Criminal prosecutions – Seán Crossan's Scots Law

The Queen’s Speech

Recently, I have been discussing with my students the creation of statutory criminal offences i.e. those created by Parliament (whether the U.K. or Scottish Parliaments). In particular, the group discussions have centred around the issue of whether the offence requires the accused to have mens rea (criminal intent or the guilty mind) when carrying out or attempting the actus reus (the wrongful act). Alternatively, the offence may be one of strict liability where mens rea is largely irrelevant. Strict liability offences include non-payment of a TV licence and some road traffic offences.

In relation to strict liability offences, the Crown (the prosecutor) merely has to prove beyond reasonable doubt that the accused committed the actus reus.

These issues were particularly pertinent because the Queen’s Speech had just taken place at Westminster on Tuesday 10 May 2022 (delivered by Prince Charles this year in his mother’s absence). This is a ceremonial occasion in the life of the U.K. Parliament, but it isn’t just for the tourists to come and gawp at. It’s the occasion where the U.K. Government sets out its legislative or law making proposals for the next year.

It used to be a very important occasion for Scotland, but since the Scottish Parliament was set up in 1999 (the Devolution process), it has become less so. Many laws for Scotland are now made in Edinburgh.

That’s not to say that the U.K. Parliament can no longer pass laws for Scotland. That would be giving you a totally false impression: the U.K. or Westminster Parliament remains the supreme law making or legislative authority in Scotland, England, Northern Ireland and Wales. That is a legal fact.

One of the Bills that was mentioned in the Queen’s Speech this year was the Public Order Bill. This is a very controversial Bill because it aims to target and control the conduct and extent of public protests – particularly protests by environmental groups such as Insulate U.K. and Extinction Rebellion.

**The section of the Queen’s Speech referring to the Public Order Bill**

A link to the text of this year’s Queen’s Speech can be found below:

https://www.gov.uk/government/speeches/queens-speech-2022

When I was speaking to the students several days after the Queen’s Speech, I was saying that I would have to go and look at the text of the Public Order Bill in order to establish a number of things:

a) Does it apply to Scotland? The answer would appear to be no as the text of the Bill mentions England and Wales only.

b) Does it create strict liability criminal offences in relation to the practice of ‘locking on’; ‘obstruction etc of major transport works’; and ‘interference with use or operation of key national infrastructure’?

For locking on offences, the intention of the accused still seems to be critical, but regarding obstruction etc of major transport works, there could possibly be an element of strict liability.

Some screenshots from the text of the Public Order Bill can be seen below:

**Front page of the Public Order Bill 2022**

**The proposed offence of locking on. Note the use of the words *intend* and *reckless* which are underlined in red**

When the language of a Bill or an Act of Parliament uses words such as ‘wilfully’, ‘recklessly’ or ‘intentionally’ in connection with a criminal offence, it’s a fairly safe bet to conclude that the Crown must be able to demonstrate that the accused had the necessary mens rea when the actus reus occurred.

Some of the media commentary around the Public Order Bill was misleading to say the least – particularly in relation to the proposed offence of ‘locking on’. I picked up from several media outlets that this proposal involved the creation of a strict liability offence and, yet, the language of the Bill seems to suggest otherwise.

**Section 2 (the proposed offence of being equipped for locking on). Note that the word intention appears in the text.**

**Section 3 of the Public Order Bill 2022. Note that the text does not contain any words or phrases which suggest that the *mens rea* of the accused is essential.**

That said, Section 3 of the Bill (obstruction etc of major transport works), lacks clear references to the intention of the accused and this might suggest that Parliament intends to create a strict liability offence. Further clarity can, of course, be sought by studying the explanatory notes which accompany the Bill. It is worth pointing out that, even if this is an attempt by Parliament to create a strict liability offence, it could be blocked or amended as the Bill makes it way through the Commons and the Lords.

Sweet v Parsley [1969] UKHL 1

In the above (and often quoted) decision of the House of Lords, Lord Reid (in paragraph 6 of the judgement) made the following observations regarding statutory offences which require mens rea and those which are ‘absolute’ or ‘strict’:

“Our first duty is to consider the words of the Act: if they shew a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”

A link to the decision of the House of Lords can be found below:

https://vlex.co.uk/vid/sweet-v-parsley-794063145

Conclusion

The Public Order Bill must now pass through the House of Commons and then the House of Lords before receiving the Royal Assent. Once the formality of the Royal Assent has taken place, the Bill becomes an Act of Parliament i.e. part of the law of the land (for England and Wales in any case).

I am jumping the gun somewhat: the Bill might have a stormy passage through Parliament. As if to prove my point, please see a recent Tweet from Caroline Lucas, the Green Party MP:

We’ll just have to wait and see how matters develop.

Copyright Seán J Crossan, 23 May 2022

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.

Pardoning the victims?

Claire Mitchell QC 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

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/

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/

The burden of proof

Photo by JJ Jordan on Unsplash

In Chapter 1 of Introductory Scots Law, I discuss the differences between criminal and civil law. A discussion point which often arises in my lectures with students is the difference in the standard of proof in criminal and civil trials.

In a criminal trial, the onus or burden of proof is very much the prosecutor’s responsibility. In other words, the prosecutor must prove beyond reasonable doubt that the accused is guilty.

By complete contrast, in civil litigation, the onus or burden of proof is placed on the shoulders of the pursuer (or the claimant). S/he must show, on the balance of probabilities, that the basis of the claim is stronger or more credible than that of the defender (or respondent).

The criminal standard of proof is of a much higher standard than the civil burden of proof. I think this can be easily justified given the consequences of someone being convicted of a crime: the sanctions are much more serious and potentially longer lasting.

So far so good: most First Year Law students can grasp the distinction between the different standards of proof or evidence.

Difficulties tend to arise when students encounter a situation where the conduct of the behaviour at the centre of a case can have both criminal and civil consequences.

They often ask me why someone (the accused) can be acquitted of a crime, but sued successfully in a subsequent civil action?

I often use driving offences as a means of making a point. Many drivers who are charged with dangerous driving often experience immediate relief when they are acquitted of criminal charges; this sense of relief can be short lived when they are informed that the victim intends to proceed with a personal injury action (which has a very realistic chance of success).

The simple reason for the above situation is the difference in the burden of proof in each trial: the higher burden of proof in a criminal trial and a lower burden of proof in the civil claim.

It’s also important to appreciate that the criminal and civil legal systems operate independently of one another. They have different functions:

Primarily, criminal law seeks to punish offenders who behave in dangerous and irresponsible ways which would threaten the safety and security of the wider community and public.

On the other hand, civil law (concerning the breakdown of relations between private individuals) essentially seeks to provide the victim of a breach of duty with a remedy – usually, but not always, compensation or damages.

In Chapter 1 of Introductory Scots Law, I discussed the example of a successful civil claim for damages by a rape victim (DC v (First) DG and (Second) DR [2017] CSOH 5). Crucially, the criminal case against her alleged attackers had been unsuccessful and both men were acquitted. That was not the end of the matter: the victim pursued both men at the Court of Session and won substantial damages in respect of her injuries.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d22e28a7-8980-69d2-b500-ff0000d74aa7

Recently, there have been a number of similar cases where the failure of criminal cases to secure convictions for rape have been no barrier to victims of sexual assault from pursuing civil damages claims in the Scottish courts.

Links to two of these stories reported by the BBC can be found below:

Woman wins £80,000 in damages from man cleared of raping her in St Andrews

The woman has won her civil case against a man who was cleared of raping her after a night out in Fife.

Soldier cleared of rape ordered to pay £100,000 in civil case

Sean Diamond continues to deny the allegation and says he is asking for the decree to be recalled.

Conclusion

There different standards of proof depending on whether the legal action is a criminal prosecution or civil claim.

There is a higher standard of proof required in a criminal prosecution to secure a conviction.

The two legal systems have different objectives and operate independently of one another.

As we have seen in a number of cases, an accused who is acquitted in a criminal trial may experience a very unpleasant shock when the victim communicates an intention to pursue a civil claim for damages – which, in the longer term, may have every chance of success.

It should be emphasised, of course, that those successfully sued for conduct such as rape or sexual assault, but successfully acquitted of all criminal charges, will not have a criminal record. They will bear civil responsibility for the victim’s injuries. It’s by no means a perfect solution (given the lower conviction rates for rape), but does provide victims with some means of legal redress.