On the age of criminal responsibility

Scots criminal law has long prided itself on its distinctiveness, though recently it has seemed as though some of the areas in which it is distinctive give little cause for celebration: the retention of the requirement of corroboration, the anomaly of the not proven verdict, exceptionally high rates of stop and search of young people, and, of course, an age of criminal responsibility of 8.

This last has long been the target of legal reformers. It is inconsistent with international standards as laid down by the UN Committee on the Rights of the Child, and makes a mockery of claims to be world-leading in the area of criminal justice. The Children's Hearings system, introduced in Scotland following the Kilbrandon Report in 1968 is in many ways a model system of juvenile justice, informed by welfare principle and a commitment to the needs of the child, but it has always sat uneasily with the fact that a child as young as 8 might be prosecuted. And though the most recent review led to a formal legislative commitment not to prosecute a child below the age of 12, this sat awkwardly with the retention of 8 as the age of criminal responsibility. The situation in law was that an immunity from prosecution was conferred on a child between the ages of 8 and 12, rather than a recognition that a child below the age of 12 lacked the capacity for criminal responsibility altogether. It also meant that a child between the ages of 8 and 12 might have a criminal record if they had been before a Children's Hearing  and were judged to have committed a criminal offence.

So it was pleasing to see the announcement made last week that there Scottish Government planned, finally, to raise the minimum age of criminal responsibility to 12 by 2018. It seems right that children should not be labelled as offenders or criminals for things done before they reached the age of 12, but this is merely bringing Scotland into line with international standards. A more radical move might be a commitment not to prosecute children between the ages of 12 and 16. If Scotland were serious about recognising the Kilbrandon principles this would be step worth taking.

On terrorist crimes

I suspect that I am not alone in being confused at the message coming from the prosecution on the conviction of Thomas Mair for the murder of Jo Cox. It was, they insist, a terrorist murder and he had been tried as a terrorist (which is why the trial was in London). But they go on to say that it was not prosecuted under the Terrorism Acts and the jury had not been told that he was regarded as a terrorist because he had been prosecuted for the common law crime of murder, and they had not raised the question of his political motivation. But he may have been sentenced as a terrorist - whatever that means as the judge could have given a 'whole life' sentence in a particularly serious case of murder, which this undoubtedly was. So is he a terrorist, or was it a terrorist offence? It is hard to say.

Thomas Mair, the killer of Jo Cox MP

The case for arguing that it was a terrorist act seems to rest on the argument that it was motivated by political ends. As he attacked his victim he yelled political slogans, and the police subsequently discovered that he had collected nazi memorabilia and that he had far-right sympathies - though he was not associated with any group and did not seem to be acting with (or for) anyone else. This, in a literal sense, then falls within the definition of terrorism in the Terrorism Act 2000 s.1: it was an act involving serious violence against a person and was done for the purpose of advancing a political cause.

The case against would be to say that there are many politically motivated crimes which do not necessarily amount to terrorism. That is to say that while much terrorism is politically motivated the question of political motivation cannot be determinative of the question on its own. Our history is full of political assassinations and bombings, but it is only recently that we have begun to refer to them in terms of terrorism. And the idea of terrorism seems to imply that the violence (or its threat) would create some sense of terror or insecurity. Of course, this can itself be problematic as certain serial killers have created precisely this sense of terror among the community of the victimised, though we would not normally regard serial killers as terrorists.

This points to the well known difficulties of trying to produce a satisfactory definition of terrorism, which I something that I cannot resolve here. However, it is worth asking what is stake in labelling Thomas Mair a terrorist. Leaving aside the question (which I have been unable to resolve) of whether there are special sentencing powers here, labelling the killing as a terrorist act makes terrorism seem more widespread and arguably contributes to a climate of fear and insecurity - and this may be in the interests of the police or security forces as it can justify the use of, of call for, special measures or the suspension of normal rules of law. A random killing, however tragic, by a loner with a history of mental illness may be unduly dignified, or treated with an unwarranted degree of seriousness, if we call it an act of terrorism - and we should resist these moves.

On Kitty Genovese

Kitty Genovese

As a teacher of criminal law, I have on numerous occasions defaulted to the story of Kitty Genovese to explain the issue of omissions. The story familiar from textbooks goes like this: on the night of Friday March 13th 1964 a young woman called Kitty Genovese was attacked and murdered in the New York suburb of Kew Gardens in the borough of Queens. The attack took place in a densely populated residential area, and though it was established that her cries of desperation were heard by 38 people living nearby, not one of them came to her assistance.

Her death might have been prevented, but the fact that it was not is taken evidence of the anonymity of life in modern cities and the decline in our sense of obligation to come to the aid of strangers. The point in law is to ask questions about the extent of bystander guilt, or whether there should be an offence of 'failure to rescue'.

It should, perhaps, come as no surprise that the 'real' story of Kitty Genovese is nothing like the textbook version. Why, after all, would we let truth get in the way of a good example? But the real surprise is that the story of Kitty Genovese is much more interesting and tells us a great deal more about modern urban life.

This story is told in a new book called "No One Helped". Kitty Genovese, New York City and the Myth of Urban Apathy by Marcia Gallo. There are two dimensions to Gallo's story. The first is to uncover Kitty's life, to restore something that was erased by the myth, and to show how it was connected to the story of the development of New York at the time. The second is to trace the origins and development of the legend - how the Kitty Genovese story was created and sustained over the period of over 50 years since her killing.

The first thing that undermines our assumptions is that Gallo shows that the murder was witnessed by at most one person in the neighbourhood, rather than the 38 of myth, and that Kitty was well known to, and mourned by, her neighbours as a lively and friendly woman. Not only was Kitty not an isolated and lonely individual, but she was an independent young woman with many connections in both the city and her neighbourhood. She was a lesbian and lived with another woman in her apartment in Kew Gardens, and enjoyed the growing city precisely because of the opportunities it offered her to be herself - limited as they were at the time.

So why did the myth develop in the way that it did? Here Gallo shows that this was a deliberate strategy employed the new editor at the New York Times to attract readers and try to reconnect with New Yorkers. He sent a special reporter out to interview police and neighbours, and this led to the infamous headline. But what was important here was that it connected with growing fears about crime and the city. The story articulated a new focus on the victim, or at least the idea of victimhood if not the actual victim (and it is interesting to note that the NYT new about her sexuality but did not consider it to be of interest). There was also the fear of apathy and the indifference of bystanders drawing on underlying fears of modern life, and these were ruthlessly exploited by the press, and in a series of books and movies. The real moral of the story is less bystander apathy than media exploitation of a crime story for their own ends.

What is interesting is that a different understanding emerges from Gallo's account, restoring our sense not only of the actual victim and her relationships but also of place and time. This is a valuable and important corrective to the easy assumptions that we often make when confronted with such stories - and it is safe to say that I won't be using the example of Kitty Genovese in this way again.

On markets and crime

I have been thinking a lot recently about the relationship between criminal law and financial markets, and want to write more about this in the future. One of the things that has struck me is the links that have been drawn between between the financial crisis of 2008/09 and criminal misconduct by bankers and financial traders - and the claim that criminal behaviour was at least partially responsible for the crisis.

This is not just rhetoric. There have been a number of high profile prosecutions. Traders have been prosecuted for LIBOR rigging or the exploitation of high frequency trading algorithms to exploit minute differences in prices between different markets. Banks have been fined for the mis-selling of financial products. And the Parliamentary Commission on Banking Standards which reviewed the conduct of the major banks in the wake of the crisis concluded that it was necessary to create a new criminal offence of "reckless misconduct in the management of a bank". And think about the slew of recent movies from The Wolf of Wall Street to Margin Call or The Big Short, which dramatise the crash in terms of criminal conduct and depict financial institutions and markets as a new kind of 'wild west' where there are few, if any restraints on conduct, and criminal conduct is positively encouraged.

These changes in the use of the criminal law reflect a more fundamental change in understandings of markets themselves. For a long time markets have been seen as essentially 'orderly'. The free market, in the conception of Adam Smith, had its own logic: it was naturally stabilising and self-regulating. If, on occasion, the criminal law needed to step in it was to deal with fraud or deception - policing the outer limits of acceptable conduct. However, in the vision of the markets that appears in these recent reports it is no longer just the ‘rogue trader’ or the ‘bad apple’ that is the problem. Increasingly, financial institutions and market relations are themselves seen as criminogenic, corrosive of social relations and incentivising opportunistic criminal conduct. The market, that is to say, is not orderly but disorderly, and criminal law should not only police the margins but shore up the core values and structures. And this is not simply the view of anti-capitalist scholars and activists, but of market advocates and conventional economists, who now talk about the need to regulate markets more tightly - and advocate the more systematic use of the criminal law.

If I am right about this, then criminal lawyers need to start thinking beyond the immediate question of, say, bank regulation, and begin to engage with the broader questions about how we think about the relation between markets and social order.

On Zombie Legislation

Last week saw the Scottish Parliament vote in favour of repealing the much-criticised Offensive Behaviour at Football and Threatening Communications (S) Act 2012. While the vote is merely advisory, and for now the Scottish Government have undertaken to review the legislation, it creates an interesting new category of 'zombie' legislation. It has not yet been repealed, but neither does it have the support of parliament. It is not yet dead, but not quite alive - the living dead.

But this raises a significant issue. Will it be legitimate for the police to continue to enforce the legislation or for the Crown Office to continue bring prosecutions? Is it legitimate for legislation that has been formally condemned in this way to be used after Parliament has clearly indicated that it is no longer has the support of its members? So far, I can see no indication on the websites of either Police Scotland or the Crown Office that there will be any change in policy.

The vote has been seen as an example of political point scoring, but the underlying criticism is that the offences in the Act are poorly drafted and that the legislation is illiberal - and I have written before about these shortcomings. Until reassurances have been offered on these underlying issues it must be inappropriate to use the Act. This is not to approve sectarianism, but to recognise that there are real concerns about the scope of the offences which were not properly addressed when the Act was passed.

While it may formally remain the law, there is no question that it now completely lacks any legitimacy, whatever its supporters in government might say. It is truly zombie legislation.

On Houdini's 'The Right Way to do Wrong'

Monday was the 90th anniversary of the death of Harry Houdini, an event apparently marked every year by the holding of a seance - though whether this was Houdini's effort to communicate from beyond the grave or just his final joke at the expense of fake mediums remains unclear. Houdini is obviously celebrated as a famous escapologist, so I was intrigued when I came across a reference to a book that he had written called The Right Way to Do Wrong - promising perhaps a new kind of legal moralism... (thanks to the wonder of the internet you can download it for free here).

The book is fascinating - even if, sadly, it is less of a guide to legal moralism or to how to be successful criminal, than an account of the various frauds and charlatans that Houdini claims to have encountered over the course of his career. Indeed, he is at pains to make it clear that his aim is not to encourage crime but to allow the ordinary member of the public to safeguard themselves by pointing out the way that thieves and fraudsters work. It is thus an early example of crime prevention literature, advising the householder on the kind of locks to use or the best way to protect their house when they are away, or providing reminders that schemes which promise something for nothing are not always what they seem.


For me, most entertaining was the guide to the types of scams and criminal enterprises operated at the turn of the century. Many are traditional - pickpockets, burglars and fraudsters - that would have been familiar in many cities and countries. But some reflect changing technologies - the railroad or the telegraph and the mail - that opened up new opportunities for the enterprising criminal.

In all of this Houdini presents himself as the honest broker, guiding the naive or innocent around the underworld that surrounds them in this newly urbanised and mobile society where strangers were not always what they seemed. Most of the criminals he exposes had been caught, though a few lucky individuals escaped with their ill-gotten gains. The right way to do wrong, as ever, is perhaps not to be detected.

On Chhokar and double jeopardy

Yesterday saw the publication of the decision of the Court of Appeal in the case of the application to set aside the acquittals of the men originally charged with the murder of Surjit Singh Chhokar and to bring a new prosecution against them. In the light of the fact that, as we now know, Ronnie Coulter has been convicted of the murder, the decision provides some interesting background on that case and also on the interpretation of the provisions of the Double Jeopardy (S) Act 2011.

The rule against double jeopardy, which is now stated in section 1 of the Act, prevents the prosecution of a person who has already been either convicted of, or acquitted of, an offence with the same offence or with any other offence arising out of the same acts.  This can be set aside, on application to court, in certain limited circumstances, which are set out in sections 2-4. These are that the acquittal was tainted by the behaviour of either a juror or the judge (s.2); that the person acquitted makes an admission of guilt following the acquittal (s.3); or that new evidence has emerged which would substantially strengthen the case against the person acquitted (s.4).

Ronnie Coulter, Andrew Coulter and David Montgomery

With the the publication of the decision we now know that the application to set aside the acquittal of Ronnie Coulter was made under ss.3 & 4 of the Act. (The application was made in respect of all three men originally charged, but prosecution was only permitted in respect of Ronnie Coulter). The Court laid emphasis on two particular facts. First, it was argued that, Coulter had made a series of admissions to different witnesses that he (and the other men) had got away with murder and that he had done it. Second, it was argued that there was evidence that Coulter had asked his sister both to look for a knife (presumably the murder weapon) in a spot where it had allegedly been disposed of, and to buy another knife to replace a knife that was missing from the set in his kitchen (presumably to demonstrate to the police that no knife was missing).

The tests to be applied to the new evidence are that it could not have been known to the Crown at the time of the original trial, that it should be reliable, that it should substantially strengthen the case against the accused. The Crown also had to demonstrate that it would be interests of justice to prosecute and that it would be possible to have a fair trial. In the case of this new evidence, the Court took the view that the evidence about the knives strengthened the likely case against Coulter and might allow a jury to consider that, even where he was known to have acted with others who were not on trial, that he was the one who struck the fatal blow. They accepted that the credibility and reliability of the evidence, particularly as it related to the admissions, would have to be tested, but that it was sufficiently robust to allow the application to grant permission for a new prosecution to proceed. Finally, in relation to the question of whether it was in interests of justice, the Court stressed that it was not desirable that an accused person should be able to boast that they had got away with committing the crime, and recommended prosecution on this basis.

What conclusions can we draw from this? At one level, I can imagine that the Appeal Court are quite relieved. By rejecting the applications against Andrew Coulter and David Montgomery they were gambling on the evidence being strong enough that a jury would conclude that he had been the one who stabbed Chhokar. This, it must be stressed, was far from clear cut, and his defence strategy in the trial was to attack the credibility of the witnesses and to blame the other men. If he had been acquitted we would have been back to the situation in 1999 where the defence of blaming each other (where the others were not on trial at the same time) led to their separate acquittals. This would have led to questions being raised about why they had proceeded against the men separately in spite of knowing that all three had been involved in the attack.

Does it tell us anything about the application of the provisions of the Double Jeopardy Act? In distinguishing between the applications against the three men, it seems clear that the Court recognised some sort of evidentiary threshhold. It is not just any new evidence that might trigger the exception to the principle of double jeopardy, as the evidence against Andrew Coulter and David Montgomery was considered too indirect. The Court also had a view on the the original trial, and the circumstances that led to the acquittal in judging what might be deemed to strengthen the Crown case. And finally, it has become very clear from this case that anyone acquitted of a serious criminal charge will be very ill advised to go around boasting that they got away with it...

On sexual history evidence

I was off to the BBC studios this morning for an interview about the use of sexual history evidence in rape trials in Scotland. The concern was prompted in part by the Ched Evans case in England, where the court permitted evidence of what the victim had reportedly said during sexual encounters with other men. This had then led to a story in yesterday's Herald where it was reported that from January to March this year 43 out of 57 applications to permit sexual history evidence of the complainer were granted in full and a further five in part.

It is clear that there is cause for concern here. The law on this point (and the aim of the law) is pretty clear. According  to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 it is not permitted to introduce evidence of previous sexual conduct of the complainer with a view to showing that the complainer was more likely to have been consenting to the act complained of or was not of good sexual character. This is subject to an exception where evidence might be led of specific occurrences which might shed light on the character of the complainer or any condition or predisposition that they might have. The application to lead such evidence must be made in writing before the start of the trial, and everything is subject to general requirements to respect the privacy of the complainer and that the probative value of the evidence should outweigh any prejudicial effects. 

The clear aim of these types of provisions since they were first introduced into Scots law in 1986 was to protect the complainer in sexual offences trials by limiting the capacity of the defence to question them about their prior sexual conduct where this was not relevant to the proof of the particular charge. However, as my colleague Michele Burman has demonstrated in research on the operation of the law, these provisions have actually had a perverse effect. Lawyers routinely make early applications to lead such evidence in sexual offences trials just in case they might wish to do so; these applications are routinely agreed with prosecution; and they are not being rigorously policed by the court. This tends to suggest that the figures quoted in the Herald are not evidence of a new development in the law, but merely confirms the situation which she showed has existed for some time.

So what is to be done? It is not clear to me that much would be gained by reforming the law. The grounds for excluding such evidence are set out in pretty clear terms already - and there is a reasonably clear understanding and acceptance, at least in general terms, of the aims of the law. There are always going to be some cases where sexual history may be relevant, and fairness to the accused requires that there be a mechanism for allowing this. There does, though, need to be a review of the operation of the law and some serious thought given to how the current situation might be addressed. It is not clear to me that we are dealing with the same situation as, say, 20 or 30 years ago, where there was significantly less understanding or tolerance of sexual freedom. The law has changed to reflect new attitudes towards sexual autonomy. And the way that sexual offences are investigated and prosecuted has been transformed in the wake of campaigning by victims organisations. So the framework within which the law is operating is very different. The question now must be to find out in which types of cases these permissions are sought, and the types of sexual history evidence that are led so as to engage with and challenge the practices that permit the undermining of our law.

On 'His Bloody Project'

Like many people I have been enjoying reading Graeme Macrae Burnet's wonderful novel His Bloody Project this summer. Without giving away the plot, the novel is made up of documents relating to the case of Roderick Macrae, a young man accused of murdering three people in the remote highland community of Culduie, near Applecross in Wester Ross in 1869. In addition to just enjoying the book on its own merits, for me there is the additional (and unaccustomed) pleasure of reading a novel based in the Scots criminal justice system in the 1860s.

The book starts with a series of witness precognitions (or statements) which are then followed by the 'confession' of Roderick Macrae as recounted to his lawyer, medical reports, an 'extract' from a (made up) book called 'Travels in the Border-Land of Lunacy' by the actual prison doctor, James Bruce Thomson, and then an account of the trial in Inverness, drawing on supposed 'journalistic' sources. This is a remarkable act of ventriloquism. Burnet expertly catches the tone of these different types of document and speeches. (There is one small inaccuracy, which is that a trial in the High Court of Justiciary in 1869 would have been before a single judge, rather than three sitting as a bench). The highlight for me was his reinvention of the character of James Bruce Thomson, who wrote extensively on lunacy (as it was known) and the hereditary nature of crime, and whose writings influenced later criminologists. Thomson did not actually write a book but, prompted by the novel, I have been doing some digging around in libraries and have found some of his writings  - and will write about these in a later post.

The book itself is (at least in part) modelled on two different literary forms. The first is that of the notable trials series. These were a series of very popular books published by Edinburgh publisher Wm Hodge between about 1905 and 1950. The main part of each book was a transcript of a particular trial - celebrated because of the notoriety of the crime or the criminal. These might be historical (the trial of Mary Queen of Scots or Sir Walter Raleigh) or of contemporary interest, but broadly reflected the early twentieth century fascination with criminal trial. These were then accompanied by an editorial essay, which reflected on the significance of the case. (I have written before about William Roughead, who was one of the best known editors).

The other model (which Burnet acknowledges) is Michel Foucault's I Pierre Riviere, having slaughtered my mother, my sister, and my brother.... This was the confession from an actual case that was discovered and published by Foucault and his collaborators in the 1970s when he was researching psychiatry and disciplinary power. There is one formal difference between the criminal justice systems of France and Scotland which Burnet manages well. In France, the confession was formally part of the evidence in the case and the trial. In Scotland (as in England and Wales) an accused person was not formally allowed to testify on their own behalf until 1898. This meant that an accused person was literally silenced in their own trial - unable to speak on their own behalf or to answer accusations against them - a position that was justified on the grounds that to allow such testimony would be to offer the accused person the temptation to perjure themselves. This led one French observer, Charles Cottu, of an English criminal trial in the 1820s to remark that the place of the accused might as well be taken by a hat placed upon a stick. In the novel, then, the confession is not presented to the court but is recounted to the lawyer - though not without questions accordingly being raised as to its authenticity.

I thoroughly recommend the novel (and indeed also I, Pierre Riviere and the notable trials series, for the real enthusiasts). It is wonderful to see that it has been shortlisted for the Man Booker Prize, bringing the book to a wider readership, and will keep my fingers crossed on the 25th October.

On the Surjit Singh Chhokar case

Yesterday saw a momentous event in Scotland - the conviction of Ronnie Coulter for the murder of Surjit Singh Chhokar in 1998. Coulter was originally tried (and acquitted) for the murder in 1999, but was put on trial again this year following the change in the double jeopardy laws in 2011. The four week trial ended yesterday when the jury returned a verdict of guilty for the murder after deliberating for 10 hours.

The story of the case, at least in its early stages, was one of institutional racism and botched decision making. It was fairly clear from the start that three man had been involved in the incident that led to the killing of Chhokar - Ronnie Coulter, his nephew Andrew Coulter and David Montgomery. The Crown then had two separate trials, each of which collapsed when the men on trial blamed the others for the killing. This was heavily criticised by Lord McCluskey at the original trial of Ronnie Coulter. As a result the three men went free.

This was followed by three separate investigations into the failings in the case. The first was an internal investigation by Elish Angiolini (later to be Lord Advocate) into the handling of the case by the fiscal service. The second one, as the profile of the case was rising, was by Sir Anthony Campbell QC into the investigation and prosecution of the offence. And the third, and most damning, was a report by Raj Jandoo into institutional racism in the handling of the case. The Jandoo report found that there was evidence of institutional racism in the failure of the police to consider that the offence might have been racially aggravated, in the failure of the Crown Office to explain its decision making to the family, and in the courts to explain why it was that the trials had collapsed. These issues were to be addressed by the police and fiscal service, but nothing could be done at the time to bring the men to trial again. This changed with the reform of the double jeopardy laws in 2011, which allowed a person who had been acquitted of a crime to be tried again for the same offence, under certain limited circumstances.

The investigation remained open and this year the new prosecution was brought against Ronnie Coulter - with each of the other two men testifying against him. He in turn led a defence of incrimination - that the other men had committed the crime - and that they were blaming him because of a series of family feuds and to avoid their own liability.

The history of the case tracks the developments in Scottish criminal justice over the last 18 years - a period that coincides with the development of devolved Scottish government. One important change, I have already noted, was the reform of the double jeopardy  laws, but more important were two larger movements that suggest how Scottish criminal justice was modernising. The first was the increased recognition of human rights, and in this particular context, of the rights of the victim. There have been extensive developments in the law to protect victims as witnesses, to improve the service offered to victims in court, and to render the process of prosecution decision making more open and accountable to victims. The second development is the recognition of hate crime - including forms of racially aggravated crime. These map on to the serious deficiencies identified by the Taylor and Jandoo reports and their have been significant advances in these areas.

This is not to say that there are not still deficiencies - note the recent problems of Police Scotland - or that racist crimes may not still take place. But we can at least hope that victims and their families will receive better and fairer treatment from criminal justice institutions.

Finally, I would like to pay tribute to the family of Surjit Singh Chhokar, and to Aamer Anwar, their solicitor, whosetireless activism has done much to ensure that the case was kept in the public eye, that public bodies were made to account for their actions, and that ultimately the killer of Surjit Singh Chhokar was convicted.