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

Sex or gender?

Photo by Dainis Graveris on Unsplash

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

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

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

The Equality Act 2010

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

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

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

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

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

The Gender Recognition Act 2004

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

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

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

Self-identification

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

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

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

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

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

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

The Bill passes Stage 3 in the Scottish Parliament

The purpose of the Bill is set out below:

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

A controversial amendment?

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

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

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

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

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

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

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

Further controversy

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

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

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

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

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

https://forwomen.scot

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

Copyright Seán J Crossan, 4 February 2021

Gender recognition reform postponed

Photo by Sharon McCutcheon on Unsplash

The Coronavirus continues to create chaos – legally speaking.

The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.

This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

The Gender Recognition Act 2004

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

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

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

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

Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:

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

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

For the time being all of the above is going to be purely academic.

Related Blog articles:

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

https://seancrossansscotslaw.com/2020/02/18/safe-spaces/

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/

Copyright Seán J Crossan, 1 April 2020

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/

Copyright Seán J Crossan, 1 April 2020

Trial without jury?

Screen capture by Seán J Crossan

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/2020/03/23/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/

Copyright Seán J Crossan, 31 March 2020