Corroboration: a welcome U-turn...

Let's be blunt about it. Lord Carloway reported in 2011, recommending that corroboration be struck from the law of Scotland. In the months and years that followed, the case for abolishing the rule was by turns shambolic, confused, incoherent, and ad hominem. Throughout, the Cabinet Secretary for Justice cut a doubly alienating figure: in the TV studios and in the parliament, he was both jumbled and implausible in his advocacy, and high-handed, carnaptious and indicting of those who disagreed with him. 

Police officers, parliamentarians - even the Lord Advocate - conspired to give an impression of muddle and confusion around what the policy was for, and what it would and would not achieve if enacted. All of this is regrettable -- not least because there are good reasons to take another look at what has become of the old doctrine of corroboration and the injustices which it sometimes produces.

Lord Bonomy reported yesterday, identifying a series of alternative safeguards and changes to the law of evidence which might be adopted if we ditch the requirement that the essential facts of a criminal prosecution must be evidenced by two independent sources. In response, Kenny MacAskill's understated successor as justice minister, Michael Matheson, slammed on the breaks, deleting the proposals from the Criminal Justice Bill -- at least for now -- to allow a holistic examination of the whole area to take place. He has indicated that the final decision will be for the next Scottish Government, after the 2016 election. 

This is a wise move by the Scottish Government, but the fact that reverse-ferreting is now necessary is also a frustrating and unnecessary unforced error. Carloway's proposal was always going to be deadly controversial. It was clear from the get go that the Lord Justice Clerk's recommendations were not underpinned by a thoroughgoing examination of how the corroboration doctrine interacted with other safeguards for accused people. In the absence of that work, the case for abolition had to be coherent, cogent and responsibly made. It wasn't. Behind the scenes, several folk spoke up, sensing the mood, reading the fallout, counselling caution. This boorach was and is unnecessary and has been unnecessarily damaging to the government and to its credibility.

Thanks be to the Wee Man that between them, Nicola and Michael Matheson have finally got a grip on this negligently-handled, runaway reform.

In (partial) defence of Kenny MacAskill...

Whichever way you slice it, corroboration reform has been ineptly handled.  It should not - it cannot - have surprised anybody in government that Lord Carloway's proposal would be stoutly resisted by much and probably most of the Scottish legal profession. 

But when it comes to choosing your political opponents, you could do a lot worse than Scots lawyers. For folk whose careers rely, at least to some extent, on persuasion, advocates and solicitors' attempts to resist these proposals have been singularly unfocussed and inept. The tone has been hysterical, the rhetoric cataclysmic. Legal commentary, which scorns the Cabinet Secretary's passionate rhetoric in favour of abolition, has hardly been bereft of its own vehemence. That you are the only jurisdiction in the world using corroboration is not necessarily a reason to be rid of it, but it does leave the argument that a system of criminal justice without corroboration is an abomination looking just a touch overheated. 

And too often, corroboration's defenders have allowed an impression of indifference to the real injustices to some categories of complainers caused by the corroboration rule to be cultivated.  In cooler moments, many and most Scots lawyers understand that the strictures of corroboration throw up difficult cases.  But to be seen coldly to wave aside the claims of victim of domestic abuse or sexual assault just makes you look like the Demon King, and confirm most people's worst suspicions about the grave-dust circulating through lawyers' veins. The reality may be more sympathetic and nuanced, but some public recognition of the problems of corroboration wouldn't go amiss.

On the other hand, the case for abolition has been troublingly garbled and inconsistent. Abolish corroboration to ensure access to justice for thousands of vulnerable people. Abolish corroboration, we're not really abolishing it anyway. Abolish corroboration to allow hundreds of extra complainers their day in court. Abolish corroboration, and these additional court days and lawyers and costs won't cost us an extra dime. The Cabinet Secretary's performance on BBC Sunday Politics Scotland a few weeks by was a marked improvement, but it was too little, too late.

Even before Kenny MacAskill's ridiculously intemperate and ill-judged summing up at stage 1 in Holyrood last month, key proponents of the legislation have done little to instil confidence that they understand what they're doing, or why. What's the point in abolishing the corroboration rule in law if prosecutors will continue to demand corroboration in fact, before putting cases before the courts? Bugger all, as far as I can discern. For Kenny to make this gibberish case for abolition in a flagship television interview explaining his proposal to the public is bad enough. Worse, the argument continues to enjoy a second life, aired by a number of no doubt well-intentioned but confused parliamentarians advocating law reform. (In the course of the recent debate, Linda Fabiani was just the latest MSP to make this singularly daft point).  None of this inspires a great deal of confidence.

There are, I'd argue, good reasons to favour abolishing corroboration and introducing additional and alternative safeguards. On the basis of Holyrood's narrow vote in favour of the general principles of the Criminal Justice (Scotland) Bill, it looks like this will happen, and a group under Lord Bonomy will consider what additional protections should be introduced. Corroboration will not be abolished until these are in place. Under Kenny's scheme, parliament will ditch corroboration, and only then consider what to replace it with. But if corroboration is a fundamental safeguard in the system, how can MSPs effectively consider the desirability of getting rid of it, without reference to concrete range of alternatives? Over at the Firm, Ideal Cynic describes this as a "bizarre way to legislate". Patrick Harvie made the point in the chamber, neatly:

"Even if I was to accept that the law should be changed if it is not fit for purpose, should we not know what we are changing it to before we change it?"

Others would make a slightly different, wider point. Why not let the review group consider all the options, rather than pre-empting their deliberations and excluding retaining corroboration from consideration? What if Lord Bonomy and his comrades believe keeping the rule is the best way forward for Scotland? It is beyond dispute that Kenny's plan to abolish corroboration then review alternatives is an odd one, but given the context, I think it is at least defensible. 

As has become eminently clear, the status of corroboration is controversial. It is common practice to give bodies conducting reviews clear terms of reference, settling some controversies beforehand, and directing their attention to particular issues and questions. We don't usually do so through primary legislation, but by settling the question of whether, in principle, we want to build our criminal justice on corroboration or not, we make Bonomy's task significantly more straightforward. 

If we don't exclude retaining corroboration from Bonomy's terms of reference, his task becomes that much more substantial, forced to consider a dizzying range of additional counterfactuals. Should corroboration be retained as is, partially retained, eliminated in some offences and not others, or abolished altogether? Might we adopt a more subjective system, allowing the judge to waive the corroboration requirement where, for example, the facts alleged by the Crown are not, of their nature, capable of being corroborated? Depending on which of these options we plump for, what sorts of new safeguards might it be appropriate to introduce? It seems likely that different safeguards would be thought appropriate, depending on which conclusion you reach with respect to corroboration.

By endorsing the principle of eliminating the corroboration rule from our criminal law, Bonomy and his colleagues are afforded a much clearer basis against which to work.  What would be the point, for example, of Kenny making a reference to the Bonomy group on the basis that he intended to abolish corroboration, only to find that he didn't have a parliamentary majority for the basic principle? It would be a merry waste of time and energy. Kenny's solution avoids this possibility. This an odd way to legislate, but not, I think, a wholly irrational or unwelcome one in view of the controversy.

That said, the Cabinet Secretary for Justice has a power of work to do to redeem himself from his persistent blunders and missteps in his management of this Bill.  Why was he so badly prepared to make the case for abolition? Why weren't the arguments and lines nailed? Why did his judgement desert him in the chamber, and faced with a divided and skeptical party, what on earth possessed him to reprise his "I'm tired of marching" speech? 

Kenny inappropriately introduced the spectre of the independence referendum into this debate. So let's talk about the referendum. At a critical time for the Scottish Government to project an appearance of competence and reliability, ready, steady and able to take up the reigns of sovereign authority, Kenny has embroiled himself and the party in a bitter dispute, manufacturing a small crisis and publicly alienating his colleagues. Too often, he has seemed half-prepared, and has comported himself in a manner that has done little to reassure even those who agree with him that the law should be reformed. All of this was avoidable. Whatever you think of the rights or wrongs of abolishing corroboration, this has been a regrettably inelegant, unedifying and damaging outing for the Cabinet Secretary for Justice, whose political instincts seem to have gone thoroughly off the boil.

Baffling Poppycock

It's one of the weirder talking points in the corroboration debate: even if we abolish corroboration, you couldn't be convicted on the evidence of a single witness. 

As I have written here before, I'm swithering on the issue, but am increasingly inclined towards Kenny MacAskill's side of the argument. But one reason why I'm still undecided is that the claims being advanced by both sides of the debate, to justify retention or abolition, too often appear confused, hysterical, and even dog-gone fanciful. 

Enter Kenny MacAskill, sofa right. The Cabinet Secretary for Justice appeared on Scotland Tonight on Wednesday, discussing the proposals set out in his Criminal Justice Bill and defending the proposed abolition of corroboration. Advocate Derek Ogg QC made the contrary case. Kenny argued:

"We’re not going to have people convicted on one single evidence from one single witness.  That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence that will be led."

And I scratch my head.  Let's remind ourselves (a) what the current rule on corroboration requires and (b) just what Kenny's reforms will do.

Definition: Corroboration

In Scots criminal law, only the essential elements of criminal offences need to be corroborated by evidence from two different sources.  To borrow Lord Carloway's definition:

7.2.7 Generally, there are two crucial facts requiring proof in every crime: (1) that the offence was committed; and (2) that the accused committed it.

In a murder case, for example, the crucial facts would be that Jimmy was killed, and that Bob killed him.  It can't be emphasised enough that you don't have to find two witnesses to say "I saw Lee Harvey Oswald hunched over a rifle on the grassy knoll."  Scottish courts treat circumstantial evidence as potentially corroborative.

Equally significantly, corroborative evidence needn't point decisively to the guilt of the soul in the dock. As Lord Carloway observed in his Review, evidence can "be corroborative even if, taken on its own, it does not point conclusively, or even at all, towards an accused's guilt". The corroboration might be an a muddy boot, equally consistent with the prosecution and defence cases. Even under the status quo, competent convictions may rely - almost in their entirety - on the direct evidence of a single witness.  But legally, the crucial facts must (with some exceptions) be spoken to by two independent sources of evidence. 

What Kenny's Bill will do...

So that's the current dispensation. What will replace it, if Kenny's proposals go through? Under a heading "abolition of corroboration", section 57 of the draft Bill sets out that:

Corroboration not required 
(1) This section — (a) relates to any criminal proceedings, (b) is subject to sections 58 and 59 .
(2) If satisfied that a fact has been established by evidence in the proceedings, the judge or (as the case may be) the jury is entitled to find the fact proved by the evidence although the evidence is not corroborated.

Put simply, the legislation will eliminate the idea that the essential facts of the case - that a crime was committed, and that it was the accused who committed it - must be corroborated. That's the whole rationale of the reform. It will allow folk to be convicted on the evidence of a single voice that (a) the crime was committed and (b) the accused committed it.  It's for the trier of fact - judge or jury - to determine whether the prosecution has proved that beyond reasonable doubt.  But the credible and reliable evidence of a single witness will be enough.  Make no bones about that. No ifs or maybes.  That's the essence of this reform.

So. Um. No single-witness convictions?

So what the devil is Kenny talking about when he says "We’re not going to have people convicted on one single evidence from one single witness?" Take a hypothetical sexual assault case, the sort of case we hear about a lot in the corroboration debate. Kelly says John sexually assaulted her, without consent.  There is no other direct evidence. Because Kelly did not take her complaint to the police for over a week after the alleged offence, there is no DNA evidence capable of confirming Kelly's evidence that sex took place. There is no witness to the complainer's subsequent distress after the incident, capable of corroborating the absence of consent on Kelly's part. John denies everything. There is no other evidence to confirm his presence in the house on the day alleged.  But Kelly is a credible and reliable witness, with no obvious reason for confecting the story. Should criminal proceedings be taken?

Kenny seems to be suggesting here that the answer is no, that the Crown wouldn't proceed. But that's exactly what happens under the current corroboration rules. That's exactly the situation the SNP government claim they are seeking to remedy. So why change the legal rules if, de facto, the Crown intends to revive exactly the same test in deciding whether or not to prosecute? It is a bewildering claim.

Remember, under the current law, only essential facts need to be corroborated, not every fact which the prosecutors lay before the jury in their deliberations. The reason given most often to justify abolishing corroboration is that proving these bare essential facts is impossible in too many cases, particularly where the alleged offences take place in private. If the Lord Advocate instructs prosecutors to apply a quantitative test to the evidence, as Kenny argues, many of the complainers who find the doors of court closed to them at present will remain, unhappily, at the gate, still deprived of a day in court.

Change the facts of our hypothetical case just a wee bit.  Say that, in police interview, John admits that he had sex with Kelly, but argues that the intercourse was consensual. In this situation, the fact that sex took place is now corroborated.  But absent any witness which can speak to Kelly's distress after the event, under the current corroboration rules, this case would fail on the grounds of insufficient evidence.  If the Crown rigorously applied its own "quantitative" test, as Kenny suggests, presumably the case wouldn't be taken to the High Court either. The absence of consent isn't corroborated.  Only Kelly's evidence - the evidence of a single witness - speaks to it. 

But this is precisely the sort of case which the corroboration reform is designed to catch; precisely the sort of complainer whose "access to court" Kenny was passionately, and I'm sure sincerely, arguing for on the Scotland Tonight sofa.  So what to make of his mystifying reference to a "quantitative" safeguard even if we abolish the corroboration rule? I've tried to make some sense of Kenny's argument, and put it in its best light, but I'm stumped.

The whole point of reforming corroboration is that you could be convicted on the voice of a single witness. That isn't to say that prosecutors will habitually decide not to lead strengthening evidence in support of their cases, to overcome the high hurdle of reasonable doubt.  But that's what this law is all about. For Kenny to suggest otherwise is baffling poppycock.

Corroboration: will you or nil you?

Polarisation does silly things to debates.  Black and white, all good or all bad, disagreements organised around extremes rarely do justice to the grey shades, the advantages and disadvantages, which characterise almost every innovation or reform. So it is proving with the discussion around the Scottish Government's intention to abolish the corroboration rule in Scottish criminal cases.  

Unlike most Scots lawyers, who seem inveterately opposed to the idea, I find myself swithering, undecided, about it.  This indecision isn't particularly down to a sense of loyalty to the origins of these reforms. A partisan Nat I may be, but I've grumbled many a grumble about the SNP's approach to a number of big-ticket criminal justice issues over the years.  In this case, my wavers are down to the to-and-fro of the arguments which have been offered on either side of the debate.  The justifications offered by the doctrine's detractors and defenders all seem to me to overstate their case.

It's about access to justice, stupid.  In Holyrood this week, Kenny MacAskill described the proposal as  "a long overdue step in ensuring that victims have access to justice". There's certainly some force in this argument. Today, as a result of the corroboration rule, a number of cases can never be put before our courts.  Achieving corroboration of the essential elements of an offence can be particularly difficult, even impossible, where events take place in private. Perhaps most difficult of all are sexual assaults.  

On one extreme version of the case for reform, you'd think that the abolition of corroboration will, of itself, herald a new age in criminal justice. Victims, previously abandoned outside of our courts, will all be welcomed in, their testimony examined, considered, and a verdict reached.  Realistically, though, this is a fantasy, or a very distant aspiration. 

Our prosecution system is rammed. Our courts are rammed. Our prisons are rammed.  If some proponents of corroboration were to be believed, you'd think Scotland was full of idle procurators fiscal, flush with underspent budgets, lunching sheriffs taking the afternoon off for want of criminal business, and empty jail cells. None of these visions remotely approach the reality, and simply doing away with corroboration won't make them true.  

Eliminating corroboration may eliminate one set of hurdles facing complainers' access to courts, but realistically, there will still have to be hurdles. Most likely, the untransparent exercise of prosecutorial discretion to decide which cases are put before the courts. This argument doesn't necessarily favour abolition or retention. Better, you might think, to take decisions on bringing cases before the Court on a qualitative rather than a quantitative basis.  Nevertheless, the idea that this measure will "ensure that victims have access to justice" as MacAskill suggests elides the many barriers which exist, and probably have to exist, if our creaking, overloaded criminal justice system isn't to collapse under the overwhelming pressure. 

If parliamentarians and pressure groups, supporting this measure, are to give any substance to their rhetoric about access to justice, they should be asking Kenny about what funding concessions he was won from John Swinney to fund the necessary expansions in the court, prison, prosecution and legal aid budgets, so that accused persons may be properly defended. The idea that these aspirations can be met out of existing budgets deserves a black laugh.  Absent hard cash, it's hot air, amounting to a false prospectus for eliminating corroboration.

No person should ever been convicted on the evidence of just one person.  Superficially, I can see the force of this argument. How can reasonable doubt be dispelled, when the case essentially comes down to the believability of one witness, over another?  The problem is, Scots law already does this in a number of ways. Today, courts recognise the "special" self-corroborating confession, first recognised in the case of serial-killer Peter Manuel, hanged in Barlinnie 1958.

In rape cases, our criminal courts have held that the complainer's distress can corroborate the absence of consent. But this isn't corroboration in the ordinary sense of two independent pieces of evidence capable of pointing to the commission of the offence.  Assuming there's no other evidence in the case, both pieces of evidence regarding consent originate with the complainer, and corroboration in the ordinary sense is essentially dispensed with.

The Moorov doctrine performs a similar task.  First established in 1930, in Moorov the High Court held that a series of offences showing an underlying similarities may be treated as mutually corroborating. The doctrine has been allowed prosecutions to take place against people who commit a series of sexual offences against different children.  I didn't sit through the trial, but Moorov almost certainly played a role in the recent prosecution of Bill Walker for domestic abuse, with one wife's testimony about Walker's behaviour being taken to corroborate the evidence of another where there was no other evidence that the crime took place.  

Moorov employs a totally different idea of corroboration to that which is normally required.  In the absence of any other evidence, proof that John assaulted Jack is taken to corroborate the fact that John assaulted Jeremy. This produces potentially perverse results. On account of Moorov, if John assaults Jack and Jeremy, he may be brought to court, prosecuted and jailed. If, he only attacked Jeremy, the case is unlikely to see the inside of a court on the basis of the lack of corroboration, despite the fact that Jeremy's evidence about what John did to him would be identical in both cases.  

If it is never appropriate for an individual to be convicted on the word of one person, where are the objections to the application of the Moorov doctrine? Or to the idea that an allegation of rape is capable of being corroborated by distress? If we're serious about the absolute necessity of corroboration, we would expect to hear calls for Walker to be freed from jail. On the other hand, if convicting people on the basis of evidence from a single source is sometimes justified, as even many Scots lawyers would accept, then the case against abolishing corroboration isn't what it appears - and claims - to be.

Closely related to this argument is another familiar line from the anti-reform camp: But corroboration protects us from miscarriages of justice.  But does it really? Here, it is important to bear in mind what corroboration actually requires.  Usually, folk talk about "the evidence of two witnesses", conjuring up the image of credible twin wifies, testifying that they saw wee Jimmy making off with the stolen pie down Perth high street. Certainly, this is one way for prosecutors to achieve corroboration, but it is by no means the only way of doing so.  

Importantly, the courts have held that corroborating evidence needn't necessarily be incriminatory, it only needs to be capable of bearing the inference that the man in the dock committed the offence. To corroborate, the evidence needs only be consistent with the witness' tale. It might also be capable of an innocent explanation.  In effect, there are cases being tried in our criminal courts where deciding whether or not to convict or acquit the accused hinges - almost entirely - on the credibility of the complainer, thinly supported by additional evidence which might be equally consistent with the accused's innocence.  

Quite apart from being a powerful shield behind which accused persons can huddle, corroboration can represent a pretty thin defence against state power when you are dragged before the court. This isn't necessarily a reason to keep or to dispense with the doctrine either, but it does chip away at the retentionists' most powerful, and most repeated, argument.

But back to the abolitionists: Fear not. We're introducing new safeguards. Well, up to a point Lord Copper.  MacAskill has proposed to increase the jury majority required to convict from a bare majority of eight of fifteen, to ten of fifteen. Problem solved? Well, not really. Although juries loom large in the public imagination, they loom small in terms of the day to day realities of criminal justice in Scotland.  Juryless Justice of the Peace and Sheriff Courts soak up over 90% of criminal trials. Amended jury rules introduce no additional safeguards in these cases. 

Swithering yet? There are plenty of other arguments which could be made on body sides of this debate. In private, some procurators fiscal will argue that it is easier for complainers to be told that their cases can't be pursued because of a lack of corroboration, as opposed to informing them that prosecutors won't pursue the case because they lack credibility and haven't been believed.  Is there any truth to this? Perhaps.

Abolishing corroboration won't necessarily end the practise that Scottish police officers patrol in pairs. But in our penny-pinching times, does its abolition make it more likely that Police Scotland will revise its practises before long, leaving more officers to tread the beat alone? Almost certainly. Is this a good thing? Perhaps not.

And thus, I swither on, but for criven's sake, let's ditch the zero-sum mentality.

Juxtaposition of the Day

Kenny MacAskill, Cabinet Secretary for Justice, defending the SNP policy of forming single police force in Holyrood in February 2013: 

"This is a police service for all Scotland and it will be focused on all parts of Scotland and not one part, whether that is west central Scotland or anywhere else. For that reason, the new police service has at its heart local policing and serving all communities. Local commanders have been announced for each area, who will work with communities, and local policing plans are being prepared for every one of Scotland’s 353 council wards, whether they are in the west or in rural, urban, island or mainland Scotland."

Police Scotland, the single national police authority formed, today, defending the massive ramping up of stops and searches by police officers on the Scottish citizenry by extending Strathclyde Police's old policy to the rest of Scotland:

"... the creation of a single police service had allowed a standardisation of practice throughout the country."

The best laid plans...

"Such a flimsy evidential basis..."

The Lord Chancellor, Chris Grayling, isn't keen on judicial review. He sees it as a costly forum for feckless litigants, whose enthusiasm for resorting to law in their relations with public agencies needs curbing. The evidential basis (or lack thereof) underlying his proposals for England and Wales , and the principled case for introducing them, have been neatly filleted elsewhere in the blogosphere.  

I dare say, however, few of you will have heard much about the Scottish Government's own proposals to curb access to judicial review in Scotland, and limit litigants' opportunities to take our public authorities to court.

Helpfully, Professor Aileen McHarg of the University of Strathclyde recently popped up this splendid and accessible piece, summarising the Scottish Government's proposals, exploring the basis in evidence and the practical implications of Kenny MacAskill's plans to introduce an English-style "leave" or "permission" phase to Scottish cases and to impose new time-limits on lodging judicial review petitions with the Court of Session. Aileen concludes:

"It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving. It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change. One can only hope, therefore, that the Scottish Parliament will oblige it to do so."

This is important stuff, which will have a real impact on folk trying to review the way they've been dealt with by the state. McHarg's point about the paradoxical Anglicisation of many features of Scots law under this SNP government is also well taken. Regular readers who've lingered long in these parts will recall my vexation at the idea that Scotland ought to be "brought into line with England", as though the English precedent was, in its own terms, sufficient reason to adopt policy approaches preferred by our southron comrades. It is a perplexing vision of devolution.

Read Professor McHarg's whole piece here.

Is serious organised crime really a priority for Scots prosecutors?

Characterising it as a "blight on our communities", three years ago, Kenny MacAskill told Holyrood that "tackling serious organised crime is a priority for this Government". Detailing various actions which the SNP government has taken, amongst its achievements, Kenny cited the creation of: 

"... four new offences in the Criminal Justice and Licensing Bill. This package of offences targets the top of the criminal networks right down to the street drug dealer and the professionals who either facilitate such crime or turn a blind eye to it."

Strictly speaking, this isn't quite right. The new legislation created three new offences and one new aggravation.  The three offences hit the statute book in 2010, ranging from involvement in, to directing and failing to report serious organised crime.

Wending its way through Holyrood, the main justification used to promote the new legislation was that it would make it easier to land the whole octopus of professional criminal cartels operating in Scotland. Head, tentacles, the lot.  Before 2010, in the absence of evidence that the accused actually committed a crime himself, prosecutors had to substantiate a conspiracy, or the Scots equivalent of "aiding and abetting", if organised criminals were to face criminal sanctions.

According to ministers, and their props in senior police officers, and prosecutors, these standalone offences would greatly facilitate the investigation and prosecution of organised crime in Scotland. The Explanatory Report to the legislation talks of "making it easier to convict criminals involved in serious organised crime". While no stern slew of investigations and prosecutions were promised, you might have expected some sort of action.

A month or so ago, however, I realised we hadn't heard a peep about these new offences from ministers, or the Crown Office. While we are graced weekly with piffling tales of cretins at football matches, getting the book thrown at them, a queer silence surrounds these serious organised crime offences, which came into law some two years before the first hapless football fan felt the wrath of the establishment, and found himself up before the Sheriff.  Are they working as intended? Are they being used at all?

Nothing in the official Crown Office news releases gave much clue, so I popped in a freedom of information request.  How many reports had prosecutors received under the three offences of involvement in, of directing, and of failure to report serious organised crime? What was the outcome of those trials, where these had been concluded?

The response, received a week or two ago, is pretty startling.  To date, the Procurator Fiscal has received reports of 368 serious organised crime offences from the police from 2010 to date.  To date, only one person has been convicted, in 2011/12, of involvement in organised crime. Two further charges, taken in the High Court, resulted in acquittal. The only person yet prosecuted for directing serious organised crime, again in 2011/12, was also acquitted.  Nobody has seen the inside of a cell for directing concerted, corporate criminality.

Nor has any professional facilitator, corruptly betraying the ethics of their vocation, has felt the sting of the law for it.  On the offence of failing to report organised crime, the figures are particularly small. The Procurator Fiscal received just four complaints from the police in 2012/13, and none in either previous year. No decision has yet been taken on whether to prosecute those involved.

To put that figure in a little context, in 2009, the Scottish Organised Crime Group mapping project identified 241 “specialists” operating in Scotland. As opposed to mere “members or associates” of criminal organisations, these specialists have been engaged for their particular knowledge of public systems. Corrupt lawyers, shifty accountants, and so on: just the sort of characters that the section 30 offence of failure to report dodgy dealing aims at netting.

This 2009 police intelligence showed a further 4,066 individuals were involved in 367 serious organised crime groups. 176 of these groups were believed to be involved in drugs offences, 202 had accused to guns, 161 engaged in murder or serious violence, 81 in money laundering. With grim predictability, 77% of those groups known to be involved in violence were based in the Strathclyde area. 19 groups were known to be involved in sexual offences, 10 involving human trafficking.  Not every reasonable suspicion is prosecutable, and not every piece of intelligence can be acted on.  Nevertheless, the gap separating this police intelligence from the prosecution statistics seems conspicuously large.

But what to make of this? What explanation for the paltry (and hitherto largely unsuccessful) prosecution statistics? Firstly, serious organised crime investigations and prosecutions are notoriously tricky and time consuming.  As the figures I've received from the Crown indicate, proceedings involving a further 109 charges of involvement in organised crime are still ongoing in the High Court, 11 of them dating back to 2010/11. 38 other cases are ongoing, also in the High Court, alleging that the accused directed organised crime groups. Criminal justice takes time, more time than many folk would imagine. It may be that these offences just haven't yet come into their own.

What's more, these offences are a little different from your average theft or assault charge.  You know a crime has been committed when the mugger makes off with your wallet, or smacks you in the jaw, and complain to police.  These organised crime offences, by contrast, are far more broadly drafted.

For example, to be convicted of involvement in serious organised crime, the Crown doesn't have to prove that you've done anything particularly wicked in and of itself. Instead, they've got to demonstrate that you've (a) agreed to do something (whether or not the doing of that thing would itself constitute an offence), and (b) know or suspect, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Seen as the organised criminal is unlikely to refer himself to the police, and in many instances, there will be no obvious victim of this offence, it seems likely to be particularly reliant on the investigative initiative of the police.  Most offences are only liable to come to light, if officers go digging.  And their capacity to dig - understandably - is limited by resources and other priorities.

I'm sure there's something too this, but there may be wider lessons for us about being more realistic about what our prosecution system is capable of, and the changing priorities which it is actually capable of responding to.

When they think of the justice brief, Scottish politicians seem obsessed with the criminal law, criminal courts, prisons and sentencing.  There is always another demand for a new law, a new working practice, a new priority, more bodies in court, and behind bars. The abolition of corroboration, argue some, will throw open the hitherto shut doors to justice for many Scots.  Others behave as if there are endless coffers to expend, prosecuting daft lads for singing songs about Bobby Sands.

The evidence at the very least throws this into serious doubt.  Consider the following salutary details from a recent Crown Office personnel survey, or last month's survey from the FDA union, reporting further evidence of prosecutorial overwork, insufficient time to prepare cases, and low morale.  If you are going to make an issue a priority, others will fall by the wayside. It is a near constant of bureaucratic activity, that decision-makers working under pressure, to processing deadlines, focus on simpler cases to improve their annual totals.  More complex, investigatively more demanding cases? Perhaps with a sigh, maybe with regret - they die quiet deaths in many bureaus, in databases and groaning metal cupboards. 

To demand more attention be expended here is almost always to insist that another issue be neglected there.  Our politics too often labours in the childish belief that the statute book may always expand, that prosecution, capacity is limitless, and that if neither of these propositions is true, it is important for public confidence in the justice system to pretend both are so.  It may be that in the next year or so, the Crown Office will pick up the pace, and give these new organised crime laws some of their belated, promised effect. 

But it's worth remembering, you only get the quality of justice which you're prepared, or able, to pay for.

The SNP: "prison works"?

Last Friday, the Scottish Government published its new Criminal Justice (Scotland) Bill along with sundry explanatory notes and policy memorandums. The draft legislation will, if passed, bear many of Lord Carloway's recommendations into Scots law. Many of these touch on issues of criminal procedure, of arrest, detention, pre-trial questioning and the like.

Perhaps the most controversial aspect of the Bill is its proposal to abolish the old Scots requirement for corroboration in criminal cases. I've written about this a good deal before, and will come back to the proposals anon. 

Today, I wanted to pick up one of the aspects of the draft legislation, liable to be overlooked in the immediate corroboration hullabaloo. Amongst his other reforms, Kenny MacAskill is proposing to increase the maximum penalty for knife possession from four years, to five.  The government's policy memorandum explains the official thinking.

185. In terms of enforcement, Scottish police are carrying out a considerable number of stop and searches and the courts impose the toughest knife possession sentences in the UK. The table below shows that a person in Scotland is already 50 per cent more likely to be sent to prison than in England and Wales for knife possession and, for those who do receive a custodial sentence, a person’s sentence is likely to be nearly 70 per cent longer ...

192. Within this wider context, the Scottish Government wants to ensure that courts are fully and appropriately empowered to be able to effectively sentence those convicted of knife possession and offensive weapon possession. While sentencing in individual cases is appropriately a matter for the court within the individual circumstances of each case and within the overall legal framework the court operates in, the Scottish Government considers that increasing the maximum penalties for these offences to five years, as proposed in section 70 of the Bill, will reinforce the message to those who might consider carrying knives and offensive weapons that the consequences if caught will be severe. This should help in further deterring the carrying of knives and other offensive weapons as well ensuring that courts do have sufficiently effective sentencing powers to deal with individual cases where the court considers a severe sentence is required.

The figures quoted in the Scottish Government memorandum indicate that only 29% of folk convicted of possession of a sharp instrument or blade in the forth quarter of 2012 received a custodial sentence in England and Wales. This compared to 44% of Scottish offenders, 805 of whom received prison terms for knife-carrying in Scotland in 2011/12.  The prison sentences handed down to these knife-carriers by sheriffs are also stiffer, on average, than their English counterparts.  In England, the average jail term dished out is 199 days. In Scotland, the equivalent figure is 338 days in chokey.

Despite this, the number of folk being sent to jail for possession of pointed, bladed and offensive weapons in Scotland is actually falling.  In addition to pulling offenders up before the beak, the government and police are pursuing other commendable strategies, including the Violence Reduction Unit's almost theatrical "call ins", whose primary tool to dissuade people from carrying knives, interestingly, seems to be emotion. When you have a boy in the dock, and a bleeding body in the street, it is already far, far too late. This is important, creative police work, and Karyn McCluskey cuts an uncharacteristic, and impressive figure. 

All of which set me to wondering. What principles does the SNP bring to its penal policy? What is the government's philosophy of punishment? These latest proposals underline an apparent contradiction in the Nationalists' approach to prison policy during their first and second terms in office.

During the 2011 elections, Scottish Labour wheeled out their knife-crime policy: a mandatory six-month jail term for anybody caught with a shank, scimitar or pruning knife in public, with a residual judicial discretion to spare the convict the clink where exceptional circumstances obtained.  Richard Baker hadn't taken the care to do his sums, hadn't taken into account Scotland's vaulting prison population, our crumbling and overcrowded prison estate, and the parlous state of public finances.  It was thin, focus-group politics, and the party rightly got flayed for their inept distortions and incomplete homework during the election.

For unlicensed firearm possession, we already have a "mandatory" minimum sentence of five years in prison, in the absence of "exceptional circumstances relating to the offence or to the offender".  Back in 2010, we saw the potential injustice of such laws in the case of Gail Cochrane, the Dundee granny who unwisely retained her father's service revolver, and who was sent down for half a decade, before Lord Reed and the Court of Criminal Appeal exercised commendable leniency, to free her.

The SNP position was always more slippery.

Some of you may remember the days when Kenny was championing the idea of a presumption against sentences of less than six months in Holyrood. Compromising, this period was ultimately watered down to a presumption against imposing jail terms of three month or less at the instigation of the Liberal Democrats.  In 2009, the Cabinet Secretary for Justice argued that sentences of less than six months were "ineffective and of no practical benefit to communities".

In reality, of course, those serving short sentences for knife possession (less than four years) will be released early.  In Scotland, after about five and a half months on average: a period of time sitting smack bang in the category of prison sentences Kenny once criticised as expensive and ineffective. For the Scottish Government today, the regular imposition of custodial sentences for an average period of less than six months for knife crime is represented as a Good Thing, their multiplication, to be celebrated. Their message seemingly, in dim echo of Michael Howard, prison works, but only if you lock folk up for a good, long spell.

What to make of this apparent discrepancy? Can knife-possession be distinguished from other categories of crime, and if so how? Why is prison an effective penalty in one instance, but ineffective in all others? To my knowledge, no SNP minister has really attempted to articulate this distinction in any thoroughgoing way.  Conspicuously, the Scottish Government have not used their overall majority in Holyrood to revisit the compromise of their 2010 legislation, bumping up the presumption against three months sentences, to their initially preferred period of six.

At the other end of the spectrum, what to make of the long sentences which Kenny's new knife proposals will make available to criminal courts? Terror is clearly the order of the day, the justification, deterrence.  I find myself wondering, however, possession of what sort of offensive weapon, bladed or pointed, could possibly warrant a five-year prison term? To put that penalty in some sort of context, in the High Court, a man recently received 4 years and 4 months in jail for causing death by dangerous driving.  Another received two years and eight months for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life.

For the life of me, I struggle to conceive of any weapon which, for possession alone, a four year prison term would not represent a satisfactory (or even, excessively severe) penalty, never mind a half-decade behind bars.  It may be, of course, that these new sentencing powers will never been used, or at least, vanishingly seldom. If so, then why introduce them? I'm afraid a certain whiff of headline-chasing clings to these proposals.

An empirical study conducted by eminent criminologists in 2010 found that many young Scottish knife-carriers "were unclear or incorrect as to the precise legal consequences of knife carrying". I doubt that your average juvenile with a concealed weapon follows Holyrood's legislative procedures, absorbs the pertinent legislation, or knows enough about our criminal courts to alter their behaviour based on the venue chosen by the procurator fiscal. The Lord Advocate's policy directions are unlikely to be bed-time reading.

The Crown Office have announced that those who carry knives in city centres and towns will be prosecuted before a sheriff and jury court, increasing the judge's sentencing powers if the accused is convicted. This, after a six-week pilot over the festive period, during which the number of charges fell by 18% compared to the same period the previous year. The Lord Advocate attributed this reduction to the Crown's new prosecution policy, suggesting that the fall "demonstrated the value in making the tougher action". Colour me skeptical.

"I was going to take that weapon out with me, but now I know that Frank will have me up before a jury, and given my familiarity with the sentencing powers of sheriffs sitting both summarily and solemnly, I think I'll leave my cutlass at home, if it is all the same with you."

Aye right.

The Football Act's iffy conviction rates...

Last Friday, the Scottish Government published this statistical research on the operation of the Offensive Behaviour at Football Etc (Scotland) Act. The paper looks primarily at charges communicated to prosecutors by the police, the characteristics of people accused of hateful, threatening and offensive behaviour in relation to football, and the where, when and how of their alleged offences. 

It covers the first financial year in which the new Act has been in force, between 1 April 2012 and 31 March 2013.   Because of the small number of folk charged and prosecuted, more detailed figures are not generally available for the outcome of proceedings in cases taken under section 6 of the 2012 Act, which criminalises sending threatening communications via twitter, facebook and what have you. 

You may recall that back in March, the Lord Advocate and Justice Secretary hailed the effectiveness of the new measure one year on, placing considerable emphasis on the number of cases prosecuted, and the percentage of accused people who're found guilty of having committed the new offences. Just a few months back, Kenny MacAskill argued that:

"... the charge and conviction rates for people arrested under this legislation show that it is working well." 

A claim echoed by Scotland's chief public prosecutor:

"The Lord Advocate, Frank Mulholland QC, has said that the legislation is being used to good effect by police and prosecutors. So far 89 per cent of the cases reported to the Crown Office have been prosecuted, and the conviction rate stands at 83 per cent. Figures from the first full year of the act are still being collated and analysed and will be published after the end of the football season."

Now, one might wonder whether rates of conviction are really the best guide to the efficacy of any piece of criminal legislation.  What is most striking in Friday's research is that the healthy prosecution and conviction figures MacAskill and Frank Mullholland relied on in defence of the Act in March aren't borne out across the Act's first full year. Taking the whole year figures, government researchers found that:

• Court proceedings were commenced in 219 (82%) of charges communicated to prosecutors under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
• During 2012/13 there were 62 convictions from 95 concluded charges under the 2012 Act.

As paragraph 3.27 of Friday's report concludes:

"This is a conviction rate (ie the proportion of concluded charges that resulted in convictions) of 65%.  In 2011-12 there were 25 convictions from 33 concluded charges, a conviction rate of 76%. For the full period of the first 13 months of the act, there were therefore 87 convictions from 128 concluded charges which is an overall conviction rate of 68%."

Even the most mathematically challenged of us shouldn't struggle to ascertain that the real conviction rate under this legislation in 2012/13 is a substantial 18% lower than the more congenial figure of 83% rolled out by MacAskill and Mullholland in March. Even including the months it was in force during the 2011/12 financial year only nudges that conviction rate up a trifle.

To put this conviction rate in some sort of context, we can look at the Scottish Government's official figures for the outcome of criminal proceedings in Scottish courts. Over all categories of crimes and offences, the Procurator Fiscal proves their case against 87% of accused people who end up in the dock. This data is also broken down by different offences.  For example, 83% of homicide trials, murder and culpable homicide, end in conviction of the accused.  At the other end of the spectrum, of rape and attempted rape trials, just 53% result in conviction.   

The conviction rate for all non-sexual crimes of violence in Scotland is higher than the offences created by the 2012 Act. The conviction rate for all crimes of dishonesty in Scotland is higher than these new football offences. Indeed, according to the latest figures, of all categories of crimes and offences, only rape and attempted rape cases record a lower percentage conviction rate than the 65% recorded under the Offensive Behaviour at Football legislation last year.  

If, as Kenny MacAskill and the Lord Advocate suggest, conviction rates are an important factor to be taken into account in evaluating the effectiveness of criminal statutes, the Football Act's relatively very poor performance in 2012/13 ought to be a source for anxiety, and not for reassurance.

"... we are against the UK Supreme Court..."

Remember Cadder? Not, perhaps, the First Minister and Justice Secretary's finest hour.  In 2011, in response to the UK Supreme Court's judgment about the right of suspects to legal advice, the two SNP politicians turned their rhetorical dials all the way up to eleven.  Salmond argued that:

"I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court.  It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation."

Farcically, the Scottish Government went on to oppose the idea of installing a Scottish majority on the Court.  Since, they've been avoiding the topic of the Supreme Court's jurisdiction for grim death, entangling the issue in technical, unpolitical language, having secured amendments to the Scotland Act of 2012, constricting the rights of folk in criminal proceedings, to take their human rights cases to London when they've been disappointed in Edinburgh.  

In the meanwhile, civil justice is being shaken up across the country and the question of civil appeals from Edinburgh to London is now back on the political agenda.  In May 2012, I set out the - I think persuasive - legal case that the Scottish Parliament can now unilaterally cut common-or-garden civil appeals from the Court of Session to the UK Supreme Court, if the SNP government had a will to do so. While Holyrood doesn't have the legal power to end appeals to London on the basis of EU law, the European Convention on Human Rights, or devolution more generally, the parliament could bring the treatment of Scottish civil cases into line with Scottish criminal proceedings. 

Save for this sort of "constitutional" litigation turning on fundamental rights or European law, Scottish civil and criminal cases could end in the Court of Session and High Court respectively, if the SNP majority exercised itself.  There are plenty of understandable reasons to justify doing so, not least that a decision of the UK Court on appeal invariably involves the review of a judgment of three judges of the Court of Session by the Supreme Court's two Scottish Justices, who corral the English majority on the bench into mutely endorsing their preferred decision.  

What's more, although both Scottish civil and criminal law are distinct from the English system, the gaps in the UK Court bench's judicial knowledge of civil law are likely to be at least as significant as their ignorance of Scots criminal law.  Property law furnishes the paradigm example, the English system an eccentric mixter-maxter of principles of Common Law and Equity, the Scots a more systematic body of norms, organised along Roman lines. An English judge - or three English law judges - are not likely to be in their element, adjudicating tricky cases taken under great parts of Scots private law.  Better, one might argue, to leave it to specialists.

Curiously, despite the Scottish Ministers' past forays into superheated indictments of the Court's legitimacy, and anxieties about its English-educated majority, last week the SNP government launched a consultation on its proposals not only to retain the UK Court's civil jurisdiction, but to allow the tribunal (and alternatively, the Court of Session) to pick and choose which cases it examines on appeal. 

At the moment, Scottish litigants access the UK Court on more favourable terms than English, Welsh and Nothern Irish litigants, and do not have to demonstrate that their case raises an "arguable point of law of general public importance which ought to be considered by the Supreme Court at that time". Ironically, the SNP are, once again, proposing to bring us into line with English practice in this respect, Ministers' criticism of the jurisdiction of the Court, forgotten. 

In 2010, SNP MSP Stewart Maxwell told the Scottish Parliament that:

"... we are against the UK Supreme Court. We were against it when it was created: we have been against it from the beginning and we are against it now. It is Labour’s folly."

From the same debate, another SNP MSP, Dave Thompson, said:

"The UK Supreme Court was established in October 2009 to deal with civil matters, despite opposition from the SNP. We warned that it was irrational for a court without a majority of Scottish judges to decide on cases involving Scots law. We also pointed out that the practice of hearing Scots civil cases in the House of Lords was a historical anomaly and that that role should be repatriated to Scotland. What other legal jurisdiction allows its appeals to be heard in another jurisdiction?  Unfortunately, the previous Labour-led Administration failed utterly to stand up to Westminster and protect the independence of Scots law."

I wonder if we can expect Maxwell and Thompson to turn the same great guns on their party colleagues, who now seem so keen to retain and entrench the "anomaly" of London's civil jurisdiction, which they once so bitterly opposed.

Independence Quotation of the Day...

I'm an honours list grinch. I imagine a good few of you are too, and survey the bi-annual dishing out of damehoods and ennobling shoulder-bonking with the regal scimitar without enthusiasm. Within the British state, grousing about such fopperies avails us not at all, but the combination of disgruntlement and powerlessness is not entirely without its psychological compensations. Our egalitarian-minded girning never has to contend with the heavy political weather of actually abolishing the ermine, the gewgaws, the ribbon and the magic names. 

You can imagine the Scotsman headlines, if any parliamentarian had enough brass neck to introduce an Abolition of Nobility (Scotland) Bill. "Outcry as Olympic hero Hoy to be stripped of knighthood"; "Abolishing dukedoms 'violates human rights', experts claim"; "Foulkes 'forced to live rough' if deprived of his Barony".

Courtesy of Pater Peat Worrier, my Christmas morning stocking was plump with a copy of the late Stephen Maxwell's Arguing for Independence: Evidence, Risks and the Wicked Issues (2012) this year.  It is a lucid, accessibly-written volume, which will prove invaluable for anyone trying to convince skeptical family members or cronies about the potential benefits of independence, or who risk political conversations down the pub.  Perhaps the greatest strength of the book is the extent to which it tackles the issues of risks and probability head on, without fear, and without apology. 

Maxwell isn't feart to recognise both upsides and downsides, opportunities and challenges, which Scottish independence might bring. Whatever your views on the national question, this candour is refreshing and the level of the debate would be significantly improved, if unionists as well as nationalists leant Maxwell's arguments some of their time. A number of the book's themes resonated with me, but for the moment, let's focus on just one: responsibility.  Over the past year, we've heard a good deal from a number of commentators about Scotland's (often only abstract) social democratic sensibilities. It also came up in our conversation with Kevin Williamson and Rory Scothorne in episode seven of the For A' That podcast, and to an extent, in Alex Massie's prediction that an independent Scotland would not be a "socialist nirvana" as some hope, but a state likely to resort to more "neoliberal" forms of governance.  

In a chapter headed The Cultural Case, (p. 148), Maxwell writes:

"By equipping Scots with the authority and responsibility to act across the whole spectrum of issues, independence would expose Scotland's moralising rhetoric of resistance to sterner tests than it will ever face under the forms of devolution currently touted by the Unionist parties.  It would remove the alibi for inaction provided by the Union and confront the voters with the consequences of their collusion in the politicians' rhetoric.

How much would we be prepared to pay in higher taxes for our opposition to spending cuts? Ho many more asylum seekers or economic migrants would we be ready to welcome to Scotland when the UK Border Agency is no longer there to do the dirty work of control and deportation? How much redistribution of income and wealth are the better off prepared to accept in the name of a fairer and more compassionate Scotland? How many jobs are we prepared to jeopardise in the short term as the price of terminating our role in the UK's delusional defence strategy?

The answers might be unsettling, but our public culture would be the better for being able to subject politicians' rhetoric to the test of practical responsibility."

Rings bells for me. Between the idea, And the reality, Between the motion, And the act, Falls the Shadow.  As Kenny MacAskill almost said, eventually, one really ought to grow tired of just girning. Arise Sir Wiggo.

Misleading anti-Nationalist invective, Vol. 56...

Someone’s been nibbling the bitter almonds. In the Telegraph this morning, BBC lawyer Alistair Bonnington has written an extraordinary gouge-piece attacking the SNP, and Kenny MacAskill, under the headline “SNP’s arrogance leaves Scottish libel law stuck in the past”.   

My interest was piqued by the queer combination.  There has been little to no commentary on the fact that the Defamation Bill currently wending its way through Westminster means only means to apply in England and Wales.  As usual, the press commentary has tended to forget that we live in a union state, not a unitary state, and that the Bill’s provisions as introduced – limiting defamatory statements to those whose publication has or is likely to cause ‘serious harm’ to reputations, enhanced protections for writing published in peer-reviewed academic journals, for operators of websites attracting potentially defamatory comments – would only reform the English and Welsh law of slander and libel, leaving Scotland’s defamation law intact. Back in June, I speculated on the consequences which these English reforms might have for Scottish courts.

In his piece this morning, Bonnington sketches an ugly picture.  For him, the Defamation Bill is ‘a reasonable set of rules for the modern world’. Rules which Bonnington believes the SNP have conspired to defeat for suspect reasons.  He writes:

“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”

“In libel, Scots law is miles behind English law.  That gap is about to become wider still courtesy of Mr MacAskill.” 

He buttonholes this with the suggestion that...

"... the Legislative Consent Memorandum announcing this decision came out in June at a point when the parliament at Holyrood was going on holiday – a ploy possibly aimed at preventing any opposition MSPs from having the effrontery to ask questions about this daft decision."

Bonnington then goes on to summarise the measures proposed in the Bill in warm terms: various new defences and the welcome reframing of definitions of defamation. The sting:

“MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”

Reading this, I thought I’d been seriously remiss.  Bonnington’s trenchantly accusatory piece makes three critical allegations and insinuations. Firstly, he implies that comprehensive defamation reform was put to the Scottish Government by Westminster, to liberalise the law on both sides of the Tweed, to protect freedom of speech and melt the perceptible "chilling effect" of the current law on defamation. Secondly, that the Scottish Government knocked back this request from Westminster, grudgingly instead accepting only a peripheral subsection in their legislative consent motion.  Thirdly, Bonnington suggests that that the Cabinet Secretary’s motives for this limited motion were scurrilous, allowing atavistic legal nationalism to trump a sensible and liberalising reform. As neatly as these allegations fit with certain cherished suspicions of Scottish Nationalists, and as satisfying as Mr Bonnington clearly seems to find it to fulminate and froth against such perfidy, there doesn’t seem to be a breath of truth in any of these claims.

Pick up the Defamation Bill which Ken Clarke introduced to Westminster in May this year on behalf of the UK government. Bounce your eyes down the page, to section sixteen, “short title, commencement and extent”: “This Act extends to England and Wales only”. That seems tolerably categorical. So when and how did Scotland get roped into this, you might well wonder? Bonnington’s brain is haunted by reactionary SNP ministers, haughtily rejecting the overtures of Westminster’s solicitous, sensible modernisers.  If that were the case, a dip into the House of Commons' Public Bill Committee records should surely uncover a word or two about them and their activities, and critically, an amendment proposing that the whole Bill be extended to Scotland. You won’t find one. You can’t. It doesn’t exist. 

Here’s what Jonathan Djanogly, Tory MP Huntingdon and Parliamentary Under-secretary to the Ministry of Justice, contributed on Tuesday 26th June 2012, lodging government amendments which would extend the Bill’s protection for academic publications to Scotland.  Djanogly said:

“Amendments 1, 2 and 3 extent certain provisions of the Bill to Scotland.  The civil law on defamation is generally a devolved area, and the Bill reforms the law in relation to England and Wales only.  However, we have been requested by the Scottish Government to extend certain specific provisions to Scotland, and these amendments are intended to fulfil that request.  The Scottish Government have confirmed that a legislative consent motion will be put before the Scottish Parliament on a timely basis following these amendments being moved in order to secure their consent.”(Col 170)

One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting “the Bill’s liberalising provisions” for the idle sake of being different from the English. To double-check, I rummaged around Holyrood’s archive for June, and up popped the pertinent legislative consent memorandum, from Kenny MacAskill’s hand. The Scottish Government don’t see reform of the Scots law of defamation as a priority, he writes, but having considered extended privilege to scientific and academic activities, it was concluded that:

“…the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.” [para 26].

Despite Bonnington’s preferred narrative of nationalist mischief, I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.  You might well think that this is for the bad, and that it would be preferable if Scots law mirrored the English proposals, which will substantially shrink the scope of defamatory speech, and enlarge on the defences available to those sued in particular scenarios.  I have some sympathy with that perspective.

Each man may be guilty of the good he does not do, and the inactivity of the Scottish Government on defamation reform may well be complacent, but the scenario which Bonnington so ill-temperedly promotes in this Telegraph piece is simply fictional. To avoid Bonnington’s wroth, MacAskill would presumably have been obliged unilaterally to ask Westminster to pass defamation legislation for us. The distinction between acts and omissions may be of philosophical interest, but the impression aggressively cultivated by this piece of invective is seriously misleading.