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.

"Humour is not without its place in the criminal courts..."

Unaccountably, the pickings from the Supreme Courts of Scotland have been remorselessly dry of late. No single mirthful judicial gewgaw have I spotted, to ease the tedium of unadorned legal analysis. No legal poetics on life's fankled untidiness, no sexual acts in Dundee cemeteries. Nowt. Nada. Zip. Dearth cannot last forever, and with Procurator Fiscal, Aberdeen v. Forrester, we have a cracker. The facts disclosed are rather bizarre. Thomas Forrester is a chief inspector of police in Aberdeen and at the time of the alleged offence, was head of Grampians road policing. The procurator fiscal charged him with dangerous driving under the Road Traffic Act 1988...

"The specification was that, on 26 November 2008 on the B977 Belhelvie to Dyce Road, he instructed Constable Ashley Forbes: (i) to activate the warning lights and sirens on the car in which they were both travelling; and (ii) to move the car into the offside lane, thus precipitating a collision between two cars travelling in the opposite direction. Constable Forbes was charged with the same offence, and ultimately convicted of careless driving, contrary to section 3. The respondent was also charged with wilful neglect of duty by failing to prevent the dangerous driving and not reporting the nature of the driving to the appellant."

The progress of Forrester's trial was hampered by delays. Seeking to come to some understanding of these delays, and eager to expedite proceedings, the sheriff called the lawyers into his chambers to discuss the case's progress.

"The [procurator fiscal] depute advised the sheriff that, amongst other witnesses remaining to be called, there were the police officers who had investigated the incident and ultimately interviewed the respondent. Upon hearing this, the sheriff remarked: "Oh! That will be the Gestapo!" Perhaps sensing that others may not have shared his sense of humour, the sheriff added "I didn't say that". No action followed immediately upon the sheriff's remark."

This choice piece of gay wit seems to have been discreetly ignored by the parties. Nobody likes to dwell on a failed jest, after all. Evidence progressed and the police witnesses who had interviewed Forrester appeared for the Crown. It transpired that their interrogation of Forrester ran almost unabated (there were two 20 minute breaks) for no less than four hours. Towards the end of this interview, amid protestations "of his strong ethical values and integrity and swearing on his daughters' lives that he had not done anything deliberate to put anyone in danger", Forrester "appeared to make an admission" capable of corroborating the evidence against him that was put before the judge. Subsequently, the presiding sheriff ruled this interview evidence to be inadmissible as unfairly obtained, holding that "the true object of the interview was to get the respondent to incriminate himself". This evidence being ruled out, there was no corroboration for the evidence adduced against Forrester - and the prosecution failed. Undeterred by this defeat, the Fiscal appealed, the Advocate-Depute arguing that the sheriff's Gestapo gag...

"... had it been overheard by the informed and independent observer, would have carried with it an inference of bias on the part of the sheriff. On being pressed on where that bias was directed, it was said that it was against the police instructed to carry out the investigation of the respondent's actions. Furthermore, the eventual decision of the sheriff on the admissibility of the interview disclosed that he had actually been biased."

According to Dorothy Bain QC, the sheriff's remark "had not been a joke, it had been an insult to the professional integrity of the officers about to give evidence." As such, because it "was in the public interest that trials were conducted in an independent and impartial manner and this had not been done", she invited to court to set aside the sheriff's decision.  Giving their judgment, Lord Carloway (joined by Lord Bonomy and Sheriff-Principal Lockhart) gave the Crown a classic understated judicial caning. Compared to the orotund prose of Judge Giovanni Bonello of the European Court of Human Rights, Carloway's remarks seem the very model of Scotch sobriety, more in sorrow than in anger.  As any Court of Session Kremlinologist would tell you, although ostensibly mild, the word "regrettable" should be read with a kick...

"An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it. Such evidence is not present in this case and the court is bound to comment that it is regrettable that the appellant appears to have lacked a sense of perspective in this matter. The court notes in this regard that the appellant's depute took no action at all in relation to the remark until after the sustaining of the respondent's submission. If the depute had seriously considered that the remark displayed bias, then she ought to have taken action at the time. Her failure to do so strongly suggests that no such bias was inferred and the court notes that the Advocate Depute did not submit that the appellant's depute had, in fact, so regarded the remark at any time."

Given the foregoing, it will come as no surprise that the bench refused the Crown's appeal. Giving their reasoning, Carloway offers us this splendid quotation from an earlier case, explaining the proper ambit of judicial drollery and Court clowning. The humorous golden mean for which any gentle shrieval revels should aim...

"In Wallace v Thomson 2009 SCCR 421, the sheriff had, in open court, made a flippant remark to a witness. This had prompted a ground of appeal concerning his assessment of credibility and reliability. This court said this:

"[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation".

Very similar considerations apply in this case. The remark made by the sheriff was in chambers. It was not delivered in an open public forum. It was spontaneous and flippant. It may, or may not, have been regarded as humorous by those in chambers, even if, with hindsight, it cannot now be seen as either witty or appropriate. But the suggestion, which appeared to be implicit in the submission presented to the court, that the sheriff was actually comparing the behaviour of the Grampian police, in questioning a fellow police officer in Bucksburn police station, with the tactics of the Gestapo during the Second World War, must be dismissed as bordering on the ludicrous."

Everyone's a critic, eh?

Scots judges acquit Cutty Sark...

How apt! Yesterday, for Halloween, we followed a shivering Tam o' Shanter into the haunted kirkyard in Alloway and recollected the corpse-lit carnal revelries he encountered there. Today, we survey a similar sepulchral scene, moonlight starkly illuminating the wan faces of the tombstones in the Eastern Necropolis in Dundee. We explore this second setting, not in the raunchy poetry of Robert Burns, but the resolutely sober prose of the Appeal Court of the High Court of Justiciary. In D.F. v. Procurator Fiscal, Dundee, Lord Bonomy along with Lady Dorrian and Lord Mackay of Drumadoon meditated on a decidedly tricky Shanteresque question. Say Alloway's black ceilidh had dispersed, fiddling Auld Nick lay slumbering in a borrowed coffin - and Cutty Sark was in amorous fettle. She acquires a male companion - come back Tam, all is forgiven! - and they repair to the heart of the empty graveyard, seeking some concealing shrubbery... Here I'll defer to Lord Bonomy's assiduous account of the facts of the case:

[2] The issue arose out of events which took place between around 8.10 and 8.30 pm on 11 July 2009. The appellant was seen by two police officers who were on routine anti-vice patrol in Arbroath Road, Dundee. She was walking near the main entrance to the Eastern Cemetery and Necropolis and talking to drivers of motor vehicles. The officers, who believed the appellant to be a prostitute, spoke to her and invited her to move on, which she seemed willing to do. However, about twenty minutes later she was again observed by the same officers on the opposite side of the road engaging in a brief conversation with a man who had alighted from a bus. Together she and the man crossed the road and entered the cemetery through the open gates.

[3] As the Sheriff tells us in the Stated Case:

"The officers considered that they had reasonable grounds to suspect that an illegal act was in commission and they resolved to act."

They split up and entered the cemetery separately, one of them climbing over the wall. Their aim was to detect the possible crime without alerting the suspects. In the course of what could be described as a pincer movement, each of the officers came independently upon the couple on an area of lawn adjacent to headstones, mature bushes and shrubs. The male was lying on the grass on his back with his knees bent and his trousers open. The appellant was on her hands and knees performing an act of oral sex upon him. Both officers found them after having searched other parts of the graveyard.

[4] The Sheriff made two findings of significance in relation to the nature of the cemetery:

"3.The Eastern Cemetery is a large open space enclosed by a curtain wall with an imposing main gate and other side gates. There is a large main or processional roadway through the graveyard with pathways off. The graveyard is planted out with lawns, well established ornamental trees, rhododendron and other bushes or shrubbery.
...
6. That the Eastern Cemetery Dundee is a place to which the public have generally unrestricted access and that an act of oral sex (fellatio) committed in the open graveyard was one of indecency."

Essentially, the court had to decide "whether the sexual conduct in which the appellant had been involved, namely performing oral sex on her male co-accused, was committed "in public" in the sense required to amount to an offence of public indecency. It was accepted that the conduct in question, whilst lawful in private, was an act of indecency if committed in public." Is Dundee's Eastern Necropolis "public"? What mental element, what mens rea, would a potential Cutty Sark have to demonstrate if she was to be guilty of the crime? Alas, the Senators of the College of Justice didn't even consider that the space might be peopled by the peeping spirits of  the restless dead. Lord Bonomy was much more concerned with the Sheriff's approach and, dare I say, manages to sound a little wistful, worrying about an over-expansive definition of public spaces...

[5] ...any intimate sexual activity to which the public ought not to be exposed would constitute the offence of public indecency if it took place in the open air in a place to which the public had free access. In other words, no matter how remote the beach or the glen of, say, a national park, such activity there would constitute the offence of public indecency without anyone seeing it and being offended and without regard to the risk of someone seeing it and being offended.

[6] It is plainly unnecessary and indeed undesirable to criminalise conduct as public indecency when, as a matter of fact, the public are neither offended nor at any realistic risk of being offended. Whether or not conduct in public places, or indeed in private places where it is visible to members of the public, falls within the ambit of the crime of public indecency must depend upon the circumstances in which the conduct occurs.

The Court basically decided that they couldn't work out how likely it was for visitors to promenade through the cemetery "at 8.30 on a summer evening" and in an exceedingly discreet phrase, were equally incapable of properly assessing "the degree of care exercised by the appellant in selecting the locus". The judges accepted, however, that neither individual went out of their way to broadcast their sexual activity to the public common, quick or dead. In the absence of evidence on these central issues, the Court allowed the appeal. Cutty Sark was acquitted. Its worth emphasising that I deplore the subtext of prostitution in this case, despite finding the other facts and circumstances, combined with the dry judicial style, rather amusing. It does at least make a pleasing change from po-faced nonsense from Scots law on naked rambling...

Graveyard doggers of Gothic Scotia, rejoice!

Domestic abuse legal loophole closed...

You may have been sleeping. You may have been sat in your smoking jacket and your fez, enjoying a beaker of port. You may have been sat in your underpants playing late-night internet poker and slamming espresso shots. Either way, at 00.01 am this morning, the pithily named Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 2) Order 2010 brought §38 of that Act into force, speedily closing a legal loophole that effectively legalised non-assault domestic abuse in Scotland. If this "fast-tracked" action wasn't enough, sparrowfart's Scottish Government news release confirms my argument - this really was an issue which the press could have got its teeth into, if they had but looked into it. Interestingly, the Scottish Government links its action to the case of Harris v. H.M. Advocate, decided in 2009, on whose reasoning the High Court of Justiciary relied in their much more recent, chimerical decision in Hatcher v. H.M. Advocate. I quote:

"The move follows fears that a court ruling last year may have created a gap in Scots law which could make it more difficult for prosecutors to secure a conviction in some cases of domestic abuse and other crimes which take place in private. Historically, prosecutors have used the common law offence of 'breach of the peace' as one of the range of conviction options available to them to punish those who abuse their partners. However, an appeal court ruled last year that breach of the peace requires a 'public element', prompting concern that offences taking place behind closed doors or in isolated areas may escape justice. Crucially, this new statutory offence does not require any public element for an offence to have been committed. Ministers acted swiftly to close the loophole through the recently passed Criminal Justice and Licensing Act."

Notice the language, here. Harris didn't confirm the problem - it merely provoked well-founded apprehensions that the High Court's reasoning may prove perilous for abusive conduct that didn't occur within that eccentric domain the Court is satisfied to style "public". As Lord Bonomy noted in his judgement in Hatcher:

"In Harris v HM Advocate in which the long-standing decision in Young v Heatly  was over-ruled by a Full Bench, and in WM v HM Advocate, the Court focused attention on the need for "a public element" in conduct before it can amount to a breach of the peace, and provided some guidance as to circumstances in which conduct in an apparently private place might be said to have a public element. It was inevitable that the debate would soon move to the question whether severe oral abuse of, and unruly behaviour towards, one domestic partner by another over an extended period within the confines of the family home can amount to a breach of the peace, and more particularly whether in a given case that conduct did constitute a breach of the peace. That is the issue focused in this appeal".

Focussed in that appeal and resolved in that appeal - in a judgement of the 7th of September this year. Think about it. If the issue was fully resolved in Harris - self-evidently, so it went without saying that the conduct experienced by Lorraine Hatcher was legal - why was a new appeal necessary? Why does Bonomy detect movement - albeit set in train by the earlier decision? We might also reflect that it hardly redounds to the Government's credit if this supposed "fast-tracking" took 12 months, meanwhile the victims of domestic abuse were left without any recourse to the criminal law. Moreover, the Criminal Justice & Licensing Act received royal assent on the 6th of August 2010, yet well over a month passed by before any commencement order was laid. Hardly an issue, if it was wholly clear before September's case of Hatcher, which a diligent and responsible government concerned with domestic abuse would sit on, surely? While I find these contortions mildly inexplicable, happily such debating points are now moot. While Lorraine Hatcher will not see justice done in her plight, Scotland's many other people who find themselves in the same position - and turn to the police for aid and assistance - will now at least be backed up by criminal law which accompanies you inside your home and does not give your dominating pater- or materfamilias the unalloyed right to treat you like hell, so long as they don't give you a black eye. In the mandatory ministerial dénouement, Justice Secretary Kenny MacAskill is quoted saying:

"The effects of domestic abuse can be devastating and we are doing everything we can to tackle it. We've done a lot of work to raise awareness that this behaviour is totally unacceptable, that help is available, and to encourage more people to come forward, safe in the knowledge that they will be supported. And Scotland's police forces are cracking down on these despicable crimes whenever and wherever they occur. But we must ensure that where these offences are carried out, those who commit them are brought to justice. That is why, working with law enforcement agencies, we've taken action to address this gap in the law created by recent court judgements. This will give victims greater legal protection, whilst ensuring prosecutors have the full range of powers available to them to bring about a conviction. We want to send out the message loud and clear that if you carry out this offence, there will be no escape, there will be no wriggle room to exploit, and you will be met with by the full force of law."

An exceedingly welcome end to this neglected story.

Scotland legalises domestic abuse...

Surely not? Surely our representatives would have voted on any such proposal in the Scottish parliament? Surely if we'd done such a thing, the public sphere would rebound with remonstrances and controversy?  Apparently not. I'm talking about the implications of the case of David Hatcher v. Procurator Fiscal, Hamilton and the judgement handed down by Lords Bonomy, Hardie and Wheatley in answer to Hatcher's appeal in the High Court of Justiciary. I mentioned their opinion in the latest edition of my Tales from Parliament House series this weekend, but wanted to defer my elaboration till now. The case was briefly mentioned by the Herald, the Sun and the Glasgow Evening Times, but none of them seem to have noticed the gravity of this decision, seeing David Hatcher's quashed conviction as an isolated incident, rather than a pebble splash whose ripples will be felt throughout the prosecution of breach of the peace and domestic abuse across the country. Reading their coverage, all three seem to assume that in Hatcher's case the Crown had been attempting to extend the application of breach of the peace to a new and untried degree and the Lords of Justiciary merely repelled any extension in their judgement. Not so. On my reading, this case changes the Scots definition of breach of the peace quite radically, with significant implications for any domestic incident causing "serious fear and alarm".

Many folk have entertained qualms about the historical shapelessness of the Scots Law crime of breach of the peace. Recent years have seen incremental progress in sketching the contours of the offence as the High Court of Justiciary have solidified its definition, precedent by precedent. Lord Bonomy appeals to that context in Hatcher's case, saying:

"It was inevitable that the debate would soon move to the question whether severe oral abuse of, and unruly behaviour towards, one domestic partner by another over an extended period within the confines of the family home can amount to a breach of the peace, and more particularly whether in a given case that conduct did constitute a breach of the peace. That is the issue focused in this appeal."

Here is where we would do well to sit up and pay attention. Why? According to Scottish national statistics, the police recorded 53,681 incidents of domestic abuse in 2008-09. 55% of these incidents lead to some sort of criminal intervention. Minor assaults were the most prevalent category of crime recorded, representing 23% of the total, some 12,518, all told. Crucially, for our present purposes:

"Breach of the peace was the second most common accounting for 18 per cent (9,650) of incidents resulting in a crime or offence being recorded (see Table 1)"

While the legal ambit of breach of the peace charges may be of interest to a technical jurisprudential few, domestic abuse is an issue attracting far more intense public scrutiny. Here these two issues interact in a fundamental way. In Hamilton Sheriff Court, Hatcher was convicted on the following, formulaic and familiar charge:

"On 7 January 2010 at 50 Kenilworth Avenue, Wishaw, (he) David Hatcher did conduct (himself) in a disorderly manner, shout, swear, place Lorraine Hatcher in a state of fear and alarm and commit a breach of the peace".

The facts, as set out by the Sheriff at first instance, were undisputed. To avoid distortions on my part, they are worth replicating in full:

1. The complainer is the wife of the appellant. They have been married for 23 years and have three children, two of whom aged 12 and 13 years, reside with them at home at 50 Kenilworth Avenue, Wishaw. They were in the house with the complainer and the appellant throughout the evening of 7 January 2010 and the early hours of 8 January 2010.

2. The complainer is a technical instructor in an occupational therapy department. The appellant is a teacher. On the evening of 7 January 2010 the complainer told the appellant of her intention to attend an outing with around 31 of her work colleagues for a meal at 5pm on a date shortly after 7 January 2010.

3. The appellant objected to her doing so because of an issue which had arisen when she (the complainer) attended an office party just before Christmas 2009. The appellant had at that time become upset, angry and apprehensive of her fidelity to him due to her meeting another man at that previous evening outing, despite the fact that she had openly told him about the situation and discussed it with him.

4. On 7 January 2010 the appellant persistently questioned the complainer over a period of hours about the further outing and about the original pre-Christmas outing. He became agitated and angry and refused to allow her to go to bed.

5. At points throughout the said period, the appellant shouted at the complainer and at one point called her a fucking whore, a fucking slut and a cunt. The appellant would not allow the complainer to remain in bed by pulling the bed clothes from the bed.

6. The complainer was genuinely upset and alarmed by the use of those words and the appellant's persistent questioning of her over several hours as well as his refusal to allow her to go to or remain in bed. The behaviour and conduct of the appellant throughout the period of several hours and late at night was likely to have caused serious fear and alarm to his 12 and 15 years old children present in the house. The conduct of the appellant was severe enough to cause alarm to an ordinary and reasonable person observing the same.

7. As a result of her upset and alarm at the appellant's behaviour, the complainer called police who attended.

8. The appellant behaved in a disorderly manner, shouted and swore at the complainer, placed her and highly probably their children in a state of fear and alarm and committed a breach of the peace.

Those are the facts. So what was Hatcher's case? As Lord Bonomy suggests at the outset, the case turns on the question of publicity. Or in this case, the absence of publicity. Breach of the peace is defined as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Hatcher argued that the events narrated above had no public element and were "the paradigm case of conduct in private". This relies on the contention that the two children in the house were of no consequence, or as the Court put it, the notion that that the 12 and 15 years old children were not "entitled to be considered as members of the community or public", however terrorised or alarmed they might have been by their father's thuggery and bawling and possessive abuse of their mother. Rather astonishingly, the Court was persuaded by these submissions. Per Lord Bonomy again, emphasis mine:

[5] We find considerable force in Mr Shead's submission that in this particular case the evidence does not support a finding that the conduct threatened serious disturbance to the community. Albeit the appellant's conduct caused upset and distress to the complainer, and would have done to any reasonable person, it occurred within areas of the family home exclusively occupied then by the couple and did not threaten the public peace. It occurred entirely in private and was not a public disturbance. That is not to say that the conduct of the appellant should be condoned or tolerated. However, if there is a lacuna in the law and domestic partners are not protected by the criminal law where one abuses the other in a way that would cause serious upset and distress to a reasonable person, but does so in private, then it is for Parliament and not the Court to decide whether the law should be changed to criminalise such conduct. 

This is inveterate nonsense. In particular I direct your attention to the italicised section. Magisterially, Bonomy attempts to imply that he and his brother judges' hands are tied, that they are motionless, upholders of the democratic principle that our parliamentarians should be the movers and the shakers. "It is not for us..." Unfortunately, this loses its air of plausibility if one notices that their judgement is actually changing the law, I don't doubt to the chagrin and surprise of procurators fiscal across the country. As the statistics I mentioned above strongly suggest, breach of the peace is an all too familiar charge as our criminal agencies respond to instances of domestic abuse. There almost 10,000 instance of its application in 2008-09 alone. If there is a lacuna in the criminal law, leaving abused spouses no protection in the presence of their children, then it is this judgement that creates it. Moreover, the distinction between public and private which the Court relies on seems to me totally artificial. Their Lordships note:

[10] As the cases referred to demonstrate, conduct in a private house may occur in circumstances which provide the necessary public element. What is envisaged in these cases is that conduct in private will raise the realistic risk of the public peace being disturbed. Not surprisingly none of the cases involves conduct occurring, and having its potential effects, exclusively within a family. WM and Paterson involve an estranged partner and a family friend respectively. That does not mean to say that a breach of the peace cannot be committed by conduct directed by one member of a family towards another within their dwellinghouse. As has been said repeatedly, whether there is a breach of the peace depends on the circumstances in which the conduct occurs.

So if Lorraine Hatcher had a friend visiting when the incident above occurred, it would be a breach of the peace, but because of the judicial contortions that deny the children's character as members of the public, it isn't? What about an aunt? What about a third cousin once removed? What if the couple had separated for a time - suddenly their intimate quarrel takes on the quality of publicity? At what point specifically does that happen? What if one of their children had had a friend staying over? The exclusion of the children doesn't exactly seem premised on their youth, so presumably that single extra body, shivering in their room as Hatcher's jealous tirades thudded off the walls would transform the event into one promising to unsettle the public and hence, one subject to the protections of the criminal law? There is much more one could say about the conceptions of public and private behind this judgement, but I'll leave you with those questions. The very real and very worrying consequences of this case should be clear enough. Some of this may be mitigated by section 38 of the new Criminal Justice and Licensing (Scotland) Act 2010, which criminalises threatening or abusive behaviour - but only once it comes into force. And even then, quite how the Court will interpret that statutory offence remains unclear.

Until that time, Lords Bonomy, Hardie and Wheatley have effectively legalised non-assault domestic abuse within the confines of the family.

(Gendered) Tales from Parliament House Vol. 7.

A gallimaufry of legal titbits has been accumulating of late in the dim litigious light of Edinburgh's Parliament House. Time again, I think, to give some of these scenes legs and form them up in an orderly review. Interestingly, all three of the issues I've picked out have some gendered theme, whether touching on prevailing conceptions of Scottish masculinity, attitudes towards women, or potentially sinister implications for the prosecution of domestic abuse, broadly conceived.

Self defence: "I turned round to give him a punch and forgot I had a glass in my hand"

One suspects the High Court of Justiciary was  rather reluctant to quash Ray Sneddon's conviction. Our setting is the car park of the Calderwood Inn in Bonnyrigg. Our dramatis personae were seemingly as sober as Court of Session judges (during the heavy-drinking days of Kames, Monboddo and Braxfield). The jury found that the accused had been provoked by the victim, but it doesn't sound if he made the best of himself during his stint in the witness box:

"The appellant gave evidence in support of the plea of self-defence and during his evidence in chief he maintained that position, the sheriff observes only just, in that he said "I turned round to give him a punch and forgot I had a glass in my hand". The sheriff comments that, in cross-examination, he proved to be an appalling witness so far as his own interests were concerned and he gave evidence so poorly that before speeches "I gave active consideration to the issue of whether or not the self-defence could remain before the jury". Effectively his position was that he was drunk and angry and that if he was hit by anyone in that situation his proper and ordinary reaction was, as it was here, to hit back. He made no attempt to indicate that he would remove himself from such a situation even if he could, or that his reaction be measured to deal with the attack proportionately for self-protection purposes."

As hapless as his defence appears and as grim as his violent common sense seems, the sheriff got rather muddled in his directions to the jury - and in a bound Sneddon was free. The incident has many clones across the country, the attitude exemplary, while the complainer's serious injuries are just one more indelible testament to the miasma of what Gerry Hassan has called "Scotland’s heady brew of toxic tartan masculinity".

Football: "this is like the wee tickly bit before you come"

It'll no doubt stun you all to learn I'm not a football man, myself. I've no loyalties, no interest in the flying bladder, no familiarity with the characters of the sport or of their travails. Keen observers will no doubt have read recently of John McCormack's action in the Session, arguing he had been unfairly dismissed from his position as manager by his employers, football club Hamilton Academical. Lord Woolman was presiding and found in McCormack's favour, but didn't find him a wholely favourable figure. Much of the interest of the case is puerile. Like many others, I find the combination of dry, technical legal language and the freer "fuck" spattered parlance of the football pitch quite irresistible. That said, the way McCormack conducted himself towards Jillian Galloway is scandalous and contemptible, yet another manifestation of how odious stickily homosocial groups of men can be. Galloway was a twenty-one year old trainee physiotherapist working part-time at the Club. I quote from the facts narrated in the judgement:

[28] Before the final match against Dundee United, Mr McCormack gave a team talk in the dressing room. Both Mr McAvoy and Miss Galloway were present. Mr McCormack told the players "this is like the wee tickly bit before you come". He then added words to the effect "even Jillian is excited - look how hard her nipples are". Mr McCormack said that these comments were made in a jovial manner. His aim was to break the tension that the players felt. He regarded his remarks as standard locker room banter, which helped to motivate the players.

[29] After the final, Miss Galloway was sitting outside the dressing room. She had ascertained that none of the Hamilton players required treatment. Mr McCormack told her that the physiotherapist should be in the dressing room at all times, in case treatment was required. He instructed her to go back inside with him. As they went into the dressing room, Mr McCormack said "get your tackle out lads, Jillian's coming to see who's got the biggest tadger".

[30] Mr McCormack decided to take a shower before boarding the team bus home. At that stage Miss Galloway was in a corner of the dressing room. She felt uncomfortable at being there and was pretending to attend to things in her treatment bag. Mr McCormack went over and undressed in front of her. He returned to the same spot after his shower and dressed there.

[31] Miss Galloway said that she felt very embarrassed by these incidents. On the bus trip home, Mr McCormack spoke to her and said that he hoped she was not embarrassed by his remarks. She did not reply. She explained that she found it was difficult to do so, as she was a female aged 21 and he was a 50 year old male. She felt intimidated by his status within the club and was concerned not to say or do anything that might harm her career.

McCormack told the court that Galloway had fabricated her account on him undressing in front of her. Lord Woolman wasn't having it, saying "where there was any conflict in the evidence, I unhesitatingly prefer the evidence of the other witnesses to the testimony of Mr McCormack. In my view, the starkest contrast occurs between his evidence and that of Miss Galloway. I found her to be a transparently honest and reliable witness." I abhor McCormack's casual, thoughtless sexism and sexualisation of this young woman, his heedless, careless undermining of her professional position, disregard for her feelings and the disparities of power in their positions, eyes no doubt twinkling all the while with a misplaced sense of his gallus, waggish charm. McCormack is undoubtedly a fool and a knave, but we shouldn't get lost in the cul de sac of his individual responsibility. Personal bastards trade in social conventions and here he was no doubt applying his gendered common sense that told him that men's sexualisation of women in the public sphere is perfectly acceptable. And for that matter, similar rules seem to haunt the hegemonic psyche in relation to other men whose masculinities are perceived to be less robust. 

Publicity, private jealousies and breach of the peace...

And finally, to round off these gendered tales of Scots law, this month has seen another case on the continually vexed question of what constitutes a breach of the peace in Scots Law. I'm sure this case will be an important and concerning judgement for those concerned with domestic abuse and its prosecution in Scotland, broadly conceived. Indeed, I'm sure they will be mightily scandalised by Lord Bonomy's opinion, quashing David Hatcher's conviction on the grounds that the incident lacked the constituting element of publicity in a breach of the peace. Hatcher had embroiled his wife in a "blazing row",  driven by his own possessive and domineering attitude towards her. He would not permit her to leave or to sleep. She phoned the police. The sheriff's full findings of fact are set out in the judgement. I may well return to the case in more detail when I have more time, but I thought it was important to highlight it here. It may have very significant implications for the use of breach of the peace charges in cases of domestic violence, abuse and disorder in future.