord Armstrong’s decision is lengthy; it runs to almost 350 paragraphs over some 42 pages.  As would be expected with any civil judgment it sets out the case for the Purser and Defenders with reference to the evidence of the witnesses.  It then analyses the evidence and reaches a decision.  However, Lord Armstrong only had to be satisfied that the Pursuer had proved her case on the balance of probabilities.

What does this case mean?

For the Defenders this is not a criminal conviction; it will not appear on their criminal record.  Unlike if they were convicted in a criminal court they do not need to declare the finding in any future employment application; they cannot be required to sign the sex offenders register nor could they have faced imprisonment.  So far as the criminal law is concerned they remain innocent of the crime of rape.  It is important that this finding by the Court of Session (while in all probability comforting to the Pursuer) is not seen in the same light as if it were a finding of guilt in the High Court.  The Defenders, between them, need to pay the Pursuer (subject to any appeal) the sum of £100,000 – this is compensation, not a fine.  For the Pursuer it may well amount to a feeling, in some way, of justice.  It may well be one thing (among many) that helps her to move on and begin to rebuild her life – at the age of 30 she has  many more years of life left to live and hopefully those years can be better than the past 6 years.

The case also has a wider impact; not because it decides something new, but because of its high profile nature.  It highlights that where a criminal prosecution is not possible due to the higher standard of proof (or even where a prosecution ends up in a verdict of Not Guilty or Not Proven) it may be possible to have recourse through the civil courts.  We recently saw the (failed) attempt to privately prosecute Harry Clarke when the Crown refused to initiate proceedings against him for alleged criminal offences arising out of the tragic George Square Bin Lorry crash.  It may be that the families of those bereaved (along with those who suffered injury in the crash) elect to raise civil proceedings against Harry Clarke (or more likely Glasgow City Council, on the grounds of vicarious liability, as his then employer).

It is unlikely that every failed prosecution will result in a successful claim for damages in the civil courts.  Although the Pursuer only needs to prove their case to a lower standard of proof; they still need to be able to present the court with evidence to support their claim and this may still prove to be a difficult task depending on the circumstances of each case.  There are also the costs associated with brining a civil claim, which can be substantial (although legal aid may be available to those who qualify for it).  Even where a Pursuer is successful in their claim it is unlikely (if not guaranteed) that they will not recover all of the money they have spent in pursuing the claim.  It therefore may not be economically viable (even where legal aid is available due to the “clawback” provisions in the Regulations) to pursue the case where the amount of compensation awarded is likely to be less than the difference between what has been paid in legal fees and what is recovered through an award of expenses.

These are all matters that a solicitor can guide a potential Pursuer through and are matters that are kept under review throughout the lifetime of a case.  It may be possible to settle cases out of court which can substantially reduce the cost (and stress) of the case.  However, the civil courts are (and always have been) a place where a victim of crime can take their case where the Crown cannot prosecute (or where a prosecution is unsuccessful).

The Case of Marine A

Yesterday the Court Martial Appeal Court (which, as the name suggests, hears appeals from Courts Martial) refused an application for bail by Alexander Blackman (more popularly known as ‘Marine A’) pending his appeal against his conviction for Murder.  There was, predictably, an almighty uproar by people and equally predictably, the uproar appears to be coming from people with scant knowledge of the facts (or a complete lack of interest in the facts).  Before looking at the decision of the Court Martial Appeal court, it might be worthwhile recapping, briefly, how we have arrived at this situation.

‘Marine A’ served with the Royal Marines and was deployed to Afghanistan.  On 15 September 2011 insurgents attacked a compound that was occupied by the Royal Marines.  A helicopter was called in to assist with the fire fight that had ensued.  One of the insurgents was located in open ground and the helicopter opened fire on that particular insurgent.  A unit was tasked to undertake an assessment of the damage from the battle and that unit was under the command of ‘Marine A’.

Each of the three armed forces in the UK has their own police force – The Royal Military Police (Army), the Royal Navy Police (the Navy) and the Royal Air Force Police (the RAF).  About 12 months later the “Military Police” (phrase used in the Court Martial Appeal Court’s judgment) were undertaking an investigation into unrelated matters but found video recordings of the incident in Afghanistan on 15 September 2011.  It is understood that in the video footage ‘Marine A’ is heard to admit that he had broken the Geneva Convention when killing an insurgent.  That discovery by the RMP resulted in ‘Marine A’ together with others being charged with Murder.  The matter was tried before a Court Martial and in November 2013 ‘Marine A’ was convicted of Murder.

The Court Martial is a military court which has its current basis in the Armed Forces Act 2006.  It hears cases against service personnel form all three of the services.  Proceedings are presided over by a Judge (who is called a “Judge Advocate”) and there is a Board consisting of between three and seven officers and warrant officers (who take the place of the jury); the size of the Board depends upon the seriousness of the charge(s).  The Court Martial may try any offence against service law (section 50(1), Armed Forces Act 2006), which includes all criminal offences under the law of England and Wales (see Section 42 of the Armed Forces Act 2006).  The Court Martial operates much like the Crown Court (although there are notable differences) and matters of law are determined by the Judge Advocate while matters of fact (including innocence and guilt) are a matter for the Board.  Matters are prosecuted before a Court Martial by the Service Prosecuting Authority.  The SPA an independent tri-service body which is staffed by qualified lawyers who are drawn on secondment from the Legal Branches of the Army, Navy and RAF (all of whom are commissioned officers in their respective service).  The SPA is independent from the chain of command and operates along similar lines to the Crown Prosecution Service.  The SPA is under the superintendence of the Attorney General of England and Wales to mark its complete independence from the Chain of Command.

Following upon ‘Marine A’s’ conviction for Murder he unsuccessfully appealed his conviction to the Court Martial Appeal Court.  Thereafter an application was made to the Criminal Cases Review Commission which has subsequently made a reference back to the Court Martial Appeal Court.  For completeness, the judges who sit in the Court Martial Appeal Court are those set out in Section 2 of the Courts-Martial (Appeals) Act 1968 and include the judges of the Court of Appeal of England and Wales, such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose, and such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

The Judgment of the Court Martial Appeal Court discloses very limited details about the nature of the appeal before it; however, it would appear that Blackman’s lawyers are arguing that new psychiatric evidence produced renders the conviction for murder unsafe.  In terms of a disposal the Appellant is seeking, it is that his conviction for murder be quashed and either substituted with a conviction for Manslaughter or a fresh trial ordered.  In essence, the Appellant is not arguing that he is wholly innocent – he is arguing that he was criminally responsible for the death of the insurgent but that his responsibility was diminished and therefore he is guilty of Manslaughter rather than Murder.  The Prosecution do not accept this and maintain that the conviction for Murder is the correct conviction.

In short, what we had is a person who served in the armed forces, who was investigated by members of the armed forces, prosecuted by members of the armed forces (acting independently from the Chain of Command) and thereafter convicted of murder by members of the armed forces seeking Bail pending an appeal in which he hopes his conviction for Murder will be substituted with a conviction for manslaughter.  When assessing the case of Marine A it is my view that we must do so with that short summary in mind.

In terms of Bail, the prosecution was neutral on the matter.  As we know, the Court Martial Appeal Court refused bail.  The test for bail, rightly and sensibly, for a person who stands convicted of a crime is entirely different to that of a person who is yet to stand trial.  The presumption of innocence does not apply following conviction.  The test that the Court Martial Appeal Court applied is set out in Paragraph 18 of its judgment.  It is a very high test, as would be expected.  It is exactly the same test that would be applied to someone convicted in the Crown Court of Murder who was seeking bail from the Court of Appeal pending an appeal.

The Court Martial Appeal court determined that Marine A’s case did not meet the high test for bail to be granted and so Bail was refused.  I’m not an English lawyer and it is English criminal law that is applied by the Armed Forces Act 2006; however, I would have thought that those acting for the Appellant would have advised him on his prospects of success in his application for Bail and I suspect that neither he nor his legal representatives were surprised when Bail was refused.

The Court Martial Appeal Court appears though to be moving at breakneck speed in hearing the appeal.  The Criminal Cases Review Commission made the reference earlier this month and the Court is currently looking to have a hearing fixed for January or February 2017.  In an attempt to speed matters up the Court has severed the Appellant’s grounds of appeal and will deal initially with the primary ground of appeal (that being the one arising out of the new psychiatric evidence).  If the Appellant is successful on that ground the remaining grounds are irrelevant, if he is unsuccessful the Court Martial Appeal Court will hold a further hearing on those grounds of appeal.

While it may have been disappointing for the family, friends and supporters of ‘Marine A’ that his application for Bail was refused; it is important that the decision is seen in its context.  Furthermore, even if Marine A is successful in his appeal there is no guarantee that he will be immediately released from prison.  If his conviction for Murder is quashed and replaced with one for Manslaughter the sentence will also need to be substituted; it may well be that Marine A will need to serve further time in custody.

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

Beyond Reasonable Doubt: An unfair advantage to the accused?

In the wake of the dismissal of the case against Shrien Dewani in South Africa, Dan Hodges has written a piece on the Telegraph website questioning the criminal standard of proof.  I will write this blog post from a Scottish perspective, but the general points will apply equally to most ‘western’ legal systems.

There are two burdens of proof recognised before the courts: the criminal standard, which is “beyond reasonable doubt” and the civil standard, “on the balance of probabilities”.  What we are concerned here with is the criminal standard of proof, and particularly whether it weighs the system too heavily in favour of the accused.

Before going further, it might be helpful to set out what beyond reasonable doubt means.  In his comment piece, Mr Hodges, asserts that in order for the prosecution to secure a conviction against an accused they “must prove beyond question the guilt of the accused.”  This is not the case, and overstates the standard of proof.  The criminal standard of proof does not require there to be no doubt at all, only that there is an absence of reasonable doubt.  What this means is that the accused is entitled to the benefit of any doubt which is based upon reason and commonsense following a careful and impartial consideration of the evidence (and the lack thereof) presented to the court.  The doubt, as Lord Justice-Clerk Cooper put it in Irving v Minister of Pensions, should be something more than “a strained or fanciful acceptance of remote possibilities”; Lord Justice-Clerk Thomson said in McKenzie v HM Advocate  that it is something “more than a merely speculative or academic doubt”.  The finder of fact (the jury or the sheriff/Justice of the Peace) doesn’t have to be convinced beyond doubt that the accused perpetrated the crime alleged, only to the point where he has no reasonable doubt.

There are a variety of reasons as to why there is such a high standard of proof in criminal cases.  One of those reasons is the consequence of a guilty verdict in a criminal trial.  As Jones and Christie put it in Criminal Law (4th Edition), “conviction certainly entails more than a mere finding that, e.g. “A killed B”.  This in itself is a legally neutral statement…The Prime function of the criminal law is that of articulating the circumstances under which it is justifiable to hold a person punishable for his conduct.” (para 1-13).  In other words, with the criminal law we are going beyond a situation where we are simply ascribing liability to concluding that a person’s conduct renders them liable for punishment.  That punishment can be severe, it could result in a person being deprived of their liberty for a lengthy period of time.  A finding of liability in a civil case does not generally result in the liable party being punished; there may be a requirement to compensate the party that they have wronged to try and place them back into the position they were in before the wrong occurred (or to place them in the position they would have been in had the wrong not occurred), but that is manifestly different from punishment.  The stakes are much higher and as such it has been the position that the standard of proof must also be higher as a consequence.

It seems unjust to punish someone, in the severe ways open to the criminal justice system, on the basis that it is merely more likely than not that they committed the crime alleged.  A system whereby an accused person could be convicted merely on the balance of probabilities would inevitably result in the entire criminal justice system being brought into serious disrepute as individuals would routinely be convicted where there are sensible and logical alternatives to their guilt based on the evidence which was heard in court.

It has long been the case that the justice system has preferred to see guilty men walk free than an innocent man be unjustly punished.  This is not some ‘liberal, leftard, hand-wringly nonsense’; it is a centuries old principle and can be found in times where liberal principles were about as far away from the justice system as was possible.  We’re going back to the times of gruesome public executions for the most minor of crimes, to where transportation was still a sanction open to judges and to where prison conditions were probably more horrible than even the most right-wing member of society would care to suggest today.  Moreover, is it’s a principal which is a recognised international standard and features in what most people would consider to be “decent” legal systems.  This principle is another reason for the high standard of proof in criminal trials and is linked closely to the idea that a finding of guilt in a criminal trial opens up legitimate punishment upon the offender.

We’re probably all familiar with the concept of an accused person being innocent until proved otherwise (even if, as a society, we don’t always hold to that with our quick condemnations upon those suspected or accused of crimes).  The burden is placed squarely upon the State for a number of reasons, not least an equality issue.  The State is vastly better resourced than an individual and it can call upon those resources when trying to prove that someone “did it”.  The State has professional investigators in the form of the police, and teams of specialist lawyers to prosecute the case in court in the form of the public prosecution service.  While those services, in the UK at least, are suffering from a considerable cut to their funding, those resources continue to vastly outstrip the resources of the accused who has only his (small) defence team to counter the might of the State.  Lowering the Standard of proof would inevitably lead to the accused having to prove things that he does not currently have to prove.  Of course, it is presently the case that an innocent accused facing an overwhelming case against them would be sensible to offer evidence as to why the State is wrong; however, in a system where the standard of proof was merely whether it was more likely than not that the accused had committed the crime it would almost always be the case that the accused would have to be disproving the States case (or, to put it another way, prove his own innocence).  It would eat away at the presumption of innocence and would result in a great inequality between the State and the accused.

Does the criminal standard of proof weight the system in favour of the accused?  I suggest no.  What it does, I suggest, is merely rebalance a system that without it would unfairly favour the State with its huge and specialist resources over the extremely limited resources of the accused.

The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.

Criminal Justice (Scotland) Bill: Stage One Debate

CJSB14Yesterday the Scottish Parliament had its Stage One debate on the Criminal Justice (Scotland) Bill, and the quality of the contributions from certain members was depressingly poor; some contributions are worthy of note because they were of a standard which should be seen from all members: John Finnie (IND) and Patrick Harvie (Greens) to name two.

Like many, I am of the view that corroboration does represent an important safeguard against wrongful conviction; however, I am not so wedded to the idea that I cannot see life without it. I do have a number of concerns though.

Firstly, there has been a lot of talk about cases not getting to court because of corroboration and how that limits access to justice for Complainers. There are two important factors to consider here: (1) it also limits access to justice for suspects. Even an arrest/detention (especially for something like rape) can be enough to permit a ‘bad smell’ to hang around the accused. (2) There will always be cases that do not proceed to trial because of a lack of sufficiency in the evidence. Removing the requirement for corroboration will not suddenly mean that every single case will proceed. Trials, especially High Court trials, are expensive and while justice ought not to be about money, it would be naïve to think that money doesn’t play a part – on a financial basis alone it would be impossible to have every case prosecuted.

What about this brave new world post-corroboration in Scotland? A lot has been mentioned in the debate about complainers in sexual offences and domestic violence cases; corroboration does provide assistance to these Complainers (although this point is almost never mentioned). It ensures it is never the case of the Complainer’s word against that of the accused. Where things get tricky in terms of rape complaints is around consent. There has to, as the law stands today, be corroboration of a lack of consent. Where does that come from? Lots of places: changes in behaviour by the complainer or third party evidence of the Complainer’s distress for example.  In such cases where evidence of distress is not available it would place even more stress upon the Complainer as it will be down to no more than who the jury believes more: the complainer or the accused.

Now, so far I’ve yet to deal with why I am actually against section 57. My main opposition to it passing in this Bill is the outstanding Bonomy Review.  The purpose of this is to work out the additional changes that will need to be made to the law of Scotland following the removal of the requirement for Corroboration. Let’s be clear this isn’t a minor technical change to the law of Scotland; it is absolutely fundamental. As such it is only right and proper that the Scottish Parliament knows what it is changing the law of Scotland to before they vote on such a fundamental proposal. Also, the very existence of the Bonomy review shows that the Parliament are voting on a partially thought-out proposal.  The setting up of a review to fix problems with legislative provisions, before they’ve even been voted on for the first time by the Scottish Parliament, should cause alarm bells to ring in the minds of every single Member of the Scottish Parliament.

Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0
Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

During the debate yesterday Sandra White MSP made the preposterous suggestion that not abolishing the requirement for corroboration in this Bill was kicking the matter into the long grass. She was concerned that there would be insufficient time to deal with the matter before the next election, due in May 2016. The Bonomy review is due to report early next year, giving the Government and Parliament up to 15 months to draft a Bill and pass it; hardly a shortage of time!  Furthermore, the Cabinet Secretary has said he won’t be enacting section 57 until such times as additional safeguards are introduced. The reality is; it’s probably going to be at last a further 18 months before this section is actually enacted. Whether it is passed now, or in 2015 will make little difference, it’s unlikely to be fully enacted before late 2015 or early 2016 anyway. Therefore, there is no good reason as to why Parliament cannot consider the full package (i.e. abolition and the full package of safeguards together). Indeed, passing legislative provisions which Parliament knows are incomplete and not fully thought through is not what MSPs are paid for. This is not how a serious Parliament in a mature democracy ought to function.

What has struck me most about this debate is the way in which highly emotive cases have been used as the justification, and this has polarised the debate. This has lead to deplorable suggestions by some, such as Christina McKelvie MSP, that those opposing the move to abolish the requirement for corroboration were against victims of rape and domestic violence. Her exact wording was:

There is a significant number of victims of sexual violence and domestic abuse whose cases do not go to court. In the past two years, that has affected 2,800 cases of domestic abuse and 170 rape cases. The Tories, the Liberals and—astonishingly—the Labour Party might be happy with that, but I will not have that on my conscience.

Such suggestions are utterly unacceptable in Parliament by MSPs; in making that statement Ms McKelvie demeaned herself and demeaned Parliament. Quite simply it was shameful and completely indefensible behaviour.  She is not alone, some vocal people connected with various womens’ charities have been similar suggestions.

MacAskillKenny
Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

Finally, I turn to Mr MacAskill’s equally shameful closing statement in which he painted the opposition to section 57 as a ‘Better Together’ pact against the SNP. This ignores that Christine Grahame abstained on both votes, and that Patrick Harvey and John Finnie (both ardent supporters of ‘Yes Scotland’ and the later a former SNP member) both voted for the amendment proposed by Margaret Mitchell after also speaking against the Cabinet Secretary’s position  in the debate. The Cabinet Secretary’s suggestion that everyone not with him is against Victims of crime was another outrageous slur; indeed I heard not one speech in the debate that could have been characterised as being against victims. Everyone speaking in favour of Margaret Mitchells amendment was essentially saying this: we need to ensure that we retain an acceptable balance in the justice system that ensures safe convictions. That brings us to the nub of the issue: we must ensure that when people are convicted of crimes, especially ones that will inevitably result in lengthy custodial sentences, that those convictions are safe. It is not good for a victim to see someone convicted of an offence against them just for the Appeal Court to come along and quash that conviction.

We have to ensure that balance remains in the system, and the Cabinet Secretary’s position does not allow for that. It is not acceptable for Parliament to vote on such fundamental matters when they are incomplete with only a promise that sufficient safeguards will be introduced (by way of Secondary legislation which bypasses the full and rigorous scrutiny of Parliament) in due course. The Cabinet Secretary’s position is untenable on this issue, and he must remove section 57 from the Bill re-introducing it in Primary legislation alongside whatever other reforms Lord Bonomy proposes.

Another blog on Corroboration

Corroboration has been part of the law of Scotland for many, many centuries.  The corroborative requirement used to apply in civil cases, and not just criminal cases.  The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force.  The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.

The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports.  The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”.  That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”.   There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.

In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland.  The abolition of corroboration in Scottish criminal cases is a major reform.  It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review).  A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.

As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform.  Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration.  For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights.  With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered.  It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.

While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial.  However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced.  Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused.  That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.

We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system.  If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.