You have the right to remain silent

How does a profoundly deaf man, with no speech and only basic sign language skills, give evidence in court? This was the difficult question undergirding the Court of Criminal Appeal's decision in McDougall v. HM Advocate, published today. Louise McDougall, 24, was indicted in the Sheriff Court, accused of threatening or abusive behaviour towards the 86 year old complainer, and an assault to his severe injury and permanent disfigurement with a fireside implement in his Dundee home. 

In response, McDougall told the police that it was the complainer who first sexually assaulted her and threatened her with a knife. The injuries inflicted on the old man, she said, were the result of legitimate self-defence. It was this allegation which gave rise to the third charge McDougall faced: that she had attempted to pervert the course of justice. The Crown argued this whole story was a tissue of lies and there had been no sexual assault. 

The complainer's evidence was clearly critical to the Crown's case. But how could he testify? It was proposed that the complainer's long-term companion interpreter, Jennifer Ramsay, should facilitate the presentation of his evidence to the court. Ramsay practised as a specialist interpreter in "minimal sign language", and knew the complainer very well.

Indeed, she'd had dealings with him for the last seventeen years, dealings which had only increased after a stroke in the spring of 2013, some months before the incident with the young woman occurred. This proposal was challenged by the defence, who argued that there was a "real risk of prejudice" if someone so personally close to the complainer was permitted to act in court as his sign interpreter and translator. 

Evidence was taken, during which it was revealed that there were a number of alternative interpreters available, but "there had been no attempt by the Crown to seek or to instruct any interpreter other than" Ramsay. Nevertheless, the sheriff concluded that she was "not satisfied that there was a real risk of prejudice" to the accused and a "real risk to the interests of justice" if the complainer's "evidence was not properly interpreted." Ramsay, concluded the sheriff, "was clearly the best person to achieve that." 

You may sympathise with this assessment. Taking the complainer's impairments into account, someone with an intimate knowledge and experience of interacting with him may well be best placed to comprehend, decode and relay the significance of his gestures. But there remained a nagging doubt. Was Ramsay too close to the fray? Too personally involved with the complainer? Even if she did her very best to be cool, impartial, and to interpret the complainer's testimony in an unbiased way, could she avoid human sympathy for the complainer? Even unconsciously?

And as Ramsay herself recognised in evidence, it would not "be impossible for another interpreter to interpret for the complainer so long as that interpreter was able to spend a couple of hours with him beforehand, to become familiar with what was, in his case, required." The Appeal Court thought not. Quashing McDougall's conviction on grounds that a miscarriage of justice had occured, Lady Smith concluded that:

[13] The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant. In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance. The point was not whether or not Mrs Ramsay would in fact be deliberately biased; no one suggested that she would be deliberately biased. Partiality may, however, be conscious or unconscious and a trial can be rendered unfair by the presence of partiality, whatever its source and whether actual or apparent. If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one.  

[14] All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk. The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination. It was a risk which did not, in the circumstances, need to be run.

Appeal judges also revised a Crown motion to grant authority to bring a new prosecution against Louise McDougall - a request which was delined, partly because of the length of time she has already spent in custody, partly because "the Crown were not without fault in this matter", presumably in failing to canvass alternative interpreters.

You can understand the human sympathy for the complainer which may have animated this decision by the prosecution. In submissions, the Advocate Depute argued that "it was important to equip a frail and vulnerable witness so as to enable him to give his evidence" and in view of the complainer's "particular circumstances", the use of a well-known interpreter was justified.

He might also have argued that employing Ramsay was the best way of securing the best evidence from a complainer, for whom communication could clearly be challenging. But this seems ultimately unpersuasive. The Appeal Court must be right about that. In its efforts to accommodate the complainer's needs, the accused's rights and entitlements slipped too far from view.

McDougall is also an important reminder that victim-centric decision-making can risks losing sight of other important aims and values in criminal justice processes, not least that the accused should be tried fairly. There is a presumption of innocence, not a presumption that the complainer is telling the truth - even, or perhaps especially, a complainer whose personal characteristics render them, in the Advocate Depute's phrase, "frail and vulnerable".

This is an all too-human case. You sympathise with the choices made, and why they are made. This was, I think, an all-too human mistake by the procurator fiscal. One that Lady Smith and her colleagues - more coldly seeming, perhaps, at a bit more emotional distance - put right today.

Pessimisms

Pessimism (n.) A philosophy forced upon the convictions of the observer by the disheartening prevalence of the optimist with his scarecrow hope and his unsightly smile.

As the short campaign ticks ever more rapidly by, I keep coming back to the theme of pessimism, and even fatalism. In politics, it matters what you what you feel pessimistic about. Gloomy about imperfectable human nature? Cautious about discarding with established traditions and institutions in the name of abstract moral and political projection? Toryism grows from these kinds of scepticisms. But in the independence campaign, many different competing pessimisms flourish.

On the left-inflected Yes side of the argument, we find a unifying pessimism about Westminster politics in general, and the Labour party in particular, as effective vehicles for realising a better, fairer vision of society (we can squabble about the small print down the line). The Radical Independence Campaign's slogan, "A Better Scotland is Possible," with its implicit disavowal of the possibility of a Better Britain within current government structures, media environment, and political parties, reflects a more general doubt on the Yes side of the aisle.

The left flank of the No campaign go in heavy on the rhetoric of solidarity, classically ending with the challenge to those inclined to vote in favour of independence that "you're abandoning us forever to Tory rule." Arithmetically, this claim doesn't stack up. If anything, the lesson of history actually shows that Scottish votes have made bugger all difference to the overall general elections results in the last half century. If English votes for the Labour Party, we get a Labour government, and if not, not. Such are the advantages of making up 84% of the Union.

But there's a strand of resigned Yes thinking - I put it no higher than that - whose instinctive response to the solidarity argument is to say, "I'm terrifically sorry, but you're fucked anyway. This is a rescue operation. To the lifeboats!" The mantra of running a positive case for independence is built on a fundamental - and to my mind, well founded - negativity about London rule and the potential of the devolution we are permitted fully to realise the kind of state I want. Even if we accept that some additional powers of income tax are coming down the line after a No vote, none of the Westminster parties are proposing to deprive Iain Duncan Smith of the responsibility of deciding what parsimonious stipend disabled people should be entitled to.  The proposal to devolve housing benefit is a transparent political sot.

Neither Labour, nor the Tories, nor the Liberal Democrats, show any sign of embracing an autonomous Scottish system of social security. All of these policies are to be hoarded greedily, at the centre. And none of this answers the fundamental questions about money, taxation, and the political choice about the size of the state, and what its vocation ought to be. He who pays the piper calls the tune is a bad motto for devolution. Within the budgets we're given, we can set our priorities. But faced with a governing party at Westminster, determined as a matter of ideology to shrink the size of the state, we can only count the pennies of our Barnett consequentials, and strive to make less money go further. It is a hopeless position.

In the No campaign, we find other pessimisms. There's a strand or two of the Tory doubt, sketched above. Johann Lamont expressed another in her inarticulate, but often unfairly misquoted, comments about "Scots not being genetically programmed to take political decisions." Along with her right-wing fellow travellers, she's attacking a ridiculous straw man. Nobody with any nous is arguing that Scots are the righteous elect, while our southron neighbours bear the mark of Cain, for badness and injustice. That's rot.

But we're in see no evil, hear no evil territory, if we refuse to recognise the ideological differences separating the common ground of Westminster politics from the bare consensus to be struck in Holyrood. It is bizarre to see folk, proclaiming that they're committed devolutionists, who regard the idea of a distinctive Welsh, Northern Irish or Scottish balance of political opinion as a manifestation of repugnant ethic nationalism. Cast your mind back to 1979 and 1997. Many of the same slogans were on your lips then. (Well, not on Johann Lamont's, of course, who was in those days a devolution sceptic.) Were the ideas that brought us the Scottish parliament in 1998 a ghastly mistake, founded on suspect ethnic thinking?

On Scotland Tonight this week, Labour MSP Jackie Baillie repeatedly underscored the point, when challenged about the bedroom tax and foodbanks, that poverty is not a constitutional issue. And up to a point, she's right. Poverty isn't necessarily an issue about the powers and institutions which govern us. But it can and must become one when the current dispensation systematically pursues policies inimical to our fundamental principles. Faced with structural failures and deviating preferences, we have to look at the fundamentals of how we are governed.

That, in a nutshell, must be the thinking behind devolution. After all, Baillie might have made precisely the same argument against Scottish devolution in 1997 or 1979. "Why have a Scottish assembly? Education doesn't pose challenges unique to Scots. The English and Welsh and Northern Irish must also order their health services, and their local democracy. None of these are constitutional questions either."

Baillie's solution, inevitably, whatever the issue or problem, is to "Vote Labour." Behind the scenes, in private, Labour sorts may bitch about their past governments and their comrades in the Westminster parliament.  But officially, in public, Miliband is represented as the one great political redeemer whose triumph is guaranteed.  All other potential routes to a more just society are scrutinised with a baleful, unconvinced eye. Baillie implies that independence-supporters are making a category error when they identify constitutional change as a way of alleviating the poverty which blackens this rich country.

That's her preferred political frame - optimistic as she is about the possibility of a better Britain with a Labour government. But just like those in 1979 and 1997 who fought for a Scottish parliament and assembly, sometimes, if you want better outcomes, you have to resort to constitutional politics.  Given the Labour party's tedious trumpeting of its credentials as the "party of devolution," and the claim that Scots can look forward to more powers after the separatist threat has been contained, you'd think Jackie Ballie might show a glimmer of understanding of that.

And lastly, perhaps most challengingly, the hopeless, the cynical and the disengaged frequently express another, much more enervating, sort of inevitability: nothing can really change. Vote Yes, vote No, I'll still be buggered.  They all speak with forked tongues, the whole rotten lot of them. Politics is pointless. They're all at it. Chancers and scumbags to a man. When it comes down to it, the referendum is just question of who gets to fuck up my life, not whether my life will be fucked up. To the bad fire with the lot of them. This kind of perspective, above all, represents a fundamental challenge to the Yes campaign. Alistair Darling can rely on Better Together's key activists: Inertia, Caution, Anxiety, Fatalism. We don't have that luxury.

One solution has been to demand facts, as if, if you assemble sufficient facts, the decision about how to vote will take care of itself. It won't. Like all of the pessimisms sketched above, they partake of facts, but ultimately come down to prudential judgements on the best evidence before us. None of us have the Brahan Seer's stone to hand. The data is muddled, fragmentary, complex and incomplete. The future is murky. We can only consult our principles, the evidence, and our experiences, and take the decision on the basis of our best guesses about that future.  No quantity of material, no weight of contradictory evidence, can make the choice for you.

But in making that judgement, what you are pessimistic about matters profoundly. Unconsciously, perhaps, in the voting booth on September the 18th, Yes or No, we'll have to try our hand at casting the bones, and reading the tarot. In the final analysis, in the anxieties of the judgement space, we will all have to be negative - and positive - about something.

In praise of ... short constitutions

Thomas Jefferson once observed "that the earth belongs in usufruct to the living".  Usufruct is an old concept from Roman law, often known as life-rent in Scots law. The usufructary may make use of the property she occupies, enjoy its fruits, till its fields, but she may not dispose of it forever.  Once her life is spent, her rights over the territory are extinguished.  

In his 1789 letter to James Madison, Jefferson was concerned with the relationships between one generation, and its successors, writing:

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it."

As the future President of the United States recognised, this is a question of singular importance, when framing and thinking about constitutions. It is a question which will face Scotland, if it emerges as a renewed sovereign state after 2014.  What political struggles do we crystallise, try to settle in its page or pages? What issues do we let dead men and women decide for the living? What liberty do we leave to future generations, to determine the shape of our polity, or alternatively, to amend the terms of the constitution, if it grows uncongenial or inconvenient?

Already in the debate on Scottish independence, we've heard grand claims made for constitutions, and an accumulating laundry list of concerns and cares which folk will, in time, vie to have added to an independent Scotland's fundamental law and list of protected rights, liberties and entitlements. 

We've heard talk of an "aspirational constitution" for Scotland, an inspirational crucible for "our" values. Amy Westwell has argued the case for a vigorous, radical constitutionalism for a new Scotland:

"There must be a real political rather than institutional movement, which talks about democracy, active citizenship, and public law in terms of the constitution, so that when the constitution comes to be formed it is seen as a political statement, and the establishment of levels of democracy as the embodiment of ideals, rather than bureaucratic institutional forms."

Substantiating of version of this, the First Minister has mentioned a ban on the presence of nuclear weapons in Scots territory, and even a constitutional provision requiring free education and youth employment for every nipper. As the issue is discussed, my guess is that we can expect more and more suggestions to accumulate across the gamut of policy.  

The Brazilian constitution furnishes a potential model of this sort of expansive, aspirational fundamental law.  It regulates, amongst other things, extensive labour rights including rates of annual holiday and minimum wage "capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose".  

Once you get into this sort of thing, where do you stop? What political topics ought to be immune from the ordinary political process, excluded from the usufructary package, and written into the fundamental law? After all, what about women's rights? Why not put rights of access to abortion in the constitution, and to equal pay, maternity (and paternity leave) into the document? What about disabled people? Shouldn't their entitlements to benefits enjoy entrenched protection, rather than being subject to the ordinary argument and sway of month by month, year by year politics? The NHS is, for many folk, emblematic of a collective commitment, however fraying it might be, to social democratic values. Why not ban the outsourcing or services to the private sector in the basic law of a new Scotland?

In other countries, constitutional protections reflect political experiences, and political struggles, with the victors keen to entrench hard-won gains. This is an understandable impulse, but I'm not convinced that it is one an independent Scotland ought uncritically to follow, whatever the clamour from this interest group, or that. I'm sympathetic to all of the policies I summarised above. I'm just not convinced we ought to find them in the written constitution of an independent Scotland.

To give you one example, a lesson in caution about what you include in your constitution, a story in the Irish Times caught my eye this week. The Republic's Supreme Court is overloaded, and plans are afoot to institute a new Court of Appeal, liberating the apex tribunal to focus its attention on tricky constitutional matters.  Under Article 46 of the Irish constitution, the necessary amendments to the constitution will need to be approved by a national referendum. Although access to courts is an important issue, it seems an extravagant requirement to consult the whole body of the Irish people about introducing necessary reforms to how justice is realised.   

Of course, other states organise things differently, dispensing with any referendum requirement, requiring instead only a qualified majority in the legislator to alter the constitution.  But both the issue of what to include, and how we might amend any basic law we pass, returns us to Jefferson's anxiety that the living, and not the dead, should decide how their polity is governed.  

Of course, things are a wee bit more complicated than that. Constitutions can be lyrical statements of values, but legally unenforceable in court. I'm not enough of a dry legalist to argue that mere words of this sort are unimportant, and that justiciability should be treated as the gold standard of value. In thinking about any constitution, however, we begin to make serious choices early on.  

Lean constitutionality of the sort I favour is, I suspect, unlikely to find much favour with many politically active Scots after independence. A constitution which established institutions, lawful forms isn't one to stir the blood.  Its jurisprudential aspirations won't stiffen the sinews, save perhaps for the willowy limbs of the stoory odd public lawyer.  It'd look suspiciously like the rejected, Westminster-style legislative supremacy, even if a modest list of protected civil and political rights were appended. A crucible for national values, save for those of democracy, liberty and the rule of law, it ain't.

There is nothing democratic or radical about this generation trying to settle its will on all who come after it.  The entail (or tailzie, for your Scots lawyer) is an outgrowth of feudalism, not a lively concept fit for an active democracy of engaged citizens. 

Politics too belongs in usufruct to the living: not to self-righteous, dead social democrats, nor old wigs in the dim litigious light of a constitutional court.

Scottish attitudes towards discrimination...

In a particularly timely publication, yesterday the Scottish Government released the findings of the Scottish Social Attitudes Survey 2010: Attitudes to Discrimination and Positive Action. Large-scale survey research whose findings are weighted, I've discussed the findings of previous SSA reports before, which always afford interesting insights into the complicated muddle of opinion on any number of subjects in contemporary Scotland. These findings are particularly pertinent on a spectre which was summoned up recently. It has been suggested in some quarters that Scotland is a more socially conservative place than England. Indeed, variations of this argument are sometimes pressed into Unionist service, furnishing a reason why we should be feart about governing our own affairs. I don't propose to enter into a detailed examination of the report's findings just now, but a quick whizz across the main themes it addresses should allow folk to follow up the issues which particularly interest them, pending future, more fulsome blogging on point from me. As the researchers explain in the introductory section of the document...

1.1 In 2010, the Scottish Government promoted a year of 'homecoming', celebrating Scotland's contributions to the world and inviting people across the globe to celebrate Scottish culture. To tie in with 'homecoming', the Equality and Human Rights Commission (the Commission) in Scotland held a public debate in Edinburgh which posed the question 'Is Scotland worth coming home to?' It asked how true our image of ourselves as a fair, welcoming and hospitable nation actually is, and how well this image stands up when we look at Scotland's attitudes to people from different groups.

1.2 This report provides the kind of robust data about public attitudes required to answer difficult questions like these. It presents findings from the 2010 Scottish Social Attitudes survey (SSA), providing a detailed picture of public attitudes to discrimination and positive action in 2010. Moreover, as this is now the third time SSA has included questions on attitudes to discrimination (following previous studies in 2002 and 2006) this report also provides valuable insight into how public attitudes in this area are changing over time.

The survey addresses a number of different equality strands, from disability, gender, sexualities, ethnicities, and particular "scenarios" of discrimination, from employment to relationships. Interestingly, this broad data is extensively broken down by gender, by education, by religion - and so on. Chapter two addresses respondents' more gender attitudes towards discrimination,whether discrimination is perceived as justified in general terms or not, including whether or not they know individuals from discriminated against groups - a Muslim friend, a gay cousin, and suchlike.  Particularly germane in the context of the outbreak of discussion on equal marriage for same-sex couples, Chapter Three...

"... examines discriminatory attitudes in the context of personal relationships. It compares how happy people would feel about people from different groups forming a long-term relationship with a family member, and also looks at attitudes towards the acceptability of same sex relationships and views about same sex marriage."

The researchers were exercised to discover what respondents thoughts of the idea of a "a close relative married or formed a long-term relationship" with an individual from various different categories, including:

"...someone who is black or Asian, a Muslim, a Hindu, someone who is Jewish, a Christian, someone who experiences depression from time to time; a Gypsy/Traveller; someone who has had a sex change operation; someone of the same sex as themselves; and someone who cross-dresses in public."

"Happiness" or "unhappiness" with the idea of kin forming relationships with individuals from these groups is correlated against a number of other concerns, including how ancient respondents are, how educated.  Unsurprisingly perhaps, those over 65 entertain a series of prejudices which the youngest cohort of respondents do not share. One paragraph will particularly catch the eye of those interested in the coming session of Holyrood...

3.18 The issue of obtaining equal rights for gay and lesbian couples to marry, and not just to form civil partnerships, has been a subject of significant campaigning by some within the gay rights movement in the UK in recent years. In 2010, 61% agreed or agreed strongly that 'Gay or lesbian couples should have the right to marry one another if they want to', while just 19% disagreed (see Annex C for full results). These findings certainly suggest that a change in the law would receive support from the majority of people in Scotland.

The fourth Chapter explores...

"... discriminatory attitudes in the context of employment, comparing views of the suitability of people from different groups to be a primary school teacher. It also explores beliefs about maternity and paternity leave and older people working, and perceived labour market competition from different groups of people."

Relations within employment are also germane to Chapter Five, which posed a new series of questions on attitudes the symbols of religious piety. The researchers asked their informants to imagine a scenario where a bank is conducting interviews, attracting applicants from a range of religious dispositions. Respondents were questioned about whether this banking employer should be able to force individuals to remove their religious dress or symbol while at work.  Depending on the symbol and religion, views differed substantially. While few seem enthusiastic about stripped anyone of their crucifix (15% thinking the bank should probably or definitely be able to order its wearer to remote it), there is a stark degree of enthusiasm for employers to be able to insist that female Muslim employees remove their veils. While about a quarter of respondents were up for forcing a Sikh to shed his turban, or a headscarf - a very large percentage - 69% of respondents - thought the bank should be able to force its employees to dispense with a veil. Interestingly, more men than women hold this position.

Chapter Six looks at attitudes towards measures for promoting equality and positive action. Subjects addressed include attitudes to reasonable adjustments for disabled people, and other forms of spending, to held folk from different group find work, amongst others.  Chapter seven compares these answers with the findings of past SSAs, exploring how views may have changing over time, including attitudes towards same-sex relationships - by gender, religious attendance, age. Eight asks about the impact of the recession, and touches on respondents' attitudes to ethnic minorities. Do respondents agree that people from ethnic minorities take jobs away from other people in Scotland? What about Eastern Europe? For those after a brisk summing up, a gander at the conclusions is a fine way of short circuiting labouring through the (not always vivid) prose used in government reportage.  I'll close with the first part of the researcher's concluding remarks, which give a savour of some of the main themes addressed elsewhere...

9.2 This report has shown that, for the most part, only a minority of people in Scotland hold attitudes that could be described as discriminatory. Moreover, given that such views are strongly related to age, education and knowing someone from a particular group, all other things being equal, we might expect such attitudes to become even less common in the future. As more highly educated younger generations replace the older generations, and as people come into contact with more people who are different from themselves through work, family and other routes, we can expect that prejudiced views will continue to decline.

9.3 However, this report also includes numerous findings that should warn policy makers that this process is not inevitable.

9.4 First, while it is true that for the most part only a minority express discriminatory views, that minority is not always a small one. Some groups - particularly Gypsy/Travellers and transgender people - appear to be the subjects of fairly widespread discriminatory attitudes.

9.5 Second, discriminatory attitudes towards a group of people with particular characteristics often appear more common than discriminatory attitudes towards individual members of that group. In this survey, this appeared to be particularly the case with respect to attitudes to people from ethnic minority groups. Perhaps groups of people with characteristics that may be perceived as different trigger concerns about cultural diversity and economic competition in a way that individual members of that group may not.

9.6 Finally, the incidence of discriminatory views is not evenly spread across Scottish society - there remain certain sections (for example, older people and those with lower levels of educational attainment) that are relatively more likely to express such views. Neither are individual people's views towards a particular group necessarily constant - our data suggests that attitudes may vary widely depending on the specific scenario involved.

9.7 Thus although the findings in this report show Scotland in many respects to be a relatively liberal society, policy makers cannot afford to be complacent, and need to be willing and able to address the specific circumstances that may give rise to discriminatory attitudes towards particular groups.

Source.

That anti-sectarianism Bill in full...

As Roseanna Cunningham promised on Wednesday, the Scottish Government's anti-sectarianism Bill, or to give it is proper title - the would-be Offensive Behaviour at Football and Threatening Communications (Scotland) Act - was introduced to parliament yesterday and is publicly available on the internet from this morning. For your information, I have set out the proposed Bill in full below. You may also be interested in a couple of the accompanying documents published alongside the draft, particularly the Government's explanatory notes to the Bill and their supporting policy memorandum.  I will have more to say about the contents of the proposed legislation anon.  For those without a background reading statues, their fashion of leaping about and referring you to five subsections and definitions simultaneously can make grasping their meaning something of a chore. That said, the broad gist of the Bill is, I think, reasonably plain.

Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

[AS INTRODUCED]

CONTENTS

Section

Offensive behaviour at regulated football matches

• 1 Offensive behaviour at regulated football matches
• 2 Regulated football match: definition and meaning of behaviour “in relation to” match
• 3 Fixed penalties
• 4 Sections 1 and 2: interpretation

Threatening communications

• 5 Threatening communications
• 6 Section 5: interpretation

General

• 7 Sections 1(1) and 5(1): offences outside Scotland
• 8 Commencement
• 9 Short title

----

Offensive behaviour at regulated football matches...

1 Offensive behaviour at regulated football matches

(1) A person commits an offence if, in relation to a regulated football match—

• (a) the person engages in behaviour of a kind described in subsection (2), and
• (b) the behaviour—
• (i) is likely to incite public disorder, or
• (ii) would be likely to incite public disorder.

(2) The behaviour is—

• (a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
• (i) a religious group,
• (ii) a social or cultural group with a perceived religious affiliation,
• (iii) a group defined by reference to a thing mentioned in subsection (4),
• (b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
• (c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs, (d) behaviour that is threatening, or
• (e) other behaviour that a reasonable person would be likely to consider offensive.

(3) For the purposes of subsection (2)(a) and (b) it is irrelevant whether the hatred is also based (to any extent) on any other factor.

(4) The things referred to in subsection (2)(a)(iii) are—

• (a) colour,
• (b) race,
• (c) nationality (including citizenship),
• (d) ethnic or national origins,
• (e) sexual orientation,
• (f) transgender identity,
• (g) disability.

(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—

• (a) measures are in place to prevent public disorder, or
• (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

(6) 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.

2 Regulated football match: definition and meaning of behaviour “in relation to” match

(1) In section 1 and this section, “regulated football match”—

• (a) has the same meaning as it has for the purposes of Chapter 1 (football banning orders) of Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (see section 55(2) of that Act), but
• (b) does not include a football match outside Scotland unless the match involves—
• (i) a national team appointed to represent Scotland, or
• (ii) a team representing a club that is a member of a football association or league based in Scotland.

(2) For the purposes of section 1(1), a person’s behaviour is in relation to a regulated football match if it occurs—

• (a) in the ground where the regulated football match is being held on the day on which it is being held,
• (b) while the person is entering or leaving (or trying to enter or leave) the ground where the match is being held, or
• (c) on a journey to or from the regulated football match.

(3) The references in subsection (2)(a) to (c) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the match is being held are to be taken to be references to that place.

(4) For the purpose of subsection (2)(c)—

• (a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and
• (b) a person’s journey includes breaks (including overnight breaks).

3 Fixed penalties

In Part 1 of the table in section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) (fixed penalty offences), after the entry relating to section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, insert— “Section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 (asp 00) Offensive behaviour at regulated football matches”

4 Sections 1 and 2: interpretation

(1) Section 1(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.

(2) In section 1(2)—

• (a) membership, in relation to a group, includes association with members of that group,
• (b) “presumed” means presumed by the person expressing hatred or, as the case may be, doing the stirring up,
• (c) “religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7).

(3) In section 1(4)—

• (a) “disability” means physical or mental impairment of any kind,
• (b) “transgender identity” means any of the following—
• (i) transvestism,
• (ii) transsexualism,
• (iii) intersexuality,
• (iv) having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender,
• (v) any other gender identity that is not standard male or female gender identity.

(4) In section 2(3), “televised” means shown (on a screen or by projection onto any surface) whether by means of the broadcast transmission of pictures or otherwise.

Threatening communications...

5 Threatening communications

(1) A person commits an offence if—

• (a) the person communicates material to another person, and
• (b) either Condition A or Condition B is satisfied.

(2) Condition A is that—

• (a) the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description,
• (b) the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm, and
• (c) the person communicating the material—
• (i) intends by doing so to cause fear or alarm, or
• (ii) is reckless as to whether the communication of the material would cause fear or alarm.

(3) For the purposes of Condition A, where the material consists of or includes an image (whether still or moving), the image is taken to imply a threat or incitement such as is mentioned in paragraph (a) of subsection (2) if—

• (a) the image depicts or implies the carrying out of a seriously violent act (whether actual or fictitious) against a person or against persons of a particular description (whether the person or persons depicted are living or dead or actual or fictitious), and
• (b) a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person or against actual persons of a particular description.

(4) Subsection (3) does not affect the generality of subsection (2)(a).

(5) Condition B is that—

• (a) the material is threatening, and
• (b) the person communicating it intends by doing so to stir up religious hatred.

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

(7) 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.

6 Section 5: interpretation

(1) Subsections (2) to (5) define expressions used in section 5.

(2) “Communicates” means communicates by any means (other than by means of unrecorded speech); and related expressions are to be construed accordingly.

(3) “Material” means anything that is capable of being read, looked at, watched or listened to, either directly or after conversion from data stored in another form.

(4) “Religious hatred” means hatred against—

• (a) a group of persons based on their membership (or presumed membership) of—
• (i) a religious group (within the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)),
• (ii) a social or cultural group with a perceived religious affiliation, or
• (b) an individual based on the individual’s membership (or presumed membership) of a group mentioned in either of sub-paragraphs (i) and (ii) of paragraph (a).

(5) “Seriously violent act” means an act that would cause serious injury to, or the death of, a person.

(6) In subsection (4)—

• (a) “membership”, in relation to a group, includes association with members of that group, and
• (b) “presumed” means presumed by the person making the communication.

General...

7 Sections 1(1) and 5(1): offences outside Scotland

(1) As well as applying to anything done in Scotland, sections 1(1) and 5(1) also apply to anything done outside Scotland by—

• (a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen,
• (b) a person who under the British Nationality Act 1981 (c.61) is a British subject,
• (c) a British protected person within the meaning of that Act, or
• (d) a person who is habitually resident in Scotland.

(2) Section 5(1) also applies to a communication made by any person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.

(3) Where an offence under section 1(1) or 5(1) is committed outside Scotland, the person committing the offence may be prosecuted, tried and punished for the offence—

• (a) in any sheriff court district in which the person is apprehended or in custody, or
• (b) in such sheriff court district as the Lord Advocate may direct, as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district).

8 Commencement

This Act comes into force on the day after Royal Assent.

9 Short title

The short title of this Act is the Offensive Behaviour at Football and Threatening

Communications (Scotland) Act 2011.

Source.

On the social production of the "intolerable life"

The Committee room is quiet now. No more clerics or academics, campaigners agin or for Margo MacDonald's End of Life Assistance (Scotland) Bill will be heard from, at least at the first (and potentially last) stage of the Scottish Parliament's collective hesitation over her Bill. Today, the Committee meets in private to meditate on a draft report on the evidence  they've taken. Parliamentary rules define Stage 1 deliberation as:

Rule 9.5. 1(a) "consideration of the Bill’s general principles and a decision on whether to agree to them"

When they began listening to oral submissions and round-table discussions in September, I suggested that the Committee's task was unenviable, requiring "Herculean subtlety and open-mindedness" to try to fairly reconcile the diverse, incompatible epistemologies, moralities and systems of technical knowledge they were invited to consider. Even if they prove virtuoso cartographers, able to bracket their own particular attitudes to the landscape, better to track the rhetorical terrain of their witnesses, eventually the whole parliament will find itself slurped into mire of assessing just how these diverse, antagonistic claims to expertise and ethical insight ought to interact.

As those following my scribblings on the subject will be aware, I'm in general sympathy with the purpose of Margo's Bill and have been left deeply unconvinced by the insistence that if it passes into law, it will transform Scotland's metropoleis intro necropoleis and enthrone some sort of Aztecesque culture of death. In all honesty, even proponents of this view hardly seem convinced by it. It is reminiscent of debates one sometimes falls into with Christians, who suddenly, less than ardently, deploy the ontological argument for the existence of God to shore up their piety. They don't persuade, largely because they're not Christians because they happen to have convinced themselves one morning that the ontological argument was well founded. Regurgitating the contention is a form of backwards justification and by consequence, only tenuously relates to the foundational reasons for their faith in a higher power. So too with assisted dying. The whole culture of death line is an attempt, in my view, to escape from the cul-de-sac of personal piety and deflect the real difficulties assailing a Christian cosmology, attempting to squeeze into the theoretically egalitarian, Godless space of the public sphere. Its a bizarre transmogrification, but by transforming themselves into modernist sociologists, bustling with metrological metaphors, challenging questions about the imposition of religious values on a faithless public are slipped. Speakers are then able to claim they've identified eminently detectable law-like generalisations, which iron causality leads to social ruin, degeneration in the fundament and the corruption of the Scottish polity. And all that, without a breath of the Pentateuch.

While in general I don't find these arguments terribly convincing, I did want to raise one objection I find it far more difficult to dispense with, concerning what I'll call the social production of the intolerable life. The draft Bill includes eligibility requirements, proposing to limit who could lawfully request  and receive assistance to die. These are set out in section 4(2).  Specifically, "the requesting person" must have:

(a) "been diagnosed as terminally ill and finds life intolerable" or (b) be "permanently physically incapacitated to such an extent as not to be able to live independently and finds life intolerable".

The debate has tended to emphasise the subjectivity of assessments of intolerability. Some folk, day in day out, tolerate what other people imagine they can't endure, and lead lives full of interest and significance. Take the particularly challenging instance of Daniel James from 2008. Dying in a Swiss clinic at the age of only 23 years old, James was a rugby player who experienced severe spinal injuries in the collapse of a scrum. His mother explained:

“He couldn’t walk, had no hand function, but constant pain in all of his fingers. He was incontinent, suffered uncontrollable spasms in his legs and upper body and needed 24-hour care. While not everyone in Dan’s situation would find it as unbearable as Dan, what right does any human being have to tell any other that they have to live such a life, filled with terror, discomfort and indignity?”

While we're all embodied, its crucial to recognise that the experience and importance of physicality isn't the same for every person. However, the idea that assessments of intolerability are purely subjective, abstractly moral, ethical and only an expression of your particular ensemble of sensibilities and staminas seriously risks overlooking a brutal material truth. Resources matter. Poverty, abandonment, isolation and despair are acutely involved in the production of an intolerable life.  Pam Duncan of Inclusion Scotland emphasised just this point in her evidence to the End of Life Assistance Committee, arguing:

Pam Duncan: The issue of choice is really important. As we are absolutely against the bill, we have been asked by others, "What about choice?" The crucial point, however, is that we live in quite an unequal society in which not everyone has access to the same level of autonomy and choice as everyone else. Disabled people are disempowered and do not have the same autonomy as non-disabled people. They face huge discrimination and this disempowerment impacts on and limits their choices. I also argue that this is completely the wrong time for us to ask society to make such a choice, because with the current economic circumstances the very services that support independent living and make life tolerable are being cut. With those services being cut, we are at risk of again limiting people's choice—and when one's choice is limited it can sometimes be skewed.

Is it fair to accept that we all have equality of choice in a society with such deep-rooted inequalities? I say no and argue that disempowerment limits our choice. We also have to consider the value that society places on disabled people's lives. Only the other night I saw on television the cricketer—forgive me, but I cannot remember his name—

Sarah Wootton (Dignity in Dying): It was Chris Broad.

Pam Duncan: Thank you. The circumstances were slightly different, in that his partner took her own life, but, when asked about her choice in that respect, Mr Broad said that they had discussed what would happen and had agreed that she was not "the type of person who would be pushed and fed". Well, I am that type of person and I do not think that it is fair to place such limited value on my life or the lives of disabled people who need the support to live independently—support that, I should add, is under threat in the current economic climate. In that respect, we need to question the intention with regard to choice and autonomy.

This is no trite Mystic Meggery premised on woozy Durkheimian ideas about the social life of the community. It brings the debate crashing back to earth, to small places close to home and the  practical, material politics of disability in our society. It implicates all of us, through our politics and our parsimony, in the social production of intolerable lives.

Saturday's light reading...

So we don't get too dazzled by all the besuited razzmatazz and personality politics of the election, I thought it only fair that I fill your Saturdays with scholarly joy, and mention a few pieces of research which have emanated from the Scottish Government over the last few days. The first, wonderfully ideosyncratic piece doesn't have the most creative or opaque title in the history of social research - it merely wishes to generate an  Understanding Why Some People Don't Use Buses (2010). Although it is easy to make light of such things, its easy to forget that particular modes of travel aren't just one way of facilitating movement from A to B. In many cases, it is the necessary condition for some folk to make any voyage across their towns and communities at all. A bus can stand like a metal sentinel before the portals that lead to life's richness and connectedness. 

It is dowdy, for all that, not a heavenly chariot. But we shouldn't be surprised. We'll always find more justice in small things, close to home, than we will scrutinising the cyan vaults of heaven. On point, someone recently related an appalling story to me of a  physically disabled woman, who lives in Glasgow, but who never now uses its buses. In the days when she tried, regularly she said, the driver slowed up at her stop - took one look at her waiting there and calculating that his sloth mattered more than this woman getting accessible access to the bus on equal terms with her fellow citizens - sped off instead of stopping, leaving her standing there. Scandalous and contemptible. Like justice, injustice too makes itself felt in these little places of life - even in bus stops.

The second couple of publications I wanted to mention concern reviews of two innovative approaches in criminal justice in Scotland, Drug Courts and Youth Courts. Review of the Glasgow & Fife Drug Courts (2010). With penny-pinching in the air, these well-intentioned and imaginative attempts to take new tacks with stubborn social ills begin to look precarious. Pilot Drug Courts were introduced in October 2001 in Glasgow and in August 2002 in Fife. Obviously, money isn't everything about these processes - and not all goods are reducible in a straightforward way to coin of the realm. What will become of the project - i.e. if it will continue to receive Scottish Government funding hereafter - remains to be seen.

With similar themes in mind, the Review of the Hamilton & Airdrie Youth Courts (2010) is also worth a look, primarily for the substance of the thing itself, secondly because it has political dimensions. The pilot Youth Courts' goals are:

• To reduce the frequency and seriousness of re-offending by persistent 16 and 17 year old offenders (and some 15 year olds who are referred to the courts).
• To promote the social inclusion, citizenship and personal responsibility of these young offenders whilst maximising their potential.
• To establish fast track procedures for those young offenders appearing before the Youth Courts.
• To enhance community safety, by reducing the harm caused to individual victims of crime and providing respite to those communities who are experiencing high levels of crime.
• To test the viability and usefulness of a Youth Court using existing legislation and to demonstrate whether legislative and practical improvements might be appropriate.

A bit of background on the whole project furnishes us with some helpful context - and also references the political ballyhoo that may be to come concerning non-renewal or expansion of this particular project. The Labour Party in the Scottish Parliament are very committed to the notion of Youth Courts. Any non-renewal would be like catapulting an Arctic fox into the midst of a colony of nesting Terns ~ met with much screeching, pecking and ruffled feathers all around.

Background

1. Pilot Youth Courts were established at Hamilton Sheriff Court in June 2003 and at Airdrie Sheriff Court in June 2004. The Youth Courts were evaluated by external consultants whose report was published in April 2006. The report concluded that the Youth Courts had been successful in meeting their objectives, as far as could be assessed at that time. The particular strengths of the Youth Court were noted as being the fast-tracking of young people to and through the court, the reduction in trials, the availability of a wider range of resources and services for young people and ongoing judicial review. It was too early at that stage to ascertain whether the Youth Courts had had an impact on offending behaviour.

2. In November 2006, the previous Administration announced continued funding of the Youth Courts for a further 3 years, with a view to their position being reviewed in Spring 2009. This review would assess the Youth Courts' impact on reoffending rates, with regard to the impact on the Youth Courts of the recent reforms of summary justice. The current Administration announced in January 2008 that a decision would be made about any further Youth Courts in the light of this review.

Perhaps the stickiest, albeit caveated conclusion of the report is that "Overall, the analysis, whilst not conclusive due to low sample sizes, suggests that the Youth Courts have not been particularly successful in terms of reducing reoffending." This might not make very compelling reading for a Government which will be eager to find areas where extra expenditure can be cut, without apparent decrease in overall efficacy.  The image of Youth Courts emanating from this Review reads as a classic in that genre. The report finds that the cost of fast-tracking amounts to £1,812 extra cost, per offender, per process, compared to the more stately pace which prevails in your ordinary Sheriff Court. Which, as the authors make clear, is not to say that dedicated Youth Courts don't have positive aspects. Merely that the connection between these good things and diminishing re-offending seems limited. Given the foregoing, given that this will be on Kenny MacAskill's desk for decision, Youth Courts with fast tracked processes may not be an experiment in justice which we can afford.

Brown ≠ Oedipus

There once was a man walking under the leafy boughs of the West End of Glasgow, searching for the Kelvingrove art gallery and museum. With him he brought a furry associate. His padding guide dog. Losing his way in the highways and byways, he stopped a passer by, asking her how to get to the red sandstone building from where he was now. After a moment’s thought, the lady sagged at the middle, and bending down beside the Labrador retriever’s lugs, proceeded to advise the hound to take the first right, second left, then straight on ahead.

Its sounds apocryphal – but similar little dramas of folk’s awkwardness and daft misconceptions about disability are common in our society. I’ve met a wheelchair user who frequently finds would-be Christly souls laying their uninvited hands on him. Another woman I’ve encountered, who has a bone anchored hearing aid, recounted to me similar experiences of the lunatic pious and their busy hands. Although not every member of society thinks they can personally instil divine energies, our more general, powerful discourses about disability continue to emphasise medical models, the dramatisation is one of tragedy and the thing devoutly to be wished is not social change but the dim and anticipated mysteries of cure. The politics of disability has striven to reject these tales and these policy priorities, and instead ask – what does society do to make impaired people’s lives more difficult? What does our built environment assume about the modal characteristics of its users? How can we plan our social life more effectively, both architecturally and procedurally? In what ways do our attitudes pose barriers which are unfair, unjust and unnecessary?

Among politically active disabled people over the recent political past, forging common cause among those who have been disabled by social choices has been a central rhetorical device. Implicit in this argument is a public and properly unembarrassed avowal of your status as a disabled person. It is in this context that I’m interested in how folk have been talking about Gordon Brown’s retinas – and more sharply, how Brown himself has historically contrived to conceal his disabilities in a reactionary way, pandering to the stereotypes of a clueless and gormless public. I wanted to start us off with a piece I found on the BBC’s section on disabilities, called Ouch, drafted by Disability Bitch in 2007. She does not mince her words, but does mince Mr Brown for what she regards as his connivance at disguising his disability as though it were something about which he ought to be ashamed.

Watching the political coverage, I was surprised by the vocabulary Brown used to discuss the issue with Andrew Marr. On subsequent Politics Show Scotland pieces, Nicola Sturgeon rather drably described the speculations on his sight as “distasteful” and I think, she largely misses the point. Distasteful is aloofness distilled, a word saved for grubby sex tales among those contriving to be lofty and above such “gutter politics”. The correcting ointment for those who think the speculation is distasteful is typically a resort to the language of privacy and a personal medical history. It leaves matters concealed and lets off innuendo-totting speculators with the allegation they are simply naughty or scatological souls.

They’re not. They’re grotesque. By peddling vindictive and patronising stories about disability for purely political purposes, in their pursuit of one stodgy man, they trample on the public involvement of innumerable other visually impaired people in Britain. Moreover, they foster an oppressive, spiritualising approach to blindness. The story is presented like a Greek tragedy. Benighted politically, the Fates conspire to dim Brown’s eyes, a metaphorical conjunction and a divine judgement. Brown isn’t Oedipus. Retinal tears are not the vindictive rendings of the Furies.

The answer to such narratives is not limp citations of privacy. It isn’t distasteful. Rather, the whole spun tale is an unmitigated assault on the stature of visually impaired citizens of the United Kingdom, which ought to be recognised for the unjust priggery it is. It is exemplary of Labour’s heartlessness and heatlessness that their responses on this issue have been so flat, so bereft of any crusading sense of the injustice of the thing. Who then to blame? Turn your eyes to the fat spider in the middle of it all, to Brown himself. I’m with the Disability Bitch on this point. Brown cannot find inner magma to spew. If once the volcanic energies gathered in him, they have now hardened into bare rock and the pervasive inauthenticity which has been that man’s bane. He cannot fire hot answers, and due to his slipperiness, he has furnished the baying baiters with their material. I'm sure visually-impaired citizens won't be thanking him for that.