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.
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