Time for a Reference, Frank...

It was gratifying to see that the Scotsman, if none of the other newspapers, picked up yesterday's judgment from the Appeal Court in Edinburgh, underlining that it remains the law of Scotland, that familiarity between a rapist & his victim "is regarded as justifying a more lenient sentence." Understandably, that this remains national sentencing policy has outraged many folk.  But what's to be done? How might this be changed?

In 2010, the Scottish Parliament laid the statutory foundations for a new Scottish Sentencing Council, in the teeth of judicial opposition, to produce guidelines and principles to guide judges in passing their sentences. Three years on, the Council marches on paper only. I haven't heard a squeak about it from Kenny MacAskill for years: someone might consider asking what's taking so long. In the mean time, however, it represents no remedy to the Court of Appeal's sentencing jurisprudence. 

A better mechanism, it seems to me, is a device called the Lord Advocate's reference. Provided for in Scottish criminal procedure legislation, the reference allows the Scottish Government's chief law officer, Frank Mullholand QC (right), to refer legal questions to the High Court of Justiciary for a ruling: 

s. 123(1) Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion ...

The reference has no effect whatever on the conviction or acquittal of the individual whose case threw up the legal issue. Accordingly, it represents an opportunity for the High Court of Justiciary to exercise a bit of judicial dash and creativity, upturning one of their now unsatisfactory criminal precedents, without buggering up any individual's life, or leaving the Court open to an allegation of applying retrospective criminal sanctions.  

Past References have had profound effects, largely unrecognised in the political domain. For example, Lord Advocate's Reference No. 1 of 2001 saw a bench of seven in the High Court entirely redefine the crime rape in Scots law. Overruling centuries of case law as wrongly decided, the majority decided that the absence of consent was of the essence. Historically, Scottish prosecutors had been required to show that the accused had overcome the complainer's will by force. Mere absence of consent on her part was insufficient to convict. At the time, the change prompted some controversy. In her opinion, Lady Cosgrove, the first woman to be appointed to the Court of Session, observed:

"It has been said that ours is a live system of law. Our law should be like a living tree, not only growing but shedding dead wood as it does so. The opportunity has now presented itself and I am of the view that the law should be re-visited..."

This prompted a grumbling dissent from Lord McCluskey, who saw the changes as naked judicial activism, and a usurpation of the legislative function:

"Of course we all recognise that the position of women in social, political, economic and legal terms has altered fundamentally since the 18th century, by which time the definition of Rape had been settled; and there can be few who do not welcome the changes and marvel that society took so long to make them. But to acknowledge and salute the changes is one thing; for judges to embark on law reform is another. To overrule Sweenie would be to change and to reform the law; and we cannot disguise that fact by using the term 're-visit' or the metaphor of 'shedding dead wood'. The 'wood' of the existing law of Rape may well be gnarled and ugly; but it is certainly not 'dead'."

Yesterday, summarising the governing precedents, Lord Carloway concluded that, in sentencing convicted rapists: 

"It is undoubtedly correct, as the respondent submitted, that the existence of both a pre-existing and an existing sexual relationship has been regarded by the court, in the past, as a mitigating circumstance."

Time, I think, to test whether that principle remains good law in this country.   

Time for a Reference, Frank...