Friday miscellanea number 3

(a) Prejudicial publicity

Thanks to Scott Wortley for drawing my attention to Sinclair v HM Advocate [2007] HCJAC 27, which deals with a point raised prior to the abortive World’s End murder trial. Sinclair's counsel argued here that he could not receive a fair trial due to adverse pretrial publicity, in particular direct speculation about whether he was responsible for the World’s End murders, including material which continued to be available on the internet. (The opinion was issued some months ago, but for obvious reasons could not be published at the time.)

The decision – rejecting Mr Sinclair’s plea – reflects the invariably sceptical approach of the Scottish courts to pleas in bar of trial based on allegedly prejudicial publicity. This is accompanied with a strong faith in juries to discharge their functions properly and not be affected by such matters. This faith is, of course, near impossible to shake given that the courts are unwilling to allow more than the most rudimentary pretrial questioning of jurors and the Contempt of Court Act 1981 largely prohibits it post trial.

Pretrial publicity is also one ground being considered in the ongoing Luke Mitchell appeal (see Mitchell v HM Advocate [2006] HCJAC 84, where the appeal court overturned the decision of the single judge not to specify that ground as arguable). It seems unlikely to be the key issue there, but the point is an interesting one, particularly because Mr Mitchell’s counsel had argued at first instance that not the trial should be halted, but that it should be heard outside of Edinburgh. There is little case law on such motions and the relevant test is unclear: if a fair trial can be expected in the court to which the Crown has indicted the case, does the court nevertheless have a discretion to require it to be held elsewhere just to be on the safe side? Of course, even if the court does have such a discretion, a failure to exercise it cannot in itself be said at a later stage to be a miscarriage of justice.

(b) Sentencing and family life

Thanks to Alyson Evans for drawing my attention to this BBC report of a rather unusual deferred sentence passed by Sheriff Foulis in Perth on Wednesday. Richard Mullen, 15, and described as “responsible for a crimewave in Blairgowrie” has had sentence in respect of certain offences deferred until the end of January on the condition that he does not approach or contact his father or brothers. According to the BBC, Sheriff Foulis said (the “quote” runs together comments made both to and about Mullen):

"If there is any prospect of success in respect of this young man then he really has to cut ties with his father and brothers… When you leave this court today you are in no shape or form off the hook. I can potentially come down on you like a ton of bricks… This must be considered a last opportunity to avoid a life spent with significant periods in custody… His brothers and father are leading him down a path to Polmont and then to adult prison."

The case bears certain similarities to Reid v Napier 2002 SLT 1229, where R was sentenced to two years’ probation on condition that she did not visit her boyfriend (who was then in prison). R was pregnant with her boyfriend’s child, who was born shortly afterwards. The appeal court rejected an argument that the condition was incompatible with her right to respect for family life under article 8 of the ECHR. The condition imposed by Sheriff Foulis is, however, not quite the same given that Mr Mullen is a child himself.

(c) Lockerbie: further developments

Robert Black has written a fascinating blog post on the second procedural hearing in the Lockerbie appeal, which seems to have thrown up a number of significant issues including public interest immunity and a renewed attempt to argue that when the Scottish Criminal Cases Review Commission refers a case to the appeal court, the appeal should be restricted to the issues identified by the Commission. Click here to read it.

Stop and search and political posturing

Last weekend, it was reported that the British Transport Police had carried out over 14,000 stop and search operations at train stations in Scotland since July, as compared to a total of 135 by all Scottish police forces in 2007. That led to a demand for an explanation from the Scottish Justice Secretary, Kenny MacAskill, who said that the situation “seems to me to be unacceptable” and that he was planning to hold a meeting with the BTP about the situation. (See this report on the BBC News website.)

Today, a UK transport minister, Tom Harris MP, who represents a Glasgow constituency, has written to Mr MacAskill demanding an unreserved apology for his “outrageous” comments (click here for a report and a clip from a radio interview with Mr Harris). In his letter, he defends the BTP’s actions as follows:

"Terrorists have recently targeted transport infrastructure in this country (London Underground and Glasgow Airport) and it is therefore right that the BTP are vigilant and do everything practicable within its authority to disrupt and deter terrorist activity."

It might have been better for Mr Harris if he had omitted the bracketed text, which rather weakens his point. British Transport Police’s remit runs only to national rail services and the London Underground (click here for a brief discussion of the BTP’s remit and its future).

It follows, therefore, that Strathclyde Police – and not the BTP – have responsibility for policing Glasgow Airport, the Glasgow Underground, Prestwick Airport and the road network throughout their area. (It is not clear to me which of the two has responsibility for the Glasgow suburban rail network outside of the mainline stations.)

As the minister responsible for the BTP, Mr Harris must be taken to be aware of their remit. So it is unfortunate that he chose to comment directly about the necessity for stop and search operations, rather than (say) concentrating on the manner in which Mr MacAskill made his comments and saying something about the need to trust the BTP's professional judgment. As it is, it is difficult not to take Mr Harris' comments - although they are unlikely to have been intended this way - as being a clear criticism of Strathclyde Police (and other Scottish forces) for not exercising stop and search powers.

While Mr Harris was quick to criticise Mr MacAskill for not telephoning the BTP to discuss the matter before making his criticisms public, it emerged during his radio interview that he had not phoned Mr MacAskill himself, but had instead written a letter – which he released to the media before it was received by Mr MacAskill.

Regardless of whether stop and search powers are being legitimately exercised or not, neither of the politicians involved – and certainly not Mr Harris – seems to come out with much credit. Apologies all round? (Unlikely.)

[Update (2/1/08): A comment posted to this article states that the BTP do in fact police the Glasgow Subway (the official name for the system). On further checking, it appears that BTP took over policing duties for the Subway in early 2007. Apologies for the error (and also for the delay in publishing the comment and making this correction, due to the Christmas break). That weakens, but does not seem to invalidate, the argument made here.]

Reforming sexual offences

I understand that the Scottish Law Commission's Report on Rape and Other Sexual Offences is to be published today. If so, the report should be available shortly at this link, and a news release summarising it should be available here.

[Update (19/12): See now news reports in The Herald (with a separate commentary including a piece by Sandy Brindley of Rape Crisis Scotland), The Scotsman (including a commentary by Fiona Raitt) and on the BBC News website.]

It's the bicycle that makes the difference

In the first post on this blog, about Robert Stewart’s sexual escapades with a bicycle in an Ayrshire hostel, I included a link to the case of Steven Marshall, who pled guilty to simulating sex with a Galashiels pavement after drinking while taking medication for arthritis.

At the time, Sheriff Drummond deferred sentence for background reports and placed Mr Marshall on the sex offenders’ register for five years. He seems now to have decided that this was unnecessary: according to the BBC News website, he ruled yesterday that there was not a significant sexual aspect to the case, and so Mr Marshall could be sentenced to 12 months probation without being placed on the register.

It seems rather odd to say that there is not a significant sexual aspect involved in simulating sex. (Perhaps not, though: actors and actresses interviewed about filming sex scenes invariably remark about how non-sexual they are. Unless you’re Jonathan Rhys Meyers, who when asked about The Tudors (click here and scroll down), somehow stumbled into saying “But when you’ve worked with somebody like I’ve worked with Natalie Dormer for a second season and then you’re kind of like doing a sex scene, you know each other so well, it’s like a sex scene with your sister…”)

But why is this even the relevant question? Isn’t public indecency – the offence to which Mr Marshall pled guilty - by definition a sexual offence in terms of the sex offenders’ register? The answer to that question is not apparent on the face of the legislation. In Scotland, the relevant offences are those listed in paragraphs 36-60 of Schedule 3 to the Sexual Offences Act 2003. They include at paragraph 42 “[s]hameless indecency, if a person (other than the offender) involved in the offence was under 18”, and at paragraph 60 (as a catch-all provision) any offence not specified in the list “if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence”.

The question asked by Sheriff Drummond is relevant under paragraph 60 but not under paragraph 42. So, which does Mr Marshall’s case fall under? Does “shameless indecency” include “public indecency”? This apparent ambiguity arises because the 2003 Act was passed before the appeal court judicially abolished the crime of shameless indecency and replaced it with the (supposedly) narrower crime of public indecency (Webster v Dominick 2005 JC 65).

The ambiguity has, however, been addressed by the appeal court in Nelson v Barbour 2007 SCCR 283, which seems to hold that the reference to “shameless indecency” in the 2003 Act must now be read as “public indecency”. On that basis, Mr Marshall’s case is a paragraph 42 one and any question of a “sexual aspect” was irrelevant. Instead, the correct question was whether someone under 18 was “involved”. (The answer to that question is uncertain. Being a witness is probably enough to be "involved" in a case of public indecency, given that the offence is based on the conduct's potential to offend those witnessing it. The BBC refers to a “young woman” as being one of the witnesses, but does not give her age.)

This analysis may be unfair, based as it is on a news report which does not set out Sheriff Drummond’s reasoning in full. Moreover, dealing with the case in this way seems to have reached a desirable result: it is not clear what good placing Mr Marshall on the sex offenders’ register would have done. But, remembering that Mr Stewart was placed on the register on the basis of the catch-all provision, the question has to be asked: why was it sexual for Mr Stewart to simulate sex but not for Mr Marshall? Is it the bicycle that makes the difference?

The reasonable time guarantee: a fairly honourable defeat

Thanks to Tony Kelly for drawing my attention to Spiers v Ruddy [2007] UKPC D2, a decision of the Judicial Committee of the Privy Council issued last Wednesday. Here, the Committee has resolved the conflict between Scotland and England over the reasonable time guarantee in criminal trials.

Prior to Spiers v Ruddy, the position was as follows. (For discussion, see Himsworth (2004) 8 Edin LR 255.) In Scotland, where the right to trial within a reasonable time had been breached, the Lord Advocate would be acting incompatibly with the accused’s article 6 rights to proceed further, and so the prosecution would have to be brought to an end (R v HM Advocate [2002] UKPC D3). In England, proceedings could be halted only where a fair trial was no longer possible or it was unfair to try the defendant for a “compelling reason”; otherwise a lesser remedy could be given (Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, a decision of nine judges). These decisions were reached by a majority: in both cases, Lord Hope of Craighead and Lord Rodger of Earlsferry were in favour of the absolutist position taken in R. (In that case, they had been joined in the majority by Lord Clyde.)

Both of these judges recant in Spiers v Ruddy, where the conflict is unanimously resolved in favour of the English position. It is a remarkably short judgment for such an important issue (a total of 29 paragraphs compared to 168 in R v HM Advocate and 179 in Attorney-General’s Reference). Rather than a full review of the issues involved, it is a reconciliation attempt which allows Lords Hope and Rodger to change their views with honour and without having to admit to any error at an earlier stage. The Committee seizes on some recent decisions of the European Court of Human Rights which talk of the possibility of preventing a “continuation” of a breach of the reasonable time requirement and suggest that a breach can be remedied by “expedition” of proceedings. On that basis, it is said, the decision in Attorney-General’s Reference must now be preferred.

This decision dramatically weakens the protection offered by the reasonable time guarantee in Scots law (see also this earlier post on a possible shift in the time when that guarantee starts to run). Matters are now not all that different from the pre-Scotland Act position where delay would only result in proceedings being halted (on the basis of “oppression”) if a fair trial were no longer possible.

Spiers v Ruddy does allow for remedies short of barring a trial where the reasonable time guarantee has been violated, but these may not be particularly valuable to accused persons. In Attorney-General’s Reference, Lord Bingham said (at para 24) that “[i]f the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail… If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.”

It is not clear whether Lord Bingham meant to exclude sentence reduction as an appropriate remedy where a breach is established before a hearing, and there must surely be cases in which the other remedies suggested will not themselves be sufficient. There has been only relatively limited discussion in England of sentence reduction as an appropriate remedy for a breach of the reasonable time requirement, but there are at least two cases: Miller v DPP [2004] EWHC 595 (two year delay in speeding case meant that it was appropriate to find “exceptional hardship” established and thereby reduce the period of disqualification which M was otherwise due to serve as a result of totting up) and R v Wheeler (Darielle) [2004] EWCA Crim 572 (undesirable for W to go to prison for purchasing goods with stolen cheque books and credit cards five to eight years ago). It is unlikely that the courts will develop clear “sentence discounting” guidelines: these may be attractive as a means of encouraging people to plead guilty (see earlier post), but there is no such “case management” advantage here.

More Friday miscellanea [UPDATED]

(a) Drunkenness and mitigation

Thanks to Scott Wortley for drawing my attention to a Parliamentary written answer from the Justice Secretary on drunkenness as a mitigating factor in sentencing two days ago. The question and answer are as follows (click here for the original record):

Hugh Henry (Paisley South) (Lab): To ask the Scottish Executive whether being drunk is considered to be a mitigating factor in determining sentences.

Kenny MacAskill: High Court Judgments since the 1980s have made clear in common law that alcohol should not be regarded as a mitigating factor in crimes. The time is now right to review whether that message from the High Court is being heard clearly and consistently enough by those who have contact with or are involved in the criminal justice system. We are considering what measures may be necessary to make it explicit that being intoxicated at the time of the commission of an offence should not be submitted as a mitigating factor at the point of sentence.

It is not clear whether anything in particular has prompted this, and it is doubtful that there is any need for some kind of explicit rule. Apart from anything else, it is easy enough to imagine exceptional cases where intoxication could clearly be part of a plea in mitigation (imagine, for example, a case where someone inexperienced with alcohol has got drunk, committed some minor crime out of character and been so shocked by his actions that he has renounced alcohol and become a teetotaller?) A decision to “make it explicit” that intoxication is not mitigatory might be criticised as more a case of being seen to be doing something (compare this earlier post) rather than actually making a difference. (But it would be wrong to be churlish at this stage - a review can do no harm and is always to be welcomed.)

[Update (14/12): Thanks to FS (in the comments section) for drawing my attention to an earlier spat between Joe Beltrami and Mr MacAskill on this subject. For more details, see the BBC News website, and a rather mischievous exploration of Mr MacAskill's motives by Brian Monteith appears in the Evening News (scroll down to the second item).]

(b) Appealing a sentence, forty years on

Reid v HM Advocate [2007] HCJAC 70, published on the Scotcourts website today, is an (unsuccessful) appeal against a sentence imposed forty years ago. This was Mr Reid’s first such appeal – it is not a second appeal by virtue of a reference by the Scottish Criminal Cases Review Commission. As such, it is probably some sort of record. (The normal time limit for lodging an appeal against sentence is two weeks, but that can be extended by the court under s111(2) of the Criminal Procedure (Scotland) Act 1995.)

Mr Reid had pled guilty to culpable homicide on the basis of diminished responsibility in 1967 and was committed to the State Hospital in Carstairs. He now sought to argue that the original hospital order should be quashed and a life sentence substituted in his place. That may seem an unusual contention, but the point was that his efforts to seek release from hospital had failed, and a life sentence would allow him to seek release by way of the Parole Board instead. Those circumstances themselves, of course, are merely the motivation for an appeal and not a basis for one, and it was always going to be difficult to persuade the appeal court that the initial order (pronounced without opposition) was a miscarriage of justice.

(c) Provocation and confusion

Touati and Gilfillan v HM Advocate [2007] HCJAC 73, published on the Scotcourts website yesterday, is an appeal against two convictions for murder. One of the appeals succeeded and the court has continued the appeal to allow the Crown to address it on the appropriate disposal. (The court has said it is minded to substitute a verdict of culpable homicide, but it may be that the Crown will want to seek permission for a retrial.)

The reasons for the appeal succeeding are complex, involving the correctness of the trial judge’s directions on a number of interrelated issues. In particular, the trial judge’s directions on provocation are criticised (see paras 30 and 31). In fairness to the trial judge, the difficulties there appear to be largely a result of the decision in Drury v HM Advocate 2001 SLT 1013. The appropriate directions have now been clarified by Gillon v HM Advocate 2007 JC 24, but that decision came some time after the trial in this case.

Bad news for strippers

It is fair to say that the original decision to charge police stripogram Stuart Kennedy with possession of offensive weapons did not, after Sheriff Stewart acquitted Mr Kennedy last week (see earlier post), receive a sympathetic response in the media. Among the more entertaining of the various critical comments was the response of an anonymous retired constable in the Press and Journal. In his view, the case had “given the Grampian force a bad name” and he wondered whether the “the bosses of the two policewomen who questioned the Aberdeen stripogram were graduates in geography or economics or something else”.

Such criticism, however, has not deterred the Crown, which confirmed today that it has lodged an appeal against Sheriff Stewart’s decision. The full story is on the BBC News website.

P.S. Google Analytics has been counting the number of visits to this site since the 8th November. Between 3 and 4pm this afternoon, that number passed 1,000, which is very encouraging for a new site in a relatively "niche" area. Thanks for reading!

"I had that guy in the front of my cab once..."

Today’s Scotsman has, as its front page story, a report of a taxi driver acquitted of breach of the peace for allegedly racist remarks. Apparently John Young, 71, had been reported to the police by his (white) passengers who were angry at his use of the work “P***s” (as the Scotsman reports it) rather than “Asians”. (He also seems to have blamed members of that ethnic group for others being unable to get places at certain schools, but it seems to have been his choice of language rather than his claim which offended his passengers.)

I have already written a commentary on the case for the Scotsman (available here after the main story) and won’t repeat what is said there. The Scotsman has referred in its report to the earlier trial of Stuart Kennedy (see earlier post), suggesting that this latest case “adds to claims prosecutors are wasting taxpayers’ money”. In fairness to Crown Office, while the proximity of these two cases must be embarrassing, it has to be said that they represent only the most miniscule proportion of the many tens of thousands of cases prosecuted every year.

Nevertheless, objectionable as Mr Young’s alleged language may have been, it is difficult to see how it could have been said to amount in law to a breach of the peace (“conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”, as the court put it in Smith v Donnelly 2002 JC 65 at para 17).

In his commentary to the recent case of HM Advocate v Murray 2007 SCCR 271 (Sh Ct), where a sheriff threw out a charge of breach of the peace against a man who told social workers that he intended to assault and murder a child, Sir Gerald Gordon remarks (at 282) that “[t]he charge is somewhat of a throwback to the earlier view that if something happens which causes concern or should not have happened, it must be a crime, and if one cannot think of any other crime which suits the situation it must have been a breach of the peace.” Those remarks apply with even greater force here.

Distress as corroboration and authors as authority

The opinion of Lord Hodge in HM Advocate v L [2007] HCJ 16, published on the Scotcourts website yesterday, is an interesting discussion of the use of distress as corroboration in rape cases where it is not alleged that the accused used force to have intercourse with the victim.

To summarise the problem: where a complainer alleges that an accused had sexual intercourse with her by force, it is accepted that evidence of her distress after the event can be used as corroboration establishing both the truth of her account and the fact that the accused had the mens rea required for rape. However, it has not been accepted that distress can be used in this way where force is not alleged, particularly in cases where the charge of rape is based on a claim that the complainer was asleep at the time.

Lord Hodge sidesteps the problem by arguing that there was other evidence before him which could, in total be used to provide corroboration (see paras 6 and 13), and goes on to suggest that the problem may not be a real one at all: it is “unlikely that there will be many cases where the only independent evidence available to the Crown is evidence of distress” (para 15). I have suggested otherwise (2004 SLT (News) 141), but then it never occurred to me (and I still have doubts) that facts such as “the complainer had left behind her mobile phone, which suggested that she left in a hurry” and “the age gap between the complainer and the accused” could be used as corroboration of mens rea if distress could not. Nevertheless, the result is a welcome one, because some of the earlier decisions on distress as corroboration of non-forcible rape threatened to evidentially render that crime out of existence by making it impossible to prove.

One other point about Lord Hodge’s opinion is of interest. The question he addresses has – unusually for most questions coming before Scottish courts – already been extensively discussed in journal articles (Chalmers 2004 SLT (News) 141, Ferguson 2007 SCL 1, Redmayne 2006 JR 4, Scott 2005 SLT (News) 65). None of these articles is referred to, and it is unclear whether they were cited to the court. Lord Hodge – a former Scottish Law Commissioner – does, however quote the Commission’s treatment of the issue in its Discussion Paper on Rape and Sexual Offences.

The tendency of Scottish courts (and perhaps counsel appearing before them) not to refer to journal articles is sometimes characterised as a lack of receptiveness to academic opinion. Famously, when Lord Ross did refer to a Scots Law Times article in Deutz Engines Ltd v Terex Ltd 1984 SLT 273 he described it as a piece by “two individuals whom I understand to be academic lawyers” on which it was “not necessary or appropriate to pass comment”. But here, the absence of reference to journal articles can hardly be described as unfair to academics. Of the four articles listed above, the two by academics take broadly the same line as the Commission (which cites one of them). So the lack of reference to journal articles does not leave the academics out in the cold. Instead, and perhaps ironically, it is the views of two QCs over which the opinion passes without comment.

"Protecting" doctors (allegedly)

On the 30th August, Dr Helen Jackson, a GP, was stabbed at work in her Glasgow surgery. In a radio interview the next morning the Minister for Public Health, Shona Robison, committed to extending the Emergency Workers (Scotland) Act 2005 to cover GPs and other primary health care staff. She said:

“Primary care staff in particular I have always argued were the key group of staff which should have always be included in that legislation because they work in the community often in relative isolation with not many people around and about them and they were always more vulnerable. It is just unfortunate that those calls weren't heeded when the legislation was going through, but we intend to make that right now, as quickly as we can.”

And Ms Robison has now gone one step further towards doing just that, announcing yesterday that a statutory instrument will be made - as permitted under section 8 of the 2005 Act - to extend it to “doctors, nurses and midwives whenever and wherever they are on duty”.

What does the 2005 Act do? It creates various offences of assaulting or impeding emergency workers. Of course, assaulting anyone is a criminal offence, but significantly, the Act allowed sheriffs to hand out stiffer sentences in summary procedure than they could normally do in such cases (a maximum of nine months as opposed to the default of three). There is also some value in having specific offences of impeding people responding to emergencies, where there may have been no clear assault (and doctors, nurses and midwives responding to emergencies are already covered).

But shrieval summary sentencing powers were increased to twelve months across the board yesterday, so the sentencing powers under the Act now confer no advantage. In any event, the assault on Dr Jackson is far too serious to be prosecuted under summary procedure (the only way in which offences under the 2005 Act can be) and proceedings have been taken in the High Court against her alleged attacker.

So what is the rationale for yesterday’s announcement? The Minister’s civil servants have clearly advised her that the attack on Dr Jackson cannot possibly provide any justification for what she said she would do when being – well, interviewed about the attack on Dr Jackson – and so the press release states that “The initial stimulus for the [2005] Act was a perception that more serious cases affecting emergency workers (such as the recent stabbing of a Glasgow GP) were effectively handled by the criminal justice system but less serious cases were sometimes overlooked - hence the focus of the Act on summary cases."

There is only one problem with this claim – it’s directly contradicted by what the Executive actually said in proposing the 2005 legislation. Then, the Executive said explicitly that it was “unlikely that the Bill will lead to a significant increase in the number of prosecutions for attacks on emergency workers” (para 16 of the Policy Memorandum), pointing out that the Lord Advocate had already issued clear instructions to procurators fiscal on dealing with such attacks.

Admittedly, the actual rationale the Executive provided was itself problematic. It said that the legislation was “intended to make clear that such attacks are entirely unacceptable and, by highlighting the issue, serve to have a deterrent effect” (para 5 of the Memorandum).

That wasn’t hugely convincing, but it is just about arguable that an Act being passed by Parliament providing for increased sentences for assaults on emergency workers might have some educative or deterrent effect. But that is not what Ms Robison proposes to do. Ms Robison has proposed to make a statutory instrument providing for anyone who assaults a GP to be liable to – well, exactly the same sentence as they are already.

But the fact that the proposal is useless is unlikely to lead to any dispute: it can hardly be said to do any harm, and even if opposition politicians have their doubts about its usefulness, being seen to oppose “protection” for healthcare workers is probably on a par with being photographed drowning kittens. All this, however, allows the Government to be seen to be doing something (even if it really isn’t), and it provides an opportunity for trade unions to be seen fighting to protect their members (even if they really aren’t). The BBC has reported the comments of Unison’s Scottish organiser, Dave Watson, who thinks that the Government has not gone far enough:

“Mr Watson said: ‘The act is called the Emergency Workers Act - not the Emergency Health Workers Act - and it was intended to cover all types of public service workers in emergency situations.’ He said the union had long argued it should have a wider application, which could include social care workers in residential and home care, education workers in schools, environmental officers tracking illegal dumping, traffic wardens and safety wardens and utility workers.”

If Ms Robison were right about her proposed statutory instrument protecting primary care staff, then Mr Watson might have a point and the law should be extended further. But she isn’t and he doesn’t and it shouldn’t.

Criminal justice reform: last-ditch protesting

Today, a whole series of provisions in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 Act were brought into force (click here for the commencement order). They include, amongst other things, a substantial increase in summary sentencing powers (see earlier post), an important new power allowing appellate courts to excuse “procedural irregularities” (section 40) and provisions for trial of the accused in his absence if he fails to appear (section 14).

A couple of weeks ago, the president of the Glasgow Bar Association, Gerry Considine, published an article in the Sunday Times (25/11/07) headed “An attack on justice for all” (thanks to James Harrison for drawing this to my attention). The article, which is unfortunately not available online, starts off by saying:

“Over the next six months, the Scottish government proposes to introduce a series of changes to the legal system. The proposals have received little public attention, yet it is no exaggeration to say that they represent the most fundamental attack on citizens’ rights and liberties in our recent history.”

Many of the changes Mr Considine attacks are those contained in the 2007 Act, and there is a lot of sense in what he says. It would be impossible to engage with all his arguments here without writing a full-length article, but there is one key point underlying his argument, relating to the process of change:

“The proposed changes were drawn up by representatives of the Crown Office and Procurator Fiscal Service (COPFS) along with the police, the Scottish government and the Scottish Legal Aid Board (SLAB). There was not a single defence lawyer representing the rights of the accused. This is contrary to our obligations under the United Nations Convention.”

It would be quite encouraging to find a “United Nations Convention” which insisted that defence lawyers be represented on criminal justice reform committees, but unfortunately I have no idea what Convention this might be (please click here for a list of the 50 or so options, including the Convention on Registration of Objects Launched into Outer Space and the Convention on the Use of Electronic Communications in International Contracts, and submit your answers on a virtual postcard).

It is true that the McInnes Committee, whose 2004 report led to most of the present reforms and may or may not be the body Mr Considine refers to – perhaps not, as it had no SLAB representative among its members – did not include a defence lawyer among its membership. (That may not mean that none was invited to take part.) But in fairness, it must be acknowledged that it carried out a consultation exercise to which 117 responses were received, mostly on behalf of organisations (click here for a list). The Glasgow Bar Association did respond, but appears to be the only organisation of defence lawyers which did so. (The Scottish Law Agents Society also responded.)

When the resulting Bill was going through Parliament, the Justice 1 Committee received 51 written submissions (click here: some respondents made more than one submission), including ones from the Glasgow Bar Association, the Law Society of Scotland and the Faculty of Advocates, as well as one criminal defence lawyer.

What can we conclude from this? One of the great difficulties with law reform is that concerns about the reforms tend only to materialise at a late stage, often when legislation is close to being passed by Parliament. Polemical newspaper articles two weeks before legislation is due to commence, however well argued and correct they may be, have no hope whatsoever of influencing an Act passed in January 2007. If these reforms are “the most fundamental attack on citizens’ rights and liberties in our recent history”, why, when the consultations mentioned above were carried out, were there so few responses from defence agents and seemingly none from human rights and civil liberties organisations? If hardly anyone protests at the erosion of rights, liberties, and protections under the law, should we really be surprised when it happens?

Update (20/5/08): A correspondent has rightly pointed out that the Law Society representative on the McInnes Committee, Alistair Duff, was a defence solicitor. He was appointed a sheriff in 2004. The same correspondent has suggested that Mr Considine might have had the process leading to the Summary Justice System Model paper in mind. By that stage, of course, the issues of principle had been settled by legislation.

A victory for common sense (and strippers) [UPDATED AGAIN - AND AGAIN]

The offensive weapons charges against Aberdeen stripper Stuart Kennedy (see yesterday's post) were today thrown out of court after Sheriff Kenneth Stewart upheld a defence submission of no case to answer. It appears that Sheriff Stewart decided that Mr Kennedy did indeed have a "reasonable excuse" for carrying batons and a spray while dressed as a policeman, noting that the Crown had not analysed the contents of the "spray". The full story is on the BBC News website.

Update (4/12): The BBC News story mentioned earlier has since been fleshed out, and another report has appeared in the Herald. The latter report sheds some light on the decision to charge Mr Kennedy, who allegedly said that the spray he carried was for self-defence because "drunk guys get very jealous of male strippers".

More surprising is the updated BBC News report, which quotes a statement issued by the Crown:

"We are satisfied that the decision to raise proceedings in this case was entirely appropriate, and in the public interest. It is entirely and appropriately a matter for the Sheriff to determine the outcome, having seen and heard the evidence given in Court. We note the Sheriff's decision in this case. The Crown has no right of appeal against a decision by a Sheriff to uphold a no case to answer submission."

Opinions may differ on whether it was appropriate to bring the case, but - unless I am misunderstanding something here - it is remarkable to see an official statement claiming that the Crown has no right of appeal in this case. It is true that the Crown has no right of appeal against a decision of no case to answer in solemn proceedings (jury trial), but the proceedings against Mr Kennedy were brought under summary procedure (without a jury). (This is not made clear in today's reports - save to the extent that there is no mention of a jury - but a BBC News report of earlier proceedings refers to a date being fixed for an intermediate diet, something which exists only in summary procedure. In any case, it is surely unlikely that the prosecutor could have thought that the six month maximum sentence available under summary procedure would be insufficient in this case.)

In summary procedure, a decision of a sheriff to uphold a submission of no case to answer and acquit the accused may be appealed under section 175(3)(a) of the Criminal Procedure (Scotland) Act 1995. Such appeals are not uncommon, which makes the statement - assuming the quote on the BBC News website is accurate - all the more peculiar. But perhaps it is for the best.

Update (5/12, 9.30am): The BBC News report was amended again after the above post was written, removing the sentence "The Crown has no right of appeal against a decision by a Sheriff to uphold a no case to answer submission" from the Crown statement. There is no way of telling whether the original text was a Crown error or if the BBC made the double error of reporting that the Crown had no right of appeal and mistakenly including that claim as part of the quote. A report in today's Scotsman carries the same quote as is now found on the BBC website. A Press and Journal report includes a truncated version of the quote and states that the "spray" contained only coloured water and that Mr Kennedy faces further charges of impersonating a police officer. Whether those will be proceeded with given the barrage of criticism this prosecution has received (see the Scotsman report in particular) remains to be seen.

Update (5/12, 11.30am): The BBC News report seems to have been amended again since I last wrote, despite reading "Last Updated: Tuesday, 4 December 2007, 19:58 GMT". According to the latest version, the Crown "said that it would consider looking into appealing the decision", which is quite a turnaround. The BBC report now refers to a "statement issued on Tuesday", which is a strange phrase to use in a report which purports to have been written and published that same day.

[Insert lewd joke here]

Did you hear the one about the male stripper and the offensive weapon?

No, really… Stuart Kennedy, who pays his way through university in Aberdeen by working as a police stripogram called Sergeant Eros, has gone on trial accused of carrying offensive weapons in a public place, the weapons being batons and a spray. The only evidence so far appears to have come from a police officer who explained that after encountering Mr Kennedy outside the bar where he was due to perform, she followed him inside so that she and her colleague could “keep an eye on him”.

Mr Kennedy appears to have been charged under section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995, which makes it an offence to carry an offensive weapon in public “without lawful authority or reasonable excuse”. He has not been charged with an impersonation offence under section 43 of the Police (Scotland) Act 1967. That may be because there is an exception to that offence where the accused was “taking part in a stage play, or music hall or circus performance”, although which of these three headings removing one's clothing in the Paramount Bar falls under is not obvious.

A stripper in costume would seem to have a good claim to a “reasonable excuse”. That concept must be interpreted with the purpose of the legislation in mind: that is, to protect the public from persons who may use such weapons to cause or threaten injury (Lister v Lees 1994 SCCR 548), and there are few reports (to this writer’s knowledge) of male strippers going berserk. In England, the Court of Appeal has accepted that wearing a police truncheon as part of fancy dress can be a reasonable excuse under the equivalent legislation applying there (Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319).

But it would be wrong to prejudge whatever evidence might be led when proceedings resume tomorrow. No doubt all will be revealed in due course. It is unclear whether the same applies to Mr Kennedy’s stage act.