Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 30 January 2017

On Hate Crime (again)

There was welcome news from Holyrood last week as the Scottish government announced the long awaited review of hate crime legislation in Scotland - prompted by the parliamentary defeat of the Offensive Behaviour at Football Act (which I discussed in an earlier post). The review will start today and will be headed by Lord Bracadale, who is charged with looking at whether current laws are appropriate and consistent, whether hate crime legislation needs simplified or harmonised and whether new categories of hate crime, such as for age and gender, need to be created.

This is clearly both welcome and necessary, not only because of the poor state of the legislation on football, but because there has been a lot of legislation in this area over the last 30 years, and the result is a a number of provisions which apply different tests and do not always sit easily alongside each other. It would be good to know a little more about the proposed methodology of the review, though. Lord Bracadale is quoted as saying that he wants his findings to be 'evidence based', but it is not clear whether this means gathering new evidence (though this would seem to be unlikely in the 12 month period for the review) or reviewing evidence which is already in the public domain. It is clear that community and interest groups will be invited to give evidence - though it is unclear whether this will be in person or in writing. It is also worth comparing this to the review of English and Welsh hate crime legislation, carried out a few years ago by the Law Commission - and it is not clear why the Scottish Law Commission should not have been asked to carry out the task here.

Overall, then, this is a welcome, if overdue, development - but its success will depend on the methodology adopted by Lord Bracadale and the extent of the consultation and evidence gathering process. In the meantime, though, given that the review will last for (at least) a year, it owuld be good to see a suspension of any prosecutions under the, now discredited, Offensive Behaviour at Football Act.

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