Criminal Law – 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

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

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

Mr Salmond tholes his assize

**Screen capture by Seán J Crossan from BBC Scotland’s website**

Strange words i.e. uncommon: thole and assize.

Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.

Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).

Enough of history for now …

In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.

This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.

It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:

Not guilty
Not proven
Guilty

Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.

It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.

At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having to prove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.

I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?

Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …

Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.

We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).

It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.

Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.

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

Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.

Alex Salmond cleared of all sexual assault charges

BBC Scotland has also been running a podcast about the Salmond trial (please see link below)

https://www.bbc.co.uk/programmes/p0864016/episodes/downloads

Related Blog articles:

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

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

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

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

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

https://seancrossansscotslaw.com/2019/02/25/the-jury/https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

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

Copyright Seán J Crossan, 23 March 2020

Kaboom!!!

The scenario

You’re a 22 year old man living with your mother in a terraced house in Coventry. You have been diagnosed with Autism Spectrum Disorder since childhood. You have no criminal convictions. So far, completely unremarkable.

You get yourself into serious trouble with the law. You have been purchasing quantities of chemicals online for the purpose of converting these into Hexamethylene Triperoxide Diamine (“HMTD”), which is a high explosive compound and, it should go without saying, very dangerous.

In these days of heightened awareness of terrorism and the threat from these types of activities, your behaviour is not very sensible. It is perfectly understandable that you might be viewed as a serious threat to national security – as well as a more immediate threat to the safety of your neighbours (you have been causing small explosions in your back garden).

Following a search of your home by Police (who are in possession of a warrant), you are charged under Section 4(1) of the Explosive Substances Act 1883 (legislation which also applies in Scotland).

Section 4(1) states as follows:

“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence …”

You claim you’re not a terrorist, but why on earth would someone like you want to manufacture a high explosive compound such as HMTD? The potential consequences for you are severe if convicted: a maximum sentence of life imprisonment.

By the way, it gets worse, because you are also charged under Section 58 of the Terrorism Act 2000 e.g. because you collect or make a record “of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

This is exactly what happened to Chez Copeland, who at one point wished to join the Armed Forces, but due to his disability was prevented from choosing such a career.

Defences?

Let’s go back to Section 4(1) of the Explosives Substances Act 1883 and examine its wording: is there any possible defence for your actions?

Perhaps. The suspect must be able to show that he has the substance in his possession or under his control for a “lawful object”.

So, the key question here is why would this young man want to have explosive materials in his possession? We’re asking a question about his mindset: does he have the necessary mens rea (guilty mind) to commit a crime? We know that the actus reus (the wrongful act) is present, but this is not a strict liability crime – it is essential for the prosecution to establish what was the intention of the accused.

In his defence, the accused provides us with some background. He was hugely influenced by the Oscar winning film The Hurt Locker (directed by Kathryn Bigelow) which is about an American bomb disposal unit operating in Iraq. Ever since seeing the film, the accused has been fascinated about the science behind explosives and bomb making. He indulges in role-playing and develops an obsessive interest in this area.

Far from being involved in terrorist or criminal activities, the behaviour of our accused is firmly grounded in good old fashioned (and honest) scientific enquiry. He is, therefore, following the well trodden path of scientific discovery and experimentation.

Preparatory Hearing at the Crown Court

Sadly, for our accused, a preparatory hearing at Birmingham Crown Court does not bode well. His Honour Judge Mark Wall QC is not minded to permit the defence that the HTMD was in the possession or under the control of the accused for a “lawful object”.

Our accused appeals to the English Court of Appeal (Criminal Division) where his proposed defence is also rejected. The Appeal Court judges (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ), like Judge Wall QC, place huge significance on an earlier precedent – R v Riding [2009] EWCA Crim 892. Let us proceed further …

The Riding precedent

In Riding, the accused had made a pipe bomb because, as he stated in his evidence: “I was curious and just experimenting.” As the Court of Appeal noted in this case:

“The judge ruled that the reason that the defendant gave, that is to say curiosity whether he could construct it or not, was not capable of amounting to a lawful object and he so directed the jury.”

According to the Court of Appeal, this was the correct approach taken by the judge in the Crown Court. The defendant (Riding) was therefore guilty of an offence:

“The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally.”

Appeal to the UK Supreme Court

It would appear, therefore, that Chez Copeland’s prospects of avoiding a conviction and possible prison sentence were pretty bleak – if you follow the logic of the Riding precedent.

There was one chink of light for our accused, Mr Copeland, an appeal to the UK Supreme Court (and leave was duly granted by the Court of Appeal).

Lord Sales (delivering the majority opinion of the Court – Lords Lloyd-Jones and Hamblen dissenting) held that Copeland was permitted to use the defence that his possession or control of the explosive substance was for a “lawful object”.

His Lordship then went on to detail the history of legislation which had regulated the personnel possession of gunpowder (and later explosives) by an individual. Significantly, he noted that:

“In fact, there is a long and well-established tradition of individuals pursuing self- education via private experimentation in a range of fields, including with chemicals and explosives.”

Interestingly, the Explosives Substances Act 1875 (predecessor of the Explosive Substances 1883 Act) acknowledged such legitimate purposes. The 1883 Act had been passed hastily to reassure a British public terrified of the actions of militant Irish Republicans.

The new Act was primarily geared towards the creation of additional criminal offences and, from my interpretation of Lord Sales’ historical summary, it’s hard to infer that the Westminster Parliament was breaking with long established tradition and thus making the mere possession of explosive material a criminal offence. If Parliament had intended this, it would have done so.

The practical regulation of the use and storing of explosives is currently addressed by the Explosives Regulations 2014 and, the Explanatory Memorandum which accompanies these, clearly acknowledge that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use. That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force.

Critically, Lord Sales was of the view that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act. A defendant (such as Chez Copeland) will, therefore, be entitled to present this defence at trial, but of course a jury will have to weigh up the evidence presented and arrive at its own conclusions.

Interestingly, Lord Sales observed that in R v Riding [2009], the Court of Appeal had correctly dismissed the defendant’s appeal on the facts – the defendant (Riding) did not have a lawful object in proceeding to build a pipe bomb. Where the Court of Appeal had fallen into error in Riding, was to approach the remark that “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” as effectively a “proposition of law” rather than treating this as a purely factual statement.

The dissenting view

The two dissenting Justices – Lords Lloyd-Jones and Hamblen – were strongly in agreement with Judge Wall (in the Crown Court) and the Court of Appeal:

“Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. For such experimentation to be capable of being lawful it would be necessary to particularise how it was to be carried out so as to avoid any such risk or how it would otherwise be lawful.”

Their Lordships went on to say:

“We consider that the vague and generalised statements referring to personal experimentation and private education, whether considered individually or taken together, fail to provide sufficient particularity of how these claimed objects were to be carried out lawfully.”

That said, the views of Lords Lloyd-Jones and Hamblen did not prevail and Chez Copeland’s appeal was permitted to proceed.

Conclusion

The Explosive Susbtances Act 1883 and the Explosives Regulations 2014 and, the Explanatory Memorandum clearly acknowledges that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use.

In R v Copeland [2020], the UK Supreme Court has now ruled that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act.

That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force which impose upon them a heavy duty of responsibility to take care for the safety of other people and their property.

A defendant (such as Chez Copeland) will, therefore, be entitled to present the defence in Section 4(1) of the 1883 Act at a trial that explosive substances were in his possession or under his control for a “lawful object”. A jury will, of course, have to weigh up the evidence presented and arrive at its own conclusions on the facts.

Links to the Court of Appeal’s decision in R v Riding [2009] and the UK Supreme Court’s decision in R v Copeland [2020] respectively can be found below:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/892.html

https://www.supremecourt.uk/cases/docs/uksc-2019-0089-judgment.pdf

A link to an article in The Independent about the UK Supreme Court’s decision can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.120320/data/9394451/index.html

Questions

Who is Chez Copeland?
What legislation was he accused of breaching?
What were the specific offences with which Copeland was charged?
Does this legislation apply in Scotland? Explain.
What is mens rea?
What is the actus reus?
What is a strict liability crime?
Was Copeland successfully convicted of any criminal offence?
What defences were available to Copland?
This area of criminal liability is covered by Acts of Parliament, so why did the U.K. Supreme Court get involved in the case?
Does the Copeland decision mean that an individual has the right to make and store explosives with impunity?

Copyright Seán J Crossan, 15 March 2020

Sometimes you have to break the law to change it?

A question I have been pondering quite a lot recently amounts to the following:

‘Is it ever ok or acceptable to break the law in order to change it?’

All sorts of fanatics and the downright criminal will often portray their behaviour as serving a higher purpose when what they mean is that it is entirely self-serving on their part.

The question is extremely contentious (not to say highly subjective), but not as off the wall or leftfield as you might first think.

Why?

Current events that’s why. Pressure groups like Extinction Rebellion, with its programme of environmental activism, are sincerely committed in their beliefs and they have the weight of scientific evidence on their side regarding the threat of climate change. However, it is highly debatable to what extent the public will support their tactics which involve a range of public order offences e.g. blocking major roads and disrupting the transport system. The activists argue that climate change is such an existential threat that any and all means are necessary to give the wider public the necessary wake up call which will swing the pendulum firmly in favour of more sustainable and environmentally friendly approaches to the way in which society is organised.

Taking the law into your own hands?

We have been here before, in fairly recent times, with groups such as the Campaign for Nuclear Disarmament (CND); animal rights activists; and campaigners against GM food taking direct (and often unlawful) action against the objects of their ire.

A case I remember very well where this sort of direct action occurred was Lord Advocate’s Reference Number 1 of 2000 [2001] Scot HC 15 (30th March, 2001).

In this case, three anti-nuclear weapons protesters (part of the Ploughshares movement) were accused of illegal entry to a ship (‘Maytime’) which was anchored on Loch Goil in June 1999. The ship had a support role in relation to Royal Navy submarines carrying Trident missiles.

The protesters faced criminal damage and theft charges in relation to equipment which was on the ship. In their defence, the protesters claimed that their actions were justified because they were attempting to draw attention to the British Government’s continued possession of nuclear weapons – a situation which the protesters argued was a crime under international law. Now, there is some merit to this argument as the American led invasion of Iraq in March 2003 was based on the premise that the then Iraqi regime of Saddam Hussein was in possession of weapons of mass destruction (which were never found and doubtless never existed).

At the trial at Greenock Sheriff Court, Sheriff, Margaret Gimblet, directed the jury to return a not guilty verdict in relation to several of the charges. As for the remainder of the charges, the jury found the protesters not guilty. The Sheriff Gimblet was extensively criticised for the way in she had directed the jury to return not guilty verdicts. It was felt that this judgement would give the green light to other peace protesters to carry out similar acts as part of their ongoing nuclear disarmament campaign.

The Lord Advocate, therefore, felt it necessary to refer the case to the High Court for clarification where it was held that the protesters were not justified in their actions.

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

http://tridentploughshares.org/lar-opinion-of-the-court/

The three Loch Goil anti-nuclear protesters had some recent inspiration for their actions from their colleagues. In January 1996, four protestors (part of the Ploughshares group) had broken into a British Aerospace facility and destroyed the controls of a Hawk Jet which was bound for Indonesia. The Indonesians, at this time, ruled East Timor (now an independent state) and were engaged in a bitter armed struggle with East Timor liberation groups.

The protestors claimed that the jet would almost certainly have been used by the Indonesian military as part of their operations in East Timor. By wrecking the jet’s controls with a sledgehammer, the protestors were committing an act of criminal damage (worth an estimated £1.5 million) undoubtedly, but they had done so in order to save lives. They argued that their actions were justified in terms of the UK Genocide Act 1969 (since repealed).

The four women had deliberately filmed the incident and waited at the scene of the crime to be apprehended. You would be forgiven for thinking open and shut case …

… The jury at Liverpool Crown Court acquitted the four protestors of all charges in July 1996 finding that their actions had been reasonable in terms of the Genocide Act.

A video made by the Ploughshares Group about the incident can be found below:

A link to an article The Independent’s website about the conclusion of the protestors’ trial on can be found below:

https://www.independent.co.uk/news/pounds-15m-hawk-attack-women-freed-1331285.html

History almost repeating itself

Interestingly, almost 21 years later, Sam Walton, a Quaker pacifist was suspected of attempting to disarm a Typhoon fighter jet at a British Aerospace facility which he believed was for the Saudi Arabian Air Force. Walton’s argument was, again, very similar to previous examples of direct action: he was trying to save lives. He argued that there was a high probability that the jet would be used in Saudi military operations in the vicious conflict in the neighbouring country of Yemen.

A link to an article in The Independent about Sam Walton can be found below:

https://www.independent.co.uk/news/uk/home-news/british-quaker-activist-sam-walton-pacifist-disarm-saudi-arabia-fighter-jet-bae-uk-yemen-a7555246.html

Historical perspectives

Breaking the law to change it has a long pedigree and the current debate about the tactics of Extinction Rebellion inspired me to review historical situations where people had broken the prevailing law of the land only later to be held up as champions of freedom and progress.

In the last few days, I finally got around to viewing a German film called 13 Minutes (released a few years ago) which was about an attempt on the life of Adolf Hitler on 8 November 1939 in Munich. No spoilers intended (or needed), but the plot failed.

Hitler left the Munich Beer Hall 13 minutes before a bomb, planted in the building by Georg Elser, detonated. People were killed, but not Hitler and the question has persisted as to what would have happened if the assassination had succeeded?

In my humble opinion, I don’t think it would really have mattered as there were plenty of fanatics within the Nazi regime (e.g. Heinrich Himmler and Reinhard Heydrich) who were more than capable of replacing Hitler and furthering his goals.

I did know that the would be assassin, Elser, had been caught in the aftermath of his failed attempt. What I didn’t know was that Elser survived as a special prisoner in Dachau Concentration Camp until April 1945 when he was murdered (he had, in fact, never been tried by the Nazis). Ironically, he outlived one of his interrogators, SS Police General, Artur Nebe, who was executed in March 1945 for involvement in the Plot to assassinate Hitler in July of the previous year.

Clearly, by the prevailing laws of the Third Reich, Elser was a traitor as he had attempted to kill the then German Head of State. History, however, has been much kinder to Elser and he is now viewed as an anti-Nazi resistance fighter of great courage – not an opportunist as Artur Nebe clearly was.

Chartists and Suffragettes

This led me to think about other situations in the past where people fought for their beliefs by breaking the law e.g. the Chartists in the 19th Century who fought for greater democracy in the UK; and the Suffragettes in the late 19th and early 20th Centuries who campaigned for women to be given the right to vote. Nowadays, the Suffragettes particularly are held up as an example of a group of highly principled and determined people who wanted to overcome a glaring injustice.

It’s often forgotten that the Suffragettes moved quickly from peaceful protests to downright terrorist acts e.g. in 1913, the bombing of a house being built for Lloyd George MP, then Chancellor of the Exchequer (or UK Finance Minister). This was followed by bombs being planted at the Bank of England and in St. Paul’s Cathedral.

According to the historian Lucy Worsley, in 1913 alone, there were 168 arson attempts and bomb attacks carried out by Suffragettes across Britain and Ireland. Worsley estimates that the cost of this damage was £56 million in today’s prices. By February 1914, 1,241 prison sentences had been served by Suffragettes and 165 women who had been on hunger strike had been forcibly fed while in prison (Suffragettes first broadcast on the BBC on 4 June 2018).

Did these acts of violence lead to votes for women? This is very contentious and historians, such as Worsley, point more to the transformative impact of World War I as the real catalyst for social (and legal) change. How so? Very simply, the need to recruit women into areas of the economy which previously had been the almost exclusive preserve of men (who, of course, were away at the Front fighting the War).

Conclusion

So, I suppose the answer to my original question is it ever acceptable to break the law to change it depends on which side of history you end up: whether you’re ultimately a winner or a loser.

It also depends on the methods used to achieve legal change. Figures such as Mahatma Gandhi who worked towards the end of British rule in India are held up as exemplars because they used peaceful methods. Other figures such as Eamon de Valera and Michael Collins of the IRA are still, to this day, regarded as extremely controversial in their pursuit of armed struggle against the British Empire in order to obtain independence for what would eventually become the Republic of Ireland.

In 2016, the centenary of the Easter Rising was marked by the Irish Government in Dublin. The Rising is regarded as one of the corner stones of the modern Irish Republic, but how do you mark or ‘celebrate’ what was undoubtedly a violent event? With great sensitivity is the answer and the Irish Government was widely praised for unveiling a memorial which listed everyone (including Irish Republicans and British Army personnel) who lost their lives as a result of the events of Easter Week 1916.

This image has an empty alt attribute; its file name is 161587273_1462271605.jpg

As for Extinction Rebellion? Well, history will be the judge …

Copyright Seán J Crossan, 11 March 2020

Presumption of innocence?

Photo by Kay on Unsplash

A deeply embedded principle?

Should the accused in a criminal trial enjoy the presumption of innocence?

This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.

Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.

Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.

Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.

Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.

The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.

Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.

The Carlos Ghosn Affair

So, why am I reflecting on this area this dull and rainy second day of the New Year?

The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.

Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.

A link to an article about Mr Ghosn’s escape in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.020120/data/9266461/index.html

A link to a YouTube film about the Affair can be found below:

https://youtu.be/BAxwWW5Ldqo

What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.

The Japanese criminal justice system

Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.

I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.

As Owen Matthews notes:

‘Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]

Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?

I decided to investigate …

… what I discovered was something rather more subtle.

The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).

There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.

Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA [2010] UKSC 43).

Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.

That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.

Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.

Links to articles about the Japanese legal system from the local media can be found below:

https://www.nippon.com/en/japan-topics/c05403/at-the-mercy-of-the-system-criminal-justice-and-capital-punishment-in-japan.html

https://mainichi.jp/english/articles/20190109/p2a/00m/0na/015000c

https://www.japantimes.co.jp/community/2003/12/09/issues/burden-of-proof-impossible-to-bear/#.Xg456i-nyhA

https://www.japantimes.co.jp/news/2019/01/05/national/media-national/international-scrutiny-japans-criminal-justice-system-fair/#.XhUY0S-nyhA

Conclusion

The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.

Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.

Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.

* “An Impeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)

Alexa, there’s been a murder!

Photo by Grant Ritchie on Unsplash

Technology: blessing or curse?

The law has always had to deal with technological advances and these developments are often presented in a way which shows the legal system all too often playing catch up. The chronic problem of identity fraud is a case in point.

What if, however, we look at things from a different angle? Could the law use technology to its advantage?

Alexa, there’s been a murder!

Recently, I was intrigued by a story from the American State of Florida. In November 2019, it was widely reported that the Police in Florida had been able to solve a murder. Nothing particularly unusual about that, but it was the circumstances surrounding the murder which I found striking.

Adam Reechard Crespo was accused of murdering his girlfriend, Silvia Galva when she sustained a knife wound to her chest. Broward County Sheriff Department led the investigation into Ms Galva’s death and Crespo was the prime suspect.

The Sheriff’s Department was particularly anxious to obtain access to Crespo’s Amazon Echo speaker (which is connected to Amazon Alexa). It was believed that the transcripts of the recordings would shed vital evidence on the circumstances of the crime and the relevant search warrants were duly obtained by the officers of the law.

Interestingly, Crespo’s defence lawyers were also keen to have access to the Alexa transcripts in the belief that they might establish his innocence.

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

https://news.sky.com/story/amazon-echo-may-have-been-a-witness-to-a-suspected-murder-11852886

Before we get carried away, it’s useful to remember that forward thinking legal professionals (the police; defence and prosecuting lawyers) have always been keen to use technological advances in support of their work.

Photographic evidence

Some years ago, I was reading an article in The Derry Journal from Northern Ireland which recounted the story of the first murder trial in British legal history where photographic evidence was used. The accused was Father James McFadden, a Roman Catholic priest who was suspected of involvement in a conspiracy to murder William Martin, a Royal Irish Constabulary Inspector, in Gweedore, County Donegal in February 1889 (the locality was still part of the United Kingdom of Great Britain and Ireland).

The murder took place against the backdrop to the so called Donegal Sheep Wars where wealthy landowners were driving their tenants off their estates in order to prioritise sheep farming. In this way, the situation was very similar to what happened in Scotland during the Highland Clearances. Father McFadden was a prominent supporter of the Irish Land League which was a political and social movement which campaigned against the actions of the landowners.

Anyway, back to Father McFadden’s fate: he was eventually acquitted of murder by the Court thanks, in no small part, to photographs which had been taken by the Glasgow born, James Glass (now residing in Derry). The priest’s defence lawyers had approached Glass to take a series of pictures of rural life in County Donegal. Their intention in doing so was to provide context to the case i.e. the harshness of day to day living for many people in that part of the world. Father McFadden eventually agreed to plead guilty to the far lesser charge of obstructing Police officers (for which he served 9 months in total in Derry Gaol).

A link to an article in The Irish News about Father McFadden’s trial can be found below:

http://www.irishnews.com/news/2013/07/08/news/-land-war-pictures-on-show-at-museum-64351/

Fingerprint evidence

Fingerprint evidence was first used in a criminal trial in the United Kingdom in 1902 where it was used to convict Harry Jackson who had been accused of the theft of billiard balls.

That said, in 1858, Sir William Herschel, a senior Magistrate in British ruled India was the first European who had allegedly compiled the first fingerprint register to assist him in his work.

A link to an article about the historical importance of fingerprint evidence can be found below:

https://www.oldpolicecellsmuseum.org.uk/content/learning/educational-programmes-and-tours/first-convictions-uk-based-fingerprint-evidence

The Telegraph system

In 1910, Dr Harvey Hawley Crippen was attempting to flee English justice. The doctor had murdered his wife and had taken passage on the liner, Montrose, which was sailing to Canada.

Crippen was travelling under a false name and had attempted to disguise himself. The Captain of the ship recognised Crippen and his lover (who was disguised as a boy in order to pass herself as the doctor’s ‘son’).

Captain Kendall ordered the ship’s telegraphist to send a message with this intelligence to Scotland Yard. This was fortunate because the ship had not yet left the telegraph range of the British Isles. Had the Captain made the discovery later, the story might have had a very different outcome.

Upon receiving this news, Chief Inspector Dew, who was leading the murder investigation, boarded a faster liner, SS Laurentic, which arrived in Canada before the Montrose. The good Chief Inspector boarded Montrose as it came into the St Lawrence River (he was disguised as a river pilot). The Captain of the Montrose had, by now good reason to believe that the fugitives would be caught. He invited the pair to meet the pilots as they were boarding the vessel. At that point, Chief Inspector Dew revealed his true identity. Dew was able to effect Crippen’s arrest because Canada was, at this time, still a Dominion of the British Empire.

Doctor Crippen was sent back across the Atlantic to England where, following his trial at the Old Bailey, he was executed by hanging at Pentonville Prison.

DNA samples

DNA evidence was first used in 1986 to convict Colin Pitchfork of the rape and murder of two girls (which had occurred 3 years earlier in the Leicestershire area of Narborough). Sir Alec Jeffreys, a genetic scientist, had made the fortuitous breakthrough that DNA could be used to solve crimes as part of his research. Crucially, the test which Jeffreys developed helped to clear the name of an other suspect in the investigation (Richard Buckland).

A link to an article in The Guardian reflecting on the 30th anniversary of this momentous effect of DNA profiling can be found below:

https://www.theguardian.com/uk-news/2016/jun/07/killer-dna-evidence-genetic-profiling-criminal-investigation

The Elaine Doyle Murder Case

The contribution of DNA as corroborative evidence was powerfully brought home to me in a fairly recent Scottish murder trial and appeal before the High Court of Justiciary in which a 30 year old murder was finally solved (see Her Majesty’s Advocate v John Docherty [2014]; and John Docherty v Her Majesty’s Advocate [2016] HCJAC 49 HCA/2014/3517/XC).

I have to confess more than a slight interest in the case: my father was a member of the CID team which worked on it during the mid 1980s.

In 1986, Elaine Doyle aged 16, was found murdered near her home in Greenock. Despite an extensive Police investigation, the murderer was never caught. Hopes of a breakthrough to this unsolved murder seemed to dwindle as the years went by.

Until a breakthrough came unexpectedly (and somewhat sensationally) in 2012 when John Docherty was identified as a suspect.

As Lord Carloway, the Lord Justice General, noted crime scene officers at the time of the murder had collected DNA evidence – the value of which would only become apparent nearly 3 decades later:

‘The principal evidence against the appellant [John Docherty] came, first, from matches between the appellant’s DNA, ultimately obtained in 2012, and cells captured on tape applied to the body of the deceased as it lay in the lane shortly after its discovery.’

As Lord Carloway, the Lord Justice General also remarked in the murderer’s appeal against conviction and sentence (in 2016):

‘The protection of the crime scene in 1986 was not as it would be today. By coincidence, an early part of the investigation at the scene was video recorded, in what was then a pioneering experiment. This was in the days before DNA profiling had captured the imagination of criminal investigators; modern processes only having been developed two years later.’

It was during a review of the tape sample in 2008 (when the extraction of DNA from older samples had greatly improved) that the first steps towards a tentative breakthrough arose. In 2011 and 2012, a review of the index of names held by the Police led to John Docherty being traced. In 1986, a friend of Docherty’s had identified him as a person of interest in a statement to the Police. Regrettably, Docherty was never questioned. When this omission came to light during the cold case review in 2011/12, Docherty was asked to provide a voluntary sample of DNA to the Police – along with the hundreds of other local men who were viewed as potential suspects. Docherty actually provided two samples and these matched the cells captured on the piece of tape taken from the crime scene in 1986.

Docherty was finally brought to justice in June 2014 when, after a 52 day trial at the High Court of Justiciary in Edinburgh, he was convicted of the murder of Elaine Doyle. Sadly, Elaine’s father never lived to see this day.

Although Docherty’s defence team challenged the DNA evidence on the grounds that the 1986 sample could have been contaminated and was therefore unreliable, the jury (by majority verdict) clearly was of the opinion that the Crown’s evidence proved beyond reasonable doubt that he was the murderer.

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

https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2016/[2016]HCJAC49.html&query=(Elaine)+AND+(Doyle)

CCTV footage

Finally, CCTV evidence has been used successfully by the prosecution to obtain convictions. In earlier Blog (Corroboration published on 1 March 2019), I discussed the use of CCTV footage in relation to the appeal of Jacqueline Shuttleton against a conviction for careless driving in terms of the Road Traffic Act 1988 (see Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC).

In the Shuttleton appeal, reference was made to an earlier decision – Gubinas & Radavicius v HMA [2017] SCCR 463.

Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):

“….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.”

Related Blog article:

Corroboration

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

Conclusion

Although technology can often be portrayed as leaving the Police and the legal profession playing catch up, there can be no doubt that when the potential of these developments is appreciated they can be of great assistance to the cause of justice. In particular, advances in photographic and CCTV evidence and DNA and fingerprint samples have undoubtedly been of great service to criminal law – for both the prosecution and the defence.

A civil action

Photo by Mateus Campos Felipe on Unsplash

What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.

In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).

Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.

I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.

Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.

It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.

So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.

In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey [2019] EWHC 3508 (QB)).

It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.

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

https://www.judiciary.uk/wp-content/uploads/2019/12/APPROVED-JUDGMENT-Young-v-Downey-18.12.19.pdf

The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.

In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.

Links to media articles about the two cases can be found below:

https://news.sky.com/story/hyde-park-bombing-ira-member-john-downey-was-responsible-for-1982-attack-11889683

Journalist wins Japan civil rape case

Related Blog Articles:

The public interest?

https://seancrossansscotslaw.com/2019/11/12/the-public-interest/

The burden of proof

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

Private prosecutions

https://seancrossansscotslaw.com/2019/05/29/private-prosecutions/