On 23 April 2019, Monica Lennon, a Member of the Scottish Parliament for the Labour Party introduced the Period Products (Free Provision) (Scotland) Bill (a draft law). There is nothing particularly unusual about this. After all, it is the job of our parliamentarians to make laws on behalf of the people of Scotland.
The purpose of this Bill captured the imagination of many and gained quite a bit of media attention due to its objective: the eradication of one of the sources of poverty endured by many women on low incomes in Scotland. In short, Ms Lennon’s Bill would ensure that women were given free access to period products.
Although the Bill’s objective was universally praised, the Scottish Government expressed doubts about its financial sustainability – and Ms Lennon, after all, is an opposition and backbench member of Parliament. Politics is politics after all.
Now, after some time in the equivalent of the parliamentary doldrums, the Bill has been given a new lease of life having been approved (the main principles of the proposal in any case) by a majority of Ms Lennon’s Holyrood colleagues.
That is not to say that the Bill will be passed as it was originally introduced to Parliament last April. It is more than likely that it will be subject to intense scrutiny by parliamentary committee and a range of amendments will be proposed.
What the shape of any eventual law will look like is anyone’s guess at this stage, but all credit to Ms Lennon who has persisted in pushing forward this important issue and keeping it firmly in the spotlight.
This is nothing new: most Bills will be subject to amendments as they undergo the scrutiny of the legislature. This is part and parcel of parliamentary life; compromises will have to be made in order that a Bill can be placed on the statute books i.e. can move beyond a mere proposal to something more concrete and lasting – an Act of Parliament.
An info graphic showing the current progress of the Bill (now at Stage 2) can be seen below:
Links to articles on the BBC website about the Bill can be found below:
Unlike the fantastic Amy Winehouse track, in the case that I’ll discuss shortly, it was the prisoner who wanted to go to rehab. His perception that the Prison Service had said “no” was the basis of a petition for judicial review.
Yes, we’re barely into 2020 and the human rights’ bandwagon for prisoners rolls on yet again.
Last month, I wrote two Blogs about petitions for judicial review submitted by prisoners to the Court of Session in respect of Article 8 of the European Convention on Human Rights (i.e. the right to family and private life). Both applications were unsuccessful (see William Frederick Ian Beggsv The Scottish Ministers  CSOH 95; and Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers  CSOH 103).
The Scottish Government (or Ministers) are legally obligated in terms of both the Scotland Act 1998 and the Human Rights Act 1998 to ensure that public bodies and agencies comply with the State’s obligations under the European Convention on Human Rights. Regular readers of this Blog site will be very familiar with this state of affairs.
In a recent case before the Lord Ericht in the Court of Session, a third inmate of one of Her Majesty’s penal institutions fared no better than his fellow hoodlums when he raised a claim for damages of £10,000.
In the Petition: Michael Glancy for Judicial Review of the actions of Scottish Ministers , Michael Glancy [the prisoner] claimed that the alleged failure by the Scottish Prison Service to provide him with proper rehabilitation opportunities represented a breach of his right to liberty in terms of Article 5 of the European Convention on Human Rights. In essence, Glancy was arguing that the lack of such opportunities was in effect turning his imprisonment into an ongoing period of arbitrary detention with very little prospect of him meeting Parole Board criteria for his release on licence.
The background to the prisoner’s circumstances were as follows:
“In June 2015, at the High Court in Edinburgh, the petitioner was sentenced to a period of imprisonment of 4 years with an extension period of 2 years. He had been convicted of assault to injury, two charges of assault, a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, section 52 (vandalism), two charges of assault (domestic) and assault to injury, permanent disfigurement and danger of life. The petitioner had had previous convictions …”
At a Parole Board Hearing in 2016, it was noted that:
“Inlight of the current circumstances, behaviour and attitude of Mr Glancy it is not possible to positively recommend his release on licence. It would appear that he is so engaged in extreme, violent and anti-authority type behaviour there is no possibility of his risk being managed in the community subject to licence conditions. There are significant concerns as to how Mr Glancy will be managed in the community, not least where he will live.”
Glancy’s main bone of contention seems to have centred around his belief that he was denied the opportunity to participate in the Self-Change Programme (“SCP”).
As Lord Ericht noted:
“This [SCP] is a high intensity cognitive-behaviour programme that aims to reduce violence in high risk adult male offenders. It is for prisoners with a persistent and persuasive pattern of violence. It is for violent offenders who present the highest risk and is used for the top 2% to 5% of offenders in terms of risk.”
While serving his sentence, Glancy had refused certain opportunities to address his criminal offending and, furthermore, he had been the subject of 13 misconduct reports (overwhelmingly connected with fighting and assault). As Lord Ericht observed [at paragraph 50] it was the repeated failures of Glancy to engage with meaningful offers of rehabilitation during his periods of incarceration that led to his exclusion from SCP.
In dismissing Glancy’s Petition, Lord Ericht made the following observations:
“Moreover I find that the respondents have not failed to provide information about when rehabilitative work might be offered in terms of article 5, or acted irrationally in failing to provide him with this. The minutes of the various case management meetings show that there was extensive discussion with the petitioner throughout the period of his incarceration about the courses available to him. In response to his complaint, the prisoner was informed that the SCP course for non-protection prisoners was not running at that time but he would be notified of the date of the course applicable for his category of prisoner. No date for such a course has since been fixed.”
A link to Lord Ericht’s Opinion in respect of Glancy’s Petition can be found below:
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:
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  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:
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.
* “AnImpeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)
Two days running and we seem to be on a bit of a theme in this Blog about a person’s right to privacy and the limits of such a right.
If you picked up on yesterday’s Blog article (The limits of privacy), you’ll be aware that generally speaking the common law of Scotland (and indeed that of England) does recognise a person’s right to a private life. This right is also protected in terms of Article 8 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998).
That said, privacy is not an absolute right and there may be all sorts of situations where the State (or your employer for that matter) might legitimately take in interest in your activities (whether these happen on the job or are of an extra-curricular nature).
If you’re William Beggs today, you might be feeling rather upset about this. William Beggs, for those of you who don’t know, is currently serving a life sentence for murder in a Scottish Prison. He earned the rather grim moniker, ‘The Limbs in the Loch’ killer because of he dismembered his victim (Barry Wallace).
Well, Mr Beggs – somewhat ironically many would no doubt be quick to pass comment – wished to pursue a legal action in which he alleged that his human rights had been breached by the prison authorities. Specifically, Beggs objected to the practice of the authorities in opening and reading his private correspondence from his doctors and lawyers. In his opinion, the authorities (the Scottish Prison Service and the were in breach of his right to privacy as guaranteed by Article 8 of the European Convention on Human Rights.
There were three incidents between October and November 2018 where Beggs objected to the Scottish Prison Service monitoring his correspondence: two letters with the details of hospital appointments and one letter from his lawyer had been opened. The prison official who opened the letter from Beggs’ lawyer had done so mistakenly and the authorities apologised fully for this action.
Beggs submitted a petition for judicial review of the actions of the Scottish Prison Service (and also that of the Scottish Government as the supervising state authority) to the Court of Session in Edinburgh.
Beggs also brought a claim for damages of £5,000 that he was a victim in terms of Section 6 of the Human Rights Act 1998 and the Section 100(3) of the Scotland Act 1998.
The outcome of Beggs’ petition
Unfortunately, for Beggs the Court of Session (where his application for judicial review was being heard) did not agree.
Yes, there is a general duty in terms of Article 8 for public authorities (the Scottish Prison Service and the Scottish Government to which it is answerable) to guarantee the right to privacy for serving prisoners, but it is not an absolute right.
As Article 8 makes abundantly clear:
“There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Lord Armstrong (in the Outer House of the Court of Session) was very clear, when arriving at his decision to reject Beggs’ petition, that the Scottish Prison Service had very good reasons for monitoring his confidential correspondence. According to rules 55 and 56 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, such actions could be justified in situations where there was:
“reasonable cause to believe that the contents of the correspondence might endanger the security of the prison, endanger the safety of any person, or relate to criminal activity”.
Although the Prison authorities had erred when they opened Beggs’ legal correspondence, they had recognised this situation and promptly apologised to him.
Consequently, Beggs’ claim for damages was also rejected.
A link to Lord Armstrong’s Opinion can be found below:
William Frederick Ian Beggsv The Scottish Ministers  CSOH 95
Not if you’re G4S, the British company, which has been blacklisted by Norway’s Sovereign Wealth Fund. This is the body which has the task of investing the proceeds of the country’s vast oil wealth for the benefit of Norwegian citizens.
The Norwegian Parliament, The Storting, which ultimately oversees the activities of the Sovereign Wealth Fund will not permit investments in companies or projects which fail to comply with the country’s international human rights obligations.
G4S has come under intense scrutiny by the Norwegians due to allegations of human rights abuses by the company in relation to the treatment of migrant workers in the Gulf States. The Sovereign Wealth Fund has decided to divest from G4S on the grounds that further involvement with the company may constitute a “risk” to human rights.
Like the UK, Norway is a signatory to the European Convention on Human Rights. The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.
Norway as a contracting party to the European Convention is in a similar, legal position in the sense that its public bodies or emanations of the State (a category which clearly the Fund falls into) will have to comply with human rights obligations.
It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas 3 ALL ER 897 and Griffin vSouth West Water Services Ltd  IRLR 15) and other private contractors delivering public services.
This is not the first time that I have written about private security companies falling foul foul of human rights laws. In a previous Blog (Private Enterprise or Public Service? published on 1 March 2019), I wrote about the private company, Sodexho falling foul of the Human Rights Act 1998 in relation to the treatment of female prisoners at the privately run Peterborough Prison (see the recent English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice EWHC 367).
A link to the story as reported by Sky News about the Fund’s decision to divest its 2.3% stake in G4S can be found below:
To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.
Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.
Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.
The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).
Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:
“the so-called Holocaust is being used for political and commercial purposes”.
He also stated during the speech:
“Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”
The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.
Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.
Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.
The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.
The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.
If so, it will be interesting to see how the judges respond.
As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.
A photograph of the press release from the ECtHR regarding the Pastörs judgement can be found below:
A link to the actual judgement of the court can be found below:
A few of my recent blogs have discussed the legislative process in the Scottish Parliament and several Bills that are already undergoing scrutiny and debate at Holyrood.
So, when quickly glancing at the Scottish Parliament’s website today, I was very interested to see a proposal for a Member’s Bill which wishes to toughen the law on stalking in Scotland.
The proposed measure (if given the green light) would take the form of a Stalking Protection (Scotland) Bill and it would have a simple rationale:
“… to increase protection for victims of stalking by giving police the power to apply for stalking protection orders on behalf of victims.”
Stalking was made a specific criminal offence as a result of Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, but Rona Mackay MSP, the proposer of the measure clearly believes that the current law needs to be tightened in order to give victims of stalking more protection.
As part of her rationale, Ms Mackay makes reference to England and Wales where the Stalking Protection Act 2019 has been introduced. This legislation gives the a Chief Constable of a Police area south of the border the power to apply to a Magistrates’ Court for a stalking prevention order. Clearly, she is of the view that Scotland should follow suit in order to protect victims of this type of crime more effectively.
A link to the English and Welsh legislation can be found below: