During the Offensive Behaviour at Football etc. (Scotland) Bill's first abortive whizz through parliament, Holyrood's Justice Committee paid a great deal of attention to breach of the peace. The Lord Advocate and police witnesses were questioned about it. An strong impression was generated that the proposed Bill was a necessary expedient, given the sorry inadequacies of the present law in this area. The fustian formulations of the common law could not deal with modern developments and failing to pass the government's Bill was to leave a glaring lacuna, through which any number of miscreants, villains and suspect characters might creep, to avoid the penalties of the penal law. Minister for Community Safety, Roseanna Cunningham told the Committee:
"... there is growing concern that breach of the peace is becoming more and more narrowly defined and less of a handy tool operationally."
This impression was strongly reinforced by a spokesman for Alex Salmond. Late in May, the Mouth of Salmond told the press...
"We are determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. That's why the Scottish Government will bring forward legislation to make such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail."
Unaccountably, save for John Lamont, few of the Committee members even mentioned the only recently passed section 38 of the Criminal Justice and Licensing (Scotland) Act of 2010, which was itself introduced into law by the SNP government as a response to the narrowing definition of breach of the peace in Scots common law, and criminalises "threatening or abusive behaviour". Unlike breach of the peace, such threatening or abusive behaviour need not be in public. Under the Act, the behaviour complained of must be "likely to cause a reasonable person to suffer fear and alarm" and the offender must intend to cause fear or alarm, or be simply reckless as to the effect of their actions. "Behaviour" is given a broad definition, extending to "behaviour of any kind including, in particular, things said or otherwise communicated as well as things done" [§38(3)(a)]. The offence is relatively novel, coming into force in October 2010, and thus has not been subject to analysis in the High Court, in a knotty appeal. However, on the bare terms of the statute, it seems clear that the offence clearly attaches to "speech acts", including tweets, which are threatening or abusive and would cause the reasonable person fear and alarm. If found guilty of the offence on indictment, after trial by jury, an offender can be fined and receive a prison term not exceeding 5 years. On summary conviction, folk found guilty will face up to a year in chokey. Thanks to other enactments, aggravations on the grounds of religious and racial prejudice (amongst other things) can be attached to charges brought against individuals, ratcheting up their gravity, significant if the accused is convicted and comes to be sentenced.
Throughout their coverage of recent political developments in this area, the rank incompetents at BBC Scotland have been peddling the idea that "the maximum jail term for sectarian hate crimes is currently six months". This is naked falsehood and misinformation, I'm afraid. Firstly, Scotland has no law which criminalises "sectarian hate crime". Certain forms of sectarianism-generated activities will be offences, but these will be criminalised as common law assaults, breach of the peace - and now an offence under section 38 of the 2010 Act. As any Scots lawyer will tell you, much to the chagrin of their suddenly ice-white clients, the maximum penalty for these common law offences, including breach of the peace, is life in prison. You won't receive life behind bars for a touch of public disorder, of course, but it is the maximum possible applicable penalty in law, not six months. I've racked my brain to try to work out how the BBC computed or came to this claim about a six month maximum jail term - but cannot fathom it at all. As we can see from the bare text of section 38 of the 2010 Act, in fact, potential sentences for sectarianism-inspired threatening or abusive behaviour - already range far beyond six months. While I quite understand that new members of the Committee and the Parliament may not be terrifically familiar with the legislative work of the last session, for the government to neglect section 38 in its discussion of online threatening or abusive behaviour is totally unaccountable.
The point is even more eloquently made by yesterday's news that a man has actually been arrested and charged for the creation (and presumably, alleged contribution to) "websites where sectarian hate messages were posted about Celtic manager Neil Lennon". Under existing laws. Yup. That unsatisfactory, sclerotic dispensation which made immediate breakneck criminal reforms not only justified, but necessary. According to the BBC, the individual has been charged with breach of the peace, a breach of the peace with a religious aggravation - and significantly - threatening and alarming behaviour under section 38 of the 2010 Act, with religious and racial aggravations. Significantly, the report notes that the individual has been charged "on petition". The importance of this small detail is easily missed, especially if you don't keep up with the language of Scottish criminal procedure. Although this aspect of legal practice certainly isn't a speciality of mine, on my understanding, the fact that Iain Rooney appeared "on petition" in Stirling Sheriff Court strongly suggests he will be prosecuted on indictment, before a jury - and at this stage, his being tried on indictment in the High Court of Justiciary can by no means ruled out.
Scottish prosecutors may proceed against individuals in court in a number of different ways. While in England and Wales there are a number of "either way" offences, where the accused can elect to be tried by a jury in the Crown Court in preference to trial by lay magistrates, in Scotland, selection of the forum for prosecution is entirely at the discretion of the Procurator Fiscal. While some offences, such as murder, may only competently proceed on indictment in the High Court, most offences leave prosecutors with discretion as to where and how the accused person is tried. Different courts have different sentencing powers. Thus, while the High Court's powers are unlimited (except where limited by statute), a sheriff trying a case herself in the absence of a jury may only impose punishments of a far more limited scope: shorter periods in prison, lower fines. Similarly, sheriffs may try cases with a jury in what is called solemn procedure, which invests the presiding judge with enhanced sentencing powers if the unfortunate in the dock if found to be guilty. While summary cases generally begin with a "complaint", it is my understanding that solemn cases generally commence with the accused's appearance "on petition" in the sheriff court. Hence the significance of this small detail in the BBC report: we can probably expect Rooney's case to be decided by a jury of his peers.
That he has been charged at all raises a series of other questions for the SNP government's legislation, particularly insofar as it concerns threatening or abusive activities online, motivated or expressed in sectarian terms or no. It has been suggested that the new laws were vital, if potential offenders were to be charged and brought to trial. The charges brought against Rooney (of which he is presumed innocent, until proved guilty) demonstrate that this is not the case, and that existing laws, if resources are available and efforts are made to enforce them, can provide the authorities with a legal basis to take action against potential offenders. Scotland most famous hanging judge, Lord Braxfield, once reputedly remarked "send me prisoners and I will find you law". As with the report on football banning orders in Scotland, and the failure of police authorities to avail themselves of their powers to seek bans, these latest developments suggest that in Scotland, the police and prosecutors are not in want of law. Their mantra is much more demanding, and simply cannot be answered by adding another (partly redundant, partly reactionary and illiberal) layer of legislation. "Give me resources, and I will find you prisoners", they say.