Imagining that you have the power to make up criminal offences is a pleasing wee distraction from the relentless misery that is 2020 2021.
Odds are, at some point in your life, you’ve either been asked, “What would you ban if you were in charge?”. Or, you’ve daydreamed about bringing the full might of the state crashing down on petty things that annoy you, like the tyrant you undoubtedly are.
Maybe it’s a phrase you’d criminalise, like “holibobs”, “levelling up” (cheers for ruining RPGs, The Conservative and Unionist Party), or “check out my new podcast”.
Maybe you’d abolish something more tangible, on penalty of Getting The Jail, like those Nationwide adverts with the earnest poetry, or anyone who’s ever referred to themselves as an “influencer”.
Whatever it is, daydreaming about creating new crimes is fun, but it’s also obvious that the vast, vast majority of such new crimes wouldn’t be worth the hassle, for one reason or another (usually due to their egregious breaches of the European Convention on Human Rights, to be fair).
Sadly, it seems that sensible legislating isn’t always compatible with realpolitik. Hence the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill.
As I understand it, the Bill is on the verge of becoming an Act of the Scottish Parliament, thereby becoming law.
The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill has just been passed by the MSPs.
Retail workers (along with everyone else) are already 100% protected by existing and well-understood laws that protect people by criminalising unjustifiably violent, threatening or abusive behaviour.
Compare s2 of the bill (threatening or abusive behaviour towards a retail worker) to s38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour):
It’s effectively a Ctrl-C, Ctrl-V job, except that the new crime doesn’t appear to provide for a defence of “reasonable in the circumstances”, in the way that s38(2) does.
So what’s the point of these “new” crimes?
It’s not to fill a hole in the existing criminal law of Scotland, since I cannot see how someone who commits an offence in terms of s1 of the bill has not also committed either an assault or a s38 offence, for which they can already be prosecuted.
It’s not to increase maximum penalties available to the courts; s1(3) refers to summary conviction, for which the maximum penalties for assault and s38s are already 12 months’ imprisonment or the statutory maximum fine, so there’s no difference there.
My view is that it is performative criminalisation. In other words, making a show of “standing up for retail workers” by creating a new criminal offence that will rarely see the light of day, but makes for a good headline and a nice addition to the CV for those who Ctrl-C and Ctrl-Ved it into life. It is not good lawmaking.
David Allen Green wrote about “The Something Must Be Done Act” back in 2013 (when we were all young and carefree), which I would recommend to you. The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill falls squarely into the category of Something Must Be Done.
I don’t want any of the above to come across like I’m sneering at (a) well-intentioned politicians, or (b) retail workers. The last decade has repeatedly underlined that the world needs more well-intentioned politicians. Retail workers do an incredibly difficult job (particularly so these days), for scant reward, and those who abuse or assault them deserve to be prosecuted with the full force of the law. Reports of a rise in violent incidents against retail workers are both shocking and depressing.
I worked in retail for four years. If I were in charge, I’d introduce some sort of National Retail Service, in which everyone who qualifies would be forced to work in retail for at least six months. If you’ve worked in retail, odds are you’ll treat retail workers with empathy (and get that “the customer is always right” bullshit right in the fucking bin by the way).
My point is that it is unlikely that this forthcoming new law will have any practical effect. When it comes to light that there have been relatively few prosecutions & convictions for this new offence, it may even prove to be counterproductive, if retail workers feel let down by either the Scottish Government or COPFS.
I genuinely hope I am wrong, and that retail workers, armed with a raised awareness of a specific criminal offence designed to protect them from unpleasant behaviour, will be more likely to report potential crimes to the police. I’m genuinely glad that workers’ unions feel emboldened by it.
Thank you! MSPs just voted UNANIMOUSLY for @DJohnsonMSP 's Protection of Workers Bill!
This is a huge victory for our members and frontline retail workers across Scotland. A hugely important step to #protectworkers
Once such cases reach court, though, COPFS will likely stick with the tried-and-tested charges of assault and s38s in the vast majority of cases. Why wouldn’t they? I can’t see them rushing to tack on the prospective s4 aggravation (“by reason of the retail worker’s enforcing a statutory age restriction”) to s1 charges, for a multitude of reasons.
Defence lawyers and Sheriffs will roll their eyes and get on with the job as usual, in the knowledge that they will not have to adjust much in order to deal with any stray charges under this new law. Same actions, same penalties.
I have neither the time nor the energy to embark on a philosophical where-does-this-leave-us musing on the scope of the criminal law. It would be completely valid to point out that the law already provides for specific offences in relation to assaults on police officers and other emergency service workers, so what’s so bad about retail workers joining the club? While we’re at it, why not create specific criminal offences for assaults on (e.g.) teachers, lawyers, roofers and plumbers?
Maybe it’s not a problem at all. Maybe it’s completely legitimate to create new criminal offences just to make people feel better, as opposed to providing any sort of practical protection for society.
From a legal perspective, I just think it’s a waste of everyone’s time. Time that could be better spent on your new podcast.
WordPress stats tell me that site traffic has more than doubled since September, which is (a) cool, and (b) probably due to the unis going back.
With that in mind, I’m happy to take suggestions for new pages if you have any in particular that you’d find useful. For example, I’ve just added pages on carrying offensive weapons and having bladed & pointed articles after getting an email requesting them last week.
I have a list of pages that I will write when I have time (e.g. attempting to pervert the course of justice, drug treatment and testing orders, bail etc), but will happily prioritise any suggestions from readers.
Also, if students are stuck on any Scots criminal law questions, feel free to get in touch and I will help if I can. Please note that I can’t give legal advice, so please don’t ask, sorry!
Almost two years ago, I wrote at length about vigilante gangs of “paedophile hunters” who pose as young children on social media and messaging apps, in an attempt to entice paedophiles into committing criminal offences by engaging in sexual communications and attempting to meet the “child” offline. One of the central questions of that post was whether the actions of such groups could be said to amount to “entrapment” in Scots law.
In that post, I noted that, at the time of writing, there were no reported cases in Scotland that dealt with the legal question of whether private citizens (as opposed to agents of the state, such as police officers) can lawfully do this. There is evidence of significant numbers of prosecutions (and convictions) being obtained via the use of evidence that would not necessarily exist without the intervention of such groups. If their actions were – and are – unlawful, then such evidence would likely not be available to COPFS.
Today, the UK Supreme Court has delivered its judgment in the case of Sutherland v HMA, which is a case that deals with the legality of certain methods employed by online paedophile-hunting groups.
The Supreme Court did not directly consider the question of entrapment (as it had not been a live issue in the case). What it has done is given an authoritative, unanimous statement that the right to private and family life – set out in article 8 of the European Convention on Human Rights – does not, in principle, prevent paedophile-hunting groups from gathering evidence in online sting operations. It also does not, in principle, prevent the state from using said evidence to prosecute the targets of such operations.
The Facts
Paragraph 3 of the judgment sets out the brief factual circumstances giving rise to the case:
An adult member of a paedophile hunter group, acting as a decoy, created a fake profile on the Grindr dating application using a photograph of a boy aged about 13 years old as a lure to attract communications from persons with a sexual interest in children. The appellant entered into communication with the decoy, who stated in the course of exchanges first on Grindr and continued on the WhatsApp messaging platform that he was 13 years old. In the belief that the decoy was a child, the appellant sent him a picture of his erect penis. The appellant also sent him messages to arrange a meeting. When the appellant arrived for the meeting, he was confronted by members of the decoy’s paedophile hunter group who remained with him until the police arrived.
Evidence of the messages was passed to the police, and the appellant was charged with various sexual offences:
attempting to cause an older child (ie a child who has attained the age of 13 years, but has not yet attained the age of 16 years) to look at a sexual image, for the purposes of obtaining sexual gratification (contrary to section 33 of the Sexual Offences (Scotland) Act 2009);
The appellant objected to the use of the evidence provided to the police by the paedophile hunter group, but his objection was unsuccessful. Following his conviction after trial, his appeal to the High Court of Justiciary was refused, but permission was granted to appeal to the Supreme Court in respect of two questions relating to the operation of article 8 of the ECHR.
Respecting Privacy: It must be “capable of respect”
The Supreme Court held that the appellant’s rights under article 8 were not interfered with, either by the actions of the paedophile-hunter group, or by COPFS in prosecuting him using the contentious evidence.
Lord Sales, giving the judgment of the court, makes clear the court’s general disdain for alleged paedophiles who might seek to make article 8 arguments in future:
“…[F]eatures of his private life and his correspondence for which protection is claimed under article 8(1) should be capable of respectwithin the scheme of values which the ECHR exists to protect and promote…[S]tates party to the ECHR have a special responsibility to protect children against sexual exploitation by adults.” [paragraphs 32 & 33]
After a discussion of various European cases that consider article 8, the Supreme Court concluded that the various statutory offences that the appellant had been convicted of must be, in the assessment of the Scottish Parliament (who enacted them), “a necessary element in the fabric of protection afforded to children”. As such, “[I]t is an aspect of the positive obligation of the state under article 8 to ensure that there can be effective enforcement of the law as contained in these provisions”. [both paragraph 39]
In the context of protecting children from abuse by adults, the Supreme Court unanimously concluded that the state’s obligation to protect children’s article 8 rights “outweighed any legitimate interest the appellant could have under article 8(1) to protection for his actions”. [paragraph 43] In other words, there were competing rights in this case, and the aims pursued by paedophile-hunters and COPFS far outweigh any right to privacy that the hunted may claim. The claimed right to privacy in this case was based on an illegitimate premise.
“The appellant had no legitimate interest…to assert or maintain privacy in the communications he sent the decoy. The sending of those communications constituted criminal offences, and the decoy was entitled to provide to the police evidence about them which he had in his knowledge and in his possession. That action by the decoy involved no interference with the appellant’s rights under article 8(1). Once the decoy had provided information to the police, they had in their possession evidence of the commission of criminal offences and the appellant had no legitimate interest under the scheme of the ECHR to prevent the police from acting on that evidence, or to prevent the police from passing it on to [COPFS] with a view to its use in a prosecution of the appellant. Likewise, once the police passed the evidence to [COPFS], the appellant had no legitimate interest under the scheme of the ECHR to prevent [COPFS] from making use of that evidence in criminal proceedings against him. The police and [COPFS], as relevant public authorities, had a responsibility, under the scheme of values in the ECHR, to take effective action to protect children, to the extent that the information provided by the decoy indicated that the appellant represented a risk to them.” [paragraph 50]
No Reasonable Expectation of Privacy
In short, where it is claimed that one’s article 8 right to privacy has been violated, it is usually an important to establish that there was a “reasonable expectation of privacy” in the first place.
For example, if the tabloid press were to publish topless photos of a celebrity, who then claimed that their article 8 rights were infringed as a result, the context would likely be very important. If said celebrity were sunbathing in their private and shielded back garden, and the images were taken via a drone piloted over the walls by a member of the paparazzi, then it could be strongly argued that the celebrity had a reasonable expectation of privacy within their own garden. If, however, the photos were taken as part of a “Page 3”-style photoshoot, then it would be difficult to argue that there could be any reasonable expectation of privacy.
In Sutherland v HMA, the Supreme Court held that online communications between the appellant and the “decoy” posing as a 13 year old did not attract a reasonable expectation of privacy on the part of the appellant, despite the fact that the messages were “private”, in the sense that they were not posts on a public forum or chatroom.
“[T]he appellant’s communications were sent directly to the decoy, a private individual believed by the appellant to be a child of 13. Their contents were not a matter in relation to which the recipient could be thought to owe the appellant any obligation of confidentiality. There was no prior relationship between the appellant and the recipient from which an expectation of privacy might be said to arise between them (contrast the position in Ribalda v Spain, in which the applicants had a reasonable expectation that they would not be subjected to covert video surveillance by their employer; and contrast the position which might arise in relation to intimate letters sent in the course of an established romantic relationship between adults). The appellant’s contact with the decoy came out of the blue and exhortations by the appellant in messages sent to the decoy that he should keep their communications private did not establish a relationship of confidentiality. Furthermore, the appellant believed that he was communicating with a 13-year-old, a child of an age in relation to whom it was foreseeable that he might well share any worrying communications he received with an adult.” [paragraph 56]
Conclusion
So, article 8 does not provide much protection to those who would commit criminal offences by communicating with children (whether real or decoy) online. The Supreme Court has concluded that the appellant’s article 8(1) rights to privacy were not interfered with in the first place, so the appeal effectively fell at the first hurdle.
Even if the appellant’s article 8(1) rights had been interfered with, article 8(2) requires the state to “operate an effective criminal law regime to deter and punish persons who threaten to harm young children…[Therefore] there is no doubt that the use by [COPFS] of the evidence provided by the decoy for the purposes of the prosecution of the appellant under that regime involved no breach of any positive obligation owed to the appellant.” [paragraph 67]
So where does this leave your Wolf Packs, Groom Resisters et al? The Supreme Court’s decision is far more nuanced than “the ends justify the means, lads”, but that’s not a bad principle to take away from the Sutherland case, for the time being. It’s hard to have much sympathy for those who would attempt to groom children for the purpose of abuse; the Court’s judgment certainly provides no ammunition for those who would claim that human rights only exist to “protect paedos” [sic].
However, questions remain. In the absence of a full discussion of entrapment as it relates to non-state agents, and of whether paedophile hunters ought to have prior authorisation as “covert human intelligence sources” under the Regulation of Investigatory Powers (Scotland) Act 2000, we cannot draw too many conclusions about the future viability of COPFS relying on evidence obtained by vigilante paedophile-hunter groups. For now, though, it would appear that COPFS will continue reaping the rewards (and risks) that I have previously written about in respect of these groups.
For the time being, the Sutherland judgment (and its reporting in the press) will inevitably boost the enthusiasm of such groups. On the basis that online paedophiles have no legitimate right to privacy when attempting to groom children, the hunters certainly have not been outlawed yet.
In the dystopian hellscape that is 2020, we have all become accustomed to feelings of despair and frustration on a regular basis. Whether you’re interested in the letter or the spirit of the law (and I would argue that the latter is more important), the restrictions placed on our daily lives by the threat of COVID-19 have necessitated sacrifices from all those determined to abide by them for the greater good.
In recent days, it has become apparent that certain public figures are less inclined to make these sacrifices. As such, it is incredibly important that journalists, given the opportunity to hold such figures to account, are able to do so. Many are very good at it. Some are not, much to my despair and frustration.
In a criminal court context, cross-examination is an opportunity to either undermine unhelpful evidence that your opponent has elicited from a witness, or to elicit helpful evidence from the witness that your opponent has not. It is an art, rather than a science, and a very difficult art to master. I do not claim to be a master of it, but I have been cross-examining witnesses in courts and tribunals for years.
I am also not a journalist, but to me it seems that a couple of our more prominent journalists could do with some brief refresher training in how to ask effective questions when cross-examining politicians. Obviously, there are significant differences between a court and a press conference (if only politicians could be threatened with contempt of court for prevaricating, in the same way that judges can threaten witnesses…), but some of the same principles definitely apply.
Let’s watch this video of ITV’s Robert Peston using his opportunity to ask the Prime Minister a question, in respect of Dominic Cummings’ recent bizarre antics, at the government’s press conference on 24th May 2020:
Here’s a verbatim transcript of what he said:
Hello. Hello Prime Minister…uh, hello Professor Powis, good to see you both. Um, th-the simple agreed facts in this case are that, uh, Bor-uh, that um, excuse me Dominic Cummings, in a prima facie sense breached three – hello? Can you not hear me? Oh sorry, ha ha, it’s all…technology’s working so well – as I say, th-the agreed facts are really simple. Uh, Dominic Cummings, your aide, in a prima facie sense, breached three of the lockdown rules, uh, he left the house when somebody he was living with…uh…had coronavirus symptoms, uh, he was in a confined space with that person, in this case a car, for several…hours. Um, and he went to a second home. I-I just want to be clear Prime Minister: in saying that he behaved honourably, did the right thing, uh, by, uh, you know, uh, trying to put in place childcare arrangements are you saying that if somebody is in the same position as Dominic Cummings and has the same childcare concerns, they are completely at liberty to do precisely what he did: yes, no, not sure, and secondly, um, retail businesses need a bit of time, shops need a bit of time to prepare to open, are they opening on June 1st?
Same, mate.
A complete and utter word salad, delivered in a distractingly varied tone. Annoyingly, there’s a good question in there, but it’s completely buried by the rubbish surrounding it.
Why is this such a bad question?
1. It Is Obviously Not Well-Prepared
I have no idea how much thought beforehand that Robert Peston put into his question(s), but by the looks of the video it can’t have been much. It is incredible that a professional journalist – who presumably had plenty of notice that he would be asking a question at the government briefing – would sound as poorly-prepared as he did. Tripping over words and giving the impression that he was making it up as he went along lends itself to a rambling and unfocused performance.
If you don’t ask your question(s) with conviction, you lose your audience.
2. It’s Two Questions In One
I know that the remote format of this particular press conference means that follow-up questions are hard to come by. Indeed, there are complaints that whoever runs the press conference was muting the journalists as soon as they could, thus denying them the chance to ask further questions.
Unfortunately, Peston and others appear to be dealing with this by trying to ask two, three or four questions at once. This sort of thing isn’t tolerated in court, because it’s likely to be confusing for the witness and makes it harder for everybody to follow the flow of questions and answers. As solicitors and advocates, the mantra “one fact per question” is hammered into us for good reason.
Additionally, the more questions you ask at once, the harder it is for your audience to follow which question (and prospective answer) is actually important to you. In the context of the press conference on the 24th of May, everybody cared about the impact of Dominic Cummings’ actions on government guidance in respect of coronavirus. Relatively speaking, nobody cared about whether shops would all open on June 1st (as if Johnson could answer such a question in the first place). By asking a second question of lesser importance, Peston diminished the importance of his first, more pressing question.
Finally, and crucially, asking more than one question at a time massively increases the risk of ambiguous non-answers. Politicians are particularly fond of these, as the video below explains:
If you know that it’s likely that a politician (or a witness) will try to body-swerve your question, you want your audience to be clear about the question that went unanswered. Members of the public who take an interest in politics are generally intelligent enough to know when a politician is avoiding a question, and that will have an impact on whatever else is said by that politician.
Michael Howard has been haunted by that infamous Paxman interview for decades, because of the impact of his repeated refusal to answer, “Did you threaten to overrule him?” – a short, clear question.
(4:17 onwards)
I appreciate that the format of these press conferences means that it is impossible to ask the same question twelve times, but that only serves to underline how important it is to take your limited opportunity to ask a direct and clear question. If it goes unanswered, people are more likely to notice.
3. The Tone is Wrong
I’m sure Peston was delighted to see the Prime Minister and Professor Powis, but by starting his question by telling them that it was “good to see you both”, it sets the wrong tone for the question itself. The government briefing is a formal event – take it seriously.
Moreover, I love Latin as much as everyone else, but if you’re using it in a question something has gone terribly wrong.
By the way, prima facie is pronounced “pree-ma fack-ee-ay” if I’m being pedantic about it.
4. There’s Too Much Unnecessary Information
By this stage, everyone knew the story already. There was no need for Peston to reiterate “the agreed facts”. Combined with his impression of a lack of preparedness, this only served to bury the eventual question at the end of a load of a full minute of waffle. By that point, everybody’s switched off and the impact of your question is lost.
Here’s an example of how Peston could have asked the same (initial) question:
Prime Minister, if a member of the public has the same childcare concerns as Dominic Cummings, are they at liberty to travel 260 miles to be closer to their family?
I think that’s far more effective. It’s clear, it gets to the point and it’s in an appropriate tone.
So, to recap, I suggest that journalists and lawyers should have the following factors in common when asking effective questions:
Prepare your question(s).
Ask one question at a time (and prioritise accordingly).
Get your tone right.
Get to the point quickly.
Now, let’s watch this video of a member of the public asking a question at today’s press conference:
Good afternoon. Will the government review all penalty fines imposed on families travelling for childcare purposes during lockdown? Thanks.
A lot of the noise in the press and on social media over the past few weeks of “lockdown” has confirmed that we are living in a golden age for curtain twitchers. Spying on your neighbours in silent judgment was always fun, sure, but feeling that you have the moral authority to open your window and scream “IS THAT REALLY SOCIAL DISTANCING” these days really adds a certain je ne sais quoi.
That said, there appears to be a fair amount of confusion over what the emergency legislation actually allows you to do. Is the criminal law an effective tool for enforcing a state of quasi-quarantine, or is this a case in which the authorities hope that the spirit of the law is far more effective than the letter of the law could ever be?
Schedule 19 provides further definition on the exact powers that the Scottish Ministers have in making their regulations. It’s here if you want to read it in detail.
Let’s look at the Regulations to see what the law actually says you can and cannot do. Bear in mind that the starting point is that it is a criminal offence to breach any of the following Regulations.
Duration
The Regulations came into force on 26th March 2020. They are designed to be reviewed on a much more regular basis than the Coronavirus (Scotland) Act 2020 (which is automatically set to expire on 30th September 2020, unless it is extended).
Regulation 2(1) defines the “emergency period” as beginning as soon as the Regulations come into force (so 26th March 2020), and ends in relation to any particular restriction imposed by the Regulations when the Scottish Ministers officially terminate that restriction. In other words, we could conceivably find that the “emergency period” relating to restrictions on our movement as individuals is shorter than the emergency period imposed in respect of mass gatherings, like sporting events.
Regulation 2(2) states that the Scottish Ministers must “review the need for restrictions…at least once every 21 days, with the first review being carried out by 16 April 2020”. The results of that first review were announced yesterday:
As soon as a restriction is deemed no longer necessary to prevent the “incidence or spread of infection in Scotland with coronavirus”, it must be terminated (Arnie-style).
Closing Businesses
Regulation 3(1) provides that, for the duration of the emergency period, those responsible for running businesses that primarily exist to sell food and drink must close premises, or the part of their premises, where food or drink is sold for consumption there and then. In other words, you can sell food and drink on a takeaway basis only.
Restaurants (including dining rooms in hotels and members’ clubs)
Cafes, including workplace canteens
Bars, including hotel and members’ club bars
Pubs
The exceptions are cafes or canteens in hospitals, care homes, schools, prisons, military premises and homeless services. Workplace canteens can also remain operational if “there is no practical alternative for staff at that workplace to obtain food”, and a distance of two metres can reasonably be maintained between people using the canteen.
Regulation 3(4) requires further businesses to be closed. These are defined in Part 2 to Schedule 1 of the Regulations as:
Cinemas
Theatres
Nightclubs
Bingo halls
Concert halls
Museums and galleries
Casinos
Betting shops
Spas
Nail, beauty and hair salons (including barbers)
Massage parlours
Tattoo and piercing parlours
Skating rinks
Fitness studios, gyms, swimming pools, bowling alleys, amusement arcades, soft play centres and other indoor leisure centres and facilities
Funfairs
Playgrounds, sports courts and outdoor gyms
Outdoor markets (except for food stalls)
Car showrooms
Auction houses
The exceptions are that cinemas, theatres, bingo halls, concert halls, museums and galleries can be used “to broadcast a performance to people outside the premises”, so you can still experience the thrill of live bingo, don’t worry.
Additionally, any business premises can be opened in order “to host blood donation sessions”. Any time I’ve gone ice skating it’s turned into a blood donation session pretty quickly, so it sounds like a win-win to me.
“Essential” Businesses
Regulation 4, while allowing certain businesses (you’ll have heard of them referred to as “essential” businesses) to remain open, requires the business operators to “take all reasonable measures” to:
ensure that any persons on the premises maintain a distance of two metres from one another (except between members of the same household, and carer/caree);
admit people in small enough numbers to make it possible to maintain that distance, and;
manage queues outside the business in order to maintain the two metre distance.
Off licenses and licensed alcohol shops (including breweries)
Pharmacies and chemists
Newsagents
Homeware, building supply and hardware stores
Petrol stations
Car repair and MOT services
Bicycle shops
Taxi or vehicle hire businesses
Banks, building societies, credit unions, short-term loan providers and cash points
Post offices
Funeral directors
Laundrettes and dry cleaners
Dentists, opticians, audiology services, chiropody services, chiropractors, osteopaths and other medical services, including mental health services
Vets and pet shops
Agricultural supply shops
Storage and distribution facilities (e.g. Amazon warehouses)
Car parks
Public toilets
All other business premises must close to the public, but remote orders and deliveries can still carry on.
Regulation 4 also specifically closes places of worship (except for funerals, broadcasting acts of worship and for providing essential voluntary services) and businesses that provide accommodation (e.g. hotels) except in specified scenarios (e.g. where a person is unable to return home or is homeless).
Regulation 5(1) bluntly states that, during the emergency period, “no person may leave the place where they are living” unless they have a “defence” under regulation 8 (I’ll come back to that).
The place where someone is living includes any garden, yard, passage, stair, garage, outhouse “or other appurtenance” (I have no idea what that means, but it sounds expensive).
Homeless people are excluded from regulation 5(1), for obvious reasons.
Gatherings
Regulation 6 prohibits gatherings of more than two people in “a public place”. The exceptions are:
where all the persons in the gathering are members of the same household;
where the gathering is essential for work purposes;
to attend a funeral, or;
where reasonably necessary to facilitate a house move, to provide care or assistance to a vulnerable person, to provide emergency assistance, to participate in legal proceedings or to fulfil a legal obligation.
“Public place” is not defined in the Regulations. In road traffic law, it is defined as “a place to which the public may resort by express or implied permission”, but it is hard to say definitively whether certain places are public or private. For example, is a car park attached to a block of flats with “private – residents only” signs posted, but no other impediments in place, a public or a private place? There is case law that supports both sides.
Enforcement
Regulation 7 empowers a police officer (or, in relation to the restrictions on businesses, a local authority officer) to do certain things in order to enforce the Regulations above.
The officer can “take such action as is necessary” to enforce the Regulations. This includes the police being able to direct someone to return home, and using reasonable force (if necessary and proportionate) in order to remove someone to their home.
Regulation 7(9) empowers the police to disperse gatherings of three or more people.
The police can also direct parents to secure their children’s compliance with the restrictions “so far as reasonably necessary” (posted without comment).
In respect of businesses, an officer can issue a “prohibition notice” (a measure under s22 of the Health and Safety At Work Act 1974, directing that a business cease the unsafe act immediately) if they reasonably believe that the business is not complying with a requirement in the Regulations.
Offences
Regulation 8(1) states that a person who contravenes any of the requirements in Regulations 3 to 7 commits an offence. It is also an offence to obstruct a person carrying out a function under the Regulations, and an offence to fail to comply with a direction, “reasonable instruction” or prohibition notice issued under Regulation 7.
Regulation 8(6) provides that anyone charged with an offence in relation to the Regulations is liable, on summary conviction, to the “statutory maximum” fine (£2,500 in the JP Court, £10,000 in the Sheriff Court). In other words: no, you cannot be jailed as a direct consequence of breaching any of the Regulations. It is also worth noting that those figures are maximum possible fines; in practice, you would not expect individuals to be fined anywhere near £2,500, let alone £10,000.
Defences
This is where things get less straightforward. Regulation 8(4) provides that “It is a defence…to show that the person, in the circumstances, had a reasonable excuse.” That’s it.
One of the big problems with using the criminal law to regulate people’s everyday behaviour is that, while it is quite good at telling you what you can’t do, it’s not very good at telling you what you can do.
What constitutes a “reasonable excuse”? Regulation 8(5) provides some examples of what a reasonable excuse “includes”. There are too many to list here, but to give you an idea:
“to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money”
“to take exercise, either alone or with other members of their household”
“to avoid injury, illness or to escape a risk of harm”
It’s worth repeating that these are just examples of what might be a reasonable excuse. It is non-exhaustive.
In fact, I would go as far as to say that, in the majority of cases involving individuals being out and about, the Regulations are nigh-on unenforceable as potential criminal offences.
“Basic necessities” is obviously a matter of interpretation. If I go to the shops for some milk today, am I committing a crime if I pick up a some ice cream while I’m there? What if I have a fussy child who insists on only eating boxes of Cheesy Pasta? What if the mental strain of spending time with my family makes a bottle of gin (or five) very very necessary? If I take the view that as many discounted Easter eggs as I can carry are essential for the “functioning of the household”, who are the police to tell me I’m wrong? Do the police have the legal authority to determine what “non-essential” items are?
“Taking exercise” presumably includes walking from A to B, so proving beyond reasonable doubt that someone’s presence outdoors is not permitted seems extremely difficult. Contrary to popular belief (and confused messaging from police and the UK government), there is no legal limit on one’s “daily allowance” of exercise.
Guidance =/= law
“Getting some fresh air” is, generally, regarded as being a Good Thing for one’s mental health – surely sitting in a park on your own could be construed as avoiding illness? I mentioned the feared spike in domestic violence in Part 1; if someone leaves their home to go for a drive because they are worried that they might put their partner at risk of harm if they stay, is that not a reasonable (if distasteful) excuse?
Until any charges of breaching the Regulations are tested in court, it is very hard to give an actual answer to any of the above questions.
Social Conditioning
I appreciate that I’m being a bit obtuse above, but my point is that, as criminal offences, the Regulations are probably about as good as they can be (i.e. not very). For very good reasons, the government wants to socially condition the public’s behaviour, and the criminal law can be an important part of that.
It is useful to publicise the fact that people have been issued fixed penalty notices (as an alternative to prosecution) for breaching the Regulations. Never mind the fact that none of the purported breaches have been tested in court yet.
It is useful because one of the – quite legitimate – goals of the Regulations is to tacitly encourage the public to regulate each other’s behaviour, without the police needing to get involved. The moral and social impact of creating these new criminal offences is far more important than any new legal powers that they give to police officers.
Remember that pub in Greenock that refused to close after the UK government had “ordered” pubs and restaurants to close? That was back on the 20th of March. Legally, it was perfectly entitled to stay open initially – a fact that the police acknowledged at the time. The Regulations did not come into force until the 26th.
People have apparently sent the owner death threats. Again, what he did was not illegal at the time. I’m not defending the wisdom of the owner’s decision, but it just goes to show that a sense of moral authority is an extremely powerful thing.
There are a million and one examples of how police forces across the UK may have struggled to get to grips with the difference between their moral authority and their legal authority. In England, where the restrictions on movement are almost identical to the above, we have seen police attempting to shame otherwise “socially-distanced” members of the public by filming their apparently “non-essential” activities via drone:
Derbyshire Police have used drones to deter people from breaking the #coronavirus lockdown rules by travelling to remote areas for their daily exercise.
We rightly expect the police to take the lead on advising the public on what the law says. It causes unnecessary tension when the police appear to be confused. By my reading of the English regulations, the “gathering” on Westminster Bridge above is illegal. Arguably, so is this:
…but then again, maybe the social impact of the message is far more important than the letter of the law.
As individuals, we have probably all glanced disdainfully at people out and about in the past few weeks on the basis that we don’t think what they are doing is “essential”; such is the power of social conditioning. There are not enough police officers to monitor millions of people’s actions, so the authorities rely on the public to mutually monitor and regulate each other’s behaviour instead.
The philosopher Michel Foucault (I know, shut up) wrote about the “disciplinary society”, in which “inspection functions ceaselessly” in order to create “a system of intense regulation”. In particular, he was very fond of Jeremy Bentham’s Panopticon – a model for a circular prison in which a central tower can potentially be monitoring any prisoner at any given time, without the prisoner knowing. The theory was that prisoners would regulate their behaviour automatically, regardless of whether they were actually being watched or not. Foucault called this the “unequal gaze”, which led to “the internalisation of disciplinary individuality”.
The Regulations work in the same way. We have been flooded by messages of social distancing and staying at home. We all now know that it is illegal to go out without a reasonable excuse. Regardless of the likelihood that we will never have to worry about being prosecuted for going outside, we now expect our neighbours to be curtain-twitching any time we step outside to take the bins out. We silently judge the content of other people’s shopping baskets, at the same time as we guiltily assess the content of our own.
In that sense, the criminal law can only lend a certain amount of legal authority to the moral authority of the message to stay home. In the context of a pandemic, the latter is far more important.
As we enter what feels like day seven thousand and four of “lockdown”, I hope everyone reading this is doing as well as can be expected, in the circumstances. While everyone else is (according to the broadsheet press) baking sourdough bread, learning Sanskrit or perfecting their Hammond organ technique, I thought it would be as good a time as any to revive crime.scot. I have started adding new pages to the “guide to criminal law” sections of the website, and will keep doing so for the foreseeable future.
By now, the seismic impact of COVID-19 will be apparent to anyone reading this. It has disrupted day to day life in the in a manner that almost few living people can relate to. It has forced the most right-wing UK government for generations to embrace what appears to be economic socialism. And, of course, it has caused thousands upon thousands of deaths, many of which may not be reflected in the official statistics. Those confined to (and working in) care homes and prisons are at an intolerably high risk of infection. In respect of the latter, kudos to @ThePrisonLawyer and others on Twitter for standing up for people who might otherwise be completely voiceless.
From a legal perspective, business as usual in the court system has almost entirely stopped (which is terrific news if you’re on the verge of calling as a self-employed advocate, having earned nothing since last September BUT I DIGRESS). Both civil and criminal cases are being adjourned well into the future, in the hope that life will have returned to some semblance of normality by then.
Notwithstanding that, the criminal courts cannot stop entirely. If they did, there could be no prosecution of “new” cases, which society would obviously not accept. People will still commit serious crimes (indeed, there are well-founded fears of a spike in instances of domestic violence), the police will still arrest them, and COPFS will (mostly) still prosecute them. In that vein, lawyers and court staff still working to keep custody courts running, despite the inherent risks to their health and safety, deserve the same respect and gratitude that we rightly afford to NHS staff.
The Coronavirus (Scotland) Act 2020 came into force on 7th April 2020. It covers certain matters that are devolved to the Scottish Parliament. As my focus on this site is criminal law, I thought it might be useful to have a look at the more interesting provisions of the 2020 Act (“the Act”), and the associated Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the Regulations”), insofar as they relate to crime. Due to the length of the topic, I’ll start with the Act today, and cover the Regulations in a separate post very soon.
So, what does the Act mean for criminal justice in Scotland?
Duration
It is important to note from the outset that both the Act and the Regulations are intended to be temporary. s12(1) of the 2020 Act states that the main provisions of the Act will expire on 30th September 2020. That said, s12(3) immediately allows the time limit to be extended by up to twelve months (so, to September 2021) if the Scottish Ministers direct it. s13 allows the Scottish Ministers to bring forward the expiry date of any provision of the Act.
Attending Criminal Courts
One of the most significant changes to the running of the criminal courts (albeit one that is not specifically provided for in the Act or Regulations) is the consolidation of court business (first appearances from custody and first appearances on an undertaking) into ten Sheriff Courts across the six sheriffdoms of the country. Not good news if you are a defence solicitor based in Oban, since Oban cases are now to be heard in Kilmarnock Sheriff Court, 115 miles away.
Schedule 4, paragraph 2 of the Act suspends the requirement for a person (presumably including accused, witnesses, jurors and lawyers) to “physically attend a court or tribunal” unless the court specifically directs them to attend, which makes sense given what we know about the nature of COVID-19 transmission. The rest of the paragraph allows for such people to appear by “electronic means” (e.g. video link).
This can only be in order to discourage court proceedings, in favour of “getting rid” of cases by offering the accused person the chance to buy their way out of prosecution. By increasing the fiscal fine limit, more types of cases can be dealt with in this way. Most court-imposed fines are below £500, in my experience.
I take no pleasure in saying that this is one provision to keep an eye on, once life goes back to normal. Criminal defence lawyers have long been suspicious of what is perceived as gradual shifts by government towards cheaper and cheaper ways of dealing with crime. Prosecuting someone is relatively expensive, whereas issuing a conditional fixed penalty is not.
The public should be wary of the long-term impact of more and more crimes being dealt with on an administrative basis, without having evidence tested in court. Once a measure is in place, and has been “proven effective”, then it is politically convenient to simply have it become the new normal. You are probably already aware of the Scottish Government’s attempts to temporarily do away with jury trials, and the widespread concerns over the long-term implications of doing so. The public do not necessarily win if criminals are not prosecuted.
Ordinarily, if bail is refused and an accused person is remanded in custody while awaiting trial, the amount of time that they can be held on remand depends on whether it is a solemn or summary case. In summary cases, the trial must start within 40 days of the remand. In solemn cases, an indictment must be served on the accused within 80 days of the remand, a preliminary hearing (or First Diet) must be held within 110 days of the remand, and the trial must start within 140 days of the remand. These limits also apply if an accused person is detained in hospital so that a mental health assessment or treatment order can be carried out.
The Act adds a six month “suspension period” to the above time periods for solemn cases, and a three month “suspension period” for summary cases. In other words, accused people remanded in custody (or detained in hospital) will now be deprived of their liberty for much longer. Bear in mind that the country has only been “in lockdown” for about three weeks. Six months is a very long time when you’re sitting in jail, particularly when you have nowhere to go to escape a potentially deadly virus.
The Act also increases the time limit for commencing proceedings for certain summary cases (e.g. various offences under the Road Traffic Act 1988) from six months to twelve months. It also allows the court to adjourn a case for sentence for as long as it considers appropriate, where it would ordinarily be up to eight weeks “on cause shown”.
Hearsay
(note to self: do a page on hearsay)
This is the “trial by statement” part that you might have heard of. Generally, witnesses need to come to court and give evidence of what they personally saw or heard. Normally, it is not good enough for a prosecutor to hand the judge / jury a copy of a statement that an absent witness gave to the police a long time ago, and say “that’s their evidence”, because that would be hearsay. The Scottish justice system quite rightly places a great deal of weight on the decision-maker being able to see and hear a witness in the witness box.
That said, remember how nobody has to physically attend court unless specifically directed to? Schedule 4, paragraph 11 of the Act provides that the risk of coronavirus (either to the witness’ own health, or the risk that they would transmit it to others) is a good enough reason to allow a written statement to be admitted as hearsay evidence. There are already certain scenarios in which hearsay evidence is admissible (e.g. where the witness has died since giving the statement), so this paragraph just adds a coronavirus-specific reason to the list that already exists.
This is another area in which the public should be vigilant once life returns to normal. A perfectly coherent statement on paper can easily fall apart once a witness is in the box and being cross-examined. Hearsay removes the opportunity for either side (or the judge) to ask questions or test the evidence in any way. In my experience, judges and juries are fairly reluctant to give hearsay evidence much weight when assessing the strength of the Crown case, but I suspect that that is mainly because it is the exception to the standard practice of having a witness speak to their experience, on oath, from the witness box. We should all be wary of attempts to do away with witnesses giving evidence in court, as difficult as it may be at times.
Community Payback Orders
Where a Community Payback Order with an unpaid work (or other activity) requirement has been imposed on a convicted person, Schedule 4, paragraph 12 of the Act extends the time period for completion by a blanket 12 months.
Early release of prisoners?
Schedule 4, paragraph 19 gives the Scottish Ministers the power to release certain prisoners early. I should note immediately that, at the time of writing, this power has not been used, to my knowledge.
Paragraphs 19(3) and (4) specify types of prisoners who would not be eligible for early release, such as life prisoners, “terrorist prisoners”, those on remand and anyone whom the prison governor would pose “an immediate risk of harm to an identified person”.
So far, one prisoner has died from coronavirus. As with any death in custody, this will trigger an automatic Fatal Accident Inquiry in due course. It is in nobody’s interests for prisoners and prison staff (around a quarter of whom are already off sick) to die in prisons, and for Fatal Accident Inquiry after Fatal Accident Inquiry to conclude that prison deaths were avoidable. Clearly, you cannot just open the prison gates, but hopefully appropriate regulations will be in place shortly. Not every prisoner deserves to die behind bars, and no prison staff deserve to be exposed to such a heightened level of risk.
In Part 2 (coming soon): is gin a “basic necessity”? Can you sit on a park bench without fear of arrest? Can you go out just because your children are REALLY annoying you?
In March 2005, Sean Flynn was acquitted of the murder of his mother, Louise Tiffney. Her body had never been found. The jury returned a “not proven” verdict after a 22-day trial. Now, fourteen years later, the Crown are trying to prosecute him for her murder for a second time.
But how can you be prosecuted for the same offence a second time, having been acquitted after trial? Is there a “double jeopardy” rule in Scotland, and – if so – are there any exceptions to it?
Around ten years ago, between the third and final years of my undergraduate degree, I sent a speculative email asking for a work experience placement with the Crown Office and Procurator Fiscal Service. I knew by then that my main area of interest was criminal law, and wanted to boost my CV’s appeal to prospective criminal defence practitioners beyond simply “I work part-time in a bookies, so I have valuable experience of being physically and verbally abused”.
It worked out really well; I spent a lot of time in court “assisting” (by trying to stay out of the professionals’ way as much as I could) and ended up at the High Court watching (unknown to me at the time) a future employer defending a guy accused of attempted murder. It was a memorable case:
Remember, pre-Brexit, when newspapers were occasionally quite good?
By far the best part (definitely better than the visit to the “Deaths Department”, a title that over-promised and under-delivered in the excitement stakes imo) was being shown around the “Productions Warehouse” deep in the bowels of Edinburgh Sheriff Court. This is where physical items of evidence are stored for use in upcoming trials.
You know the bit in The Matrix where Neo says that they’re going to need “Guns; lots of guns” and loads of shelves of guns appear out of nowhere? The productions warehouse was a bit like that, except Neo (me, obvs) was saying “We’re going to need guns; a couple of guns. And knives. And jewellery. And cash. And a baseball bat with nails driven through it. And a unicycle, for some reason.”
Hidden away in a back corner were a few boxes labelled “World’s End”, and the Productions Keeper (like the guy at the end of Raiders of the Lost Ark) explained that it was the evidence from the then-recent “World’s End Murders” trial – Her Majesty’s Advocate v Sinclair. The trial had ended with Angus Sinclair’s acquittal, on the basis of a legal argument of “no case to answer” on 10th September 2007 (so he was acquitted by the judge, rather than the jury).
The fallout from this high-profile trial was significant, both legally and politically. Kenny MacAskill, the Cabinet Secretary for Justice, had referred “the principle of double jeopardy, and whether there should be exceptions to it” to the Scottish Law Commission for their recommendations on whether the law should be changed. The evidence used in the trial was being kept in storage, just in case.
“stick it with the rest of the unicycles”
As of summer 2009, though, there was no way in law for Angus Sinclair’s acquittal to be challenged. Any attempt to prosecute him again for the murders of Christine Eadie and Helen Scott would inevitably be prevented by the argument that a new trial would be res judicata – “a thing that has already been decided”. This was known as the common-law (i.e. not contained in a written piece of legislation) “double jeopardy” rule, although the phrase didn’t have any official status in Scots law at the time. With the exception of the Appeal Court authorising a “new prosecution” following a conviction being quashed on appeal, the Crown were not allowed to have a second go at prosecuting you for the same offence after a case had been decided by a judge or jury.
Significant change was forthcoming, though. The SLC published their detailed “Report on Double Jeopardy” in December 2009, making 36 recommendations. Among these, they recommended that, while “there should continue to be a general rule against double jeopardy”, such a rule should be “reformed and restated in statute”.
Crucially, they also recommended that the Crown should be allowed to retry an acquitted person in certain specific circumstances. These recommendations were, broadly, given effect in the new Double Jeopardy (Scotland) Act 2011. Around the same time, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a “Prosecutor’s right of appeal” against “no case to answer” acquittals. The success of such an appeal would depend on whether the prosecutor could convince the High Court that the acquittal was “wrong in law”. The Rule Against Double Jeopardy
So, when a case ends by acquittal or conviction (including absolute discharge, which isn’t technically a conviction), you cannot be charged with the same offence, an offence arising from the same set of facts (e.g. charging someone with assault by throwing a brick, when they’ve already been acquitted/convicted of culpable and reckless conduct by throwing the brick), or an aggravated form of the original offence (e.g. charging someone with assault to injury and permanent disfigurement by throwing a brick, when they’ve already been convicted/acquitted of a non-aggravated assault).
On that last point, it’s worth noting that section 11 provides a specific exception to this rule relating to aggravations. When A is convicted/acquitted of an offence involving physical injury to B, and B dies after the conviction/acquittal, “apparently from the injury”, then it can be competent to charge A with the murder or culpable homicide of B, or “any other offence of causing B’s death” (e.g. causing death by dangerous driving).
Curiously, s11(1)(c) and (3) allow the Crown to apply to the High Court for permission to prosecute A for murdering (etc) B, when A has already been acquitted of assaulting B. It’s hard to see how A could be guilty of a murderous attack on B when he has already been acquitted of assaulting B in the first place. In these circumstances, the Crown would have to persuade the High Court that a prosecution for murder “is in the interests of justice”. I’m not aware of this provision having been used yet, so it’d be interesting to see how the High Court approach this question, particularly if there’s no new substantive evidence (other than that of B’s death) for the Crown to rely upon.
In a provision that stretches the definition of the idiom “silver lining”, if A is convicted of B’s murder (etc) in accordance with s11(2), s11(5) entitles A to apply to have any earlier conviction for (e.g.) a non-fatal assault to be quashed. Peter Mandelson levels of spin required to sell “Well, you’ve been convicted of murder, but at least you won’t have to worry about that conviction for assault any more, eh” to your client in the cells.
Anyway, back to the proper exceptions to the double jeopardy rule. Sections 2-4 of the 2011 Act deal with these. There are three exceptions given: “tainted acquittals”, “admissions made or becoming known after acquittal” and “new evidence”.
Exceptions to the rule #1: “tainted acquittals”
This can be summarised like this: we can have another go at prosecuting youif you were acquitted because you (or someone else) nobbled the trial process somehow.
Section 2 of the 2011 Act refers repeatedly to “an offence against the course of justice”, which is defined in s2(8) as “perverting, or attempting to pervert, in the course of justice (by whatever means…)”. It specifically includes bribery and inducing (“subornation of”) perjury (e.g. by forcing a witness to lie on oath via threats), but does not include the act of perjury itself. In other words, it is not enough for the Crown to say “The accused lied on oath when giving evidence, and he would not have been acquitted if he had told the truth”.
If there is evidence of judge/jury tampering, then the High Court can set aside the acquittal if it is “unable to conclude that the interference had no effect on the outcome of the proceedings on the original indictment or complaint”, and “in the interests of justice to do so”. It cannot do so if interference with a juror become known to the trial judge in the course of the trial, who then allowed the trial to conclude. This is because the trial judge is trusted to take necessary steps to ensure the integrity of the trial (and therefore, the acquittal).
If the nobbling relates to witness tampering, s2(7) provides that an acquittal can only be set aside if the jury were prevented from hearing evidence “capable of being regarded as credible and reliable”, or heard “false evidence” as a result. Presumably, this would require evidence to be led in the High Court (potentially via a sworn statement – an affidavit – or the witness in question speaking to what happened).
Exceptions to the rule #2 – admissions
For various reasons (guilt / alcohol / idiocy / belief that your best pal can keep a secret, without appreciating that there r 2 many sneks these days hun inbox me xx etc), folk absolutely love confessing to crimes they’ve committed. Section 3 of the 2011 Act deals with “admissions made or becoming known after acquittal”.
If you have been acquitted of an offence, you can be re-prosecuted for the original offence (or a different one arising from the same facts and circumstances as the original offence, or an aggravated version of the original offence) if:
You admit committing the original offence (or a “relevant offence”, which covers the two “or” examples in the above paragraph) at any point after acquittal, or
It comes to light that, before acquittal, you made such an admission
In both scenarios, the High Court has to be satisfied that the case against the person is “strengthened substantially by the admission”, that a reasonable jury would have been “highly likely” to convict as a result, and that it is in the interests of justice to allow a second prosecution.
In the latter scenario, the High Court also has to be satisfied that the Crown did not know (and could not reasonably have found out) about the admission by the time you were originally acquitted.
So, it is a bad idea to respond to the jury’s verdict of not guilty/not proven by jumping up in the dock and shouting “Ha, I did in fact stab the complainer, and you rubes fell for the elaborate tapestry of lies that I weaved for you!” (or equivalent)
In 2016, the Crown attempted to use this section to re-prosecute Francis Auld for the murder of Amanda Duffy, but the application was refused. You can read the decision here – the “admissions” in question begin at paragraph 17.
Exceptions to the rule #3 – “new evidence”
Section 4 of the 2011 Act deals with situations in which the Crown seeks to have an acquittal set aside because of the emergence of “new evidence”.
s4(3) and (7)(b) define “new evidence” as “evidence that the person committed the original offence or a relevant offence…[which] was not available, and could not with the exercise of reasonable diligence have been made available, at the [original] trial”. It is important to note that this does not include evidence that was available at the time, but which was not used during the trial “for tactical or other reasons” [HMA v Sinclair, 2014, see below].
Similar to the admissions exception above, new evidence has to “substantially” strengthen the case against the previously acquitted person, to the point at which a reasonable jury would be “highly likely” to convict them. It also has to be in the interests of justice to allow a second prosecution. Interestingly, s4(5) only allows one “new evidence” application to be made to set aside an acquittal, so the Crown have to be confident that no further significant new evidence will arise in future.
The most famous example of the “new evidence” exception being used is the case of the World’s End Murders. In 2014, the Crown applied to have Angus Sinclair’s acquittal set aside on the basis of new evidence that had come to light as a result of significant developments in forensic science since Sinclair’s 2007 trial.
Spoiler alert: the application was granted. The court was satisfied that the new evidence was “only available because of the new and more sophisticated scientific techniques which have become available since the trial“. Given the seriousness of the charges, and the impact of the new evidence, it was in the interests of justice to set aside the acquittal and authorise a new prosecution.
Angus Sinclair was convicted of murder on 14th November 2014, and, according to the press at the time of writing, is “close to death” in prison. Good thing they kept hold of those boxes in the Productions Warehouse, eh.
Sean Flynn, who I mentioned back at the start of this post, is facing a potential retrial on the basis of new evidence – the discovery of Louise Tiffney’s body, which presumably has led to forensic evidence becoming available.
It remains to be seen whether the Crown will be granted their second attempt at prosecuting him.
One of the unfortunate realities of being a criminal defence lawyer is
that you become intimately acquainted with lots of people’s Objectively Bad sexual predilections. Obviously, you dream of getting a case like this:
The word “trying” is doing a lot of heavy lifting in that opening sentence.
More often than not, though, you’re dealing with charges that allege the depths of human depravity (with frustratingly little potential for good puns, unlike Bike Sex Guy – you can make some wheely good ones about him).
Arguably, the most difficult cases involve allegations of the sexual abuse of children; you see and hear some pretty dreadful things. Cases like that aren’t conducive to blog posts that both inform and entertain, so I’ll defer to Brass Eye’s Paedogeddon! episode from
2001, which is one of the funniest things I’ve ever seen (and I’ve seen an article about a guy trying to have sex with a bike, lads).
In the light of increasingly stretched police forces across the UK, and the constant narrative of SICK BEASTS CAGED for preying on children coming from the press, it’s probably not a great surprise that vigilante groups appear to have taken it upon themselves to proactively “hunt” paedophiles. Posing as children online, they try to bait people into arranging to meet with them for sexual purposes.
You might want to rethink your branding.
Thereafter…it’s slightly less structured. People tend to get quite excited when they believe they’ve successfully “outed” a paedophile.
Clearly, the most troubling thing about the above examples is the choice of the unbelievably naff name “Wolf Pack Hunters”. Sounds like a dating site for furries (speaking of Objectively Bad sexual predilections). Beyond that, what are the legal implications of private citizens setting up “stings” in order to gather evidence that may end up being relied upon in a criminal court?
Entrapment (not the 1999 caper starring Catherine Zeta-Jones)
“Detection by deception is as old as the constable in plain clothes.”
(R v Murphy, 1965 NI 138)
“Entrapment exists only where the crime was committed as a result of instigation or persuasion by the police or other authority, and committed by a person who would not otherwise have been engaging in the activity in question.”
(Renton and Brown on Criminal Procedure, 6th Edition: 9-20.1)
Traditionally, the investigation of crime is for agents of the state – most commonly, the police. An extremely effective way to obtain evidence that somebody is guilty of a criminal offence is to have him/her commit that offence in the presence of a police officer.
Say that the police suspect that a particular flat is being used as a base for drug dealing. “Undercover” officers may go to the flat in disguise and attempt to make a “test purchase” of drugs, in order to satisfy themselves that drugs are indeed being sold by the occupier. The occupier could then be criminally liable on the basis of the undercover officers’ evidence.
Similarly, if the police suspect that an online chat room / instant messaging app is being used to “groom” children for sexual exploitation, officers may pose as children and gather evidence on communications made by unsuspecting chat participants. This may lead to the target actively taking steps to meet the “child”, which tends to end badly for them when they turn up at the pre-arranged location.
The above examples involve the deception of the target as to the police officers’ true identity and reasons for making contact. Fortunately for the state, Scots criminal law gives the police certain powers in this respect.
That said, if their actions cross over into entrapment (think of it as “state-created crime”), then this may well be fatal to the prosecution, on the basis that the police have acted “oppressively”. This should be raised by the defence as early as possible, in what is known as a “plea in bar of trial”.
Given the definition of entrapment from the authoritative “Renton and Brown on Criminal Procedure” above, we know that deceiving the suspect in the course of investigation does notnecessarily amount to entrapment, and therefore is generally permissible in the investigation of crime by the police. This is borne out by various cases on the topic.
Weir v Jessop (1991 SCCR 242)
Police officers went to the accused’s home, having suspected that he was dealing drugs.
One officer rattled the letterbox, while another listened from a concealed position. When a woman answered the door, the officer asked whether the accused was in, telling her “I was told I would get some hash”. When she asked who had sent him, the officer lied and said that the accused’s brother had sent him. The woman then called the accused, who sold the officer some cannabis resin, which was paid for with a marked note.
The accused’s home was later searched by police (with the authority of a search warrant), and the marked note was recovered from him.
The accused was convicted of supplying cannabis resin to the police officer, despite objecting to the evidence arising from the interaction at the front door.
His appeal against conviction was refused.
Lord Morison: “…the crime was not one which resulted from any undue pressure or persuasion on the part of the policeman. It was a purely voluntary act on the part of the appellant. The appellant was not tricked into doing something which he would not ordinarily do.”
This is an English case, but was quoted with approval in the Scottish case of Jones & Doyle v HMA (see below).
Lord Nicholls: “a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime.”
This is a really interesting case, if only because it involves an art heist. It is known as “the Da Vinci Extortion Case”; the details are too complex to summarise here, but have a read of the press coverage from the time that I’ve linked to.
Lord Carloway: “What the Court is looking to see…is simply whether or not an unfair trick was played upon the particular accused whereby he was deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed. That is essentially the only test.”
So, hopefully you have an idea of what the police are entitled to do when it comes to ensnaring would-be criminals. For an example of when this boundary is crossed, have a read of HMA v IP (2017 HCJAC 56), which is much briefer than the three cases I’ve listed above. It deals with a police operation to detect paedophiles online, so it’s relevant for present purposes too.
R v TL: Can Private Citizens Entrap Each Other?
So far, you’ll have noticed that I’ve been talking about entrapment as it relates to the police. The reason for this is that , traditionally, entrapment as a plea in bar of trial is based in the chin-stroking philosophy that, as the state is responsible for the investigation and prosecution of crime, it should not be allowed to rely on evidence that was sourced due to its own misuse of power. But what about when a private citizen uses deception in order to go fishing for sweet, sweet evidence?
There are no reported cases in Scotland (that I know of) that deal with “entrapment” by private citizens. We may see one or two in the relatively near future, thanks to the wacky antics of our pals in the Wolf Pack, but who knows?
That said, we can look to a very recent case from the English Court of Appeal – R v TL – that may provide some persuasive (albeit not binding) guidance on the matter. As with the Loosely case above, the Scottish courts are prepared to take English decisions on board when coming to their own view on matters.
TL joined a SayHi Chat session using an app on his phone. His profile said “me and my female partner wanting a girl that’s willing to try a new experience”, and indicated that the girl in question should be 18-29 years old.
“Mr U”, a member of the “Predator Hunters” group, started chatting to TL. This group was not acting as part of, or on behalf of, the police.
Mr U’s profile was set up in the name of “Bexie”, and said “Hiya am just your average 14-year-old girl looking to meet new friends”.
TL’s account made contact with “Bexie”, and asked her whether she wanted sex as part of a threesome. A conversation of a sexual nature took place, during which “Bexie” reiterated that she was 14. TL and “Bexie” made arrangements for her to come over to TL’s house.
Later, members of the Predator Hunters group came to TL’s house, along with the police. He was charged with attempting to meet a child, following sexual grooming. The evidence came from the content of TL’s phone.
The judge in the initial proceedings “stayed the case” (effectively, ended the prosecution) on the basis that TL was the victim of entrapment. His view was, “There is nothing to stop such a group gathering material and handing it to the police. It may form the basis of an intelligence led police operation, it may add to the body of evidence obtained by the police. However, in my judgment, if the purpose of the exercise is to behave like an internet police force, and to behave in a proactive way, in order to obtain evidence on which to mount a prosecution, it seems to me the common law principle against entrapment should apply to this private citizens’ operation, in the same manner as it would apply to a police operation.”
The CPS appealed against this. The appeal was successful.
The English Court of Appeal held that Mr U’s actions would not have been improper, had they been carried out by a police officer on the basis of suspicion that the SayHi Chat app (not necessarily TL himself) was being used to groom children.
While “a precise comparison may be difficult” due to the lack of oversight/codes of practice, we can apply the same test for entrapment to private individuals and agents of the state.
In the circumstances, Mr U’s conduct did not render the proceedings against TL to be fundamentally unfair.
For more detailed summaries of the TL case, see here and here.
So, good news if you fancy yourself as a vigilante in Scotland, right?
He looks delighted!
Well, maybe. To reiterate, R v TL is an English case, so it doesn’t necessarily have any bearing on Scottish cases in future. We’ll have to wait and see what happens if (and I think it’s only a matter of time) a case comes before the Scottish courts alleging entrapment on the part of untrained but enthusiastic amateurs.
In the meantime, we can be pretty sure that non-state agents investigating crimes (and not in a cool Miss Marple way) carries a unique set of risks. Let’s look at some.
“I dunno…Coastguard?”
Evidence gathered by vigilante groups can be – and is – passed on to the police and COPFS, who rely on it to secure convictions. Obviously, it is a good thing that those who would groom and abuse children are brought to justice.
However, there are clear reasons why prosecutors and police have gone on record to express their concern about citizens “taking the law into their own hands”.
One of the more obvious reasons is that “we were confronting a paedo, m’lord” isn’t a valid defence to charges of assault / breaching the peace / threatening or abusive behaviour / mobbing and rioting (etc). If you’re part of a group that goes to someone’s home address with the intention of intimidating and humiliating them publicly (no matter what they’ve done), in the knowledge that your actions will put innocent people (family, neighbours etc) at risk of harm, you can’t be surprised if you end up in the dock yourself.
That aside, while we know about the successful convictions, there appear to be plenty of cases in which the targeted person hasn’t even ended up being prosecuted, let alone convicted of anything.
115 people confronted, “at least 66” prosecutions. There may be more, but let’s go with that number. That potentially leaves 49 cases in which someone has been “confronted” by vigilantes, and then not prosecuted. Why?
It could be because the police/COPFS, upon reviewing the evidence received from these groups, have decided that they don’t want to take the risk of trying to rely on unfairly-obtained evidence. That potentially leads to acquittals, or – worse – authoritative Appeal Court judgments that tighten the reins on what the police/COPFS are allowed to do when passed evidence by these groups.
It could be because the vigilantes got the wrong person.
It could be because the targeted person, upon being confronted, decided that the best course of action would be to destroy their phone/computer in the window before the cops turn up to seize it, thus depriving the police/COPFS of crucial evidence. No evidence = no conviction.
It could be because this might have happened:
The peedo hunters caught a guy and when they done their live feed on him they put a filter on it by accident 😂😂😂😂 a canny move pic.twitter.com/Cm1Fk9zivF
I don’t know whether the groups in question have considered the above risks. Maybe they have, and have taken the view that they don’t care about what the police or courts do – a conviction is a bonus, but not the goal. They may well take the view that live-streaming an angry mob confronting somebody in public is a better form of “justice” than any protective measure that a court could impose as part of a sentence.
All I’ll say is: Paedogeddon! was meant to be satire, not a documentary.
Here is a sample of the comments, which I would say is representative of the comments you tend to get on reports like these.
Murder is obviously an awful crime, and people are quite right to be upset and angry with the person convicted. I’m not suggesting for a second that people wanting murderers to be locked up forever are being silly. However, I do think that comments like these underline the importance of a dispassionate and evidence-based legal approach to dealing with people convicted of murder.
I thought that a post explaining the concept of “life imprisonment” might be useful for those who aren’t familiar with how it works in practice. It might persuade someone that life imprisonment is something that should be taken seriously – who knows?
A Modest History of Life and Death in Scotland
As you probably know, capital punishment was A Thing in Scotland until the mid 20th Century. To illustrate this, have a look at this Herald article on hangings in Glasgow, which includes an objectively excellent picture of an old boy pointing at a trapdoor in Duke Street “Pirson”.
“Look – there it is, lads”
It’s also worth having a quick read of the Hauf-Hangit Maggie story, which has to be one of the finest examples of the legal technicality in history.
Eventually, the Murder (Abolition of Death Penalty) Act 1965 came along and did what it said on the tin:
So, when somebody is convicted of murder, the court has to impose a sentence of life imprisonment. “Discretionary” life sentences are also available for other offences (e.g. rape).
Over the years, the law in Scotland (as well as in England & Wales) has evolved to the point at which it is accepted that those sentenced to life imprisonment have the right to have their continued imprisonment reviewed after a certain point. The basis for this comes from the following 1990 case:
Article 5(4) of the European Convention on Human Rights states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Thynne, Wilson and Gunnell had each been given discretionary life sentences in England for violent sexual offences.
They argued that the concept of life imprisonment without possibility of review breached their rights under Article 5(4).
The court in Strasbourg decided, by 18 votes to 1, that their rights were indeed being breached by not allowing possibility of review. Life sentences should be regarded as having two parts – a “punishment” part (aimed at the offender) and a “security” part (aimed at protecting the public).
The prisoner should be allowed to apply to have their continued imprisonment reviewed once they had served the punishment part of their sentence.
If you think that this is outrageous / another example of Human Rights Gone Mad / Brexit Means Brexit etc, take some comfort in the knowledge that, if human rights can apply to Bad People, that means that they definitely also apply to you, a Good Person! Terrific!
The Law on Life
The Prisoners and Criminal Proceedings (Scotland) Act 1993 was enacted as a reaction to the Thynne case, and it’s the relevant piece of legislation when considering the treatment of life prisoners in Scotland today. I’ve tried to highlight the pertinent bits of this word salad for current purposes:
Long story short: when sentencing you for murder, the High Court judge has to impose a sentence of life imprisonment, while simultaneously specifying a period of time as the punishment part of that sentence. In other words, this is the period of time (i.e. many years) that you have to spend behind bars, without any prospect of getting out. No early release, no “time off for good behaviour”, nothing.
Only after the punishment part has expired, you can apply to the Parole Board for Scotland (PBS) for release. They have a decent FAQ page on their website here.
The PBS will consider evidence from a variety of sources in order to decide whether the risk you present to the public can be managed or not. I’ve dealt with Parole Dossiers – they tend to run to hundreds and hundreds of pages, so we can assume that there’s little chance of leaving stones unturned.
“The Parole Board must look at wider issues than the offender’s behaviour in custody. The Board has regard to a wide range of information when considering the case from a variety of sources. The prisoner’s criminal record, his/her family background, what counselling/courses he/she has undertaken while in custody in order to address the causes of offending, the response to such counselling and the prisoner’s plans for release are all important.”
(from the Parole Board for Scotland’s FAQ)
If they decide that you are not ready to be released, you will stay in prison. You can only apply to the PBS once every two years. There is no guarantee that the Parole Board will ever agree to release you. It is quite possible that you will die in prison.
The length of the punishment part of your sentence has nothing to do with your prospects of release by the PBS. In other words, it’s quite possible to envisage a scenario in which an individual is sentenced to life imprisonment for murder, wins an appeal against the length of the punishment part of their sentence (with all of the tabloid outrage that entails), and then ends up dying in prison long after the expiry of the reduced punishment part. It’s like raaaaeeeeaaaain on your wedding day (etc).
Just to hammer home this point again: the punishment part is the minimum period of time that you have to spend in prison. More often than not, you will be in prison significantly longer than that.
Post-Parole
Even if the PBS decides to release you, the sentence of life imprisonment never goes away.
You will be released “on life licence”. This means that you have to obey strict conditions, such as undertaking counselling, reporting to a supervising officer, living in a specific place or reporting any change in your circumstances (e.g. taking up employment). You will be kept on as short a leash as the authorities deem appropriate.
These conditions can change over time, but you will never be entirely free of them. There are serious consequences for breaching them, or for committing another criminal offence (etc). If the PBS recommends it, or the Scottish Ministers think it is “expedient in the public interest”, your licence can be “revoked” at any time, and you’ll be taken back to prison to continue serving your sentence of life imprisonment. This is set out in section 17 of the 1993 Act.
To give you an idea of the sort of mental strain involved with being on licence, I worked as a Legal Adviser in the Justice of the Peace Court for a few months just after qualifying as a solicitor. One day, we had what appeared to be a completely run-of-the-mill speeding case (36mph in a 30mph zone) – 3 penalty points, £100 fine, everybody’s happy (not really, but you know what I mean). Unusually, the accused had turned up. He pled guilty, and immediately burst into tears. I had no idea what was going on, until the accused explained that he was on life licence for murder, and he was terrified that this daft wee speeding conviction could directly lead to him dying in prison. Whatever your views on rehabilitation or sympathy for those convicted of terrible crimes, you have to admit that it’s a hell of a burden to carry around.
That’s a relatively brief guide to how life sentencing works in Scotland. If you’re an advocate for the death penalty (despite the evidence suggesting that it’s immoral, extremely expensive and an ineffective deterrent), or believe that we should be imprisoning more people for longer periods of time in worse conditions (in which case I’d recommend that you have a look at the Howard League’s publications), then you may not have changed your views, which is fine. As long as you know that “life” does actually mean life.
The law is a big field in which to work, and we (solicitors) all have our reasons for finding our particular niches.
Some are drawn to the riches of “Magic Circle” firms in London, where long hours of tedious work pays newly-qualified lawyers the best part of £100,000 a year, which they presumably regard as a fair trade for their youth and optimism. Others want to fight injustice in the forums of immigration, asylum and employment tribunals, or help resolve bitter family disputes in a way that protects the interests of innocent children.
I just wanted to defend people charged with chucking their jizz around supermarket car parks. Unfortunately, I have yet to have this privilege. A lucky colleague, however…
Obviously, it’s a disgusting crime, which would no doubt be extremely distressing for the victim. The Daily Record reporter’s feelings are clear, insofar as he has used the phrase “revolting pervert” on more than one occasion. He appears to have let tabloid standards slip, though, in that nobody gets slammed or rapped in the course of the article, which is a shame.
There are a few legal points that are worth making, in the context of this story.
Statutory Charge, Common Law Conviction
Mr Reid (the “revolting pervert” in question) appears to have been charged with the specific statutory offence of Sexual Assault by intentionally or recklessly ejaculating semen onto someone without their consent (and without reasonable belief that they were consenting). This is found at section 3(2)(d) of the Sexual Offences (Scotland) Act 2009.
Not sure whether I’m relieved or disturbed that there’s a specific offence for this sort of thing. I’ll try to cover it in more detail when I get round to doing the section on sexual offences.
If you’ve read the story above, you’ll have noticed that Mr Reid was not, in fact, convicted of the offence he was charged with. He was convicted of assault, as opposed to the specific statutory offence of sexual assault.
This might seem confusing if you aren’t familiar with criminal law. How can it be fair to be – effectively – acquitted of the crime you’ve been charged with, but convicted of a different one?
In other words, if you’re charged with a statutory offence, common law offences (e.g. assault / theft / reset / culpable homicide / breach of the peace etc) are always there in the background, and – depending on how the evidence comes out at trial – can be substituted in by the Sheriff or by the jury. Presumably, this is to lessen the chance that people who have committed crimes are not able to escape by virtue of the fact that they’ve been charged with the wrong crime.
In this case, the Sheriff appears to have said in his judgment:
So, the evidence did not support the original charge under s3(2)(d) of the 2009 Act, in that there was insufficient evidence of Mr Reid ejaculating the semen onto the women (to put it bluntly). Presumably, though, the evidence suggested that he had thrown it at her in some way (possibly from a vial), which – provided there was evidence that this was a deliberate act – would be enough to constitute a common law assault, and convicted him accordingly.
The Register
Mr Reid was jailed for eight months, and made subject to the “notification requirements” of the Sexual Offences Act 2003 (also known as “being put on the Sex Offenders Register”) for a period of ten years. These requirements are worthy of a page of their own (which I will add to my long to-do list in respect of this site), but for now I will just briefly explain why Mr Reid was made subject to these requirements for a common law assault, given that he was not convicted of an offence under the Sexual Offences (Scotland) Act 2009.
That phrase “significant sexual aspect” is the key one. If the court decides that the facts and circumstances of the case suggest that you committed an offence for the purpose of sexual gratification, you could be made subject to the notification requirements. Theoretically, any offence could land you on the reigster in this way. For example, the protagonists of the 1996 film “Crash” – if the events took place in Scotland today – could be made subject to the notification requirements on the basis that there was a significant sexual element to their dangerous driving.
In Mr Reid’s case, it’s hard to view the throwing of semen as having anything other than a significant sexual element.
“lamentably unbelievable defence evidence”
From the article:
Firstly, fair play to Sheriff McCormack for leaving us all hanging re. the other example of lamentably unbelievable defence evidence – one for the memoirs, no doubt.
Secondly, as a solicitor, it is your job to represent your client’s position. You can give advice as to their prospects of success, based on your experience and knowledge of the law, but your client’s instructions are your client’s instructions. As long as they aren’t instructing you to do something illegal, or to advance a defence that you know not to be true, then you should represent their position in court to the best of your ability.
I wasn’t there, and know no more about this case than what’s in the papers, but I have no doubt that Sheriff McCormack’s comments were aimed at Mr Reid, rather than whoever was representing him (if anyone).
US courtroom fiction propagates this daft notion of “this lawyer is amazing – he/she has never lost a case!” In the real world, if you’ve never “lost” a criminal trial, you probably haven’t run many. The lawyers I admire most will run completely hopeless trials, in the knowledge that their client will inevitably be convicted, because their client insisted on a trial.
To put that in some context, my instructions from my client in advance of my first ever criminal trial were: I know I’ll be convicted; I just want you to get the polis fuckin’ telt. And I tried my best, and my client was convicted. But he was happy, because – according to him – I’d got the polis fuckin’ telt. If that’s not job satisfaction, I don’t know how to get you fuckin’ telt.
Crime.Scot 