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.

Time for a Reference, Frank...

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

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

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

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

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

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

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

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

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

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

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

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

Time for a Reference, Frank...

Sexual history mitigates rape? It does in Scotland...

In 2011, Ken Clarke, then serving as Lord Chancellor and Justice Minister in the UK government, got into serious bother when he referred to "serious rape" in a radio interview. Labour called for his resignation, he eventually got the heave-ho, replaced by Chris Grayling, and the row died down.  Rather less likely to hit the UK news headlines is a decision of the Court of Criminal Appeal, handed down this morning, in Her Majesty's Advocate v. Cooperwhite. 

It transpires that, according to Scots criminal law, raping someone with whom you have any sexual history, even years after you ceased to have sexual contact, actually mitigates the seriousness of the offence on sentencing.  

In February of this year, Cooperwhite was convicted of sexually assaulting two women, and was sentenced to six years in prison.  The Crown appealed, arguing that this sentence was unduly lenient, given the facts.  A panel, consisting of Lords Carloway, Eassie and Bracadale rejected the appeal, holding that the sentence, while lenient, fell within the "range of sentences which a trial judge, applying his mind to all relevant factors, could reasonably have considered appropriate." In the course of their submissions, and with reference to authorities of the court, Cooperwhite's lawyers argued that: 

'... "familiarity" between a rapist and his victim was regarded as something justifying a more lenient sentence than might normally have been thought appropriate.'

Ultimately, the appeal was rejected on other grounds, but in an unusual move, Lord Carloway appended "further considerations" to his opinion, on the question of whether, as a matter of law, raping a sexual partner, friend, or person known to you represented a mitigating factor in determining the punishment to be imposed. Discussing the Appeal Court's past cases, Carloway concluded - to my mind, shockingly - that:

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

He gave a couple of examples. The 1999 case of Ramage, where the the convicted man and the complainer "had been in a relationship of a sexual nature, but that this had ceased some six years" before the sexual assault of which he was convicted. Reducing his sentence from five years to three and a half years imprisonment on appeal, Lord Caplan made this outrageous statement:

"... there are factors in this case which could perhaps justify treating the case as being less serious than would normally be the case with a rape offence. The appellant and the complainer were not in any sense strangers. They had been in an intimate relationship before and, indeed, at one point they had been in a sexual relationship. Moreover they had resumed friendship and were seeing each other regularly (although it must be acknowledged that the complainer in no way gave the appellant to understand that she was prepared to resume a sexual relationship with him). Nevertheless, there was perhaps room for the appellant to delude himself as to what the position was on that point. Beyond the rape itself there had been no serious degree of personal violence and the appellant was not likely to repeat this conduct with other women".

As Carloway notes in today's opinion:

'It may be that the repetitive use of the word "perhaps" shows that the court may have felt somewhat uncomfortable with what it was saying and, indeed, with the import of its dictum. Nevertheless, that dictum seems to be clear authority for the proposition that, if there has been a prior sexual relationship, that is a mitigating factor. Indeed, following the logic of the dictum, mere acquaintanceship may be such a factor, at least when compared with the rare "stranger rape".'

The principles have also been applied more recently, in the 2012 case of Petrie, in which the appeal court reduced another sentence from seven to five years, illustrating, said Carloway:

"... the court being prepared to regard the existence of an on-going sexual relationship as a significant factor in reducing a sentence imposed by a trial judge, who regarded the existence of that relationship as one of trust and hence an aggravating feature of the crime."

Many of you will, I'm sure, sympathise with the trial judge's sentiments. Ken Clarke's ill-judged and clumsily-phrased observations represented only his own opinion. These statements are the law of Scotland. Carloway's opinion, rightly, expresses muted unease with these authorities, and their outmoded logic. The idea that being raped by your sexual partner, husband or boyfriend counts in their favour if and when it comes to sentencing is a disgusting juridical principle, whose elimination from our sentencing book is long overdue.

On the Regal Sprog

IT is a truth universally acknowledged, that a Scots man in the sunshine of south east England must be broiled a healthy puce. 

Halcyon days here in Oxford, the smouldering sun drying up the Isis, and nights full of fever dreams, most recently of being pursued through an Escher landscape by a brass minotaur.  

Otherwise, I creak on, with joyfully few thoughts on any political topic to speak of.  Most of my emotional energy is going into avoiding swampy jugs of Pimms, enthusiasm for which is the English's most inexplicable, and most revolting summer passion.  Substitute a beaker of gin any day.

After these languorous few weeks, Michael and I thought we'd ease ourself gently back onto the podcasty scene with this special edition, focussing on the Impending Windsor, the Regal Sprog, the Sovereign Wean.  We discuss the historical background of the birth, the long and rich monarchical traditions we enjoy in these islands, and the full implications of this anointed little life for the ever-thorny independence debate.  You can listen to our extended disquisition here, visit via iTunes, or download it for later delectation.

"Money grubbing bastards"

Those, and similar sentiments, may spring to many minds when considering the news that the benevolent, open-handed folk of the Independent Parliamentary Standards Authority have recommended bumping up MPs' basic pay to £74,000 per annum. That's a hefty leap up from their current yearly remuneration of £66,396, an increase in over 10%, adding just shy of £4,942,600 to the cost of keeping our 650 tribunes in stockings and gin.  

Having been, for these past few years, a recipient of the waning pot of public doctoral funding, I can't throb with much sympathy for the House of Commons gannets, gobbling up the equivalent of three hundred and sixty three new stipends for pitiable, moth-gnawed scholars, or struggling public sector workers on low pay, who've seen no increases, while rising prices eat away at your already limited purchasing powers. 

One angle on the tale I've noticed folk have been neglecting: what will Holyrood do, if the Independent Parliamentary Standards Authority's stonking increases are adopted? What reports there have been today adopt an abject tone of inevitability, with MSPs "set" to cash in along with their Westminster cronies.

The idea that MSPs are bound over to accept the IPSA recommendation to enrich themselves is a nonsense which should be speedily abandoned. Our tribunes in Edinburgh have no reason whatever to follow the IPSA in this indulgent, ill-time folly.

Under the Scotland Act 1998, statutory authority for setting salaries is invested in the parliament itself, whether by an Act of parliament, or by resolution.  In March 2002, a free vote of MSPs adopted a motion, still binding, which determined that decisions on any salary increases should be made by the Scottish Parliament's Corporate Body, increasing at the rate of 87.5% of Westminster salaries.  Only that motion and that convention lies between parliament and these unjustifiable increments. 

At present, the Scottish Parliament pay-scale is relatively more modest than Westminster, coming it at just over £58,000. Miles more than the median, stagnating national wage. We can be sure there'll be touchy tribunes, keen to support a parity of esteem between MSPs and MPs, who'll be keen to see these whopping increases reflected in Holyrood's butcher's bill. Such folk's self-interested pettifogging must be resisted. Money does not make the man, as they say, and certainly doesn't reflect the value of this tribune, or that parliament.  A chance - a rare chance - for Scottish parliamentarians to put some meat on the bare bones of Osborne's increasingly ironic cry that "we're all in it together" - and esteem themselves, modestly, at their proper value. After all...

Who steals my purse steals trash; 'tis something, nothing; 

'Twas mine, 'tis his, and has been slave to thousands; 

But he that filches from me my good name 

Robs me of that which not enriches him, 

And makes me poor indeed.

Who are human rights really for? (Vol. 2)

The European Court of Human Rights comes in for a lot of stick. In the UK, this has traditionally taken the form of British nationalist hostility to the very idea of international judicial institutions, seasoned with a sprinkling of hang 'em and flog 'em illiberalism, objecting to a particular judgment. 

One consequence of the Court's persistent frailty is that its proponents and defenders have, in general, being loathe to question or critique how it goes about its business, or how well the tribunal realises or can realise the grand ideals of human rights, day to day.  

As I've argued here and elsewhere before, I think this coyness is mistake, and there are plenty of issues, particularly in terms of access to justice in Strasbourg, where a "left" critique of the Court's work is far more apposite, and more urgent, than your usual Nigel Farage by-lines about national sovereignty, or Theresa May's fevered anxieties about "Europe's war on British justice".  Increasingly, in the name of efficiency, and of streamlining, the very folk human rights were conceived of to protect are at risk of being squeezed out of the Strasbourg docket.

On that theme, I've a new post over at the UK Human Rights blog this morning, on the latest reforms to how the Court works. They are, I suggest, pitched to make it even more difficult for unrepresented litigants, and the most vulnerable folk across the Council of Europe.  Here's a taster:

Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect. Both have the potential to have a wide-ranging impact on applicants. Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.

It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.

As I have written elsewhere, these changes are unlikely to trouble the small number of wealthy litigants whose cases have already been aired in the highest domestic courts before finding their way onto the European Court’s docket. By contrast, the changes to time-limits, compounded by the Court’s new Rules, risk having a disproportionate effect on the poorest and most vulnerable applicants, with the least access to legal advice, subject to the worst outrages at the hands of their states.

In 2011, without issuing any public statement on the enterprise, the Court’s Registry embarked on the Blowfeldian-sounding “Rule 47 Project”. A “pilot” filtering scheme, the Registry began to hold applications to far more stringent, formalistic criteria. One of the few available insights into the Project is afforded in evidence from a Registry official to a Council of Europe Committee. Mr Darcy told the Committee that it:

“… entailed a stricter approach by the Registry to the formal requirements for submitting an application, as set out in detail in Rule 47 of the Rules of Court. Failure to provide all of the required information would lead to the rejection of the application by the Registry. The applicant would be informed by letter that their application had not been accepted for judicial consideration. This notification was final. The applicant could not submit a new application form, even within the six-month period.”

Innocuous? No, wait....

You can read the rest of the post, in full, here.

Who are human rights really for?

In Brighton in 2012, the governments of the forty-seven member states of the Council of Europe assembled to discuss how the European Court of Human Rights could best be reformed.

In the United Kingdom, as many of you will recall, the issue suddenly caused a big stramash.  David Cameron, Ken Clarke, and his replacement as Lord Chancellor, Chris Grayling, all rallied to argue that the Court was interfering inordinately in Britain's affairs, usurping the primacy of states, as protectors and guarantors of the human rights of their citizens.  

The fruits of their deliberations was Protocol No. 15 to the Convention which, amongst other things, will cut the period of time available to applicants to lodge their cases in Strasbourg, from six months to four.  Superficially just an administrative reform, reflecting developments in human communication since the 1950s, in a piece for the Firm today, I argue that these reforms pose a real risk to the most vulnerable folk in Europe, subject to the worst outrages against human rights, least able to access legal advice.  It is a theme I touched on in a Scotsman piece earlier in the year.   An excerpt:

The “original” European Convention on Human Rights “was a laudable document, written at a time when Stalin was in power and people were being sent to the gulags without trial.  What has happened is the jurisprudence of the Court has moved further and further away from the goals of its creators.”

That verdict, from Chris Grayling MP, has been a consistent feature of the Lord Chancellor’s assault on the European Court of Human Rights over the last twenty-four months. Grayling depicts a tribunal which has lost its way, corrupting its vocation as a bulwark against serious state outrages to focus instead on frivolous points of law, upturning perfectly decent British judicial decisions, and aggrandising its jurisdiction.

Despite Grayling’s comments, Stalin’s Soviet Union formed no part of the Council of Europe, and the Court never enjoyed authority to investigate the regime’s treatment of its citizens. Today, the tribunal’s jurisdiction extends east from Iceland to the Baring Strait.  The Russian Federation joined in 1998 along with a wave of eastern European states, as the dust from the fallen wall in Berlin settled during the 1990s. A fragment stands in the Court’s gardens in Strasbourg, in mute recognition of Europe’s shifting geo-politics.

It has suited Conservative UK ministers to project an image of “pushing for reform in Europe” to their domestic constituencies. In truth, international debates on reform of the Court have only ever stalled, and not really stopped, since the middle of the 1980s.  Over three decades, the member states of the Council of Europe have been puzzling over how to deal with the runaway scale of the Court’s jurisdiction and the mountainous quantity of correspondence which it has generated.  Dipping in 2012 for the first time in a decade, the Court’s backlog of undecided cases still numbers over 100,000.

The questions are simple, but intractable. How is a single court, with an operating budget of just over 66,800,000 euros, to cope with and respond adequately to a population of more than 800,000,000 potential litigants? Why do we have a European Court of Human Rights anyway, and what is it for? Should it be a tribunal concerned with compliance with the Convention in the last instance in every case? Should it focus instead on “serious” cases? But what then does “seriousness” mean in this context? Alternatively, ought the institution to concentrate its efforts on what some commentators have described as its “constitutional” function, dealing with new issues, elucidating norms and clarifying human rights standards for the whole continent?

Read the whole thing, and the threat posed by Protocol No. 15 to the most vulnerable applicants, here.

Hume's nipple

Is and ought reason to be the slave of the passions? A sentimental seam runs through this weekend's edition of the For A' That podcast.  

Up for discussion on episode 29, the role of emotion in politics. Should we trust our feelings, hold them suspect, or try to balance their influence upon us? Does passion add anything to political convictions, or the ethics of political programmes and ideas?

Last week, several emotive topics where also resolved in Holyrood. The SNP government introduced its same-sex marriage Bill, while the parliament took its final vote on who will, and who won't, be able to vote in the independence referendum in 2014. We blethered about both. We also considered Johann Lamont's latest reshuffle. "Shuffling the dreck", as some commentators have styled it, or a potentially more interesting rearrangement of the Scottish leader's hand?

You can download episode twenty nine via Spreaker, via iTunes, or fire up our RSS feed to ensure you don't miss an episode.  You can also press the play button below, recline, and lend it your lugs.