"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.

Victim Fantasies

"Now we see the violence inherent in the system! Help, help. I'm being oppressed!" 

Victim fantasies seem to have become a staple of UK political discourse lately. They find their fullest expression in the pessimistic nostalgia of Farage's political outfit, but the UK governing party are hardly immune to their lures. 

It isn't enough for Tories that their welfare reforms hollow out the lives of those they effect. They also want to experience the titillating sensation which accompanies setting an injustice right.  Understandably, they don't conceive of themselves as heartless villains prioritising the welfare of the rich "wealth creators" over the impoverished and disaffected. Oh no. They're the agents of justice, settling an old score, straightening the scroungers, the feckless, the spare-room-subsidised. For the plain people of England, I stab at thee.

What does it matter if the phantasms they strike at are straw? The sensation's the thing, and a sense of righteous vengeance against the unworthy is intoxicating.  The pleasures of victimhood are not exclusively domestic.  Bleating has international applications. The entropic force of the European Union schemes to fetter our enterprising spirits with needless bureaucracy. The European Court of Human Rights is waging "war on British justice". Puir us! How we suffer!  

This weekend we find a new charge added to the indictment: according to two different writers from different ends of the UK political spectrum, support for Scottish independence has "hatred" at its heart and the Yes case is "chauvinistic". Not content with actually winning the independence referendum on current polling, part of the pro-Union movement wish to win while cultivating the sense that they've been horribly wronged in the process. Victory is inadequate: they want to triumph as martyrs, without any of the actual sacrifices martyrdom usually requires.  

Tin-eared London-based commentary on Scotland is nothing new, but a new spirit seems to have taken hold of parts of the press recently, spanning both the left and right.  A few weeks by, the Spectator blogger Steerpike commemorated Flodden in his own way, with this pop at Alex Salmond, and this characterisation of the contemporary independence movement:

"The First Minister of Scotland is masterful at mixing anti-English rhetoric, rose-tinted recollections of Scottish history and no gloves politicking. When he does it right, it can be devastating. History is at the heart of his campaign for Scottish independence in the run up to the referendum, so I was surprised to see how quiet he is today over an important point in his nation’s heritage".

This diagnosis may surprise those of us paying passing attention to the Scots political scene. Anti-English rhetoric? A campaign festooned with Scottish history? From his perch in the eerie of the Tower of Flints, Steerpike clearly surveys a different campaign. Say what you will about Yes Scotland: their output is hardly the gusty stuff of ethnic politics, unrepentant tartanry, or the hooch-skirl of Sassenach-bashing. 

It is difficult to imagine the meek Blair Jenkins in plaid, dirked and targed.  Nicola Sturgeon would struggle to be cast as a latter-day Flora MacDonald, or nimble Salmond snipping Sir Henry de Bohun's napper in half like a wet melon. And Steerpike misses the really, rather more interesting point: contemporary Scottish nationalism is remarkably unhistorical in its animating gods. But why let empirical reality subvert a good-going sense of victimisation?

Today, employing bare innuendo, a thin gloss on the controversy around Alasdair Gray's comment on Scottish arts administration, and education policy, Andrew Gilligan argues that "some very unpleasant views have started to surface. For some prominent nationalists, the pandas might be all right – but other arrivals are much less welcome." Entertainingly, Gilligan also suggests that Salmond's criticisms of David Cameron have an ethnic whiff, arguing that the First Minister has "not been averse to national stereotyping at times, condemning Westminster cabinet ministers as "incompetent Lord Snootys".

Presumably English Tory MP, Nadine Dorries, was resorting to the same xenophobic logic when she styled the Prime Minister and his coterie "posh boys", and Labour MP Dennis Skinner also appeals to malevolent stereotypy, when he fires the occasional rhetorical rocket up George Osborne in the House of Commons.

As Tom Nairn observed long ago, "London government invents habitual class remedies to nationalist ailments". In this case, the Telegraph goes one better, transforming its pitiful whinge of "class war" into an ethnic slur, as if it was somehow objectionable to criticise the dominance of privilege in the United Kingdom. The goal of both rhetorical measures? Sleekitly to delegitimise critiques framed in this way. "You can't hold my massive wealth, superior advantages and control of power against me! You. Um. Xenophobe Luddite." And in a trice, we're back on the cross, tacked up with jelly-bean nails, able to feel tender, but without too much  any real suffering. Help, help, I'm being oppressed. 

Gilligan is given a helping hand by the Observer's Catherine Bennett.  For Catherine, the Yes campaign is "chauvinistic", an appeal to an "impoverished and resentful" corner of the UK, predicated mainly on "bellicose, English-phobic nationalism". After a masterful display of false sympathy, Bennett wields the dagger, suggesting that if support for Scottish independence isn't higher in England, this is because:

"... extreme, flag-waving chauvinism has been strongly discouraged in British schools for generations, with the postwar decline of nationalism only intensified by multicultural nerves. True, as we were reminded last week, members of the EDL have miraculously survived all such conditioning; equally, these extremists now risk being righteously snubbed in Mens' Socks.

This is classic stuff from the anti-nationalist multicultural British left, who sustain their crude characterisations of nationalism, usually by trying to distinguish their "patriotism" from deplorable nationalistic thinking. This is rarely plausible, and tends to entail a vacuous reference to Orwell's Notes of Nationalism, which ignores the eccentric way in which Orwell uses the term "nationalism" in that essay.  Bennett's piece duly obliges.

It is the same word. "Nationalism" has to mean the same thing, right? It's a credulous approach which would be rightly flayed if it appeared in an undergraduate essay.  But hey, this is journalism right? What does it matter if I make a vague resort to Orwell's deathless authority, just to slag off a band of Scotch politicians as incipient kryptoethnecists? By all means, let's be cavalier when we're throwing around outrageous allegations and asking idiotic questions about whether a Luxembourger can be venal, if your Frenchman is capable of benevolence, or even more absurdly, whether Scots or English folk are characteristically faultless souls. None of these arguments are features of the constitutional debate. And yet Bennett shoehorns them in, purporting only to find them. 

This strange argument is of interest, in part because nobody remotely in the know about what's going on in Scotland would mistake it for the reality. The projections of Bennett, Steerpike and Gilligan represent the Scottish nationalism they'd prefer to oppose, not the really-existing Scottish nationalism we see, day to day, in Holyrood or in the country.  Reality seems likely to have little purchase on these fantasies, but they doubtless have their psychological compensations.  The essential solidity of UK politics is reinforced. The lunatic Celtic fringe is handily discredited, and you can enjoy the smarting sensation which comes with a vague sense that you've been criticised, and you can't fathom why, or what you've done wrong.

This attitude should concern our UK federalist not-quite-fellow-travellers too. Seemingly unable to accept critiques of UK governance on their face, commentators like Gilligan and Bennett immediately leap to the conclusion that, all evidence despite, the independence movement is an atavistic, anglophobic political project. Scottish independence as it now stands is one answer to the political malaise in this country.

For self-appointed victims like Gilligan and Bennett, the pleasures of wallowing in invented ethnic slights enjoys priority over a fair-minded attempt to understand the current case for independence, its civic nationalist convictions, and the roots of its critique in the failure of Westminster government.  I do understand. Facing that second reality flies in the face of the mainstream UK political discourse. It moves beyond mere gripe. It dispenses with cantankerous trade gossip of the parliamentary lobby. It appeals to a different logic. Independence offers one practical solution to our predicament.  Not everyone will agree that independence represents the right solution to the problems of our governance and politics. I respect that.  

What I cannot abide, however, is the bleating of self-appointed babes in the wood. Far too many folk in the world suffer from the brutal, bloody consequences of hate, unemancipated from historical struggles, and finding their lives crushed between the rocks of racism and chauvenism, to allow ninnies like Gilligan and Bennett to cheapen their suffering, and unhurting, from a privileged, untroubled perch, to pilfer the mantles of martyrdom. 

For you, Mr Walker, the war is over...

... and you've been defeated, utterly. This morning, Sheriff Mackie sentenced the former MSP in Edinburgh Sheriff Court. Her sentencing statement is damning.  Jailing Walker for the statutory maximum available to her, a full twelve months, Sheriff Kathrine Mackie criticised Walker's unrepentant, stubborn sense of his own victimisation. The scabrous, Vogon PR he secured from Iain Maciver after his conviction can't have helped.  Mackie observed:

"I have also had regard to all that has been said on your behalf about the consequences in terms of reputation and financially, and to the terms of the reports that have been prepared.  I have noted from those reports that you maintain your denial of any wrongdoing, and that you perceive yourself as the victim of various conspiracies, amongst your former wives, political opponents and the media. 

While it cannot be denied that there has been considerable media attention in this case and issues thought to arise from it, even before the conclusion of the legal process, I share the opinion of the author of the Criminal Justice Social Work Report that your incredulity at being convicted of these offences and your perceived victimisation are further indications of your abdication of responsibility for your behaviour.  I have also noted from the terms of the reports, as I noted during your evidence, what can only be described as contempt for your former wives and your stepdaughter and the derogatory manner in which you refer to them." 

Ruling out enrolling Walker in the Caledonian men's programme as a non-custodial disposal, Sheriff Mackie continued:

"Having noted the extreme denial and minimisation of behaviour displayed to the authors of the reports prepared it is in my opinion unrealistic to believe that a programme designed to change men’s attitudes condoning domestic abuse has any prospect of success.  There is no basis for believing that the intense media scrutiny combined with your public position has had any bearing on your willingness to be accountable for your behaviour or that this might change within the time frame of the Caledonian Programme, whatever time frame might be allowed. "

That the Sheriff felt it necessary to impose the statutory maximum penalty on Walker poses its own questions. Her statement doesn't contain a breath of criticism or comment on the Crown's choice of venue. As I blogged at the time of Walker's conviction, in Scotland, prosecutors generally have a free hand to select where and how people are tried before our courts.  In Walker's case, he originally appeared to answer an indictment in solemn proceedings, and could have anticipated being tried by a jury, if he refused to plead guilty.

Reviewing the case, crown counsel decided to demote the case to summary proceedings in the sheriff court instead, reducing the court's sentencing powers from five years to one, if Walker was convicted. I very much doubt we'll be hearing any more from the Crown Office about the relevant factors considered by Counsel in reaching this decision, but serious questions remain unanswered.  Just how many counts of domestic violence does a man have to be charged with to face a jury in this country? The regrettable answer, it seems, is more then twenty four.

Discussing the case with various folk, a number of people have suggested that Counsel's real rationale for shifting venue was suspicion of juries. Aren't they awfully unreliably, apt to be taken in by a plausible accused, a risk to the whole endeavour, a threat to conviction? Much better to try Walker before a reliable sheriff. Much less risky. I find this unconvincing.

Firstly, this seems a rather dubious basis for prosecution decision-making. Although a soup of factors push decision-making hither and thon, the idea that a senior Crown Office lawyer reduced the severity of the charge just because they were feart that they'd lose the case seems incredible. Yes, the case was historical. Yes, recollections fade. But if the Crown believed their witnesses were credible and reliable enough to persuade Sheriff Mackie of Walker's guilt, I struggle to accept the idea that they thought they weren't up to winning over fifteen ordinary punters.

Secondly, there really isn't an awfully lot of evidence suggesting that juries are significantly less likely to bring home convictions than professional benches. Certainly, you can find the odd Clive Ponting case, where juries disdain to apply the law to the facts in a fashion which legally-trained judges are unlikely to follow, but Walker's prosecution was hardly one of those cases.

I leave the last word to Sheriff Kathrine Mackie.  Your can read her full sentencing statement here.

Homages to Catalonia

Bona tarda! 

There was a Catalan theme to episode 35 of the For A' That podcast this week.  Friend of the pod and New Statesman contributor Jamie Maxwell was out on manoeuvres in Spain's debatable lands last week, casting an inquisitive eye over Catalonia's independence movement. Many of you may have read his column in yesterday's Sunday Herald.  We were also joined again this week by Kate Higgins. 

On the show, Jamie discussed the animating gods of the Catalan movement, and told us about what he'd seen and learned during his jaunt. What parallels and differences characterise the Catalan and Scottish independence movements? Is the Catalonian argument primarily concerned with culture, governance and democracy, or some mixture of both? Our discussion broadened out to the more general point: is it important for Scottish independence supporters to have fraternal relations with similar movements abroad? Does Spanish intransigence over Catalonia pose diplomatic problems for Scottish nationalists which, ironically, call for a little coolness and distance between the two groups?

Returning to domestic politics, we also discussed Johann Lamont's assault on Salmond at this week's First Minister's Question time, alleging financial jiggerypokery.  It as also budget week in Holyrood. Kate picks out her keynotes from Swinney's statements. We also bring up the tender topic of the Bedroom Tax. An indefensible policy it may be, but does it have the strategic importance both Labour and the SNP are currently investing it with? Alternatively, has the policy become a neat totem for the objectionable elements of Westminster's welfare reforms, and a politically effective shorthand for opposition to them? We chew the matter over.

Download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.  Or alternatively, just lend it your lugs right here.

We'll be back next week.

Stands Scotland where it did?

Well, the damn thing's difficult to shift.  Earlier this week, I went to Glasgow's Theatre Royal to see David Greig's Dunsinane. The play saw its first production in 2010, is much-coloured by the Iraq War, and represents a counterfactual take on what happened after the end of Shakespeare's Macbeth.  

The revival stars many of the members of the original cast, including Siobhan Redmond as the surviving Lady Macbeth, and Jonny Phillips as Siward, Earl of Northumberland. Greig brings us a drama of occupation, told primarily from the perspective of Siward's callow English soldiers, trying to keep, and enforce, his kind of a peace in a Scotland rent by civil war. In its essence, it is a tale about the failure of a worthy Englishman to understand the perfidious, thrawn, contrary folk of Scotland and our Esher politics. Greig's Scotland is bleak, poetic -- and above all, cold. 

If you get the chance, the show really is worth seeing, pitching for big national themes. The production is on its way down south, with a tour taking in Birmingham, Bath and my old haunt Oxford, before bending back up to Edinburgh. Glasgow audiences - even for the theatre - are notoriously boisterous. It'd be fascinating to see the production amid a primarily English audience, on an English stage, when Greig's gags are pitched at the Other rather than the Self. 

While the Theatre Royal audience twinkled with self-recognition at the droll Malcolm's cynical take on his countrymen, and at the English infrantrymen's bitching about Scotland, the whole thing takes on a different cast, seen from the other side of Tweed, in a political context where our independence referendum continues to prompt bemusement and perplexity among our southern neighbours. Seems a pity to miss it.

You can read my ★★★ review of the production here.

On Gl★sgow...

One of the great pleasures about being back in Glasgow is how much stuff is on the go. Oxford can be a curious town. So much of the population pass through in transit, tarrying at most for a year or two, the place itself sometimes feels ... hollow, almost.  Not a place in which folk really live, day to day.

This is an exaggeration, of course, and I have friends who still stay there quite contentedly, but I'd struggle ever to envision returning myself on any more permanent basis.  

One frustrating aspect of my time there was the thinness of the local theatre scene. True, Oxford boasts a pretty, expansive Playhouse, but its repertory company long withered away, and it is only now starting to produce its own drama, instead playing host to touring shows from across the country. The National Theatre of Scotland are taking their revival of David Greig's Dunsinane (2010) down there later this month.

This is all well and good, but the lack of localness, and the absence of an abiding relationship between the theatre company and the wider the community, only underlines Oxford's nagging civic gap. 

In fairness, Oxford students are a rapacious dramatic lot. One of the most (unintentionally) funny things I saw was a gaggle of English public schoolboys, trying their gangled pins and reedy voices on West Side Story. The idea of shimmying knife-gangs, and crooning hard-nuts, was already troubling.  Needless to say, for all of their enthusiasm, the stilted, callow academic types didn't quite realise the Sharks or the Jets.

What's more, a few committed independent companies (including my friends and comrades, Troika) bring some splendid productions to life, including the summer staple of open-air Shakespeare, requiring only brass lungs, a voice that carries, and the good luck to situate your run during a blue-skied week.

Now that I'm back in Glasgow, I'll be doing the odd theatre view for the good folk of Exeunt magazine. Last week, I hied me down to the Citizens Theatre to see their new production of Crime and Punishment, on in Glasgow until the 28th, before transferring to Liverpool, and back up to Edinburgh at the end of October. It is a really interesting, theatrical, thought-provoking production, which I'd commend to you all.

If you need further enticing, you can read my whole review here.

Are the SNP due a Dunfermline drubbing?

If it were done when 'tis done, then 'twere well it were done quickly. Bill Walker is clearly no devotee of Shakespeare, and in resigning his Dunfermline seat a few days ago, he didn't heed Macbeth's advice about the charms of celerity.  But resign the villain finally has, and under the Scotland Act, we'll have a by-election in his Fife constituency within the next three months.  

So what are the chances? Who's in with a shout? And from the SNP perspective, critically, are we going to get stuffed? Let's take a look at the data.

Riding on the coattails of the national party, in 2011, Bill Walker won the seat with 37.6% of the vote, beating the Labour candidate Alex Rowley by 590 votes. Reflecting the mood in much of the rest of the country, the notional incumbent's support went through the floor, Liberal Democrat Jim Tolson polling just 5,776 votes to the winning 11,010 secured by the SNP.  So much we know, but it is also instructive to look forward and backwards from 2011. The party is still polling rather well nationally against Lamont's Labour. But, but...

In the Council elections of 2012, after the accusations against Walker first surfaced but before his trial and conviction, SNP candidates won 5,814 first preferences votes compared Labour's 9,524 in the four Dunfermline wards which the constituency completely covers. The Liberal Democrats trundled in next, with just 3,341 first preferences.  The constituency also takes in parts of The Lochs ward on Fife Council - but Labour won that too, comfortably, snaring 1,729 first preferences to the Nats' 708.  Obviously, the dynamics of the local elections are different from national elections, and different again from a by-election.  For all that, however, these can only be promising figures for the Labour Party in the area. 

Putting the 2011 result in broader context, between 1999 and before 2011, Dunfermline was bifurcated into two distinct constituencies, East and West.  The new seat takes in the the old West constituency, and part of the East, the result of which is now represented by Helen Eadie, as Cowdenbeath.  Going into the 2011 Holyrood election, the Liberal Democrat, Jim Tolson, sat for the western constituency.  As we all now know, in 2011 the SNP came from a notion third place in the seat, behind the Labour party, to take it. To add another layer of complexity to proceedings, the Liberal actually snatched the seat from Labour in 2007, who had held it since 1999. 

Now, I'm no Fifer, and don't know this territory well, but figures lead me to conclude that - at the best of times, in a favourable national election with a tolerably popular SNP government and a suitably incompetent Labour opposition - defending and retaining Dunfermline might prove a tall order for the Nationalists.  Liberal Democrat fortunes have not, and may never, fully revive in the area. The Labour Party may not have the springy vitality of an excitable Cocker spaniel, but if I was a Scottish strategist in John Smith House, Dunfermline would already be circled on the electoral map, as low-hanging fruit.  Even without the scandal of a Nationalist parliamentarian being revealed as a domestic tyrant and unlawfully handy with his fists.

Arguably, the party's poor showing in the area in 2012 is as nothing to the reception we can hope to receive in this by-election.  At that time, Bill Walker was suspected, but innocent until proven guilty. Today, the luckless and brave SNP candidate will have to contend with press hostility, and most likely, an electorate none-too-enamoured with the party which nominated such a goon for election in their constituency.  You needn't subscribe to the idea that there was any jiggery-pokery in the way the party dealt with the Walker case to see that he will hang around the neck of the Nationalist candidate like the Old Man of the Sea, however vigorously or acidly they denounce him in public.  This is one for Nationalists to take on the chin.  Anything short of a drubbing would be a relief. 

As the erstwhile Labour blogger Stuart MacLellan noted a few years back, Labour has never actually won a seat back from the SNP, having lost it. If they can't heave themselves over the finish line first in this Dunfermline by-election, a disgraced Nationalist incumbent having been forcibly pitchforked from party and office after twenty-four criminal convictions and an outrageous display of contempt for his constituents, Scottish Labour really are jiggered.

Thanks, Bill. 

"Eck Salmond came down like the wolf on the fold...

... his caramel log gleaming in scarlet and gold."

It's Sunday morning, and that means a new edition of the For A' That podcast. On episode thirty-four of the show, Michael and I were joined for a second time by Pat Kane and by James Kelly, of the Scot Goes Pop blog.

Up for the blether this week, Scotland Tonight's Sarwar vs Sturgeon rammy on STV, notionally concerned with social security and the welfare state of an independent Scotland.  Was this Scotland's "big debate", or an unilluminating, unappealing boorach? We offer our verdicts. For Pat, it was a "credibility-threatening" performance for one of the participants. I shan't spoil the surprise by revealing who.  

We also discussed the resurfacing of a certain G Broon at a United with Labour event in Glasgow this week, on pooling our resources and entrenching devolution.  We pick through some of the the former Prime Minister's arguments, his legacy, and his surprising constitutional (il)literacy. 

Our final big theme for today was racialism and advocating independence. Over the summer, several folk have argued that the current Yes case lacks green sap, and has managed to make startling constitutional changes ... boring. Is this a problem? Is reassurance the right strategy? Are we, by consequence, disciplining reasonable disagreement and ideological diversity on the Yes side of the argument?
 

We also dip a tentative iambic foot or two into the great #indyref poetry debate. As we speak, I'm busy, scratching out a heroic verse ballad in defence of my constitutional ideals, starring an Ossianic figure, harried by a cunning crow goddess and her fell, carrion-picking minions. Now, all I need do is find a few more words that rhyme with "Unionist"...

Download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.  Or alternatively, just lend it your lugs right here, right now.

Deighanisms

Meanwhile, there were a few antic performances in front of Holyrood's Equal Opportunities Committee yesterday morning. The Committee is looking into the SNP Government's Marriage and Civil Partnership (Scotland) Bill, and began by taking oral evidence from a range of folk, including our old chum John Deighan from the Catholic Parliamentary Office. 

He was joined by Dr Salah Beltagui, who chairs the Parliamentary Committee of the Muslim Council of Scotland, Dr David Easton, who chairs the Methodist Church in Scotland, and Kieran Turner, who is the Public Policy Officer of the Evangelical Alliance.

If you thought that the Church's summer of scandals and losses would have chastened the Catholic hierarchy, and precipitated greater moderation in their language, think again. Deighan, understandably, quite rightly, appeared robustly to defend his Church's position: that marriage is defined not by social norms or convention, but by a fundamental spiritual standard, according to the Natural Law ordained of God and known to us through the operation of human reason and the rich inheritance of our moral and religious traditions.

He, along with other panellists from a range of religious persuasions, emphasised the importance of freedom of belief in a liberal society.  And quite right too.  I don't expect or require devotees of this sort of theology to alter their views, or to marry people they don't care to. I realise that we approach the whole question of same-sex marriage from fundamentally irreconcilable positions. The legislation need not pass, endorsed nationally in a single voice.

On one hand, Deighan always appears for these things well-briefed.  The downside is that this inarticulate fellow attempts to make all of his points simultaneously, and consequently, makes none of them well.  A hugger-mugger, a blur of rhetorical confusion results.  Deighan began his submissions by striking a modest note.  He said:

"We are in a live - and - let - live society — I have that approach myself — in which, if people want something, by all means we let them have it as long as it does not impact on the rest of society."

His subsequent comments were, as you will shortly see, suffused with live-and-let-livery. Positively seething with liberality.  Deighan took the opportunity to have an early pop at LGBT history month of all things, saying that it poses "immediate concern" for Catholic schools.  Asked why by that bright spark Marco Biagi, whose forensic handling of himself was the model of coolness, Deighen responded, in the spirit of Pope Francis' recent comments:

"The whole aim of the month is to try to change people’s understanding of people who are homosexual and propose them as role models. We would not want to be doing that."

He was to warm to the theme again, questioned by John Mason about the limits of conscientious objection.  Somehow, folk got snagged on the eccentric question - what sort of materials could or should a printer, of all people, refuse to rustle up for a client. And somehow, Deighan managed to equate racist political literature, pornography and ... well ... publicity material for LGBT history month.

"If the printer just says, “I don’t like your sexual orientation, so I won’t provide you with a service,” I think that that is wrong. However, if someone came in with literature for the British National Party and the printer thought that the literature was racist and they did not want to print it, I think that they would be perfectly entitled to say no. Similarly, if someone came in with pornography and the printer felt that pornography was detrimental to the rights of women, they would be entitled not to print it. If they were asked to print publicity material for LGBT history month, but they thought that that twist on history was wrong and they did not want to participate in that deception, I think that they would be entitled to say that. However, that will be difficult."

Not to be outdone, Dr Beltagui sounded the shag-your-sister klaxon:

"What scares people are the things that will happen under the bill that are not expected. The bill gives a list of people whose relationships are too close for them to marry. For us, that list includes same - sex couples. It will be dangerous for society if we keep changing the list to exclude relationships that we currently recognise as making it not possible for people to marry. As people have said, that could lead to incest and other dangerous relations."

Careful now. Your auld aunt Effie may become a smouldering enticement to you, if we let Adam and Steve get hitched.  But back to Mr Deighan's submissions. A few of his other nuggets of wisdom. Firstly, it transpires that we've already got equal marriage, as everyone is equally entitled to marry someone of the opposite sex. Logical, perhaps, but a bit too Jesuitical in its reasoning for my tastes. 

"On principle, we already have equal marriage. All people have the right to marriage. Marriage is a particular thing. What we are doing now is making an arbitrary change to it. Once you bring in arbitrariness to the legal system, all sorts of changes are possible. You are then thinking about how you are going to protect yourself against all those things that could happen."

Brace thyselves comrades. We are on the road to engulfing civil confusion. Duggy Dug will be appointed the Sheriff Principal of Glasgow and Strathkelvin. Anne McTaggart MSP will replace John Swinney as the SNP's treasurer. Duncan's horses will thinly slice each other, before serving themselves up in a spiced Thai broth, with a sprinkling of chilli, onions and a dash of fish sauce.

But there's more. Bingo pens poised at the ready here folks. With a costermonger's eye for the worldly metaphor, Deighan went on to characterise same-sex marriage as a counterfeit bangle. Whatever you think of it, it is at least a consistent theological position for him to adopt, if not, perhaps, much reflecting the "live and let live" philosophy we know he clings to so dearly.

"The state has a role in legislating on the civil effects of marriage but not on its essence. We cannot have laws saying, for example, that people who sell bracelets can call them watches if they do not tell the time. There is an essence to marriage; a man and a woman lie at the heart of it, and that is the relationship that gives rise to children."

As that great theologian Helen Lovejoy said (once or twice), "Won't somebody please think of the children?!" Like some queer Doctor Who monster, Deighan seems to believe that equal marriage will stalk the land, devouring peoples parents and grandparents, leaving denuded, trembling weans in every household. 

"In principle, we should not make arbitrary changes to marriage, because it affects all children. Speak to paediatricians and ask them about the devastating impact that family fragmentation has on children. In the past eight years, the number of children under one who have been taken into care has trebled. Paediatricians whom I have spoken to say that, 30 years after we first started to see a rise in the number of children born outside of marriage who had lost that bond between their mother and father, we are now at the point of second - generation family fragmentation. That will be devastating, because there are no grandparents to step in and help the child when the parents have separated."

Yup. Equal marriage is the crack in Amy Pond's wall. 

How do you solve a problem like Bill Walker? Vol. III

Cheering news this afternoon. Earlier in the week, the media reported that the Scottish Parliament Corporate Body was actively considering the proposal to garnish MSP salaries where they are sentenced to a spell in prison. The other avenues for taking action against the shameless Bill Walker seeming forlorn, the Presiding Officer, Tricia Marwick, instructed officials to investigate whether Holyrood could change the parliament's salary scheme. 

Was it legal and doable? I thought so. Today, it transpires that officials and the Corporate Body agree, recommending that the salaries of any MSP sentenced to a prison term by cut by 90%.  Helpfully, the parliament has released the full text of the official paper that was placed before the Corporate Body. While making it clear that recall, changes to disqualification rules and disciplining Walker under the Code of Conduct are all inadmissible, the paper endorses the idea of amending the salary scheme.  Speaking to their proposals, Marwick sent the following letter to MSPs today. 

Dear Members

Proposed Amendment to Scottish Parliament Salary Scheme 

This morning I convened a meeting of the SPCB to look carefully at the powers available to this Parliament with regard to all MSPs who are unable to fulfil the full range of their parliamentary duties as a result of being imprisoned.

As you will see from the enclosed SPCB paper, which we have released for full clarity, officials have concluded that the Parliament can modify the current Salary Scheme to provide for a reduction in salary payable in these circumstances.

Such a modification could be made by resolution of the Parliament under section 81(1), as read with section 83(5) of the Scotland Act 1998. Following our consideration this morning, the SPCB is strongly persuaded by the proposition that any Member who is unable to carry out their full range of functions as a result of being imprisoned should not receive their full salary.

From reviewing the core functions of a Member as set out in the SPCB paper, we recommend that 90% of salary should be withheld for the duration of imprisonment.

I shall therefore be seeking the Parliamentary Bureau’s agreement to bring forward a resolution before Parliament next week to amend the Salary Scheme.

In recommending this course of action to Parliament, it should be made clear we do not seek to encroach upon the role of the courts. Our approach should in no way be interpreted as a punishment - that is for the courts.

In recommending this reduced salary provision to Parliament, the SPCB is mindful of the legal advice it has received, namely that our decision should be underpinned by the following principles and apply to all Members equally, including members of the Scottish Government and parliamentary officeholders:

The provision made should respect the principle that salary is payable in return for the performance of functions.

The provision must not be motivated by punishment, retribution or censure.

The provision should be proportionate, of general application, and consistent in its treatment of ordinary MSPs and those office holders and members of the Government who receive a salary supplement.

I should re-iterate that these provisions would apply across the board in all circumstances.

Having looked carefully at the powers available to this Parliament, the SPCB is clear that this is the right thing to do and hope Members will support this course of action.

Tricia Marwick 

A motion on these proposals will be voted on in Holyrood next week. Walker is due to be sentenced on the 20th. It is important to emphasise, the MSP still may not be sentenced to a prison term. It is gratifying, however, to see Holyrood, trying to do its bit to put pressure on this man, despite the legal impediments which hedge the parliament round.

Danegeld refunds

On episode thirty-three of the For A' That podcast, the much-mooted Nordic horizons of the Scottish independence debate hoved into a fuller, more human view.  Our guest this week was Thomas Widmann. Thomas runs the Arc of Prosperity blog, and is a Danish-born Yes campaigner who has settled down here in Scotland, survey the constitutional debate. 

After our wee week off, we kicked off For A' That briefly with a few of the engulfing mischiefs of the past fortnight, touching on the Anglophobic vision of Scottish nationalism proffered by Andrew Marr at the Edinburgh Book Festival, and had a word on recent criticisms of YesScotland's activities.  

We also briefly discussed the ongoing Bill Walker saga. The good news is, it seems that Friday's blogpost may have hit the right mark, and Holyrood authorities are now looking into the possibility of depriving Walker of his wages, if he is imprisoned.

That conversation enlarged into a broader discussion of Stephen Noon's core motto about the positivity of the case for independence. Is there not an unavoidable kernel of negativity, necessarily underlining any criticism of the constitutional status quo, and justifying the Scottish nationalist movement's activities? 

We also asked the question, who are undecided voters in the independence referendum? We seem, in the debate, to have a clear character for the undecided voter in mind.  But is this construction really convincing? Lastly, we took a minute or two to discuss the phenomenon of the "unpolitical artist", and the blast of superheated steam musician James MacMillan recently shot National Collective's way. Michael offered up an apposite quotation, which neatly summed up our feelings.

Listen here, download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.  By the by, elsewhere, on his ScotIndyPods, Michael was joined this week by YesScotland's Stephen Noon. You can listen to Stephen's positive message for independence here.