Criminal Law – Seán Crossan's Scots Law

Grindhouse Day (or Man with an International Travel Ban)

An interesting story appeared in the Scottish and national UK media on Wednesday 26 February 2025 about a case at Wick Sheriff Court which has made legal history.

Chief Constable of Police Scotland v Kevin Booth [2025] SC WCK 8

A link to the judgement (issued by Sheriff Neil Wilson) on the British and Irish Legal Information Institute (BAILII) can be found below:

https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotSC/2025/2025scwck008.html&query=(Chief)+AND+(Constable)+AND+(of)+AND+(Police)+AND+(Scotland)+AND+(v)+AND+(Kevin)+AND+(Booth)+AND+(.2025.)+AND+(SC)+AND+(WCK)+AND+(8)

When I heard the first account of this story on BBC’s Six ‘o’ Clock News and, immediately afterwards on BBC Reporting Scotland, I assumed that the Sheriff Court had issued its Order under its criminal jurisdiction. I was wrong, but more about that later.

A word of warning to anyone contemplating reading Sheriff Wilson’s judgement, it contains graphic accounts of violence carried out by Booth against his victims. The judgement is not for the faint hearted.

Totally by coincidence, this story was reported around the time that a major Hollywood film, Heretic (starring Hugh Grant) had just been released; the plot of which featured a misogynist running a torture dungeon under his suburban home. Although the real life setting of Booth’s remote, baronial mansion in the Scottish Highlands definitely won out over Hollywood for its sheer spookiness factor.

A link to the BBC Scotland report can be found below:

https://www.bbc.co.uk/news/articles/cy9dld3jgx8o

The Man with an International Travel Ban

The case centred around Kevin Booth who had been accused of physically abusing women in a private dungeon located in the cellars of his Highland home. Adding to the Grindhouse Movie atmosphere of this story, Booth was in the habit of filming these encounters. It later transpired that many of Booth’s victims were employed by him as domestic servants at his Highland home. Many of these women were foreign nationals who had been lured to the UK by promises of well paid employment with Booth. They were highly vulnerable to abuse and exploitation. These women were to be bitterly disappointed: the golden future that Booth had painted was a deception and, little did they know it, but they were about to enter a nightmare.

At first, I thought, nothing unusual about this story as violence against and the abuse of women and girls is still shockingly and depressingly common in Scotland (and the rest of the UK). Just that week, The Metro had run a front page story detailing the fact that the incidence of the crime of upskirting on trains had rocketed across the UK (see the link below).

Upskirting incidents on British trains have risen year on year since 2021

Back to Mr Booth: he is a millionaire (apparently) who owns a remote Scottish Baronial mansion located at the end of a 10 mile private road in the Highlands. The Police, acting on complaints received from several women who had worked for Booth, gathered evidence against him of potential, criminal wrongdoing e.g. torture (referred to as punishment beatings) and human trafficking, but the Crown Office and Procurator Fiscal Service (COPFS) later abandoned criminal proceedings against Mr Booth.

When the average person hears phrases like human trafficking and punishment beatings, you can’t blame them for arriving at the completely justifiable conclusion that this will involve breaches of the criminal law.

From knowledgeable sources of mine, it has been speculated that the Crown abandoned proceedings against Booth because it was not in the public interest (yes amazingly); there may have been some level of ‘consent’ given by Booth’s victims; and there was not a sufficiently high chance of securing a conviction against him.

That said, there are limits placed upon physical abuse that an adult may agree to undergo as the House of Lords made very clear in its decision of R v Brown [1993] UKHL 19 [1994] 1 AC 212. This case made headlines at the time because of the types of physical abuse which went way beyond the types of sado-masochostic sexual practices that would be deemed legally permissible.

At this point, it is worth restating that we have a system of public prosecution in Scotland (private prosecutions are extremely rare). It is the Crown Office and Procurator Fiscal Service (COPFS) which make decisions about whether an accused person will face trial in a criminal court. Police Scotland can charge a person with a crime (in this case Mr Booth), but it will be up to COPFS to green light a prosecution.

As we have seen, a criminal prosecution against Booth was attempted, but was later abandoned. This development, however, did not deter Police Scotland from taking further civil action against Booth at Wick Sheriff Court by applying for a Trafficking and Exploitation Prevention Risk Order (TERO).

Mr Booth is now the subject of an international travel ban to last for a duration of 5 years. This Order is the first of its kind in Scottish legal history. The ban or was made in terms of section 26 of the Human Trafficking and Exploitation (Scotland) Act 2015. The official name for this type of ban is a Trafficking and Exploitation Prevention Risk Order or TERO for short.

In relation to his activities, Booth, however, has not been convicted of any criminal acts and the travel ban was imposed by a civil court. The Police actively sought this civil order. There are other restrictions imposed on Booth by the Sheriff Court. He will, for instance, have to notify Police Scotland in advance if he proposes to employ women at his home. This Order is more about controlling Booth in the future as opposed to punishing him (in the criminal sense) for his past treatment of the victims in the story.

It has to be said that Mr Booth has a rap sheet that would turn most people’s hair white: physical abuse of pupils at a school in Africa where he worked as a teacher; further physical abuse of young children of school age in the North East of England; and, more worryingly, allegations of rape of a woman in the Republic of Ireland. Clearly, Booth is not a nice person – to put it mildly.

The Police have had significant involvement with Booth and have investigated him after a number of complaints were received from women who stated that they had been physically abused by him.

On BBC Scotland, the reporter likened the abuse to “punishment beatings”. Booth is still a free man for now – although the Police will continue to monitor his activities. At the time of writing, Booth was the subject of a criminal trial at Wick Sheriff Court for allegedly making indecent communication s to a woman (please see link to article on the BBC website below).

https://www.bbc.co.uk/news/articles/cd7v27nnv9go

The question being asked is “Why is this man not in jail?”

This is clearly a question for COPFS to answer because it is the relevant legal authority for determining whether a public prosecution of an accused should proceed.

The decision not to proceed against Booth is going to be particularly controversial given high profile campaigns about violence against women and attempts by the authorities to reduce these types of incidents.

What about the victims pursuing private prosecutions against Booth?

Well, this Blog has previously discussed the problems associated with these types of legal action in Scotland. It is theoretically possible, but highly unlikely in practice as the victims would have to make an application to the High Court of Justiciary for a Bill for Criminal Letters which would permit them to initiate a private prosecution against Booth. It’s worth remembering that the last successful private prosecution in Scotland was over 40 years ago (X v Sweeney [1982] JC 70)

A civil action, for the time being, might be the only effective remedy for the victims.

That said, the Police and COPFS are monitoring the situation and, if significant new, evidence comes to light, Booth may well have to face his day in a criminal court.

In conclusion, Sheriff Neil Wilson had this to say about Booth’s conduct (at paragraph 102 of his judgement):

“… the evidence of Mr Booth’s egregious conduct, as presented in court, was, at times, utterly harrowing. The graphic video footage, combined with the context and background provided by supporting documentary evidence in various forms, was redolent of a level of cruelty and depravity which, whilst extreme, one can only hope is rare. It might be thought that the use of such value-laden language in a legal judgment is inappropriate. I would beg to differ, and make no apologies for including it. This judgment may be primarily concerned with the legal issues before the court, but it is important not to lose sight of the human suffering giving rise to this case.”

Recent Update About Mr Booth

On 28 October 2025, at Wick Sheriff Court, Mr Booth was found guilty of making an indecent communication to a woman who had been employed by him. Booth will return to Court at a later date to be sentenced by the Sheriff.

A link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/articles/cwyp392jx2do

Explanatory Note About Grindhouse Movies

According to Wikipedia: A grindhouse or action house^[1] is an American term for a theatre that mainly shows low-budget horror, splatter, and exploitation films for adults.

According to historian David Church, this theater type was named after the “grind policy”, a film-programming strategy dating back to the early 1920s that continuously showed films at cut-rate ticket prices that typically rose over the course of each day. This exhibition practice was markedly different from the era’s more common practice of fewer shows per day and graduated pricing for different seating sections in large urban theatres, which were typically studio-owned.

Copyright Seán J Crossan, 26 February 2025 and 28 October 2025

Revolutionary Road?

Last weekend (more specifically Saturday 29 January 2022) saw a really significant overall of the UK’s Highway Code which means that pedestrians and cyclists will be given far greater protection.

I was originally going to entitle this Blog either Code of Silence or Code Unknown, purely on the grounds that the changes seem to have crept up without any real awareness on the part of the British public. The reason I say this is because I was listening to BBC Radio 2 during the week running up to the changes. Jeremy Vine, the host of the eponymous show, was discussing the impending reforms with a panel of interested parties. One of the guests, Leo Murray, from the climate charity Possible, basically remarked that the UK Government had been remiss in failing to publicise these important changes.

I have to admit that I had only become aware of these changes a few days previously when I happened to come across an article from a Scottish regional newspaper which had appeared on social media.

As a pedestrian, cyclist and motorist, I’m pretty glad that I did find out in time. I also have more than a passing interest in this area as someone who has been knocked off my bike twice in less than 18 months by motorists (who were both at fault). Drivers ,who don’t cycle or walk that much, often forget how vulnerable pedestrians and cyclists actually are.

The main outcome of the new rules is the creation of a hierarchy of road users where the most vulnerable individuals – pedestrians, followed by cyclists, and then horse riders will be given priority over motorists, buses and heavy goods vehicles.

This past week alone, I’ve had to make a conscious effort to slow down when turning my car left into junctions in order to give pedestrians priority. I also take greater care when I’m turning right into junctions or leaving roundabouts. I’m quite happy to do this because as an occasional pedestrian and, as a more regular cyclist, I understand that I will benefit from the changes to the Highway Code?

One of the features of the new Code – which I particularly support – is the right of cyclists to use the middle of the road in order to avoid potholes (and other debris), enjoy greater visibility and making it easier to turn right. There are also new rules about giving cyclists greater space when being overtaken by motorists.

Some driving commentators such as the former BBC presenter, Alan Douglas (speaking to Radio Clyde) , have expressed their misgivings about the new rules saying that they are great in theory, but less so in practice. We’ll just have to wait and see.

I do think, however, that this is a timely reminder to the (pure) motorist community ( i.e. those individuals absolutely wedded to the idea of the car as being the sole, legitimate form of road transport) that our highways are a shared space. I often enjoy debunking the old myth or chestnut when talking to (pure) motorists that cyclists do not pay vehicle excise duty. As a driver who also happens to be a cyclist, I do pay several hundred pounds a year in vehicle excise duty for the privilege of using the roads. As a matter of fact, a lot of motorists who drive electric cars and lower emissions vehicles are exempt from this form of taxation. In any case, the sum collected from vehicle excise is not used to pay for road building and maintenance. This comes from general taxation (see link to article below):

https://www.pressandjournal.co.uk/fp/pj-investigations/2477257/the-road-tax-debate-can-drivers-claim-to-own-the-roads/

When motorists use the term of abuse “bloody cyclists!”, they are actually falling into a false dichotomy or “them and us” mindset because many cyclists are in fact car drivers.

Heading towards stricter liability?

The new rules will certainly be the go to reference point in both criminal prosecutions for careless and dangerous driving (Sections 2 and 3 respectively of the Road Traffic Act 1988) and for civil claims in delict and tort involving personal injury and property damage.

Personally and professionally speaking, I’m more interested in the civil aspects of road accidents. In the second, more serious road accident that I was involved in, the driver was charged with careless driving (which was not contested) and probably received a fine and penalty points. I, on the other hand, was left with injuries – necessitating a lengthy course of physio – and a racing bike which had to be written off.

An out of court settlement with the driver’s insurance company eventually followed after my solicitors had raised the prospect of a civil claim. This outcome to the matter was much more satisfying for me than any action taken against the driver under the criminal law.

One area of controversy that surrounds the burden of proof in relation to delictual liability occurs in road traffic accidents involving pedal cyclists and motorists.

Currently, a cyclist who is injured in a road traffic accident must prove that the vehicle driver was at fault or to blame. Most European countries have reversed the burden of proof so that a motorist involved in a collision with a cyclist must prove that s/he was not to blame or at fault for the accident.

Only the United Kingdom, Cyprus, Malta, the Republic of Ireland and Romania operate a system whereby the cyclist must prove fault. This proposed reform, supported by many cycle organisations, has ignited passions and it remains to be seen whether it will find favour with British legislators.

Conclusion

Although the reforms to the Highway Code are certainly revolutionary in some respects, I would hesitate to say that we have arrived at a destination of strict liability in relation to road accidents. The changes do represent a new philosophy in road use whereby whoever you are you should always be thinking about those individuals who are more vulnerable than you.

A guide to the main changes brought in by the updated Highway Code can be viewed by clicking on the link below:

https://www.gov.uk/government/news/the-highway-code-8-changes-you-need-to-know-from-29-january-2022

Postscript

In April 2022, Neil Greig, Policy and Research Director at IAM Roadsmart, claimed that:

“An alarming number of motorists are driving on British roads without awareness of key changes which fundamentally shift the dynamics of shared use.

… This is a serious safety risk which could actually see the updated code causing more conflict on our roads rather than less.”

A survey carried out by Mr Greig’s organisation concluded that one in five drivers was not aware of the recent changes to the Highway Code. A large reason for this ignorance was the fact that the U.K. Government had failed to advertise adequately the changes to the Code. Apparently, a new information campaign to be carried out in the Spring will hopefully rectify this unfortunate situation.

A link to the IAM Roadsmart’s website can be found below:

https://www.iamroadsmart.com/media-policy/media-enquiries/news-details/2022/04/08/uncertainty-over-new-hierarchy-of-road-users-could-cause-more-conflict-on-our-busy-shared-streets

Copyright Seán J Crossan, 5 February & 9 April 2022

Burn the witch!

It’s Halloween today and it seems perfectly natural to be talking about witches and the supernatural. It’s a day of fun for a lot of people – young and old.

That said, to call someone a witch – specifically – a woman, would likely be regarded as an example of misogyny or hatred of women. It would be intended as an insult.

Several hundred years ago, in Scotland, you would not be dressing up as a witch or a warlock (the male counterpart). There was a very real fear of witches and their ability to carry out evil deeds against well doing members of the community.

These sorts of beliefs may seem very strange to modern readers, but Scotland was a very different place some 400 years ago. Even the American colonies were susceptible to claims about witchcraft e.g. the Salem Trials (1692-93) which the playwright, Arthur Miller so marvellously and disturbingly brought to life in The Crucible. In Miller’s play, the authorities cynically use the trials to extend their control over the populace (it was no coincidence that the play was written at the time of the McCarthyite Anti-Communist witch hunts in fifties’ America).

European and American Society was markedly more religious in its outlook. These were pre-Enlightment times after all – before science and reason was in the ascendancy. Everything was either the handiwork of God – or his sworn enemy, the Devil. The evidence of this eternal struggle could be seen all around: a good harvest would be a sign of God’s favour, whereas times of famine would be a portent of evil stalking the land.

The Devil (or Deil in Scotland) was omnipresent and always on the lookout for followers to advance his agenda. This is where witches, warlocks, covens and familiars enter the story.

Thou shalt not suffer a witch to live

The Book of Exodus, in the Old Testament, was particularly strong on the issue of witchcraft:

“Thou shalt not suffer a witch to live.”

The above verse – tellingly – comes from the King James Bible (chapter 22 verse 18). I use the word tellingly because King James (VI of Scotland and I of England) had a special interest, not to say primal fear, in and of witches.

There were similar exhortations in other books of the Old Testament (e.g. Leviticus, 19:26 & 20:27 and Deuteronomy, 18:10-11 about the consequences of practising witchcraft.

In 1590, James was convinced that some 200 witches had cast spells against him in an attempt to sink the vessel he was travelling on when he returned from Denmark with his new bride, Anne. The ship had run into a serious storm and the crew and passengers were lucky to make landfall safely. Only divine intervention, so it seemed, had thwarted the malevolent designs of the coven who had set out to ensnare the Royal couple.

https://www.nationalgeographic.co.uk/history-and-civilisation/2019/10/royal-obsession-black-magic-started-europes-most-brutal-witch

Fears about witchcraft in Scotland did not begin with James. In 1563, the Scottish Parliament had passed the Witchcraft Act which made such practices a capital offence i.e. practitioners of the dark arts could expect the death penalty to be imposed (‘pane of deid’ in the language of the statute). The guilty parties (and there were rather a lot of them) would first be strangled and then burned. For the pious executioners this punishment was merely symbolic because eternal hellfire was the real and awful fate awaiting the newly deceased.

During his reign, James – who fancied himself something of an expert on the subject – would take the campaign against witches to a new level. Rooting out the followers of the Devil would be officially sanctioned by the Church and the State (which were really one and the same thing) according to Claire Mitchell QC. In fact, the King went so far as to record his thoughts on the occult in his Treatise called Daemonologie.

The Witchcraft Act would remain on the statute books in Scotland until 1736, but it would claim thousands of victims.

The area around the modern town of Dumbarton in Scotland was regarded as a centre of witchcraft several hundred years ago as an article from BBC Scotland makes clear:

https://www.bbc.co.uk/news/articles/cdxr0ez1py1o

Pardoning the victims?

Claire Mitchell KC is one of the driving forces behind a campaign to have the existing Scottish Parliament issue a pardon to the estimated 3837 victims of the witchcraft trials. Most of the victims were women. As Claire explained, during an interview with Jeremy Vine on BBC Radio 2 last week, we have an idea of the numbers of victims and their profiles because of the existence of Parish Records and the records of witchcraft trials from the period.

Claire became aware of this gruesome period in Scottish history when:

“Doing research in the Advocates Library on ‘Bloody Mackenzie’, a Lord Advocate during the Witchcraft Act, I read a quote from a poor woman who had been convicted of witchcraft. She was so confused that she asked, ‘Can you be a witch and not know it?’ I was very angry and decided to find out more about Scotland’s witches.”

For more information about Claire Mitchell’s campaign, click on the links below:

https://scottishlegal.com/article/claire-mitchell-qc-seeks-posthumous-justice-for-scotland-s-witches

https://www.witchesofscotland.com

The issuing of general pardons by Parliament to redress historical miscarriages of justice are not a new development. Just this month, the Scottish Government published a Bill which aims to pardon people who took part in the 1984-85 Miners’ Strike in relation to three specific criminal offences.

For more information about this issue, please click on the link below:

https://www.lawscot.org.uk/news-and-events/legal-news/miners-strike-pardons-bill-brought-to-holyrood/

In 2018, the Scottish Parliament passed the Historical Sexual Offences (Scotland) Act which issued pardons to all those men who had been convicted of the offence of same sex activity. Homosexual activity – even between consenting male partners – was unlawful in Scotland until 1981.

Opposition to the pardons

Despite the above precedents, some legal commentators are not as enthusiastic about a general pardon being issued to the victims of the Witchcraft Act. Professor Douglas J. Cusine was firmly of the view that such gestures were using up valuable parliamentary time which could be concentrated on more pressing issues. In some respects, the pardons for gay men and the proposed ones for the miners are more logical and can be more easily justified in that many of the victims are still alive – or at least the injustices took place within living memory.

A link to a letter submitted to Scottish Legal News by Professor Cusine can be found below:

https://www.scottishlegal.com/article/letter-witch-pardon-risks-making-a-mockery-of-holyrood

That said, at time of greater awareness of violence against women and general misogyny, perhaps Professor Cusine is missing a trick (no pun intended).

For some recent stories about generalised misogyny, please click on the links below:

http://news.sky.com/story/johnny-depp-libel-trial-star-called-amber-heard-a-witch-in-text-messages-court-hears-12024026

http://news.sky.com/story/nhs-scandals-review-women-verbally-abused-by-clinicians-after-raising-concerns-12024212

Conclusion

We live in very different times when someone who says that they are a practitioner of witchcraft or the occult might well cause some curiosity on the part of his/her listeners.

Section 10 of the Equality Act 2010 may, arguably, now protect such an individual on the basis of their philosophical beliefs. We also have a far greater respect for a person’s private and family life in terms of Article 8 of the European Convention on Human Rights. In the 16th Century, individuals who seemed to be a bit left field or eccentric would not have appeared harmless or endearing to most members of the community. The stereotypical old woman who lived alone in the woods and who was a healer, could very quickly become the subject of communal hostility. It might even cost her her life.

For information about a modern witch or a pagan practitioner, please click on the link below:

https://www.bbc.co.uk/news/uk-scotland-58852476

Copyright Seán J Crossan, 31 October 2021 and 31 October 2025

Sex or gender?

Sex or gender: which term do you prefer? Can they be used inter-changeably?

These questions have now come into sharp focus as a result of an amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

Our understanding of the terms “sex” and “gender” may now have to evolve as a result of the debate surrounding aspects of the Bill, but before we discuss this Bill it’s worth looking at the current legal position surrounding gender recognition issues.

The Equality Act 2010

Section 11(1) of the Equality Act 2010 defines a person’s “sex” in the following terms:

In relation to the protected characteristic of sex — a reference to a person who has a particular protected characteristic is a reference to a man or to a woman

In other words, current UK equality law means that your sex is determined at birth when you will be categorised as ‘Male’ or ‘Female’ and this will be entered on your birth certificate. We, therefore, do not have a choice about our sex when we are born. It is a matter of biology.

What about a person’s gender? Section 7(1) of the Equality Act 2010 provides us with guidance on this matter:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

The Scottish Government was intending to reform the 2004 Act, but in the teeth of strong opposition within the Scottish National Party, such proposals have been dropped for the time being.

Self-identification

Under the Scottish Government’s proposals, an individual would have been permitted effectively to self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

This meant that an individual wishing to undergo gender reassignment in Scotland would have to have met the following criteria:

A statutory declaration to the effect that they have decided to change gender or sex;
The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

This Bill has proved to be another flashpoint in the often fierce debate over gender recognition.

The Bill, which passed Stage 3 in the Scottish Parliament on Thursday 10 December 2020, has reignited the debate about the terms “sex” and “gender” and their use in legislation.

The Bill passes Stage 3 in the Scottish Parliament

The purpose of the Bill is set out below:

“… to improve the experience, in relation to forensic medical services, of people who have been affected by sexual crime. It does this by providing a clear statutory duty for health boards to provide forensic medical examinations to victims and to ensure that an individual’s healthcare needs are addressed in a holistic way in the context of any such examination (or where such an examination is not proceeded with). As well as placing a duty on health boards to provide forensic medical examinations when a victim is referred for such an examination by the police, the Bill allows victims to “self-refer”. Self-referral means that a victim can request a forensic medical examination without having reported an incident to the police. The Bill provides a statutory framework for the retention by health boards of samples obtained during a forensic medical examination, which may support any future criminal investigation or prosecution. In self-referral cases, this allows the victim time to decide whether to make a police report.”

A controversial amendment?

At first glance, no one could possibly object to the aims of the Bill, but Johann Lamont MSP, a former leader of the Scottish Labour Party, saw an opportunity to introduce an amendment to the Bill.

Such a development is not an unusual practice for parliamentarians to introduce amendments to Bills proceeding through Parliament. The introduction of amendments to Bills often permit reform to earlier pieces of legislation. In this case, the Lamont amendment was directed towards changing the wording of Section 9(2) of the Victims and Witnesses (Scotland) Act 2014.

As things currently stand, Section 9(2) of the 2014 Act states that:

Before a medical examination of the person in relation to the complaint is carried out by a registered medical practitioner in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person.

This could mean, under current law, that a victim of a sexual assault e.g. a biological or cis woman might have to undergo an examination by a medical professional who is a transgender female.

The Lamont amendment (which has now been accepted overwhelmingly by the Scottish Parliament) will ensure that the word “gender” will be replaced with the word “sex”.

Johann Lamont’s amendment will remove an anomaly in the law which currently permits a transgender person who is a medical professional to examine a victim of a sexual assault.

Further controversy

When one flashpoint is resolved, another disagreement about sex and gender is never far away in Scotland.

An organisation called forwomen.scot is raising a legal action in the Court of Session in Edinburgh for the express purpose of challenging the Scottish Government’s attempt to redefine the word ‘woman’ (see below):

“… We are challenging the Scottish Ministers over the redefinition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 which we believe is outside the legislative competency of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers’ duties under equality legislation… The new definition includes some men, while, remarkably, excluding some women. This cannot be allowed to stand… The Equality Act 2010 states that a woman is “a female of any age” and maintaining this definition is key to maintaining women’s rights and protections in law…”

forwomen.scot describes rationale on its website in the following terms:

– sex is immutable and is a protected characteristic;
– women are entitled to privacy, dignity, safety and fairness;
– women’s rights should be strengthened.

https://forwomen.scot

All quiet on the Western Front? Hardly … expect this issue to run and run.

Copyright Seán J Crossan, 4 February 2021

A sledgehammer to crack a nut?

football player in white and blue jersey shirt — Photo by Ryan Snaadt on Unsplash

Author’s note dated 11 March and 23 April 2021: the Hate Crime and Public Order (Scotland) Bill successfully completed Stage 3 of the parliamentary process at Holyrood by 82 votes for to 32 against. On 23 April 2021, the Bill received the formality of the Royal Assent.

Today, I was talking to a group of students about the fact that cultural factors can sometimes be a much more powerful driver towards changing society’s attitudes about certain issues.

Sometimes when Governments take a very legalistic approach to societal issues e.g. equality and discrimination, they can end up being accused of overkill or using a sledgehammer to crack a nut. A good example of a current controversy is the Hate Crime and Public Order (Scotland) Bill making its way through the Scottish Parliament.

The Bill is about to embark on Stage 2 of the legislative process

Lord Bracadale, a retired Scottish judge, was commissioned by the Scottish Government in 2017 to review the state of Scotland’s hate crime laws and many of his recommendations are to be found in the Bill.

A link to Lord Bracadale’s Report can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

Now, most reasonable people are going to say hate crime is an issue which should be tackled, but when you ask how it should be tackled that’s when things get controversial.

Critics of the Hate Crime Bill say that it will stifle free speech, but it’s supporters say that it will clarify the law. Who is right and who is wrong?

A link to a recent article on the controversy surrounding the Hate Crime Bill can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-53580326

The Scottish Government, of course, has been criticised in the past for passing laws to combat discrimination – think the Offensive Behaviour at Football and Threatening Communications etc (Scotland) Act 2012 which was eventually repealed on 20 April 2018.

The Scottish Government also had to put its proposals on the back burner to make it easier for transgender people to self-identify in the face of opposition within the SNP and in society more widely.

These are just some examples of the difficulties faced when you decide to go down the legal route. You can pass a law, but will people respect it and, more importantly, obey it?

Conclusion

When I was discussing the significance of culture versus the law this morning, what I meant by that is that organisations and individuals can often drive change in society much more profoundly – even when there is no legal duty to do so.

One example at the organisational level is that of Glasgow University’s recent attempts to confront and make reparation for its historical links with the Trans-Atlantic Slave Trade.

Individuals such as Glasgow City Councillor, Graham Campbell, have done a lot of good work to highlight the City’s historic links with the Slave Trade. Councillor Campbell has also taken a lead in pushing for the creation of a National Museum in Scotland to commemorate the victims of slavery.

Links to these stories can be found below:

https://www.facebook.com/BBCScotland/videos/glasgows-links-to-slavery-frankie-boyles-tour-of-scotland/514455532785635/

https://www.bbc.co.uk/news/uk-scotland-glasgow-west-49435041

Copyright Seán J Crossan, 6 January 2021

Been there, done that, got the T-shirt …

Match Day at Celtic Park, Glasgow (Photo by Amadej Tauses on Unsplash)

Author’s note dated 17 March 2021: the Appeal Court of the High Court of Justiciary has since reinstated the convictions of the three men involved in this case. Please see the link below to the High Court’s judgement:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021hcjac20.pdf?sfvrsn=0

A debate I’ve been having this last week with both my First and Second Year students has concerned the tension between the rights to free speech and freedom of expression and the right not to suffer discrimination – all of which are protected under the European Convention on Human Rights.

Can you say and do what you want even if such actions cause offence to another person? Up to a point, yes, but there are limits to freedom of speech and freedom of expression even in a democratic society which highly prizes such important examples of human rights. If you cross the line which divides acceptable from unacceptable behaviour you may well find that you are accused of a public order offence or, more seriously, hate crime.

To some extent, a case heard last week by the Criminal Division of the Sheriff Appeal Court in Edinburgh indirectly touched on some of these issues (see the Appeals of Daniel Ward, Martin Macaulay and Ryan Walker v Procurator Fiscal, Glasgow [2020] SAC (Crim) 006).

The appeals were submitted by three men who had attended a European Champions’ League qualifying tie at Celtic Park, Glasgow on 19 July 2017.

The background

Celtic FC, which has a predominantly Roman Catholic fan base, was playing against Linfield from Belfast, a Club which is mainly supported by Protestants in Northern Ireland. The men had worn T shirts with Irish Republican imagery to the match – undoubtedly a provocative gesture on their part.

To say that the potential for sectarian unrest at this fixture was very high would be something of an understatement. There had, in fact, been trouble between the opposing fans at the first leg of the tie in Belfast the week previously.

Proscribed not prescribed

The complaint issued by the Procurator Fiscal against Messrs Ward, Macaulay and Walker was set out in the following terms:

“On 19 July 2017 at Celtic Park Football Stadium, Glasgow G40 3RE you
MARTIN MACAULAY, DANIEL WARD and RYAN WALKER did conduct yourselves in a disorderly manner within said Celtic Park Football Stadium in that you did attend at a regulated football match there whilst wearing a shirt which displayed an image of a figure related to and in support of a prescribed (sic) terrorist organisation namely The Irish Republican Army (IRA) and commit a breach of the peace.“

It is worth highlighting a particular error in the above Complaint issued by Glasgow Procurator Fiscal’s office: there is a very important difference between the words prescribed and proscribed (the correct term which denotes an organisation e.g. a terrorist group which is banned by the State). Whether this error was a typo or ignorance on the part of someone at the Fiscal’s office, I’m unsure.

At the conclusion of their trial at Glasgow Sheriff Court in February 2020, Messrs Ward, Macaulay and Walker were convicted of a breach of the peace.

A large part of the prosecution’s evidence against the trio relied on the testimony of three Police Officers who were on duty at the match. Two of the officers (Constables Stirling and Taylor) served with Police Scotland and the third officer (Constable Nixon) served with the Police Service of Northern Ireland.

Now, you would have been forgiven for thinking that the Crown had met the requirement of corroboration – which is a fundamental principle of Scots criminal law. Corroboration is the duty placed on the Crown prosecutor to produce at least two independent sources of evidence which will prove beyond reasonable doubt that the accused is guilty.

The Sheriff at Glasgow certainly thought so as all three officers were able to describe the imagery displayed on the T-shirts worn by the three co-accused i.e. a man with aviator sunglasses wearing a black beret and a camouflage scarf with the Irish tricolour as a background.

As one of Scotland’s leading criminal defence lawyers, Donald Findlay QC interviewed as a participant in BBC Scotland programme Too young to die – Crime Scenes Scotland: Forensic Squad (first broadcast in 2014) observed:

“The trial system that we have – whether you like it or not – is an adversarial system and it is for the Crown to overcome every legitimate hurdle that we put in the way of them proving their case. Thereby we hope that, if someone is convicted, the conviction is justified.”

Mr Findlay goes on to remark that:

“My part in the law is to say to the Crown that if you want to prove guilt, you’ve got to prove it beyond a reasonable doubt and we’ll do our best to make sure that you do. I can live with that – whatever the outcome.”

Appeal against conviction

The three co-accused appealed on a point of law in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995 that the Sheriff had been wrong in his failure to consider their arguments, namely:

1. That the T-shirts did not convey support for a proscribed terrorist organisation (the IRA); and

2. Their behaviour at the football match was not a breach of the peace.

The testimony of each of the officers on the question of the imagery displayed on the T-shirts was highly consistent, but was it safe to say that the value of the evidence presented by each witness should be treated equally?

Alas for the Crown, this is where a major problem emerged. Absolutely no disrespect to the two Scottish Police officers, but they were not in a position to speak with authority on whether the three men by wearing these T shirts were expressing support for a proscribed terrorist organisation.

Significantly, the Sheriff Appeal Court drew specific attention to the decision in Smith v Donnelly 2002 JC 65 which emphasises that “it has been clear beyond doubt that a charge of breach of the peace requires to specify the conduct involved.”

Only Constable Nixon with his direct experience of policing in the febrile environment of Northern Ireland was capable of validating the charges laid out in the complaint. Unfortunately, Constable Nixon’s testimony alone was not sufficient to meet the requirements of corroboration. In a criminal trial, the prosecution case requires certainty not probability.

Reference was made specifically to Lord Kirkwood’s remarks in Fox v HM Advocate 1998 JC 94:

“It is a cardinal principle of our common law that no one can be found guilty of a crime upon the uncorroborated evidence of a single witness, however credible or reliable that witness may be. There must be evidence from at least two separate sources which is capable of establishing the facta probanda beyond reasonable doubt.”

Consequently, the Sheriff Appeal Court quashed the convictions of the three men. This does not mean that the Sheriff Appeal Court is giving the green light to football fans to display such imagery on T shirts and other garments. Far from it: as the judges commented:

“In the particular circumstances which pertained in this case, we would have regarded the wearing of a T-shirt which depicts an image in support of a proscribed organisation, such as the IRA, as so flagrant that the necessary inference could be drawn from it, in the absence of evidence of alarm or annoyance. It is difficult but to conclude that the wearing such T-shirts amounted to a deliberately provocative gesture directed towards the Linfield support. The wearing of such T-shirts in near proximity to the opposing supporters within or around a football stadium is conduct which, if proved, would in our view present as genuinely alarming and disturbing, in context, to any reasonable person.”

Had the prosecution focused on corroborating the element of the charge which emphasised support for a proscribed terrorist organisation, the convictions of the three men might well have been upheld.

Football fans would do well to remember that their right to freedom of expression or freedom of speech could be severely restricted by the Authorities in order to prevent the commission of a crime, such as hate crime or public order offences. If you are still in any doubt, let me point you in the direction of the decision in an earlier appeal judgement of the High Court of Justiciary which reminds us that wearing a T shirt with paramilitary imagery can constitute a breach of the peace (see Maguire v Procurator Fiscal, Glasgow [2013] HCJAC).

A link to the judgement of the Sheriff Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/saccrim006.pdf?sfvrsn=0

Copyright Seán J Crossan, 29 November 2020

The love that dared not speak its name

Thanks to @ChouetteLaura for making this photo available freely on @unsplash 🎁

Every day is supposedly a school day and I have just learned that, 125 years ago today, Oscar Wilde, Victorian poet and novelist, began a sentence for 2 years’ imprisonment for the crime of gross indecency in terms of Section 11 of the Criminal Law (Amendment) Act 1885.

This was the culmination of several legal actions in which Wilde had become embroiled in order to end speculation about his sexual orientation. Although married and being the father of two children, Wilde had a secret: he was a gay man living in a very hostile environment.

It was such a hostile environment that Professor Dominic Janes of Keele University (and author of Oscar Wilde Prefigured: Queer Fashioning and British Caricature, 1750-1900) (University of Chicago Press, 2016) states that:

“Britain had some of the strongest anti-homosexuality laws in Europe … The death penalty was in place until 1861 [the last execution took place in 1835]. In general, one of the main images of what we’d call a gay or queer man was a sexual predator of younger men. Many people would have also been informed by religious arguments from the Old Testament.”

When Wilde’s ‘sexual transgressions’ with a number of younger men were finally exposed in court due, in a large part, to the work of a private detective, he didn’t really stand a chance against the ensuing moral outrage of Victorian society.

The trials and eventual prison sentence would ruin Wilde financially and reputationally – for good (or so it seemed at the time).

More information about the trials of Oscar Wilde can be found in an article which appeared in The Independent to mark the 125th anniversary of his downfall.

https://edition.independent.co.uk/editions/uk.co.independent.issue.250520/data/9525296/index.html

The long and winding road

If Victorian society was uniformly unforgiving and scornful of Wilde in 1895, contemporary British society has certainly rehabilitated his reputation. There is now almost universal agreement that Wilde was the victim of oppressive laws and social attitudes.

Wilde himself would probably be astounded at the amount of progress that members of the LBGTQI community have made in the intervening 125 years.

I’m also sure that he would be delighted to know that he is still the focus of discussion in 2020 (“There is only one thing in life worse than being talked about, and that is not being talked about.”).

It has been a a long and winding road for members of the LBGTI community to achieve legal recognition and protection.

Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, society (and particularly the work-place) could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights.

In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands.

Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles; then reduced to 18; and then finally 16 years of age. Societal attitudes had moved on and the law had to follow.

In the last 20 years, the influence of the European Union has also been particularly profound regarding measures to combat sexual orientation discrimination. In spite of Brexit, there is a large body of anti-discrimination law which has been bequeathed to us as a result of our membership of the European Union.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

This body of law is not just going to disappear overnight when the transitional period for Brexit ends (as currently anticipated by the UK Government) on 31 December 2020. As I often remark, European Union has become hardwired into the various legal systems of this disunited Kingdom.

Indeed, a person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Even greater strides towards equality were ushered in as a result of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Northern Ireland finally legalised same sex marriage in 2020.

When Oscar Wilde was serving part of his sentence in Reading Gaol (which inspired his Ballad of the same name) he could hardly have contemplated life as we know it in 2020.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Scotland’s shame

Look at the above image: the crime of vandalism? Almost definitely, but put it into context and a more sinister picture emerges that of sectarianism.

The building in the picture is a meeting place of the Loyal Orange Order and it has been spray painted with blatantly offensive graffiti which is diametrically opposed to everything that the Order stands for i.e. the unity of the British State, upholding Protestant religious values and support for the British monarchy. This is not just an act of vandalism: it is also a hate crime; an example of sectarianism.

The vandals, if ever caught, may also incur civil liability for their actions. Section 10 of the Equality Act 2010 covers the protected characteristic of religion and philosophical beliefs.

Sadly, these types of incidents can be all too common and both sides of the sectarian divide can be guilty of such behaviour. In January 2019, a young man admitted to a sectarian offence at Glasgow Sheriff Court. While attending an Orange Walk, Bradley White spat on a Catholic priest, Canon Tom White, who was standing at the door of St Alphonsus’ Church when the parade passed by. The incident gained a lot of media attention.

Man who spat on Glasgow priest caught by his own DNA

A sheriff condemned the “disgusting” assault, which took place outside a Glasgow church as an Orange walk went past.

The Scottish Parliament (which first sat in 1999) was keen to address the issue of sectarianism and finally did so by passing the much maligned Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The 2012 Act acknowledged that a large part of sectarian division was expressed through the medium of football with reports of disorder at stadia and offensive comments being circulated on social media.

It was also the fact that before the 2012 Act was introduced, Scots Law had an existing arsenal upon which to draw when tackling hate crimes of a sectarian nature, namely:

Common law offences
Criminal Law (Consolidation) (Scotland) Act 1995
Crime and Disorder Act 1998
Criminal Justice (Scotland) Act 2003

The 2012 legislation has since been repealed by the Scottish Parliament on the grounds that it was difficult to operate and that it had significantly restricted freedom of speech.

Related Blog article:

https://seancrossansscotslaw.com/2019/12/26/a-pile-of-mince-or-a-dogs-dinner/

That said, the Scottish Government has not been prepared to leave this area alone and it instructed Lord Bracadale, a retired Senator of the College of Justice to chair an inquiry into the current state of hate crime laws in Scotland.

A link to Lord Bracadale’s recommendations can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

A secular society?

Although, the United Kingdom is regarded as a largely secular society in that the majority of its citizens no longer profess allegiance to a particular religion, many of the its people come from a distinct religious tradition. Yet, the British State itself has not caught up with these social trends: Queen Elizabeth II is the Supreme Governor of the established Church, the Church of England; and Anglican Bishops still sit in the House of Lords deliberating on and making laws for the country.

According to the British Social Attitudes Survey of 2018, more than 50% of people in Britain stated that they had no religious beliefs.

A link to an article in The Guardian about this aspect of the Survey can be found below:

https://www.theguardian.com/world/2019/jul/11/uk-secularism-on-rise-as-more-than-half-say-they-have-no-religion

The Protestant Reformation

Since the events of the Protestant Reformation in 16th Century, religious and political tensions have been a hallmark of British and Irish culture and society.

England, Scotland and Wales became Protestant countries while Ireland remained overwhelmingly Roman Catholic in its religious outlook.

To proclaim yourself as a Protestant was to pledge your loyalty to the Scottish and English Crowns (there was not yet a United Kingdom, although there was a union of the two Crowns in 1603).

To assert your Catholicism was often viewed as disloyal and treasonous. It could also mean that you could be subjected to criminal sanctions e.g. fines, confiscation of property, imprisonment and even the death penalty.

The Reformation raised Ireland’s already tense and problematic relationship with England to new heights (and later Scotland when James I became King of England).

Suspicion about Roman Catholics’ loyalties were further exacerbated as a result of the Gunpowder Plot of 5 November 1605. Robert Catesby, Guy Fawkes, Thomas Percy and their co-conspirators were fanatical Roman Catholics who wanted to kill the King and his key Ministers by blowing up the State opening of Parliament. Had the Plot been successful, plans were in hand to re-establish Catholicism as the religion of the embryonic British State.

Sectarianism in Scotland

Historically, religious discrimination or sectarianism in Scotland has been a big problem and has often been referred to as ‘Scotland’s shame’. These tensions really began to surface during the Irish Potato Famine (an Gorta Mór) in the 1840s. Thousands of Irish people – who were overwhelmingly members of the Catholic Church – left their homes and settled in Scotland in search of work and to escape hunger.

This huge influx caused tensions with the local Scottish, Protestant communities. In Glasgow in 1814, there was just one priest – Reverend Andrew Scott – serving the Catholic community. Father Scott supervised the building of St Andrew’s RC Cathedral on Glasgow’s Clyde Street in order to minister to his “vast Irish flock” (James Handley: The Irish in Scotland (1964): 127).

In the years following, many Irish continued to come to Scotland (and other parts of the UK) in search of work. Caused huge social tensions and Irish people were often the target of institutionalised discrimination. In Scotland, this discrimination always had a religious dimension – better known as sectarianism.

Discrimination ran right through Scottish society: Catholics and Protestants went to different schools, attended different churches, lived in separate neighbourhoods and, significantly, supported different football teams e.g. in Glasgow, Catholics supported Celtic FC and Protestants supported Rangers FC; in Edinburgh, Catholics supported Hibernian FC while Protestants supported Heart of Midlothian FC; and in Dundee, Catholics supported Dundee United whereas Protestants supported Dundee FC.

Conclusion

Although religious participation in Scotland has decreased significantly – in line with trends across the UK generally – the echoes of religious traditions can still be heard. In Glasgow and west-central Scotland (where Irish immigration was most heavily concentrated), support for Celtic and Rangers Football Clubs is still a pretty good indication of a person’s ethnic and religious origins.

The Scottish Parliament and Government has tried to take a lead in combating sectarianism – not always successfully. To the credit of the Government and Parliament, they are not prepared to leave the matter and Lord Bracadale’s recommendations on updating existing Scottish hate crime laws are both welcome and timely.

What a difference a day makes …

Photo by Jim Wilson on Unsplash

Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.

It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.

This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.

Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?

Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):

This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.

In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.

The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):

This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:

Is the law working properly?
Is it still necessary?

Please find below a link to the story about this development on the BBC website:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Trial without jury?

I seem to be on a theme today due to COVID-19.

The latest legal development is the Scottish Government’s attempt to deal with the crisis by passing an emergency Bill through the Scottish Parliament in one day. The Coronavirus (Scotland) Bill undoubtedly contains welcome measures e.g. protection for tenants against eviction by their landlords throughout the duration of the crisis.

The relevant provisions of the Bill are contained in Section 11(1) and (4) respectively and are as follows:

“The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.”

This would, in effect, create a situation where a Sheriff or a Lord Commissioner of Justiciary in a solemn trial was both Master of the Law and Master of fact.

Not everyone is welcoming the Bill in its entirety: the Scottish Criminal Bar Association has been extremely critical of proposals which would, in particular, permit the temporary abolition of trial by jury (solemn trials).

Prominent members of the Scottish National Party, such as Joanna Cherry QC MP, have stated their extremely strong opposition to the proposals (see Tweet below):

Ronnie Renucci QC, Chair of the Scottish Criminal Bar Association, issued the following statement attacking the Bill’s provisions in relation to jury trials:

“The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. … Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time. … The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised. They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”

As Mr Renucci also points out in his statement, juries have been in existence in Scotland since the reign of King Alexander II (1214-49). Even during the Second World War, the practice of trial by jury continued – albeit restricted to 7 jurors as opposed to the usual number of 15.

I should, of course, point out that the vast majority of criminal trials (95%) in Scotland are conducted in the lower criminal courts – the Justice of the Peace and Sheriff Courts – under summary procedure. In England and Wales, the figures are similar. Yet, the emotional attachment to the right of trial by jury remains very strong in both jurisdictions.

We should not, however, ignore or downplay the value of solemn trials in that they permit someone who is accused of serious criminal offences (e.g. former Scottish First Minister, Alex Salmond) to be tried by a jury of his/her peers. A

There are unhappy precedents for restricting the right to trial by jury.

In Northern Ireland, during the period known euphemistically as ‘The Troubles‘, the Diplock Courts were established under the provisions of the Northern Ireland Act 1973. This legislation abolished the right to trial by jury for terrorism related offences. The rationale behind this development was to curb juror intimidation by paramilitary organisations such as the Provisional IRA and the Ulster Defence Association. These courts, where one judge presided, were highly controversial. They were only abolished comparatively recently as a result of the introduction of the Justice and Security (Northern Ireland) Act 2007.

During the first and second terms of the Blair Government (1997-2001 and 2001-2005 respectively), attempts were made to curtail the right to trial by jury in England and Wales. This would have applied to offences triable either way i.e. they could be tried under summary procedure or on indictment. In such situations, it is the choice of the accused (the defendant) to decide which sort of trial they should face – trial by magistrates or trial by jury. The Blair Government’s proposals were not welcomed and eventually sank beneath the waves of protest from a number of Mr Blair’s own MPs, members of the House of Lords, the Law Society and the Bar Council (to name but a few opponents).

https://www.theguardian.com/politics/2000/jan/21/jurytrials.law2

https://www.independent.co.uk/news/uk/politics/labour-rebels-to-ambush-blair-over-trial-by-jury-105088.html

Conclusion

Some 20 years ago, when Prime Minister Blair’s Government proposed restrictions on the right to trial by jury, the words of Lord Devlin, a former Law Lord, were often quoted. Lord Devlin’s remarks are worth repeating in the current context:

“…trial by jury is more than an instrument of Justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”

Related Blog articles:

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/