The answer, it may shock and stun you to discover, has implications for penal policy which will dredge the bloated, tumescent carcass of the (un)learned Richard Baker MSP before the eyes of the unwilling Scottish public once again. Joy be! In the spirit of the statistical enthusiasm governing my previous post, the full publication can be read here. Expect a bit of moronic ballyhoo on the topic imminently. I’ve a sickening, heavy-coloned feeling that somehow, the phrase “If I was First Minister”… will be negotiating its pained way with ill-merited confidence out of Iain Gray’s tetanus jaw any day now from the well of a reconvened parliament near you...
31 August 2009
27 August 2009
Big, hefty quantitative research is uniquely empowered to give those comfortable assumptions a shoogle. Even if the aggregation of conceptual categories can be problematic, and leave us empty-handed in terms of the whys and wherefores which brings that state of affairs about, the social frame is sketched in in our minds. We know ourselves better. That at least is my polemic on the goodness of quantitative research, and the interest in the Scottish Household Survey 2007-08, published this week. Obscured by the froth and vinegar attending Megrahi’s release, the survey contains various interesting little sparkling motes of illumination into Scottish life, and per the report’s mandatory corny ante-title, Scotland’s People. Here are just a few of the statistics which caught my eye. For those of you who enjoy a good going bout of social research in your spare time, you can read the whole publication here.
One for the bloggers, this. We pioneers of citizen journalism and happily, among the digitally included. On the question of use, asked flatly, 68% of men use the internet, whether on a personal computer or at work, while 30% don’t. Amongst the ladies, 61% make use of it on the same terms, with a 7% hike in female internet non-use, up at 37%. On the phenomenon of the “silver surfer” in
On being cultural…
I’ve mentioned this before, in the context of unpopular operatics and balletics. The lassies are more cultural than the chaps, once again, with 77% of women getting up to something cultural, to only 67% of men. On the figure of reading, which I mentioned before, men continuing to be dismal, with only 57% of respondents reading for pleasure, opposed to 70% of women. This is a decrease on all counts on the previous figures. Marginally cheering news for Scottish Opera, with a swelling 1% increase on last figures, to 6& of the population taking an interest in howling Brunhildas and yammering hairdressers. Scottish Ballet, however, languishes stead on its 5%. The National Theatre of Scotland may be more cheerful, with 28% of the population up for plays and drama, including panto. A quarter of the population, however, enjoys “none of the above” even once across the year, including museums, galleries, the cinema, libraries, live music – or all the rest. A pretty grim life, that.
On housing tenure…
On housing tenure in 2008, 66% of householders were “owner occupied”, with 23% in social rented housing, 9% in private rented housing and 2% making some other arrangement. Contrast this with the figures from 1999, where the percentages were 61, 32, 5 and 2 percent respectively. Contrast this with the reported owner occupation rate in 1961, which was only 25% of the total. When mapped against the Survey’s cohort identified as the “15% most deprived”, the rate of home ownership within this category is 34%, with a much higher use of socially rented housing, at 57%. Interestingly, with this 15% excised from the whole, and the “rest of Scotland” is examined along the same lines, owner occupation runs at 72%, use of social rented housing 17%.
Particularly interesting, this. Asked, do you have a bank or building society account? 91% said yes, while 5% confirmed they did not, another 5% not owing up, one way or the other. Contrast this with 1999, when 86% of respondents confirmed accounts, while a significantly larger number – 12% - had no account in the household. Like much of the survey, deprivation seems to be a key variable. “4% of households in the 15% most deprived areas did not have an account of any kind compared with only 1% in the rest of
Savings or investments…
The survey also enquired about whether households had either of the above between 1999 and 2008. Rates vary a bit – and toughminded souls telling the researcher to stuff their question increase from 6% in 1999 to 9% in 2008 – but in the period a maximum of 54% of householders have any savings or investments between ’99 and ’08, while households admitting having no savings varies from a low of 37% in 2002/03 to a high of 42% in 2008.
Purchasing goods on credit…
52% of households have and have used a credit card from one of their collective wallets, while 34% use no kind of credit in 2008 – be it mail order schemes, charge cards, hire purchase or what have you. Peering into how credit relates to types of household – be they single adult, small adult, single parents, single pensioners or what have you – the single pensioner is the least likely to have a credit card (31%), and the most likely to make use of none of these streams of debt (54%), followed by single parents (46%).
On highest qualification…
24% of respondents in ‘07/08 had a degree or professional qualification. Splendidly, at this level, there is a basic gender parity with 25% of male and 24% of female respondents. Roughly the same % of the total, 23% have no qualifications – including O grades, Highers and equivalents. Given prevailing educational policies, the weighting of this towards the older cohorts is perhaps unsurprising, with 42% of 60 – 74 year olds and 56 % of those older than 75 have no qualifications.
On driving licenses…
Think everyone can drive? (I certainly can’t. Hate the hideous metal things.) Am I a lonely, incompetent, faintly emasculated soul? Apparently not! Only 67% of adults hold full diving licenses, of which 76% are men and 60% women. Among the young – those 16 – 24, 45% of chaps can legally tot their vehicle, 40% of chapesses can. That means that being driving-license bearing youth pitches you into the minority. Yeehaw.
On puffing fags…
Recorded averages put smoking rates at around 26% of men and 25% of women questioned. Among the “youff”, the percentages are higher, with 30% of male 16 – 24 year olds are smoke cracked, to 28% of nicotine-soused young women. Apparently, 58% of those classified as “unemployed and seeking work smoke”, while a massive 64% of those unable to work due to short term ill-health do so. Devil making smoky work for idle hands, there, I imagine.
On being Green…
No, the question is not whether you are yet another bald man, standing for public office representing the Scottish Green Party. Rather, and arguably, much more simply – the question – do you recycle? If so, what? Its pretty de minimus stuff – namely, did you recycle anything in the past month. But still, interesting to see changes in patterns. In 2008, 83% of households recycled some newspapery artefacts, an increase from a mere 45% in 2003. Given our boozy nation undoubtedly generates a good deal of glass bottles, a pleasing 70% of households chucked one of their old Merlot bottles into the recycling tubs, another increase on the 2003 figure of 35%. Interesting variations in whether folk recycle by what kind of house they live in, be it bungalow or flat.
That’s my selection. Plenty of other material in the Report's 200-odd pages to titillate and delight the quantitatively sensitive that I've left out. Equally, there are political implications associated with the data and in particular, the continuing exclusions associated with deprivation in Scotland. The detail serves to remind us of the consequences of deprivation in small places, and how far it acts to constrict access to public goods and society's cultural capital.
25 August 2009
This, it is submitted, is only proper. Whatever one makes of the final decision, it is difficult to argue that it does not fall within a zone of reasonableness. Indeed, the emerging focus on the decision-making process seems to underline the falling political temperature. Unexpectedly, others seem to have navigated themselves into hot water. One would assume, after the high pitch of his howls from the wilderness of the weekend, the august personage of Jack MacConnell might dust off his razor and wobble into Holyrood for yesterday’s statement. Not a bit of it, apparently. Pretty rum stuff.
Equally, I’m astounded by the number of commentators - blithely, bullishly - suggesting that ministers – both Scottish and British – should have taken any number of illegal expedients to prevent the release. In the European Court of Human Rights, the
3 Power to release prisoners on compassionate grounds
(1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.
(2) Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.
(3) The release of a person under subsection (1) above shall not constitute release for the purpose of a supervised release order.
Not a lot of law there, is there? That said, a few remarks. If opposition parties wish to do something “constructive” in response to the difficulties and procedural uncertainties surrounding what the decider in terms of compassionate release ought to do, they should consider reviewing the Act. Lack of parameters and the absence of a clear process is hard - both for the minister, and for interested parties. The oft repeated trope is that decisions under section 3 are “quasi-judicial”. I’m not a great fan of our politicians, metaphorically nabbing the wig, pulling on the scarlet robes and fumbling about for gavels. Equally, I believe that our judiciary is under politicised in certain crucial respects. A constructive response to this – perhaps most difficult of cases – is to follow through on the notion that having ministers make contestable decisions in terms of prisoner release may not be the most polite way of ordering the process. While it introduces a note of real responsibility to proceedings, given that the issues involved are actually relatively limited, relatively simple once you’ve set your mind to free the mortally ill, we should not be surprised Holyrood seems to have had little to say yesterday. It is in no position to interrogate the medical opinions. Does not seem to be objecting as such to the idea that those with an estimated three-month frontier to oblivion should be freed. All that is left is the process.
If this process has been so untidy, what might they do in response?
One obvious amending approach to the lessons of the Al-Megrahi decision is that the ‘quasi’ tag should be snipped off, and the power to order release relocated in one of
Alternatively, it may be that it is not possible to whittle down a sufficiently brisk court process. Given the relatively low number of releases, such a reform may seem unnecessary, ministerial judicial acting sufficient in the circumstances. But please, please – if you feel criticism is warranted, oh unhappy tribunes, be constructive for heavens sake! You'd have supporters, even the cosy surrounding architecture of a sound, principled basis for reform. Don’t just bore the hell out of everyone with your gloating critiques and the flattering supposition that all ills would be corrected, if only the august person of Richard Baker or Bill Aitken had been in the Justice Secretary’s office, or Iain Gray was tucked up in Bute House.
There is little point making the argument – nobody will believe you anyway.
21 August 2009
While obviously marking me out as not one for the triskaidekaphobics, I’m obliged to any cove or covess who voted for me. Despite some very worthy candidates exercising their right to conscientious exclusion - flinging a bone to the scrappy terriers who stayed in the game – for those of us disposed to generate screeds and screeds of eye-watering “cod Enlightenment” yap, its always helpful to find new ways to coax fresh souls through the blogging threshold. For the curious, the rest of the list can be espied here.
20 August 2009
Firstly, the length of his address was a bit of a surprise. No brief statement of decision-made, but rather, a lengthy outline of the too often intertwining issues of prisoner transfer and compassionate release. Full transcript available here. Various elbows were thrown – respecting recent criticism of his in-person visit to Al Megrahi in Greenock Prison for instance which, assuming the Jack Straw quote alluded to is substantive, will connect smartly with Labour critics. The longer statement was, I believe, a cunning move. It gave a sense of the trajectory, an impression of the process, of deliberation. What is more, there is a distinct risk that the more disclosing one is when addressing an issue and the clearer the minister is about his own position, the more the mind lingers around the issues involved. As I’ve often argued here before, how you disagree with someone is almost as important as whether you disagree with them. Proper criticism gives reasons, rationales. After debate on such a level, we can have respect for the disagreeing interlocutor, confident that they have approached an issue and reached their decision by following their own lights. Equally, the bright places afford no corners or nooks for those who disagree. They too are pressed into a disclosure. How would you have done things differently? Why?
Secondly, MacAskill was clearly directing his speech at the Scottish audience. This may seem obvious, given the limited ambit of the SNP’s electoral and political ambitions, but look again. Much – most – of the commentary on the decision will emanate from a London-based, dominatingly English media establishment. In Brian Taylor’s (sadly, rather shallow) recent bit on 10 years of devolution, cock-eyed Boris Johnson appeared, ruminating that “Scotland seemed further away” than it had done previously, that Scottish stories were not filtering through into the UK press as, perhaps, they might once have done. Locating agency here is crucial, however, and contestable. Boris framed the changes he perceived in terms of
The most important of the pair in the present instance, however, is the second. Media inattention and the media anonymity afforded to this alternative Scotland may divide our shared social capital generally, but obscures Scotland in England all the more significantly. Isolated Brigadoon Correspondents excepted, writing authoritatively on Scottish issues in London-based papers are not been a recent area of confidence or competence. Of course, this might not matter. If talkers and writers are disposed to address the problem more universally, namely should Megrahi have been let out of any prison anywhere on grounds of executive compassion, the debate will remain at that level. However, how can such a discourse react to the MacAskill statement? Perhaps predictably, to some objectionably, MacAskill located his decision with reference to what he perceives as a distinctly Scots cultural capital. He absolutely did not claim a monopoly over the works of mercy, but rather, codes his decision in terms of the (perceived) cultural importance of humanity in Scots public life. Some (I’m looking at you Scottish Unionist) may be primed to denounce this sort of stuff as inventive babble, fictionalising groupism, an attempt to staple the signed mandate for compassionate release to the Saltire. Up to a point, the empirical basis for such claims are always rather wobbly, can conceal unpleasant things, but as a generalised claim about normative Scottishness, I can envisage worse characteristics than an insistence that our justice should be tempered with mercy, and the hardfaces of our harshest (and fairest) judgements stand in paltry relation to the insistent tug of death at our elbow, calling us to follow him.
That is by the by. My brisker point was this. Precisely because of the way in which MacAskill couched his announcement in terms of a shared Scots cultural capital, locating his decision in the specificies of a Scottish experience, will undoubtedly strike strange notes in English jeremiads for or against this decision. How are they to take it? Clearly, they are not being encompassed by the way he was addressing it. Indeed, MacAskill pushed quite frankly against conducting the debate on the level of culturally-blind universals, where reasons could be exchanged along a single, flat axis. If he successfully couched his decision in these terms, listening Scots may identify with his comments, and the implicit national conceptualisation implied, while culturally detached observers, unable to identify with the commentary, may struggle to find the vitality in the vocabulary. Keep an eye out. Beyond these, of necessity, rather loose speculations of the implicit rhetoric of nationalism in small places, heaven knows how this one will run.
That being so, and in the spirit of spreading the huffy peat about a bit, I feel honour bound to alert those of you not already in the know about the decadent, peat-eroticising mischief afoot on the Hebridean isle of Lewis. Jock
18 August 2009
I posted previously about what I suggested might be the deliberate diffusion of information by the august Kenny MacAskill concerning the apparently imminent release of Al Megrahi. Watching the man himself on television, he certainly did not seem to my eye to be a chap standing with his trousers sagging, full of an unexpected and unanticipated gush of ordure. Certainly, his remarks flowed with their usual wending, ox-bow fluency. With MacAskill you never step into the same sentence twice. Indeed, listening to him speak, he clearly operates in an eternal verbal present, never certain what words passed his lips even a moment before, and equally uncertain what his next glittering phrase might be. My point, to be brief, is that he did not appear like a man anticipating the flood.
Nevertheless, I’ve been mildly taken aback by some of the coverage. I expected there to be robust exchanges in the rowdy writing press – totting up to a furore, a row – about the justice of the thing, about which I have my own doubts. Other opinion-flingers are all over the place. The coal-ventricled Telegraphist seems to object primarily because nobody has told him what is going on, crying “lack of clarity”. Magnus Linklater goes mildly nuts about the whole affair – or absence of final ministerial comment of the aforementioned affair – in the Times. Meanwhile, Tam Dalyell, who does not find the case for Megrahi’s conviction compelling, makes a profoundly chilling argument about what he believes actually happened in 1988.
Indeed, on the whole issue of compassionate release, my particular little conscientious compass darts hither and thither, indecisively. Here, roughly, is why. It is grotesque loftily to insist in the integrity of a system, despite all appearances. Only a fool would imagine an innocent person may not be clapped in irons, thrust into some concrete cave we all prefer not to consider. Like everyone else, Lockerbie furnishes me with few answers that I can scrutinise, instead relying on the authority-begging judgements of others, small flickering lights through the murk. Guilty, said the three judges in the
Crank up your telly and turn to the BBC News, however, and at some point you’ll bump into selected souls of the dear old Scottish public, sharing their views on the prospect of Megrahi being released. Opinion, representatively differs. Here, however, is one story one hears quite regularly. Says the woman, if he didn’t do it, I think he should be released. If he did it, he should stay inside. While this may seem like an obvious reiteration of the basic rationale and justification for incarceration, it isn’t. In the current matter, other considerations are stirred in. Putting aside the treaty provisions on transferring prisoners, focus on the much mooted compassionate relief, on an exercise of the executive prerogatives to mercy. See it in that context. The argument reassumes the following form. If he is innocent, he should receive compassion. If he is guilty, punishment should resume, even unto the last, bitter breath.
Over time, much has been written on the paradoxical relationship of justice with mercy. For Christians, and its ultimate, maximum God of both justice and mercy – the prompting, unanswerable question is how can the divinity absolutely dispense the full measure of both virtues? Do not the imperatives of justice and the imperatives of mercy at times conflict? If God is perfectly merciful, how can he be perfectly just? More prosaically, and to return our minds to our own godless deliberations, how should we determine when to be merciful? Is mercy reached by rules still mercy, or does it enter the strictures and precepts of justice? What seems clear is that a significant section of the general public are conflating one with the other, bundling the two threads into a disastrous tangle where justice determines whether or not we should be merciful. It shouldn’t. If Megrahi is guilty in law, that is a matter to be sought for in the mind of justice. If he is innocent, justice must throw open his cell door.
The exercise of clemency cannot be so restrained. Here, the question ‘should Megrahi be released’ becomes equally contested, but less entangled in unanswerable speculation on what happened that grim day, over Lockerbie. Put aside the man’s guilt or his innocence. Admit we have no idea. Now, should MacAskill undertake the works of mercy for a dying man? That last point is a particularly challenging one in the present climate, as Megrahi’s condition remains a largely unknown quantity. Crucially, we have no images of the man, no visual encounter to confirm the largely heatless announcement that cancer is claiming him. Does the extremity of the crime he was convicted for militate against the granting of mercy? Some people believe so. Yet approaching the problem in this way leaves one open to the rip-tide of uncertain justice, and the tumult we only just excised ourselves from.
In part, the progress of this argument is an expression of my own attempt to understand how I feel about the decision facing MacAskill. Perhaps predictably, I found myself being drawn into the debates about the justice of the matter, and in that maze, hastily lost. To everyone else, I'd commend the question "should we be merciful"? While understandable, the family members of the lost who ask "was Megrahi merciful to the victims" are imagining a false pairing. Mercy has no relevance for the innocent. For the guilty, or those determined to be guilty, mercy affords no tit for tat, precisely because it is not a manifestation of justice. That being so, I believe that we should release Megrahi, not because it is just to the deceased if he is guilty, because it isn't. Not because it is just to him if he is innocent - because its not. Enacting punishment on a man in the last throes is grotesque. We should be merciful if we simply determine that we should. While many of you will be familiar with the indomitable, sharp-featured visage of justice, brandishing scales and sword - you may have encountered fewer representations of her sister, Mercy. The imperatives to mercy are not so clean and reasoning as those commending justice. This second goddess lacks the uncluttered Palladian lines of the former, without the objective tools of measurement which are Justice' instruments. She is wild, contingent, simply herself. It is this feature which makes the decision to exercise mercy so difficult. Unlike the rule-governed, disposing formulae of contemporary justice, it is a real decision, every consideration unweighted, resolutely particular.
15 August 2009
However, our curriculum was in some measure even stranger than the Hitler-centric approach which the Consul criticises. Not for us the simple Nazis. We were lead down the whole porcine path – starting off with scheming Otto von Bismarck’s efforts to unify the various petty duchies of the disparate German states, progressing to the First World War, tarrying over the abortive Weimar Republic, delving into the Nazi’s rise to power, before plummeting into the gunmetal and smoke of the Second War. My teachers were too enlightened to be pushing we hollow-headed pupils towards any theory of the organic evil of the German people or to couch the broad Germanic narrative we pursued as the genesis of Holocaust and War. Yet I’ve never felt comfortable with the choice to teach us so much about the origins and tumults which have torn through and out of
This is no error. In fact, I was last tutored in any Scottish history in primary school, aged about 8, on the Jacobites of 1745. Thus I could relate to you in (vague) detail about how
However, other elements are likewise neglected. Take the English Civil War. It is rare, I find, that one encounters an educated English person whose schooling has furnished them with much information on this English radical history – in which Scots played a role, despite the occlusions affected by the nomenclature. Which returns us, smartly, to the question – why did they choose these subjects and German subjects so exhaustively? Why were Scottish subjects excluded, almost without exception, from my secondary education? A particular staff member with a Teutonic itch, do you suppose? A consequence of their absence of a national curriculum in
Neither of these, it seems to me, being a good enough reason to produce a generation of schoolchild-historians experts in German Studies. The premise of the article is that attitudes towards Germans one might encounter in the world and a larger, social image of
My point, in brief, is that the relationship between ideas and our knowledge about cultures and social units – and the styles and characterisations which we place on that knowledge – entails no necessary expression in the lived experience and interaction with individuals who one identifies as participating in that generalised category. Learning about Nazis certainly furnishes the hostile with a vocabulary and a term of reference which can be negative. Similarly, race-thinking among those who are not systematic racists in their day to day lives can prompt apparently racist rhetoric and responses in moments of tension or conflict. Like much knowledge, however, pitted through with the tension-filled relationship between those ideas and reality as we experience it – its field of influence is ambivalent, capable of reading one way or another, able to determine, but exerting no necessary determining force.
That’s why I doubt that teaching folk about Hitler is the reason why students are dropping off from the study of the German language. Think of all the other, plausible, intelligible reasons why an in situ pupil may find their attention draws elsewhere academically and linguistically. He is right in one respect, however, at least in terms of my own experience. My German historical education was bizarre, the invisibility of Scottish and British sources profoundly silly, whatever differential political significance individuals read into it.
14 August 2009
Wur ain National Health Service is getting slagged off something awful by a select section of the liberty-luvin' descendants of the Minutemen. Godwin's Law is being wilfully flouted everywhere. Just to stir a fly into this already bubbling ointment, joint first prize winner in the Fox Egregious Shallowpate in Opinioncasting Award, Glenn Beck, has had wee Dan Hannan MEP on.
Not to show favouritism, dear Hannie also trod over to the other winner of the premier award in flatheaded broadcasting fiction, Sean Hannity, to share his sage reflections on a serious subject.
For excoriating denunciations, I cannot best the splendidly scatological, Laurel and Hardy citing essay on the subject by an Airborne Rodent. Do please take a peek.
13 August 2009
Given the significance of the case, and the twinkling row of eyes across the world directing their attention to the result – BBC anticipation is terrifically unlikely to simply amount to “we guess, no real reason really”. Particularly since the speculation is taken up by most of the other papers – Herald, Telegraph, Times. Of course, some of this is reporting reportage as news. But lets peel the onion a little more attentively. If the BBC are trumpeting the information, someone in the know must have told them – assuming the report is accurate. There must be a limited number of people in that position.
I was particularly interested in the section of the BBC report which said that: “The speed of his transfer is thought to be influenced by consensus among all parties that Megrahi be back on Libyan soil in time for Ramadan next week.” All the parties? Which parties are these, pray? Megrahi’s lawyers? Might they encompass Libyan “authorities” – the ambassador, and associates perhaps? Civil servants at Kenny MacAskill’s beck and call – or the decider himself? The dribble of the news is highly unlikely to be accidental. One of these “parties” has played the sieve with the story. It reeks of deliberate agency. A while back I guessed that MacAskill wouldn’t agree to the prisoner transfer, largely because politically there would seem more to lose than to gain. If the news is true, I can claim some sort of (besmirched) prescience (actually, I would have been primarily wrong. Ho hum!). In particular, the political consequences of transfer or compassionate release must differ somewhat. The latter foregrounds the released individual’s physical state – the former looks far more like a backhanded collusion with Libyan authorities, a seedy deal cooked up in the desert. At least in terminological terms.
If one was cynical, one might also say that public opinion is being softened up in advance. It is one thing to deal with Megrahi’s release conceptually, it is another watching – as I assume we’ll eventually be able to – video footage of the man walking at liberty. Dividing these symbols could be a cunning, albeit limited, goal. Even more cynically, consider what has happened if MacAskill has not reached a final decision. Now he has before him the press response to one option, replete with the quotes of bereaved family members, both voicing outrage and support. It would be explosive stuff if the final decision is not faithful to its leak.
While the Government spokesperson makes the deliberate denial that any final decisions have been taken, if I had to guess between likely candidates for primary leaker – I’d suspect the culprit was MacAskill himself, and/or a civil servant under his undirected executive direction, for the diffusing influence which dividing (a) getting the public used to the idea of Megrahi’s release and (b) seeing him released would seem to exercise. For Megrahi or his representatives to leak would seem ludicrously to be tempting fate for no appreciable gain. Quite on the contrary, I would imagine attempting to force the ministerial hand in this way would be the swiftest and surest path to having all considerations rejected
10 August 2009
Abnormal service shortly to be restored.
4 August 2009
3(3) This Act shall extend to
and Wales only, except as regards the amendments made by Part II of the First Schedule and except that the Interments (felo de se) Act 1882, shall be repealed also for the England Channel Islands.
“It is technically illegal to assist someone who wishes to end their life. It is considered culpable homicide and anyone who tried to help someone go to a clinic in
or anywhere else where is it legal to make end-of-life choices could be convicted of the very serious criminal offence.” Switzerland
“We have a real danger in
of the situation being far worse than in Scotland and England . If the public prosecutor in Wales and England does clarify the situation, we would be in a situation where Wales would be more confused. That is why I am writing tonight to the Lord Advocate for urgent clarification.” Scotland
3 August 2009
The dismal context of this reform is familiar. In 2007 – 2008, only 3.7% of rapes recorded by the police resulted in a conviction. Only 9.7% of cases ever reach the High Court. In that setting, only 38.6% of trials see the accused convicted. Percentages are heartless tabulations, briskly shearing processes of their context, their difficulty, suffering, indignities and injustices. The lamplight of numbers is a little keener. In shadows, behind that 3.7% are nine hundred and eight women who drew police attention to their victimisation. Of these, only eighty-eight women came to stand in the witness box. Of these, only thirty four would see the accused disappear into the prison vaults, and not be set at his liberty. For the remaining fifty four women, the disappointments and brutalisations of this arduous process can only beget alienation and fresh suffering. At every stage, an enervating attrition occurs. These are the brute facts which attentive lamplight reveals about legal responses to rape in
The persistent, niggling little question ‘why’ has produced no firm answers. Are Scots juries more riven with supposition and prejudice than the symmetrical tribunals of our European cousins? Is the legal regime befuddling, its tortuous and changing definitions confusing jurors and judges, muddling their minds and minding them to acquit the accused? Alternatively, are corroborating standards of proof to blame, circumscribing attempts to prove an indictment with unreasonably high and arbitrarily erected rules and regulations? Police behaviour, prosecution procedures, defence tactics?
Perhaps. Perhaps not. Answers vary, but all are impressionistic. The shrug has become general, and empirically grounded facts are nigh impossible to find. There are good legal reasons for this pervasive ignorance. The Contempt of Court Act 1981 hardened the seal on the jury room under direct threat of sanction, deepening the ignorant fug surrounding the motivations which exert their influence over Scottish juries. Flatly, we simply do not know how juries reach their conclusions, or why they seem reluctant to convict in cases where the charge is of rape. The optimistic may trust in the governance of laws, and assume that the sonorous directions of the presiding judge are absorbed, reflected upon, the evidence sifted rigorously and fairly. This is an article of faith, however, not evidence.
Such are the regrettable circumstances in which Holyrood legislated, refining its stratagems with clouds unbanished and without empirical material on which to draw. As a consequence, the reform around rape has been an intensely principled exercise, dominated by a widening and modernising norm of recognition. Kenny MacAskill insisted that “such attacks are perceived by their victims as rape, and it is right that the law should recognise that.” Here the law’s definitions strive to be an authentic simulacrum of human experience, where victims are regarded as experts. It is a manifestation of the idea that law ought to be a social mirror and injustice is any distortion of the reflection. Rape is depicted as the simple reality of human experience. Supporting this view, criminologist Professor Michelle Burman argued that that “‘rape’ is a powerful and weighty word which taps into complex social and historical meanings. It conveys in specific terms the nature of the offence, while its separation from other sexual crimes denotes it as a specific type of wrong, with characteristics that are quite distinct.”
In contrast, while advocate Ronnie Renucci accepted the seriousness of the offence, he raised a dissonant note worth interrogating. Rape, he argued, “is regarded, in many ways, as one of the most serious offences below murder.” However, precisely because of the strongly negative appraisal associated with the charge, Renucci believes that “juries will be reluctant to convict people of that offence if it is called rape.” The prevailing wisdom of the Holyrood reforms has been that whatever its deficiencies as a primary mechanism for cultural transformation, the new legal regime will not aggravate existing difficulties. Indeed, some more hopeful souls contend that the legislation will exert a positive influence, allowing judges to direct juries in crisp, transparent, and crucially, readily repeatable terms on the elements of crimes and doctrines of free agreement. Of course, this can only be informed speculation at best. Labour MSP Johann Lamont shared this view of the essential virtue of the new Act, saying that while “the conviction rate is as low as it is can lead to despair … today we are taking a significant step forward.”
Given the paucity of knowledge about jury deliberations in rape cases, can we share Lamont’s confidence about the onward, striving direction of the reforms? How can we assume that the new explicit statutory definitions are neutral instruments? While pessimistic critics can fairly return our attention to the rates of successful prosecution in
What if, for the sake of argument, the interests of legal recognition and the attempts being made by the Crown Office to intensify rates of conviction are not as harmonious as may have been supposed? Here’s the nub, and the important distinction. Is the aim simply to improve conviction rates for offences, or specifically to increase the rates of conviction for specifically rape-labelled offences? The notion Renucci was alluding to is a familiar one. Precisely because of the sharp judgement which any conviction for rape rightly entails, adjudging guilt is a charged process. Given the well-attested evidentiary difficulties in cases where the material evidence will bear either an inculpatory or exculpatory interpretation, and only the question of consent is at issue, the proposition runs, it is precisely the harsh condemnatory character of conviction for rape which may lead to a pronounced caution among jurors, resulting in acquittal. Obviously, several difficulties combine in such circumstances. However, one must at least concede that it is possible that the explicit and insistent use of a vocabulary of rape has its ambivalences.
Clearly, it is far too soon fairly to determine whether the approach taken in the 2009 Act will help or hinder the needful work of improving
Asking “can we do things better” is always a progressive question. Unfortunately, the parliament did not choose substantively to analyse what other legal responses might be attempted. Largely eschewing the prospect of sharply and independently interrogating these, instead Holyrood largely submitted to the conceptual frame of reference indicated by the Scottish Law Commission. Obviously, other approaches would be bedevilled by the same lack of empirical data which marked the Bill as passed. Nevertheless, it is particularly regrettable that a more radical approach to rape laws was not adopted. Definitions of rape in Scots law will now be wider, including a broader range of penetrative acts under its descriptive ambit, and crucially, including men in the category of relevant victim. However, it is profoundly difficult to see the Act as a new approach to the paradigmatic cases which crucially have proved so difficult successfully to prosecute under the old dispensation. The Act is largely an instrument of codification, adjusted in its nuances, rather than a deep-seated re-imagination of our approach. While altering social attitudes to women’s sexuality and fiercely opposing messages that clothing can sanction male sexual aggression are crucial, a legal approach based on charges of rape has not been serving us well. We have no reason to suspect that a replacement charge in much the same terms will contribute helpfully as part of a coordinated engagement with police and prosecution procedures and public attitudes.
Such are the gloomy depths the law has sunk to at present, more imaginative expedients did seem to be indicated. One such expedient could have been effacing rape from the legal lexicon, addressing such circumstances as an assaults. When disposing of the guilty, judges could be encouraged to exercise wider and harsher sentencing discretion, in recognition of the extreme violence of sexual violation. However, rearranging conceptual ideas will never suffice. A coordinated approach is vital, encompassing all stages at which a complainer alleging a serious sexual assault would experience, and how state officers, lawyers and judges approach that difficult and trying experience.
It is clear that Holyrood is unprepared for a judgement that its legislative framework may prove deeply ambivalent. We must not be. Although tiring, although at times feeling vain and broken, seeming no painful inch to gain, far back, through creeks and inlets, silently in small things, progress will come flooding. Clear thinking and an empirical basis must be the foundations of this progress. This does not exist yet. Ignorance of the decision-making dynamics of Scots juries remains the anarchic variable, disposed to dip its proverbial fly into any principle-based ointment of reform. As an unknown quantity, it is disposed to tip our sensitive and trembling scales of justice this way and that. Despite all of this, way may wish to cleave to our hard won and much laboured reformation of our sexual offences. We cannot, however, avoid the risk that all of our best laid legal schemes go tragically agley. Whether Holyrood has created legal norms which in due time it shall celebrate or repent remains to be seen.