Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.
Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).
Enough of history for now …
In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.
This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.
It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:
Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.
It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.
At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having toprove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.
I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?
Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …
Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.
We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).
It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.
Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.
A link to an article about the Salmond verdict on the BBC website can be found below:
Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.
You’re a 22 year old man living with your mother in a terraced house in Coventry. You have been diagnosed with Autism Spectrum Disorder since childhood. You have no criminal convictions. So far, completely unremarkable.
You get yourself into serious trouble with the law. You have been purchasing quantities of chemicals online for the purpose of converting these into Hexamethylene Triperoxide Diamine (“HMTD”), which is a high explosive compound and, it should go without saying, very dangerous.
In these days of heightened awareness of terrorism and the threat from these types of activities, your behaviour is not very sensible. It is perfectly understandable that you might be viewed as a serious threat to national security – as well as a more immediate threat to the safety of your neighbours (you have been causing small explosions in your back garden).
Following a search of your home by Police (who are in possession of a warrant), you are charged under Section 4(1) of the Explosive Substances Act 1883 (legislation which also applies in Scotland).
Section 4(1) states as follows:
“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence …”
You claim you’re not a terrorist, but why on earth would someone like you want to manufacture a high explosive compound such as HMTD? The potential consequences for you are severe if convicted: a maximum sentence of life imprisonment.
By the way, it gets worse, because you are also charged under Section 58 of the Terrorism Act 2000 e.g. because you collect or make a record “of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”
This is exactly what happened to Chez Copeland, who at one point wished to join the Armed Forces, but due to his disability was prevented from choosing such a career.
Let’s go back to Section 4(1) of the Explosives Substances Act 1883 and examine its wording: is there any possible defence for your actions?
Perhaps. The suspect must be able to show that he has the substance in his possession or under his control for a “lawful object”.
So, the key question here is why would this young man want to have explosive materials in his possession? We’re asking a question about his mindset: does he have the necessary mens rea (guilty mind) to commit a crime? We know that the actus reus (the wrongful act) is present, but this is not a strict liability crime – it is essential for the prosecution to establish what was the intention of the accused.
In his defence, the accused provides us with some background. He was hugely influenced by the Oscar winning film The Hurt Locker (directed by Kathryn Bigelow) which is about an American bomb disposal unit operating in Iraq. Ever since seeing the film, the accused has been fascinated about the science behind explosives and bomb making. He indulges in role-playing and develops an obsessive interest in this area.
Far from being involved in terrorist or criminal activities, the behaviour of our accused is firmly grounded in good old fashioned (and honest) scientific enquiry. He is, therefore, following the well trodden path of scientific discovery and experimentation.
Preparatory Hearing at the Crown Court
Sadly, for our accused, a preparatory hearing at Birmingham Crown Court does not bode well. His Honour Judge Mark Wall QC is not minded to permit the defence that the HTMD was in the possession or under the control of the accused for a “lawful object”.
Our accused appeals to the English Court of Appeal (Criminal Division) where his proposed defence is also rejected. The Appeal Court judges (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ), like Judge Wall QC, place huge significance on an earlier precedent – R v Riding  EWCA Crim 892. Let us proceed further …
The Riding precedent
In Riding, the accused had made a pipe bomb because, as he stated in his evidence: “I was curious and just experimenting.” As the Court of Appeal noted in this case:
“The judge ruled that the reason that the defendant gave, that is to say curiosity whether he could construct it or not, was not capable of amounting to a lawful object and he so directed the jury.”
According to the Court of Appeal, this was the correct approach taken by the judge in the Crown Court. The defendant (Riding) was therefore guilty of an offence:
“The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally.”
Appeal to the UK Supreme Court
It would appear, therefore, that Chez Copeland’s prospects of avoiding a conviction and possible prison sentence were pretty bleak – if you follow the logic of the Riding precedent.
There was one chink of light for our accused, Mr Copeland, an appeal to the UK Supreme Court (and leave was duly granted by the Court of Appeal).
Lord Sales (delivering the majority opinion of the Court – Lords Lloyd-Jones and Hamblen dissenting) held that Copeland was permitted to use the defence that his possession or control of the explosive substance was for a “lawful object”.
His Lordship then went on to detail the history of legislation which had regulated the personnel possession of gunpowder (and later explosives) by an individual. Significantly, he noted that:
“In fact, there is a long and well-established tradition of individuals pursuing self- education via private experimentation in a range of fields, including with chemicals and explosives.”
Interestingly, the Explosives Substances Act 1875 (predecessor of the Explosive Substances 1883 Act) acknowledged such legitimate purposes. The 1883 Act had been passed hastily to reassure a British public terrified of the actions of militant Irish Republicans.
The new Act was primarily geared towards the creation of additional criminal offences and, from my interpretation of Lord Sales’ historical summary, it’s hard to infer that the Westminster Parliament was breaking with long established tradition and thus making the mere possession of explosive material a criminal offence. If Parliament had intended this, it would have done so.
The practical regulation of the use and storing of explosives is currently addressed by the Explosives Regulations 2014 and, the Explanatory Memorandum which accompanies these, clearly acknowledge that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use. That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force.
Critically, Lord Sales was of the view that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act. A defendant (such as Chez Copeland) will, therefore, be entitled to present this defence at trial, but of course a jury will have to weigh up the evidence presented and arrive at its own conclusions.
Interestingly, Lord Sales observed that in R vRiding , the Court of Appeal had correctly dismissed the defendant’s appeal on the facts – the defendant (Riding) did not have a lawful object in proceeding to build a pipe bomb. Where the Court of Appeal had fallen into error in Riding, was to approach the remark that “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” as effectively a “proposition of law” rather than treating this as a purely factual statement.
The two dissenting Justices – Lords Lloyd-Jones and Hamblen – were strongly in agreement with Judge Wall (in the Crown Court) and the Court of Appeal:
“Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. For such experimentation to be capable of being lawful it would be necessary to particularise how it was to be carried out so as to avoid any such risk or how it would otherwise be lawful.”
Their Lordships went on to say:
“We consider that the vague and generalised statements referring to personal experimentation and private education, whether considered individually or taken together, fail to provide sufficient particularity of how these claimed objects were to be carried out lawfully.”
That said, the views of Lords Lloyd-Jones and Hamblen did not prevail and Chez Copeland’s appeal was permitted to proceed.
The Explosive Susbtances Act 1883 and the Explosives Regulations 2014 and, the Explanatory Memorandum clearly acknowledges that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use.
In R v Copeland , the UK Supreme Court has now ruled that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act.
That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force which impose upon them a heavy duty of responsibility to take care for the safety of other people and their property.
A defendant (such as Chez Copeland) will, therefore, be entitled to present the defence in Section 4(1) of the 1883 Act at a trial that explosive substances were in his possession or under his control for a “lawful object”. A jury will, of course, have to weigh up the evidence presented and arrive at its own conclusions on the facts.
Links to the Court of Appeal’s decision in R v Riding  and the UK Supreme Court’s decision in R v Copeland  respectively can be found below:
A question I have been pondering quite a lot recently amounts to the following:
‘Is it ever ok or acceptable to break the law in order to change it?’
All sorts of fanatics and the downright criminal will often portray their behaviour as serving a higher purpose when what they mean is that it is entirely self-serving on their part.
The question is extremely contentious (not to say highly subjective), but not as off the wall or leftfield as you might first think.
Current events that’s why. Pressure groups like Extinction Rebellion, with its programme of environmental activism, are sincerely committed in their beliefs and they have the weight of scientific evidence on their side regarding the threat of climate change. However, it is highly debatable to what extent the public will support their tactics which involve a range of public order offences e.g. blocking major roads and disrupting the transport system. The activists argue that climate change is such an existential threat that any and all means are necessary to give the wider public the necessary wake up call which will swing the pendulum firmly in favour of more sustainable and environmentally friendly approaches to the way in which society is organised.
Taking the law into your own hands?
We have been here before, in fairly recent times, with groups such as the Campaign for Nuclear Disarmament (CND); animal rights activists; and campaigners against GM food taking direct (and often unlawful) action against the objects of their ire.
A case I remember very well where this sort of direct action occurred was Lord Advocate’s Reference Number 1 of 2000 Scot HC 15 (30th March, 2001).
In this case, three anti-nuclear weapons protesters (part of the Ploughshares movement) were accused of illegal entry to a ship (‘Maytime’) which was anchored on Loch Goil in June 1999. The ship had a support role in relation to Royal Navy submarines carrying Trident missiles.
The protesters faced criminal damage and theft charges in relation to equipment which was on the ship. In their defence, the protesters claimed that their actions were justified because they were attempting to draw attention to the British Government’s continued possession of nuclear weapons – a situation which the protesters argued was a crime under international law. Now, there is some merit to this argument as the American led invasion of Iraq in March 2003 was based on the premise that the then Iraqi regime of Saddam Hussein was in possession of weapons of mass destruction (which were never found and doubtless never existed).
At the trial at Greenock Sheriff Court, Sheriff, Margaret Gimblet, directed the jury to return a not guilty verdict in relation to several of the charges. As for the remainder of the charges, the jury found the protesters not guilty. The Sheriff Gimblet was extensively criticised for the way in she had directed the jury to return not guilty verdicts. It was felt that this judgement would give the green light to other peace protesters to carry out similar acts as part of their ongoing nuclear disarmament campaign.
The Lord Advocate, therefore, felt it necessary to refer the case to the High Court for clarification where it was held that the protesters were not justified in their actions.
A link to the opinion of the Appeal Court can be found below:
The three Loch Goil anti-nuclear protesters had some recent inspiration for their actions from their colleagues. In January 1996, four protestors (part of the Ploughshares group) had broken into a British Aerospace facility and destroyed the controls of a Hawk Jet which was bound for Indonesia. The Indonesians, at this time, ruled East Timor (now an independent state) and were engaged in a bitter armed struggle with East Timor liberation groups.
The protestors claimed that the jet would almost certainly have been used by the Indonesian military as part of their operations in East Timor. By wrecking the jet’s controls with a sledgehammer, the protestors were committing an act of criminal damage (worth an estimated £1.5 million) undoubtedly, but they had done so in order to save lives. They argued that their actions were justified in terms of the UK Genocide Act 1969 (since repealed).
The four women had deliberately filmed the incident and waited at the scene of the crime to be apprehended. You would be forgiven for thinking open and shut case …
… The jury at Liverpool Crown Court acquitted the four protestors of all charges in July 1996 finding that their actions had been reasonable in terms of the Genocide Act.
A video made by the Ploughshares Group about the incident can be found below:
A link to an article The Independent’s website about the conclusion of the protestors’ trial on can be found below:
Interestingly, almost 21 years later, Sam Walton, a Quaker pacifist was suspected of attempting to disarm a Typhoon fighter jet at a British Aerospace facility which he believed was for the Saudi Arabian Air Force. Walton’s argument was, again, very similar to previous examples of direct action: he was trying to save lives. He argued that there was a high probability that the jet would be used in Saudi military operations in the vicious conflict in the neighbouring country of Yemen.
A link to an article in The Independent about Sam Walton can be found below:
Breaking the law to change it has a long pedigree and the current debate about the tactics of Extinction Rebellion inspired me to review historical situations where people had broken the prevailing law of the land only later to be held up as champions of freedom and progress.
In the last few days, I finally got around to viewing a German film called 13 Minutes (released a few years ago) which was about an attempt on the life of Adolf Hitler on 8 November 1939 in Munich. No spoilers intended (or needed), but the plot failed.
Hitler left the Munich Beer Hall 13 minutes before a bomb, planted in the building by Georg Elser, detonated. People were killed, but not Hitler and the question has persisted as to what would have happened if the assassination had succeeded?
In my humble opinion, I don’t think it would really have mattered as there were plenty of fanatics within the Nazi regime (e.g. Heinrich Himmler and Reinhard Heydrich) who were more than capable of replacing Hitler and furthering his goals.
I did know that the would be assassin, Elser, had been caught in the aftermath of his failed attempt. What I didn’t know was that Elser survived as a special prisoner in Dachau Concentration Camp until April 1945 when he was murdered (he had, in fact, never been tried by the Nazis). Ironically, he outlived one of his interrogators, SS Police General, Artur Nebe, who was executed in March 1945 for involvement in the Plot to assassinate Hitler in July of the previous year.
Clearly, by the prevailing laws of the Third Reich, Elser was a traitor as he had attempted to kill the then German Head of State. History, however, has been much kinder to Elser and he is now viewed as an anti-Nazi resistance fighter of great courage – not an opportunist as Artur Nebe clearly was.
Chartists and Suffragettes
This led me to think about other situations in the past where people fought for their beliefs by breaking the law e.g. the Chartists in the 19th Century who fought for greater democracy in the UK; and the Suffragettes in the late 19th and early 20th Centuries who campaigned for women to be given the right to vote. Nowadays, the Suffragettes particularly are held up as an example of a group of highly principled and determined people who wanted to overcome a glaring injustice.
It’s often forgotten that the Suffragettes moved quickly from peaceful protests to downright terrorist acts e.g. in 1913, the bombing of a house being built for Lloyd George MP, then Chancellor of the Exchequer (or UK Finance Minister). This was followed by bombs being planted at the Bank of England and in St. Paul’s Cathedral.
According to the historian Lucy Worsley, in 1913 alone, there were 168 arson attempts and bomb attacks carried out by Suffragettes across Britain and Ireland. Worsley estimates that the cost of this damage was £56 million in today’s prices. By February 1914, 1,241 prison sentences had been served by Suffragettes and 165 women who had been on hunger strike had been forcibly fed while in prison.
Did these acts of violence lead to votes for women? This is very contentious and historians, such as Worsley, point more to the transformative impact of World War I as the real catalyst for social (and legal) change. How so? Very simply, the need to recruit women into areas of the economy which previously had been the almost exclusive preserve of men (who, of course, were away at the Front fighting the War).
So, I suppose the answer to my original question is it ever acceptable to break the law to change it depends on which side of history you end up: whether you’re ultimately a winner or a loser.
It also depends on the methods used to achieve legal change. Figures such as Mahatma Gandhi who worked towards the end of British rule in India are held up as exemplars because they used peaceful methods. Other figures such as Eamon de Valera and Michael Collins of the IRA are still, to this day, regarded as extremely controversial in their pursuit of armed struggle against the British Empire in order to obtain independence for what would eventually become the Republic of Ireland.
In 2016, the centenary of the Easter Rising was marked by the Irish Government in Dublin. The Rising is regarded as one of the corner stones of the modern Irish Republic, but how do you mark or ‘celebrate’ what was undoubtedly a violent event? With great sensitivity is the answer and the Irish Government was widely praised for unveiling a memorial which listed everyone (including Irish Republicans and British Army personnel) who lost their lives as a result of the events of Easter Week 1916.
As for Extinction Rebellion? Well, history will be the judge …
Well, not if you’re under 25 according to recent proposals published by the Scottish Sentencing Council as part of a public consultation process. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.
The current proposal might seem very provocative and is bound to divide public opinion. Crime, after all, is a very emotive issue and everyone has an opinion about it whether you have been the victim or the criminal. The purpose of criminal law is about the State punishing those individuals who have broken the rules of the community by engaging in dangerous and/or anti-social activities.
The rationale for the Scottish Sentencing Council’s proposal is that scientific research (carried out by the University of Edinburgh) seems to show that the brains of people aged under 25 years have not fully developed i.e. matured.
Now, it is by no means certain that such a proposal will be implemented and the Scottish Sentencing Council is urging members of the public to respond to its consultation with their opinions on the matter.
It is certainly part of a wider strategy which fits in with attempts by the Scottish Government to reduce the numbers of people who are sent to prison each year. There is now perhaps a recognition that prison doesn’t always work. There has been a presumption operating for several years in Scotland, that people will not be sent to prison if the offence would normally be punished by a sentence of less than 6 months. Obviously, this presumption would be ignored if, for example, the offender was a person who persistently broke the rules.
Over the last year, this Blog has looked at a number of initiatives which have taken place which have been about taking different approaches to crime prevention or the rehabilitation of offenders.
In the Autumn (or Fall), I spoke to a group of students about an initiative called the “Call-In-Scheme” where Avon and Somerset Police in England were targeting first offenders aged between 16 and 21 who have been caught dealing drugs. The choice: go to court, be convicted with all the consequences this outcome will entail or go straight. Participants in the scheme were be selected by a panel. Predictably, such an approach sharply divided my audience.
Crime and kindness?
Last March, two American judges – Victoria Pratt and Ginger Lerner-Wren we’re invited to Scotland by Community Justice Scotland, a publicly funded body, where they were hoping to meet hundreds of people who deal with the Scottish criminal justice system.
The two judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They pointed to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. Judge Pratt, on the other hand, specialises in “procedural justice” which works on the basis “that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”
The Glasgow Alcohol Court
This type of approach has already being piloted in Scotland: Sheriffs in Glasgow deal with cases where alcohol is a ‘contributory factor’ in crime. The Sheriff Alcohol Court has been operating since 2018 and its lifespan was extended in 2019. It now deals with domestic abuse cases involving alcohol. Punishments other than prison sentences are handed out by this court e.g. drug and alcohol treatment orders and community service orders. This approach recognises that criminals can turn their lives around and can become law abiding members of society. Being given a drug treatment order is not an easy option. Participants in schemes such as these are regularly tested and monitored. Break the rules and you will go to jail.
Age of criminal responsibility
In Scotland, in common with many penal systems around the world, we do use a person’s age to determine criminal responsibility. Currently, the age of criminal responsibility is 12 and there is a debate about whether this should be raised even higher. It is worth remembering that, for many years (until 2019 in fact), Scotland had one of the lowest ages of criminal responsibility anywhere in the Western World i.e. 8 years of age.
Somewhat mitigating this feature of Scottish criminal law was the fact that children were not tried in adult courts. The Children’s Hearing or Panel system was primarily set up for this very purpose. It was considered a revolutionary approach because it recognised that by stigmatising (and criminalising) children at a very early age, society could set them on a path from which there was no means of redemption. If you effectively abandoned a child at an early age, you were condemning them to a very grim future where they could (potentially) be in and out of prison for the rest of their lives.
The Scottish Sentencing Council’s proposal is very interesting and it will certainly form part of a lively discussion on how we continue to deal with crime in this country. The public now has 12 weeks to get involved in the consultation by giving their opinions on the matter.
It is important to appreciate that, under the proposals, judges will still be able to send people under 25 to prison if they think this is an appropriate punishment. What the proposals are allowing judges to do is to look more closely at a young person’s background e.g. mental health issues before sentence is passed. It remains the case that, where certain crimes are concerned, the imposition of a prison sentence will be most the appropriate action to take because the issue of public safety will be paramount. Clearly, someone like the notorious child killer Aaron Campbell, will not benefit from the proposals merely because they are under the age of 25.
A link to an article on the BBC News app about theScottish Sentencing Council’s proposal can be found below:
Draft sentencing guidelines say younger offenders should be treated differently because their brains are still developing.
As someone who works more in the civil rather than the criminal legal tradition, I tend to focus more on the outcome of obtaining damages or compensation for the victim of an industrial or work-place accident.
It’s simply a matter of horses for courses i.e. you stick to what you know or what you’re trained to do. Admittedly, most of the victims of industrial accidents that I have represented are perhaps more focused on obtaining compensation for their injuries – especially if these are life changing. Any criminal liability that the employer may have is purely incidental i.e. something of a side issue. Then again, I suppose you could say that about most civil actions where the criminality of the pursuer remains firmly in the background (think dangerous and careless driving incidents).
The victim of a work-place delict (or tort) may get some satisfaction from their employer or its officers and managers appearing in the dock at a subsequent criminal trial, but this is unlikely to be satisfying in the long term. It will not allow them to get their lives back on track or to move on; payment of compensation is perhaps a more satisfactory conclusion to things. I make that last statement fully in the knowledge that no amount of money can truly give victims back what they have lost.
Yet, every so often, I come across a story or an incident which underlines the importance of criminal law regarding industrial or work-place accidents.
In 2015, one such incident occurred onboard Aquarius, a fishing trawler which operated out of the North East Scottish fishing port of Banff. Serious failings in the operation of the vessel led to the death of a crewman. The victim, 47 year old, Annang Neurtey from Ghana, was swept overboard: his body has never been recovered – adding immensely to the grief of his family.
Anyone who has read Sebastian Junger’s 1997 novel, The Perfect Storm (or viewed the film adaptation of 2000) will be readily familiar with the dangers that fishing folk face at sea. That said, the tragedy which befell Annang Neurtey was entirely avoidable. If the skipper of the Aquarius had properly supervised the crew and followed basic safety procedures, the accident would not have occurred.
Following Mr Neurtey’s death, MB Aquarius Ltd of Buckie, the company which owned and operated the vessel, was investigated by Police Scotland and the Marine and Coastguard Agency. The conclusions reached by investigators were that basic risk assessments had not been properly carried out and that the employer had failed to put a safe system of working in place.
At a subsequent criminal prosecution against Mr Neurtey’s employer for health and safety breaches at Aberdeen Sheriff Court, the company pleaded guilty to breaches of marine safety laws, namely, Regulation 5(1) of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 and Sections 85 and 86 of the Merchant Shipping Act 1995.
A fine of £50,000 was imposed on the employer – it would have been £75,000 had an early plea of guilty not been entered by the company.
Mr Neurtey’s family will doubtless be contemplating a civil action for recovery of damages – unless of course his employer does the decent thing and quickly settles such a claim.
A link to the Marine and Coastguard Agency’s Report of its findings concerning Mr Neurtey’s death can be found below:
Have concerns about health and safety gone mad? The former British Prime Minister, David Cameron certainly thought so when his Coalition Government (2010-15) introduced the Enterprise and Regulatory Reform Act 2013 (in particular, Section 69 of the said legislation) which removed the right to bring a civil claim for breaches of the Health and Safety at Work Act 1974.
It does not mean that employees can no longer bring a civil claim if an employer breaches its duty of care, but significantly claimants will no longer benefit from the presumption of strict liability previously imposed on organisations. Since this reform, it will be essential for claimants to prove negligence on the part of their employers for breaches of health and safety.
We would, however, do well to remember our history: concerns about health and safety were often ignored in the not so distant past.
The phrase “dark satanic mills” comes from the poem, And did those feet in ancient time by William Blake. The phrase has been interpreted as a searing indictment of the wickedness and exploitative practices of 19th Century British industrialists who most certainly put profit before people. This is why rare individuals such as the Welsh born industrialist, Robert Owen and his New Lanark Mills we’re regarded as truly radical and progressive employers.
The words of Blake’s poem were later put to music by the composer, Hubert Parry, and is better known as Jerusalem – an alternative English National Anthem for many because of its rallying call for social justice for the poor and the oppressed.
Over time, admittedly, the UK Parliament did intervene by bringing in legislation to curb some of the frankly dangerous and disreputable practices which had been tolerated in British factories, shipyards and mines. With the industrial revolution, Britain did indeed become the ‘workshop of the world’, but this accolade disguised the terrible human cost which could be measured in countless deaths, terrible injuries and overwhelmingly misery.
Some months ago, I saw a photograph by Bill Brandt in The Independent’s Saturday Magazine which documented life in an East Durham mining community. I was pretty shocked by what I saw: the houses of the miners had no windows. Think of it: these workers spent their days down the pit in almost total darkness. More shocking, was the fact that Brandt had taken the photograph as recently as 1937.
Yet surely, the bad old days are long gone? The British work-place has become a much safer place? Undoubtedly, as we shall see, employers have become much more aware of their responsibilities to their employees and workers in respect of the issue of health and safety.
That said, if you look at the info graphic produced below from the UK Health and Safety Executive, poor conditions and practices in British work-places still result in unacceptably high levels of injuries and illness – in 2019!
Recently, Amazon, the global internet retailer, received very unwelcome media attention about the number of industrial injuries which have occurred in its UK premises. It’s probably fair to say that Amazon UK does not enjoy a particularly good reputation amongst trade unions regarding its employment practices and the recent media stories only compound this state of affairs.
Links to stories about Amazon UK on Sky News and Channel 4 News can be found below:
It is worth noting that the employer’s common law duties which aim to protect the health and safety of employees establishes a regime of civil liability. In other words, should the employer breach these duties, he will most likely face a civil action by the injured employee who will be attempting to recover compensation.
The Health and Safety at Work Act 1974, on the other hand, makes an employers criminally liable if they fail to take reasonably practicable steps to protect the health and safety of their employees. An employer will, therefore, face penalties in a criminal court for breaches of the Act.
The Health and Safety (Offences) Act 2008
The provisions of this Act came into force on 16 January 2009 and apply to offences committed after this date by employers. Scottish criminal courts will now have the power to impose maximum fines of £20,000 on employers who breach health and safety rules. In the most serious cases where health and safety rules have been breached or ignored, the courts may also have the right to imprison those responsible.
The Criminal Justice and Licensing (Scotland) Act 2010
Sections 65-68 of the Criminal Justice and Licensing (Scotland) Act 2010 should make it easier for organisations to face prosecution in Scotland in relation to allegations of criminal wrongdoing. According to Section 65, the term “organisation” applies to any of the following bodies:
a body corporate;
an unincorporated association;
a body of trustees;
a government department;
a part of the Scottish Administration;
any other entity which is not an individual
Such proceedings against organisations may be on indictment (Section 66) or on complaint (Section 67).
For a long time, it has been argued that an organisational culture which promotes lax practices or downright dangerous behaviour can lead to the commission of criminal offences. This an attempt to make organisations more accountable under the criminal law for conduct which causes harm to members of the public.
Overall, this means that an employer could face both a criminal action and a civil action for damages where he has neglected to obey the criminal law and the common law in respect of the employee’s health and safety.
If only we need reminding that health and safety remains a major issue in the work-place, we need only look to a story from Scotland which appeared in national media outlets just this week.
Workers at the Mossmorran and Ineos chemical plants took unauthorised industrial action (wildcat strikes) which was motivated by serious concerns about the lack of health and safety in the work-place. Happily, the employers seem to be listening to the concerns and the employees are now back at work.
Failure by employers to take health and safety issues seriously can leave themselves open to both civil and criminal liability. During Britain’s Industrial Revolution (from the 18th to the early 20th Centuries), it’s true to say that there was no such thing as a culture of health and safety in the work-place. Industrialists like Robert Owen were remarkable because they broke with the paradigm of British industrial practice i.e. workers were resources to be used up and tossed aside when no longer needed.
The growth of the trade union movement and the emergence of the British Labour Party (itself a creation of the union movement) led to pressure for change and tangible improvements were made to working practices. Despite these advances, cases such as the death of Annang Neurtey and the figures from the Health and Safety Executive surely caution us against complacency.
Links to reports on the BBC Scotland website about the industrial action can be found below:
Union GMB said the workers had “continuously raised their concerns about conditions and safety on-site”.
Apparently, the Chinese have a proverb which translates something along the following lines: the Devil gives you your family; thank all Gods that you can choose your friends!
Quite an apt statement to lead me into my next blog. Families can be great; they can also be problematic. This point is emphasised by reference to a recent decision of the Appeal Court of the High Court of Justiciary in Edinburgh.
In Michael Scott Ritchie v Her Majesty’s Advocate  HCJAC 7 HCA2019/327/X, the Appeal Court had to consider whether a Sheriff sitting at Elgin had misdirected the jury and, consequently, a miscarriage of justice had occurred.
The convicted person or appellant, Michael Ritchie, certainly thought so. He had appeared at Elgin Sheriff Court in 2019, charged on indictment in respect of the following matters:
“on 11 or 12 May 2018 you … did break into the dwelling house owned by [JR] … at Strathville, South Street, Forres, Moray and steal a quantity of jewellery, medals, coins and a box;
You … did commit this offence while on bail, having been granted bail on 15 June 2017 at Elgin Sheriff Court.”
He was convicted of the offences libelled above after the conclusion of a solemn (jury) trial and sentenced to 21 months in prison (3 months of which were for the bail violation).
Part of the evidence put forward to convict Ritchie by the Depute Procurator Fiscal (the prosecutor for the benefit of our non-Scottish readers) was a small black torch which was found at the locus of the crime. The item was not a possession of the householder. The torch contained traces of Ritchie’s DNA and he admitted that the item belonged to him. ‘Ritchie further admitted that he had been about 150 yards from the vicinity of the crime scene, but he strongly asserted that he was not guilty of any offence.
DNA – infallible evidence?
This is where the case gets quite interesting: Ritchie stated that although his DNA was on the torch, he had not committed the crime of house-breaking (or burglary as our friends from common law jurisdictions would say). He was not responsible for leaving it at the locus.
In other words, Ritchie was contending that, merely because his DNA happened to be on the torch found at the crime scene, this in itself was not conclusive evidence of his guilt. Ritchie, of course, was using a special defence available in Scots Law known as incrimination – he was claiming that someone else [his brother] had committed the offence. Interestingly, Ritchie’s brother had previous convictions for theft, but these had involved commercial premises.
He further asserted that he may have loaned a torch to his brother in the last month or so. He contended that the torch given to his brother was a black rubber one. Unfortunately, for Ritchie the torch found at the locus was a black metallic item.
When speaking to students about the issue of corroboration in criminal law, I often ask them which sources of evidence might be used by a prosecutor to help secure a conviction? DNA evidence will almost always feature in the range of answers that I am given.
… but I should urge caution: it’s not an infallible source of evidence. It has to be put in context and the onus (or burden) about what the DNA tells the Court i.e. whether it can point the way to the accused being guilty beyond reasonable doubt remains very much the responsibility of the prosecution (or Crown).
The role of the Sheriff and the jury
In a solemn trial, there is a strict division of responsibility: the jury is regarded as Master of the facts; whereas the Sheriff is Master of the law.
The jury will, therefore, determine the guilt or innocence of the accused based upon the evaluation of the evidence presented during the trial. The burden of proof rests with the prosecutor (representing the Crown or the State) in that s/he must convince the jury that the accused is guilty of the charge(s) contained in the indictment.
When summarising the evidence that has been presented to the court, the Sheriff must do so in a way that avoids the introduction of bias. The jury must be able to come to its own determination of the facts.
If guilt is established, it is then the task of the Sheriff to impose the appropriate sentence – usually at a subsequent hearing (for which there is no need for the jury to be present).
The main thrust of Ritchie’s appeal to the High Court in Edinburgh was that the Sheriff had misdirected the jury which led to him being wrongly convicted.
Sadly, for Ritchie, the Appeal Court did not agree.
Statements by the Procurator Fiscal Depute concerning the veracity of Ritchie’s responses during a Police interview did not suggest that the onus was now placed on the defence to prove his innocence. An accused in a Scottish criminal trial is under no obligation to prove his/her innocence. Innocence is, after all, presumed and it remains the task for the prosecution to prove guilt.
Lord Carloway, the Lord Justice General, giving the opinion of the Appeal Court noted:
‘… that the sheriff made it clear that the onus remained on the Crown and that there was no such onus on the defence. The sheriff’s reference to hypothetical situations was merited in the circumstances. Anything said by the PFD [Procurator Fiscal Depute] was adequately covered by the sheriff in her general directions on onus; the sheriff being in the best position to determine what was required in order to correct any misconception that the jury might have had from what the PFD had said.’
Regarding the presence of the torch (belonging to the accused) at the locus, this was in itself a ‘highly incriminatory’ fact. Significantly, Ritchie had not identified the item when presented during his trial as being the torch that he claimed to have previously supplied to his brother.
In reviewing the testimony of the expert witnesses who spoke to the DNA evidence at the trial, Lord Carloway had the following to say:
‘Expert evidence about the deposit of DNA was led by both the Crown and the defence. There were various scenarios put to the experts about how DNA can be deposited, how long it could remain, how it could be transferred and whether it was primary or secondary. The sheriff described all of this evidence as essentially common sense. There was, however, a disagreement between the experts in relation to four peaks, which had been identified from the DNA print-out upon testing.’
The four peaks could either be artefacts (the Crown) or DNA belonging to an unknown person or persons (the defence).
The Crown submitted in its argument to the Appeal Court that the Sheriff had correctly emphasised to the jury “to scrutinise the evidence with care and be satisfied that there was an evidential basis for the submissions which had been made to them.”
Taking all of the above matters into consideration, there was no evidence to suggest that Michael Ritchie had suffered a miscarriage of justice and his appeal was refused.
A link to the judgement of the Appeal Court can be found below:
Today, the Vulnerable Witnesses (Criminal Evidence) Scotland Act 2019 comes into force.
This piece of legislation, passed by the Scottish Parliament, was given Royal Assent in June 2019.
It represents the introduction of an innovative change to Scots criminal law. The new law will permit vulnerable witnesses to pre-record their evidence in advance of trial so that they will not be required to appear in court in person.
According to a Scottish Government press release (see link below), a vulnerable witness is defined in the following terms:
‘[if] they are likely to suffer significant risk of harm as a result of giving evidence. This includes victims of sexual assault, domestic abuse, trafficking and stalking, and those under the age of 18.’
For children aged under 18, in particular, the Act permits the evidence to be taken by commissioner. This procedure will be disregarded if it would significantly prejudice the interests of justice.
The Scottish Government has noted that the new legislation consolidates changes that were made in 2014 to safeguard the rights of vulnerable witnesses i.e. the Witnesses and Victims (Scotland) Act 2014.
Links to both pieces of legislation can be found below: