‘The effectiveness (or otherwise) of rehabilitation’

The recent case of Colin Pitchfork (below) has caused the familiar mix of outrage and anger (mainly, as usual, by those who are relatively uneducated in these matters).

Minister may intervene in Parole Board's decision to free child killer Colin  Pitchfork | Prisons and probation | The Guardian
(Colin Pitchfork sentenced on 22/1/88 for double murder)

Pitchfork was convicted of the rape and murder of two teenage girls, Lynda Mann and Dawn Ashworth, in 1983 and 1986 respectively. He was handed a life sentence for each with a recommendation that he serve a minimum of 30 years before he could be considered for parole. In both 2016 and 2018, his request for parole was denied but in March of this year, it was determined that he was ‘suitable for release’.

Subsequent to that determination and after it was released via the media, the Ministry of Justice stated it would officially appeal that decision.. The UK Government’s Justice Secretary, Robert Buckland QC said he would formally ask the Parole Board to re-consider the determination. To do so, the board’s decision has to be inherently ‘unfair’ or ‘irrational’. The latter is likely to be the case here.

Pitchfork has himself a dubious claim to fame. He became the first man in the UK to be convicted of murder on the basis of DNA evidence. He pled guilty to two counts of murder, two counts of rape, two of indecent assault and one charge of attempting to pervert the course of justice.

Killer breakthrough – the day DNA evidence first nailed a murderer | Crime  | The Guardian
(News of the first mass screening for genetic fingerprints which sealed Pitchfork’s fate)

There are many ‘experts’ (criminologists, psychologists, behavioural experts etc.) who believe that Pitchfork’s crimes were so egregious that he can never be rehabilitated and therefore should simply never qualify for parole and never be released. But he has never been handed a ‘whole life order/tariff’, more of which below.

Certainly, his background is ‘dark’, to put it mildly. Not only was he involved in criminal activity in his teens, but his own family expressed horror when they learned of his release. He was first convicted in a juvenile court almost 50 years ago for ‘flashing’ at teenage girls. Notwithstanding that, he volunteered for five years in a Barnardo’s children’s home where he played freely with children. It was there where he met his future wife but also where again, at the age of 21 this time, he was convicted of exposing himself.

Of course, the crimes committed by individuals are not the sole deciding factor in determining whether an individual should be released from incarceration.

See the source image

Whilst there are multiple ‘aims’ of our (and most) penal systems, there are certainly three worth mentioning and of exploration.

Firstly, there is the element of punishment. By incarcerating an individual, we are principally denying them their liberty. The ‘ripple effect’ will then dictate that many other factors come into play – loss of employment, loss of relationships, lack of contact with children, lack of social contact, et cetera. The effects can be far-reaching and even devastating but many believe they should be. Even so called ‘unintended’ consequences are often seen and interpreted as themselves a form of punishment.

Secondly, there is the element of protection of the public – if we keep people in a secure jail, they cannot cause any further ‘harm’ to society, whether by repeated similar offences or any other offence. There are clearly some individuals that present a grave risk to the public and should not be returned to society – this is the area of most concern to those who believe Pitchfork should not now, or indeed ever, be freed.

Finally, there is the issue of rehabilitation. Some believe it doesn’t work and some, including a formal colleague, told me it ‘shouldn’t matter’, somewhat bizarrely. But, in a civilised society, should we offer every individual the opportunity of being rehabilitated or, paradoxically, are there some individuals, for some crimes, for whom they should simply never be released?

We know the latter is true as we currently have in the UK (but not Scotland who believe the issue is contrary to human rights) some 75 individuals who will never be released as a result of the imposition of a ‘whole life order/tariff’. So clearly whilst they do exist, the vast majority of our criminals (even those convicted of homicide and sexual crimes) are deemed to be capable, potentially, of rehabilitation (although clearly not all are).

Under new legislation in the... - Ministry of Justice UK

The Labour leader, Sir Keir Starmer , a former Director of Public Prosecution at the CPS (our COPFS) gave a radio interview a fortnight ago and said that Pitchfork had ‘served a long sentence and he served the sentence imposed on him by the court, and under our system that means there comes a point at which he has to be released’. And he’s right.

That is not to say that our system is right – evidently it is not. But when we examine the background of an individual, is it ever possible that they can be rehabilitated? Why is it that some convicted of murder and rape are released from prison on licence and live a subsequent crime-free life without re-offending but, for others, rehab simply doesn’t work. Empirical evidence has shown us that factors such as socio-economic issues, genetics and psychology all play a part. And then for others, as here with the Pitchfork case, the communal outrage and revulsion against his crimes is such that there appears consensus that they should remain incarcerated perpetually. But surely in any civilised and democratic society, we have bodies and procedures in place for all sorts of issues and, in general, we trust them. Should every individual convicted of drink driving never be allowed to drive again (in case they repeat the offence). Or do we punish them and expect/(hope) that during any period of disqualification along with attendance at a rehabilitative course, they are entitled to drive again..?

Here, in the Pitchfork case, it seems to me that whilst we, as a society are entitled to raise questions, by and large we should accept that the procedures we have in place are adequate and, if not, lobby parliament for a change. That is the procedure. As I have said before on these pages, it is not for the public simply to express their own personal views on a subject and simply expect that opinion to be adopted. That would not be helpful.

This area raises many questions and I pose them multiple times in class each year – and the answers and opinions of our future lawyers, criminologists, probation officers, parole board members and even MPs are often startling.

I’ll ask them again starting next month ……….and shall expect a familiar variety of answers and opinions.

An interesting one, for sure.

Stay safe.

‘Crime-obsessed’

I know it’s not just me that the above headline applies to – many of you are the same and a seemingly endless stream of my students, past and present, are as well.

But why…???

I'm So Obsessed - CNET

As a race, globally, we have always had an extraordinary fascination with ‘crime’. Nothing ‘satisfies’ us more than a night in front of the box, drink and snacks at the ready and a good murder to hold our attention for a couple of hours. As an added bonus, it’s even more captivating if the depiction is based on true, real-life events. Some of the recent biggest viewing figures for television were for dramas depicting the stories of Peter Manuel, Denis Nielsen and Jeremy Bamber.

Over the last decade or so, the true crime category has erupted beyond belief. There are ‘YouTube channels’, ‘podcasts’, ‘blogs’ (ahem..🙄) and even dedicated TV channels all feeding our insatiable appetite for ‘crime’. Why, though, do we love to devour stories of this nature?

One theory is that the darkness of the subject is to blame. It appears that it is innate to want to understand the darker side of our fellow humans. In much the same way as we are born prejudicial (and must actively fight against it), so we cannot help ourselves being intrigued, fascinated, obsessed even about issues that are, however you look at them, often horrific.

1 My DA is Crime Dramas – Satomi's blog

Another slant on this is that we see ourselves as being central to the story that is playing out before us. We are often ‘the lead character’. What would we do in that situation? How would we have reacted, behaved, dealt with it? The chances are we have seen ourselves offering advice, preposterously, to the people we are watching.

‘Don’t be daft, don’t go in there’……’Get him’, are just some familiar lines doubtless heard up and down the country nightly, be it on Sky, Netflix or Prime.

Plus, of course, we get to play the lead detective and can ‘solve’ the issues at hand. Women, statistically, are more drawn to this type of ‘entertainment’ but it is thought that it may actually be as a mechanism for tips as to how to survive and not become a victim themselves. It would also appear that the ‘fear’ of crime is often more commonplace than actual crime itself.

Similarly, there are actually some well documented reasons why we appear drawn to matters which, at least on the face of it, seem to be somewhat macabre or morbid. We know people are prone to slowing down if they see an accident on the motorway (rubbernecking) and there is plenty empirical research to say that plenty people search online for stories about real tragedies, even wanting to see graphic depictions, including death.

This curiosity about fairly stomach-churning events is actually very normal indeed, it being innate to several differing elements of instinctively human behaviour. So you can relax – you are not the weirdo you thought you were – at least not in the sense of what we are currently discussing 🤣

When we hear of something that our minds tell us is ‘awful or horrendous’, instinctively we place ourselves in that person’s shoes. We need to be able to ascertain for ourselves how we would deal with this and what our reaction would be. You hear on the news that someone was murdered at 2am returning from a night out in a location familiar to you. Suddenly, we know the locus of the attack and need to reassure ourselves that that could never have happened to us because we are far more cautious and careful. But to reach that conclusion, we need to put ourselves there in order to fully assess the scenario accurately.

Paradoxically, we are not ‘blaming’ the victim – absolutely not. Quite the reverse – as humans (most of us) show empathy and sympathy but we need to ‘compare reactions’. It is our method of assessment and self-assurance.

For others, of course, the hidden superhero comes to the fore. That would never have happened had they been there as they would have deftly fought off any attack successfully and with aplomb. By telling oneself this, we are again merely illustrating another form of self-assurance. Plus we all have to recognise that the emotions of fear and excitement are incredibly closely linked. The so-called ‘adrenaline junkie’ will testify to that. Part of the ‘thrill’ about being on a rollercoaster is, bizarrely, perversely even, the mind exploring the possibility of ‘danger’ whilst treading carefully between that and reassuring oneself that nothing will really happen. We do know, however, that some people need ‘thrills’ far in excess of a rollercoaster and seek to jump off buildings and undertake what for the rest of us seem outlandish and totally foolish acts.

Much can also be said about our ‘obsession with crime’. Interest for some, for others a far more sinister explanation. We also know this because of the number of copycat crimes over the years.

Hope you enjoyed that reasonably brief foray into human behaviour.

Once again, everyday is indeed a school day 😊

Stay safe.

Muir v Glasgow Corporation (1943)

Apart from my slightly scary liking/(obsession?) for crime and criminology, my other great passion in law is ‘Delict’ (otherwise known in other jurisdictions as ‘Tort’). It stems from the Latin ‘delictum’ (literally ‘failure’ – more commonly ‘fault’).

This area of law is comprised of civil wrongs (between individuals) either committed intentionally or negligently and which results in some form of ‘loss’. The wrongdoer must have ‘foreseen’ that their actions would likely cause such loss. By loss we mean ‘loss, injury or damage’ and this would best be illustrated by our old friend and famed maxim ‘damnum injuria datum’ (‘loss wrongfully caused’). The precise meaning tends to vary within systems across the world but it is generally accepted that it stems from the Roman concept of ‘wrongful conduct’.

Case study: Donoghue v. Stevenson (1932)
(If you know, you know 😉)

The ‘damnum’ maxim is important as it forms the basis for a delictual claim in Scots Law – in other words, ‘was a duty of care owed by one party to the other?’ We know this is NOT absolute as demonstrated in Bourhill v Young (1943) AC 92. Equally, in what appears to be a somewhat paradoxical case – McLoughlin v O’Brian (1983) 1 AC 10 – we see that liability can be established even in circumstances where, at first glance, it seems unlikely.

In today’s case analysis, we are looking at yet another celebrated Scottish delictual case that covers negligence, the standard of care and the issue of (reasonable) foreseeability. Classically, when looking at ‘who owes what to whom’, we needn’t go beyond the words of that wily old fox Lord Atkin who, in creating the seismic ‘neighbour principle’, utters the immortal lines…..

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question‘.

Lord Atkin of Aberdovey.jpg
(Lord Atkin)

This remains the classic test for liability in negligence. You will be mightily relieved that any forensic, philosophical analysis as to the rights, wrongs and motives for Atkins’ judgement have already been discussed on these pages and therefore won’t be poured over again today (but hey, you can check my critique again if you wish 😁 – Donoghue v Stevenson – a critique – THE SCOTS LAW BLOG).

In today’s scrutiny of the common law, Eleanor Muir (daughter of the Pursuer) was badly scalded by boiling hot water as she stood in a council-run shop in King’s Park in Glasgow in 1943. She was part of a group that had been enjoying a fun day out when, one might say ‘as ever’ (in these parts), the heavens opened and there was a torrential downpour. The adults in charge of the children (including Eleanor) and who were all at a picnic day out, scurried to find shelter from the elements. As they waited for the rain to subside, they were offered a cup of tea. To facilitate this, an urn was required. One of the adults in charge of the group, a Mr. McDonald, was charged with carrying said urn along with another boy, from the house adjoining the shelter where they initially had gone, back towards the tearoom.

Inexplicably, and it has remained unexplained to this day, McDonald let the urn tilt and slip out of his grasp. The court reports from the time speculated that it may have been ‘a temporary muscular failure’ but no definitive explanation has ever been forthcoming. The resultant drop and spillage caused extensive burn injuries to a number of children, including Eleanor and her father duly sued the local authority.

Week 7: Reporting cases: 2 Case names and citations - OpenLearn - Open  University - WXM151_2

The legal issue was whether there was a ‘duty (of care)’ incumbent upon the manageress of the tearoom facility (vicarious liability resting with her employers Glasgow Corporation (as then was, now effectively Glasgow City Council), if so) or whether there could not have been ‘reasonable foreseeability’ (in the Atkinian sense). The House of Lords held unanimously that she had not been negligent.

The ‘test’ gives us the slightly nebulous theory of that most dreaded of ‘people’….‘the reasonable man’. (Please note that this concept was coined long before the use of gender-neutral language became de rigeur). The question then, as it remains largely so now, is whether a person/persons did or did not act ‘reasonably’ in the circumstances. I suspect many may have an issue with this. On a pouring wet day outside, was it wise (sorry, ‘reasonable’) to foresee that carrying an urn full of scalding hot tea was a good idea? That is was not without inherent risk? The difficulty with the judgement and the ratio given by Lord Macmillan is the difficulty we have (and always will have) in actually locating someone who fits the bill of the ‘reasonable’ man. This fictitious individual who sits in an unenviably calm position somewhere between sound reason and calm judgement.

I’m not convinced they exist at all. Anywhere. The same judge sat in the same year in another delictual classic – that of Bourhill v Young (mentioned above). Here, the principal issue was to determine whether an individual has an ‘absolute’ duty of care to all (which evidently they do not – as that case ultimately determined). The fishwife in that case (Bourhill) claimed that a miscarriage she suffered was as a result of seeing the aftermath of an accident where Mr Young lost his life after being involved in a road traffic collision. It was held that he did not require, in law, to have ‘everyone’ in his contemplation and there was consequently a limitation as to those to whom he owed a duty of care. Mrs Bourhill who did not see the accident but heard it and witnessed the aftermath, was not deservingly close to have been in his ‘reasonable contemplation’. As there was no duty, the first condition of damnum failed and there was no liability. Further reading on this for those interested can be found (other than a detailed look at Bourhill and McLoughlin) in Alcock v Chief Constable of South Yorkshire Police (1991) UKHL 5, (1992) 1 AC 310, a case that stemmed from the tragic events at Hillsborough in 1989 when 95 Liverpool fans lost their lives after a crush within the ground. (*Ultimately 96 fans died when a further supporter passed away some time after the event).

When Is A Tort Duty Owed? Understanding Virginia Negligence Law – KPM Law |  Fairfax, Richmond, Norfolk, Roanoke

To conclude, then, for a valid claim for negligence to succeed:

  1. a duty must be owed by A to B – in the absence of it, there can be no validity to any claim and the process cannot proceed further
  2. there must be a demonstration that, having established a duty, it was breached (so, in Muir the manageress DID owe a duty of care to the children but she did NOT breach it as it was not foreseeable)
  3. there must be a causal link between the breach and any loss, injury or damage


All fascinating stuff, n’est pas??? 😎

Stay safe everyone.

‘Forensic evidence – fingerprints’

Bet you’ve never heard of Henry Faulds? He’s been dead for over 90 years but his role in legal systems around the globe should never be underestimated.

Henry Faulds Biography - Childhood, Life Achievements & Timeline

(Henry Faulds 1843-1930)

He was born in 1843 in a small town in North Ayrshire. He studied Maths at Glasgow University and subsequently medicine at Anderson’s College (Strathclyde University) where he graduated with the ability to practice as a Doctor. Significantly, he then became a missionary and was posted to India (then under British rule). He worked at a hospital in Darjeeling.

One of several claims to fame then followed when, having been posted to Japan, he established an English speaking mission and hospital. He helped to introduce the method of antiseptic surgery originally created by Dr Joseph Lister (hence Listerine, the mouthwash 😉).

Joseph Lister 1902.jpg
Dr Joseph Lister who developed the idea of sterile surgery at Glasgow Royal Infirmary in 1865.

Whilst in Japan he accompanied a friend (and famed Japanese archaeologist Edward Morse) on a dig. Whilst there, Faulds noted that delicate ‘finger imprints’ appeared to be visible on various items made of clay. Fascinated, he started to conduct a detailed examination of his own fingerprints and those of his friends. He soon realised that each was individual. Celebrated naturalist and biologist Charles Darwin (he of ‘On The Origin Of Species’ fame) declined to become involved but referred Faulds to Francis Galton, his half-cousin. To this day there has been ongoing controversy in relation to whether it was Faulds or Galton who was responsible for the remarkable concept of the forensic analysis of fingerprinting.

Then enter a certain William Herschel who had also been stationed in India and who claimed he had first used the concept in 1860 but without suggesting it would be of any direct use ‘forensically’. An extraordinary spat then developed and lasted decades until, in 1917, Herschel conceded that it was indeed Faulds who was the first to suggest a forensic use.

By this stage, disillusioned and beleaguered by the bickering and doubt cast upon him, Faulds returned home to the UK, became a Police surgeon but died in 1930 embittered at his lack of recognition at ‘inventing’ such a seminally important concept.

CSI'/ Forensics Fingerprint Identification

Fingerprints are unique patterns, made by friction ridges (raised) and furrows (recessed), which appear on the pads of the fingers and thumbs. Prints from palms, toes and feet are also unique; however, these are used less often for identification. The fingerprint pattern, such as the print left when an inked finger is pressed onto paper, is that of the friction ridges on that particular finger.
Friction ridge patterns are grouped into three distinct types—loops, whorls, and arches—each with unique variations, depending on the shape and relationship of the ridges.

No. 2529: Comparing Fingerprints

The two underlying premises of fingerprint identification are uniqueness and persistence (permanence). To date, no two people have ever been found to have the same fingerprints—including identical twins. In addition, no single person has ever been found to have the same fingerprint on multiple fingers. Persistence, also referred to as permanence, is the principle that a person’s fingerprints remain essentially unchanged throughout their lifetime.

Despite the extraordinary effect of such a forensically amazing tool, it is not without its problems. In 1997, a Scottish detective, Shirley McKie, was accused by ‘fingerprint analysis staff’ of having left her thumb print at the home of an Ayrshire murder victim. McKie stated categorically that she had never been in the house. However, she was suspended, dismissed from her employment and even arrested and stood trial for perjury, a charge upon which she was unanimously found not guilty.

The case undoubtedly raised concerns on the accuracy (or otherwise) of this great ‘Faulds’ creation. The backlash was severe as can be seen here in this BBC news report from September 2004 – BBC NEWS | Scotland | Print case ‘shames Scots justice’.

Indeed for all you insomniacs out there, you can view ‘The Fingerprint Inquiry Report’ findings here – http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.361.380&rep=rep1&type=pdf – all 790 pages of it…………………..

Despite Faulds’ remarkable and seismic ‘discovery’ all those years ago, it is evidently not without infallibility. Indeed in a summary of its findings, the report stated, inter alia, that ‘…there is no reason to suggest that fingerprint comparison in general is an inherently unreliable form of evidence but practitioners and fact-finders alike require to give due consideration to the limits of the discipline’.

Quite.

Law and science……..aaahhhh………a mesmerising mix.

Everyday is indeed a school day. You can thank me later 😊

Stay safe all.

‘Breach of the Peace’

You would imagine that ‘breaching’ the ‘peace’ would be (a) pretty self-explanatory and (b) if it wasn’t that there would exist a morass of helpful, clear common law definitions and explanations. Remarkably, neither appears to be the case.

Breach Of Peace - Free of Charge Creative Commons Legal Engraved image

Even the High Court has attempted clarity of the issue. In Smith v Donnelly (2002) JC 65 it stated that it is, “…..“conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community…conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable people.” You would imagine that is (relatively) clear but perhaps it would be of benefit to contextualise.

The accused had been charged for her role and actions in an anti-nuclear weapons demonstration at the Faslane Naval Base on the Clyde. Specifically, that she conducted herself in a ‘disorderly manner’, ‘disrupted the free flow of traffic’ (by laying down on the road) and ‘refused to desist when requested to do so’…………………………..and did (therefore) commit a breach of the peace.

Whether Smith’s conduct was ‘conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community‘ is surely a matter of great and doubtless divided opinion. Unquestionably annoying, perhaps, immensely inconvenient, but behaviour that caused ‘alarm’..? Whilst we can now move away from Hume who described it as a form of ‘rioting’, its scope does now appear remarkably wide. Thirty to forty years ago, I suspect the most commonly prosecuted crime in (certainly the West of ) Scotland, (no, it wasn’t urinating in public, surprisingly) was ‘shouting and swearing in a public place’ and putting the lieges in a ‘state of fear or alarm’. Indeed, most of us (then, I stress) young pups cutting our teeth in the art of criminal defence law, would sit of a morning (although classically a Monday) in the old District Courts in St. Andrews Street, Glasgow and deal with the hordes charged with just that during an excitable preceding 48 hours. The profusion of such cases resulted in local PFs referring to them, collectively and colloquially, as a ‘two-cop breach’, as it was only the two polis (sorry Glasgow vernacular for Police) that gave any evidence.

Consider now that we have had cases appear in front of JP and Sheriff courts in relation to fighting, aggressively begging for money, kerb-crawling, kicking a ball in the street and even attempting to commit suicide. Amongst this plethora of common law examples, appears to be the commonality of, if you like, ‘anti-social behaviour’ which may upset, anger, disturb or alarm ‘others’, i.e. bystanders. Some interesting cases arise when the Prosecution elect to almost use the charge as a ‘catch-all’ for behaviour that actually could (and does) fall under different headings. So, in Hutchison v HMA (1998) SLT 679, the accused was charged with exposing himself and masturbation and could have faced a charge under both common law and statute (The Sexual Offences Act 2009, s.8) but rather breach of the peace was pursued instead. Which seems somewhat perplexing and bewildering.

It could be argued that the range of offences seems extraordinarily wide – especially when you consider that kicking a football in the street can be treated analogously with someone exposing themselves to others.

Those of us in academia (especially if we have also practiced) have long suggested that there is a cloud of ambiguity and far too wide a range of possible offences for this ‘crime’. The High Court (sitting as an Appeal Court) disagreed in Smith (above) but it did concede that, as Lord Coulsfield quoted,…”in some cases breach of the peace had been held to be established on grounds which might charitably be described as tenuous“. A thinly veiled rebuke indeed.

WXM151_2 - OpenLearn - Open University - WXM151_2

As ever, there is simply no escaping the ‘human rights’ issue and in particular the European Convention. There have been suggestions that breaches have occurred of Articles 7,10(1) and 11(1), to name but three, in relation to charges of ‘breach’. However, any rights under the Convention are not unfettered and that they necessarily come with a sense of restriction in order to ensure public order is maintained. So, in terms of of both Arts. 10(1) and 11(1), Arts. 10(2) and 11(2) provide that if issues arise in respect of public safety then restrictions can be imposed.

The issue however, in my view, is whether we should be giving any credence from now on to the fact that playing football in the street at night can ever really constitute a ‘serious disturbance’ to the community (as per Smith, above). An element of proportionality surely has to be the all encompassing factor?

This came to a head in Harris v HMA (2010) JC 245 when the Appeal Court again reiterated the ‘public disturbance’ element. Further, in Hatcher (2011) Lord Bonomy quashed the conviction of an individual who had ben convicted of a breach of the peace by ‘shouting and swearing at his wife within the family home’. It was quashed because it could not be said that there would likely be a ‘serious disturbance’ to ‘the community’. Lord Bonomy spoke of a ‘lacuna (a gap) in the law’ but, of course reiterated one of our founding principles that it is for Parliament and not the Judiciary to create or change the law.

To cut a long story short, this ‘gap’ has now been firmly closed thanks to the Criminal Justice and Licensing (Scotland) Act 2010 (s.38) which deals with ‘threatening or abusive behaviour’. s.38(1) now states that…..

‘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

Jobs a good’un. We now have a much more satisfactory situation and, in reality, ‘breach of the peace’ (as was) will be seen much more rarely as the new s.38 offence , principally because of the overlap. A salutary glance at s.38 shows us that we now have ‘intent’, ‘reasonableness’ and a Cawthorne-esque sense of recklessness (indifference even?) as to whether the behaviour does cause any fear.

It’s issues such as this that I am forever trying to impress upon my students from entry level to university to take an interest in, research and comment on.

It’s what makes the difference between competence and dedication.

Stay safe.

‘Law and morality’

One of the principle features and, one could say, pillars of our ‘criminal’ law is to establish parameters for our behaviour. After all, unfettered behaviour leads to anarchic behaviour. So society creates a line which it expects will not be crossed and, should it be, those that have done so will be asked to explain themselves and, potentially, punished, if deemed to be ‘guilty’.

Law and Morality – The Ought

In essence then, the criminal law is effectively endorsing a ‘moral code’ and seeks to identify and punish what society would generally agree are the most egregious crimes in society (murder, rape, crimes against children, to mention but three). Moreover, we frown on theft, dishonesty and an infringement upon our right to live peacefully. It is clear, therefore that there is a palpably clear link between what we generally agree are immoral acts and our own definition of law (in certain respects).

But, having established that ideology, I suspect without too much excessive debate or argument, it is then necessary to look at ‘other’ crimes and offences which do not seem to irritate our moral filter. One can think of varying traffic violations such as parking offences and not paying for a ticket in a car park. These do not, inherently, cause ‘harm’ to our fellow citizens, yet they are still ‘law’……but why?

There are those that maintain that ‘criminal behaviour’ should also necessarily be ‘immoral behaviour’. This is because if we are not necessarily outraged by instances which we believe are morally unacceptable, it weakens the basis for the criminal law in the first place. That is not to suggest, however, that overt actions (with ‘intent’) should not be somehow punished. That must still apply or selfish lawlessness would prevail. But should we consider acts such as parking on a double yellow line be classed as ‘criminal’. Should there be another way of describing and indeed punishing them?

As an ‘entity’, the criminal law exists to hold people liable, responsible if you like, for their behaviour. Actions, as we know, have consequences after all. We must factor in the criminological concept of ‘rational choice’ so that in order to fully hold our citizens to account for the commission of a crime, we must be satisfied that they are capable of understanding what they are doing, have done and, crucially, could have chosen not to do it. The intrigue occurs, in my opinion, when we classify certain acts which we would largely agree are ‘wrong’. That is very wrong, repugnant even, in regard to murder, rape and paedophilia but not, generally, lying (except of course under oath), adultery and even breaking one’s word.

Legal rights are not all right: when morality and the law collide | OUPblog

Some consider that cheating on one’s marriage partner has more far-reaching and potentially devastating consequences(mental health, illness and even suicide) than the starving single Mum stealing a loaf of bread for her 4 children. Yet the former has committed no criminal legal wrong at all (whilst still attracting ‘consequences’ for their behaviour, but not ‘punishment’, per se) but the latter will have, at the very least, a criminal conviction for a crime of dishonesty (and all the implications that accompany that) and, possibly a more severe penalty. What does our moral code say about that none too improbable or rare scenario? My own feeling (without, of course condoning the theft) is that moral outrage may very well rest with the adulterer and not the petty thief.

An interesting issue arose in the Scottish criminal appeal case of Paterson v Lees (1999) SCCR 231. The appellant was charged with ‘shameless indecency’ (no longer a crime in Scots law – replaced by ‘public indecency’) by allowing children that he was babysitting to watch an indecent video. It was accepted that the children themselves had switched the video on, but the appellant opted to take no action once he became aware of the situation and the content of the video. At the time, Lord Rodger of Earlsferry commented that:

‘The fact that the appellant sat back and allowed the children to watch an obscene and indecent film is deplorable and no right-thinking adult would have done what he did. Saying that does not, however, answer….whether the appellant has behaved criminally (as opposed to anti-socially or immorally)’.

The Morality of Tax Avoidance — Adam Smith Institute

Perhaps to many a surprised reader of this blog, the court answered the question by stating there is a marked difference between the terms and Paterson’s conviction was duly quashed. In doing so, then, a clear line in the sand was drawn between ‘immorality’ and ‘illegality’, however much that line may often seem blurred. We can deduce, unequivocally, that not all immoral conduct is criminal. Conduct can be considered ‘wrong’ but as soon as it is deemed to be an act of criminality, it becomes ‘wrongful’. At that point, it can attract the full force of the criminal law and all the potential ‘consequences’.

Law and morality – a fascinating, if slightly convoluted area.

Stay safe.

‘The presumption of innocence’

I recently gave a talk to some primary school pupils about ‘life as a lawyer’ and, amongst many an intriguing question they asked, was the side-splitting………’Yeah I was wondering how much you earn an hour…’ 🤣

Despite being destined for the stage, this young lad’s question is not the most common that I am asked. No, rather it is that timeless classic….’How can you sleep at night knowing that you’re defending a (insert crime here) _____rapist, armed robber, thief, murderer et cetera‘.

Mercifully, the illiterati rarely get issues such as this factually correct. Why? Firstly because, as a race we are programmed to be prejudicial (working often on the ‘no smoke without fire’ cliché) but secondly, crucially and the subject of today’s column, is the ‘presumption of innocence’. After all, how can I ‘know’ anything when the accused has told me that he is not responsible for the crime alleged..??

Don't Do the Crime if you Can't Do the time”: The Conservative's Mantra

One of the most important doctrines of our (and many other) criminal justice systems is that those accused of crimes be deemed/presumed innocent and, equally crucially, remain so until (the Crown) prove them guilty. It is not, nor ever has it been for an accused to prove their innocence. Not that you’d imagine as the imbroglio surrounding this issue is incessantly ever-present.

The Supreme Court of Canada gave, in Oakes (1986) 50 CR (3d) 1 (SCC), a very useful guide to the tenet, viz.:

The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise’ – per Dickson CJ at 15

There was, therefore, a reinforcement that in order to protect the rudiments of our civilised society, we must deem individuals as not having committed any wrongdoing until corroborated evidence suggests otherwise and persuades a judge and/or jury that the evidence is believable and substantial and ‘beyond reasonable doubt’. To suggest otherwise would be an affront to our way of living and to have a society where we simply accept one random accusatory remark, then determine guilt and pass sentence, would be preposterous. To say nothing of dangerous for the sake of our society and co-existence with our fellow man.

Of course then there is Article 6 of the ECHR which establishes the right to a fair trial, embedded in which is the presumption of innocence. Here, we have our own ‘bespoke’ protections via the Scotland Act 1998. Yet there appear to be consistent views that seems contrary. Sometimes in the extreme. An idiosyncratic approach which appears as baffling as it is dangerous. Referring to individuals accused of sexual assaults as ‘rapists’ before an iota of evidence has been led, or my personal favourite – that headline ‘Thief Acquitted’ 🤷‍♂️.

Scotland's criminal justice system has been gravely undermined" - MOJO

There remain many an individual who feel ‘guilty’ without even venturing near a courtroom. Largely because the faceless keyboard warriors are out there, in their squillions, all proffering useless, uneducated tripe by way of ‘quasi-legal’ opinions which they have based on 20 minutes trolling Google. Oh and for them it appears that there must be a ‘presumption of guilt’. Oddly, I don’t recall that being taught at Law School. Trial by media – social and mainstream – can only get progressively worse as its exponential rise continues. I worry about where it is taking us.

Paradoxically, there are those of us that have been engaged for decades fighting on behalf of those who cannot fight for themselves and never forgetting the ‘presumption’ that they are and shall remain ‘innocent’ until proven otherwise.

As I have said repeatedly here on these very pages, I shall never stop doing so whilst there is a breath in my body.

Stay safe.

PS – I never answered that young lad 😉

‘The Floyd Trial : the jury deliberates’

It’s difficult to imagine an event, any event, when, literally, the eyes of the world are fixated on it. But now that the jury has retired to consider its verdict on Derek Chauvin (below), accused of being responsible for the death of George Floyd in May 2020, surely we are all looking at Minneapolis in Minnesota. The world is holding its breath.

Derek Chauvin trial live updates: Prosecutors focus on '9 minutes and 29  seconds'; defense emphasizes 'totality of the circumstances'
(Derek Chauvin – news.sky.com)

6 white jurors and 6 black/mixed-race, collectively ranged between their 20s and 60s, are now in charge of deliberating over surely one of America’s greatest ever issues.

Weeks of emotive evidence are over in what was a highly charged atmosphere for anyone that watched proceedings ‘live’. Outside, the city has been poised on a knife-edge and some 3000 troops are on standby, awaiting for what many see as the inevitable civil unrest that is imminent, irrespective of the outcome. There have been lengthy opening speeches (a feature alien to our judicial system), incredibly tense and powerful witness testimonies, a vast array of conflicting evidence and closing speeches. Now it is up to them. They received robust and clear instructions from an excellent judge as to what questions they must address amongst themselves before reaching a verdict.

The accused (defendant) faces three charges, none of which are familiar to us here : second-degree murder, third-degree murder and second-degree manslaughter. As regards charge 1, the jurors will require to be satisfied that Chauvin committed a serious assault and that he/his actions were a ‘substantial’ factor in his death. In other words he was ‘aware’ that his actions would bring a serious risk of causing death. Charge 2 is dependent on the jurors believing that the accused’s act was so dangerous that it demonstrated a wilful disregard for human life and charge 3 requires that he is guilty of ‘culpable negligence’. The latter is unique in that only three US states have such a charge.

George Floyd Trial: Live coverage of Derek Chauvin court case begins today  in Minnesota - ABC30 Fresno
(Floyd (left) with Officer Chauvin, the accused – essence.com)

Charge 1 technically can attract a sentence of up to 40 years but for an individual who does not have a schedule of previous convictions, the sentence would be less than a third of this, possibly around 12 years.

The same repeated scenario has remained persistent throughout the process – was Derek Chauvin ‘responsible’ for the death of George Floyd and were his actions ‘reasonable’. That ostensibly is the unenviable task of the jury.

It has felt that America has been on trial every bit as much as Chauvin. The ‘race’ issue is ubiquitous in that country and, almost beyond belief, there have been further shootings by Police since this trial started. The funeral of 20 year-old Daunte Wright is planned for this Thursday. To many outside of their country, we remain baffled by the behaviour of this world superpower. But surely the verdict, whenever it arrives, will be so seismic as to potentially change the fabric of American society.

The reality though is that the authorities will have very much considered a ‘not guilty’ verdict as much as the reverse. This would certainly explain the morass of state troops which have turned the city into a fortress but yet still there is deep unrest there day and night. Even President Biden is preparing to ‘address’ the nation once the verdict is out. Extraordinary.

As matters stand, Chauvin is innocent until proven guilty. Further, the prosecution have to demonstrate that his guilt is beyond reasonable doubt. In other words, if his defence team can sow elements of doubt as to (a) the cause of death – was it Chauvin kneeling on the accused or a drug/heart issue from which Floyd suffered and (b) was he ‘restraining’ Floyd lawfully (as per his training), then a not guilty verdict is eminently possible. Paradoxically, if they are satisfied ‘beyond reasonable doubt’ that there was an element of intent or recklessness then they may return a guilty verdict.

But, confusingly, they may find him guilty of some or all or not guilty of some or all. Or they may disagree, creating a ‘hung jury’.

Both parties had excellent lawyers working on their behalf. Both presented good, well prepared, largely expected cases when they put their positions forward at the Hennepin County Government Center.

Half the jury in Chauvin's trial is non-white. That's only part of the  story - OPB

As I have stated here before, with the case sub judice it would be foolish of me (and arguably unlawful) to offer my ‘take’ on the evidence or, especially, my view as to what the verdict might be. No doubt the latter will disappoint certainly my students and former colleagues. I have my own views but will defer imparting them for now.

A huge majority of the country really wants a guilty verdict for ‘first-degree’ murder – but that is not one of the charges. One wonders (and hopes) that the 12 jurors with the herculean (or perhaps even sisyphean) task of deliberation do not buckle under the weight upon their shoulders. It is unfathomable to think of the pressure they are under…..from an entire country and a watching world.

You wouldn’t want to be in that Minnesota hotel right now with them, would you..??

Stay safe.

‘Slavery – in 2021’

The headline above barely seems believable but it is not only very much ‘a thing’ but has seen an exponential rise during the lockdown occasioned by the global pandemic.

One in 200 people is a slave. Why? | Global development | The Guardian

Most of us when we hear the word ‘slavery’ think of images from television or film depictions. Shackled young men being transported largely to do the work of the white man. For many, one suspects, images that are hopefully representative of the past. Sadly, not so.

Historical data suggests that the figure of those who suffered this fate between about the years 1400-1800 was somewhere in the region of 13million. Today, according to the UN’s ILO (International Labour Organisation) that figure may be in excess of 40million. 40million – three times the figure that spanned approximately 400 years.

The UK construction and facilities management sector's response to Modern  Slavery. | ISO20400.org

In the modern day we define slavery, generally, as an individual who is forced to work against their will; is ‘owned’ or controlled by an ’employer’; has very limited freedom of movement; is or has been ‘dehumanised; is or has been treated as a commodity and who has been ‘bought or sold’ as if a commodity. It is thought that around the world over 50% are forced to work and do so as a result of force, fear, coercion and intimidatory tactics. In addition, the issue of ‘forced’ marriages remains a global issue and the numbers involved could be as many as 15million.

Cases of sexual exploitation, principally involving those forced to work in brothels as prostitutes rose by almost 25% during the past year with almost a quarter of them being children. These are mind-boggling and desperately worrying statistics. In addition, criminal exploitation of society’s most vulnerable has increased by a jaw-dropping 50% with a concentrated emphasis on coercive and manipulative behaviour in forcing people to shoplift, forcibly beg on the streets and young people forced to join ‘gangs’ involving the transportation of drugs.

How the Government is tackling modern slavery - Home Office in the media

Studies suggest that there still appears to be a general lack of awareness as regards to the definition of modern day slavery but surveys from helpline groups claim that the numbers affected directly in the UK alone have topped 100,000.

RIBA Modern Slavery Statement 2019

The following definitions are encompassed within the term ‘modern slavery’ for the purposes of the Modern Slavery Act 2015:-

  • ‘slavery’ is where ownership is exercised over a person
  • ‘servitude’ involves the obligation to provide services imposed by coercion
  • ‘forced or compulsory labour’ involves work or service extracted from any person under the menace of a penalty and for which the person has not offered himself voluntarily
  • ‘human trafficking’ concerns arranging or facilitating the travel of another with a view to exploiting them.

Moreover, the Centre for Social Justice Report (2013) states that the term ‘modern slavery’ also includes ‘human trafficking’ such as:-

  1. Recruitment, transportation, transfer, harbouring or receipt of persons.
  2. By means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; (where a child is involved, the above means are irrelevant).
  3. For the purposes of exploitation, which includes:
    • Prostitution
    • Other sexual exploitation
    • Forced labour
    • Slavery (or similar)
    • Servitude etc.
    • Removal of organs

The report (light reading at a mere 224 pages – can be viewed here – https://www.centreforsocialjustice.org.uk/wp-content/uploads/2013/03/CSJ_Slavery_Full_Report_WEB5.pdf

Anyone who thinks this is not a major problem is deluded. Of course the right not to be treated as a slave is already enshrined in Art 4 of the ECHR and was considered by the European Court of Justice in the interesting case of Siliadin v. France, Application no. 73316/01 when the issue of human trafficking was considered judicially for the first time.

The sad, depressing reality is that ‘slavery’ is big business. Globally it generates billions annually. The erstwhile old traditional view of slave traders having to negotiate treacherous journeys from one part of the world to another by boat, with an inevitably high level of mortality, have now largely been replaced by more sophisticated, modern, less risky options thanks, partly, to the monumental increase in both hi-tech methods and transportation. That is not to say that it is not without difficulty as the case in October 2019 shows when the bodies of 39 Vietnamese nationals were discovered in the back of a trailed in Essex. It is unclear whether they were seeking a new life here or were the victims of trafficking. In either event, the perils of such a venture are there for all to see.

Maybe this article will prove to be an eye-opener for many of my readers. Not for the first time, we often have to open our eyes to see what is happening right in front of us. But then for many, ignorance is bliss.

Stay safe.

‘The extraordinary case of Oscar Slater’

Regular readers of this blog will know my hatred, detestation even, for injustice. It was one of the main reasons for me wanting to enter the legal profession. Along with studying, for the first time at school (many many moons ago), the extraordinary case of Oscar Slater. He may well be the greatest miscarriage of justice in Scottish legal history. Mr. Slater and the farrago that was his case is the subject of today’s post.

Oscar Slater when he entered Peterhead Prison, 1909 (NRS, Crown Copyright, HH15/20/1)
(Oscar Slater 1872-1948. This picture is of him in Peterhead Prison in 1909)

The case has fascinated, intrigued and bothered generations of legal minds, predominantly in Scotland but also around the globe. A mutual loathing of travesties of justice being at the epicentre of it all.

82-year old Marion Gilchrist lived at West Princes Street, Glasgow along with Helen Lambie, her maid. On the evening of Monday 21st December 1908 when her maid was out running some errands, Miss Gilchrist was battered to death in the dining room of her home. Police noted that there was no sign of a forced entry to the property, inferring that she knew her attacker. Motive appears to have been assumed to be that of robbery, notwithstanding that only one item of jewellery was taken.

During examination at the trial by the prosecution, Helen Lambie gave an insight into Miss Gilchrist’s life. She described how her ’employer’ did not have many (social) visitors but that ‘various businessmen’ attended periodically. This would appear to be something of a nod to her penchant for various items of jewellery. It would perhaps also confirm that robbery of various high-end items was indeed the motive, although it remains baffling as to why so little was actually taken by the thief, if, of course, it was ever a robbery. Lambie also confirmed that it was ‘usual’ for her to be sent out ‘in the evening to run errands’ and one must assume, therefore, that any regular visitor would be aware that, of an evening, Gilchrist would be ‘home alone’.

(West Princes Street, Glasgow (1908) – just off Woodlands Road in the city’s West End)

Gilchrist lived in a first floor flat. On the evening in question, her downstairs neighbour, a Mr. Adams, ventured out of his flat upon hearing a melee upstairs. He gave evidence at the trial to the effect that he passed a man coming downstairs from the first floor. A further Crown witness claimed to have seen a man exiting the close but the two witnesses descriptions of the individuals failed to match. Notwithstanding the lack of obvious corroboration, the Police appeared to have decided they had their man based, it seems, on a prejudicial view that with him being known to them for having a liking for prostitutes and associations with thieves and resetters (reset – the handling of stolen goods), he must be the guilty party. An extraordinary presumption of guilt even for over a century ago. One must always remember the presumption of innocence in criminal matters, rather than the paradoxical view.

Slater was born Oscar Joseph Leschinzer in Germany to Jewish parents. In his early 20s he travelled to London where he became a jeweller.

Oscar Slater's business card (NRS, Crown Copyright, JC34/1/32/17)

Oddly, one might say suspiciously, he was prone to using multiple aliases before settling with ‘Slater’. The latter, it appears for business and official purposes. Aged 27 he moved north to Edinburgh where he continued with his official business of dealing in jewellery and precious stones, despite some bizarre attempts to pass himself off as a gym instructor and, perhaps even more obtusely, a dentist.

At the time Miss Gilchrist met her fate, he had moved west to Glasgow and was living within a very short distance from her house.

Slater’s behaviour following the incident certainly would have raised many an eyebrow. He scurried out of Glasgow post haste , heading initially for Liverpool where after a brief stay in a local hotel he, along with a female travelling companion, boarded the famed liner, the Lusitania, bound for New York. Oddly, as indicated above, he did not book under the name ‘Slater’ but rather ‘Mr. & Mrs. Sando’ (see boarding pass below).

Application form for tickets aboard the Lusitania (NRS, Crown Copyright, AD21/5/39)

Despite completing the sailing successfully, the NYPD were awaiting his arrival and he was immediately taken into custody. On him was found a pawn ticket for a brooch which the Glasgow police further believed to be highly incriminating evidence. Once again, they made an assumption that it was the solitary item of jewellery that had been taken from the flat. But they were wrong. Again.

An application was made for him to be extradited from the US to Scotland but, in a clear and overt attempt to clear his name and demonstrate that he had, in fact, nothing to hide, Slater returned voluntarily. Upon arriving in Glasgow he was again taken into custody and charged with murder, as per the indictment served upon him below.

Oscar Slater's indictment (NRS, Crown Copyright, AD21/5/7)

Slater claimed at all times that he was not the individual responsible for the crime. However, in May of the following year he was found guilty by majority and sentenced to death by execution. Upon appeal this was later substituted for life imprisonment. For the next almost 19 years of his life, he remained at what was HMP Peterhead in north-east Scotland.

Following the verdict, there was a very public display of remonstration. Campaigns began abound for him to be freed. Notably, the creator of Sherlock Holmes (perhaps ironically yet fittingly), Sir Arthur Conan Doyle, led one of the most high profile crusades (see below).

The Case of Oscar Slater

The basis for the series of campaigns was a general feeling that the entire investigation had been mishandled with far too much evidence relying on his ‘character’ and assumptions therefore as to his guilt. Several key Crown witnesses gave damning precognitions which were subsequently proven to be unreliable. Slater’s alibi, which he had lodged with Police was never disclosed and the ‘pawn ticket’ turned out to be from a perfectly legitimate transaction from several weeks prior to the murder. In another extraordinary development, one of the Police officers instrumental to the investigation claimed that there had in fact been information that implicated one of the deceased’s own relatives but which he claimed was withheld and deliberately concealed from the investigation. The officer involved, a senior detective, was subsequently dismissed from the force.

Notwithstanding his life term, in 1927 a fabled Glasgow journalist, William Park, raised again fresh doubts as to the veracity and reliability of the verdict. Interestingly, Slater was released later that year not far short of 20 years incarceration. He was not, however, pardoned for the crime.

Here is his ‘petition’ (effectively grounds of appeal under statute) to the Secretary of State – https://www.nrscotland.gov.uk/files//research/NRS%20-%20Feature%20-%20Additional%20Content%20-%20Oscar%20Slater%2C%20Petition_0.pdf.

Upon his release from Peterhead, Oscar Slater returned to Glasgow but soon moved to Ayr. He petitioned the government (above) by claiming some damning allegations. Powerful accusations including ‘animadversion’, an extraordinary claim that ‘incompetent evidence was admitted at trial’, that the Lord Advocate’s speech to the jury contained ‘material misstatements of fact’ and that there were ‘grave irregularities’ in the identification of the accused. Powerful stuff indeed.

His appeal was successful, not on the grounds he had claimed (or hoped for) but that the trial judge has ‘misdirected’ the jury. Nonetheless, his conviction was quashed and Slater accepted £6,000 in compensation for wrongful imprisonment.

It is difficult to imagine what it must be like to even be accused of any crime, far less a heinous one. But to then be found guilty on the basis of flimsical evidence is simply unfathomable. Scots Law now, mercifully relies on the doctrine of corroboration and one would hope that an outcome such as Slater’s could never be repeated.

Some newspaper cuttings surrounding the case and worthy of even a brief look – NRS – Feature – Additional Content – Oscar Slater, Newspaper cuttings_0.pdf (nrscotland.gov.uk).

I first examined this case in 1984 in secondary school. Even then I felt outraged at the outcome, even though I had no real knowledge as to the intricacies of our Criminal Justice System. But it certainly reinforces to me daily why we will always need people to fight on behalf of those who cannot fight for themselves. Having done so for now almost 30 years, I am not planning to stop. Ever.

Stay safe.