15 May 2010

A criminal code for Scotland! (Redux)

In the dim and distant days of February 2009, when the fragrant Wendy Alexander was still leader of Labour in the Scottish Parliament, I first suggested that the Scottish Government and Parliament should seriously consider a heroic act of criminal codification, to produce the very first Criminal Code for Scotland. Its certainly too late now to complete that work in this Holyrood parliament, however the issue may recur imminently with a heightened urgency - and could be a valuable project for Holyrood after the 2011 election. In my discussion of the Tory-Liberal Democrat Coalition deal, I referred in particular to the section which promises:

A new mechanism to prevent the proliferation of unnecessary new criminal offences.

One mechanism which might do the trick is to condense all the disparate bits and pieces of criminal legislation into one massive document, a Criminal Code for England and Wales. Of course, some critics would justly cry - large scale legal codification and condensation of existing offences creates a mirage of stability, changing the legal position not a jot. Punitive governments could easily and regularly amend the text of any Code, thus indulging in the precisely the same proliferation you claimed that a Code, you treacherous pettifogger you, would stop! The cogency of this objection should easily be admitted. If there is to be future non-proliferation of criminal offences, government needs to stop introducing them. Simple.  A paper volume, however sturdy, cannot reasonably be expected to provide a failsafe stumbling-block inhibiting the wannabe Solons and Lycurguses on Westminster's green benches.

The virtue of a code could not be to choke off new criminalising impulses. It may not prove able to trip up all inclinations towards novelty - quite right too - but a bumper book could well introduce a new air of caution into government proceedings, before ministers blithely embark on some novel criminalisation. Just think of all the new copies which would have to be printed! If this is the sort of mechanism which the coalition deal is referring to - and heaven knows if it is - it is worth pointing out that Scotland and England and Wales part ways on much of our criminal law. To be a sniffish Scottish legal nationalist, this section of the Con-Dem deal surely has it wrong:
We agree that we will approach forthcoming legislation in the area of criminal justice on a case by case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. Britain will not participate in the establishment of any European Public Prosecutor.

Our criminal justice systems would have been a more informed, more sensitive way of putting it. While their reference to unnecessary offences is perhaps suggestive of rarely-enforced categories of regulatory crime - crimes which may well apply across the United Kingdom, associated with reserved matters - my argument about a Scottish criminal code springs from different source. Its appeal isn't to the needlessness of the crimes to be effaced from the book of legal judgement. It isn't concerned to the same degree with the proliferation of criminal offences - although admittedly, this is something which Holyrood ought to be far more attentive to. Rather, there may be good reasons of principle why Scottish ministers and parliament should move on their own motion, and for their own reasons, to institute a code of Scottish criminal law. Who knows? If the Westminster coalition introduce a codifying spirit into England, Scotland may feel inclined to toddle along after her. Legal commentators and politicians will start speaking like geometricians and engineers - talk of rationalising and of bringing Scotland into line with polite opinion across the world. Without further ado, here was my argument of February 2009. There are complex issues underlying arguments about the virtues or vices of codes as opposed to the Common Law and interesting critiques which could be mounted against the argument as I've (quite simply) laid it out here. If you've objections, do please express them.

Parliamentary parenting skills...

Is your parliament ten years old or less?

Are your elected representatives growing listless and bored without new and up to date legislation to play with?

Are your ministers too bloody busy to dream up a cheap wheeze to keep the bairns occupied?

- Lallands Peat Worrier may have the answer!

Consider the following ideal-typical situation. You had a parliament, primed with plucky researchers, stuffed with the stentorian senatorial souls, fit for deliberation, free time oozing out of their pockets. The Ministers give us nothing to do! they insist, walnut faces folding disappointedly. Salaries slowly accumulate as the days and weeks of the session smear by with all the animation of falling honey. Boredom sets in, the purposeless ferment of inactivity, oversight and meaningless discourse begin to lick at the senators' consciousness. Allegations of unjustifiable ministerial inactivity follow, remorselessly.

This, roughly - give or take a verbal flourish - is the situation the Scottish parliament finds itself in at present. We can expect questions of independence, enhanced financial autonomy - and various other permutations - to distract the eyes of the constitutionally excitable. However, the positions of the various Scots political parties on the issue seem increasingly to have crystallised - and the Calman cronies, by consequence, look increasingly likely to fudge matters, disappointing everyone - or simply doing what they are told, and taking a generous dollop of time to say so. Although not without a legislative agenda - embracing more or less progressive themes in areas of sexual offences and climate change - the pace is hardly Olympic. Much of this is put down to politick bickering. Professional lamprey impressionist - and I gather, sometime leader of the Labour Party in Scotland - Wendy Alexander referred to the SNP governmental agenda as "legislation 'lite'".

Hilarious. She does, however, have a point. It behoves a conscientious ministerial team to keep their representatives active. It is all very well to cite and extol the perils of minority administrations, and in particular, the difficulties of "commanding" (another for the catechism of cliché methinks) a majority in Holyrood. Nobody will deny that any plain abacus thinking about majorities constrains the SNP significantly, if legislation is hugely contentious. Some sort of cross-party agreement on potential enactments is mandatory. However, it seems to me that legislative inactivity - however masterly - might prompt needless mischief and is at its most basic level an unjustifiable squandering of an opportunity.

In particular, if I had to make a suggestion, the government might consider the needful and bumper task of finally enacting a Criminal Code for Scotland. Thus, far legal reform in Scotland has been distinctly patchwork, a splendid example of such being the Sexual Offences Bill presently awaiting final parliamentary consent. Under the auspices of the Scottish Law Commission, several Scottish legal academics have produced a draft code which can be a valuable resource and basis to conduct a wholesale public debate on the proper ambit of criminality in Scotland. I certainly wouldn't care unreflectively to privilege these men and women's views on the subject, however eminent. For those who have certain unformed and uninformed ideas about the present criminal laws a read through the commentary accompanying the draft code may come as something of a painful surprise. Both the extent to which the criminal law in Scotland is judicially contrived through the Common Law, and is still largely informed by Baron David Hume's Commentaries on the Law of Scotland Respecting Crimes written in 1797.

Certainly, the judiciary have made some reforms through interpretation. Notable examples including the High Court of Justiciary's redefinition in 2001 of what constitutes rape and the progressive decisions finally resulting in the abolition of the appalling exception which rendered rape in marriage legal until the 1990s. Lazy press coverage of these decisions are disposed to suggest that in the process Scotland had "amended" its laws. It isn't semantics to dispute this claim. An essential principle worthy of being observed in matters of criminal law is that - to a greater or lesser degree - it should be possible, as an untutored citizen - to determine what is and is not criminal. Or at least to make some start at doing so. Moreover, Scotland is constrained by the terms of the European Convention on Human Rights (1950), Article 7(1) being the operative section:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

So how well does the Common Law succeed in fulfilling this obligation? In Scotland, if one wanted to glean any overview at all of the criminal law addressing areas not covered by legislation, one would have to invest in an introductory student textbook. In my view, this is unsatisfactory. Statutory interpretation can obviously radically transform the ostensible meaning of texts, making mandatory professional advice in particular situations. That, of itself, does not seem to me a sufficiently convincing reason not to engage in wholesale reform.

Reducing matters to a code provides a clear basis for decisions, an easy starting point for the curious and an integrated project amenable to continuous reform. Mystic Common Law, speaking with the dust-cracked voice of the 1700s, does not seem satisfactory. At times, in the absence of governing precedent, the truth is that nobody knows whether certain acts "are criminal or not". One prominent example, often missed or muddled by the media is the question of assisted suicide. Contrary to the impression given by some, the Suicide Act 1961 does not extend north of the border.
So is it legal or not?
Honest answer: no clue.

Another area of concern is breach of the peace - the edificial expansiveness of which is harshly witnessed by the ludicrous matter of one man and his bike in Ayr.
Could he had found out what he did was illegal before he packed his bicycle pump (or pumped his bicycle)?
Honest answer: no clue.

Even applying a generous judicial perspective, it is difficult to see how this quantity of uncertainty and Article 7(1) of the European Convention can be compatible. Though I should be plain here - in law I wouldn't  necessarily foresee a problem. I am primarily concerned with the spirit of Article seven and my argument is primarily political rather than legal. On a harsh interpretation, such is the pervasive uncertainty of areas of the common law of crimes in Scotland, the law is not foreseeable because there is no law, and by consequence, any imposition of judicial penalty is not only arbitrary but also retrospective. In sum, tyrannical and unjustified. The matter needs dealt with sooner or later. Why not now?

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