The New “Offensive Behaviour at Football” Act Comes Into Force on 1st March – Oh Dear

The Act has now received the Royal Assent. The Scottish Executive has indicated that it will lay regulations before the Scottish Parliament to bring it into force on 1^st March.

The first raft of fixtures after that date takes place on 3^rd March, when Celtic travel to Aberdeen, Rangers entertain Hearts, and some other games are played which will not be subjected to the scrutiny of those two.

The Scottish Executive website publicised this yesterday here.

I have planned a couple of pieces looking in depth at the Act and what I think is wrong with it, but I thought a few comments were relevant now.

The first thing I would say refers to the subtitle on the Scottish Executive news headline page – Approval for important new religious hatred legislation. (Emphasis added)

The focus in the debates on the Bill, both in Committee and in Parliament, was on the various different types of “hatred” which were to be stamped out. The “cancer” as Alex Salmond called it, of “sectarianism” was to be rooted out.

However, the point which politicians miss, either deliberately or accidentally, is that “religion” is not really the root of these problems, I think – unless one is going to treat Rangers and Celtic as religions (and interestingly a wise man pointed out to me this week that, as far as matters of orthodoxy, heresy and schism are concerned, there are certain similarities between religions and the following of football teams).

There is no doubt that there is “religious hatred” in Scotland. However the lazy assumption which appears to be made by politicians is that Celtic = Roman Catholic and Rangers = Church of Scotland.

I accept that, amongst the fans who bellow insults at each other at Old Firm matches, there might be an assumption (notice I did not use a capital letter) that the fans in opposing colours represent the “opposing” faith.

The famous, though probably apocryphal, story about Bertie Peacock, the Celtic player from the 1950’s, illustrates the point. During a Celtic v Rangers game, he is said to have complained to a teammate that the opposing fans were calling him a “Fenian b@%&#+d”. When re-assured that the other players got that all the time, Mr Peacock, a proud Ulsterman and not a Roman Catholic, is believed to have said “Aye! But you all are!”

I imagine that similar conversations, from the other side of the divide might have taken place involving some of Rangers’ recent foreign players who have been adherents to Roman Catholicism.

The focus of the various pieces of legislation regarding “hate speech” (an Orwellian phrase if ever there was one) is on the view of the offender. So, if someone had shouted and sworn at Pope Benedict on his visit to Scotland, and told him that “I hate all you @&%$£#* followers of Shinto!” Then this would have been libelled as an aggravated breach of the peace, even although, as is well known, the Pope is a Catholic.

Whilst it might be expecting too much to think that the fans whose main pleasure at games seems to be to bait the opposition would appreciate that football teams and religious belief are not synonymous, then surely the politicians are wise enough to see past that? Sadly not.

Minister for Community Safety and Legal Affairs, Roseanna Cunningham made the following comments, with my observations below each paragraph:

 

“These new laws will give Scotland’s police and prosecutors the additional tools they have asked for to extract poisonous songs of hatred from Scottish football and threats of harm being posted on the internet.”

First of all, as Graeme Pearson, MSP, said in the Committee stages of the Bill, the police have never been known to turn down new powers. Mr Pearson would know, having served with distinction as a police officer for 38 years, ending his career as Director General of the Scottish Crime and Drug Enforcement Agency, before turning to politics.

Ms Cunningham seems to be taking the view that, if the police and prosecutors want new powers, then they shall have them. That is surely a dangerous position. I intend no criticism of the present Lord Advocate, Frank Mulholland, nor of his immediate predecessor, but (and this is a point to be expanded upon in another piece) the fact that both of them are life-long prosecutors necessarily means that their views will have been impacted by the prosecutorial work they have done. Prior to the appointment of Eilish Angiolini as Lord Advocate, the appointment was usually politically based, but the job went to an experienced Advocate, who had the breadth of experience to come to the Crown Office with a view, in theory, from above the prosecution v defence fray.

As a headline, “Prosecutors and police want more powers” is up there alongside “Dog bites man”!

Ms Cunningham then states that the Act will be used “to extract poisonous songs of hatred from Scottish football”. The summary at the bottom of the press notice I have referred to above indicates of course that the new offence is far wider than simply “poisonous songs of hatred”.

I have, as may not surprise my reader, a great deal to say about the precise offences created under the Act.

However, the existing law of breach of the peace covered these matters exactly, which was one of the beauties of that offence as it had evolved. But even more so, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a statutory offence of “threatening or abusive behaviour” in section 38.

As was repeatedly pointed out in the debates re the Bill, there had been no time to assess whether the creation of this new offence had been successful in clamping down on such conduct.

Usually it is the critics of legislation who are accused of coming up with ever more convoluted scenarios to show its ineffectiveness. Here though, the Minister and the Lord Advocate were the ones presenting the pretzel-contorted situations where neither s38 nor breach of the peace would apply.

In addition, despite the fact that the “Threatening Communications” part of the Act is not exclusively football-related, the fact that the Minister lumps both parts together, and that the Executive webpage re this story is illustrated with a football, seems to be saying, incorrectly, that it is.

And as far as the “Threatening Behaviour” part of the new Act goes, I find it hard to see how something might be caught by the new rules, but would have been legal under s38, for example.

 

“The passing of this Act sends out an important message about the kind of Scotland we want to live in and tells the bigots in no uncertain terms that this behaviour will not be tolerated in a modern Scotland.”

This sentence is the key, I think, to the whole matter. A message is being sent out. As the saying goes, “Something must be done, therefore we are doing something.” It is proper for legislation to be used to “send a message”. The court system does so every day. I recall the late and greatly missed Sheriff Fitzsimons at Dumbarton regularly telling a person in the dock that a message needed to go out. This, I am sure, was his cue to make sure that the reporter from the local paper made a careful note, and that the front-page story for the next edition was on its way!

But the problem is that, the more precisely offences are defined, the more risk there is for confusion in the minds of judges, and much more likely, juries. We simply need to recall how, apparently due to the, in my view, unnecessary addition of a religious aggravation to the charge of assaulting Neil Lennon, Mr John Wilson found himself acquitted of an assault carried out on live TV!

Already supporters of each side of the divide pore over law reports to find which word has been criminalised. The danger is that, should there be a high profile case under the new Act, and at least at first all such cases will be high profile, then a decision made on the facts of the case regarding a particular word, phrase, chant or song will be treated, by media, police and opposing fans, as having set a cast-iron precedent.

In the case of William Walls v PF Kilmarnock, Donald Findlay QC attempted to argue that Mr Walls’ references to “Fenian  b@%&#+ds” at a Kilmarnock v Rangers match (!) was a political comment. As Lord Carloway put it, “The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s.”

No one wants bigots, but, in a free society, how far should the State go in preventing people being “offended”? That debate seemed to be ignored in the rush to “do something”.

 

“By all means enjoy the banter and passionate support for your football teams, even passionate opposition of other football teams – it is the lifeblood of football. But sectarianism and other expressions of hate are not acceptable and it is time for it to stop. Those engaging in it will face the full force of the law.”

In the Walls case referred to, Lord Carloway made similar comments. He said, “The Court has no doubt that the conduct of the appellant did amount to a breach of the peace, even in the context of a football match where at least shouting and singing, or hearing shouting and singing, are undoubtedly part of the match experience expected by all attending the stadium. As a generality, a complaint of someone shouting and singing could not ground a complaint of breach of the peace at a football match, as it might at other locations. Equally, occasional standing up and even leading communal singing are unlikely to amount to conduct severe enough to threaten serious disturbance. However, presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant’s conduct went well beyond those limits.”(Emphasis added)

This case was an example of the sensible approach of the judiciary to these matters, even before s38 came into force. The more prescriptive the rules, the less discretion open to the courts.

In addition, the strict line taken by Crown Office on matters of this nature, including the insistence on going to trial and not accepting lesser pleas, means that there will undoubtedly be wasted court time, and unnecessary costs caused by prosecutions which, as Sheriff Cusine recently pointed out on stepping down from the Bench, should never have been initiated at all.

Finally, the timing of the introduction of the Act is interesting. In Committee last year, there was an initial effort to rush the Bill through in time for the start of the football season. As the Minister put it, the Act needed to be in place in time for the police to be trained in how to deal with it, and so that there was no confusion for police and for the fans caused by the law changing mid season. This necessity of course could only apply to the Offensive Behaviour part of the Act, as the Threatening Communications part is not exclusive to football.

Here we have situation where the new Act comes into force mid season, and therefore one would expect there to be a different attitude from the police and prosecuting authorities – after all, the existing law was repeatedly stated to have been inadequate.

The Lord Advocate published his draft guidance in connection with the Bill, as it was proceeding through Parliament. Ironically, this, together with police guidance to its officers, will be more important in what can, and cannot, be done by football fans, than the Act itself, and the guidance was not subject to debate.

I foresee many cases coming under the new Act, and a clear conflict arising in relation to the rights of free speech enshrined in the European Convention on Human Rights as opposed to the restrictions envisaged in the Act and the guidance.

As the guidance puts it:-

“The offence WILL NOT

 Criminalise singing national anthems in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise making religious gestures in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise football banter or bad taste in the absence of any other aggravating, threatening or offensive behaviour

Officers should have regard to proportionality, legitimate football rivalry and common sense when assessing whether the conduct would cause offence to the reasonable person.”

Therefore, singing national anthems, making religious gestures and “banter and bad taste” can be offences if there is other “aggravating, threatening or offensive” behaviour. The Minister referred in Committee to people “aggressively making the Sign of the Cross.”

On that basis, if a police officer, and then a fiscal, have the same view as Roseanna Cunningham of such an event, an accused would be tried for breach of the new Act.

In addition, as the Lord Advocate’s guidelines state, “Where there is evidence that an offence has been committed the accused should be reported in custody. Only in extenuating circumstances should an accused be liberated subject to an undertaking to appear at court.”

I suspect that the cells might find themselves rather full on 25^th March, after the Rangers v Celtic game that day.

And, as we have seen with the Twitter Joke case, a prosecution for what most people saw as a joke has resulted in a criminal conviction, and loss of employment, for the accused.

I fear that the Scottish justice system faces appearing ridiculous very soon.

Joan McAlpine MSP Gets It Oh So Wrong on the Supreme Court Asbestos Case – No Lassie No!

It is the job of Parliament, both at Westminster and Holyrood, to make laws. Whilst a parliament full of lawyers is a prospect too horrible to contemplate, one would hope that the MPs and MSP’s charged with passing legislation would have some grasp of the issues before them. That often seems lacking however.

In addition, as I have mentioned before, the standard of coverage of legal issues in the Scottish media falls far short of the levels of the past, and of what helps properly to enlighten the public.

On 20th September the Scotsman printed a fine example of the “double whammy” of a journalist and MSP producing a woefully inaccurate article.

Step forward Joan McAlpine, SNP list MSP for the South of Scotland. Ms McAlpine has had a distinguished career in journalism, and latterly moved into blogging with the acclaimed Go Lassie Go blog. In May she won a seat at Holyrood.

On 20th September however her piece was so incorrect and inaccurate that there was some discussion about whether or not it could have been part of a “Spot the Deliberate Mistake” competition!

Her article seems to have been written as a follow up to this earlier piece by Gareth Rose. Mr Rose wrote his piece, with comments from interested parties and despite an over statement of the effects of the particular condition referred to, namely “pleural plaques”, there was little to fault.

This would appear to have prompted Ms McAlpine to pick up her pen and she wrote, under the headline “Shameless Effort to Evade Justice may Affect us all” about the legal challenge brought to the UK Supreme Court by insurers seeking to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament.

 

 

 

“ANYONE who thinks the row over the Supreme Court is esoteric should pay attention to a case due in the next few weeks, when insurance companies ask judges to “protect” them from workers with industrial disease. The Supreme Court is asked to overturn an Act of the Scottish Parliament that compensates workers exposed to asbestos on the grounds that this popular legislation violates insurers’ human rights.

The decision is due this Wednesday 12^th October, the case having been argued at the UK Supreme Court, and televised live on the internet, in June. Mr Rose noted the due date for the judgment but Ms McAlpine seems to have missed that.

The case is not about insurers asking for protection from workers with industrial diseases either. The case is about whether or not the Scottish Parliament has the competence, standing the terms of the devolution settlement, to pass such a law. Whilst there are a number of claimants named in the proceedings who are persons alleging that they suffer from pleural plaques, they were not sued by AXA and the other insurers, but intervened in the case to have their voices heard, as they were allowed to do by Lord Uist reported at AXA Insurance and Others v Lord Advocate and Others [2010] CSOH 36.

The issue is undoubtedly an important one, but not for the reasons suggested by Ms McAlpine. And the popularity of a piece of legislation has no bearing, as far as I can see, on its legality!

 

 

Now you might think the man with damaged lungs is more deserving of legal protection than the loss adjuster. It’s one thing to respect the dignity and privacy of all human beings, no matter what they have done. But extending this principal (sic) from individuals to institutions is a bizarre development. Do insurance companies bleed? Do they gasp for breath?

Let’s pass quickly over the spelling mistake and move to the next errors. Ms McAlpine seems surprised that insurance companies are claiming the protection of “human rights”. Whilst that might, at first glance, look odd, the position has been clear for many years. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The full title of the ECHR refers to fundamental freedoms and is not restricted to human persons only. A company is, in law, a legal entity and it too has the right referred to under Article 6 for example. There is no issue therefore about a company having “human rights”. It does.

Ms McAlpine, echoing Shylock in the Merchant of Venice, then goes on to contrast the flesh and blood worker with the soulless corporation. But her reference to “gasp for breath” is, as I will show below, also inept.

If they prick us, do we not wheeze...or something like that?

 

 

Asbestos is now recognised as a carcinogen. The lagging and insulation material was once widely used in construction, and particularly in the traditional shipbuilding communities such as Glasgow, Clydebank and Greenock. Survivors tell stories of leaving footprints in deadly dust that covered workshop floors like a light dusting of snow.

Asbestos was hailed upon its discovery as a fantastic material – waterproof, fire-resistant and easy to use. However, it had one drawback – its use could prove fatal to those who worked with it or who inhaled the asbestos dust of fibres. By saying that “now” asbestos is recognised as a carcinogen ignores the fact that that has been acknowledged since at latest the 1970’s.

 

In 2007, judges in the House of Lords in their wisdom decided that pleural plaques were a condition that merited no compensation – reversing the practice of 20 years. The decision prevented future sufferers from pursuing a claim and those who had started one were then left with nothing – the UK government has now retreated and offered the latter a one-off lump sum which is time limited.

The 2007 case, known as Rothwell [2007] UKHL 39, was where the House of Lords overturned around 20 years of legal understanding by declining to treat pleural plaques as being a compensatable injury. This was not some heartless decision by faceless judges, but a reasoned and principles, though widely disputed, judgment. To see why it came about, we need to look at what pleural plaques actually are.

The British Lung Foundation website gives us information on them. It states as follows:-

What are pleural plaques?

Pleural plaques are areas of scar tissue on the pleura. The pleura is a two-layered membrane surrounding the lungs and lining the inside of the rib cage. In virtually all instances of pleural plaques there are no symptoms and you can live with them without having any long-term problems with your health.

If you have pleural plaques, it does not mean that:

• you will go on to get a more serious disease
• you have a more serious disease at the moment
• you are likely to get a serious disease in the future.

While exposure to asbestos does carry a risk of developing a serious lung disease, such as asbestosis, mesothelioma or lung cancer, scientific evidence shows that having a pleural plaque does not increase that risk. Pleural plaques are not the same as asbestosis and they are not a pre-malignant form of cancer.

…

Do people need treatment for pleural plaques?

No. If you have been exposed to asbestos, but have no symptoms, such as breathlessness, there is no need to have any treatment. If you develop a cough which lasts a long time (more than three weeks) or you cough up blood, it is important to see your doctor straight away. Although these are not symptoms of pleural plaques, it may mean that you have a different, more serious, illness.

Does anyone die from having pleural plaques?

No.

Do people need an operation?

No. There is no need to treat pleural plaques in any way.

———————————————————————

So we have a symptomless condition that, whilst being a marker of asbestos exposure, is not a guarantee that any further condition will develop, nor is it a step on the way to the deadly asbestos related conditions such as mesothelioma. It was for this reason that, after 20 years where claimants for asymptomatic pleural plaques might receive from £5,000 – £10,000 compensation, the House of Lords decided that, as there was no “injury” within the legal meaning, there was no right to compensation.

The insurers, some of whom have gone out of business as a result of asbestos related liabilities, were delighted. Whilst the sums awarded by way of damages were much smaller than in an asbestosis or cancer case, the fact was that the vast bulk of asbestos injury claims related to pleural plaques. This decision therefore saved the insurers possibly billions of pounds. Understandably there was an outcry, but the Rothwell case did not attack the awards for conditions where there was suffering caused.

 

However the Scottish parliament moved to defend victims inside its legal jurisdiction and in 2009 passed The Damages (Asbestos-related Conditions) (Scotland) Act to ensure the Lords decision did not apply here. It received cross party support in Holyrood. The insurance companies were shameless. This should not really surprise us – they had previously tortured asbestosis sufferers by dragging out their cases for years in the hope the claims would die with them.

Now I hold no great love for insurance companies – my professional career has been largely spent fighting with them, but we must acknowledge that insurers are a business looking to make a profit. As a result they try, as far as they can, to reduce what they pay out. However, the canard that they want to drag out cases till the claimant dies, and thus save money, is one long in the past. The law gives no advantage to the insurance company in these circumstances now, as the claim passes on to the deceased’s next of kin. In fact, some recent decisions at the Court of Session suggest that it might now cost insurers more where they claimant dies than if they survive.

To say that a business doing what it is legally obliged to do – namely to act in the interest of its shareholders, is shameless is unfair. Does Ms McAlpine wish the few remaining insurers based in Scotland, if “shameless”, to leave?

 

The companies challenged Holyrood’s 2009 Act, without a scintilla of embarrassment. Indeed they were brazen in their contempt, not just for the law but for the people of Scotland and the parliament we elected. When the Court of Session in Edinburgh twice throw out their challenge earlier this year, David Williams, the claims and underwriting director of Axa, was reported as saying the industry had always doubted that a Scottish Court would overturn an Act of the Scottish parliament. This insinuates our most senior judges are compromised by nationality.

The courts are there to adjudicate on legal disputes. Is Ms McAlpine suggesting that the insurers ought not to have been allowed to test the issues in court? I fail to see how using the procedures that are there can be seen as contemptuous towards the law, the people of Scotland and the Parliament. Ms McAlpine refers to the Scottish court twice “this year” throwing out the challenges.

In fact Lord Emslie, at [2010] CSOH 2, delivered a lengthy and erudite opinion running to 2409 paragraphs of detailed legal analysis. As might be guessed from the citation, that occurred in 2010, the decision being issued in fact on 8^th January that year.

The insurers appealed, as is their right, and this too was rejected by the Inner House, reported at [2011] CSIH 31. The Lord President, and Lords Eassie and Hardie determined that the insurers’ challenges failed. But at no time in either of these judgments did the courts indicate that they viewed the action of the insurers as ones of contempt. Indeed, in the penultimate paragraph of the appeal judgment, their Lordships stated “…while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.”

The insurers then proceeded to appeal to the UK Supreme Court. There has been a long-standing right of appeal in civil cases to the House of Lords, the UKSC’s predecessor. There are few of the constitutional issues which arose when some, including the First Minister, accused the UKSC of interfering in Scottish criminal law in the Fraser case. Whilst Mr Williams, quoted by Ms McAlpine, was not tactful, his comments were much less offensive to the judges, I would guess, than those of Mr Salmond and Mr MacAskill, who accused the UKSC of “ambulance chasing”! As Ms McAlpine is a staunch Scottish Nationalist, one might think she would be happy that the Scottish courts have a reputation for standing up for Scottish law!

 

Williams went on to declare the insurance companies intention of challenging the act outside of Scotland: “The Supreme Court is our best chance. We are bullish and will be preparing for the next steps of the case.”

There seems to be a refrain in the SNP of treating the UKSC as a “foreign” court. Yes, it sits in London, but generally has at least two Scottish judges sitting in any Scottish case. As has been commented in the context of the Fraser case, it seems odd that the SNP seem to dislike a court sitting in London comprising 40% Scottish judges, but welcome the European Court, where there is one British judge!

 

That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds – the case hinges on their property rights – though stranger things have happened.

As already mentioned, and indeed as had been reported in the Scotsman, the appeal was heard previously and the judgment will be issued on 12^th October. Having watched much of the case it is fair to say that the performance of counsel for the Scottish Government was unimpressive, leading to online discussion (not seriously I should add) as to whether or not counsel had been instructed to ”take a dive” so as to lose the case, allowing the SNP to complain that their laws were being overturned by a “foreign” court. Sad to say, Ms McAlpine’s article would actually lend weight to that frivolous theory! And again the snide reference to the case being heard in London – one can hear the sneer in our Parliamentarian’s voice!

After the invective directed at the insurers by Ms McAlpine for arguing about human rights, it is of note that she acknowledges that, in fact, the “property rights” case is observed to be the stronger leg of the insurers’ submissions.

 

But there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.

Once more we have a disparaging reference to London, ignoring the fact that the UKSC is, as the name hints, the Supreme Court for the United Kingdom! As already mentioned, if Holyrood has exceeded its competence, then it does not matter how “popular” the legislation is – it is ultra vires and cannot stand. For my part, I agree with the judges in the Court of Session regarding this issue, but there is an issue on the retrospective application of the Act which flies against commonly recognised legal principles.

Ms McAlpine’s complaint is that the UKSC cannot strike down a Westminster Act. Of course, under the present constitutional arrangements, like it or not, the Scottish Parliament is a creature of Westminster legislation. The powers of Holyrood derive from the Scotland Act, and Westminster can, short of Mr Salmond making a unilateral declaration of independence, increase or decrease those powers. That is what the present debate on the Scotland Bill is about.

It might be thought indeed that it is the Westminster position which is anomalous. After all, the US Supreme Court can strike down legislation as can the Supreme Courts in many jurisdictions. The courts can, and should, act as a bulwark against unconstitutional and unfair legislation.

 

This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it.

Ms McAlpine refers to the present arrangements as a “sham”. My trusty dictionary defines a “sham” as a “piece of pretence; something pretending or pretended to be what it is not”. The present arrangement is what it is – it is not what Ms McAlpine wants it to be. That does not make it a “sham”. And if and when the SNP get round to having their much promised referendum, we will find out what the Scottish people want, rather than having Ms McAlpine declare what that is.

 

Even if the damages legislation is not found to be in contravention of human rights law, the court may still grasp the opportunity to extend its authority over Scotland’s parliament. The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, breach European law or violate the ECHR. The insurers are also asking for a ruling that there is a right to appeal under common law as well – though the system is of course different in Scotland and England which complicates matters further. If the Supreme Court, in which only one of its current contingent of eleven judges is trained in and has detailed experience of Scots Law, said an act could also be reviewed on common law grounds, Holyrood’s status would be relegated to that of local council. It would open the floodgates and any law could be challenged on just about any grounds. Such a ruling would be a sort of ritual humiliation, but would we put up with it?

It is, I am sure, a political decision by the SNP to characterise the UKSC as an arm of Westminster, sitting in its “London” lair, striving to take control of Scotland’s affairs. The court has to deal with the issues put before it. Lord Hope did not ring up AXA Insurance to tell them “Between us, here is what I want you to argue before the court”. As their Lordships mentioned in the judgments referred to in the Court of Session, these issues are very difficult for the court to determine. One could easily see circumstances where a Scottish Government, of whatever hue, sought to pass a law which was abhorrent to the SNP, and where the Nationalists would be delighted for the UKSC to come to Scotland’s aid. But politically it suits for the judges to be disparaged.

As Lord Emslie said in his ruling “But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power (it would be) unthinkable that the courts should have no option but to hold themselves powerless to intervene”.

It is true that there is only one Scottish judge out of 11 just now. That is because Lord Rodger sadly died and for each Scottish case heard since his death, including in fact this one, one of the judges from the Court of Session has sat along with Lord Hope to make up the second Scottish judge.

Ms McAlpine is right that any law could be challenged on any ground. But the courts would kick out frivolous or nonsensical arguments, whilst applying full and rigorous analysis to serious cases. If the UKSC rules against the legislation, this would not be a “ritual humiliation” but a decision that the Parliament has gone wrong. We have had devolution since 1999. How many Acts have been declared invalid since then? If Ms McAlpine’s thesis is to be accepted, then this would have been a common event, even if only since the SNP took over in 2005. It has not happened. The decision in the AXA case will not leave Holyrood left akin to a “parish council”.

 

Alex Salmond v Lord Hope...or is it AXA Insurance v Scotland...

This is a David and Goliath clash, whatever angle you view it from. It should not be a party political matter. Kenny MacAskill, the justice minister has said the Asbestos Damages Act was the piece of legislation he was most proud of in the SNP’s first term in office. It had support right across the Labour movement and from industrial injuries lawyers such as the late Frank McGuire whose contribution fighting for justice was marked in a motion by Labour’s Johanne Lamont just this week.

It is interesting that a battle between on one hand insurance companies, and on the other, the Scottish Government is classed as a “David v Goliath” affair. I suspect that Ms McAlpine wishes to classify the UKSC as Goliath, and the plucky SNP as David. In either event, this is a gross distortion.

As mentioned above there is an argument about the payment of compensation to people “suffering” from a symptom free condition. If this was a situation where the law was created to allow payment of compensation for asbestosis or mesothelioma, that would be entirely different. But that is not what this Act is about. It relates to pleural plaques.

Ironically, the Surpreme (sic) Court challenge also comes at the same time as the 40th anniversary of the Upper Clyde Shipbuilders work in, which was commemorated in the parliament last week. UCS played a considerable role in boosting the campaign for Scottish Home Rule that gained momentum from the early 1970s.

Here we come to the nub – this, in the same way as UCS in the 1970’s, is being used by SNP politicians paying little or no attention to the legalities and realities of the argument, in a Scotland – good; London – bad argument. As I said at the start, this would be bad enough from a journalist, but far worse when coming from a Parliamentarian.

The remarkbale and greatly missed Jimmy Reid and the UCS workers

 

It was believed a parliament in Scotland would protect shipbuilding and the men who worked in the yards. Four decades later, it is appropriate that the casualties of that industry should be central to a battle over where power should lie.

The “casualties” referred to are not suffering. The issue is whether the Scottish Parliament went beyond the rules which govern its competence. The UKSC Justices will declare their decision on this on Wednesday.

It would be interesting to see what Ms McAlpine’s reaction would be to an order from the European Court that an Act of the Scottish Parliament was invalid – how would that square with her declarations of the people’s sovereignty?

 

Conclusion

For the avoidance of doubt, as lawyers are prone to say, I am happy that the Scottish Government legislated to make compensation payable to pleural plaque sufferers, as people with that condition had been so entitled for 20 years prior to Rothwell.

I have always been on the side of the “wee man” against the “big business”. But that is not the issue here.

We have a prominent politician and writer disregarding the facts for political purposes. I do not suggest that Ms McAlpine has written her piece having decided to ignore the truth which she knows. Instead she has written it, I can only assume, without having ascertained the full position.

It just goes to show that the standard of writing and comment on legal matters in Scotland, whether by press of politicians, is woeful, and I fully expect that the decision on Wednesday will do nothing to change that view.

 

 

 

The Chancellor’s Changes To Employment Tribunals – An Attack on the Workers?

 

 

The Coalition Government proclaims that, in this time of economic crisis, we are “all in this together”. However, the Chancellor’s speech today at the Conservative Party Conference suggests that that is not, at least in the field of employment law and Employment Tribunals, the case. Let us pass over for now the fact that he is declaring new policy to his Party Conference, and not to Parliament, despite this being a regular complaint by the then Opposition against the Blair and Brown Governments. Let us look instead at the two main changes proposed.

Chancellor Osborne

Employers and Employment Tribunals

Employers hate employment tribunals. Whilst some companies might have insurance cover for such matters, or access to one of the organisations that provides assistance on these issues for payment of an annual fee (a bit like going to Green Flag or the AA for breakdown cover) many, particularly small businesses, are faced with a choice of acting for themselves, with the risks that can bring, or engaging a solicitor to represent them. The legal costs incurred by an employer can, especially if a full hearing proceeds over a number of days, run into thousands of pounds.

Whilst the Tribunal can award costs against a party where it is determined that they have acted unreasonably, this is much less of a risk for a claimant than the rule in court proceedings that the loser pays the costs. Often the claimant has no funds to meet a costs award anyway, even if one is made.

Employers view these cases as an interference with their right to run their business, large or small, as they see fit, and a needless drain on their time and resources.

The Eagle Building - Home to the Employment Tribunal in Glasgow

Employees and Employment Tribunals

Employees are not very keen on them either, but find it necessary at times to have to go there. Employment Tribunals hear much more than simply unfair dismissal cases, although that is the most common type of claim presented.

Whilst there are a few high profile Employment Tribunal cases, where City financiers allege sex discrimination and seek million pound awards, the vast majority of claims relate to termination of employment, whether by dismissal or unfair selection for redundancy.

It is only the minority of cases which proceed to a full hearing. Often claimants give up as they cannot afford their own legal costs or they no longer have the stomach for the fight.

When it comes to legal costs the press coverage complains about the costs to business of defending these claims, whilst never looking at how the claims are funded by claimants.

As with employers, some employees have cover for a Tribunal claim, either through legal expenses insurance or through their membership of a Trades Union. However, in Scotland, most claimants do not have such cover, and proceed on their own, with the help of voluntary organisations like the Citizen’s Advice Bureaux or with a private solicitor or adviser.

Whilst there are solicitors and claims representatives willing to proceed on a “contingency fee” basis i.e. taking a fee only if the claim is successful, these are less useful in employment cases where there is normally no award of costs against the employer who loses the case – any payment to the solicitor, in a no win, no fee case has to come from the damages awarded.

In theory there is limited Legal Aid cover in Scotland for pursuing an Employment Tribunal claim, but this only kicks in where the case raises some issue of wider legal importance, and where the claimant meets strict financial limits.

Finally of course, employees are often reluctant to pursue a Tribunal case because of fear of what a new or prospective employer might think. “If he can take his last employer to a Tribunal, he could do the same to me” is a sentiment I have heard on a number of occasions from employers. In most cases the award due to a successful applicant would not make it worth their while to be out of work for a couple of years or more.

What Effect Does All This Have on Proceedings?

The result of these competing pressures on cost is that many cases settle by agreement before a full hearing takes place. An employer, even feeling that they have a strong defence, might make an offer to settle a case knowing that the claimant might have to accept the offer simply to meet their legal costs.

Equally, an employee with a strong claim may find themselves forced into settling a case (a) because unemployment means that funds are needed sooner rather than later and (b) the claimant does not want to risk their adviser ending up with most of their damages. So an early settlement, caused by these economic factors, is common, and, although on one view might not be seen as far, actually helps the system. On one cynical view, if the employer pays more than they want to pay, and employees receive less than they are looking for, then an appropriate balance has been struck.

In addition ACAS provides an excellent service in seeking to assist the parties, even where represented, to reach a settlement. Sadly ACAS has found itself ever more hard pressed by the increasing number of claims and by budget restrictions. The ACAS oil is now spread very thin.

Why Does The Chancellor Want to Change Things Now?

The CBI and other employers’ organisations have campaigned for many years to clamp down on the number of Employment Tribunal claims, for the reasons mentioned above.

It is a truism to say that the Conservative Party is more in tune with the employers than the Labour Party. The Government therefore has been looking for ways to reduce what are called the “vexatious” applications which are “hopeless” and exist only to trouble employers.

There has been a large increase in numbers of claims over recent years, although much of this has been caused by the growth of unemployment due to the recession. It is very easy, for example, to make a mess of a redundancy selection process, leaving the employer liable, but as long as they cannot show they have acted fairly.

There Is No Suggestion That Mr Trump Has Ever Acted Unfairly Towards Any Employee Ever

What Are The Rules Mr Osborne Wants To Change?

Normally an employee will need to have had twelve months’ continuous employment with an employer to make an unfair dismissal claim, although if a dismissal falls into one of the “discrimination” categories, (of which there are many) then the minimum period does not apply.

Some years ago the time limit was reduced to one year as a result of a legal challenge on the grounds of sex discrimination. Because generally women had shorter periods of continuous employment than men, the former two year limit was deemed to be indirect discrimination against women – the rule affected far more women than men.

As matters stand today, there are no costs payable by a claimant when lodging an application with the Employment Tribunal and, unlike some Scottish court cases, no fees payable to the Tribunal as the claim proceeds. Some view this as encouraging frivolous claims, as if a “free bet” for the claimants.

So What Will Be New?

Mr Osborne now proposes that the time limit, except in discrimination cases, should go back to two years.

First of all, I wonder of a challenge might be brought to this on the basis that again there will be unfair and disproportionate discrimination against women.

Secondly, that should result in a fall in the number of cases as workers with between 12 and 24 months employment fall out of eligibility to claim. There has already been comment that in fact claimants will circumvent this by claiming “discrimination” but Employment Judges are very good at clarifying the position as regards precisely in what way discrimination is alleged, and if the Tribunal determines that there has been no discrimination, then the case can fall foul of the time limit. It is not enough to cry “discrimination” – it actually needs to be there.

Of course, there might simply be an increase in preliminary hearings designed to ascertain if there was discrimination or not, and that will mitigate the effect of the change, and in fact might make things worse as, even with fewer cases, there might have to be more hearings.

The other change and the one which has the potential to be most damaging to a prospective claimant, is the imposition of fees on claimants. The Guardian reports that:-

“Under the plans, applicants will be obliged to pay the costs of an unfair dismissal claim – £250 for lodging a claim and a further £1,000 if the case goes to a hearing – which will only be refunded if the employee wins.”

This is a remarkable change, and one expressly designed to price people who may have been sacked unfairly out of vindicating their rights. At the present time, in particular, a person dismissed from work might not find it easy to get back into employment and will find their funds very precious indeed. In such a case how is a sacked employee to be able to find the cash to pursue a case to the end? Employers might fell happy to sit tight until, depending on the stage it has to be paid, the claimant has actually stumped up the hearing fee.

I do not see the Scottish Legal Aid Board agreeing to fund new outlays which did not exist before, especially in a class of case they have little to do with just now.

It is possible that the same exemption from paying court costs which applies in Scottish court cases just now might simply be extended. The above exemption allows people in receipt of certain Income Based benefits to be exempt from paying the court fees, for as long as they remain eligible, not for the duration of the case.

But as the Employment Tribunals have a UK wide jurisdiction, I imagine the intention will be to have the same system across the board, and in these straitened times, I can well see the exemption being limited if not eliminated totally.

If I was a potential claimant, recently dismissed, struggling with the DWP to be paid the benefits to which I thought I was entitled, the prospect of having to pay over £1,000 to pursue a Tribunal case would be daunting in the extreme.

And the suggestion that the fees would be refundable if successful are unclear. Does this mean that the Tribunal has to find in the claimant’s favour? What if they win, but their award is reduced to “nil” under Polkey? What if a claimant wins on four grounds out of seven, or eight or nine?

Claimant’s advisers would obviously want to insist on employer’s refunding the cost as part of a settlement, but if they are not obliged to do so, will an employee be prepared to proceed to a Tribunal hearing simply to get their Tribunal payment back?

Conclusion

Expecting the Conservatives to extend the reach of the Employment Tribunals is unrealistic in the extreme.

However, what we have seen here is a blatantly political attack on the rights of the working person, at a time when they are at their most vulnerable.

One hopes that the lawyers who act for the main Trades Unions, for example, are poised to see the new Regulations, and mount whatever legal challenge they can.

In a week when the Home Secretary has already called for repeal of the Human Rights Act because it interferers with the work of her department and causes her “problems” we are going to be left again to look to the courts to protect the people. Let’s hope they find a way to do so!

 

 

Cadder II – The Sequel – PF Glasgow v Akram – Article 6 Revisited

 

Cadder v Her Majesty’s Advocate

 

The Cadder case (Cadder v HMA [2010] UKSC 43) created havoc last year when the United Kingdom Supreme Court (UKSC) declared that the long standing practice of the Scottish police of detaining suspects and questioning them without the accused having had the benefit of legal advice under s 14 of the Criminal Procedure (Scotland) Act 1995 breached the rights of the accused to a fair trial under the European Convention on Human Rights (ECHR). This meant that where a suspect had been detained by the police and questioned without access to legal advice, then in the absence of any waiver by the accused, any matters mentioned in the interview would not be admissible against him in a trial.

The Scottish Parliament passed emergency legislation – the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act. This Act was designed to close the loophole identified by the UKSC, which in turn arose from the decision of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19. The case also prompted significant criticism by the SNP administration of the UKSC’s “interference” in Scottish criminal law.

Fears that the Appeal Court in Edinburgh would be swamped by huge numbers of appeals, and that numerous cases would have to be dropped have proved to be exaggerated, but it is clear that the decision in Cadder has had an enormous effect upon the criminal justice system in Scotland.

The new system put in place has been bedding in, and the UKSC has a representative sample of cases with decisions pending to clarify the effect of the Cadder decisions in cases prior to the new legislation.

All seemed to be calm, at least relatively.

 

PF Glasgow v Akram

 

However, on 1^st September 2011, Sheriff Sean Murphy QC (who also sits as a temporary High Court judge) put the “Cadder” among the pigeons again.

His decision was issued in the case of PF Glasgow v Akram which is at this point unreported, but can be found here  Sheriff Murphy’s decision applies the Cadder principles to a much larger variety of cases than Cadder itself, and has potential implications across the UK.

Mrs Akram was charged on summary complaint with two counts under Section 111(1A) of the Social Security Administration Act 1992, as amended, by knowingly failing to give prompt notification in the prescribed manner to the relevant authorities of changes in her circumstances as a result of which she was said to have obtained income support and housing benefit to which she was not entitled.

Her solicitors lodged a Devolution Minute arguing that her right to a fair trial, under Article 6 of the ECHR, had been denied because the prosecution proceeded on the basis of certain replies, contrary to her interests, which were made by her in an interview which took place without her having the benefit of legal assistance.

Mrs Akram had not been detained under s14. Instead she had been interviewed by one officer of the Department for Work and Pensions and one from Glasgow City Council at the same time. She had attended the interview, which was in connection with alleged fraudulent activity on her part, on a voluntary basis, and it was accepted that she had been told that she was free to leave at any time. The compulsion element under s14 was therefore not present in respect of this matter.

She was advised that she could have legal advice but it was noted that she had not sought this prior to the interview, nor had she asked to leave the interview to obtain it.

 

Submissions to the Court

 

Mr McLaughlin, solicitor for Mrs Akram, referred to the cases of Salduz, Panovits v Cyprus and Cadder. He drew the principle that the suspect had the right to access to legal advice from the first stages of interrogation by the police in order to ensure that his/her right against self-incrimination was meaningful.  He argued that the Interview of someone suspected of fraudulent activity by a non-police agency fell to be treated in the same way.  There were no reported cases at present on the question of the Cadder principle as applied to such non-police agencies.

The case of Jude, Hodgson & Birnie v HMA [2011] Scot HC HCJAC 46 was relevant in connection with the question of waiver of the right to legal advice, it was submitted. The court had accepted that the Cadder rights to legal advice could be waived, but as per the Jude etc case there was no valid waiver for two reasons “namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant’s consent to be interviewed in each case was not informed by legal advice.” Whilst Mrs Akram was allowed access to a lawyer, she had not had her consent to be interviewed informed by legal advice.

Mr McLaughlin argued that Mrs Akram had not been acting with the benefit of legal advice which she ought to have been given.  Her interview therefore was inadmissible.  There had been no voluntary, knowing and intelligent relinquishment of her right, which had to be established in an unequivocal manner, with minimum guarantees commensurate to its importance.  The principle set out in Jude etc applied to all cases.  There should be consistency rather than one rule for interviews conducted by the police and another for interviews conducted by other agencies.

The procurator fiscal depute sought to distinguish all the authorities cited for Mrs Akram. They all related, she said, to police interviews. Police interviews had a compulsion element absent in non-police agency interviews. The two were not comparable. In any event, Mrs Akram was not a vulnerable person, being an adult who had had the right to legal advice made clear to her. She had chosen, under no pressure, not to seek legal advice and therefore she had waived any Article 6 rights in this regard.

 

Sheriff Murphy’s Determination – Does the Cadder Principle Apply to Non-Police Agency Interviews?

 

Sheriff Murphy proceeded to deal with the two issues in the case. First of all, did the Cadder principle apply to non-police agency interviews and secondly, had there been a valid waiver of her rights by Mrs Akram?

The first point seems to be the principle with potentially wide applications, although, as we shall see, these might be mitigated significantly by virtue of the decision on the second part.

Dealing with the Cadder point, Sheriff Murphy stated that the “ratio of the decisions in the cases of Salduz v Turkey and Cadder v HMA is that a suspect’s right against self-incrimination would be compromised if he were denied access to legal advice before being questioned by the authorities in the form of the police.” He indicated that this was clearly indicated in Salduz and in the speeches by Lords Rodger and Hope in the Cadder case.

He went on to say “The principle itself is so clearly recognised in these passages that I can see no reason to distinguish between the police and any other agency which is questioning a person suspected of committing some type of crime.  In this context it is significant that the procurator fiscal depute in her submissions to me used the phrase “reporting agency” because that reflects the fact that the agencies involved in this case were used to reporting matters which they had investigated to the office of the procurator fiscal so that prosecutions might be undertaken.  Accordingly their enquiries must be seen as sharing some of the features of a police investigation and the right against self-incrimination must be as important in relation to any interview conducted by such an agency, where the contents of the interview are likely to be used in evidence, as it would be in the context of police questioning.  I can see no reason why the general principle should be restricted to police questioning after detention, as the respondent urges.  The principle must be applied equally to all enquiries which are likely to lead to criminal proceedings.” (Emphases added.)

The learned Sheriff did not go quite as far as to say that this was now trite law, but his analysis makes clear that the Cadder protection must apply in these matters. Where the agency involved can effectively bypass the police in reporting a matter to the Procurator Fiscal, then such an interview must be treated as if a police interview. One can self-incriminate in such a non-police agency interview as much as one can in a police interview, and in either case the prosecution would seek to use admissions made by the accused in such interviews in court. Logically therefore, the Sheriff viewed that the absence of compulsion was not the relevant factor here, but the purpose of the interview and the use to which admissions made therein might be put.

There are a large number of agencies which can be described as “reporting agencies” as used by the fiscal depute and the Sheriff. The wider issue is that these agencies are UK wide. Whereas s14 detention, as formerly applied, was only the law in Scotland, the issue of non-police “reporting agencies” conducting voluntary interviews under caution is a national one. Whilst the mechanism by which the ECHR is applied differs between Scotland and England (in Scotland under the Scotland Act and in England under the Human Rights Act) Article 6 protections apply across the board. It would therefore appear that the issue raised would be applicable across the border.

Of course the requirement for corroboration in Scotland, which is not replicated in England, makes this even more important in the latter jurisdiction. In Scotland, one cannot generally be convicted solely on one’s own admissions. In England, without that requirement for corroboration, admissions under caution could be enough, on their own, to result in a conviction.

With the UKSC having determined this principle, it would not be a surprise to see the specific issue addressed by Sheriff Murphy in this case being refereed to the UKSC for an authoritative determination.

Indeed it has already been suggested that, due to the cross border implications, the Advocate General for Scotland will seek to refer the matter to the UKSC.

Sheriff Murphy’s Determination – What is the Position Regarding Waiver?

 

Sheriff Murphy then spends longer dealing with the principle of waiver than with the basic Cadder rule. He quoted Lord Rodger in Cadder as saying:-

“It is, indeed, quite common for those who have been arrested to decide to make a voluntary statement to the police and not to exercise their right to obtain legal advice before doing so. See, for instance, the famous example in Manuel v HM Advocate 1958 JC 41. Similarly, if a suspect had a right to legal advice before being questioned, but declined to exercise it, a court might have to consider whether, having regard to all the circumstances, he had effectively waived his relevant article 6 Convention right so that no violation would arise.”(Emphasis added)

The learned Sheriff noted that it had repeatedly been made clear to Mrs Akram that she was entitled to have legal advice, both in the letter inviting her to attend at the interview, and during it as it proceeded. He said “I further consider that these excerpts show that she clearly and obviously declined to seek such advice at a time when it was open to her to do so, apparently at an early stage in the interview”.

He considered that it was clear that Mrs Akram had waived her right to legal advice.

The thornier question was whether this was “an informed decision, freely taken?”

Sheriff Murphy considered the case of Pishchalnikov v. Russia – 7025/04 [2009] ECHR 1357 (24 September 2009) where the court had determined that a suspect had the right to waive his rights in connection with access to legal advice. He quoted paragraph 78 of the decision which states:-

“However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.” (Emphasis added by Sheriff Murphy)

In the present case Mrs Akram had specifically declined legal advice. This meant that the Pishchalnikov case fell to be distinguished as here the suspect had repeatedly asked for a lawyer, but been refused, prior to making a confession.

The Sheriff then considered the “circular” argument proposed by Mr McLaughlin for Mrs Akram to the effect that, in the absence of legal advice, a suspect could not make a valid waiver of their rights, as they did not know and understand what those rights were.

Here he considered the Jude case referred to above.  He noted that that case was decided based on the rules in place prior to the Cadder decision and the 201 Act being passed. At the time there was no right recognised to have legal advice prior to an interview by the police, so accordingly the police did not advise suspects of what ultimately, as per the UKSC in Cadder, turned out to be the correct position, namely that there was such a right.

In such a case there could only be an implied waiver, as no one could expressly waive a right not known to them.

He went on to say:-

“The situation in the cases of Jude & Ors is rather different from Mrs Parveen Akram’s position.  She was expressly advised of her right to seek legal advice and she chose not to exercise it.  She was expressly advised that the interview would be suspended on her indicating that she wished to seek legal advice but she declined to do so.  That was an informed decision on her part because she was plainly aware of the existence of the right and she did not seek to exercise it.  I therefore consider that she must be held to have waived her right to seek legal advice prior to and during the interview of 9 December 2008.” (Emphases added)

He then decided that (a) the Cadder rights were applicable, but that (b) Mrs Akram had waived them and therefore her alleged admissions were admissible and the case should proceed.

We now wait to see if this case will be appealed to the High Court.

 

Implications

 

Where does this take us?

Firstly, I imagine that, whether with this prosecution or another, there will be a case determined by the Appeal Court in Scotland or indeed the UKSC in an effort to determine this point. Are non-police agencies bound by Cadder rules? On the basis of Sheriff Murphy’s analysis, which of course is persuasive, but not binding, there is little doubt that such rules do apply. Agencies such as the Department of Work and Pensions, local authorities in connection with various functions, Her Majesty’s Revenue & Customs and many more would fall within that description. All sorts of cases, such as those relating to breaches of the benefit rules, tax evasion, environmental heath infractions, planning offences and violations of the rules of Company law or Bankruptcy, where the investigations are carried out not by police, but by a “reporting agency” would appear to be covered. On that basis, and therefore across the UK, will there turn out to be many cases where prosecutions need to be dropped or convictions quashed? I must for now leave that question open.

 

Secondly, what are the implications for Legal Aid, both in Scotland and elsewhere in the UK? Under the new post-Cadder legislation in Scotland the Scottish Legal Aid Board (SLAB) set up a much criticised scheme for providing people who are detained for questioning by the police to receive free legal advice from a police station duty solicitor, being an extension of the existing Duty Solicitor scheme. A spokesman for SLAB is quoted by the Herald as saying that assistance was available to those questioned by outside agencies but would be considered on an individual basis. After all the disputes between the solicitors who practise criminal law in Scotland and SLAB over the new police station duty advice, I am sure the last thing SLAB want is to have to extend this in some way to cover interviews with other agencies. For one thing, SLAB’s budget is sorely pressed just now, they tell us, and a new layer of “Duty Solicitor” activity would result in resources being taken from elsewhere in their budget. But following Sheriff Murphy’s principle, if a police interview and that with a non-police “reporting agency” are so similar as to require Cadder protection in each case to render them ECHR compliant, can the Scottish Government justify not extending the free “Duty” legal advice to “reporting agency” interviews?

As the arrangements for Legal Aid in England are not something of which I have much, if indeed any, knowledge, I leave to wiser people than me if there would be Legal Aid implications outwith the Scottish jurisdiction.

 

Thirdly, is the waiver decision reached by Sheriff Murphy a “get out of jail free” card for the prosecution, reducing the impact of the Cadder principle in practice?

The situation where there is police detention involves the suspect, often without any warning, being apprehended. There is no opportunity to take legal advice prior to interview and a suspect cannot opt to leave the police station to seek such advice. The new post-Cadder regime in Scotland allows the suspect to seek and obtain such advice, even if over the telephone, prior to interview unless the right is waived.

However in most “reporting agency” cases, the suspect would attend, as did Mrs Akram, on a voluntary basis. The practice of the DWP, as I understand it, when investigating an allegation of a fraudulent benefit claim is, at the appropriate moment in the inquiry, to invite the suspect to attend. The letter doing so makes clear that the suspect has the right to seek legal advice prior to the interview. As was seen in the Akram case, the interviewing officers made it clear to Mrs Akram that she was there voluntarily and that she could call a halt to the interview at any time if she wished, including if she decided as matters progressed, to obtain legal advice.

Is it likely therefore that, in many of these “reporting agency” cases the court would determine that, even if the Cadder principle applied, there was in fact a waiver of the suspect’s rights if they choose not to see a lawyer? It would seem at first sight that that would be the position.

Each case, in theory, would have to be dealt with on its individual merits and therefore it is possible that, as in Mrs Akram’s case, the suspect is deemed to be sufficiently “informed” to waive their rights, whilst with other suspects, perhaps due to their age, level of education, or mental capability are not determined to have the capacity to reach an informed decision?

One way, of course, to prevent such issues arising would be for some “Duty Advice Solicitor” scheme to be set up for these cases, where the decision not top take advice would be made against a clear backdrop of information about the suspect’s rights, but even then, we can, in certain cases, come back to the “circular” argument of how can a person be informed in their decision to waive their right to legal advice when they have not had legal advice as to the effects of not having legal advice!

 

Conclusion

 

As with many cases which cause the accepted position to be questioned, it is easy to make dire predictions of the disasters to befall the justice system as a result. In most cases, once the implications are fully assessed, it turns out that the feared effects are diluted.

It is, as Premier Zhou Enlai of China is reputed to have said about the effects of the 1789 French Revolution, “too early to tell” if the Akram case will be as disruptive to the system as was Cadder, if not more so.

What it does show is that the Scottish courts are vigilant in their responsibility of ensuring that the Scottish system becomes ECHR compliant, and it is striking in how many ways, both large and small, it has been found wanting over the years.

Hopefully the Carloway Review, presently ongoing, might hopefully see a way to bringing the criminal justice system in Scotland to a position where there is full ECHR compliance and where the press will no longer take the chance of decisions such as this to complain about “Europe” interfering with our law.

 

 

 

 

 

What Does the Neil Lennon Case Tell Us about the Issues of Sectarianism and Anti-Catholicism in Scotland?

Reader “Henry Clarson” made some detailed and thoughtful comments on my earlier post, so I thought it best to put them up as a separate piece, with my thoughts below.

Thanks Henry for taking the time and trouble to contribute!

 

Comment by Henry Clarson

Paul, I’ve read both of your Neil Lennon articles and also the one by Chris Fyffe. I don’t question for a moment that both of you are acting in good faith and are trying your best to learn from this case as well as avoid knee-jerk reactions.
I fear, however, that you’re asking too many of the wrong questions in the hope that the answers you find will be other than the fundamental one which is staring everybody in the face.

How many mature democracies have such a problem with sectarianism that they still need to discuss introducing specific legislation to address that issue in 2011? Scotland and where else?
In how many democracies in the Western world is the abolition of Catholic schools relentlessly debated at every level of society?
Notwithstanding imperfections in the current legislation, why is that the overwhelming majority of hate crime victims come from a minority group, namely, Catholics?
Mr McBride referred at the end of his Newsnight interview to jurors who can full of prejudices. If anything, he is understating the likelihood. In a sectarian society, it would be astonishing if it proved to be otherwise.

Lawyers and legal professionals can have all the intellectual discussions they want. At ground level, where I dwell, if I were giving evidence in court against a sectarian thug who had assaulted me I might have confidence in the prosecutor’s determination to secure a conviction. I might be prepared to believe that the judge would ensure that the law was scrupulously followed. I could even accept that the law itself had been framed by public-spirited legislators to protect ordinary people from harm. However, I would be wondering how many of the jurors would, in normal everyday life, curl a lip at someone entering a chapel or narrow their eyes at the sight of an acquaintance wearing a green tee-shirt. It might not matter when the verdict came in but it would nonetheless be a consideration.

The fact is that a great many people in this sad, nasty, wee country were pleased that Neil Lennon’s assailant got off with the assault charge. A great many more were not nearly as surprised by the verdict as has been made out. Some spoke of their ‘surprise’ but what they really meant was that they were disgusted, angry, sickened, deflated or in despair. It’s shocking and shameful but not much more ‘surprising’ than the routine scandal of a law-abiding black person being stopped and searched by the institutionally racist Met.

Not everyone who lives in Scotland is anti-Catholic, anti-Irish, anti-Celtic and anti-Neil Lennon but I would have no problem rounding up eight of them who would have delivered the same verdict that the jurors in Edinburgh returned. I could do that every day of the week for the rest of my life. McBride is quite right to bring up the issue of prejudice. It is the glaringly obvious reality from which every other debate is a digression.

 

 

My Thoughts in Response

What I was doing, and what Chris Fyffe was too, I think, was trying to address the specific circumstances of the John Wilson case. How could the court system possibly clear a man of a charge when literally thousands of people have seen the “assault” on television, on the Internet, and in the newspaper pictures? From time to time there are cases which shake public confidence in the “justice” system – and I feel that it helps if there are people who can make some comment to try to explain what happened.

As I have said in everything I’ve written about this case, the verdict of not guilty on the assault charge was a great surprise to me, but as Chris Fyffe pointed out, once the specifics of the charge, together with what little evidence was reported, are considered, it is possible to see where the jury (or at least eight of them) were coming from. Were they right to do so? They heard the whole case, evidence and legal submissions, and one should always be wary about criticising a court decision based on the evidence if one was not in court to hear it, or if one has not read a full transcript of the case.

Henry’s comment looks much wider than the specifics of the case. It can be true that those with a legal background might be more focussed on the particularities of a case, rather than upon the generalities. Usually, as here, there is a reason for doing so, partly because, when it comes to the debate on the wider issue of sectarianism in Scotland, there are many people far better qualified than I am to discuss it.

Before offering my view on the generalities, I would say the following about the specific issues Henry raises to make my views clear. (In response to one of the earlier pieces, I was labelled a “Hun apologist” on Twitter!)

 

1                    There is no doubt that there is a serious problem with what is labelled “sectarianism” in Scotland, especially in the West.

2                    It has been described by the First Minister as “Scotland’s shame” and as a “cancer” upon our society, and the Scottish Ministers are pledged to reduce and eliminate it.

3                    The furore about the incidents last season, and the proposed new football related legislation in the summer made it clear that, throughout Scottish society there was an apparent recognition of the problem and a stated desire to act to remedy it. The issue was how best to do so.

4                    The most common victims of “sectarian” offences are those perceived to be associated with Roman Catholicism.

5                    There are repeated efforts to attack the Catholic education system, which is wrongly blamed for promoting “sectarianism” even though many non-Catholic parents prefer to send their children to such schools, rather than to non-denominational ones.

6                    Jurors are human beings. They will have prejudices. The court system is designed, as far as possible, to eliminate these prejudices from jury verdicts.

7                    I agree that there will be some who welcome this verdict and who see this, in some warped way, as carte blanche to try to emulate Mr Wilson (although I suspect that when he is finally sentenced for his breach of the peace, people might react with surprise about how severe a punishment a court can, and will, impose for that crime).

8                    Are there people in Scotland prejudiced against Catholics, Irish people, Celtic fans and Neil Lennon? (which is not to say that those categories are always related – they are not) Of course there are.

9                    Is there a perception that, in the same way that Rangers are alleged always to benefit from support within the football authorities, the Scottish State is biased against Catholics? Yes, there is. As the saying goes, just because you are paranoid, it doesn’t mean they are not out to get you!

10                I grew up in Coatbridge, and even there, with its Catholic reputation, the problems of sectarianism were apparent, whether involving Celtic and Rangers or, on a lesser scale, Albion Rovers and Airdrieonians. Noticeably, in my day, the problems between school pupils did not relate to whether their were of a different demonination – being a different school was enough.

 

As I said, there are many better able to debate these matters than me, but I hope I can offer something from a legal background which might be of value (or indeed might not).

 

There is no doubt that there are tensions present in Scotland which are categorised under the heading of “sectarianism”. Anyone who suggests differently is wrong. But we need to look at how that manifests itself.

The majority of “sectarian” offences, as defined, seem to be committed in connection with football. This may relate to offences at or near the football ground, at or near a pub or club showing a game, or based upon someone wearing what is taken by someone else to be the “wrong” colours.

The law has recognised that there are certain matters categorised as “hate-crimes”. As an aside that always seems a rather Orwellian term, and not in a good way, but it is what those in authority use to describe these matters.

Specifically, in relation to sectarianism, we are talking about religion. The present law is laid down in the Criminal Justice (Scotland) Act 2003 section 74  titled “Offences aggravated by religious prejudice”.

Subsection 2 states:-

“For the purposes of this section, an offence is aggravated by religious prejudice if—(a)at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or(b)the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.”

The use of the term “Fenian b######” as Mr Wilson was alleged to have shouted, was considered by the Appeal Court in Walls v Procurator Fiscal, Kilmarnock [2009] HCJAC 59 where the court rejected Donald Findlay QC’s argument that the use of the word “Fenian” was a comment regarding politics, whereby his client had been referring to the “Fenian Brotherhood, a political society, set up originally in America in the 1850s, to bring about the independence of Ireland.”

The Appeal Court rejected this, stating “The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s. It is within judicial knowledge that the term “Fenian” is used by a certain section of the population to describe a person either of Irish ancestry or even a person of the Roman Catholic faith, whether of Irish ancestry or not. Coupled with the derogatory term “bastard”, this is either an expression of religious prejudice or racial bigotry or both.”

As a side issue, it is interesting that, in Mr Wilson’s case, the aggravation was not libelled as a racial one, as it was for Mr Walls, even though Neil Lennon is notably Irish!

What we find is that the authorities are treating supporters of, for example, Celtic Football Club as being members or presumed members of a “social or cultural group with a perceived religious affiliation”. In such a case abuse of a Celtic fan (or indeed of a Celtic manager), becomes a “religious” aggravation. Whilst football is very important to many, and some go as far as to refer to it as a religion, the fact is that football and religion are not synonymous. Rangers fans are not necessarily Protestants; Celtic fans not necessarily Catholics.

 

In an alternate universe, Celtic and Rangers might be disbanded. This would not solve the “sectarian” issue overnight, but undoubtedly would take some of the heat out of the tensions which exist. There have been problems between Protestant and Catholic in Scotland since the Reformation, but now the “badge” of each side seems to be the support of the appropriate football team.

But, for many reasons, and rightly so, Celtic and Rangers are here to stay (the HMRC involvement in Rangers’ financial affairs permitting). I don’t imagine that many of the people shouting vile abuse at the other side on a Saturday are in their place in the pews in the Kirk or Chapel on a Sunday. Yet these football hatreds are classified as “religious”.

 

One of the problems with the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the most recent effort to solve this problem, is the linking, I think, of football and religion.

Footballing hatred does not sit exactly on top of religious hatred in the relevant Venn diagram, but the approach to these matters seems to assume that they do.

Trying to squeeze circumstances into the guise of an “offence religiously aggravated” when it involves references to old political bodies, or even more ancient battles, such as the Battle of the Boyne, creates the problems exemplified by the Wilson case. The issue about whether he called Neil Lennon a “Fenian b######” which would have been a religious aggravation or as he claimed a “f##### w#####” which would not, seems bizarre. The bottom line was that the man attacked Neil Lennon and caused a breach of the peace, potentially inciting a riot. The linkage of football rivalry to religious has caused the stushie we have seen in recent days.

If then we are not to disband one, other or both of the Old Firm, how might the problems be addressed?

Parliament can make clear that offences are worse if they take place in particular places, or involving particular people. An example is the legislation protecting emergency workers.

Let our MSP’s forget about bundling football and religion together. Bring in specific legislation indicating that offences in connection with football can be treated more severely by the courts, due to the knock on effects on other “supporters”. Remove the references to hatred of specific groups from the proposed legislation. Let the Procurator Fiscal prosecute without the restrictions placed on him by the classification of the mater as a “hate crime.”

Other action to deal with perceived “religious” hatreds, such as greater ability for local authorities and the police to restrict, re-route or prevent marches which are likely to cause disorder, are already in place.

The curse of alcohol related violence at football was greatly reduced by the Criminal Justice (Scotland) Act in 1980.

Perhaps a focus on specific football related crimes for a period, would clear some of the nonsense away, and let us see precisely what specific problems of religious hatred remain. We need a clear sight of the problem to give the country the best chance of solving it.

Taking action to strip away the “respectability” with which football seems to cloak sectarianism, and laying the issue out starkly, would give our nation the best chance of solving the problem and lifting the curse!