Professor Chalmers: The law "cannot be stated with any degree of certainty whatsoever..."

As my regular readers will know, I’ve a raging hymenopterous beastie in my bunnet about the criminalisation of assisted suicide in Scotland. Two recent blog posts have examined Holyrood’s scrutiny of the late Margo MacDonald’s proposals to definitively legalise assisting suicide, and found it wanting.

Whatever you think of the issues, I argue, the law as it stands is intolerably value and unclear. Is it homicide to collect a vast stash of drugs and to give them to a loved one to take, to end their suffering? Is it murder, or culpable homicide, to assist your relative to mount a plane to the Dignitas clinic in Switzerland? What does the Lord Advocate think about these things? On all three, I argue, the legal answers are clear as mud, evasive, fudged. And that can’t be right.

Perhaps prompted by my girning blog posts, Patrick Harvie posed a number of these awkward questions to witnesses during a recent Holyrood evidence session on the Bill. Astonishingly, the Crown Office seems unable or unwilling to offer any guidance whatever on its understanding of the law here, complaining that they are subject to a live judicial review. Even taking this pending civil case into account, I find this reluctance to offer any meaningful steer to our parliamentarians on their understanding of the criminal law confusing, to say the least. But a seed of unease about the current law on assisting suicide seems to have been planted.

Interesting tidings, then, this afternoon from Professor James Chalmers of the University of Glasgow, who reports that he has been approached by Holyrood’s Health and Sports Committee "to answer a series of questions on the scope of Scots criminal law as it stands." Professor Chalmers’ full response to the Committee can be read here. But James provides this pithy, pretty damning summary of the law as it stands which should powderkeg the complacency which has characterised parliament’s analysis of the Scots criminal law on assisting suicide:

"... the core conclusion is a simple one: the scope of the criminal law in this area can not be stated with any degree of certainty whatsoever."

In its thoroughness, James’ analysis hammers home the uncertainty of the current law extremely effectively. Whether or not Parliament endorses this Bill, the criminal law cannot be permitted to remain as it is, uncertain, unprincipled, and relying on the untransparent exercise of prosecutorial discretion to avoid injustice.  

Under the European Convention on Human Rights, we are entitled to know what is and is not criminal, and the sanctions we expose ourselves to if we decide to transgress. These rights are fundamental, essential, minimal. In principle, the current legal regime on assisting suicide in Scotland fails to live up to these ideals, providing authoritative guidance for 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.

That the Health and Sport Committee is seeking learned advice on this neglected issue is a very welcome development. They are to be commended for rejecting the Justice Committee's complacent incuriosity, and posing the tough questions. Let's see what they make of Professor Chalmers’ equally challenging answers.

Smug Scottish Police Federation spit out the dummy on stop and search

The Scottish Police Federation have made only one prior, unedifying appearance on this blog. In a crowded field, the contribution of the bobby's informal union to the corroboration debate in Holyrood was singularly gormless. The organisation's Vice President showed little understanding of the current law on in his evidence to MSPs back in December.

Today, SPF General Secretary Calum Steele shows outright contempt for our parliamentary representatives, in an impertinent letter on the recent stooshie on Police Scotland's approach to stopping and searching innocent punters. 

I quote the eye popping correspondence in full below, littered with uncontrollable, explosive outburst of liberal fury. The General Secretary begins his pert billet doux on a modest, reconciliatory note. Anxious to allay the reasonable fears about civil liberties which have been expressed in recent days, keen to show a police service, alive to the concerns about searches which have no legal basis, and which present serious risks of exploiting the ignorance of the public to allow constables to harry and waylay folk who are innocent of any criminal offence, and any reasonable suspicion of committing one, he begins thus:

"The events of the past week have resulted in a frightening narrative that politicians believe that they are in a position and indeed have a role to play in determining how and when police officers exercise their right to stop and search someone. It is also alarming to read and hear reports that politicians consider that they are in a position to reach an agreement with or direct the Chief Constable of the day as to how and when such powers will be used."

Gadzooks! Heaven forfend that our politicians should have a care for our basic liberties and freedom from being tormented by interfering polis with no legal basis, and no suspicions, to justify stopping us and rummaging through our stuff. These duffers, these merely elected persons, suppose they have some "role to play" in upholding the basic rights of the citizens of this country to go about their business without being pestered, groundlessly, by officers of the law. A scandal.

Why shouldn't the contemporary Dicksons of Dock Green go about their beat, arbitrarily hassling the public? Why doesn't the First Minister poke her big neb out? Like Father Jack, for Mr Steele, Scottish politicians should burble, "that's an operational manner", and keep their "frightening narratives" about basic rights and police oversight to themselves. The constable e'er kens best. My knobbly, suppurating foot.

"The authority of police officers to stop and search any citizen does not arise from the dictate of politicians nor from some non-existent power of the Chief Constable but comes from the law of the land both at common law and statute. If that power is exercised inappropriately or in circumstances which breach the law, and the substantial safeguards that exist, the courts will strike down any evidence recovered unlawfully. Scotland has a well developed body of law governing the rights of the police to search and the rights of individuals who may be the subject of search." 

As the law stands at present a Police Constable can stop and search any individual without having a search warrant if they suspect they are in possession of drugs, an offensive weapon, stolen property, alcohol if attending a major football or rugby match, on public transport travelling to such an event where alcohol is not permitted, evidence in relation to an offence under the protection of Wild Mammals (Scotland) Act 2002, cash or cash equivalent of £1000 or more where this is the result of criminal activity and fireworks that are intended to be used anti socially. Before exercising the right to stop and search the Constable has to have reasonable grounds for suspecting that they will find one or more of these items. 

There are some exceptions which allow police officers, for example attending an incident which has involved serious violence, to stop and search without having reasonable grounds for suspecting that they might find these items. 

In matters involving terrorism the police can stop and search a vehicle if they reasonably suspect terrorist activities are involved. If such a reasonable suspicion exists for any of these matters and the common law or Parliament has given power to search, on what basis is it now to be suggested that a conversation will take place with the Chief Constable to prevent a police officer exercising these powers lawfully and in the public interest?"

The framework of law which governs search and stop and search is well understood and has developed through many decisions of the courts supplemented by extra powers granted to police officers by Parliament both at Westminster and Holyrood. None of these powers are granted to the Chief Constable (other than as an individual holding the office of Constable) and there is no place in the common law or statute for politicians deciding on the whim of the moment how, when or why police officers should exercise the powers which the law extends to them. 

All of these powers can be challenged in court as and when appropriate. The Chief Constable’s responsibility is to provide training for officers so that they understand what their powers are under the law. The role of politicians is to enact law. When the power is granted then police officers have the obligation to exercise those powers reasonably within the limits set by law, in ways consistent with the training they receive and be ready to answer for any decisions they make before a court of law rather than a court of political opinion or according to some private discussions between politicians and the Chief Constable of the day. 

The debate on ‘non-statutory’ or ‘consensual’ searches has unearthed frightening levels of political ignorance. It is well understood that for the most part we police our nation by consent not by force and for this reason our courts have consistently found that when citizens voluntarily consent to be searched that not only is such practice within the law but that occasions where a person gives consent, the interaction does not amount to a search in the more formal sense of the word. It seems to me that this is a determination based entirely on common sense. Are we really suggesting citizens should no longer be able to co-operate with police officers on a voluntary basis? 

If law developed by the courts and as laid down by Parliament is to be altered, the legislators would require to explain how a power vested in an individual Constable could be restricted through what appears to be entirely ambiguous means. It would be an absurdity for a Constable to be vested with powers only for those powers to be curtailed as a result of some private conversation between a politician and the Chief Constable. 

Regrettably the Police Service of Scotland has to carry much of the responsibility for the hostility toward the subject of stop and search. The numbers driven target approach to this area of policing was ill conceived and resulted in attention being directed towards meaningless numbers rather than the sensible objective of crime prevention and detection."

Ah yes. Those "meaningless numbers" of actual kids being collared and rumpaged through by police officers. With no suspicions that any offence has been committed. This whole passage is a smokescreen. The scandal, General Secretary, is not Police Scotland's use of its legal powers, but constables stopping folk in circumstances where no law, neither statute nor the common law, would allow officers to insist on pawing through a bag or a coat.  

Oh look, a squirrel. After knocking heads, however, Steele comes over all magnanimous. These upstart parliamentarians, he generously grants, are entitled to take a passing interest, despite the sweeping and possessive claims of his opening paragraph.

It is of course understandable and entirely correct that politicians question the use of any non-statutory search of children and all police officers should be able to account for such occurrences. The events of the past week however tend to suggest that there is no interest in hearing such accounts, as a determination has already been made that any rationale provided will be insufficient. 

It is however an absolute reality that many children in our society are out and about in our communities without the slightest knowledge of their parents or guardians. Many smoke from their pre-teen years, many more drink and yes occasionally some also carry weapons and drugs. No amount of wishing it wasn’t so changes the fact that it is so and no amount of hand wringing changes the fact that police officers have to deal with thousands of calls every year involving pre teenage youngsters. There may be no general statutory power to search at such calls but there is also no general statutory power to require a name, address or age. Perhaps the police should just do nothing and advise callers that “we have no statutory powers” and simply hope these youngsters come to, or cause no harm. 

When police officers exercise their powers to search they do so often under statute and in such circumstances they do not require consent, they can also search people they have lawfully arrested with or without a warrant. They can also ask individuals to consent to search and it’s up to the individual whether they consent or not.  What the public require to know is that police officers are only engaging in this activity in the public interest in an effort to combat crime and to keep the public safe. This is best done by training police officers how to exercise their powers and engage with the public in the interests of everyone rather than by political dictate or suggestion to Chief Constables that they have the power to overrule a well-developed system of law. 

There are undoubtedly lessons to be learnt from the recent history of stop and search within the Police Service of Scotland. These lessons however need to extend beyond the service itself and many parents and guardians need to take a greater responsibility for the actions of their children. The greatest lesson of all however must stem from the historic warnings that a single police service in Scotland could become subject to political interference. How quickly these concerns appear to have faded from the memories of those who now seek to exert what they so prophetically warned against.  

Yours sincerely       

Calum Steele, General Secretary

The behaviour and practices of the police on our streets are political. The arrogance, unembarrassed illiberalism, and pomposity of General Secretary Steele's letter to MSPs is spectacularly ill-judged, ill-toned, and misplaced. Your members are our servants, Mister Steele.

You, and the chief constable, and all of your members, are democratically accountable. Parliament, General Secretary, has a "role" and an urgent interest in keeping you honest and within the law, anxious about the rights of the public, as well as supportive and respectful of your efforts to keep the peace, and our fellow citizens from harm. That you seem to regard it as appropriate to address our elected representatives in this peremptory and high handed way is by turns disturbing and telling.

Just who the hell, General Secretary, do you think you are?

"I see no ships"

You can imagine the conversation in the Members' Tearoom in the Palace of Westminster. Deep in Labour territory, in parliament's musty, flyblown, careworn tea den, two Scottish members sit, in cahoots. 

Their grogblossomed faces glow with that self regarding malevolence which comes only from putting the boot into your friends and allies. The first shakes his head, apparently more in sorrow than in anger, as he smacks his lips and pushes a spent newspaper across the green baize table. "2011: SNP re-elected with majority, Labour crushed." His colleague's brows furrow in a pantomime performance of irritation, flipping over the offending front page in exaggerated disgust, but the corners of his mouth twitch with barely concealed glee.

"What's wrong with these people? Just a few months ago, they had a fucking massive lead in the polls, a fucking massive lead. And they still blew it."

"The B team."

"The C team. They managed to lose in Glasgow, for fuck's sake. In fucking Glasgow. They're just useless, they really are." 

He pauses his diagnosis to pick a stray, burnt currant from his scone, giving it a second slurp of the butter knife. 

"I did tell them. We all told them. I mean, less than a year ago, I took -- we took -- nearly half of the votes in our seats. Nearly half. But this bunch of chancers are about as much use as a fart in a colander."

""Un-fucking-believeable. I've always said, devolution was a mistake. Half of our lot shouldn't even be fucking councillors. Councillors. MS-fucking-Ps? Fuck me."

"Amen, comrade. Another scone, Brian?"

****

Since 2007, the Labour Party has resembled the repeat victim of pyramid selling, whose eyes still quiver with the mad conviction that this get rich quick scheme is legit and sure to come off. Like Shelley Levine, Glengarry Glen Ross's faded, desperate hustler, the party has been lead by the nose to regard every setback as a blip, and every encouraging sign as sure proof that normal service will resume tomorrow. All we need do is watch the clock and wait for the electorate to rediscover their senses. 

Sure, its spokesmen and women will utter a few appropriate remarks about listening, change, and reconnecting with alienated communities -- but words are wind, and these windy words never seem to come to much.  Behind the mask of contrition, and promises of introspection and renewal, in the eyes, you see that same old Bourbon gleam. Learned nothing, forgiven nothing: entitlement, hubris, lack of self reflection. 

As one wag recently observed,  the party has become like the touchy and confused party guest, marching blimpishly around the room, barking at indifferent strangers, "don't you know who I am?" In 2011, they urged the electorate to "come home to Labour". For many voters, it's the idea that the party now represents any kind of spiritual home which befuddles. 

Instead of seeing any connection between the defeats of their colleagues in 2007 and 2011 and their own political fortunes, the party's Westminster contingent has shown every sign of lazy contempt for their comrades labouring north of the wall. And you don't hear the half of it in the media. Johann Lamont's parting shot, in resigning, expressed ideas you hear muttered in private, time and again.  

But you can see how the Scottish Labour MPs acquired this misplaced hubris. Marginalised in political decision making, vexed to see colleagues they don't rate doing the talking on telly, it is hardly surprising that a compensating psychological devilment has made work for their idle hands and mouths. After all, they might ask their Holyrood colleagues, what happened in the last general election? Unlike you lot, we got the goods. We delivered the same old crashing majorities. Why can't you? We may be marginalised, powerless, and uninteresting, but at least we're not as crap as you lot. We, at least, can enjoy a guid conceit of ourselves at your expense.  And a disloyal trauchle to the tearoom quietly to savour your disasters.

The problem with this attitude, of course, is that it is bereft of any self criticism or self awareness. Rather than seeing, in these defeats, lessons and implications for MPs' own conduct and political futures, the rise of the Nats was all down to a clownish band of third rate Labour MSPs. Problem solved. Westminster forever. That was, undoubtedly, part of the calamity which engulfed the party in 2007 and 2011, but it was not the whole story. 

And as has so often seemed the case in recent years, this convenient, psychologically compensating story left problematic assumptions unchallenged and awkward questions unexplored. Since politics north of the border ceased to be easy for them, Labour have become addicted to easy explanations for their troubles. It would be quite wrong, I think, to see the party's current polling only as an expression of recent events or individual incompetencies.

It is the culmination of years, of decades, of alienating compromises, weakening ties, and ever more provisional political loyalties. The independence referendum perhaps clarified a number of these themes, and intensified feelings, but the process was set, and understood, in a wider political context and structure which can't be overlooked. Ian Smart is dead right about that. Blaming Ed, or Murphy, or Lamont, or Gray -- represents just another tempting evasion for the People's Party about the scale, yes, but also the depth of their challenge in the 2015 campaign. The language of the "implosion" suggests a sudden, unforeseen catastrophe. But this prostate has been rumbling for years.

Ironically perhaps, a crushing defeat for the party in Westminster may be an essential condition for normalising the relationship between Labour in Holyrood and in Westminster, encouraging the party to put their shoulders to the same wheel, without the atmosphere of snark, recrimination and condescension. Scottish Labour MPs have, for many years, seemed to have adopted Nelson's motto about the implications of the party's long crisis for their own careers and ambitions. "I see no ships." 

With Ashcroft's startling polling this morning, many of the party's slighted Holyrood members may think, quietly, in their own tearooms: Well, ye see noo.