Notes from "Middle Scotland"

Who are Scotland's "squeezed middle", and what, precisely, are they supposed to be in the "middle" of? The right wing press have begun to do their collective dingers about Nicola Sturgeon's hints yesterday, that George Osborne's decision to hike the threshold for paying the higher rate of tax looks unlikely to apply in Scotland once the Scotland Bill powers are enacted. 

In the current tax year, individuals across the UK pay 40% tax on earnings over £42,385. Come 2017/18, the chancellor intends to shift the threshold for the higher rate to £45,000. The First Minister has said cutting income taxes for "those on the highest incomes at a time when support for the disabled is being cut and at a time when our public services are under pressure, is in my view the wrong choice.”

For Alan Roden, and the Scottish Daily Mail, this is an outrage and a scandal. "Middle Scotland will pay highest tax in UK" their headline this morning screams, a "family tax grab". Mr Roden goes on to flesh out his indictment of this supposed Scottish Government larceny. 

"Nicola Sturgeon yesterday confirmed that Scotland's squeezed middle will be punished with the UK's highest taxes to pay for the SNP's vote-winning policies. The First Minister said George Osborne's tax give away for nurses, teachers and police is "not a choice I am going to make."

With the paper's characteristic combination of sentimentality and nastiness, this opening paragraph summons up a ghoulish mental picture of the SNP government, persecuting the ordinary bobby, picking the pocket of self-sacrificing and industrious ward sisters, and shellacking that lovely, soft-voiced primary school teacher you cherished as a youngster. It implies that fairly ordinary workers, earning fairly ordinary pay cheques, will be "punished" if John Swinney decides not to make the richest sections of this country even richer. Even a little rummaging shows that this a breathtaking distortion, a falsehood, a flat out, old-fashioned lie. 

First, start with the basics. The latest official figures suggest that the median annual earnings of a Scottish worker before tax is £27,045 - a mighty £15,370 short of any liability to pay the higher rate of income tax. Most Scottish workers need a pair of binoculars to see the upper rate of tax, never mind to benefit from Mr Osborne's unnecessary cuts. And what do you know? Precisely the same thing goes for each of the professions Mr Roden mentions in his forked-tongued news report. Nurses, teachers, police officers - the overwhelming majority of these public sector workers won't gain a single penny from Osborne's upper rate hike and won't lose a single penny if John Swinney refuses to play copy cat. 

First, take nurses. The NHS in Scotland helpfully publishes workforce information, including data on the salary bands of its staff. Even more helpfully, they break down the data for nursing staff and midwives. So what does it tell us? At the end of December 2015, the NHS employed 59,287 nursing and midwifery staff. These staff are paid on nationally negotiated pay scales, running from £15,385 at the bottom of band 1 to £100,431 per annum at the top of band 9, depending on their seniority. 

But the overwhelming majority of nursing and midwifery staff are employed on contracts of band 7 of lower.  And - yes, you've guessed it - the highest point in band 7 for nursing staff in Scotland is a salary of £41,373 - still just  over £1,000 short of paying the higher rate of income tax at its current level. In fact,  according to official stats, at most, only 2% of Scottish nursing staff are in a position to benefit from Mr Osborne's upper rate tax cut. 58,111 staff are employed at band 7 or lower compared to just 1,176 above that, while the overwhelming majority of nurses and midwives (36,570) are employed on salary bands 5 (£21k - £28k) and 6 (£25k - £35k). Point to me, I think, Mr Roden.

So what about the teachers Nicola Sturgeon is supposedly "punishing"? Oopsie daisy. Same problem. Scottish teachers have their own nationally negotiated bands of pay, running from £22,416 for probationers, up to £35,763 at band six. Different rates apply for principal teachers, and for the higher ups in the head-teachers' offices, some of whom would benefit from the chancellor's upper-rate tax cut. But the overwhelming majority of Scotland's 48,000 teachers? Not a sausage. Even without a hike, they're still earning £6,622 a year shy of the current threshold to pay 40% income tax. 

And police officers? Surely Mr Roden must have called at least one of these right? Surely the bollocks cannot be entirely unmitigated? Alas, alas. First, look at Police Scotland's pay and grading rules.  Police constables take home £23,493 on their first year on the job, increasing to £36,885 over long service. There are no higher rate tax payers here. But what if you are promoted to sergeant? Then your pay jumps from £36,885 to £41,451 per year. Even on the current threshold of £42,385, police sergeants still wouldn't be paying a single penny of the higher rate of tax. By contrast, the Chief Constable (salary, £212,280), and his higher ranking subordinates would have to contribute more if Osborne's cuts are not implemented north of the border. 

But just like nursing staff, and just like teachers, the overwhelming majority of police officers are not employed in senior positions, earning fatter pay cheques. The most recent statistics suggest that over 90% of Scottish police officers serve and are paid at constable or sergeant level who will not pay a penny more income tax, even if Osborne's tax plans are not implemented by the Scottish government. English police forces show a similar breakdown, by the by, with 93% of officers holding commissions as sergeants and constables.

So let's summarise. Reality, according to Alan Roden, is that George Osborne's tax cuts for the top 10% - 15% of highest earners represented a "tax give away for nurses, teachers and police" and that "Scotland's squeezed middle will be punished" by the SNP if a matching cut is not made to Scottish rates of income tax. Reality, according to the evidence, suggests that 90% of police officers would not be worse off, 98% of nurses would not be worse off, and the overwhelming majority of Scottish teachers would not be worse off, if the higher rate of tax was simply maintained at its current rate. Misinformation doesn't cover it.

So where do we find this fabled "middle Scotland"? If the Daily Mail's analysis today is anything to go with, wedged deep, deep in the midst of naked self-interest, rampant delusions, lies about our economy and and a fog of utterly misplaced self-pity.

Homicide After Stranger Danger...

Et tu Brute? Most of our great literary murders involve kinslaying, friends who turn on each other, or acquaintances who have a fatal final encounter. Claudius did in his brother Old Hamlet. Desdemona died at Othello's hand.  Raskolnikov took an axe to his elderly pawnbroker.  Random, impersonal deaths are not hard to come by either. Pick up any war tome. But intuitively, the literary emphasis on the terrible perils of the familiar and the familial makes sense. Our notionally nearest and dearest can fire up the hottest passions. Love, certainly, but also resentment, recrimination, rage. 

In many ways, that's the disturbing story told by last year's just released homicide statistics for Scotland.  A few facts from the bulletin: there were 62 victims of homicide last year. 78% were killed by an acquaintance (56%), partner (15%) or family member (7%). The gender (im)balance of killers and victims remains striking.  Of the 62 people killed last year, 50 were men and 12 women. Chart 10 sets out the decade-long trends on the relationship between Scottish murder victims and their killers, disaggregated by gender.  Click for a fuller view.

In 2012/12, 82 people were accused of committing these murders, of which 66 were men (80%).  62% of accused people were thirty or younger. 69% of all homicides happened in a dwelling last year, with 76% occurring in some residential location. In analysing these figures, it is important to remember that homicide statistics offer an account of deaths, not potentially fatal incidents which the polis are able to break up before they escalate, or which paramedics are able to staunch before the victim bleeds out.   

But these statistics pose troubling questions about how we think about danger in society, and where we anticipate peril springing from. I'm sure we've all, on one occasion or another, laid hagridden in bed, dreaming of the dark intruder with fatal designs upon us, or our families. Recently, I dreamed I was being chased around an Escher-like domestic maze by a murderous brass minotaur: make of that what you will. 

After stranger danger, we are left with the unsettling thought: for many folk, home, family and friends are really where the peril lies.

"Warning rape convictions will fall after law change?"

Just a wee post this morning, in supplement to the weekend's lengthier disquisition on the arguments for and against abolishing corroboration currently gripping Holyrood. Today's Herald carries an article, headlined "Warning rape convictions will fall after law change." Cobbling together submissions from the Faculty of Advocates and the Law Society to Holyrood's consultation on the proposed reform, the piece makes two main claims, the one plausible, the other - to my mind - decidedly less so. 

Firstly, they argue that abolishing corroboration is unlikely to increase the conviction rates for sexual offences. The Faculty argue that it "is a fallacy to believe that by ­prosecuting cases even where there is no corroboration, the proportion of successful cases will increase. The reverse is more likely to be true." This has a robust logic to it. If cases are currently being dropped for want of corroboration, they inevitably rely (at least partially) on the evidence of the complainer alone.  The complainer may be a credible witness, but the accused may also cut a tolerably credible figure. 

These are never going to be strong cases whether or not the corroboration rule applies, coming down one person's word on oath against another. Yet these are precisely the additional cases which this reform expects and anticipates will be tried in the High Court in future. Increasing the number of weak and difficult cases being prosecuted seems likely to increase the percentage of cases resulting in acquittal, not to increase the overall Scottish rate of conviction.  

That said, it isn't obvious that it is the rate of conviction, rather than the number of convictions, that we should mainly be concerned about.  It's simple mathematics. If convictions are secured in 40 of a 100 cases, your conviction rate will be higher than a situation where the accused is sent down in 47 of 120 prosecutions.  But why should the rate of conviction, rather than the number of prosecutions by privileged as the preferred measure? 

There are certainly arguments one can make. A greater number of unsuccessful prosecutions multiplies the number of disappointed complainers who have given evidence in court, which is often a harrowing experience, potentially compounded by a sense of being disbelieved.  On the other hand, it isn't obvious that a terse explanation from the Procurator Fiscal that your case isn't being taken up is any less disappointing for victims, although it spares witnesses the experience of going to court and being, often very aggressively, cross-examined. 

(By the by, it also seems incredible to me that abolishing corroboration will lead defence lawyers to focus far more brutally on discrediting the evidence of the complainer, as some have argued. The idea that this doesn't already happen deserves a bleak laugh.) 

But the Faculty and Law Society want to have their cake and eat it too. Not only do they argue that the proportion of guilty verdicts in sex offences might fall. They also hazard the idea that abolishing corroboration might result in the acquittal of people who are convicted under the current dispensation.  But how? The lawyers argue that:  

"If there is no legal requirement for corroboration, there is at least a risk that the police will not investigate with a view to finding corroborative evidence if it exists. This could mean that cases which currently result in conviction will, following the change, result in acquittal."

This risk seems fantastically remote to me, particularly in the field of alleged sexual offences. It assumes that the thoroughness of police investigations relies exclusively on the current evidential rules. There's little reason to believe this for a moment. Certainly, I can see that concerns about achieving a formal sufficiency of evidence forms part of how the police handle cases, currently representing an important quantitative hurdle for an investigation to overcome.

I wonder, though, if the Faculty's logic doesn't curl back on itself.  They argue that the police currently work to the evidential rules, seeking corroborating evidence. As we know, corroboration only requires two independent sources of evidence to bring an accused to court. Following the Faculty's logic, is one "risk" of the current rule that the polis cease investigations having found the two bits of evidence required to meet corroboration instead of fully canvassing the field? Doesn't the corroboration rule also carries the "risk" of encouraging the police artificially limit their investigations too? Perhaps we ought to extend corroboration to require three pieces of independent evidence, or four, to encourage the police to investigate things properly?

This "risk" seems about as proximate and plausible to me as the idea that, absent corroboration, police officers won't bother to conduct proper enquiries. Particularly in the politically charged field of sexual offences, where significant moves have been taken in recent years to rethink how the authorities respond to reported incidents. 

Nothing here implies an especial faith in the competence of the police. To err and to cock up, to miss and to idle off is human. At least now and again. The overlooked line of investigation, deftly exposed by the defence, is a staple of courtroom drama.  As long-standing readers will know, arguing that we should trust prosecutors and trust the police is liable to make me baulk. It's nothing personal.  I just think we're all better off treating these powerful public authorities cautiously, with a worldly suspicion.  And if the police put together a shoogly case, you can bet your last shilling that defence advocates will take the opportunity to point it out and there will be consequences. 

 

As I observed over the weekend, I'm still swithering on the issue of whether corroboration should be abolished or retained, but for the Faculty to try to shoehorn in such a remote "risk" to buttress their embattled defence of corroboration seems less than convincing. 

Corroboration: will you or nil you?

Polarisation does silly things to debates.  Black and white, all good or all bad, disagreements organised around extremes rarely do justice to the grey shades, the advantages and disadvantages, which characterise almost every innovation or reform. So it is proving with the discussion around the Scottish Government's intention to abolish the corroboration rule in Scottish criminal cases.  

Unlike most Scots lawyers, who seem inveterately opposed to the idea, I find myself swithering, undecided, about it.  This indecision isn't particularly down to a sense of loyalty to the origins of these reforms. A partisan Nat I may be, but I've grumbled many a grumble about the SNP's approach to a number of big-ticket criminal justice issues over the years.  In this case, my wavers are down to the to-and-fro of the arguments which have been offered on either side of the debate.  The justifications offered by the doctrine's detractors and defenders all seem to me to overstate their case.

It's about access to justice, stupid.  In Holyrood this week, Kenny MacAskill described the proposal as  "a long overdue step in ensuring that victims have access to justice". There's certainly some force in this argument. Today, as a result of the corroboration rule, a number of cases can never be put before our courts.  Achieving corroboration of the essential elements of an offence can be particularly difficult, even impossible, where events take place in private. Perhaps most difficult of all are sexual assaults.  

On one extreme version of the case for reform, you'd think that the abolition of corroboration will, of itself, herald a new age in criminal justice. Victims, previously abandoned outside of our courts, will all be welcomed in, their testimony examined, considered, and a verdict reached.  Realistically, though, this is a fantasy, or a very distant aspiration. 

Our prosecution system is rammed. Our courts are rammed. Our prisons are rammed.  If some proponents of corroboration were to be believed, you'd think Scotland was full of idle procurators fiscal, flush with underspent budgets, lunching sheriffs taking the afternoon off for want of criminal business, and empty jail cells. None of these visions remotely approach the reality, and simply doing away with corroboration won't make them true.  

Eliminating corroboration may eliminate one set of hurdles facing complainers' access to courts, but realistically, there will still have to be hurdles. Most likely, the untransparent exercise of prosecutorial discretion to decide which cases are put before the courts. This argument doesn't necessarily favour abolition or retention. Better, you might think, to take decisions on bringing cases before the Court on a qualitative rather than a quantitative basis.  Nevertheless, the idea that this measure will "ensure that victims have access to justice" as MacAskill suggests elides the many barriers which exist, and probably have to exist, if our creaking, overloaded criminal justice system isn't to collapse under the overwhelming pressure. 

If parliamentarians and pressure groups, supporting this measure, are to give any substance to their rhetoric about access to justice, they should be asking Kenny about what funding concessions he was won from John Swinney to fund the necessary expansions in the court, prison, prosecution and legal aid budgets, so that accused persons may be properly defended. The idea that these aspirations can be met out of existing budgets deserves a black laugh.  Absent hard cash, it's hot air, amounting to a false prospectus for eliminating corroboration.

No person should ever been convicted on the evidence of just one person.  Superficially, I can see the force of this argument. How can reasonable doubt be dispelled, when the case essentially comes down to the believability of one witness, over another?  The problem is, Scots law already does this in a number of ways. Today, courts recognise the "special" self-corroborating confession, first recognised in the case of serial-killer Peter Manuel, hanged in Barlinnie 1958.

In rape cases, our criminal courts have held that the complainer's distress can corroborate the absence of consent. But this isn't corroboration in the ordinary sense of two independent pieces of evidence capable of pointing to the commission of the offence.  Assuming there's no other evidence in the case, both pieces of evidence regarding consent originate with the complainer, and corroboration in the ordinary sense is essentially dispensed with.

The Moorov doctrine performs a similar task.  First established in 1930, in Moorov the High Court held that a series of offences showing an underlying similarities may be treated as mutually corroborating. The doctrine has been allowed prosecutions to take place against people who commit a series of sexual offences against different children.  I didn't sit through the trial, but Moorov almost certainly played a role in the recent prosecution of Bill Walker for domestic abuse, with one wife's testimony about Walker's behaviour being taken to corroborate the evidence of another where there was no other evidence that the crime took place.  

Moorov employs a totally different idea of corroboration to that which is normally required.  In the absence of any other evidence, proof that John assaulted Jack is taken to corroborate the fact that John assaulted Jeremy. This produces potentially perverse results. On account of Moorov, if John assaults Jack and Jeremy, he may be brought to court, prosecuted and jailed. If, he only attacked Jeremy, the case is unlikely to see the inside of a court on the basis of the lack of corroboration, despite the fact that Jeremy's evidence about what John did to him would be identical in both cases.  

If it is never appropriate for an individual to be convicted on the word of one person, where are the objections to the application of the Moorov doctrine? Or to the idea that an allegation of rape is capable of being corroborated by distress? If we're serious about the absolute necessity of corroboration, we would expect to hear calls for Walker to be freed from jail. On the other hand, if convicting people on the basis of evidence from a single source is sometimes justified, as even many Scots lawyers would accept, then the case against abolishing corroboration isn't what it appears - and claims - to be.

Closely related to this argument is another familiar line from the anti-reform camp: But corroboration protects us from miscarriages of justice.  But does it really? Here, it is important to bear in mind what corroboration actually requires.  Usually, folk talk about "the evidence of two witnesses", conjuring up the image of credible twin wifies, testifying that they saw wee Jimmy making off with the stolen pie down Perth high street. Certainly, this is one way for prosecutors to achieve corroboration, but it is by no means the only way of doing so.  

Importantly, the courts have held that corroborating evidence needn't necessarily be incriminatory, it only needs to be capable of bearing the inference that the man in the dock committed the offence. To corroborate, the evidence needs only be consistent with the witness' tale. It might also be capable of an innocent explanation.  In effect, there are cases being tried in our criminal courts where deciding whether or not to convict or acquit the accused hinges - almost entirely - on the credibility of the complainer, thinly supported by additional evidence which might be equally consistent with the accused's innocence.  

Quite apart from being a powerful shield behind which accused persons can huddle, corroboration can represent a pretty thin defence against state power when you are dragged before the court. This isn't necessarily a reason to keep or to dispense with the doctrine either, but it does chip away at the retentionists' most powerful, and most repeated, argument.

But back to the abolitionists: Fear not. We're introducing new safeguards. Well, up to a point Lord Copper.  MacAskill has proposed to increase the jury majority required to convict from a bare majority of eight of fifteen, to ten of fifteen. Problem solved? Well, not really. Although juries loom large in the public imagination, they loom small in terms of the day to day realities of criminal justice in Scotland.  Juryless Justice of the Peace and Sheriff Courts soak up over 90% of criminal trials. Amended jury rules introduce no additional safeguards in these cases. 

Swithering yet? There are plenty of other arguments which could be made on body sides of this debate. In private, some procurators fiscal will argue that it is easier for complainers to be told that their cases can't be pursued because of a lack of corroboration, as opposed to informing them that prosecutors won't pursue the case because they lack credibility and haven't been believed.  Is there any truth to this? Perhaps.

Abolishing corroboration won't necessarily end the practise that Scottish police officers patrol in pairs. But in our penny-pinching times, does its abolition make it more likely that Police Scotland will revise its practises before long, leaving more officers to tread the beat alone? Almost certainly. Is this a good thing? Perhaps not.

And thus, I swither on, but for criven's sake, let's ditch the zero-sum mentality.

Is serious organised crime really a priority for Scots prosecutors?

Characterising it as a "blight on our communities", three years ago, Kenny MacAskill told Holyrood that "tackling serious organised crime is a priority for this Government". Detailing various actions which the SNP government has taken, amongst its achievements, Kenny cited the creation of: 

"... four new offences in the Criminal Justice and Licensing Bill. This package of offences targets the top of the criminal networks right down to the street drug dealer and the professionals who either facilitate such crime or turn a blind eye to it."

Strictly speaking, this isn't quite right. The new legislation created three new offences and one new aggravation.  The three offences hit the statute book in 2010, ranging from involvement in, to directing and failing to report serious organised crime.

Wending its way through Holyrood, the main justification used to promote the new legislation was that it would make it easier to land the whole octopus of professional criminal cartels operating in Scotland. Head, tentacles, the lot.  Before 2010, in the absence of evidence that the accused actually committed a crime himself, prosecutors had to substantiate a conspiracy, or the Scots equivalent of "aiding and abetting", if organised criminals were to face criminal sanctions.

According to ministers, and their props in senior police officers, and prosecutors, these standalone offences would greatly facilitate the investigation and prosecution of organised crime in Scotland. The Explanatory Report to the legislation talks of "making it easier to convict criminals involved in serious organised crime". While no stern slew of investigations and prosecutions were promised, you might have expected some sort of action.

A month or so ago, however, I realised we hadn't heard a peep about these new offences from ministers, or the Crown Office. While we are graced weekly with piffling tales of cretins at football matches, getting the book thrown at them, a queer silence surrounds these serious organised crime offences, which came into law some two years before the first hapless football fan felt the wrath of the establishment, and found himself up before the Sheriff.  Are they working as intended? Are they being used at all?

Nothing in the official Crown Office news releases gave much clue, so I popped in a freedom of information request.  How many reports had prosecutors received under the three offences of involvement in, of directing, and of failure to report serious organised crime? What was the outcome of those trials, where these had been concluded?

The response, received a week or two ago, is pretty startling.  To date, the Procurator Fiscal has received reports of 368 serious organised crime offences from the police from 2010 to date.  To date, only one person has been convicted, in 2011/12, of involvement in organised crime. Two further charges, taken in the High Court, resulted in acquittal. The only person yet prosecuted for directing serious organised crime, again in 2011/12, was also acquitted.  Nobody has seen the inside of a cell for directing concerted, corporate criminality.

Nor has any professional facilitator, corruptly betraying the ethics of their vocation, has felt the sting of the law for it.  On the offence of failing to report organised crime, the figures are particularly small. The Procurator Fiscal received just four complaints from the police in 2012/13, and none in either previous year. No decision has yet been taken on whether to prosecute those involved.

To put that figure in a little context, in 2009, the Scottish Organised Crime Group mapping project identified 241 “specialists” operating in Scotland. As opposed to mere “members or associates” of criminal organisations, these specialists have been engaged for their particular knowledge of public systems. Corrupt lawyers, shifty accountants, and so on: just the sort of characters that the section 30 offence of failure to report dodgy dealing aims at netting.

This 2009 police intelligence showed a further 4,066 individuals were involved in 367 serious organised crime groups. 176 of these groups were believed to be involved in drugs offences, 202 had accused to guns, 161 engaged in murder or serious violence, 81 in money laundering. With grim predictability, 77% of those groups known to be involved in violence were based in the Strathclyde area. 19 groups were known to be involved in sexual offences, 10 involving human trafficking.  Not every reasonable suspicion is prosecutable, and not every piece of intelligence can be acted on.  Nevertheless, the gap separating this police intelligence from the prosecution statistics seems conspicuously large.

But what to make of this? What explanation for the paltry (and hitherto largely unsuccessful) prosecution statistics? Firstly, serious organised crime investigations and prosecutions are notoriously tricky and time consuming.  As the figures I've received from the Crown indicate, proceedings involving a further 109 charges of involvement in organised crime are still ongoing in the High Court, 11 of them dating back to 2010/11. 38 other cases are ongoing, also in the High Court, alleging that the accused directed organised crime groups. Criminal justice takes time, more time than many folk would imagine. It may be that these offences just haven't yet come into their own.

What's more, these offences are a little different from your average theft or assault charge.  You know a crime has been committed when the mugger makes off with your wallet, or smacks you in the jaw, and complain to police.  These organised crime offences, by contrast, are far more broadly drafted.

For example, to be convicted of involvement in serious organised crime, the Crown doesn't have to prove that you've done anything particularly wicked in and of itself. Instead, they've got to demonstrate that you've (a) agreed to do something (whether or not the doing of that thing would itself constitute an offence), and (b) know or suspect, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Seen as the organised criminal is unlikely to refer himself to the police, and in many instances, there will be no obvious victim of this offence, it seems likely to be particularly reliant on the investigative initiative of the police.  Most offences are only liable to come to light, if officers go digging.  And their capacity to dig - understandably - is limited by resources and other priorities.

I'm sure there's something too this, but there may be wider lessons for us about being more realistic about what our prosecution system is capable of, and the changing priorities which it is actually capable of responding to.

When they think of the justice brief, Scottish politicians seem obsessed with the criminal law, criminal courts, prisons and sentencing.  There is always another demand for a new law, a new working practice, a new priority, more bodies in court, and behind bars. The abolition of corroboration, argue some, will throw open the hitherto shut doors to justice for many Scots.  Others behave as if there are endless coffers to expend, prosecuting daft lads for singing songs about Bobby Sands.

The evidence at the very least throws this into serious doubt.  Consider the following salutary details from a recent Crown Office personnel survey, or last month's survey from the FDA union, reporting further evidence of prosecutorial overwork, insufficient time to prepare cases, and low morale.  If you are going to make an issue a priority, others will fall by the wayside. It is a near constant of bureaucratic activity, that decision-makers working under pressure, to processing deadlines, focus on simpler cases to improve their annual totals.  More complex, investigatively more demanding cases? Perhaps with a sigh, maybe with regret - they die quiet deaths in many bureaus, in databases and groaning metal cupboards. 

To demand more attention be expended here is almost always to insist that another issue be neglected there.  Our politics too often labours in the childish belief that the statute book may always expand, that prosecution, capacity is limitless, and that if neither of these propositions is true, it is important for public confidence in the justice system to pretend both are so.  It may be that in the next year or so, the Crown Office will pick up the pace, and give these new organised crime laws some of their belated, promised effect. 

But it's worth remembering, you only get the quality of justice which you're prepared, or able, to pay for.

The SNP: "prison works"?

Last Friday, the Scottish Government published its new Criminal Justice (Scotland) Bill along with sundry explanatory notes and policy memorandums. The draft legislation will, if passed, bear many of Lord Carloway's recommendations into Scots law. Many of these touch on issues of criminal procedure, of arrest, detention, pre-trial questioning and the like.

Perhaps the most controversial aspect of the Bill is its proposal to abolish the old Scots requirement for corroboration in criminal cases. I've written about this a good deal before, and will come back to the proposals anon. 

Today, I wanted to pick up one of the aspects of the draft legislation, liable to be overlooked in the immediate corroboration hullabaloo. Amongst his other reforms, Kenny MacAskill is proposing to increase the maximum penalty for knife possession from four years, to five.  The government's policy memorandum explains the official thinking.

185. In terms of enforcement, Scottish police are carrying out a considerable number of stop and searches and the courts impose the toughest knife possession sentences in the UK. The table below shows that a person in Scotland is already 50 per cent more likely to be sent to prison than in England and Wales for knife possession and, for those who do receive a custodial sentence, a person’s sentence is likely to be nearly 70 per cent longer ...

192. Within this wider context, the Scottish Government wants to ensure that courts are fully and appropriately empowered to be able to effectively sentence those convicted of knife possession and offensive weapon possession. While sentencing in individual cases is appropriately a matter for the court within the individual circumstances of each case and within the overall legal framework the court operates in, the Scottish Government considers that increasing the maximum penalties for these offences to five years, as proposed in section 70 of the Bill, will reinforce the message to those who might consider carrying knives and offensive weapons that the consequences if caught will be severe. This should help in further deterring the carrying of knives and other offensive weapons as well ensuring that courts do have sufficiently effective sentencing powers to deal with individual cases where the court considers a severe sentence is required.

The figures quoted in the Scottish Government memorandum indicate that only 29% of folk convicted of possession of a sharp instrument or blade in the forth quarter of 2012 received a custodial sentence in England and Wales. This compared to 44% of Scottish offenders, 805 of whom received prison terms for knife-carrying in Scotland in 2011/12.  The prison sentences handed down to these knife-carriers by sheriffs are also stiffer, on average, than their English counterparts.  In England, the average jail term dished out is 199 days. In Scotland, the equivalent figure is 338 days in chokey.

Despite this, the number of folk being sent to jail for possession of pointed, bladed and offensive weapons in Scotland is actually falling.  In addition to pulling offenders up before the beak, the government and police are pursuing other commendable strategies, including the Violence Reduction Unit's almost theatrical "call ins", whose primary tool to dissuade people from carrying knives, interestingly, seems to be emotion. When you have a boy in the dock, and a bleeding body in the street, it is already far, far too late. This is important, creative police work, and Karyn McCluskey cuts an uncharacteristic, and impressive figure. 

All of which set me to wondering. What principles does the SNP bring to its penal policy? What is the government's philosophy of punishment? These latest proposals underline an apparent contradiction in the Nationalists' approach to prison policy during their first and second terms in office.

During the 2011 elections, Scottish Labour wheeled out their knife-crime policy: a mandatory six-month jail term for anybody caught with a shank, scimitar or pruning knife in public, with a residual judicial discretion to spare the convict the clink where exceptional circumstances obtained.  Richard Baker hadn't taken the care to do his sums, hadn't taken into account Scotland's vaulting prison population, our crumbling and overcrowded prison estate, and the parlous state of public finances.  It was thin, focus-group politics, and the party rightly got flayed for their inept distortions and incomplete homework during the election.

For unlicensed firearm possession, we already have a "mandatory" minimum sentence of five years in prison, in the absence of "exceptional circumstances relating to the offence or to the offender".  Back in 2010, we saw the potential injustice of such laws in the case of Gail Cochrane, the Dundee granny who unwisely retained her father's service revolver, and who was sent down for half a decade, before Lord Reed and the Court of Criminal Appeal exercised commendable leniency, to free her.

The SNP position was always more slippery.

Some of you may remember the days when Kenny was championing the idea of a presumption against sentences of less than six months in Holyrood. Compromising, this period was ultimately watered down to a presumption against imposing jail terms of three month or less at the instigation of the Liberal Democrats.  In 2009, the Cabinet Secretary for Justice argued that sentences of less than six months were "ineffective and of no practical benefit to communities".

In reality, of course, those serving short sentences for knife possession (less than four years) will be released early.  In Scotland, after about five and a half months on average: a period of time sitting smack bang in the category of prison sentences Kenny once criticised as expensive and ineffective. For the Scottish Government today, the regular imposition of custodial sentences for an average period of less than six months for knife crime is represented as a Good Thing, their multiplication, to be celebrated. Their message seemingly, in dim echo of Michael Howard, prison works, but only if you lock folk up for a good, long spell.

What to make of this apparent discrepancy? Can knife-possession be distinguished from other categories of crime, and if so how? Why is prison an effective penalty in one instance, but ineffective in all others? To my knowledge, no SNP minister has really attempted to articulate this distinction in any thoroughgoing way.  Conspicuously, the Scottish Government have not used their overall majority in Holyrood to revisit the compromise of their 2010 legislation, bumping up the presumption against three months sentences, to their initially preferred period of six.

At the other end of the spectrum, what to make of the long sentences which Kenny's new knife proposals will make available to criminal courts? Terror is clearly the order of the day, the justification, deterrence.  I find myself wondering, however, possession of what sort of offensive weapon, bladed or pointed, could possibly warrant a five-year prison term? To put that penalty in some sort of context, in the High Court, a man recently received 4 years and 4 months in jail for causing death by dangerous driving.  Another received two years and eight months for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life.

For the life of me, I struggle to conceive of any weapon which, for possession alone, a four year prison term would not represent a satisfactory (or even, excessively severe) penalty, never mind a half-decade behind bars.  It may be, of course, that these new sentencing powers will never been used, or at least, vanishingly seldom. If so, then why introduce them? I'm afraid a certain whiff of headline-chasing clings to these proposals.

An empirical study conducted by eminent criminologists in 2010 found that many young Scottish knife-carriers "were unclear or incorrect as to the precise legal consequences of knife carrying". I doubt that your average juvenile with a concealed weapon follows Holyrood's legislative procedures, absorbs the pertinent legislation, or knows enough about our criminal courts to alter their behaviour based on the venue chosen by the procurator fiscal. The Lord Advocate's policy directions are unlikely to be bed-time reading.

The Crown Office have announced that those who carry knives in city centres and towns will be prosecuted before a sheriff and jury court, increasing the judge's sentencing powers if the accused is convicted. This, after a six-week pilot over the festive period, during which the number of charges fell by 18% compared to the same period the previous year. The Lord Advocate attributed this reduction to the Crown's new prosecution policy, suggesting that the fall "demonstrated the value in making the tougher action". Colour me skeptical.

"I was going to take that weapon out with me, but now I know that Frank will have me up before a jury, and given my familiarity with the sentencing powers of sheriffs sitting both summarily and solemnly, I think I'll leave my cutlass at home, if it is all the same with you."

Aye right.

Graham Spiers: One for the Memory Hole...

A hat-tip to Love and Garbage on twitter for this sterling example of intellectual consistency and serious-mindedness from Herald football columnist, Graham Spiers. The topic: the Offensive Behaviour at Football Act and subsequent police enforcement measures taken under it.  In an article headlined "How the SNP have made policing fans a minefield" published yesterday, Spiers suggests that the Act was  

"... a piece of legislation that many - this writer included - had doubts about. The act seeks to do what it says on the tin: stamp out “offensive behaviour” such as bigoted or sectarian expression. There has been plenty of that around the Old Firm over the years, so to that end all decent-minded people felt that the law should crack down on bigots."

Cataloguing what he now perceives as the Act's problems, Spiers continues:

"Someone said to me: “A law never works if it cannot be objectively measured.” This absolutely captures the problem of the Offensive Behaviour at Football legislation. We got a glimpse of the mess the Scottish government was getting into when, in June 2011, Roseanna Cunningham, not having realised how much she had chewed off, had to frantically backtrack and delay the processing of the bill.

That day it took a mere half hour of questions to realise that Alex Salmond and the SNP, wobbling towards their legislation, hadn’t quite appreciated the acuity of supporters who wanted to defend their right to hold political or cultural positions in song and slogan. The Offensive Behaviour bill was duly delayed.

But its final clarity, when put on the statute book last year, was scarcely enhanced. It has all become quite a dog’s breakfast. Meanwhile, football supporters in Scotland feel like they are under a type of surveillance once associated with life behind the old Iron Curtain."

All of which gives the impression that the judicious Mr Spiers was a long-standing critic of these proposals, who set out these concerns about the clarity of the legislation and its definitions at the time, sorry to see his predictions about the illiberal and reactionary potential of this legislation borne out in practice. The only problem with this little pen-portrait is that it's a self-serving counterfeit.

Spiers refers to Roseanna Cunningham's Justice Committee appearance in 2011 which was not, with the best will in the world, her most triumphant parliamentary performance. He neatly glosses over his own. On the 6th of September 2011, the Scottish Parliament's Justice Committee had the benefit of Mr Spiers' own evidence on the Offensive Behaviour a Football Bill as it was being rammed through Holyrood. No doubt he put his concerns to our tribunes? Articulated these "doubts"? Quantified those anxieties about how this vaguely-drafted piece of legislation might operate in practice?

Er. Not really. Quoth Spiers:

"I am in favour of this bill in principle. If someone asks whether I want to live in a country where thousands of people can shout about the Pope and say “F the Pope”, I say that I do not want that in a football stadium in my country. In principle, I am in favour of the bill."

Okay. So that isn't exactly a doubt-wracked assessment of the draft legislation, but perhaps further on in his testimony, Spiers really got to grips with the detail of the Bill, and the concerns many folk articulated at the time about the scope of its provisions? Fife SNP MSP Roderick Campbell, himself an advocate in a past instantiation, raised some of these concerns with him in the Committee session.

Roderick Campbell: "I will follow up on three themes that were developed in the earlier session. I would like to hear the panel’s views on the suggestion by the Rangers representative in the previous session that by legislating we are using a sledgehammer to crack a nut, and any comments on the context and clarity of the legislation, particularly from Graham Spiers and Pat Nevin."

In all fairness, Spiers' response was not the model of clarity, but the gist of his answer and the scope of his doubts was not that the Bill was too broadly drafted, overcriminalised football fans or threatened free expression, but that its provisions may be extraneous to requirements, given existing common law and statutory offences which apply to conduct in and out of football grounds.

Graham Spiers: "There is probably some substance to that complaint. As much as I wish the bill well, it seems to me—although I am not an expert on the statute book—that there are already contingencies in place such as religious hate crime law, breach of the peace, and other laws that give the police powers such as banning orders to apprehend supporters. There is a lot of stuff currently on the statute book that could deal with many of these problems, so I am a bit mystified as to why we must have an extra load of law—if I can put it in that way—to deal with the issue.

I suppose I need to qualify that by saying that I have been aware this morning that a lot of people are complaining about the anomaly between crimes that are committed in a football stadium and crimes that are committed in the street or in a bus shelter. People have said that that is odd, but a part of me says that it is not. I have been going to these games for decades, and there can be a particular poison in a football stadium. The expression of that may be found out in the street, on the factory floor or wherever, but it nonetheless finds particularly acerbic expression in a football stadium, so a part of me wants some type of specific law to deal with that.

That answer is perhaps as clear as mud, but I hope that you get what I am trying to say."

As Spiers notes in yesterday's Herald piece, the legislation he approved of in September did not differ materially from the final text adopted by the Scottish Parliament in November.  He looked at the "dog's breakfast" in the autumn of 2011, and enthusiastically endorsed it.   

Better one sinner repenteth and all that, but mightn't the entire debate have been improved, if folk like Spiers hadn't given the Scottish Government spurious political cover for this cobbled-together enterprise, had actually read the draft legislation properly when it really mattered, rather than composing self-righteous jeremiads now, when the reactionary legislation which Spiers himself helped to get on the statute book is enforced by the police in a predictably illiberal fashion?

♫ You take the high road and I'll take the low road ♫

As eager-beaver listeners cannot but have noticed, there was a certain gap in our routine For A' That podcasting last Sunday.  Just a wee dab of damnum fatale. In compensation, we've two episodes of the show scheduled for this week, going back to our usual structure of one of Michael's Scottish independence podcasts appearing on Wednesday, and us, back to our usual Sunday spot.  

Our guest today was Pat Kane, scribbler, chanteur, and currently a board member for Yes Scotland.  Up for the blether this week, who are Britain's narrow nationalists now? Theresa May's human rights trolling, high roads, low roads, ambivalence and storytelling in the Scottish independence debate. Pat asks, is folk singer Karine Polwart right? Last month, she wrote:

"Let the Yes campaign be positive and hopeful, yes. But let’s allow it to be, where it needs to be, angry and bold too, please. And let’s harness more imagination to the urgent transformative telling of better stories about how we want to live."

One year since it came into force, we also had a wee chat about football, masculinity, sectarianism, and the Offensive Behaviour at Football Act. A brave public health measure, exorcising the country's sectarian ghosts, or an instrument which has empowered the police to treat fans in heavy-handed ways? A way of addressing Scottish cultures of toxic masculinity, or a threat to basic rights and freedom of speech?

To tuck away the show for later consumption, you can download it from Spreaker, or from iTunes.  Alternatively, you can listen to our discussion with Pat right away, right here. We'll be back, as usual, on Sunday afternoon.

Double jeopardy & the World's End case...

Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.

Irresponsible, because Angus Sinclair’s retrial under the new Double Jeopardy (Scotland) Act 2011 was always going to be a very long shot, for a couple of reasons. Firstly, consider the legislation itself. What do the Crown need to do to have an acquittal set aside? They have to persuade the High Court that one of three main exceptions to the general rule against double jeopardy obtain. Firstly that the person was acquitted by a judicial process “tainted” by illicit jiggerypokery. Bribing or threatening judge or jurors or witnesses: that sort of thing; secondly that the acquitted person subsequently owned up to their guilt; and thirdly, that new evidence emerges after the acquittal.

This last ground is much-qualified in the detail. It is not sufficient that any new proofs are turned up. Before any re-prosecution will be permitted, the Crown must convince the High Court to set aside the acquittal and order a retrial. Under the Act, the Court may only so order, if they are convicted that that (a) the new evidence leaves the case against the person ‘strengthened substantially’; (b) that this new evidence was not ‘available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence’; (c) that on the new evidence and that lead at the first trial, ‘it is highly likely that a reasonable jury properly instructed’ would have convicted the accused; and (d) finally that it is ‘in the interests of justice’ for the court to set aside the acquittal.

Absent any interference with justice, and assuming Sinclair has made no post-acquittal admissions of guilt, it is these ‘new evidence’ provisions the Crown will have to rely on, if Sinclair is to be re-prosecuted. And they don’t strike me as immediately promising for a couple of reasons. Firstly, we have to remember why the World’s End trial failed in 2007. The presiding judge decided there was “no case to answer”, which is to say that in law, he believed the evidence presented by prosecutors was insufficiently corroborated for a conviction to be sustained. Against this decision, the Crown enjoyed no right of appeal and that was the end of it. Critically, even if the Crown did not present all of the evidence it had in its possession during the 2007 trial, and neglected to adduce important aspects which could have saved its case, that clearly isn’t “new evidence” under the Double Jeopardy Act to justify setting aside the acquittal.

Secondly, we have to remember the factual circumstances of Sinclair’s 2007 prosecution. Former senior police officer Tom Wood is quoted in the Scotsman article, suggesting that “I think it’s unlikely the Crown would have done what it’s done if it did not have new and compelling evidence. It would guess it’s to do with advancements in forensic science”. Respectfully, this doesn’t seem likely. Helen Scott and Christine Eadie were killed in the 1970s – Sinclair was not prosecuted for their murders until the 2000s. On my understanding, that much-delayed prosecution was itself based on new DNA evidence emerging in the intervening years. While not impossible that radical, revelatory innovations in forensic science have occurred in the last five years, I’ve not heard of any. 

Indeed, one might think that the Crown would decide to order a new investigation because it had what it regarded as old and compelling evidence of potential guilt, rather than because they already had new evidence in hand.  We aren't talking about the technically savvy review of an old case and old forensic methodologies, but the re-investigation of a relatively contemporary case, relating to now old facts.  Even without considering the hurdle of new evidence "significantly strengthening" the case against the accused, if Sinclair is to have his acquittal set aside, the High Court will have to be convinced not only that the officers of Lothian and Borders police have uncovered something new and substantial implicating Sinclair, but that this was new evidence which "could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence". While this seems obviously to apply to information which becomes accessible because of radical technological innovation, absent that, it would be surprising if the presumably diligent police investigation leading up to the 2007 court case had excusably missed any evidence which would satisfy this standard.

I don’t want to ape the Scotsman’s mistake of misplaced definitiveness, but when you consider the statutory framework, and the circumstances of the World's End trial, the chances of Sinclair's successful re-indictment still seems remote.  Empowered by the new Double Jeopardy Act, it isn't surprising that the Crown felt obliged to undertake another review of the case, and ordered police to make further investigations. Quite proper too. But don't let's get ahead of ourselves. False hope for the families of these women, so cruelly killed, is no hope at all.

"I hate Huguenots..."

To say that the SNP Government's Offensive Behaviour at Football Bill introduces two new criminal offences is superficially correct but practically misleading. It is better to think of both as little clusters of criminalisation - with several limbs - entangling conduct of a great range of severity by the bonds of a section and ties of a clause. With the addition of a public order element, the first new offence proposed - offensive behaviour at football - criminalises (a) expressing hatred, (b) stirring up hatred, (c) behaviour motivated by hatred, (d) threatening behaviour and (e) any other behaviour that a reasonable person would find offensive. Try to get your head around the gigantic range of conduct encompassed in that, particularly by ideas of expressing hatred and things the Reasonable Man would get disgruntled by, whatever the devil that might be. 

As one academic who submitted evidence on the Bill noted, holding all of the elements of the offences in one's head, and coming to some understanding of what sort of conduct is caught by them, can be a rather bamboozling enterprise. It is also an enterprise which has long been deferred in the parliament, which has thus far preferred to engage in a rather airy debate about the necessity of the new law and general condemnation of sectarian recrimination.  No longer, with any luck. Today in Holyrood, the Justice Committee is considering stage two amendments to the Bill. These have been forthcoming from Roseanna Cunningham, David McLetchie and Patrick Harvie. Depressingly, however, on a quick look through them, the proposed changed are all rather superficial, and don't invite SNP members and ministers to justify their proposals in detail in a way they have not been challenged to do thus far - and I fear - likely won't be before this Bill is enshrined in law.

From the government side, Cunningham proposes to introduce a mandatory reporting mechanism on how the law operates in practice, empower ministers to change the list of things-it-is-illegal-to-express-hatred of-in-relation-to-regulated-football-matches, and an additional clause on the protection of the freedom of speech (which significantly, only attaches to the threatening communications offences, rather than the offensive behaviour at football-specific provisions). As Christine Grahame noted in the stage two debate in Holyrood, it is unfortunate that this second plank of the proposed legislation has largely been ignored. In order to weigh this post by the kilogram rather than the tonne, that is a matter for another day.

For today, I wanted to focus in a little more detail on the first offence, by way of a wee scenario. When questioned about the breadth of the provisions criminalising offensive behaviour at football, Minister's have often rebutted: public order's the thing, and conduct which doesn't threaten public disorder won't be criminalised. But soft, what about section 1(5)?

1(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.

Think this through. Say I am a raging anti-Huguenot bigot, and have raging bigoted, anti-Huguenot friends. We congregate in a local pub, which is discreetly showing the mighty Kinlochbervie Rangers thrashing Partick Thistle on the telly.  "Aren't Huguenots bastards?", I ask my friend, who promptly sums up his choice catalogue of poisonous sentiments about French Protestants, saying "I hate Huguenots". It is at this point that the police happen to chance in, scoping out a suitable spot for a post-shift tipple. Overhearing my hating crony's remarks, and armed with the newly-passed Offensive Behaviour at Football Act, they get out the handcuffs and advise him that post-Cadder, he can now avail himself of legal representation when questioned. Before he is carted off, I just manage to ask one of the constables "how the devil was this a crime?" 

This learned officer of the law could give me the following information. Firstly, he points to the football match being broadcast in the background, regulating my chums comments under s2(3) of the Offensive Behaviour at Football Act. Grudgingly, I cannot avoid conceding that our anti-Huguenot hate meeting is potentially caught. Secondly, the jurisprudentially informed officer would identify that one element of the offence is simply to "express hatred" [s1(2)(a)] about a "social or cultural group with a perceived religious affiliation" [s1(2)(a)(ii)]. To say "I hate Huguenots" is to do just that. Being a calculating, raging anti-Huguenot bigot, I too had boned up on the new law.  "But what about the public order element?", I ask triumphantly, assured that my friend would soon be liberated. "Look around," I say. "The pub is passive, chaos has not ensued and the peace remains undisturbed." The officer could concede the general serenity of the room easily enough, but that wouldn't smudge away his indulging smile or liberate my loathesome friend. 

"Read section 1(5) more closely, young man. You don't have to cause public disorder. The test is that the 'behaviour would be likely to incite public disorder', even if where is really nobody there to be incited." Goggling, I stammer out "so you mean, if we pretend a Huguenot had been here, and we assume that he would be likely to being incited to cause a hubbub by my friend's expressions of hatred, then he can be convicted of offensive behaviour at football?" "Yup". "So basically, the vaunted public order limitation is potentially entirely fictional, since the Act specifically aims to criminalise situations relating to regulated football matches where groups of bigoted misanthropes congregate to air their views, and nobody who is actually present would bat an eyelid at the scabrous sentiments we express, being bigots themselves?" Shoving the miserable anti-Huguenot out of the door, the constable crisply concludes: "Just read the law, son." 

I can hear the sound of distant scoffing already, but on my reading of this tortured statute, the scenario I'm envisaging is clearly regulated by this Bill. Clearly, it isn't the primary business which Holyrood thinks it is about, but it is the practical consequence of their general commitments to it. More generally, ministerial protestations that the "public order" aspect will be a substantial safeguard at least start to look questionable, when the statute itself invites courts to invent imaginary incitees from impugned groups to justify the criminalisation of dismal sentiments with no realistic prospect of inciting assembled persons at all. 

This morning, I note that some nationalist members of the Committee are scoffing at the failure by Labour and the Liberal Democrats to produce any substantial amendments to this Bill, suggesting that their opposition amounts to shameless opportunism. That is certainly a disappointing. However, to imply that this is the only reason anybody could have for questioning or doubting the virtues of this hastily-drafted and complicated statute is clearly ridiculous.  From the beginning, ministers from the First Minister downwards have made muddled and often confused pronouncements on the policy objectives this Bill seeks to realise, while justifications given for the proposed provisions have marched and counter-marched all over the place since the Bill's first "emergency" introduction in the summer. Partisan loyalty being what it is, I don't expect SNP MSPs to publicly concede these things, but the defensive arts of the braggart are growing tedious. 

Legislators, it is your job to scrutinise Bills. You'll do your country a far greater service by applying your mind to the confusions and limitations of what this Bill is actually proposing, than gloating over a crushed opposition in the chamber.  Indeed, it strikes me that the Nationalist tone at the stage two debate on the Bill in Holyrood struck an ugly parallel with recent Scottish Questions in the House of Commons. A tiny knot in a gigantic room full of folk opposed to them, the Unionist parties delivered a hysterical kicking to the Nationalists. I was particularly struck by the psychological satisfaction this piece of institutionally sanctioned barbarity clearly gave to those who participated in it. Whatever the triumphant Nationalists do elsewhere, however pitiful the electoral fortunes of the Labour, Liberal and Tory parties in the country, in the serene tabernacle of the House of Commons, the small sprout of Nats can always be treated like contemptible, upstart toadstools, handily unrooted. The delirious kicking in the room makes up for the kicking that all three received out of it. 

Similarly, in Holyrood, the SNP benches may applaud ministerial invective, indict the intentions of their opponents and scoff at any expressions of concern about the football legislation. In the space, I'm sure this lends them an overwhelming sense of reassurance. It is a warm and compensating feeling. Our lot didn't cock up, it is just everyone else, up to their usual obstructionist tricks.  Particularly significant, I think, that the SNP have reached so speedily for this familiar, self-satisfying puir me narrative, which in turn disavows the extent to which this whole Bill has been a bungling enterprise, and the shock at the skepticism and division which has met what they clearly hoped would be a simple, popular proposal.

Just as their disavowed defeats make the Unionist majority in Westminster don their tackety-boots, whatever doubts are expressed about the Football Bill outside Holyrood, in the chamber the roaring Nationalist majority can always cheer away these anxieties. This is political intoxication, not good sense and not good governance. We're stuck talking about a general diagnosis, rather than attending to the reason or unreason of the particular prescription the SNP has proposed. Parliamentarians considering amendments in the Justice Committee today would do well to follow the advice of my fictional policeman: "Just read the law, son."

Corroboration an "archaic rule that has no place in a modern legal system..."

As anticipated yesterday on Carloway Eve, this morning, Court of Session judge Lord Carloway has delivered his full report into Scots criminal law and practice, which can be accessed in a range of electronic forms here.  The substantial body of his report and recommendations runs to some four hundred pages, so I'll be circumspect and afford myself a little time to digest his findings before commenting fully. For those less keen on wading through a deluge of judicial prose, the ever-popular executive summary furnishes the headnotes on police custody, right of access to a solicitor given the Cadder decision, rules of evidence, drawing inferences from the silence of the accused when questioned by police, and appeals. The element particularly liable to get the press hopping is Carloway's stark - and rather brutally worded - finding on corroboration, discussed yesterday. Despite some indications in the press earlier on in the process that this old Scots rule would be spared searching examination, Carloway has bluntly concluded:

26. The Review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.

Such a suggestion is likely to be deeply controversial, not least because Carloway's review only passingly touches on other ways doubt is enshrined in the criminal law elsewhere. In England, for example, where no corroboration rule obtains, jury verdicts are reached on a qualified majority basis of ten out of twelve. Where the jury cannot reach a decision - is "hung" - there may be a retrial. By contrast, in Scotland, decision is by bare majority of the fifteen jurors, who cannot fail to reach a verdict like their English counterparts. If a Scottish jury cannot agree on the guilt of the accused, he is acquitted and is not susceptible to retrial. That said, this sort of jury angst can be overstated. While jury trial is used for the most serious of crimes, attracting the most punishing sentences, the vast majority of criminal cases in Scotland are decided by sheriffs sitting alone, or in Justice of the Peace courts. Off the top of my head, jury trials constitute around 5% or so of criminal proceedings undertaken, despite their dominance in the public consciousness and in dramatic representation. 

I'll have more to say on the detail of Carloway's findings and recommendations anon.  Until then, consult them for yourselves here.

#Hackgate & the Crown Office...

In a timely development last week, neatly following my post of the standards the Court of Appeal applies to appeals against conviction based on new evidence being adduced, Tommy Sheridan's appeal against conviction and sentence was rejected at the second "sift" by the Court. As was widely reported, the Crown Office have announced that, under their direction, Strathclyde Police have launched an "investigation into alleged telephone hacking in Scotland". They informed us that...

The Crown had previously asked Strathclyde Police to make a preliminary assessment of the available information and the evidence given by certain witnesses in the trial of Tommy Sheridan following allegations made against the News of the World newspaper. The preliminary assessment has concluded. Strathclyde Police have now reviewed the available information and following liaison with the Area Procurator Fiscal at Glasgow the Crown has instructed an investigation should commence. The investigation will be progressed expeditiously and in close liaison with the Area Procurator Fiscal and Crown Counsel. Significant resources will be deployed though these will vary with the needs of the investigation.  The investigation will cover the following:

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

Having investigated these matters Strathclyde Police will report to the Area Procurator Fiscal at Glasgow and Crown Counsel.

Politically, interest has primarily been piqued by the first of these fourfold points of investigation. In context, it clearly speaks to those witnesses in H.M. Advocate v. Sheridan who were asked about the issue of phone hacking, which includes David Cameron's former communications director, Andy Coulson. Perjury is popularly conceived as simply giving false evidence under oath, whatever the nature of that evidence, however trivial or peripheral to the case being examined.  Curiously, in Scots Law, perjury is more narrowly defined than that. So "what is perjury, and what isn't?". Scots Law Thoughts has composed a mammoth post on the subject, reviewing the legal authorities, their definition of the offence of perjury, and their applicability to the News of the World Sheridan trial witnesses. Paul writes...

"If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland."

The potentially interesting and problematic question is whether Coulson's answers about phone-hacking at the Sheridan trial, even if wilfully falsely given, can be said to be relevant to the proof of the charge, or the credibility of witnesses? To put this as starkly as possible, if Coulson's evidence was not held to be relevant by the Court, in law, even if the testimony was false, he has not committed perjury.  Most would, I fancy, find this to be a pretty shocking conclusion and ill fit with the idea that one should tell our courts the truth, under fear of severe penalty. I profoundly sympathise with that view.  

Despite the individual interest of the investigation of potential perjuries these Sheridan trial witnesses, in many respects, the rest of the Crown Office press notice is arguably more important. As I have observed before, we really have no idea about the extent to which the media in Scotland may have used or solicited others to use unlawful means to secure private data, nor for that matter to what, if any, extent Scottish police officers may have corruptly facilitated this seeking after personal information.  I have already noted that the Information Commissioner's second report - What Price Privacy Now? - which enumerates the discoveries of Operation Motorman, does not break down its findings by jurisdiction, leaving Scotland's position unclear. What is clear, however, is that the Scottish press is not inoculated against the sharp practices which, once revealed, vilified and destroyed the News of the World. Of the Scottish title, the Daily Record, the Information Commissioner recorded seven confirmed instances of transactions to unlawfully secure private data, with two journalists implicated.  Points (2) and (4) of the Strathclyde Police investigation are clearly exceedingly broad - you might think implausibly so - apparently examining all potential breaches of data protection with respect to Scottish residents, and extending to pan-Scotland police corruption and press mischief in that context. 

While I can absolutely see a role in the police in an investigation of criminality, I'm not wholly convinced that, given this investigation's very diffuse goals, and the public interest in finding out any conclusions reached, that criminal justice processes can adequately serve all of these goals. For example, where no charges are brought against individuals in court, we tend to learn very little about evidence uncovered by the police in the course of their enquiries. Take the Information Commissioner's report. Needless to say, he identifies a far, far greater number of unlawful transactions than have ever been prosecuted.  Cases might not proceed in court for a number of reasons - criminal standard of proof, limited evidence, exclusionary evidential rules, prosecutors determining proceeding is not in the public interest - this does not mean that offences were not committed.  In this, as in other areas, taking non-prosecution and non-conviction for evidence that offences have not been committed is exceedingly problematic. While Lord Justice Leveson's inquiry does extend to Scotland, given its already bloated terms of reference, I would be wildly surprised if they took a significant interest in events transpiring north of the Tweed. We know that the Scottish Government commented on the inquiry's draft terms of reference, and wanted Her Majesty's Government to include the findings of Operation Motorman in Leveson's remit. Pete Wishart said...

“The hacking activities by News of the World were reprehensible, but we cannot assume they were confined to just one newspaper or form of media. It is disappointing therefore that the Prime Minister has rejected the Scottish Government’s call to include an investigation into the findings of the Information Commissioners 2006 report on Operation Motorman within its terms of reference.”

Pete need not be too disappointed. The Inquiries Act 2005, under which the Leveson investigation was constituted, affords Scottish Ministers the power to order inquiries into matters that relates to Scotland and are not a reserved matters [s28 2005 Act]. Scottish ministers must at least be dimly familiar with this piece of legislation, since UK Ministers are obliged to consult them, if any inquiry concerns a "matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998". While there may be some legal hurdles to be overcome, it seems to me to be well within the powers of Scottish Ministers to hold their own inquiry on these matters concerning Scotland, if they believe such an investigation would be needful and beneficial, even dictating their own terms of reference. If minded to do so, disappointment could give way to action.  Otherwise, Strathclyde's police investigation continues. While we can expect the press to take a great deal of interest in the fates of Bob Bird and Andy Coulson one way or the other - those like me, curious about the currently totally opaque implications of "Hackgate" in Scotland, should be sure to attend to any developments, under points two and four of the Crown Office investigation.