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/

Copyright Seán J Crossan, 25 May 2020

Assault!

red white and black textile
Photo by Martin Sanchez on Unsplash

The situation caused by the COVID-19 continues to generate all sorts of legal consequences. One of the latest angles to be given wide publicity is the rising number of incidents involving assaults carried out by individuals who claim to be infected with the virus.

Several innocent members of the public – whether they be private individuals, shop workers, Police officers or National Health Service staff – have experienced confrontations with extremely anti-social individuals who have threatened to cough over them or spit on them.

One such incident occurred at the weekend, which was reported by BBC Scotland (see below):

Assault in Scotland is generally treated as a common law offence. It would involve a physical attack (or an attempted attack) on another person. Threats issued by a person to a victim would also constitute an assault if these put the victim into a state of fear and alarm.

In relation to the above incident, the clear intention of the teenager (even if he was completely healthy) was to put the healthcare worker into a state of fear and alarm. Hopefully, the victim will remain completely healthy and free of viral symptoms.

This is not, however, the point: her attacker clearly had the mens rea (the guilty mind) and he followed this through with the actus reus (the wrongful act). If there are witnesses and other evidence which can corroborate the incident, then the Police may have grounds to charge her attacker with assault.

If the criminal investigation proceeds to this stage, it will then be for the Procurator Fiscal (the local prosecutor) to determine whether there is enough evidence to initiate criminal proceedings against the accused.

The Lord Advocate, James Wolfe QC has issued a statement in relation to assaults on key workers:

The Crown has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic. Any person who deliberately endangers life, or spreads fear and alarm by pretending to do so, will be dealt with robustly. It is difficult to imagine a more compelling case for prosecution in the public interest.

Although assault is generally considered to be a common law offence, we should be mindful of the provisions of Section 90 of the Police and Fire Reform (Scotland) Act 2012 which creates the statutory offence of assaulting or impeding the Police in the discharge of their duties. If an accused is successfully convicted of an offence in terms of Section 90, they may face a maximum prison sentence of 12 months and/or the imposition of a fine.

In England and Wales, a different approach is taken to assault: it is regarded as a statutory offence in terms of the Offences Against the Person Act 1861.

The Crown Prosecution Service for England and Wales has stated that attacks on emergency workers may result in a prison sentence of two years being imposed should the accused (the defendant) be found guilty of such an assault (as per Section 38 of the Offences Against the Person Act 1861).

Links to stories on the Sky News website about the rise of this type of criminal offence can be found below:

http://news.sky.com/story/coronavirus-nhs-staff-police-and-public-being-coughed-on-by-people-claiming-to-have-covid-19-11965058

http://news.sky.com/story/coronavirus-man-who-spat-on-police-while-claiming-he-had-coronovairus-is-jailed-11967349

http://news.sky.com/story/coronavirus-police-want-spit-guards-to-protect-officers-from-vile-behaviour-11969529

http://news.sky.com/story/coronavirus-policewoman-bitten-on-the-arm-while-explaining-covid-19-lockdown-rules-11971769

In the United States of America, incidents such as the above have more serious consequences: COVID-19 is classified as a ‘biological agent’. Attempts to spread or threats to spread the virus are treated as a terrorist offence (see below):

http://news.sky.com/story/coronavirus-two-charged-with-terror-offences-over-threats-to-spread-covid-19-11970802

Copyright Seán J Crossan, 31 March; 6 & 11 April 2020

Go to jail?

Photo by 🇨🇭 Claudio Schwarz | @purzlbaum on Unsplash

Young offenders?

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.

https://consultations.scottishsentencingcouncil.org.uk/ssc/young-people/

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.

Conclusion

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.

Scottish courts urged not to jail ‘immature’ under-25s

Related Blog Articles:

https://seancrossansscotslaw.com/2019/05/08/the-age-of-criminal-responsibility/

https://seancrossansscotslaw.com/2019/02/27/criminal-responsibility/

https://seancrossansscotslaw.com/2019/03/12/crime-and-kindness/

https://seancrossansscotslaw.com/2019/02/19/dealing-with-alcohol-abuse/

https://seancrossansscotslaw.com/2019/08/30/once-a-criminal/

https://seancrossansscotslaw.com/2019/03/04/commit-the-crime-do-the-time/

https://seancrossansscotslaw.com/2019/04/02/victims-voices/

https://seancrossansscotslaw.com/2019/06/13/doing-time/

https://seancrossansscotslaw.com/2019/03/22/life-should-mean-life/

https://seancrossansscotslaw.com/2017/04/04/scottish-criminal-appeals/

https://seancrossansscotslaw.com/2019/01/29/crime-and-punishment-in-scotland/

Copyright Seán J Crossan, 28 February 2020

Oh brother!

Photo by Seán J Crossan (Card design by M&S)

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 [2020] 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 Appeal

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:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020hcjac7.pdf?sfvrsn=0

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/09/down-with-corroboration-i-say/

https://seancrossansscotslaw.com/2020/01/02/presumption-of-innocence/

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2017/04/04/scottish-criminal-appeals/

Copyright Seán J Crossan, 15 February 2020

Doing time …?

Photo by Emiliano Bar on Unsplash

In a previous blog (“Commit the crime, do the time?” published on 4 March 2019), I examined the role of the Scottish Sentencing Council (established as a result of the Criminal Justice and Licensing (Scotland) Act 2010) in relation to the imposition of various sentences on convicted offenders. The Council took up its role from 2015 onwards.

On Monday 12 June 2019, the second most senior judge sitting in Scotland, Lady Dorrian, Lord Justice Clerk, announced that the Scottish Sentencing Council would conducting a public consultation in an attempt “to demystify” the factors by which a criminal court takes into consideration when imposing punishment on the offender.

The consultation exercise will tackle a perception which exists (rightly or wrongly) amongst the public that sentencing can be extremely inconsistent. It will address this problem by highlighting issues which are likely to be considered aggravating factors by a judge and thus lead to the imposition of a longer sentence. Aggravating factors would include whether the crime was premeditated or in situations where a weapon was used. Conversely, it is hoped that the exercise will pinpoint mitigating factors that a judge takes into account when a lighter sentence is passed e.g. genuine remorse shown on the part of the offender or any negative consequences that the offender’s children are likely to suffer.

Readers may wish to take part in the public consultation exercise and can so by clicking on the link below at the Sentencing Council’s website:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/consultation/subpage.2019-05-29.0933048382/

In order to assist the public and other interested parties to complete the survey, the Council has provided a number of documents which can be accessed via the link below:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/

The closing date for participation in this exercise is 6 September 2019.

A link to an article on the BBC website about the exercise can be found below:

https://www.bbc.co.uk/news/uk-scotland-48556439

The Scottish Parliament’s Justice Committee

This week, in a related matter, the Justice Committee at Holyrood (by 7 votes to 2) decided to support plans by the Scottish Government, which if carried, would extend the presumption against short prison sentences.

Currently, in Scotland, there is a presumption against the imposition of prison sentences of less than 6 months and the court will most likely impose an alternative punishment.

Interestingly, on 19 February 2019, Scottish Legal News reported that David Gauke MP, the UK Government’s Justice Minister, had stated that he would introduce legislation in England and Wales in order to follow current, Scottish criminal practice as regards sentencing i.e. a presumption against prison terms of less than 6 months:

https://www.scottishlegal.com/article/england-follows-scotland-s-lead-on-presumption-against-short-sentences

Copyright Seán J Crossan, 13 June 2019

Stalkers beware!

Photo by Jaanus Jagomägi on Unsplash

A few of my recent blogs have discussed the legislative process in the Scottish Parliament and several Bills that are already undergoing scrutiny and debate at Holyrood.

So, when quickly glancing at the Scottish Parliament’s website today, I was very interested to see a proposal for a Member’s Bill which wishes to toughen the law on stalking in Scotland.

The proposed measure (if given the green light) would take the form of a Stalking Protection (Scotland) Bill and it would have a simple rationale:

“… to increase protection for victims of stalking by giving police the power to apply for stalking protection orders on behalf of victims.”

Stalking was made a specific criminal offence as a result of Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, but Rona Mackay MSP, the proposer of the measure clearly believes that the current law needs to be tightened in order to give victims of stalking more protection.

As part of her rationale, Ms Mackay makes reference to England and Wales where the Stalking Protection Act 2019 has been introduced. This legislation gives the a Chief Constable of a Police area south of the border the power to apply to a Magistrates’ Court for a stalking prevention order. Clearly, she is of the view that Scotland should follow suit in order to protect victims of this type of crime more effectively.

A link to the English and Welsh legislation can be found below:

http://www.legislation.gov.uk/ukpga/2019/9/enacted

In a YouTube video, Ms Mackay provides some background to her proposed Bill and invites members of the public to contribute to the consultation by submitting their views by 21 July 2019.

A link to the Consultation document can be found below:

Click to access 20190425_Final_Consultation_document.pdf

Perhaps this is an issue which you feel strongly about and would like to get involved in shaping a new law for Scotland?

You can do this by completing an online survey (link below):

https://www.smartsurvey.co.uk/s/StalkingProtectionBill/

At the moment, there is no Bill – only Ms Mackay’s proposal for one and it remains to be seen whether she will be able to secure the necessary support to take the matter forward i.e. securing the support of 18 MSPs from at least half of the political parties or groups represented in the parliamentary bureau; and provided the Scottish Government does not itself intend to legislate upon the matter.

Copyright Seán J Crossan, 13 June 2019

The Age of Criminal Responsibility

Photo by Nicole Honeywill on Unsplash

In a previous blog (Criminal Responsibility published on 27 February 2019), I commented on the Age of Criminal Responsibility (Scotland) Bill which was then proceeding through the Scottish Parliament. At the time of writing my previous blog, this Bill had completed Stage 2 of the legislative process.

The purpose of the Bill was to raise the age in Scotland when people become responsible for acts or omissions which are deemed to be criminal in nature. Scotland had one of the lowest ages of criminal responsibility in Europe (and the rest of the world). The aim of the Bill was to raise the age of criminal responsibility from 8 years to 12.

The Bill was passed by the Scottish Parliament on 7 May 2019 (completing Stage 3 of the legislative process) and will soon become the Age of Criminal Responsibility (Scotland) Act 2019. So, the age of criminal responsibility is now going to be set at 12 years of age in Scotland.

A link to the Bill as passed by the Scottish Parliament can be found below:

https://www.parliament.scot/S5_Bills/Age%20of%20Criminal%20Responsibility%20(Scotland)%20Bill/SPBill29BS052019.pdf

The Scottish Government has stated that it will review the age of criminal responsibility in 3 years time, with a possible view to raising it.

In evidence given to Equalities and Human Rights Committee of the Scottish Parliament during the passage of the Bill, it was pointed out that the United Nations had been critical of Scotland’s longstanding position on the age of criminal responsibility and had demanded that it should be raised.

Obviously, children can commit dreadful acts – which if committed by an adult would normally be dealt with by the criminal justice system in Scotland. Murders and other awful offences have been committed by children and such situations will still have to be addressed. We only have to think about the murder of the toddler, James Bolger in 1993 in England. The Scottish Government will argue that the new Act has measures in place to deal with such situations. It will be interesting to see how the law develops in this area.

A link to an article on the BBC website which covered the passing of the Act can be found below:

Age of criminal responsibility raised from eight to 12

MSPs unanimously back law which means primary school-aged children will no longer be arrested.

Postscript

Readers can look at a short video on the BBC News website where the Chairman of Scouts Scotland argues that it is not useful in the longer term to stigmatise some children by describing them as criminals:

Scouts chairman: Labelling children criminal ‘impacts life’

Labelling a child a criminals can “impact the rest of their life”, says Scouts Scotland Chair Moray MacDonald.

Copyright Seán J Crossan, 8 and 13 May 2019

Consent?

Photo by Gemma Evans on Unsplash

A recent decision of the Appeal Court of the High Court Justiciary has provided further clarification on the law surrounding the issue of consent in situations where a person is accused of rape.

The decision itself is a classic example of Appeal Court judges interpreting the meaning of statutory provisions.

For many years in Scotland, rape had the following common law definition:

… a man having sexual intercourse with a woman by overcoming her will by force‘.

The above definition was later significantly amended by a majority decision of the Appeal Court of the High Court in Lord Advocate’s Reference No. 1 of 2001 2002 SLT 466. The effect of this ruling was the removal of the reference to force in the common law definition of rape. Thereafter, the presence (or absence) of consent to sexual conduct would be a vital issue for the prosecution’s case.

We have also moved on from the situation whereby the victims of rape are not just female. A reading of Section 1 of the Sexual Offences (Scotland) Act 2009 (the relevant legislation), which defines the crime of rape, makes it quite clear that men and women can be victims of this offence.

Section 12 provides that “consent” means “free agreement”. Section 13 states that free agreement is “absent” in certain circumstances, including where the complainer is “incapable because of the effects of alcohol or any other substance of consenting”.

I shall now turn to the case in question.

In GW v Her Majesty’s Advocate [2019] HCJAC 23 HCA/2018/423/XC, Lords Carloway, Menzies and Turnbull confirmed that a person who is asleep cannot give consent that s/he wishes to engage in sexual relations. Furthermore, their Lordships also ruled that such an individual cannot be deemed to have given prior consent to such a course of behaviour.

This appeal occurred because the partner (‘GW’) of a woman claimed that he had not raped her while she was sleeping. Part of his defence was that he had engaged in this type of conduct on previous occasions in the relationship and the woman had not objected to this behaviour. Furthermore, the partner claimed that such conduct was a continuing feature of their relationship and, therefore, as such it established a pattern of prior consent. In other words, the partner had a reasonable belief that the woman had consented to this type of sexual activity.

As previously discussed, the relevant legislation is the Sexual Offences (Scotland) Act 2009. What does consent actually mean? The judges were unambiguous in reaching their decision: a sleeping person is simply incapable of giving consent and, in such a situation, it is not possible for an accused to construe advance or prior notice of consent.

During their deliberations, the judges looked at the purpose of the Sexual Offences (Scotland) Act 2009 and considered evidence which had been presented to at Stage 2 of the passage of the Bill through the Scottish Parliament.

Lord Carloway, the Lord Justice General, in delivering the opinion of the Appeal Court stressed that the wording of Section 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 2009 (which defines the crime of rape) uses the words ‘consenting’ and ‘consents’. These words are in the present tense and, therefore, a previous course of dealings between the parties is not in itself enough to establish that there is prior or actual consent to sexual relations. Consent exists in the here and now when the act of sexual intercourse is being carried out.

Section 14 of the 2009 Act which specifically addresses the issue of consent while a person is asleep is extremely unambiguous in its meaning. Subsection (2) states:

A person is incapable, while asleep or unconscious, of consenting to any conduct.’

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

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac23.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=f980cdec20-EMAIL_CAMPAIGN_2019_04_29_12_17&utm_medium=email&utm_term=0_07336e1dbf-f980cdec20-66775629

Copyright Seán J Crossan, 2 May 2019

Scottish Criminal Court Statistics

The first quarterly bulletin detailing criminal court activity was published the week beginning 11 March 2019 by the Scottish Courts and Tribunals Services (SCTS).

The SCTS notes that:

“There were 109,881 first instance criminal cases registered in Scottish courts in 2017/18 which is 25% less than the number of cases registered in 2014/15 and 7% less than 2016/17. Most of the reduction in cases registered is attributable to changes in summary crime rather than solemn crime.

A link to a commentary on these official statistics can be found below:

http://www.scotcourts.gov.uk/docs/default-source/aboutscs/reports-and-data/criminal-court-statistics/qcc01/scts-quarterly-criminal-court-statistics—bulletin-q1-2018-19.docx?sfvrsn=2

According to SCTS:

The statistics in this bulletin do not have information relating to accused persons in terms of what they were charged with or their resulting conviction or sentence as there are already wellestablished National Statistics on these aspects of criminal justice. This bulletin does not cover court cases relating to civil business.

See the Scottish Government’s website for statistics relating to criminal or civil justice:

http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice

The SCTS goes on to say:

This is the first bulletin in a new series of quarterly reports on criminal court activity and can be viewed within the ‘Statistics’ section of webpage“:   

http://www.scotcourts.gov.uk/about-the-scottish-court-service/reports-data.

Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:

http://www.scotland-judiciary.org.uk/8/2163/HMA-v-Aaron-Campbell

Copyright Seán J Crossan, 21 March 2019