From today (29 November 2019), the age of criminal responsibility in Scotland rises from 8 to 12. This Act of the Scottish Parliament was only passed in May.
Before introducing the original Bill, the Scottish Government had previously carried out a public consultation about raising the age of criminal responsibility. This exercise opened on 18 March 2016 and closed on 17 June 2016.
The Scottish Government heralded the results of the consultation exercise as demonstrating overwhelming support for its proposal (95% of respondents agreed), but only 74 responses were received in total.
True, important organisations which are involved in the criminal justice system (such as Police Scotland, the Faculty of Advocates and the Law Society of Scotland) did respond, but many local authorities did not.
Links to a press release from the Scottish Government about the consultation and the report which resulted from it can be found below:
Historically, Scotland had one of the lowest ages of criminal responsibility in the Western World. The Act now means that Scotland falls more into line with other countries.
Not everyone thinks the Act goes far enough: Bruce Adamson, the Scottish Children’s Commissioner had argued that the reform should go further and that the age of responsibility for criminal behaviour should be raised to 14. Mr Adamson argued that this would bring Scotland into line with the international standard.
Interestingly, this reform means that England and Wales and Northern Ireland now have a lower criminal age of responsibility (10) than Scotland.
Examining the bigger picture, the number of children aged 8-11 who have been referred to the Children’s Reporter for committing an offence in Scotland has fallen dramatically from a high of about 800 (2010/11) to about 200 (2016/2017) as the Scottish Government’s own figures demonstrate (see below).
A link to the new Act of Parliament can be found below:
It is also worth emphasising that the scope of the new Act goes further than merely raising the age of criminal responsibility – as the preamble to the original Bill makes clear:
“[A] Bill for an Act of the Scottish Parliament to raise the age of criminal responsibility to 12 years and to make consequential changes to the law on the disclosure of criminal records and on disclosure of information about individuals working or seeking to work with children or certain adults; on the provision of information by the Principal Reporter to persons adversely affected by the behaviour of children; on the taking of certain children to a place of safety by the police; on the search of certain children by the police; on police interviews with certain children; and on the taking of forensic samples from certain children by the police; and for connected purposes.”
For my latest Blog, I’m sticking with Scotland’s public prosecution system.
The Lord Advocate, James Wolffe QC, has just won an interesting ruling before the Appeal Judges of the High Court of Justiciary.
The case in question is Crown Appeal under Section 74 by Her Majesty’s Advocate v Jason Gilmour  HCJAC 74 HCA/2018/000542/XC.
The reason for the Crown’s appeal was that Mr Gilmour’s victim had subsequently died.
The simple question was this: could the Crown, having accepted Mr Gilmour’s guilty plea to the charge of aggravated assault, then pursue a subsequent prosecution against him for murder?
As Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge) noted:
“The charge of murder alleges that on 11 June 2012 the respondent [Gilmour] assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.”
Before the introduction of the Double Jeopardy (Scotland) Act 2011, it was a clearly established principle of Scottish criminal law that an accused who had assaulted a victim could be charged subsequently with either culpable homicide or homicide if the victim later died due to the injuries sustained by reason of the assault.
The introduction of the Act meant that some clarification of the law was required.
As Lady Dorrian, the Lord Justice Clerk stated in response to the Lord Advocate’s appeal:
“The rationale for this was that the crime of murder was a separate crime and “it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party”- HM Advocate v Stewart (1866) 5 Irv. 301. In Tees v HMA 1994 JC 12 the accused had pled guilty to a charge of assault under deletion of attempted murder, and was re-indicted for culpable homicide when the victim died.“
In delivering the Opinion of the Court, Lady Dorrian succinctly concluded that:
“Whatever may have been the position prior to the introduction of the 2011 Act … that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.“
Section 11 was the key part of the 2011 Act and the intention of the legislation was clearly to permit the possibility of a subsequent prosecution of the accused for murder – even in situations where s/he had previously faced a charge of attempted murder and had been acquitted.
In early 2019, Mr Gilmour’s had been prosecuted for his victim’s murder. He was convicted of culpable homicide and sentenced to a prison sentence of four and a half years. This has now been upheld by the Appeal Court.
We have an independent criminal prosecution service in Scotland headed by the Lord Advocate (a Scottish Government Minister). James Wolffe QC, the current Lord Advocate, has responsibility for the Crown Office and the Procurator Fiscal Service.
Yesterday, the role of the Lord Advocate came under intense media scrutiny as a result of the decision of the Crown Office not to prosecute several Police Scotland officers who had been accused of causing the death of a man who had been taken into custody in 2015.
The deceased was 31 year old Sheku Bayoh, who was arrested by Police officers in the Scottish town of Kirkcaldy. It was later established in a post mortem that Mr Bayoh had consumed drugs (MDNA and Flakka).
On a more sinister level, Mr Bayoh was found to have 23 different physical injuries. The Bayoh family and their solicitor (Aamer Anwar) always maintained that the actions of Police officers had caused the death and that they should face prosecution for their actions.
To the dismay of the Bayoh family, the Lord Advocate has declined to pursue criminal charges against the Police officers as this would not be in the public interest.
Today, Humza Yousaf, the Scottish Government Cabinet Secretary for Justice decided to convene a public inquiry into the circumstances of Mr Bayoh’s death – which may be some small consolation to his still grieving family.
The Bayoh family may also be considering the possibility of a civil action for compensation against the Police officers who they are alleging have responsibility for the death.
This case is a timely reminder that it is the State (or the Crown) which has the ultimate power to determine who will be prosecuted for crimes – not the victim or the family of the victim.
The possibility of the Bayoh family being granted the right to initiate a private prosecution against the Police officers is unlikely. 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  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 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 matter 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 19096 Adam 19).
A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:
I was motivated to write this particular blog entry when I read about an account of the outcome of a criminal case from England.
In that case, a young man (Dale Kelly) was acquitted of the charge of sexually assaulting a young woman while she was asleep. Kelly was able to satisfy the court that he had been sleep-walking at the time of the incident and, therefore, had no control over his actions.
Technically, the jury at York Crown Court returned a verdict of not guilty by reason of insanity.
A link to the story on The Guardian’s website can be found below:
If such a case had occurred in Scotland, we might be talking about the possible application of the special defence of automatism. Automatism is one of six potential special defences that are now deemed to exist in Scots criminal law (the others being alibi; coercion or necessity; incrimination; insanity; and self-defence).
That said, it is not immediately clear that Mr Kelly would have been acquitted had his trial taken place in Scotland.
What is automatism?
Automatism is a condition whereby an individual unconsciously loses control of the body through no fault of his own, for example, due to the involuntary ingestion of mind altering drugs or a condition such as sleep walking or epilepsy. Crucially, the accused did not make a conscious decision to commit a criminal act. It is during the unconscious episode that the accused commits a crime, but does not know what is happening and has little (if any) recollection of this event having taken place.
An example of the successful pleading of the defence of automatism arose in Her Majesty’s Advocate v Ross (1991)SLT 564, 1991 JC 210.
The accused had been drinking in a public house and, while present there, he subjected several of his fellow drinkers to a violent assault with a knife. It later emerged that someone in the public house had placed temazepam and LSD tablets in the lager can from which the accused had been drinking. The combination of temazepam and LSD had caused the accused to suffer an extremely violent reaction and this was the reason for him carrying out the attack on the other customers in the public house. The accused relied on the defence of automatism and was subsequently acquitted because he was able to convince the court that he had lost control of his body. It should, of course, be appreciated that the accused had no knowledge that he had ingested the temazepam and LSD tablets and could not be held responsible for what later happened.
Often the type of automatism found in Her Majesty’s Advocate v Ross (1991) is referred to as external automatism because the reason for the loss of control by the accused is caused by an external factor, for example, ingesting drugs without his knowledge.
Critically, Lord Justice-General Hope made the following remark in Ross:
“I understood [the Solicitor General] to accept that there was evidence that the appellant [Ross] had no control over his actions with the result that they were involuntary.”
Historically, the Scottish courts permitted attempts by an accused to use a defence of internal automatism. Internal automatism is caused by some physical condition from which the accused suffers, for example, epilepsy, diabetes or sleepwalking. It could be argued, however, that the concept of internal automatism was limited by the decision of the High Court of Justiciary in Her Majesty’s Advocate v Cunningham (1963) SLT 345 where the accused failed to convince the court that his epilepsy should be used as a defence to the charge that he had committed a number of road traffic offences. Previously, however, the Scottish courts had recognised the concept of internal automatism as a defence (as in His Majesty’s Advocate v Ritchie (1926)JC 45).
In Cunningham, Lord Justice-General Clyde stated that:
“Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence.”
Admittedly the decision in Cunningham, has been viewed by some as a blatant attempt by the High Court of Justiciary to narrow the range of possible defences available to the accused in Scots criminal law.
Nevertheless, the ramifications of Cunningham seem to suggest that a condition such as parasomnia as experienced by Mr Kelly might not result in an acquittal verdict in Scotland, but rather a lesser sentence being imposed by the court.
As Doctor Claire McDiarmid of the University of Strathclyde’s Law School has noted, a court has accepted the defence of automatism in a situation where the accused suffered from diabetes which caused hypoglycaemia (see MacLeod v Mathieson 1993SCCR 488). That said, the sheriff was at pains to point out that the defence could only be used in such circumstances which related to a first attack of the condition. In other words, if the accused was well aware that a condition from which s/he suffered tended to result in loss of mental and bodily control this might not be easily forgiven or overlooked by a court. In other words, the negative consequences resulting from the medical condition could be not just reasonably foreseeable, but highly probable.
Critically, returning to Ross, the accused’s behaviour had resulted from the actions of other parties i.e. the spiking of the can of lager which was absolutely not his responsibility. The Scottish courts seem more willing to accept the defence of automatism in these types of situation as opposed to an incident such involving Mr Kelly who had a history, from childhood, of parasomnia. This factor might have weighed very heavily on the outcome of the trial had it taken place in Scotland.
A link to Doctor McDiarmid’s paper discussing automatism and special defences generally in Scots criminal law can be found below:
In a previous blog (“Commit the crime, do the time?” published on 4 March 2019), I examined the role of the Scottish Sentencing Council (established as a result of the Criminal Justice and Licensing (Scotland) Act 2010) in relation to the imposition of various sentences on convicted offenders. The Council took up its role from 2015 onwards.
On Monday 12 June 2019, the second most senior judge sitting in Scotland, Lady Dorrian, Lord Justice Clerk, announced that the Scottish Sentencing Council would conducting a public consultation in an attempt “to demystify” the factors by which a criminal court takes into consideration when imposing punishment on the offender.
The consultation exercise will tackle a perception which exists (rightly or wrongly) amongst the public that sentencing can be extremely inconsistent. It will address this problem by highlighting issues which are likely to be considered aggravating factors by a judge and thus lead to the imposition of a longer sentence. Aggravating factors would include whether the crime was premeditated or in situations where a weapon was used. Conversely, it is hoped that the exercise will pinpoint mitigating factors that a judge takes into account when a lighter sentence is passed e.g. genuine remorse shown on the part of the offender or any negative consequences that the offender’s children are likely to suffer.
Readers may wish to take part in the public consultation exercise and can so by clicking on the link below at the Sentencing Council’s website:
This week, in a related matter, the Justice Committee at Holyrood (by 7 votes to 2) decided to support plans by the Scottish Government, which if carried, would extend the presumption against short prison sentences.
Currently, in Scotland, there is a presumption against the imposition of prison sentences of less than 6 months and the court will most likely impose an alternative punishment.
Interestingly, on 19 February 2019, Scottish Legal News reported that David Gauke MP, the UK Government’s Justice Minister, had stated that he would introduce legislation in England and Wales in order to follow current, Scottish criminal practice as regards sentencing i.e. a presumption against prison terms of less than 6 months:
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:
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 would 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 is 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.”
The Bill is quite a short one – a mere 5 sections – but if passed into law it is sure to have a very significant effect.
Section 1 contains the actual provision which would abolish the defence of reasonable chastisement
Section 2 places a duty on the Scottish Ministers to raise awareness and understanding of the proposed legislation
Section 3 contains the transitional and saving provision which is essentially interim arrangements for repealing the previous legislation and gives the Scottish Ministers the power to do anything which would bring the provisions of the new law into force
Section 4 deals with the commencement of the proposed law i.e. the day after it receives Royal Assent
Section 5 contains the short title of the Bill.
The Bill will be debated and scrutinised by other MSPs in the Chamber and in Committee and it is quite possible that amendments or changes will follow. With every Bill, there is also the possibility that it might fall at a particular stage of parliamentary proceedings or, even if passed, could be subject to legal challenge e.g. the Scottish Government’s Children and Young Person’s (Scotland) Act 2014 which the UK Supreme Court found fault with on human rights grounds in 2016 (see The Christian Institute and Others v The Lord Advocate  UKSC 51).
A link to the Scottish Parliament’s website where the Bill (as introduced) and its accompanying or supporting documents (which must be submitted) can be found below:
The Bill must, of course, comply with Scotland’s international human rights obligations as contained in the Scotland and Human Rights Acts (of 1998); and it must be within the “legislative competence” of the Scottish Parliament as per the Scotland Acts of 1998 (which the Presiding Officer, Ken McIntosh MSP has indeed confirmed).
The Bill is also subject to a Financial Memorandum. This can be summed up as a cost analysis to the Scottish Administration:
“The Bill does not create a new offence; rather, it removes the defence of reasonable chastisement for the assault of a child. Thus, once the Bill is in force, some prosecutions may proceed as a result of the Bill which may not have proceeded when the defence was available. The Bill may also lead to additional cases of lower level physical punishment being reported, and prosecuted, which are currently not reported due to the defence being available.
Accordingly, the Bill can be expected to have some impact and costs on the criminal justicesystem.” [author’s emphasis]
Progress so far
The Equalities and Human Rights Committee of the Scottish Parliament gave its unanimous backing to the Bill (as as has the Scottish Government).
In support of his Bill, Mr Finnie has emphasised that 54 countries around the world have removed the right from parents and guardians to use physical chastisement as a method of disciplining children. His contention is that, if the Bill is adopted, it would bring Scotland into line with other developed countries.
In order to become a new Scottish law, the Bill, of course, must pass through all (3) legislative stages of Scottish parliamentary procedure.
The Bill is currently at Stage 1 of proceedings. Please see the diagram below taken from the Scottish Parliament’s website which tracks the current progress of the Bill (as of today – Tuesday 28 May 2019):
In a previous Blog (Private Members’ Bills published on 29 April 2019), I drew attention to the fact that backbench members of the Scottish Parliament have a much greater ability to introduce Bills (and ultimately get them onto the Statute Book) when compared to their counterparts sitting in the House of Commons at Westminster. The term backbench or private member is a description which covers any MP or MSP who is piloting a Bill through Parliament which is not a Government Bill.
A link to an article on Mr Finnie’s Bill can be found below: