Further to La Debacle.

 Yesterday morning, I finished my blog under the shortened title in the last two words above.

And to my astonishment, a civilised discussion on twitter followed!

My critics (in the proper use of that word) did not dispute my assertion that I was right that the Act does not in truth change the existing law of Scotland in any significant way. I was particularly reassured that one of our most distinguished practicing lawyers, Roddy Dunlop KC, Dean of the Faculty of Advocates, agreed with my analysis of the law. You are always a bit scared why you make a bold assertion of the legal position if it then leads to some other lawyer disputing. in law, what you have said or, worse still, proving, by something you have overlooked, that you have just got it wrong. I have not got this wrong. The law will not be materially different come 1st April from that which it is today.

But Roddy, and others, made the perfectly reasonable point that I had overlooked a different point. That the Scottish Government and the Police, by creating the impression that the law is changing will encourage a lot of, at best, deluded and, at worst,  vexatious, complaints and that, for those complained about unjustifiably, "The process will be the punishment." That's not initially Roddy's phrase but it is one with which he'd sympathise. If Trans activists (for let's be honest that's the potential problem here) make repeated complaints against "gender critical" feminists then, supposedly, law abiding women will be put through the trauma of arrest and police interview before, finally after a period of worried uncertainty being told they hadn't actually broken the law. Who would blame them for concluding they didn't want to go through that again and in future keeping their perfectly legal opinions to themselves? 

I absolutely concede that to be a potential issue but I suspect more in the imagination than in reality. 

Now, this is not helped by the announcement that the Police that they will investigate "every" complaint, no matter how deranged. But, to be honest, I do not think they are telling the whole truth here. What does "every" complaint mean? No matter how nonsenical? Really? So they won't. All they'll at best do is that they'll write back thanking the complainant that no actual crime is involved here. And then what does investigate mean? To choose a very contemporary example. When it was suggested about Murdo Fraser that claiming that identifying as non binary was as sensible as identifying as a cat, constituted  a crime.  Will, on Monday, that bizarre accusation of him having broken the criminal law in the process, be in some way "investigated"?  Would be Murdo be hauled in and questioned under caution as to whether he said it. As he patently did.

Well, I strongly expect not. 

Because let's look at the actual law, rather than the hopes of one side of this debate or the fears of the other.

The law is in s.1(1) of the Criminal Justice (Scotland) Act 2016. 

1Power of a constable

(1)A constable may arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence.

That's the law. All that is relevant here. 

If, and only if:

"A constable.......has reasonable grounds for suspecting that the person has committed an offence." 

All emphases above are mine. That involves a an objective analysis of the situation by the "constable". That some zoomer thinks it is a crime is not "reasonable grounds" for a trained police officer to agree. And has is also a word of significance. Not might have, has.

So, I'll make a confident prediction, nobody is going to be arrested for contravening s.4 of the Hate Crime Act. Ever. Because wrongful arrest is civilly actionable. 

And not inexpensive. The best case I can find as a precedent. Beck v The Chief Constable is from 2002. It turns on a habitual offender arrested and detained, she maintained illegally, for 7 hours. The Court held that she was not so illegally arrested or detained, so her appeal case failed but it was agreed by the Chief Constable that. had that been the case, appropriate compensation would have been £1000. In 2002 money, for a detention of a habitual offender, for 7 hours, in the middle of the night. So perhaps the same amount today for a law abiding citizen arrested for a shorter period , but in the middle of the day. And that's without evidence of actual psychological harm. Bearable expense, even with legal costs they'd be paying by Police Scotland but not if there are repeated claims.

Now, if I, a mere jobbing High Street lawyer, can work that out, you can bet the lawyers for Police Scotland will have worked that out. But I am certain that senior police officers, who are no idiots, knew that already.

So, if anybody is ever arrested for an alleged offence under s.4 of the Hate Crimes Act, unless they have clearly broken the wider criminal law, which I emphasise has not changed, then I will be astonished.

Now that does not remove entirely the fear of law abiding citizens they might be arrested. "What about Marion Miller?" they, not unreasonably, worry. There are any number of issues about that case that I strongly suspect will not be repeated. It involved the actions of an "activist" cop., I suspect with inadequate supervision and in the end involved the Crown concluding she had broken no law. "But, even then, I wouldn't want to go through that!" Well, either institutions learn lessons from their own errors or they don't. I'd be astonished if that does not include the Police. They genuinely do not want to face a slew of damages claims. 

But finally, a bit of practical advice. The Police cannot interview you as a suspect without arresting you. They generally don't tell you that in advance but once you are arrested they are obliged to tell you that you cannot be interviewed without a lawyer. This is generally accompanied by informal advice that the lawyer might take hours to attend, while you will remain in custody. And even then it might be just any lawyer. DO NOT GET IN TO THIS SITUATION! If the Police ask you in for a voluntary interview, get a lawyer there and then. You are entitled to absolutely free representation in these circumstances, irrespective of your own financial circumstance. That's the actual law. Leave it to the lawyer to agree a time for your interview. When the lawyer can be there from the start. That's standard current practice about actual crimes. I have suggested to For Women Scotland they get a list of suitable briefs. That's not me touting as I'm about to retire in a month but anybody knowing the territory will ask the Cops if, before you are interviewed, they are aware of them being potentially sued for wrongful arrest. And, helpfully, if they might want to run this past the Officer in charge before they proceed further.

On this point alone, I wish I wasn't retiring. I might make quite a few bob.

La Debacle.

When I was younger I was a massive admirer of the French Novelist Emile Zola. A great socialist and social reformer, he wrote a series of books about the plight of the working classes in 19th Century France, most of them based on a particular area of occupation. The most famous today are probably Germinal, about the coal industry, and La Bete Humaine, about the railways. The books are set in time during the latter stages of the French Second Empire and they cumulate in the one which is my favourite, La Debacle, which is about the Franco Prussian War which brought that Empire to a disastrous end, 

The book's narrative is mainly about the experience of ordinary soldiers, caught up in military events they can't understand. But it's underlying theme is that these events, through a combination of hubris and incompetence are in fact little better understood by their superiors. A grand metaphor for the second empire itself. Hence the book's title, a word which means exactly the same in French as in English.

I make these observations  as that word seems a perfect description for events surrounding The Hate Crime and Public Order Act 2021. It is, in fact neither the terrible threat to free speech which some maintain, nor a game changing intervention, as maintained by its supporters. For it in truth changes the law little if at all as to what might constitute criminal behavior. Yet it has somehow managed to create the impression that it does, for good or ill. That then has led to, let's put this kindly, confusion on the part of Police Scotland as to exactly how they should be responding, featuring the short lived and much missed appearance of the Hate Monster and a completely irrelevant diversion about them keeping records of people who have not broken any (current) law to avoid hurt feelings on the part of those who who assert they have.  

I'll start however with the history.

As with so many things in Scotland,  it starts with a football match. 

In March 2011, there was a game involving Rangers and Celtic. It was during and afterwards accompanied by widespread disorder prompted in no small part by the respective managers. Ally McCoist and Neil Lennon, nearly coming to blows on the touchline after three Rangers players were sent off. For the record, Celtic won 1-0. 

But First Minister Alex Salmond was then in his pomp and decided these events demanded a "summit" and, prompted I am sure in no small way at all by the forthcoming Scottish Parliamentary elections he then announced that "something must be done!.

That something turned out to be just about the most lamentable piece of legislation (and that's a high bar) ever passed by the Scottish Parliament, which was the The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Which had as its high point (?), the criminalisation of singing songs on football terraces

After various legal travails, including a Sheriff describing the legislation as "mince", following the 2016 Scottish Election, there was no longer a majority for the terms of the Act. So by virtue of the bluntly named  The  Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Act 2018. it was indeed repealed. 

But it was repealed in its entirety although the objection was truly only to the "Offensive Behaviour at Football" part, not the "Threatening Communications" part. 

So the Government was left wondering if the second part, in modern circumstance, left a legal lacuna, that might need to be filled.

So they commissioned a judge (Lord Bracadale) to report on that matter. He concluded that it didn't. 

But they also asked him to consider whether wider reform of "Hate Crime" might be required to create any new criminal offences and that's where this all started to go wrong.

I will start with the words of his Lordship himself, having considered the existing law, and its terms,  he goes on to consider whether any additional offence of "stirring up" hate crime might be necessary and to observe (at section 5.15 of his report) .

I recognise that almost every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation: most, for example, could be prosecuted as threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ( CJLSA), along with an aggravation.

I will come on to the word "aggravation" below. The "almost" is my emphasis for the moment, because his Lordship then goes on to demonstrate not a single example of something not caught by that almost. 

With that we go to the terms of the self same s.38. 

38Threatening or abusive behaviour

(1)A person (“A”) commits an offence if—

(a)A behaves in a threatening or abusive manner,

(b)the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c)A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2)It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3)Subsection (1) applies to—

(a)behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b)behaviour consisting of—

(i)a single act, or

(ii)a course of conduct.

(4)A person guilty of an offence under subsection (1) is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

As my readers will overwhelmingly know. I am a great man for the Twitter. But I remain aware that what I do there is no different from what I might do on the street. If I post, in sincerity. there, that all people from Greenock should be tracked down and killed, then I have broken the law. Quite rightly. For my behaviour would be:

a) threatening 

b) likely to cause a reasonable person fear and alarm and 

c) intended or reckless as to whether it caused actual fear and alarm.

I don't want to write forever, so, take it from me, it would make no difference that I'd  expressed that sentiment (only)  on twitter rather than from a soap box on Paisley High Street.

But at this point I have to deal with the issue of "aggravated" offences.

An aggravation is something tacked on to a crime by Act of Parliament to suggest it is "aggravated" in some way. Currently the most common aggravation, by some way, is that the crime was aggravated by it having been committed against your partner or former partner in terms of the Domestic Abuse (Scotland) Act 2018. Curiously however that does not feature at all in the Hate Crime Act. 

The other aggravations however relate to various "protected" characteristics. At the time of the Bracadale report these were, in summary, Race (including nationality), Religion, Disability, Sexual Orientation or transgender identity.

Now, lawyers don't like aggravations. To explain why briefly, by reference to my own earlier example: if on my hypothetical soapbox I call not for all people from Greenock to be rounded up and killed but rather for all Jehovah's witnesses to be so treated, then, in the latter case alone, I have committed  an aggravated offence (contravention of s.38 infra). But I'd defy anybody to say these matters are not of equal seriousness. or to suggest they'd should involve differential sentencing.

Courts can sort these things out. In relation perhaps to a more likely crime, assault in a pub argument, courts do not need politicians to tell them that this is a more serious crime if committed against a man in a wheelchair rather than committed against a young fit man with the potential to fight back.  

But we are where we are on aggravations. And they do, to be fair, allow, through criminal record keeping, the collection of statistics on the commission of crime against people with protected characteristics and they would be a factor in sentencing on subsequent offending involving the same aggravation.

But I am getting slightly off the point here. For despite his own statement that stirring up hatred is already a crime (I would suggest not just in respect of protected characteristics) Lord Bracadale goes on to suggest there should nonetheless be a new crime of stirring up hatred. Why did he do this? It is difficult to avoid the conclusion that, having told the Scottish Government that even the less controversial parts of the Offensive Behaviour legislation did not require to be reinstated, he wanted to throw them a bone.

Now, the bone having been thrown, it was then unfortunately then caught by an exceptionally stupid dog.

For, Bracadale having reported on 31st May 2018, on 26th June 2018 none other than Humza Yousaf, became Justice Secretary. And if there is anything to be learned about Useless, it is that he likes to give the impression of action.

So he announced that he was going to legislate. He didn't, as you or I, dear reader, might have, think to go back to Bracadale and ask for some elucidation on his use of the word "almost" that I refer to above. In the process avoiding the use  of a lot of Parliamentary time and avoiding all of the current controversy. But then again, in addition to his stupidity, one other feature of Useless is that he loves publicity. He (he alone!) was going to make threatening and hateful behavior towards minorities against the law! Although (cough) it was already against the law.

I will skip the legislative process that followed except that it demonstrated a Minister hopelessly out of his depth and ultimately forced to accept a whole series of Opposition amendments, marshalled by the estimable Convener of the Justice Committee, Professor Adam Tompkins, to avoid pitfalls in the original Bill that had entirely passed the Minister by until drawn to his attention

But let us look at what emerged. In terms of almost all of the legislation it simply brings much of the existing law together in one place. It adds variation in sex characteristics (whatever that is) and somewhat bizarrely age into the aggravated categories. To be fair, these come from Bracadale but if you asked just about anybody whether they'd regard assaulting somebody with the words "take that you old bastard" as being more serious than with the use of the words "take that you fat bastard", then I suspect you'd get a sceptical response. 

Anyway, here it is, the source of all the controversy, s.4.

4Offences of stirring up hatred

(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or

(ii)communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and

(b)either—

(i)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

(ii)a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

(2)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening or abusive, or

(ii)communicates to another person material that a reasonable person would consider to be threatening or abusive, and

(b)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (3).

(3)The characteristics are—

(a)age,

(b)disability,

(c)religion or, in the case of a social or cultural group, perceived religious affiliation,

(d)sexual orientation,

(e)transgender identity,

(f)variations in sex characteristics.

(4)It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable.

(5)For the purposes of subsection (4), in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.

(6)For the purposes of subsection (4), it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if—

(a)evidence adduced is enough to raise an issue as to whether that is the case, and

(b)the prosecution does not prove beyond reasonable doubt that it is not the case.

(7)For the purposes of subsections (1)(a)(i) and (2)(a)(i), a person's behaviour—

(a)includes behaviour of any kind and, in particular, things that the person says, or otherwise communicates, as well as things that the person does,

(b)may consist of—

(i)a single act, or

(ii)a course of conduct.

(8)For the purposes of subsections (1)(a)(ii) and (2)(a)(ii), the ways in which a person may communicate material to another person are by—

(a)displaying, publishing or distributing the material,

(b)giving, sending, showing or playing the material to another person,

(c)making the material available to another person in any other way.

(9)A person who commits an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b)on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

Now, if you've been paying attention you will note the similarity to the wording of s,38 of The Criminal Justice and Licensing Act that I refer to above. Indeed some of it is word for word the same. Crucially, any criminalised behaviour must be threatening or abusive except for racist or ethnic origin crimes  which can cross the line of criminality by merely being insulting (and/or threatening or abusive). 

So what is all the fuss about. Well, firstly, its because Useless is insisting he has materially changed the law, although he hasn't. People are nonetheless taking him at his word. 

But, secondly, so are the Police. If the Scottish Parliament and the First Minister are telling them they have changed the law then they are assuming they must have. But the Police can't work out how. That's because they haven't. To use their own notorious training example of "Jo" suggesting all trans people should be sent to the gas chamber, if "Jo" did that on 31st March it would be as much a crime as if she did it on 1st April, And rightly so. It ticks every box of the existing s.38. And would be an aggravated offence.

The other mistake they have made is to suggest that they will investigate every complaint as opposed to every well founded complaint. If I try to report my neighbour for having commented on the fact I am going bald and thus demonstrated prejudice based on age, I shouldn't be told the Police will look into it. I should be told there and then that there is no crime here and, if I persist, warned of the potential crime of Wasting the Time of the Police. That's eventually where we'll end up. Even Engender is warning people that being "misgendered" is not to become a crime, not that that will deter some people for reporting it as such. 

So that's what's going to happen. Nothing. After a short period of sound and fury, nothing is going to change. Much as some fear and others hope. 

That's why it is a debacle.