29 September 2010

§38 offences to commence on October 6th...

For completeness, just a brief post to note that official confirmation has been received that §38 of the Criminal Justice & Licensing (Scotland) Act 2010 will commence by ministerial order next week on the 6th of October.  This we knew already, by dint of confirmations made elsewhere, some time ago. However, for the avoidance of any dubiety, this clear response from ministers is helpful. In answer to parliamentary questions laid by Liberal Democrat Justice spokesman Robert Brown and Labour MSP Cathy Peattie, the Cabinet Secretary for Justice responded:

Answered by Kenny MacAskill (Tuesday, September 28, 2010): A commencement order has been made which will bring section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 into force on 6 October 2010.

An operative §38 will criminalise threatening of abusive behaviour, as defined below. Crucially, this legislatively-composed offence makes no reference to distinctions between publicity and privacy. Prosecutions under this section will not therefore have to contend with the public element of the Common Law offence of breach of the peace, whose sometimes rather tortuous distinctions were exemplified by the decision Hatcher v. Procurator Fiscal, Hamilton which brought us to this pass in the first place. I reiterate my thanks to Robert Brown and Cathy Peattie for their efforts to clarify - and if necessary - coax ministers into making the needful orders in an expeditious fashion. Happily, that does not appear to have been necessary. In future, Hatcher-type conduct should be clearly criminalised in the following terms:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—
(a) A behaves in a threatening or abusive manner,
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

This post is part of a series tracking public responses to the Hatcher case and my own civic agitation, attempting to overcome the legal obstacles which that decision laid before future domestic abuse prosecutions in Scotland. My first post, arguing that the High Court of Justiciary effectively legalised non-assault domestic abuse can be read here. Secondly, the first confirmation that ministers were keenly aware of the implications of the case and intended to take swift remedial action, even if the press remained clueless. Finally, a third post as the issue receives a bit of press coverage in last week's Scotland on Sunday.

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