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.

On civil remedies and the crime of rape

The decision in the case of DC v DG & DR which was published on Tuesday is potentially of huge significance for the Scots law of rape. The facts were that DC alleged that she had been raped, while extremely drunk, by two professional footballers on 2nd January 2011. She reported the incident to the police immediately but in July 2011, for reasons that have not been made public, the decision was taken not to prosecute the men involved. She then subsequently, with the support of Rape Crisis Scotland, brought a civil action for damages against the men. She was successful in this, with Lord Armstrong holding that, on the balance of probabilities she had been raped by the men, and awarding damages of £100,000.

The importance of the case must be seen first of all in the fact that civil actions of this sort are almost unheard of, and it offers the opportunity for the victims of rape and other sexual assaults to pursue other kinds of legal remedy. Of course, as has been pointed out, the case is somewhat unusual in that the defenders were professional footballers and therefore had financial resources - and this may not be the case in other incidents of rape. But this must also be seen in the context of the high attrition rate in rape cases - something illustrated by the publication of the annual statistics on criminal proceedings on the same day. These showed that in spite of the rising number of prosecutions for sexual offences, the attrition rate in rape remained high: of just under 2000 rapes reported to the police, there were only 216 people were prosecuted, and of these only 111 were convicted. This means that a significant number of victims are left without a remedy - and so any means of recognising the wrongs committed against them should be welcomed.

Of course, we must also be cautious because of the fact that this was a civil decision, subject to a lesser burden of proof, and different evidential rules. However, what is striking about the judgment is that, while he does not refer to corroboration, Lord Armstrong is clear that he is not relying solely on the account of the complainer, and that the complainer's account is supported by other independent sources of evidence. This, at the very least, might raise questions about why the decision was originally taken not to prosecute in this case.

But for me the real interest of the decision from a legal point of view lies in the way that Lord Amstrong carefully constructs the evidential case and applies the law - and this in some ways might act as a model for understanding how the law should be applied. The main difficulty in this case was that the complainer was so drunk that on her own admission, she had blacked out and had no memory of the events that took place. In these circumstances it was conceivable, as medical witnesses pointed out, that she might have been able to function as though normal, and might have appeared to have consented - and it is perhaps this possibility that leads juries in similar cases to acquit when it seems to be the word of the complainer against that of the accused. Against this Lord Armstrong takes seriously the rule (in section 13 of the Sexual Offences (S) Act 2009) that a person who is incapable because of the effect of alcohol (or other substances) is incapable of consenting. Here he demonstrates that, whatever might have been her actions, there was compelling evidence from a range of sources that she had drunk sufficient quantities of alcohol to render her incapable and there were witnesses to the effects of alcohol on her. (And the fact that she seemed to have flirted with one of the men earlier was not the same as consenting to sex). It remained then to show that the defenders could have had no reasonable belief in consent, and he demonstrated the inconsistencies in their evidence and its self serving nature, to conclude that they were unreliable.

Of course, questions will remain over whether this evidence would have convinced a jury that it met the criminal burden of proof (beyond reasonable doubt), but the value of the civil judgment here is that the judgment carefully sets out the reasons for the decision, and in doing so provides an invaluable model and demonstration of how the law should properly be applied.

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.