The Football Act's iffy conviction rates...

Last Friday, the Scottish Government published this statistical research on the operation of the Offensive Behaviour at Football Etc (Scotland) Act. The paper looks primarily at charges communicated to prosecutors by the police, the characteristics of people accused of hateful, threatening and offensive behaviour in relation to football, and the where, when and how of their alleged offences. 

It covers the first financial year in which the new Act has been in force, between 1 April 2012 and 31 March 2013.   Because of the small number of folk charged and prosecuted, more detailed figures are not generally available for the outcome of proceedings in cases taken under section 6 of the 2012 Act, which criminalises sending threatening communications via twitter, facebook and what have you. 

You may recall that back in March, the Lord Advocate and Justice Secretary hailed the effectiveness of the new measure one year on, placing considerable emphasis on the number of cases prosecuted, and the percentage of accused people who're found guilty of having committed the new offences. Just a few months back, Kenny MacAskill argued that:

"... the charge and conviction rates for people arrested under this legislation show that it is working well." 

A claim echoed by Scotland's chief public prosecutor:

"The Lord Advocate, Frank Mulholland QC, has said that the legislation is being used to good effect by police and prosecutors. So far 89 per cent of the cases reported to the Crown Office have been prosecuted, and the conviction rate stands at 83 per cent. Figures from the first full year of the act are still being collated and analysed and will be published after the end of the football season."

Now, one might wonder whether rates of conviction are really the best guide to the efficacy of any piece of criminal legislation.  What is most striking in Friday's research is that the healthy prosecution and conviction figures MacAskill and Frank Mullholland relied on in defence of the Act in March aren't borne out across the Act's first full year. Taking the whole year figures, government researchers found that:

• Court proceedings were commenced in 219 (82%) of charges communicated to prosecutors under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
• During 2012/13 there were 62 convictions from 95 concluded charges under the 2012 Act.

As paragraph 3.27 of Friday's report concludes:

"This is a conviction rate (ie the proportion of concluded charges that resulted in convictions) of 65%.  In 2011-12 there were 25 convictions from 33 concluded charges, a conviction rate of 76%. For the full period of the first 13 months of the act, there were therefore 87 convictions from 128 concluded charges which is an overall conviction rate of 68%."

Even the most mathematically challenged of us shouldn't struggle to ascertain that the real conviction rate under this legislation in 2012/13 is a substantial 18% lower than the more congenial figure of 83% rolled out by MacAskill and Mullholland in March. Even including the months it was in force during the 2011/12 financial year only nudges that conviction rate up a trifle.

To put this conviction rate in some sort of context, we can look at the Scottish Government's official figures for the outcome of criminal proceedings in Scottish courts. Over all categories of crimes and offences, the Procurator Fiscal proves their case against 87% of accused people who end up in the dock. This data is also broken down by different offences.  For example, 83% of homicide trials, murder and culpable homicide, end in conviction of the accused.  At the other end of the spectrum, of rape and attempted rape trials, just 53% result in conviction.   

The conviction rate for all non-sexual crimes of violence in Scotland is higher than the offences created by the 2012 Act. The conviction rate for all crimes of dishonesty in Scotland is higher than these new football offences. Indeed, according to the latest figures, of all categories of crimes and offences, only rape and attempted rape cases record a lower percentage conviction rate than the 65% recorded under the Offensive Behaviour at Football legislation last year.  

If, as Kenny MacAskill and the Lord Advocate suggest, conviction rates are an important factor to be taken into account in evaluating the effectiveness of criminal statutes, the Football Act's relatively very poor performance in 2012/13 ought to be a source for anxiety, and not for reassurance.

Radio Silence

We regret to announce that the podcast cancelled due to fine weather.  Just a wee housekeeping announcement. Devotees will have noticed that our weekly For A' That podcasts have been conspicuous by their absence these past two Sundays.  In the first instance, this was attributable to an uncharacteristic outburst of British summertime. The lonely sunny Saturday in June is no time to be cooped up with headphones, anatomising the constitutional debate. 

In the second instance, I was oot and aboot at a friend's "stag" weekend this weekend, my effort focussed on sustaining a tolerably convincing veneer of masculinity in deference to the occasion.  Incompetence-permitting, Michael and I should be back on air with another guest, and more Scottish political blether, this weekend.

Beyond The Cringe?

I vividly remember the moment when I first realised that social confidence is created not begotten, not an accident of individual psychology, but in great part, something we manufacture in the assembly lines of culture, family, and school. 

I must have been about sixteen or seventeen years of age. The scene was somewhat out of the usual run, though no great shakes. Part of the Young Enterprise scheme, pupils from a range of Glasgow secondaries congregated in a school hall, somewhere in the city. Formed of students from both state and private schools, representatives of the latter were coded in woollen blazers, dark and light blue, and green. The majority of state school students generally not. Initially, understandably, folk kept to their phalanxes and their friends.  An end was swiftly put to that.

Some diverting "team-building" enterprise, I think it was intended as, the six or seven schools were split up and muddled together for the task.  After half an hour, mission complete, a representative from each group had to take to their hind legs, and report back to everybody on their progress.  For most folk, this might seem a daunting enterprise, extempore speaking in a room festooned with unfamiliar faces. 

When the reports came in, familiar face after familiar face rose to address the assembled.  Blazer after blazer stood.  Most were boys.  Forgetful memory may be playing me false, but only a handful, only one or two groups from perhaps twelve or more, nominated kids from state schools for their spokesmen. A Hutchesons' Grammar School kid, a young lady from St Aloysius, and another, and another. Now, I know public speaking isn't for everyone, and for many, the very idea of having to do so sends a tremor of anxiety snaking up the spine. But even as a callow youth, I realised that attributing this strict pattern of speakers to chance would be woefully naive and incurious. It is probably significant that none of the colleagues who I asked about it, brimming with thoughtless confidence, found this spontaneous order in any way strange. 

This could, of course, be interpreted in a number of ways.  The cynical might see the self-entitlement of private schoolers playing out in it, thinking they are born to rule, brashly taking over.  There's undoubtedly a bit of truth in that, but only a half truth. 

Private schools have their share of ghastly, cocksure thickheads whose limitations, personal and intellectual, do nothing to arrest their assertiveness. But the more significant question, it seemed to me, is how do we foster a whole generation of kids who feel encouraged to speak out, to elbow past the ordinary emotional run of anxieties and inadequacies and speak up? Socially, how do we try to ensure that confidence and a sense of entitlement to speak and argue and make yourself heard is equally distributed across society, just as intelligence, wisdom, human decency and capacity for education is equally distributed? Having attended a wee primary school, of fewer than thirty five souls at its largest, I realise I'd come to take egalitarianism on this score for granted.  Folk obviously had different capacities and talents, but none of the appalling stratification of self-belief which unfolded, totally unremarked upon, that day in Glasgow. 

Worse, I found the same phenomena played out daily in universities, though here, I was more struck by the gendered pattern of contributions to my seminars.  In a recent interview in the Scotland on Sunday, Johann Lamont neatly skewered an experience I know several of my friends went through, only gradually realising that the big-haired public schoolboys in their classes were bladders inflated by hot air and shallow opinions. Their experiences also, inevitably, made me think twice about how I conducted myself in these spaces. If justice is concerned primarily with a just distribution of social goods, then space to speak has to be part of that.  Knowing your effect isn't always as straightforward as you'd like. In retrospect, at times, I dare say I'd have benefited from a slap. Or a gag.

On the first episode of Iain Macwhirter's Road to Referendum series of documentaries for STV, focussing on the period between 1945 and 1979, a number of speakers invoked the idea of the "Scottish cringe".  The concept made an appearance on the second episode this week too.  It has set cogs whirring. For my part, I've never shared in that inadequate sensibility, which makes me wonder if it is partly a generational thing which finds little purchase amongst those, like me, in their twenties and younger.  Contrawise, I wonder if my own experience is a false friend in this respect.

In my upbringing, there was no sense, for example, that speaking Scots was disciplined or to be regarded as improper, as I've spoken what you might call Scottish standard English throughout my life.  There is also, it seems to me, a significant dimension of geography and social class in the particular articulation of Scottish cringe which Elaine C Smith and others identify in Macwhirter's film.  Pared back, Smith expressed a sense that during the late part of the 20th century, west-central Scotland working class voices were missing from the public sphere, from drama, broadcasting and much else.  I've shallow roots in both, being by childhood rural, and until my middle twenties, rejecting the idea of class distinctions altogether as irredeemably reactionary, incapable of shedding useful light on our social and political circumstances.  Since, in the light of experience, my views have evolved, but if I was to feel a Scottish cringe at all, it would be unlikely to take either form. 

So which do you think it is? Are younger folk slowly, gradually, throwing off the shackles which bound their parents, going more confidently, more buoyantly beyond the Cringe, or is its lack of purchase just another coda of my entitlement and privilege?

The positive case for the Union: British nationalism?

Last week, the pro-Union campaign launched Better Together London, with an event in the Great Hall, 1 George Street, London.  The BBC has popped highlights online, including remarks of short compass from representatives of the three main parties, including the Tory peer, Lord Strathclyde, Danny Alexander and Alistair Darling (including many of the same gags that got the Scottish Tory Conference in Stirling cackling, I notice). 

Almost to the day, last year, I took a look Ed Miliband's first proper speech on Labour's approach to the defence of Union. I argued that Miliband's positive case against perfidious Scottish Nationalists was strikingly nationalistic in content itself.  A departure from the amorphous "welfare Unionism" you usually hear from Labour politicians, in the speech Ed lingered most and most feelingly over his sense of Britishness, suggesting that if voters feel any speck of British sensibility at all, they ought to vote No in 2014.  According to the Labour leader, at its core, the referendum is about whether you feel British.

I was interested, therefore, to hear what the Liberals and Tories had to say at the launch of Better Together London. What positive case, if any, would they make for the Union amongst friends?  I'm not one of those independence supporters who believes that no positive case can be made for the abiding Union of Scotland with the rest of the United Kingdom. There are several one might make, drawing on radically different ideological resources, from the politics of shared identity and national sentiment, to broader political ideas about the pooling of resources, a just distribution of public goods, and collective defence, both against external threats, and the internal enemies of poverty and want. 

To be scrupulously fair, none of the speakers had much time to speak, and doubtless, given the opportunity to elaborate their case, each would have offered up more developed arguments, weaving different strands together.  On the other hand, brevity also focuses minds, and reveals priorities.  So what did the speakers have to say? What ideas did they foreground? First up was Lord Strathclyde, who sourly characterised the campaign for Scottish independence as "this poison at the heart of British politics", which should be "eradicated once for all" by a thumping No vote. His Lordship began, however, on note borrowed from Ed Miliband. It's all about identity, you see.

“In the great lottery of life, I was handed a double gold. Not only was I born a Scot, but I was also born a Glaswegian, and I’m proud to be a Scot, and a Glaswegian, but I’m also proud to be British. It is part of my identity. And one of the things I object, most of all, to this campaign that we’re going to go through, that if it goes the wrong way then I, and people like me, will be forced, by law, to make a choice that I’ve never had to do before. Because no longer will it be possible to be Scottish and British. This is part of the outrage that nationalists have put upon us. When I, as so many of you, are here today, as patriotic about Scotland, and about the United Kingdom, together.” 

Interestingly, Danny Alexander also commenced on a similar note, again foregrounding issues of identity in his contribution:

“Like you, I’m a Highlander, I’m a Scot, I’m a Brit – and I’m a European too. And what – like I think everybody in this room, all of those different identities are important to me. And, if, you've come here tonight because being Scottish is an important part of your identity, whether you’re someone like … er … those of us who are speaking tonight who have a vote in the referendum, or whether you are someone who will not, I urge you all to get involved in the Better Together campaign (…) Like many of you, I have close ties both in Scotland and in England. I’m someone who as Mary has revealed, spent my school days in Lochaber in Fort William, at Lochaber High School. University in England, in Oxford. I'm a Scottish MP, I serve my constituents in Inverness, Nairn, Badenoch and Strathspey, and I serve the whole of the United Kingdom as a member of the government. And for all of those reasons, I believe very strongly that being part of the United Kingdom offers us, as Scotland, huge advantages in the 21st century, and I believe that Scotland, as a part of the United Kingdom, offers advantages to the rest of the United Kingdom too."

What should be immediately striking is that these are mainly points of identity and biography, not exactly reasons why the United Kingdom should remain united, without the admixture of a little sentimental British nationalism.  Every one of us can easily roll off our own list of entanglements in these islands, and outside of them. I spent my school days in rural Argyll, then Glasgow, went to university in Edinburgh, then the Netherlands, then at Alexander's alma mater in England, and live here now.  So much, so indeterminate constitutionally.

I'm conscious, for reasons I outlined recently, that I'm not at my most empathetic when it comes to my fellow Scots sense of Britishness, however thin.  It is, I suspect, a blind spot for many Scottish Nationalists.  I don't criticise this sentimental case against independence.  I may not feel British, but I'm an independence supporter with regrets and am not without pangs about the project. But can British nationalism really be the effective positive story for Better Together to tell, in between their rhetorical bombing raids and strafing fire on the viability of an independent Scotland? Identity, identity, identity?

Several commentators have remarked on the paradoxes of the current constitutional debate. In much of the London media, aspirations towards Scottish independence are cast in child-like forms, depicted by turns as quaint and sinister, an atavistic ethnic project animated by hatred of the English and a juvenile expression of Caledonian whimsy which sober, serious-minded folk shouldn't entertain for a moment.  Nice legalisms are exchanged, distinguishing Scottish nationalism (Bad) and British patriotism (Good). George Orwell is often quoted to lend a veneer of intelligence and authority to this self-serving pettifogger's distinction, though usually only in summary, and invariably without reference to the idiosyncratic definition of nationalism which Orwell actually employs in his Notes.

Scottish Romanticism is set against gritty British technocracy and political fatalism.  British Romanticism, by contrast, is unexplored, passed over in silence. This scoffing rejection of Scottish independence as a credible political project serves a useful but profoundly conservative ideological function: it avoids any serious confrontation with the idea that the way Britain is ruled may be problematic. It's all just a little irrational bother on the northern frontier. 

Bloody nationalists.

The Wasp Factory

I was brought up in The Wasp Factory. 

Well, not quite. My childhood in Argyll was, mercifully, rather less demented than Iain Bank's tale of Frank Cauldhame. Set along an unidentified coastline in the 1980s, near the fictional town of Porteneil, the transposition of Iain Banks' first novel to the area in which I grew up was beguilingly easy. Strung along the west coast of Knapdale in Argyll, the paps of Jura jutting out of the water, the community and the landscape populated Banks' narrative with familiar faces, erecting Frank's Sacrifice Poles on beaches I knew, in dead woods I hurried through. For his home, I recruited an unfortunate neighbour's house, bleached white. 

In retrospect, it was my first encounter, ever, with a fictional narrative, recognisably connected to the experience and eccentricity of the sort of rural, west-coast community in which I grew up.  I suspect many Scots have felt similar moments, transported by literature to somewhere they recognise, reconfigured - the thrill of Alasdair Gray's Glasgow in Lanark, finally "living in a place", imaginatively.  For that, we have much to thank our artists, whether on paper, on stage or on screen.  It is an oddly castrating thing, never having seen your own life reflected in art, and even odder that so many folk aren't sensitive to their own absence. 

Perhaps more wonkishly, I also think fondly of the book as a recent period piece, a drama from before the internet age, a drama which the iPhone obliterates. Frank's malevolent innocence, ignorance and isolation can only be penetrated by unreflexive broadcasts on the telly, the settled texts and topics of books tucked about his father's house - and more explosively - the unexpected, unmanageable intrusion of the phone-box calls from Frank's ever-approaching brother, with his undercurrent of instability and inflammatory hostility to man's faithful friend. Although I was growing up in Argyll in the early 1990s, just riding the wave of computerisation and the popular availability of the internet after I left, I doubt now that Frank's experience of stultifying isolation, quirkily and troublingly layered by Banks, is a phenomenon most young rural folk could so fully identify with today.  Although first published two years before I was born, in 1984, the world of The Wasp Factory was recognisable throughout my early adolescence.

I also recognised that my childhood had a certain unsettling, juvenile cruelty and morbidity to it, which Banks' protagonist only refined, amplified, and ritualised.  We were bred up rather worldly on the estate about the bodies and mortality of our fellow creatures.  Save for the ruddy, dented form of an unlucky fox, or a crusted summer toad, in towns such spent husks are pried speedily from the tarmacadam, so they won't trouble the city children.

Boys in the not-quite-wilderness, treading lonely beaches, we were surrounded by the stuff of life and death, and like Frank Cauldhame, found repulsion and curiosity both in the garrotted rabbit, choked under a foxglove, and righteous glee in planting a stone in the aspic flesh of a jellyfish.  We were oddly fascinated by the punctured form of a deflated whale, headless, washed up, or the slumped carcass of a crack-backed sheep, unfortunate enough to lose its footing, a sagging putrefying aftermath of wool, claggy in a stream. And grateful for the warm bodies of pelleted pheasants, knocked out of the sky by tweedy gentlemen on cold winter days, and nervous in the hanging rooms, as decapitated deer bled out.  Death was official, and organised, but also furtive, individual and exploratory. A ginger prod, a wrinkled lip, and the prurient curiosity of a little monster.

The Wasp Factory was a disturbing window into the savage strain of my own childhood.  A wonderful - and wonderfully uneasy - gift from a talented man.

"... we are against the UK Supreme Court..."

Remember Cadder? Not, perhaps, the First Minister and Justice Secretary's finest hour.  In 2011, in response to the UK Supreme Court's judgment about the right of suspects to legal advice, the two SNP politicians turned their rhetorical dials all the way up to eleven.  Salmond argued that:

"I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court.  It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation."

Farcically, the Scottish Government went on to oppose the idea of installing a Scottish majority on the Court.  Since, they've been avoiding the topic of the Supreme Court's jurisdiction for grim death, entangling the issue in technical, unpolitical language, having secured amendments to the Scotland Act of 2012, constricting the rights of folk in criminal proceedings, to take their human rights cases to London when they've been disappointed in Edinburgh.  

In the meanwhile, civil justice is being shaken up across the country and the question of civil appeals from Edinburgh to London is now back on the political agenda.  In May 2012, I set out the - I think persuasive - legal case that the Scottish Parliament can now unilaterally cut common-or-garden civil appeals from the Court of Session to the UK Supreme Court, if the SNP government had a will to do so. While Holyrood doesn't have the legal power to end appeals to London on the basis of EU law, the European Convention on Human Rights, or devolution more generally, the parliament could bring the treatment of Scottish civil cases into line with Scottish criminal proceedings. 

Save for this sort of "constitutional" litigation turning on fundamental rights or European law, Scottish civil and criminal cases could end in the Court of Session and High Court respectively, if the SNP majority exercised itself.  There are plenty of understandable reasons to justify doing so, not least that a decision of the UK Court on appeal invariably involves the review of a judgment of three judges of the Court of Session by the Supreme Court's two Scottish Justices, who corral the English majority on the bench into mutely endorsing their preferred decision.  

What's more, although both Scottish civil and criminal law are distinct from the English system, the gaps in the UK Court bench's judicial knowledge of civil law are likely to be at least as significant as their ignorance of Scots criminal law.  Property law furnishes the paradigm example, the English system an eccentric mixter-maxter of principles of Common Law and Equity, the Scots a more systematic body of norms, organised along Roman lines. An English judge - or three English law judges - are not likely to be in their element, adjudicating tricky cases taken under great parts of Scots private law.  Better, one might argue, to leave it to specialists.

Curiously, despite the Scottish Ministers' past forays into superheated indictments of the Court's legitimacy, and anxieties about its English-educated majority, last week the SNP government launched a consultation on its proposals not only to retain the UK Court's civil jurisdiction, but to allow the tribunal (and alternatively, the Court of Session) to pick and choose which cases it examines on appeal. 

At the moment, Scottish litigants access the UK Court on more favourable terms than English, Welsh and Nothern Irish litigants, and do not have to demonstrate that their case raises an "arguable point of law of general public importance which ought to be considered by the Supreme Court at that time". Ironically, the SNP are, once again, proposing to bring us into line with English practice in this respect, Ministers' criticism of the jurisdiction of the Court, forgotten. 

In 2010, SNP MSP Stewart Maxwell told the Scottish Parliament that:

"... we are against the UK Supreme Court. We were against it when it was created: we have been against it from the beginning and we are against it now. It is Labour’s folly."

From the same debate, another SNP MSP, Dave Thompson, said:

"The UK Supreme Court was established in October 2009 to deal with civil matters, despite opposition from the SNP. We warned that it was irrational for a court without a majority of Scottish judges to decide on cases involving Scots law. We also pointed out that the practice of hearing Scots civil cases in the House of Lords was a historical anomaly and that that role should be repatriated to Scotland. What other legal jurisdiction allows its appeals to be heard in another jurisdiction?  Unfortunately, the previous Labour-led Administration failed utterly to stand up to Westminster and protect the independence of Scots law."

I wonder if we can expect Maxwell and Thompson to turn the same great guns on their party colleagues, who now seem so keen to retain and entrench the "anomaly" of London's civil jurisdiction, which they once so bitterly opposed.

Of Hoy, England, and the SNP's zombie economics...

On episode twenty-seven of the For A' That podcast, Michael and I were joined once again by the irrepressible Robin McAlpine of the Jimmy Reid Foundation.  

Up for discussion on the show today, Scotland's press fell over itself this week (dropping their iPhones in the process) to report the scandalous news that random punters on twitter responded less than solicitously to Chris Hoy's intervention in the independence debate, snarking his politics, citing his privileged education and in one, bonehead case, using the language of treason.  We discussed the political strategy behind Better Together's "cybernat" strategy.  Robin argues that this isn't half so canny as they think it is.

Moving on, we looked at the SNP's position on an independent Scotland's approach to charging corporation tax.  Although I had the misfortune to study tax law at university, I don't have strong views on the question, beyond a loose skepticism towards enthusiasm for Laffer curves, and counter-intuitive economics.  Robin sets out to persuade me that the policy is not only madness economically, but worse, perhaps, is zombie policy, adopted in a muddle and enjoying an unhappy, undead life in the SNP's case for independence.

Thereafter, the discussion bended back towards something we looked at a few weeks ago: UKIP, the Janus faces of English nationalism and the hostility of self-consciously British, metropolitan Liberals towards it.  I suggest that this attitude is both superstitious and politically perilous. All nationalisms are constructed, and for the left to forego participation in defining Englishness is to implicitly endorse the idea that Englishness is inevitably ethnically chauvinistic, the exclusive property of racists, George-crossed skin-heads.  A strategic mistake, I'd suggest. Robin ended by calling on supporters of the current Union to forego the idea that Scottish nationalism is primarily animated by hatred of the England. Move on, move on, his refrain.

You might also want to check out Comrade Greenwell's latest Scottish Independence podcast, in which he nattered away with Colin Fox of the Scottish Socialist Party, about his reasons for supporting Scottish independence.

You can download the show here, or via iTunes, sign-up for our RSS feed to ensure you don't miss any of our episodes, or alternatively, just lend your lugs to the show here.