Aitken out...

In Holyrood's stage 3 debate on the Criminal Justice and Licensing Bill last summer, Baillie Bill Aitken's contribution prompted guffaws. The Official Report records the laughter of his colleagues. I dare say the man himself chose his words with a certain degree of levity, but his comments struck me as expressing something quite fundamental about  his self-image, how he regarded himself.

Bill Aitken: As a young man from a poor area of Glasgow, I had many friends in low places and got to know the criminal mindset. [Laughter.]

The Presiding Officer: Order.

Bill Aitken: That impression was confirmed when I sat on the bench and has been reinforced by discussions with criminal lawyers in Glasgow. For a troublesome and small minority, prison is the only thing that will work...

I have also noted with human interest how Aitken conducts himself in the Justice Committee, with advocates and lawyers and judges. He has a tendency to fawn deferentially to judicial figures. He is always at pains to employ the appropriate legal terms. With Aitken, these terminological exactitudes always struck me as bearing a certain show of deliberation. They are not casual references to known facts, but something he clearly regarded it as crucial to get right, to talk about things in the right sort of way, showing himself to be the right sort of person. He speaks like an anxious insider, uncertain of his status. Nor does it seem incidental that Aitken played m'lud in the justice of the peace court. He bears all the hallmarks of a frustrated would-be lawyer, who pursued a political career at the expense of a longed for judicial one. Aitken's cynical wordliness is premised on what he no doubt takes to be a tough, realistic, no-nonsense attitude towards life. He is unsympathetic. Unlike his colleagues on the bench, who were taken in by all those villains who are at it, JP Aitken saw clearly, shrewdly. On some level, he identifies with the villain. He is not sentimental. I can distinctly imagine him sentencing a man to death, with a grim twinkle in either eye. In his respect, these features are redolent of the qualities ascribed to Scots judges in their hanging days - gruff Lord Braxfield and even the philosophical Kames (Aitken albeit without the learning of either gentleman in the tricky business of the Corpus Iuris Civilis).

But enough with the background Aitkenology. These features of his character and self-understanding, emerge strongly from the appalling transcripts of the Sunday Herald journalist's interview with Aitken, published in full on the New Statesman website. The dirty minded bluntness, the knowing doubts, the self-flattering scepticism of a man of the world, who knows about these things and isn't hoodwinked by bints in alleys. The conversation is annihilating for Aitken's credibility. All the more because it reads like a relaxed expression of the views of a man who thought he was off the record, and that nothing he has said could prompt complaint.

Doubt is not in short supply in our institutions of public justice. It is an elementary principle of our criminal law that to convict, the prosecution must prove their case beyond reasonable doubt. In the name of doubt, we maintain laws of evidence which do not even allow many cases to be put before juries and judges to decide. To this appalling weight of doubt, Aitken thoughtfully contributed his own, immediately, unprompted. His first, spontaneous response to news of a violent gang rape was to begin cross-examining the testimony of the victim. His second, unprompted response to the story was to focus on the circumstances of this gang rape, unilaterally implying a background of prostitution, knowingly adding "there's a lot more to these city-centre rapes than meet the eye". As other bloggers have noted (cf Grace Murray on Bella Caledonia), Aitken's remarks reflect  two well-documented tendencies in the discussion of rape. Firstly, respond with immediate, uneven and unjustified suspicion towards the victim. Secondly, from the limited facts available, strongly emphasise those facts which impute some degree of responsibility to the victim and purport to undermine their moral stature. What was she doing in Renfield Lane? Where had she been? Did she go with somebody? These are the first questions which occur to you, Mr Aitken? You hear tell that a women has been outrageously sexually assaulted in public, and these are the first words you stammer out? 

I agree with the Corbie's conclusion. As convenor of Holyrood's Justice Committee, parliament reposes a measure of trust in Bill Aitken. This terrible conversation cannot but deprive him of that trust. He must be pried from his spot as Convenor of Justice Committee. If Annabel Goldie will not be the iconoclast, then Parliament must do so for her. If she will do nothing? On her head be it...

Scotland legalises domestic abuse...

Surely not? Surely our representatives would have voted on any such proposal in the Scottish parliament? Surely if we'd done such a thing, the public sphere would rebound with remonstrances and controversy?  Apparently not. I'm talking about the implications of the case of David Hatcher v. Procurator Fiscal, Hamilton and the judgement handed down by Lords Bonomy, Hardie and Wheatley in answer to Hatcher's appeal in the High Court of Justiciary. I mentioned their opinion in the latest edition of my Tales from Parliament House series this weekend, but wanted to defer my elaboration till now. The case was briefly mentioned by the Herald, the Sun and the Glasgow Evening Times, but none of them seem to have noticed the gravity of this decision, seeing David Hatcher's quashed conviction as an isolated incident, rather than a pebble splash whose ripples will be felt throughout the prosecution of breach of the peace and domestic abuse across the country. Reading their coverage, all three seem to assume that in Hatcher's case the Crown had been attempting to extend the application of breach of the peace to a new and untried degree and the Lords of Justiciary merely repelled any extension in their judgement. Not so. On my reading, this case changes the Scots definition of breach of the peace quite radically, with significant implications for any domestic incident causing "serious fear and alarm".

Many folk have entertained qualms about the historical shapelessness of the Scots Law crime of breach of the peace. Recent years have seen incremental progress in sketching the contours of the offence as the High Court of Justiciary have solidified its definition, precedent by precedent. Lord Bonomy appeals to that context in Hatcher's case, saying:

"It was inevitable that the debate would soon move to the question whether severe oral abuse of, and unruly behaviour towards, one domestic partner by another over an extended period within the confines of the family home can amount to a breach of the peace, and more particularly whether in a given case that conduct did constitute a breach of the peace. That is the issue focused in this appeal."

Here is where we would do well to sit up and pay attention. Why? According to Scottish national statistics, the police recorded 53,681 incidents of domestic abuse in 2008-09. 55% of these incidents lead to some sort of criminal intervention. Minor assaults were the most prevalent category of crime recorded, representing 23% of the total, some 12,518, all told. Crucially, for our present purposes:

"Breach of the peace was the second most common accounting for 18 per cent (9,650) of incidents resulting in a crime or offence being recorded (see Table 1)"

While the legal ambit of breach of the peace charges may be of interest to a technical jurisprudential few, domestic abuse is an issue attracting far more intense public scrutiny. Here these two issues interact in a fundamental way. In Hamilton Sheriff Court, Hatcher was convicted on the following, formulaic and familiar charge:

"On 7 January 2010 at 50 Kenilworth Avenue, Wishaw, (he) David Hatcher did conduct (himself) in a disorderly manner, shout, swear, place Lorraine Hatcher in a state of fear and alarm and commit a breach of the peace".

The facts, as set out by the Sheriff at first instance, were undisputed. To avoid distortions on my part, they are worth replicating in full:

1. The complainer is the wife of the appellant. They have been married for 23 years and have three children, two of whom aged 12 and 13 years, reside with them at home at 50 Kenilworth Avenue, Wishaw. They were in the house with the complainer and the appellant throughout the evening of 7 January 2010 and the early hours of 8 January 2010.

2. The complainer is a technical instructor in an occupational therapy department. The appellant is a teacher. On the evening of 7 January 2010 the complainer told the appellant of her intention to attend an outing with around 31 of her work colleagues for a meal at 5pm on a date shortly after 7 January 2010.

3. The appellant objected to her doing so because of an issue which had arisen when she (the complainer) attended an office party just before Christmas 2009. The appellant had at that time become upset, angry and apprehensive of her fidelity to him due to her meeting another man at that previous evening outing, despite the fact that she had openly told him about the situation and discussed it with him.

4. On 7 January 2010 the appellant persistently questioned the complainer over a period of hours about the further outing and about the original pre-Christmas outing. He became agitated and angry and refused to allow her to go to bed.

5. At points throughout the said period, the appellant shouted at the complainer and at one point called her a fucking whore, a fucking slut and a cunt. The appellant would not allow the complainer to remain in bed by pulling the bed clothes from the bed.

6. The complainer was genuinely upset and alarmed by the use of those words and the appellant's persistent questioning of her over several hours as well as his refusal to allow her to go to or remain in bed. The behaviour and conduct of the appellant throughout the period of several hours and late at night was likely to have caused serious fear and alarm to his 12 and 15 years old children present in the house. The conduct of the appellant was severe enough to cause alarm to an ordinary and reasonable person observing the same.

7. As a result of her upset and alarm at the appellant's behaviour, the complainer called police who attended.

8. The appellant behaved in a disorderly manner, shouted and swore at the complainer, placed her and highly probably their children in a state of fear and alarm and committed a breach of the peace.

Those are the facts. So what was Hatcher's case? As Lord Bonomy suggests at the outset, the case turns on the question of publicity. Or in this case, the absence of publicity. Breach of the peace is defined as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Hatcher argued that the events narrated above had no public element and were "the paradigm case of conduct in private". This relies on the contention that the two children in the house were of no consequence, or as the Court put it, the notion that that the 12 and 15 years old children were not "entitled to be considered as members of the community or public", however terrorised or alarmed they might have been by their father's thuggery and bawling and possessive abuse of their mother. Rather astonishingly, the Court was persuaded by these submissions. Per Lord Bonomy again, emphasis mine:

[5] We find considerable force in Mr Shead's submission that in this particular case the evidence does not support a finding that the conduct threatened serious disturbance to the community. Albeit the appellant's conduct caused upset and distress to the complainer, and would have done to any reasonable person, it occurred within areas of the family home exclusively occupied then by the couple and did not threaten the public peace. It occurred entirely in private and was not a public disturbance. That is not to say that the conduct of the appellant should be condoned or tolerated. However, if there is a lacuna in the law and domestic partners are not protected by the criminal law where one abuses the other in a way that would cause serious upset and distress to a reasonable person, but does so in private, then it is for Parliament and not the Court to decide whether the law should be changed to criminalise such conduct. 

This is inveterate nonsense. In particular I direct your attention to the italicised section. Magisterially, Bonomy attempts to imply that he and his brother judges' hands are tied, that they are motionless, upholders of the democratic principle that our parliamentarians should be the movers and the shakers. "It is not for us..." Unfortunately, this loses its air of plausibility if one notices that their judgement is actually changing the law, I don't doubt to the chagrin and surprise of procurators fiscal across the country. As the statistics I mentioned above strongly suggest, breach of the peace is an all too familiar charge as our criminal agencies respond to instances of domestic abuse. There almost 10,000 instance of its application in 2008-09 alone. If there is a lacuna in the criminal law, leaving abused spouses no protection in the presence of their children, then it is this judgement that creates it. Moreover, the distinction between public and private which the Court relies on seems to me totally artificial. Their Lordships note:

[10] As the cases referred to demonstrate, conduct in a private house may occur in circumstances which provide the necessary public element. What is envisaged in these cases is that conduct in private will raise the realistic risk of the public peace being disturbed. Not surprisingly none of the cases involves conduct occurring, and having its potential effects, exclusively within a family. WM and Paterson involve an estranged partner and a family friend respectively. That does not mean to say that a breach of the peace cannot be committed by conduct directed by one member of a family towards another within their dwellinghouse. As has been said repeatedly, whether there is a breach of the peace depends on the circumstances in which the conduct occurs.

So if Lorraine Hatcher had a friend visiting when the incident above occurred, it would be a breach of the peace, but because of the judicial contortions that deny the children's character as members of the public, it isn't? What about an aunt? What about a third cousin once removed? What if the couple had separated for a time - suddenly their intimate quarrel takes on the quality of publicity? At what point specifically does that happen? What if one of their children had had a friend staying over? The exclusion of the children doesn't exactly seem premised on their youth, so presumably that single extra body, shivering in their room as Hatcher's jealous tirades thudded off the walls would transform the event into one promising to unsettle the public and hence, one subject to the protections of the criminal law? There is much more one could say about the conceptions of public and private behind this judgement, but I'll leave you with those questions. The very real and very worrying consequences of this case should be clear enough. Some of this may be mitigated by section 38 of the new Criminal Justice and Licensing (Scotland) Act 2010, which criminalises threatening or abusive behaviour - but only once it comes into force. And even then, quite how the Court will interpret that statutory offence remains unclear.

Until that time, Lords Bonomy, Hardie and Wheatley have effectively legalised non-assault domestic abuse within the confines of the family.

The end of double jeopardy in Scotland?

Although the tale has not yet been taken up by other media outlets, this morning the BBC is reporting that "Double jeopardy law will be scrapped in Scotland". This is not surprising. Announcing the consultation, Kenny MackAsill frankly conceded that "we are minded to legislate at the earliest opportunity". Turns out that that opportunity is nowish, in Holyrood's final term. To recollect just a little of the context, you may recall that the Scottish Law Commission produced its Report on Double Jeopardy, however the Commission were unable to agree on a number of salient matters. A consultation was held. At the consultation's beginnings, I noted that:

Kenny MacAskill’s news release is full of familiar (and largely fatuous) rationalising metaphors, the blubbery Whiggish stuff trotted out whenever law reform is contemplated “… updated for the 21st Century… modernising … fit for the 21st Century … in this day and age … clear direction of travel … reform needed…”

Changes to double jeopardy impended. What remained and remains unclear, however, is what changes precisely. The four key questions asked in the consultation were:

* Whether consultees agree that there should be a new evidence exception

* The test to be applied in assessing new evidence

* What offences a new evidence exception should cover

* Whether a new evidence exception should apply retrospectively.

The trailing of the announcement in the media includes no official press release, no draft Bill. I'll keep my powder dry until we have a legislative text to scrutinise. However, a fiery pinch can't really hurt. I'm concerned with which offences can be re-indicted. Previously, MacAskill has talked about the proposed legislative changes in terms of keeping the traditional rules on tholing one's assize - but amending the general principle by introducing novel exceptions. Whether or not structure of precept and exception will be anything more than theoretical depends on how and how many crimes attract exceptional status. Should re-prosecution be limited to murder, rape? "Serious cases?" If so, how should their seriousness be defined? The BBC are reporting that the Government intends to make the changes apply retrospectively and that they understand that:

"... the government's bill will go further than the law commission's recommendation that only people cleared of murder, rape and some other serious sexual crimes should be allowed to stand trial for a second time. Instead, it will be extended to cover other serious offences, including culpable homicide."

No doubt they have such an understanding because someone in government outlined their plots to them. So what offences are "serious"? In England and Wales, offences "qualifying" for the new-evidence exception to double jeopardy are:

Offences Against the Person
Murder; Attempted murder;  Soliciting murder; Manslaughter; Corporate manslaughter; Kidnapping

Sexual Offences
Rape; Attempted rape; Intercourse with a girl under thirteen; Incest by a man with a girl under thirteen; Assault by penetration; Causing a person to engage in sexual activity without consent; Rape of a child under thirteen; Attempted rape of a child under thirteen; Assault of a child under thirteen by penetration; Causing a child under thirteen to engage in sexual activity; Sexual activity with a person with a mental disorder impeding choice; Causing a person with a mental disorder impeding choice to engage in sexual activity

Drugs Offences
Unlawful importation of Class A drug; Unlawful exportation of Class A drug;Fraudulent evasion in respect of Class A drug; Producing or being concerned in production of Class A drug

Criminal Damage Offences
Arson endangering life; Causing explosion likely to endanger life or property; Intent or conspiracy to cause explosion likely to endanger life or property

War Crimes and Terrorism
Genocide, crimes against humanity and war crimes; Grave breaches of the Geneva Convention; Directing terrorist organisation; Hostage-taking

Conspiracy
Conspiracy

A grim list, undoubtedly. Should we anticipate a copy, with the relevant Scottish offences substituted - or something else? Something narrower, or something broader? In this respect, I find the tenor of the BBC story potentially concerning. After all, I recently blogged about how unsuccessful were Holyrood's attempts to define serious organised crime in any serious way, the consequence of which being the passage of a potentially illiberal and chimerical statute. In that piece of recent legislation, "serious offence" is defined thus:

“serious offence” means an indictable offence— 
(a) committed with the intention of obtaining a material benefit for any person, or 
(b) which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future, and “material benefit” means a right or interest of any description in any property, whether heritable or moveable and whether corporeal or incorporeal.

Obviously, I'd be astounded if this definition was used in the Scottish Government's proposed Bill on double jeopardy. The second and third sections are very clearly situationally defined, intimately associated with their couching context and concern with remunerative and organised criminality. What concerns me, however, is that the Government is happy with the idea that seriousness can simply be equated with indictableness of an offence. As I explained in that piece, most Scottish offences are indictable but the procurator fiscal would generally only indict serious instances. Assault and theft encompasses a great gamut of conduct, from the minor to the major, yet both small infractions and substantial breaches are indictable. The essence is this - indictableness is not a serious distinction to draw. I hope, therefore, that when the draft Bill is published, we see no echo of the Criminal Justice & Licensing Bill's language of seriousness. If drafted too broadly, this really risks becoming an end to the principle of tholing your assize, rather than the introduction of moderating exceptions.

Scotland's new serious organised crime laws in focus

After the recent Lockerbie Case dominated days, albeit leavened by the odd tale of an ardent litigant, I wanted to turn my attention backwards rather than forwards. In place of speculation on future elections, referendums and so on - I thought it might be instructive to lay out a piece of business recently concluded by Holyrood - the sections of the Criminal Justice and Licensing (Scotland) Bill composed to deal with serious organised crime.  On criminal justice, the SNP government are to be commended for resisting the restless and bottomless penality and illiberality of Scotland's Labour and Tory parliamentary groups. Yet this resistance hasn't always seemed entirely confident and hasn't been as thoroughgoing or consistent as I should like. Indeed, in the reform of old offences and the institution of new infractions, the Government and Parliament have tended to favour broadly-drafted, maximally criminalising definitions, relying on prosecutorial discretion to weigh the merits of individual cases and to punish the more egregious offenders and judicial interpretation to narrow the ambit of offenders. Like many interested in the liberty of the subject, I find this reliance on trusting the Crown Office and the Procurator Fiscal Services for the proper administration of our criminal justice system deeply concerning.

Criminal law, on this theory, is never really intended to be enforced. Rather, this theorem seems to posit the relative autonomy of the values informing decisions to prosecute or not -  connected but not determined by the categories of criminal law. On one level, this is nothing new. Unlike some other countries, whose prosecutors theoretically have no discretion to prevent a prosecution if a crime has been detected, Scottish procurators fiscal need not, even in theory, drag every offender before the bar of a Court and assail all lawbreakers with the instruments of indictment and complaint. The difference, the concerning difference in contemporary Holyrood legislation, is not one of kind but of degree. What worries me is that offences are being passed into law most instances of which, parliamentarians, police and prosecutors would not want to see prosecuted and don't anticipate to see prosecuted. Prosecutorial discretion becomes, paradoxically, the means by which the law is not enforced. At its most extreme, the logic of this position commends criminalising everything, authorising the forces of order to pursue any infraction. The authority of limitless justification, the official liberty that comes with the absence of constraint, permits these lawful bloodhounds to case down the "true" criminals, sinners and offenders, leaving the meek and the just and the benighted untouched. Yet by the letter of the law, the liberty of the the meek and the just and the benighted is equally imperilled by such laws. The prosecutor holds all of the cards. I should stress, I'm not suggesting that our criminal law has lapsed wholesale into this form. However, Holyrood is undoubtedly passing criminal legislation which precisely participates in the logic of this extreme case.

Not convinced? Time for an example. The recently passed Criminal Justice and Licensing (Scotland) Bill introduces novel provisions into Scots law. Heretofore, "organised crime" prosecutions have been based on non-specialised offences of our Common Law, including charges of conspiracy. The competence of these charges hasn't been ended, but has been extensively supplemented with new specific provisions criminalising participation in criminal endeavours identified as serious and organised.  A couple of preliminary definitions, important for understanding the sections which follow. Throughout, serious organised crime should be taken to denote:

“... crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences...”

What, I hear you cry, are these mysterious serious offences? Fear not, a statutory definition is to hand!

“serious offence” means an indictable offence— 
(a) committed with the intention of obtaining a material benefit for any person, or 
(b) which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future, and “material benefit” means a right or interest of any description in any property, whether heritable or moveable and whether corporeal or incorporeal.

Qualms were expressed by many in Holyrood's Justice Committee about this definition during their deliberations. Concerns included the fact that "indictable" really isn't a significant qualification. While some very minor offences are only triable summarily, most "minor" infringements of Common Law offences - petty shoplifting for example - are infractions of indictable offences, even if no indictment is laid against the accused. Equally, serious is here defined in a rather unserious manner - on its face subsection (a) only requires a de minimis intention to acquire any material benefit. A two-man fraud which means to accrue a mighty £0.01 falls within this definition. Despite these doubts, no parliamentary could apparently put together anything better and the definition stands in the final Bill, as passed. On this definition, a two-teen wheeze to shoplift a single penny sweetie from their local corner shop is serious organised crime, being a clear "material benefit" to the pair and minimally conspiratorial. By dint of Section 25, "Involvement in serious organised crime" of itself will constitute a competent charge when the Act comes into force. 

(1) A person who agrees with at least one other person to become involved in serious organised crime commits an offence.
(1A) Without limiting the generality of subsection (1), a person agrees to become involved in serious organised crime if the person—
(a) agrees to do something (whether or not the doing of that thing would itself
constitute an offence), and
(b) knows or suspects, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Turn again to our extreme case and our gallant pair of callants robbing a local candymerchant of his toothsome wares. Add a third boy. This chap's duty is to distract the pious chewmonger manning the front of the shop by engaging him in an entirely lawful discussion of his favourite Biblical passage (Corinthians 2:14) while his criminal cohorts make off with the single penny sweet. His mates don't tell him why he is indulging in such a discussion, but the canny youth has his suspicions about his would-be larcenous comerades. Backstabbing villains, they don't intend to share their sweet with their third companion anyway. To fall foul of section 25 risks a maximum ten year prison sentence, if prosecuted on indictment, 12 months if the summary procedure of a sheriff sitting alone is employed by procurators fiscal. In theory, this unfortunate Biblical interlocutor could be taken to be involved in serious organised crime, gazing into the abyss of a ten year sentence. This is, of course, a very extreme example, pushed to absurdity. There is no way, you might think, that the Crown would ever institute such proceedings, no chance that a judge would impose such a sentence. And you'd probably be right. That is the devil of these trust-me statutes. The trust and confidence they invoke is not entirely misplaced and isn't as quixotic as it seems.

Onward, to the next sections. Section 26 adds connection to serious organised criminality as an "aggravation" to other offences, with a view to ratcheting up the punishment imposed. Evidence of this connection does not need to be corroborated. Section 27 enshrines a further novel offence of "Directing serious organised crime" while section 28 criminalises "Failures to report serious organised crime".  The defitions I started with a shared throughout, hence, a serious crime is an indictable offence committed with an intention to receive material benefit or violence in anticipation of such a benefit. On indictment, directing serious organised crime will now attract a maximum 14 year sentence, failures to report a maximum of 5 years in prison. 

I'm not a practitioner, hence I lack a practitioner's sensitivity to how these new offences might work in practice - and crucially, how helpful they will be in cornering the clichéd "Mr Bigs" of Scotland's criminal economy.  What does seem clear to me, however, is that the sections enacted are like a blunt piece of wood which prosecutors and police are expected to whittle down into sharp, narrow stakes to drive through the hearts of the shadowy figures peopling the upper echelons of Scotland's concerted and lucrative criminal enterprises. To do so, Holyrood has enshrined an exceedingly broad law, potentially bringing any number of petty, unserious penny-driven criminal acts within the compass of serious organised crime, technically defined. Given the reported difficulties which have hampered the prosecution of ringleaders, the move may  justified and our legislators vindicated for taking exitus acta probat for their maxim, hoping the outcomes condone the breadth and potential illiberality of the law they passed. However, once again Holyrood has invited us to implicitly trust the judgement and conduct of the Lord Advocate, Crown Office and Procurator Fiscal service not to enforce the law they've passed. If their custodianship should prove less virtuous than our tribunes hope, the Act has all the potential to produce unjust and chimerical results.

Carrying a knife-edge vote...

Attentive Holyrood watchers are used to razor-slim majorities. While technical amendments can romp home with thunderous general acclaim, on politically more sensitive matters, particularly those from which sections of the opposition hope to squeeze electoral and rhetorical advantage, single-digit margins of victory are familiar arrangements of the Scottish Parliament's proportional political abacus. Today was no different. I'm delighted to say that this morning Holyrood finally rejected Labour and Tory plots to install a presumption in law that Scottish courts send knife-carriers to jail for a period of at least six months. The vote to reject Labour's Swine Pursuivant's amendment (aka Richard Baker for the uninitiated) divided our tribunes 63 - 61 against.

As regular readers will know, during the Criminal Justice & Licensing (Scotland) Bill's stately progress through Holyrood's hesitant legislative halls, I've  consistently argued the case against Labour and Tory knife crime policy as wrong-headed, unproductive, illiberal, costly, unjust and unnecessary. Their political positioning and rhetoric, I suggested, also invoked a particularly macabre and gruesome form of identity politics, vividly encapsulated by the Committee testimony of John Muir.

The initial Conservative position - advanced by the not-long-to-be-lamented Baillie Bill Aitken - proposed a totally absurd level of penalisation - a two year presumptive prison sentence for those detected, armed with a bladed object.  If ever a policy position showed up its proponent as agitating in jest, indulging in an entirely spurious and  unserious use of politics to release certain degenerate, subconscious spanking desires, this was it. I  also have my suspicions about the earnestness of Labour's position, although prima facie it is less obviously Quixotic than the broken-lanced sally affected by the mule-mounted Baillie Bill. I try to cleave to the sense that reasonable folk can reasonably differ on policies, that we should talk about our disagreements without immediately crying Garde Loo! and tossing whatever foetid and incontinent allegations happen to slop into the more gutterminded stalwarts of our politics. Somehow, however, I can't help but doubt that all of the tribunes on the red benches are convinced by this policy and suspect that its primary use is a tactical, party political one. In short, a consciously dishonest attempt to cozen sections of the tabloid press and those parts of the population with particularly developed sympathies for retributive philosophies of punishment. Either way, it matters not now, with the scheme shelved for the time being. Judicial discretion will continue to be the order of the day when knife-carriers are hauled before the Bar. The Green Party's Patrick Harvie put it rather nicely in the debate attending the by-section votes this morning, saying:

"There are some things legislation is not good for.  Distinguishing between a frightened wee boy who made a mistake and knows he has and a genuine thug who poses a threat is something legislation can't do - the courts have to do that."

A welcome dose of epistemological modesty from the legislative benches. All in all, this result is testament to the happy fact that the wildly punitive Scottish Labour and Tory parties cannot command a majority in our parliament. Yet today will also be a missed opportunity. Per yesterday's post, this afternoon parliament has  voted on another presumption - this time to end prison sentences of less than three months. I'm befuddled, however, positively fogged over to understand the rationale behind the Liberal position, supporting three months, but opposed to the six month presumption advanced by the SNP. A bemusing missed opportunity - but definitely progress. On both accounts, one should also give Kenny MacAskill and the Scottish Government their due. It would have been easy, all too easy, to fold in the face of the emotionally charged knife crime campaign and the hostile coverage of the SNP's "soft-touch Scotland" which is sure to follow. Voters interested in a progressive politics on criminal justice, rather than anti-intellectual and reactionary pandering, take note.

Fiat iustitia, et pereat mundus!

Fiat iustitia, et pereat mundus! Cry the Tories. Fiat justitia ruat caelum! Call the Labour benches. More prison! More cells! More money for jails! Uplifting melodies, are they not? Sweet songs for these days where the public purse is plundered and pinched. Tomorrow, Holyrood will embarking on its Stage 3 debate on the provisions of the Criminal Justice and Licensing (Scotland) Bill.  Last week, we heard tell that Kenny MacAskill has decided to round-down his proposal for a presumption against minimum jail terms, from the more radical 6 month SNP plan to the 3 months that should be more agreeable to the Liberal Democrats. Showing their progressive credentials, this has induced in the Scottish Labour and Tories bouts of "righteous" apoplexy. 

I lament the loss. Although it prompted minimal press coverage in these terms, the six-month proposal really was one of the more radically progressive policies advanced by this SNP administration in criminal justice. Given how easily it is to generate lines of rhetorical attack on the position - "soft touch Scotland" et al. - it really was a brave position to prosecute the case, into the hail of easy and decidedly cheap shots the Swine Pursuivant and associated rump-scratchers, Tory and Labour, could find to fling at the SNP for it.  These slings and arrows, I fancy, have not been without their negative consequences. In particular, as I've suggested before, in other areas I think the assaults have prompted SNP politicians to try to find other ways to don the Inquisitor's hood and boast about what sterling punishers, bruisers and thumpers they can be. That said, three months is more satisfactory than no presumption at all - and a strategy of soft degrees may well work out in the end. If such a provision is already on the statute book, revising the presumption upwards is undoubtedly an easier prospect in the middle term than forming up the troops for a fresh new sally, from scratch. 

We should be candid about one point, however. Presumptions are odd legal beasties. Quite how it will work and change sentencing practice remains to be seen. This observation extends, in all fairness, to Labour and Tory arguments that there should be a presumption in favour of six month to two year sentences for knife carrying in Scotland. Both presumptions leave shrieval bolt-hole - the facts and circumstances of a particular case - justifying imposing a prison sentence of two months, or not imposing a six month sentence on some wight, caught with a shank in his underpants. Strictly speaking, the Swine Pursuivant's Labour motto shouldn't be carry a knife, go to jail - but carry a knife, probably go to jail (unless the Sheriff decides otherwise). Equally, there is plenty of scope for the Scottish judiciary to distort the goals associated with a presumption against three month sentences. Either way, its a brave soul who tries their hand at absolute prophecy. We have to do our best with the material available to us, and cross our fingers that everything works out as we hope - or not too significantly and appallingly differently.
 

On the opposition, I can’t make up my mind which alternative is the more scabrous. First, consider our rigidly righteous little Kantling. Call him Baillie Bill Aitken – a hypothetical figure of course. In this character’s case, I can imagine that he doesn’t give a flying flip about consequences. Although the earth’s crust break, the blue sky slump above him, stars put out their fires, whether jail serves no deterring function, whether sending people to jail actually serves to create more victims, whatever the state of the public finances – in his world of little judgement, we should probably bang ‘em up anyway. Damn the consequences, though the sky fall and the world perish.   For him, it seems to matter not a jot that short term sentences do not prevent recidivism. If he was frank, he probably doesn't believe that is what prison is for. This is a dangerous inclination and I believe fundamentally an incorrect one. However, it does at least have the benefit of a sort of piggish sincerity. A bastard's programme, but a bad programme pursued in good faith. Then there is the second category, best I can discern. It seems unlikely that this character - call him Iain Gray - shares wholeheartedly in the punitive inclinations of Baillie Bill. Rather, a whiff of stratagem clings to his shrill opposition. One wonders whether he believes the whole thing or not - or merely has his pigling blands churn out quotes suggesting that “the SNP is still playing Russian roulette with public safety” because he is trying to squirrel away some party advantage from the friction. In his heart of hearts, heaven knows what he or his ruddy cronies think about prison, about the evidence that it does not serve a function, that increasingly we cannot afford it, that the numbers incarcerated are high and are mounting even higher.  Do they care about these issues? Are they interested? Are they willing to align themselves with the bottomless retributivism of Baillie Bill, pious punishers who have little interest in what is happening in the here and now - and how our politics and our decisions beget these issues?

As is so often the case with the Labour Party, one cannot even seem have a discussion about these matters.  Like grinning gin-traps, Labour in  opposition snaps shut, ever-eager to draw blood and once closed, their jaws are not readily pried apart again. On an individual level,  I know many Labour members who have open minds on such matters, but who keep their peace in the public sphere and keep supporting their gormless tribunes with a touching but destructive loyalty. This tendency is mightily depressing, since it impoverishes our public life, makes conversations meaningless, reduces Holyrood to a howling-room, manipulative, eyes ever on the polls, lies and fictions and distortions its tools. It is lazy and cynical in the least charming fashion imaginable. For shame.

Sod it... Holyrood to abolish sedition!

... although I prophesied light and airy blogging, I can't resist mentioning the important and substantive business afoot in Holyrood's Justice Committee. They are considering amendments at Stage 2 to the many-headed hydra that is the Criminal Justice  and Licensing (Scotland) Bill. In their earlier session, on the casting vote of Baillie Bill the divided Committee supported Labour amendments to introduce a quasi-sorta-ish-mandatory presumption that those carrying knives get the jail for at least six months. They also opposed and voted down the progressive, sensible and radical SNP policy of shifting tack by enshrining in law the presumption that Scotland's shrieval and justiciars' benches shouldn't hand down sentences of less than six months. At the final vote in stage 3, it seems likely that both of these decisions may well be reversed by the full house. Although the official report of yesterday's Justice Committee meeting has not yet been published online (as I rattle this out, that is), the Scotsman clearly had an odd-bod in the room, taking notes. Important indicative decisions from the Committee here on important questions of wide concern, including how long the police should be allowed to retain the DNA of those who are not convicted of any offence - or what minimum age an accused person should attain before they're hauled in front of the nation's sheriff or even high courts. I'll probably come back to this, once I've a heartier text to feast the eyes on.

There were also a few interesting touches in the Committee's session last week which I couldn't resist sharing with you. After reviewing a roll of grim concerns - prostitution, people trafficking and any number of horrors - the Committee surrendered to a crackle of mirth over curious historical legal gewgaws which will be of some interest to those antiquarians amongst you, interested in the crooked historical timbers of Scots law, many beams of which are still technically the law of the land. At last! Holyrood is going to abolish sedition!  Journalists need fear the fate of Robert-Francois Damiens no longer, for lèse majesté is also following sedition into the consuming stomach of legal forgetfulness. I can almost hear Thomas Muir's cheers resounding from the mouth of his melancholy grave in France. As ever, Baillie Bill presided with his usual air of adenoidal levity -

Fergus Ewing: Amendments 114, 189, 192, 194 and 196 allow me to pay tribute to the Liberal Democrats—not in this Parliament, but at Westminster.  It was Dr Evan Harris MP who first raised the continuing existence in England of the offences of sedition and seditious libel during the passage through Parliament last year of the Coroners and Justice Bill. As he said, although it would be unthinkable for the state to use the offences today in the way that they were used against the likes of John Wilkes in previous centuries, they remain part of our law. Theoretically, every time that a journalist harangues the Government or a comedian insults the Crown, they are liable to be arrested.

The provisions are more than a mere theoretical curiosity to amuse law students. More importantly, the fact that the UK has such laws is used as a convenient excuse for repressive regimes worldwide to have, and to use, their own. In such countries not only is there a chilling effect—people being too afraid to air criticism of the authorities and elites—but citizens are regularly prosecuted for speaking out. The UK Government was seized of the force of the arguments and tabled amendments to the Coroners and Justice Bill to sweep away the offences of sedition, seditious libel, obscene libel and defamatory libel in the rest of the UK. We believe that it is appropriate for us to follow suit and lay finally to rest the Scots law offences of sedition and leasing-making, which is what amendment 114 does. That will help give the UK greater moral authority when dealing with repressive regimes.

Angela Constance: It would be interesting if the minister could explain leasing-making when he winds up.

The Convener: I am sure that he will do so. While he is being advised, I should say that there is a delicious irony in a Scottish National Party Government minister—a representative of a party that I have always thought to be a seditious bunch—moving that that part of the law be removed and those of us of greater ilk being denied the protection that the law presently allows against being traduced in such an unseemly manner.

Stewart Maxwell: I am not sure that that meets the criterion for being respectful to other members of the Parliament. [Laughter.]

The Convener: Mr Ewing, would you like to sum up?

Fergus Ewing: Indeed. I was not aware that every time a journalist harangues the Government, he is liable to be arrested. Had I known that, convener, history might have been somewhat different. However, as a habitually loyal colleague, I am happy to move the amendments. When I read out the words "leasing-making", I wondered whether a typographical error had crept into my script; that is why I paused momentarily. However, there is no error—one does not expect errors from one's officials—and it means lese-majesty, or the act of making critical remarks of Her Majesty, so I am happy to have lodged the amendment. I am pleased say that, according to the current edition of Gordon, there have been no reported prosecutions for leasing-making since 1715. Members can draw whatever conclusions they wish from that fact.

The Convener: Yes—we are entitled to some light relief after a heavy morning.

One bundle of weights pressing down on the Committee's collective mind were the sections of the Bill which will introduce offences of directing serious organised crime and failing to report serious organised crime. In particular, Robert Brown (Liberal Democrat) had a number of apt questions about the breadth of these provisions that needed asking. He didn't press his amendments, however, and further analysis of the detailed wording continues on into the stage 3 deliberations. Add to that possession of extreme pornography and voyeurism. As the Bill was introduced, extremity was defined in the following charming fashion. If you are unfortunate enough to be a soul who specialises in necrophiliac bestiality in Scotland, you are soon to be out of luck.

34 (6) An image is extreme if it depicts, in an explicit and realistic way any of the following—
(a) an act which takes or threatens a person’s life,

(b) an act which results, or is likely to result, in a person’s severe injury,
(c) rape or other non-consensual penetrative sexual activity,
(d) sexual activity involving (directly or indirectly) a human corpse,
(e) an act which involves sexual activity between a person and an animal (or the carcase of an animal).

I should also add, thank heavens I wasn't in the committee room when this was being discussed. I'm not sure if I could have survived the ordeal of listening to Fergus Ewing's repeated references to "so-called up-skirt voyeurism"...

Is this a dagger I see before me?

Amid the blethering and ballyhoo which attends the Westminster election campaign, it is crucial that we don’t lose sight of the ongoing work of legislation and government in Holyrood. For the Scottish Parliament’s committees, its very much business as usual. And such business! My own favourite Committee, Justice, was ruminating and voting on amendments to the Criminal Justice & Licensing Bill, including the headlining political acts of a presumption against prison sentences of less than six months, Labour proposals to install a presumption in favour of jailing knife carriers for six months and a more or less symmetrical Tory position, in favour of two years in prison. Labour are so vividly excited by their uncosted, irresponsible and ineffective promise of jail for all, that they even irrelevantly tucked it in their neon Westminster election manifesto. In the Scottish Parliament, it wears a different cape, the sinister cloak of Amendment 10. As we know, Baillie Bill Aitken has his own Zorro outfit, and his mammy stitched the name Amendment 10A into its hem. Unfortunately, it proved an ill-fitting garment and the Committee was not seamlessly all of a piece. Only the Baillie himself voted for his whoopdeedoo two year mandatory jail scheme, with the wobblebottomed Labour tribunes abstaining and the reliable bloc of three SNP MSPs and the Liberal Democrat’s Robert Brown opposing. So that particular phantasm has at least, dare I say mercifully, fallen by the legislative wayside. The committee is balanced differently from the parliament, being served by 1 Conservative member, 1 Liberal Democrat, 3 Labour, 3 SNP members, with a Conservative convenor with a “casting vote” in circumstances of a tie. This differential balance was reflected in the decision on the next amendment deliberated upon by this judicious crew – the fatal Amendment 10. Up spoke Labour’s Swine Pursuivant - the ever-egregious Richard Baker - in support, touting his six month minimum. He was on his usual fatuous form, “dealing” with opposition points in turn, like a ramshackle, gibbering student debater.

“There has been debate about the cost of our proposal due to its impact on prison places. Robert Brown has said that it would cost £23 million. However, that presumes that the policy would have no deterrent effect, which we do not accept, and it needs to be balanced with other factors including the recent estimate that, last year, injuries resulting from knife crimes cost the national health service in Scotland £500 million. Furthermore, we do not accept the counsel of despair on the impact of prison. The argument is made that rehabilitation cannot take place in custody over that period, but we believe that that notion should be challenged and that greater efforts should be made to engage in rehabilitation in prison. Why should we accept the status quo, if that is what it is?”

After these remarks, the Committee voted – SNP-Liberal vs Labour-Tory, tying at 4 votes apiece. Here, Baillie Bill’s tie-breaking second vote came into its own, propelling amendment 10 through stage two parliamentary deliberations. It should not survive the third stage, however, when the parliamentary coalition of the Greens, Liberals and SNP members should lay this particular proposal aside for good. Last time I mentioned this subject, I promised to return to John Muir’s witness session before the Committee on the 23^rd of March. It was a sufficiently interesting encounter to justify recalling it now. What follows may be taken as rather inflammatory in some quarters, but the argument is worth making.  Let us begin with a quote from Richard Baker in the Committee this week:

“To those who question the practicality and cost of the proposal, I simply point to the powerful evidence that the committee heard from John Muir, who eloquently and persistently stated his case and that of other victims. The real question is what the costs will be of not pursuing the change in the law, which is why I move the amendment in my name.”

That “eloquently” is unforgivably patronising. Even being sympathetic to John Muir, when he visited the Committee he went on wild detours mounted on his own hobby-horses. Much of the interest he had as a witness was owed to the fact that he wasn’t eloquent. He had no command of detail. He roved between insisting that statistics were effectively “makey-uppey” and then leaning on them to justify his position. He gave us a peroration on how weak-kneed prison is, how it should be a Dante-esque den of punishment. He bristled about being “talked down to”, while treating the evidence session like a particularly tedious monologue. At times, this “eloquence” Baker refers to manifested in the odd spot of verbal performativity – where Muir gave a few unnatural, highfaluting words and phrases a go – before recognising himself that they made him look absurd. He was, in short, full of inadequacy, class consciousness, and clearly felt like a fish out of water. The Committee members were equally uncomfortable relating to him. He was so wholly different from the usual, besuited, middle class, professionalized people who appear before the parliament’s committees – it was a joy to watch. They deferred, very carefully, coddled, nodding as if Muir’s views on mandatory prison sentences were of any more interest than a pub bore, propping up his stool.

Broadly, they weren’t. Here is a man whose son has been killed, still full of anger and resentment, still justly so. That I can understand. Deciding to plonk him down in front of the committee to share his views was an excellent thing to do. A real rebuke to treating these issues too abstractly. That is fine as far as it goes. But don’t let’s indulge in a particularly gruesome form of identity politics, where a dead man’s father imagines himself or is treated by others as if he has all the wisdom and knowledge of the world about how to make Scotland a safer place. Asked by Robert Brown about the known problems with prison, that the deterrence effect is a willow-the-wisp, or in half-response to his fellow witness, Chief Constable David Strang’s opposition to mandatory prison measure -  Muir asked, blazing, “what about my son?” Again and again, he raised this terrifying spectre of a dead young man, its empty gaze challenging all those who disagree with mandatory prison terms. I’m absolutely not saying that Muir's experience is irrelevant to what the parliament is considering. But we should be cautious, very cautious, about the easy translation which John Muir and the Labour Party suggest. Muir’s citation is aggressive, wide eyed, fundamentally the exhumation of a corpse to silence the living, echoing again and again Muir’s earlier appalling remarks that “Anyone who disregards moves to toughen the sentencing laws on knife crime will be seen by the public as having victims’ blood on their hands.”

This isn’t a question where one thing leads neatly onto the other, of cause and consequence. It seems to me poor service to a tragic situation to use it to promote a separate agenda, which is not about making people safer in the long run or about being honest about the problems  and limitations of prison, given what we are willing to spend on them.  “What about my son?” is finally an existential wail to which politics can furnish no answers. Neither, I suspect, can punishment. It too is a willow-the-wisp, all the more beguiling for its apparent satisfactions.

Although I anticipate that the SNP and the Liberal Democrats will win the battle on mandatory prison sentences for knife carrying, I don’t think we’re winning the war. I argued previously that the party still leaves the impression that it concedes the softness which the Tory and Labour position perpetually flings in their faces.  I reiterate my point from last month, ever more urgently -- “There is a sense in which allegations of limpness have to be fended off by demonstrating that you are as hardy a punisher as the rest of them. The sagacious Liberal Democrat, Robert Brown, strikes the right note in his remarks, however, arguing:

“These figures show that rates of reoffending are appallingly high. Offenders frequently come out of prison as more hardened offenders than when they went in – and all at huge cost to the public purse.”

It is this point that the SNP should be hammering the penal morons with. What is Baker’s answer? More prison? What has Baillie Bill to say, beyond blinkered reiterations of the purposeless formulae of punishment? In this respect, the SNP could do worse than remembering – and reminding the commentating classes – about the Scottish Prisons Commission’s report Scotland’s Choice, and what it had to say about brief spells in jail. The SNP’s argument for ending short-term prison sentences will never emerge from its defensive position unless the premises of Labour and Tory policies are robustly rejected. Why is it tough on crime to perpetuate a social policy that generates crime and violence? We have the figures. What is their answer? Do they deny the significance of recidivism? Have they even thought about it? What about Kenny MacAskill's character - “the totally misguided person who thinks a knife gives extra protection”. Do Labour and Tory really think that such characters don't exist? Alternatively, if they are willing to concede that they do exist, do they honestly hold that such a soul would be improved by two years in prison? Do they think his crime is so egregious that a Sheriff should have no discretion to distinguish the daft from the deeply dangerous? I haven't lost all faith in the Scottish Labour Party's capacity for the application of right-reason. Surely Henry McLeish cannot be the only man in the red ranks who disagrees with Richard Baker.”

Steven Purcell & Scottish organised crime (Redux)

Since it is a quiet Easter Monday, no doubt all pious contemplation with hardly a synapse to spare on the crude worldliness of politics, I thought I'd indulge in another 'Redux' post and recover what I hope is an interesting and apt post from my archive, of revived relevance to contemporary issues.

Given the increasing emphasis in the ongoing scandal surrounding Steven Purcell on the former Glasgow City Council Leader's organised crime connections and the professional drug-pushers which seem to have furnished him with his cocaine, I thought this post from June 2009 might be of particular relevance. Reporting on the first ever published "mapping" of serious organised crime in Scotland by the authorities, it ought to give us at least a slightly improved sense of what we are talking about when trading in the terms of organised criminality. Moreover, I think it is crucial for those of us who don't make a habit of reading the local tabloid media to understand that the style in which they report organised crime stories deviates significantly from those employed by the BBC et al. For that reason, we may not be fully appreciating the context in which Purcell's venal stupidity is being understood by the tabloids' more regular readers. Who are, after all, all potential voters.

Scotland's Organised Crime Map...

Three-odd years ago, I took a criminological course in the Netherlands on “organised crime”. The particular strand of illicit activity we focussed on was the international drugs market. Following known importation routes, supply structures and subsequent patterns of drug consumption in particular nations and communities. As Holyrood’s Justice Committee is finding out in its deliberations on the Criminal Justice and Licensing (Scotland) Bill, defining clearly what ‘organised crime’ is can prove rather vexing. As one struggles to put legislative intention into effect, success must be determined by including and excluding persons from the desired categories without tying oneself up into unnecessarily awkward definitional knots. My sense is that the Scottish Parliament will probably attempt some redefinition, which nevertheless is sufficiently open-textured to generate legal arguments and cases. Scots judges would be left, in the circumstances, to determine the appropriate ambit of meaning in individual, concrete cases. One Dutch author, drawing on their research defines serious organised crime as the following:

“There is organised crime, if groups that are primarily focused on generating profits, systematic use violence, that have severe consequences for society, and are capable of masking these crimes in a reasonable effective way, in particular by willing to use physical violence or rule out persons by means of corruption.”. (Fijnaut, C. et al. (1996) Inzake opsporing. Eindrapport georganiseerde criminaliteit in Nederland. Den Haag: Sdu. Bijlage V.)

So how would this apply to Scotland, what do we know about Scotland’s “organised” criminal enterprises? Well, a little more this week, perhaps, with the publication of some material from the first mapping exercise conducted by the still-youthful Scottish Crime and Drug Enforcement Agency. On the 2nd June, it was announced that the Scottish Government have stumped up the cash which will fund the Scottish Intelligence and Co-ordination Unit tasked centrally with an ongoing “mapping” of such enterprises in Scotland. They are rather coy about how they defined 'organised crime' in their exercise, amongst other things. What follows is, as a result, rather impressionistic. It is also apt to rather under report the incidence of organised crime, or potentially give a misleading impressions about what is going on “on the ground” across the corporate life of criminal enterprises. The headline numbers drawn from this map were trailed in a number of the newspapers, but generally not interrogated very closely. What with the political paroxysms caused by the Brown Government flailing about in its guts like a burst slug, press attention is elsewhere.

Organised Crime in Scotland & the Media...

Interestingly, in my researches into how the Scots media talks about organized crime a few years ago, there is a radical discontinuity of approach between popular tabloids and the broader pages of the Herald and Scotsman. I found that more detailed reporting of organised crime characters in Scotland is largely populist, covered in the tabloid press in detail, often in a relatively cursory fashion by the more upmarket broadsheets. Associated are the shelf load of Scottish “real crime” books available, with their wistful, “No Mean City” authenticity, classically speaking Glaswegian patter. While the former often give extensive detail - however doubtfully it might be viewed - the latter section of the media tends only to give bare facts, ages and the ‘gangster’ moniker. Context, in particular, is shorn away in the broadsheet accounts. If the tabloids can be viewed as tending towards “folk-hero” depictions of certain known, identifiably Scottish characters – the middle-class papers simply render the criminal actors as unspecific, empty and ultimately unintelligible. Exceptions are sometimes made for well-heeled offender. You may recall the Newton Mearns solicitor who was implicated and convicted after a high-profile “drugs-bust” in Barlinnie prison. She carried the heroin into the prison during Sunday visits to her incarcerated clients. Less attention was paid, however, when the “ringleader” of the prison gang, one George “Goofy” Docherty, was violently murdered in the centre of Glasgow. Run across and reversed over by a car several times, he was also stabbed before his attacker fled. It is my understanding that the use of knives or other sorts of cold steel remains a common aspect of gang-inspired violence in Scotland, on account of the prevalence of Kevlar suits. I wouldn't want to suggest that the tabloid accounts simply glamorise organised crime. Indeed, they can be exceedingly condemnatory. The primary point I want to make is that they talk about organised crime as if its creatures are familiar characters of local reference, known and notorious. For those of us who more usually gather our news from the middle-class press, this difference of tone is quite striking. Associated with the lofty, bemused examinations of crime characters conducted in the pages of the Herald or Scotsman, is a lack of detail. Serious organised crime may feature as a social problem, but the particular features and characters and identities of the social actors implicated remain entirely occult.

Information in the public domain, however, remains fairly limited. To give you some idea of the curious potential and creative ways which groups transport their goods, a particularly vivid example is provided by the case of Torres v. H.M. Advocate (1998). The master of the boat Dimar-B was convicted of sailing from Colombia to the extreme north west of Scotland in Oldany, Sutherland where dinghies made landfall, placing the cocaine in trucks to be transported south. The distance sailed must be 7360 km or 4573 odd miles across the Atlantic. Howarth (Christopher Eric) v. H.M. Advocate describes a similar expedition to Scotland in 1992. These examples are too specific to sculpt trends from. However, they fulfil a useful function in illustrating the significant potential for clandestine smuggling in low-population areas along the Western Coast, and explain the broad scope reported by the Mapping Exercise.

In general, I’m obviously not in a position to judge the police evidence one way or the other on how well it actually represents the world. A few obvious limitations can be pointed out, however. As I mentioned, we don’t know what definitions or conceptualisations of organised crime the police are using, and hence, what they are excluding. Secondly, obviously the reporting is based on knowledge, and hence, won’t record as yet undetected criminal enterprises. Thirdly, I find the division of reports rather suspicion. For example, the Serious Crime and Drug Enforcement Agency are recorded as contributing 59 groups. Were there crossovers in reporting? If so, who takes precedence in the “recording” of a group, the local police force or the SCDEA? It isn’t potentially hugely significant, however there is room for disparity.

The fourth, broader point emanating from this, is the understandable but essential weakness of the evidence – it skims across the surface, flitting as a skater, leaving only a blur of colour, and none of the important qualifying texture. However explicably in terms of keeping operational knowledge quiet, and whatever the ostensible increasing transparency of the exercise – I’d propose a measure of quiet scepticism about the figures as presented. Nevertheless, exploring the detail a little more closely is, I think, potentially revealing…

Scottish Serious Organised Crime Mapping Exercise: Analysis of the Detail

Per the brass-throated Old Testament prophets, the headline is that the report identifies 4066 individuals involved in 367 “serious organised crime groups” attended by 241 “specialist links” constituted of crooked lawyers, blind-eyeing money scrubbers, shameless profit turners and over the barrel process servers. The research, they suggest was conducted between November 2009 and April 2009. The trickling information streams flowed from Scotland’s eight police forces, as well as the British Transport Police (BTP), UK Border Agency (UKBA) and the Scottish Crime and Drug Enforcement Agency (SCDEA). HMRC, the Serious Organised Crime Agency and the Association of Chief Police Officers (ACPOS) also slung their oar into the mix, as if we weren’t already replete with dizzying acronyms.

Of the total 367 “groups”, the breakdown per force and associated agencies is related as follows:

SCDEA 59

UKBA 3

BTP 3

Strathclyde Police152

Lothian and Borders Police 35

Tayside Police 29

Fife Constabulary 24

Grampian Police 16

Dumfries and Galloway 6

Northern Constabulary 25

Central Scotland Police 15

92% involved in drug crimes = 336/367

8% not involved in drug crimes = 31/367

48% involved in drug importation and/or distribution 176/367

53 and 20 SOCGS known to source cocaine and heroin outside the UK

125 groups involved in dealing cannabis

If we are defining “drug crimes” here as offences under the Misuse of Drugs Act 1971, there is a relatively limited list, and about seven primary offence categories. There are (a) restrictions on importation and exportation of controlled drugs (b) restrictions on production and supply of controlled drugs (c) restriction of possession of controlled drugs (d) occupiers who knowingly permit the foregoing on their premises (e) smoking opium, or lounging in opium dens (!) (f) prohibitions for supplying articles for administering or preparing controlled drugs and (g) various regulatory offences. So if we take “involvement in drug crimes” as the larger category, and believe that 176/336 (52%) are distributing or importing – and distribution, after all, can encompass the very large and the very small forms of substance dissemination - what are the other 48% listed as engaged in criminalised “drug” activities up to? Particularly since there is apt to be cross-over within these categories, this is difficult to tease out. Presumably also, if the macro-category is a binary “engaged in some drug crime or engaged in no drug crime”, there are wildly varying levels of actual criminality. On this measure, even if one of their “associates” was known to enter commercial relations for the sale of cannabis, the whole organisation could be coded as an organisation involved in drug crime. Moreover, variation in extent is obviously not accounted for in the public figures. Hence, the implications are difficult to scrutinise closely.

81 (22%) involved in money laundering.

161/367 SOCGS involved in serious violence or murder (44%)

77% of groups involved in violence were from Strathclyde area

Difficult to analyse the bald statement, since it is difficult to determine whether “violence” here is given the same meaning as “serious violence” is above. If so, and we “read into” our analysis that the 77% figure relates to the anterior statistic, then 124 violent serious organised crime groups are based in the Strathclyde region. Compare this to the total identified by the Strathclyde force, this would suggest that 124/152 of the groups identified by the mapping exercise in Strathclyde are violent. That is a whopping 82% of the total for Strathclyde which are identified as violent. When compared to the total figure, violent criminal organisations emanating from Strathclyde would make up 34% of the total serious organised crime “picture” in Scotland. However, the strong caveat is that this analysis is based on the assumption that “violence” and “serious violence and murder” in the public summary of the mapping exercise’s findings have the same meaning. If that assumption is false, and that the “violence threshold” is different in the different sections, the figures of 80% and 124/152 groups identified as violent could be well wide of the mark.

42 SOCGs involved in theft (11%) and 40 in fraud (11%)

19 involved in sexual offences, 10 involving human trafficking

202 have access to firearms – that is 55% of the total.

Interestingly, far more than are identified in the violence or serious violence categories earlier. Turning to the statistical information about individual characteristics of our 4,066 professional criminal souls, the archetypes are perhaps predictable. Males constituted 89% of the “personnel” mapped out, suggesting also that the age range amongst these persons is mid to late 20s. 82% of these are identified as White European (3334) while 383 were identified by the moron-moniker of “BME” – presumably meaning “black and minority Ethnic”. This constitutes around 9.4% of the total. Almost half of this second category were foreign nationals. Counting up the maths, the odd thing is that between these two groups – one doesn’t reach the total “headline” figure of 4,066. The “white European” category amounts, by my reckoning, to 3334, which when added to the 383, amounts only to 3717 persons. Leaving us shy a not insignificant 349 souls in the reported statistics. Where are they? That “ME” – minority ethnic – is potentially vastly encompassing. On the surface, however, we don’t know who is or who is not included in it and whether it is a big “ethnic other” category, or whether further distinctions were made and are simply not being reported. Its impossible to guess accurately a priori, leaving another unanswered question about the data, as it is presented.

Finally, my own favourite category. Or to put it a bit less glibly, the category most corruptly implicated in legitimating organised crime capital and activities - the “specialists”. The map identifies 241 “specialists” operating in Scotland. As opposed to mere “members or associates” , specialists are engaged for their particular knowledge of public systems. An interesting potential distinction to be drawn here – and which I suspect isn’t being drawn in the 241 number - is between those who are simply experts in fumigating awkward monies by dint of practice, and those who are in some sense “specialists” already in matters accounting, financial or legal – and who are tempted by the possibilities of being involved with dodgy customers. The “character” the study seems to be presenting is the latter – someone you consult, rather than an “in-house” corrupt counsel. In particular, a measure of operational independence seems to be suggested by the numbers cited as having “connections with more than one of the identified groups.” While the mapping exercise claims that 80% work with one group connection only – that is roughly 193 or 194 “specialists” known to be involved with only one group - that leaves 48 individuals known to have connections with more than one. It is a pity that we don’t have a breakdown of which industries these 241 people – or the 48 – are involved in. Nevertheless, these shadowy facilitators and accomplices with their complicities are a rotten lot. Important to note too that this means that of the 367 groups – at least 194 are connected up with specialist advisers: that is 53% of the total groups identified for Scotland. It is likely, especially since under-reporting is a distinct issue across this mapping exercise – that that number is higher, potentially much higher.