28 January 2015

Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

  • Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
  • In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
  • For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
  • Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
  • Filming should be subject to robust, clear and comprehensive guidelines.
  • Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.


Lady Dorrian's full recommendations can be read here.

22 January 2015

Barnett consequentials...

Do you know that old ditty, about the significant consequences which can flow from apparently minor details?

For want of a nail the shoe was lost. For want of a shoe the horse was lost. For want of a horse the rider was lost. For want of a rider the message was lost. For want of a message the battle was lost. For want of a battle the kingdom was lost. And all for the want of a horseshoe nail.

I was put in mind of it last night, as the media reported comments made by Nicola Sturgeon to the BBC's Nick Robinson, indicating that SNP MPs would consider voting on legislation which "has a direct impact" on Scotland's budget. The Times has presented this as ratting on the party's noble self-denying ordinance, to refrain from voting on legislation extending only to England and Wales - another clause added to the charge sheet in the victim-fantasy of an England oppressed. In full-on metropolitan hubristic mode, the Guardian editorial characterise the First Minister's remarks as "playing the English political game" and a (presumably unwelcome) pitch to "acquire unprecedented clout over London.The Scotsman are critical of Nicola's logic too, arguing that:

"In fact, SNP MPs could take an interest in English NHS spending if privatisation was entirely off the table, but budgets were being affected by, say, a drive to cut wasteful bureaucracy, with a consequential cut in Scottish funding. The First Minister may have calculated that this new position will put pressure on Westminster to grant Scotland full fiscal autonomy. After all, if Scotland was in charge of its own finances, and the Barnett formula was scrapped, there would be no reason for the Scots to be interested in levels of English public services."

And the Scotsman must be right. The idea that the SNP should live life in the Commons as if there were no Barnett consequentials might be sustainable -- if the party agreed with the overall direction of public spending. If, however, you are dealing with a government hell-bent on shrinking the state, and doing so across departments dealing with devolved and reserved matters, circumstances change. Resistance to austerity cannot solely be a question of resisting disagreeable budgets and decision-making on reserved matters. Under the Barnett model, any number of "England only" Bills passing through parliament lay the legislative foundations for contracting public budgets.

Another example from outside of the health brief underlines the point. In 2012, the coalition passed the Legal Aid, Sentencing and Punishment of Offenders Act which, amongst other things, helped put legal aid in England and Wales in the fiscal vice. Much of the dirty work is done by subordinate legislation and regulation from the Lord Chancellor's department -- but a core function of the Bill was to hew back the public funds made available to individuals to pursue their disputes in the English courts by excluding great swathes of litigation from the safety-net of legal aid. Superficially, the impact of the 2012 Act is limited to the unlucky folk south of the Tweed, struggling to secure access to justice through law, but the spending cuts it helped set in train quietly erode Scotland's block grant too.

The essential question for the sceptics of the Guardian and the Scotsman is this: why should a self-denying ordinance become a suicide pact for devolved public services? All for the want of a horseshoe nail...

20 January 2015

Is "revenge porn" illegal in Scotland?

I've never been convinced of the propriety of calling it "revenge porn", but the online publication of explicit images without their subjects’ consent has shot up the political agenda in recent months. 

The UK government is proposing new offences in the Criminal Justice and Courts Bill, bearing the maximum penalty of two years imprisonment. A number of other jurisdictions have already adopted new laws, criminalising the publication of such material. With characteristic disregard for the many jurisdictions of the United Kingdom, and their differences, broadcasters and media have been bandying about the idea that 'Revenge porn' illegal under new UK law - dumb to the fact that Chris Grayling's legislation will extend only to England and Wales. 

So what about Scotland, and folk in Scotland, who find compromising photographs or videos of themselves in intimate situations plastered across the internet, or distributed to their friends and acquaintances by a spiteful former parter? A case reported in the Scotsman this morning shows that the Procurator Fiscal may already have effective - if unexpected - legal tools to pursue and punish people who attempt to humiliate or punish people in this way. After the collapse of his relationship, twenty year old Robert McGinlay decided to use Facebook to share a sexually-explicit photograph of his former partner -- stubbornly refusing to take the image down, even after the complainer had "begged" him to do so. She phoned the police -- and now McGinlay finds himself fined and convicted of "threatening or abusive behaviour".

Holyrood brought in this new offence in 2010 in response to the erosion of the common law crime of breach of the peace by the appeals court. Under pressure from the European Convention, judges reckoned that this traditional offence was defined too broadly, and gradually knocked off its rough corners.  This included a new emphasis in the case law on breach of the peace having a necessarily public element.  Despite the fact that, a few years ago, breach charges made up a great part of what we might call domestic abuse offences in Scotland, the crime retreated from the privacy of the home, onto the streets and into the public domain. The parliament stepped in to fill that legal vacuum. Section 38 of the Criminal Justice and Licensing (Scotland) Act was the result. 

Like the common law crime it supplanted, "threatening or abusive" behaviour is an extremely broadly defined offence -- and it shouldn't be surprising to see prosecutors using it in a creative way to pursue people like McGinlay - whose behaviour was undoubtedly abusive, alarming, and wilfully intended to disturb his victim. A traditional breach of the peace it may not be, but I have no sympathy whatever with this cruel young man. 

In the aftermath of Charlie Hebdo atrocity, however, and the subsequent less than convincing hymns to free expression, we might reappraise the potential breadth of this new offence with a measure of anxiety. Under the Human Rights Act, courts are obliged to interpret and apply the criminal law having regard to your Article 10 rights to free expression -- but firing up social media throws up a lively cavalcade of "abusive" behaviour, capable of "alarming" the sensitively-constituted "reasonable person".  As always, we must keep a watch on the watchdog state, to ensure that the remedy isn't worse than the ill it was designed to cure. 

18 January 2015

"Is the current law in Scotland clear?" Nope...

In Holyrood this week, another reminder that whether or not the parliament decides to adopt the late Margo MacDonald's controversial proposals definitively to legalise assisting suicide, the criminal law in this field is an unpredictable mess.

In contrast with the Justice Committee's sketchy summary, the SPICe briefing on the Bill gives you a much fuller, and indirectly more critical, account of the predicament Scots law finds itself in. Briefly to recap, no equivalent of the English Suicide Act 1961 applies in Scotland. There is no free-standing offence of assisting suicide here. Instead, assistance may, in some circumstances, be criminalised under the law of homicide. But what circumstances? There's the rub. We don't really know, and because of the absence of High Court cases giving definitive guidance on the applicability of the common law in these fields, we can't really know. 

On Tuesday, the Health and Sport Committee began taking evidence from legal experts, including representatives of Police Scotland, the Crown Office, the Faculty, and my colleague Professor Alison Britton. The unpredictability of the law as it stands was brought out clearly in the witnesses' evidence. Labour MSP Rhoda Grant prodded the panel on the law as it stands. "Has anyone been prosecuted for knowing that someone else was about to commit suicide and, rather than assisting or encouraging the act, providing moral support or whatever?", she asked.

Summarising his understanding of the law now in force, Stephen McGowan from the Crown Office and Procurator Fiscal service commented:
"These cases are very fact sensitive. Under the current law, it depends on what precise action was taken to assist the suicide. Perhaps the key point is that consent is not a defence in terms of assault or homicide. Any act that has been taken to assist in the dying process can be looked at in the context of the law of homicide as a whole.
Because a person cannot consent to die in that way under the current law, if someone assists that, that potentially becomes homicide. However, it is difficult to come up with a precise rule, because the cases are all very fact sensitive. It depends on the circumstances of each case, what the condition is, what level of understanding the person who died had, and the intention of the person who assisted."
Respectfully to Mr McGowan, I think he must be conflating two distinct issues in this answer. To my ear, this sounds like an explanation of the PF's decision-making about whether or not to prosecute a particular individual. That is, to some extent at least, distinct from the more elemental question of whether or not homicide has been committed.  Prosecutors can only haul you before the courts if they can hang their case on a relevant statutory or common law crime, but several other factors influence their decision to do so too. 

Is the evidence in support of the charge sufficiently credible and reliable? Would the prosecution be in the public interest? The Crown Office may decide, for example, that prosecuting a particular mercy killer would not be in the public interest. But that doesn't mean that the killing wasn't illegal, wasn't murder or culpable homicide. The issues are distinct. And the Crown's understanding of the scope of the law of homicide remains as unhappily foggy as ever. The point was underlined when Patrick Harvie got a look in, responding to some criticisms of the lack of clarity of the draft legislation. In echo of a few of the grouchy questions posed on this blog last week, Harvie asked him about the "open, undefined legislative framework" of the law in force today:
"A paper from the office of the solicitor to the Scottish Parliament has been circulated to members. It outlines the current context, which is different from that for the Assisted Dying Bill, which amends the Suicide Act 1961. The paper says:  “In Scotland, an individual”  assisting a suicide could  “be prosecuted under the common law for murder or culpable homicide, or some lesser offence such as culpable and reckless conduct.” 
For example, someone might take steps to ensure that someone who they care for has access to the means to end their own life in the room where they are being cared for, might prop the person up in bed when they take the action to end their life or might simply make practical arrangements for the person to travel to Geneva and end their life in that way. At present, all those scenarios give rise to a great lack of clarity about what offences might be prosecuted and under what circumstances. 
Is the position that we are in not the most open and ill-defined legislative framework that we could possibly have in the policy area? Is an attempt to outline a process that would be protected from those forms of prosecution not a positive step that increases the clarity that is available to people?"

McGowan responded that he couldn't really reply to any of these particular queries- because the impending judicial review launched by Gordon Ross "tied his hands". While you can understand this response to some extent - Harvie was merely soliciting comment, in parliament, on the public prosecution service's understanding of the criminal law as it currently stands in Scotland. Even taking into account the Crown's limited range of action because of Mr Ross' judicial review petition, I find it remarkable that no comment on these essential issues was forthcoming. Glasgow Caledonian University Professor Britton stepped in to provide some informed commentary which only underlines the point Harvie - and this blog - has repeatedly made:
Professor Britton: "Perhaps I can help a little.  What you said, Mr Harvie, has some resonance. Prior to recent events and the current judicial review, the reply to that was that the law in Scotland was absolutely clear that assisting in the death of another person would incur some form of investigation and possibly some sanction.  As you know, the position in England was subject to similar consideration, and the Director of Public Prosecutions issued guidelines following the case involving Ms Purdy.
That has not yet happened in Scotland so, at the moment, we rely on existing law, which—the argument is—is clear. England has tried to be a bit more specific but there is clearly a limit to how specific any rules or guidelines can be, because we would be usurping the role of Parliament. Therefore, I acknowledge that this might be the time for a challenge."
Patrick Harvie: "Is the current law in Scotland clear about whether someone who made all the practical arrangements for someone else to travel to Geneva, travelled with them and ensured that they were able to go through the process would be subject to prosecution?"
Professor Britton: "We have not had sufficient case law in Scotland to be able to answer that."
Patrick Harvie: "Exactly."

Exactly, indeed.  If I fill a syringe with a lethal cocktail of drugs, and inject you with it - even with your consent - that's clearly homicide and exposes me to the risk of a life sentence. But what if I assemble pills for you in large quantity, at your urging? What if I pass you a glass of water to wash them down, and sit with you when they take effect and stop your heart? What if I help you onto a plane to Switzerland to terminate your life there, legally? The technical answer to all three is -- it depends on the mercurial doctrine of causation, the finnicky detail of which need not detain us here.

The Scots law on assisting suicide is unclear, unpredictable and unable to give anything approaching definitive guidance to the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable. The fact that few people find themselves in courts facing charges is some practical comfort that the Crown are adopting an enlightened and compassionate policy here. 

But in principle, the vagueness of the law, and the more or less complete lack of transparency from the Crown Office on its application, represents an unacceptable fudge the continuation of which can no longer be justified. Whether or not Margo's last Bill finds its way onto the statute book, the Scottish Parliament must act to remove the Damoclean sword which unjustly hangs over too many people, trying to do the right thing, to live compassionately according to their lights, and to live within the law. 

14 January 2015

Talking turkey

Much of the honest scheming is surely going on in smoke free back rooms, war-gaming possible scenarios, running the counterfactuals. Would any minority administration long survive? What if the Nationalists won enough seats to put Labour over the top, would England wear it, and would Miliband cut the deal? If the balance of power lay with Nigel Farage, would he go into coalition with Cameron's mob, and would the punters accept it?

Could the depleted rump of the Liberal Democrats be persuaded to prop up the Labour Party with a confidence and supply deal, a renewed Lib-Lab pact for the 21st century? These kinds of questions seem to be dominating the fizz of anticipation on the airwaves. But much of the public commentary about the Scottish dimension seems to me to miss the mark and to be neglecting obvious tensions and challenges thrown up by the 2015 general election.  

The Nationalist pitch in 2015 seems to fall into two or three key arguments. One. Dump the calculations and the tactics. Vote with your heart. Give Labour a kicking. Punish their hubris. You know it'll be fun. "Red Tories." "They're all the same." Better Together. Etcetera. 

This sits - somewhat uncomfortably - alongside proposition two: Labour can't be trusted to govern alone. With Ed sitting unsteady at the helm, they look like losers, despite the much more equivocal polling picture. Vote SNP to despatch a powerful phalanx of Nationalists to torment the Labour Party into virtue, on spending cuts, military hardware and enhanced devolution. It is equally important for the party to be coy about how precisely this might actually work. If the Nationalists ruled out a coalition, the case for including them in the fraught saga that is the leadership debates would be very materially weakened.  

This makes sense if we are anticipating a minority Labour "win", but in any other scenario, it is essentially a pitch for "our" feeble fifty to replace Labour's. A key plank of the argument for independence was that Scotland frequently doesn't get the government that the majority supported. We can despatch dozens of anti Tory parliamentarians to London: it makes no difference if the majority in the rest of the country votes true blue.  

If the stars do not align, and an agreeable minority does not materialise, however, our fifty risk being doomed to being feeble too.  "A strong voice for Scotland" in Westminster, but one at risk of crying in the wilderness. The opposition given the government by the Nationalists may be more gratifyingly robust than the current Labour regime offers -- but it remains opposition, with very limited powers of action. Ask Jim Murphy. All he can do is mew and call for this and that issue to be considered and prioritised. With a strike of her pen, Nicola can make things like this happen

It is cold, thankless, frequently fruitless work outside those government offices. Redundancy is one thing, one political cul de sac, but worse, what if it works? What if the Nationalists are somehow able to throw their weight around at Westminster, frustrating Whitehall plans, and elbowing the centre of British politics leftward, playing the table cannily. Where then for the argument that only independence can secure for Scotland the politics that the majority seems to desire? Oops.

But when you get into it, into the detail, how is any SNP deal going to work, and what does it risk? And to whom would it be acceptable? There's quite a bit of sloppy, flip thinking doing the rounds at the moment about the implications of this for the Nationalists. A coalition of any sort seems decidedly difficult to envision, given the party rhetoric, local enemies, traditions, and party support.

The SNP must have seen enough junior coalition parters being cannibalised to learn caution. They must also know that the discreet, deniable informal arrangement between 2007 and 2011 when the Tories helped pass the minority government's budget cannot extend to any Westminster deal they are involved it. It will all be done in the glare of publicity, and in the context of a Scottish political discourse shot through with hard antipathies. Nobody wants to be 2015's Nick Clegg.

But if a full coalition, and voting in support of English legislation is too rich for your blood, you may be inclined to say, "ach well, we'll go for confidence and supply instead" - as if that represented a wafer-thin undertaking for any party to give to a governing minority. Applying yourself for a minute or two to the implications of this should reveal, however, that any deal of this kind has the same capacity for toxicity as full coalition. Sure, you may not be contributing ministers to be monstered in the press, but it means voting for the Labour budget. 

Imagine you are a new-minted Nationalist MP, sent to Westminster with your blood roiling, determined to challenge the state-shrinking, welfare-cutting orthodoxy which dominates the present coalition and Labour party thinking. Would you - could you - vote for that? Cast your mind back to your constituency, and the heated rhetoric of the campaign. Do you think your confidence and supply vote would survive its rigour? Would you satisfy your own critique of Liberal - and Labour - sell outs, turncoats and right-wing bastardy? Good luck with that one.

Governments do plenty of controversial things, but supporting a budget is more than a technical matter signing off the national accounts: it is to be implicated in basic economic and social decision-making of the governing regime. Unless a minority Labour Party could be persuaded radically to depart from Ed Balls' current spending plans, any coalition or confidence and supply deal between Labour and the SNP is fraught with peril. 

Even if the Labour party hand us the scalpel, we're under no obligation to draw it across our throats. Ad hoc unpredictability, issue by issue, may offer a safer haven. But eventually, it comes down to this: would you vote to sustain or to evict a government from office? If you are the sitting Prime Minister whose fate is being decided, this is a hair-raising situation to find yourself in. But the predicament engulfs all of the opposition too, particularly in a tight parliament. 

There is an important lesson here. Although I remain skeptical about he likelihood of the SNP achieving anything like the kind of breakthrough in Westminster current polling suggests is possible, being sent in triumph to a hung parliament with unpredictable bottom line numbers represents a great opportunity - and a real threat - to the party, if events are not handled with cold-eyed self-awareness, and the right calculations made. A good, but more modest result - twelve seats say - may deliver us from peril. But history is frequently cruel. And even victors are by victories undone.

11 January 2015

The unlearned lessons of Thomas Aikenhead

A stooshie is brewing across the Irish sea, given added impetus by this week's gruesome events in Paris, and the debate about offending religious sensibilities which it has provoked. In 2009, the terminally ghastly Fianna Fail government introduced the Defamation Act. Section 36 of the legislation enacted a new statutory offence of "publishing or uttering blasphemous matter", which criminalises producing material "that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion." 

The offence is a crime of intention. You can't commit it recklessly or negligently. To be convicted, the prosecution must demonstrate that the accused "intends, by the publication or utterance of the matter concerned, to cause such outrage." If you find yourself in the dock, you have a defence if you can prove that "reasonable person would find genuine literary, artistic, political, scientific, or academic value" in what you said, or wrote, or pictured -- but if not, you're liable to anything up to a 25,000 euro fine. In the heightened atmosphere after the Charlie Hebdo atrocity, the campaign for these offences to be rolled back in Ireland has gained urgency.

This has prompted some subtly-self regarding commentary from this side of the water. "That's priest-ridden Ireland for you, " the gloat. "Shocking. We wouldn't countenance that sort of thing here." Think again, comrades. Back in 2012, I recalled the case of Thomas Aikenhead - the twenty year old Edinburgh student strung up by the Scottish authorities in the 1600s. At the instance of the Lord Advocate of the day, the boy was indicted in the High Court of Justiciary, for having suggested that Moses was a crooked magician, and characterising the New Testament as "the History of the Impostor Christ" who "picked up a few ignorant blockish fisher fellows, whom he knew by his skill and phisognomie, had strong imaginations, and that by the help of exalted imagninatione he play’d his pranks." 

For these little blasphemies, the Scottish authorities throttled Aikenhead, on the 8th of January 1697. That is history. But the law which pushed the noose about his neck, and hoist him to his death, remains very much in force.  Centuries may have passed, but the crime of blasphemy has never actually been repealed in Scotland. In principle, at least, it remains an offence at common law "to publish or expose for sale blasphemous works which are intended to asperse, vilify, ridicule and bring into contempt the Holy Scriptures or the Christian religion."

The last prosecution was undertaken against Thomas Paterson - for scurrilous publishing - in 1843. A committed atheist spoiling for a fight, Paterson was editor of The Oracle of Reason - an atheistical magazine. He opened a radical bookshop in Edinburgh, which he reportedly characterised as his "blasphemy depot", crammed full of anti-clerical and anti-Christian readings. The authorities took note. The illiberal common law sparked back into life.

Representing himself during his High Court of Justiciary trial, with all of the rhetorical firecrackers which inevitably accompany a man doomed to be convicted under what he perceives as an unjust law, Paterson sought to demonstrate "the scenes of animosity, malice, carnage, bloodshed and torture, which the followers of Christ have practiced on each other, for the honour of Jesus, and the salvation of the Christian religion, from its commencement to the present."

The presiding judge reportedly interrupted him before he was able to quote choice verses from scripture to vindicate this assessment of Christianity's impact and legacy. His fate was softer than Aikenhead's. Paterson got 15 months in the slammer. British justice: the eternal lamp that shows where freedom lives.

You may be reassured that the crime of blasphemy has been gathering stoor on a Crown Office shelf, unused, all this time. The Human Rights Act - which, remember, will get the chop if a new Tory government is elected in 2015 - may offer some protection, should our prosecutors recover the inclination to prosecute anyone for slagging off the Christian scriptures and beliefs.

But given Police Scotland's disturbing interest in "monitoring" social media, and the increasing penetration of the touchy language of criminalising "offence" into prosecution rhetoric and Scottish political discourse, I for one am not reassured. It isn't just the Irish who must consider putting their house in order. 

It would represent a step forward - a small step forward - for the paper tigers of free expression in Scottish politics, to live up to their new found zeal and to honour liberty in their deeds, as well as their words. It sticks in the craw to hear elegant epigrams from Voltaire earnestly quoted by politicians and commentators who have consistently resisted the logic they now piously advocate. 

To hear hymns to the fundamental character of free expression from folk who've consistently mounted stolid defences of punishing  "offensive behaviour," who feel tempted to whine to the cops when they see a tasteless tweet, and who think the courts are the best place to sort out the rude, the thoughtless, the gormless, bigoted, and unempathetic - is difficult to thole. "I may disagree with everything you say, but will defend to the death the right of the procurator fiscal to pull you up before the sheriff for saying it." Bravo, Monsieur Arouet.

These are just empty words, just so much pious humbug, if these principles don't guide the actions and the choices of our politicians. Liberty often finds feeble friends on the pine benches of Holyrood.  Centuries on, you'd hope, finally, we might have learned the lessons of Thomas Aikenhead.

8 January 2015

Justice Committee #Fail

My gast is flabbered. This afternoon, Holyrood's Justice Committee has reported on the late Margo MacDonald's draft assisted suicide legislation. Since Margo's death, the Bill is being shepherded through the Scottish Parliament by Patrick Harvie. The Committee's report, reasonably enough, was intended to focus on the legal aspects of the proposal. Central to that enterprise, you might well think, would be to ascertain with some precision what is and is not currently illegal when it comes to assisting and facilitating acts of suicide in this country. 

The English position is easily stated. The Suicide Act applies, which criminalises "aiding, abetting, counselling or procuring" the suicide of another person. If you prepare a lethal cocktail of drugs for your spouse in England, or help a friend to fly to the Dignitas clinic in Swizterland, you violate the law. But what of Scotland? Would I be at risk of prosecution if I prepared a fatal dose of drugs for a sick friend to administer to themselves? Might I face a homicide conviction, for ordering tickets for a terminally ill relative, accompanying them to a Swiss canton? 

The Justice Committee, on the evidence of their own report, haven't really got the foggiest. But chin up. They don't seem particularly to care either. After all, it is only a fundamental question of human liberty. You'd want to leave that, as ambiguously defined as possible, for prosecutors to determine according to uncertain and inaccessible standards. Here's their amateur-hour summary of the current legal position in Scotland.

27. Suicide and attempted suicide are not in themselves illegal in Scotland. The decision on whether or not to prosecute is for the COPFS, taking into account the circumstances of the case, including whether prosecution would be in the public interest.

You'd think you wouldn't leap to questions of prosecution before you've actually established that the impugned behaviour is a criminal offence. Some forms of assistance may well amount to homicide -- but others, such as the examples given, fall well short of the common law offences of murder and culpable homicide. The Crown Office isn't a lawmaking body. Your apparent deference to prosecutorial judgement here is ridiculous, lazy and misplaced. You can't just ask Frank Mulholland what he thinks about it and wait for the Lord Advocate experimentally to indict some luckless assister under the common law. This isn't 1760. This is your responsibility.

But I digress. The report continues...

27. "The Policy Memorandum explains that “it is possible that a person who assists someone else to commit suicide would be prosecuted for homicide (i.e. murder or culpable homicide), or for some lesser offence (such as assault or culpable and reckless injury/behaviour), although the lack of relevant case-law makes it difficult to establish how likely this is to happen in any particular case”.

28. In England and Wales, assisting a suicide is a statutory offence under section 2 of the Suicide Act 1961. Decisions on prosecution are taken by the Director of Public Prosecutions (DPP). The law relating to the DPP’s role has been clarified by two high-profile cases. In the first, the case of Diane Pretty, the House of Lords upheld the DPP’s refusal to give an undertaking in advance not to prosecute Ms Pretty’s husband if he assisted her in ending her own life. In the second, the case of Debbie Purdy, the House of Lords ruled that the DPP’s refusal to issue guidance on whether Mr Purdy’s husband would face prosecution for helping her to travel to Switzerland to die, contravened the ECHR. Following this judgment, the DPP issued guidelines aimed at clarifying the approach to cases of encouraging or assisting a suicide. These guidelines do not have the force of law and have no direct bearing on cases in Scotland.

Brilliant. So the Justice Committee's summary of the Scottish legal position amounts to a big shrug about the complexity of the common law, cannot offer any clear guidance on what kinds of assisting behaviour may or may not be criminal under the law as it stands, and focuses almost entirely on explicitly irrelevant English material.


Christine Grahame may talk a good game, and make occasional noises about robust and independent-minded scrutiny of policy - but under her chairmanship, this committee has often as not produced a singularly undistinguished and unfocussed analysis of the justice issues placed before it. Today's facile report kicks off 2015, dismally on trend.

7 January 2015

Jim Murphy: strategist or opportunist?

Peter Mandelson was often characterised a Machiavellian operator. He was the Prince of Darkness: sinister, scheming, in speech gyroscopic, eyebrows demonic, intent cynical and manipulative. One of the great Florentine's best known axioms is that it is better for the prince to be feared than loved. But the overwhelming mistrust attaching to Blair's sleek New Labour accomplice - and Mandelson's seeming pleasure in being mistrusted as a pantomime villain - reveals the former spinner as a poor student of Machiavelli. Richard III he ain't. 

The Machiavellian prince must always conspire to appear "merciful, faithful, humane, religious, upright" - even, or perhaps especially - if he's rotted through by connivance, malevolence and low animal cunning. Unlike the former MP for Hartlepool, the talented Machiavel will always "seem a saint, when most they play the devil." The trick is to prosper as a scheming bastard, while conspiring not to appear like one.

In this respect, Labour's new Scottish leader Jim Murphy seems a far more calculated adherent of the school. Despite a career littered with backstabbing, scheming and steel-toed internal partisanship - and a leadership position secured by lodging whispering knives in the back of his inept predecessor - Murphy's public persona is one of heavy - even exhausting - good fellowship; lugubrious, patient, wholesome. 

That isn't to say that he entirely pulls off the performance. Many folk regard him with profound mistrust in the light of the referendum campaign, his reputation for ideological slipperiness and the marches and countermarches of his party career - mistrust which blew up this week in an internal party stooshie. Murphy has a health policy for 2016. He's already earmarked the Barnet consequentials (and then some) of increased Labour health spending, if the party regains office in 2015. Bully for him. 

But it is the embroidery which matters here. For Jim felt it was expedient explicitly to conjure up the image of stripping southern English mansions to fund a new phalanx of doughty Scottish nurses. This was on any account a gratuitous annotation, and one with obvious political consequences. The right wing press have gone ballistic, feeding the beast of English disgruntlement and the victimology of a put-upon wealthy England being taken for a ride by pick-pocketing Scotch footpads - with Mr Murphy as the unrepentant robbing bastard in chief. "Labour, the party which doesn't care about getting a good deal for England" - and other self-serving humbug.

Poor Ed presumably surveyed these front pages over his morning egg - mouth agape like a clobbered monkfish - with Murphy's colleagues from the capital took to the airwaves to denounce the new Scottish leader's attempt to "buy Scottish votes with money expropriated from London." And for the cynic, keeping one eye on the Machiavellian antics of Labour's new comptroller, an ungenerous suspicion begins to buzz in the back of the mind. Is this a confected row, connived at, plausibly deniable, but quite intentionally generated? 

In truth, the odd bust up wouldn't be a terrible idea for a branch manager determined to be seen to be a plucky, independent start-up, but would you really pick a subject so potentially inflammatory, predictably generating hostile and damaging headlines for Ed Miliband in the rightwing papers? Even if you calculated that you were weakest at the northern frontier, would you really shove your south eastern colleagues under a bus and pass the Tories and UKIP a hardy stick with which to beat your comrades? Would you insist on making your stand on a topic, doomed to promote a narrative already enervating your party's chances in England?

The Machiavellian might consider it, careful, mind you, to don the mantle of calm guilelessness. It may of course, not be strategy at all, but sheer opportunism. A loose phrase thoughtlessly dropped in echo of the "pooling and sharing" rhetoric which dominated Murphy's referendum campaign - but an opportunity to score points against his colleagues when the entirely predictable counterblasts blow in. 

Whether it is an egg, or a quietly inflammatory aside in announcing a policy, Mr Murphy does appear to have a considerable talent for casting himself as a victim, patiently enduring the slings and arrows, putting folk firmly but respectful in their place, more in sorrow than in anger. Johann Lamont was a disaster, evoking sympathy. Given this week's antics, Jim Murphy will have to be careful that he doesn't share in Mandelson's fate.

Machiavellian doubleness is difficult to maintain. The supposed spontaneity spoils. The projected authenticity tarnishes. Reputations eventually crack, as the discrepancies between the self represented and your busy mischief becomes too striking. To "seem a saint" and "play the devil" is beyond the acting chops of most political operators. Such is the gulf between the artless persona Jim cultivates, and the suspicions he provokes, he'll need all of Sir Larry's talents to reconcile the two.

6 January 2015

Incoherent, illiberal and ineffective...

During its bumpy and frequently unedifying passage through Holyrood, I made no secret of my hostility towards the Offensive Behaviour at Football legislation. The Act is a boorach, in principle and form. The law has - rightly - been slagged off as poorly drafted from the bench. One learned sheriff, in the language of the butcher's shop, dubbed it "mince". The football offences are woolly, imprecise, and difficult to understand.

This has implications for attendees on the terraces - but also to anybody in transition to and from regulated matches - but also extends to anyone in a pub, with the game quietly rolling in the background. And for police officers, and prosecutors, pondering how to apply the law to particular cases. What might a "the reasonable person find offensive"? A Palestinian flag? A Che Guevara T-shirt? A poppy? A shirt slagging off poppies? A Yes badge? But matters get even grimmer when it comes to the second part of the Football Act's offences. The Crown have to demonstrate, not only that the behaviour could offend the sensibilities of the reasonable person, but that it was capable of "inciting public disorder". 

During its passage through Holyrood, this was dressed up as a safeguard for punters, but as the High Court has demonstrated, it is nothing of the kind. In the absence of any actual people inflamed to mischief by remarks or shirts or songs or chants, the Act requires the court to invent imaginary mischief-makers. The sheriff must conjure fictional, potentially unreasonable, incitees from the the ether. If no North Koreans are conveniently on hand trash the place, thin-skinned patriotic and muscular wreckers are to be invented - and the accused held responsible for their equally imaginary public disorder. As Lady Paton observed:

"Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them."

In short, the court must invent a whole cast of touchy, grievance seeking, conspiratorial, irrational figures, and ask whether they might kick off in response to the hapless accused's conduct. This is madness. And if the recent statistics from our criminal courts are anything to go by, remarkably ineffective madness.

According to statistics released at the end of last year, the legislation has been an unprecedented calamity for Scottish prosecutors. First, a little context. The conviction rate for rape in this country has been reckoned a scandal. Across all offences - theft, fraud, murder, assault - the average rate of conviction is 87%. For the past few years, the rape conviction rate in Scotland hovered under 60% of cases brought to court by the Procurator Fiscal. Although not much discussed just before Christmas, the conviction rate for rape charges taken to court in Scotland took a massive dip in 2013/14.

Of the 214 people prosecuted, only 87 - 41% - were convicted. Why? During 2013/14, more people were prosecuted for rape in Scotland, but the number of individuals convicted did not increase significantly. With the corroboration debate unresolved, the 2013/14 figures should remind folk - there's a yawning gulf between (a) more people being prosecuted and (b) a greater percentage of people being convicted for sexual offences.

So what about the offences created by the new football legislation? According to the government figures, conviction rates for Offensive Behaviour and Football complaints and indictments are - remarkably - low. Of the 154 folk prosecuted for football-related offences, a stonking 74 were acquitted. That gives us a parlous conviction rate under the law of 52%. The overwhelming majority of these acquittals will be from sheriffs - from professional judges - not juries. This stinking conviction rate can't be blamed on the paradoxical conclusions of the Airdrie jury, or the partisan, Old Firm panel of fifteen ordinary punters. It speaks to the vices of the original Bill that was rushed so loyally and so inadequately through Holyrood.

Under the Offensive Behaviour Act, the Scottish Government is obliged to report on the operation of the legislation by the end of 2015. On the evidence, all does not augur well for the Scottish Government. These football laws were a classic essay in the worst political instincts of our late First Minister: sketchy, defensive, only half thought through, a pompous mess, hazy, made on the hoof. Alex Salmond had the cunning to dump the duty on Kenny MacAskill's desk, who aped his boss by abandoning poor Roseanna Cunningham to make the case for it in public.

Now, years on, this incoherent, illiberal and ineffective piece of legislation is Nicola's stress headache.