Smacking: banned!

Photo by Anna Kolosyuk on Unsplash

John Finnie, a Green Party member of the Scottish Parliament introduced a Bill (Children (Equal Protection from Assault) (Scotland) Bill) on 6 September 2018.

This Bill seeks to remove the common law defence of reasonable chastisement in Scotland which permits parents and guardians (primarily) to use smacking as a punishment in relation to children in their care.

The main objective of the Bill was expressed in its accompanying Explanatory Notes:

A person charged with assault of a child will no longer be entitled to claim that a use of physical force was justifiable on the basis that it was physical punishment administered in exercise of a parental right (or a right derived from having care or charge of a child). This will give children the same protection from assault as adults.

This week (beginning 30 September 2019), Mr Fannie’s Bill passed Stage 3 of the legislative process in the Scottish Parliament. The Bill will shortly receive the Royal Assent (a mere formality) thus becoming the Children (Equal Protection from Assault) (Scotland) Act 2019.

An info graphic showing that the Bill has now passed Stage 3 of the legislative process in the Scottish Parliament can be found below:

As a result of the passing of this Bill into law, Scotland will follow 54 other countries from around the world where the physical chastisement of children is now the criminal offence of assault.

A link to how the passing of the Bill was reported by The Guardian can be found below:

Copyright Seán J Crossan, 4 October 2019

Space oddity?

Photo by History in HD on Unsplash

It had to happen at some point: the first allegation of a criminal act in outer space.

The locus: the international space station orbiting Planet Earth.

The suspect: a NASA astronaut.

The alleged offence: the astronaut in question is accused of hacking into her ex-wife’s bank account from the international space station. Good old fashioned fraud or theft in a hi-tech setting. At last reality is catching up with all those fictional crime dramas set in outer space.

Which criminal law has jurisdiction? Good question.

Thankfully, we have a point of reference: Article VIII of the 1967 Outer Space Treaty.

Article VIII states:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

That said, no single State/country or Agency (e.g. NASA or ESA/ASE) controls the international space station. We do have an Inter-governmental Agreement signed in 1998 regulating the space station and Article 22 is particularly relevant (please see the image below):

Under the terms of Article 22, it looks as if the Americans probably have jurisdiction in the matter because one its astronauts is alleged to have committed the crime.

Readers can find a link below to the Inter-governmental Agreement of 1998:

Should we be surprised about this development? No, wherever humans go, crimes will undoubtedly be committed. As space travel, exploration and colonisation become more common in the coming decades, expect more stories about crime in outer space and the need to police it effectively.

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

Copyright Seán J Crossan, 30 August 2019

Copyright Seán J Crossan, 30 August 2019

Once a criminal …

Photo by GRAS GRÜN on Unsplash

… always a criminal?

That’s a very good question. Do we lock people up and throw away the key with all the cost implications for society or do we need new and bolder approaches to deal with this age old problem?

Do we stigmatise or brand people as criminals for life or, as a society, are we serious about rehabilitating members of the community who fall into lives of crime?

Obviously, there is a tension here: we have to balance the interests of victims of crime and giving people who commit crimes the chance to reform. No one is pretending that this will be easy.

In a previous blog (Crime and … kindness? published on 12 March 2019), I commented on a story which reported the visit to Scotland of two American judges who were very keen to promote new approaches to criminal justice in order to cut rates of reoffending.

The two American judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They both 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. The second judge, Judge Pratt, on the other hand, specialises in “procedural justice”.

She explained to BBC Scotland what was meant by the term “procedural justice”:

“… 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.”

In Scotland, the Children’s Hearing our Panel system has been held up as a shining example of an approach taken by the State when dealing with young people who have broken the rules of society. Keep children out of the criminal courts and you may have more of chance of getting them back on track so that enter adulthood as law abiding citizens. Brand them as criminals from a young age and you may well set them on a path from which there is no return.

So, it was with some interest that I read about a novel approach taken by the Police in The English city of Bristol for dealing with young people who had been involved in dealing in drugs in attempt to promote rehabilitation and cut reoffending rates.

In an initiative called the “Call-In-Scheme”, Avon and Somerset Police are 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 will be selected by a panel.

How do you incentivise or encourage people to break patterns of criminal behaviour? Well, offer young offenders free driving lessons, job opportunities and even fitness classes.

The scheme will not apply to individuals who have committed sexual or violent offences or those have relevant, previous convictions for drug offences.

Will it succeed? Watch this space …

A link to the story as reported in The Independent can be found below:

Copyright Seán J Crossan, 30 August 2019

Private prosecutions

Photo by Alexander Andrews on Unsplash

The bookies’ favourite to be the next UK Prime Minister, the Right Honorable Alexander Boris de Pfeffel Johnson MP (or simply ‘Boris’) is to face a private prosecution for misconduct in a public office. 

The misconduct relates to claims (or ‘lies’ depending on your viewpoint) which Mr Johnson allegedly made about the amount of money  the UK would save if it ceased to be a member state of the European Union. These claims were allegedly uttered by Mr Johnson during and immediately after the Brexit referendum campaign in early summer 2016 (apparently somewhere in the region £350 million per week would be saved by UK taxpayers following a successful UK exit from the EU). 

This blog is not really about the ins and outs of Mr Johnson’s current legal difficulties, but it highlights the fact that the concept of a private prosecution is something of a cultural and legal oddity in Scotland.

In Scotland, we take a somewhat rigid view that criminal prosecutions are very much the responsibility of the Crown or the state. It is very rare (and highly unusual) for private prosecutions to be permitted in Scotland. In any event, the High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place. It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused. 

Two fairly recent attempts to raise private prosecutions in Scotland have been rejected out of hand by the High Court of Justiciary (see Bill for Criminal Letters by (1) John and Linda Stewart and (2) Allan and Aileen Convey Against William Payne AND (1) Matthew McQuade and Jaceline McQuade and (2) Yvonne Reilly Against Henry Clarke [2016] HCJAC 122 HCA/16-2/XM HCA/16-3/XM).

A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:

The Glasgow Rape Case

The most famous, partially successful private prosecution in Scotland in  was the affair which became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70). Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

A system of public prosecution

The main characteristic of the Scottish criminal prosecution system is that it is a public prosecution system i.e. completely controlled and supervised by the state authorities i.e. the Crown Office and the Procurator Fiscal Service (COPFS). The following news stories demonstrate quite clearly that it will be COPFS that have the final say as to whether an individual faces prosecution in a Scottish criminal court:

Trump paraglider protester to face no criminal charges

The protester was arrested after an air exclusion zone was breached at Mr Trump’s Ayrshire golf resort.

Nancy Glen sinking: Police investigation dropped

Duncan MacDougall and Przemek Krawczyk died when the fishing boat sank in Loch Fyne in January 2018.

That said, most prosecutions in England and Wales (not to forget about Northern Ireland) will be initiated by the respective Crown Prosecution Services in each of these neighbouring jurisdictions. 

Not all societies throughout history have employed a system of public prosecution to punish wrong-doers who have threatened the safety and security of their fellow citizens. In the Ancient Rome of Julius Caesar, the principles of criminal law were highly developed but their enforcement relied on a system of private prosecution whereby lawyers were commissioned (and petitioned) by interested parties to take on the role of prosecutors. There was no such thing as an office of State Prosecutor.

In one of the most famous examples of a successful private prosecution commissioned in Ancient Rome, Marcus Tullius Cicero, the lawyer, was approached by leading members of several Sicilian communities in 70 BC who wished him to commence a prosecution against the incredibly corrupt Roman Governor of Sicily, Gaius Verres. Undoubtedly, Verres had committed terrible crimes against the people of Sicily (this seemed to be a prerequisite for most Roman officials), but Cicero’s decision to prosecute him in the Roman law courts was not entirely altruistic. Cicero calculated that, if he won the extortion case against Gaius Verres (which he duly did in 69 BC), he would inherit Verres’ patrician status and wealth, not to mention the fame and the hordes of potential clients any victory would almost certainly bring him. Cicero also had his eyes on a political career and coveted one of the supreme offices of the Roman Republic, the Consulship or Chief Magistrate (in fact there were normally two Consuls at any one time). On such private prosecutions were the foundations of successful political careers established and Cicero became a Consul in 63 BC.

Even famous Roman citizens such as Cicero’s contemporary and rival, Julius Caesar were not immune from prosecution in the law courts. Caesar’s many political enemies used the threat of prosecution against him in order to prevent him from participating fully in the political life of Rome. For many years, Caesar was effectively an exile in Gaul (much of modern day France) where he was Governor until, in 49 BC, he crossed the River Rubicon and returned to Rome at the head of his army to seize power.

The point of this history lesson is to demonstrate that systems of private criminal prosecution can be easily manipulated by the desires and designs of individuals or special interest groups in a way that a system wholly controlled by a truly democratic State based on the rule of law (where everyone in theory at least is equal) cannot.

It has been said that the private prosecution against Mr Johnson is an attempt by highly partisan “Remain” supporters to halt Brexit. 

To be sure there will be lots of legal arguments and procedural hurdles to be negotiated by both prosecution and defence lawyers in the Johnson Affair. It will be interesting to see how this case plays out. At a basic level, it provides a useful contrast for students of criminal law in relation to the difference in procedure north and south of the border.  

A link to the story on the Sky News website about the private prosecution of Mr Johnson can be found below:

Boris Johnson to face court over alleged EU referendum misconduct

An interesting article written by John Macauley, the solicitor acting for the victim in the Glasgow Rape Case can be found below:


On Friday 7 June 2019, Lady Justice Rafferty and Mr Justice Supperstone sitting in the English High Court quashed the attempt to bring a private prosecution against Boris Johnson. The matter will go no further.

A link to the story on the BBC News site can be found below:

Brexit: Boris Johnson £350m claim case thrown out by judges

Tory leadership contender denied acting improperly in saying the UK gave the EU £350m a week.

Copyright Seán J Crossan, 30 May & 7 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:

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.


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 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

Where there’s blame, there’s a claim?

Photo by Kevin Grieve on Unsplash

Where there’s blame, there’s a claim? Not if you try to fake an accident there isn’t, as one woman from West Yorkshire has found to her cost.

Trip and slip claims are very common types of delict actions (tort in England), but they have to be genuine if the pursuer (claimant) is to have any chance of success. In Chapter 3 of Introductory Scots Law, I discuss the most common type of delictual claim – negligence – and the fact that the pursuer generally must prove that the defender was at fault.

On 2 April 2019, the BBC reported that Farida Ashraf of West Yorkshire had been successfully convicted in a private prosecution, at Bradford Crown Court, brought by the insurance company, Aviva. Ms Ashraf had submitted a personal injury claim for £3,000 in relation to an alleged accident at a Bradford supermarket. This civil claim had been dismissed because it was basically fraudulent. Aviva then commenced a private prosecution against Ms Ashraf, which resulted in her receiving a 21 month prison sentence (suspended for 2 years).

As a point of comparison between Scotland and England, it’s interesting to note that this was a private prosecution brought by Aviva. Such an action would not have happened in Scotland because the Crown Office and Procurator Fiscal Service decide whether criminal proceedings should have been initiated – not a private party like Aviva. In Scotland, insurance companies can, of course, report their suspicions to the Police that a claim may be fraudulent. The Police can investigate and a report will then be submitted to the Procurator Fiscal.

The private prosecution brought against Ms Ashraf is thought to be one of the first successful types of such actions in England.

A link to the BBC article can be found below:

Woman staged fall at Bradford store to claim payment

Farida Ashraf tripped over a crate placed by accomplices and tried to claim £3,000 for injuries.

Copyright Seán J Crossan, 3 April 2019

The burden of proof

Photo by JJ Jordan on Unsplash

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

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

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

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

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

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

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

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

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

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

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

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

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

A link to the judgement can be found below:

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

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

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

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

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

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


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

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

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

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

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

Copyright Seán J Crossan, 10 February 2019