Essays in Criminal Law in Honour of Sir Gerald Gordon [1 ed.] 9780748679294, 9780748640706

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20365 eup Chalmers, Leverick & Farmer:1491 eup exploring law

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Series Editor: Elspeth Christie Reid Volume 8

Essays in Criminal Law in Honour of Sir Gerald Gordon Edited by James Chalmers, Fiona Leverick and Lindsay Farmer This collection of essays honours the work of Sir Gerald Gordon CBE QC LLD (1929–). In modern times few, if any, individuals can have been as important to a single country’s criminal law as Sir Gerald has been to the criminal law of Scotland. His monumental work The Criminal Law of Scotland (1967) is the foundation of modern Scottish criminal law and is recognised internationally as a major contribution to academic work on the subject. Elsewhere, he has made significant contributions as an academic, as a judge and as a member of the Scottish Criminal Cases Review Commission. Reflecting the academic rigour and practical application of Sir Gerald’s work, this volume includes essays on criminal law theory, substantive law and evidence and procedure by practitioners and academics within and outside Scotland, including contributions from England, Ireland and the USA.

Fiona Leverick is a Senior Lecturer in Law at the University of Glasgow. Lindsay Farmer is a Professor of Law at the University of Glasgow.

ESSAYS IN CRIMINAL LAW IN HONOUR OF SIR GERALD GORDON Edited by James Chalmers, Fiona Leverick and Lindsay Farmer

Edited by Chalmers, Leverick and Farmer

James Chalmers is a Senior Lecturer in Law at the University of Edinburgh.

ESSAYS IN CRIMINAL LAW IN HONOUR OF SIR GERALD GORDON

EDINBURGH STUDIES IN LAW

Edinburgh University Press 22 George Square, Edinburgh EH8 9LF

ISBN 978 0 7486 4070 6 Logo reproduced by the kind permission of the Faculty of Advocates

Edinburgh

www.euppublishing.com

EDINBURGH STUDIES IN LAW

Essays in Criminal Law in Honour of Sir Gerald Gordon

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EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board

David L Carey Miller (University of Aberdeen) George L Gretton (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max Planck Institute for Comparative and­ International Private Law, Hamburg) Volumes in the series:

Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History (2007) Kenneth G C Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and ­Comparative (2007) Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (2009) J W Cairns and Paul du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula (2010)

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EDINBURGH STUDIES IN LAW VOLUME 8

Essays in Criminal Law in Honour of Sir Gerald Gordon Edited by James Chalmers Fiona Leverick and Lindsay Farmer

EDINBURGH UNIVERSITY PRESS

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© The Edinburgh Law Review Trust and the Contributors, 2010 Edinburgh University Press Ltd 22 George Square, Edinburgh www.euppublishing.com Typeset in New Caledonia by Koinonia, Manchester, and printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne A CIP record for this book is available from the British Library ISBN 978 0 7486 4070 6 (hardback) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

Preface List of Contributors List of Abbreviations Table of Cases

vii viii ix x

Foreword Lord Rodger of Earlsferry

xvii

  1 Sir Gerald Gordon: An Appreciation Christopher Gane   2 Corroboration and Distress: Some Crumbs from Under the Master’s Table Lord Hope of Craighead

1

12

  3 Child Defendants and the Doctrines of the Criminal Law Andrew Ashworth

27

  4 Codification of the Criminal Law Eric Clive

54

  5 Public and Private Wrongs R A Duff and S E Marshall

70

  6 The Idea of Principle in Scots Criminal Law Lindsay Farmer

86

  7 A Human Right to a Fair Criminal Law Victor Tadros   8 The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults” Sharon Cowan

103

126

  9 The Mental Element in Modern Criminal Law Peter Ferguson QC

141

10 Theft by Omission Stuart P Green

158

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essays in criminal law in honour of sir gerald gordon

11 Statutory Rape and Defilement in Ireland: Recent Developments Finbarr McAuley

178

12 Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law Claire McDiarmid

195

13 “The Most Heinous of All Crimes”: Reflections on the Structure of Homicide in Scots Law Gerry Maher

218

14 Witness Anonymity in the Criminal Process Ian Dennis

241

15 Disclosure Appeals: A Plea for Principle Peter Duff

264

16 Crown Counsel: From Sir Archibald Alison to Lord Brand Robert S Shiels

286

17 The Codification of Criminal Procedure J R Spencer

305

18 The Summary Jurisdiction to Punish for Contempt of Court in Scotland Sheriff T Welsh QC

326

19 Sir Gerald Gordon: A Bibliography Shona Wilson

341

Index

348

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Preface

In modern times few, if any, individuals can have been as important to a single country’s criminal law as Sir Gerald Gordon CBE QC LLD has been to the criminal law of Scotland. On 11 and 12 June 2009, close to the date of Sir Gerald’s 80th birthday, a conference and public lecture was held at the University of Edinburgh to mark his contribution to criminal law s­ cholarship both within Scotland and elsewhere. The conference ended with a public lecture delivered by Lord Hope of Craighead on the topic “Corroboration and distress: some crumbs from under the master’s table”. These events, supported by the Clark Foundation for Legal Education, W Green and the Scottish Universities Law Institute, provided the material for this Festschrift volume, along with a bibliography of Sir Gerald’s publications and two further chapters by contributors who were unable to attend the conference itself. The photograph of Sir Gerald which appears in this volume was taken by Professor William McBryde. James Chalmers School of Law University of Edinburgh Fiona Leverick School of Law University of Glasgow Lindsay Farmer School of Law University of Glasgow

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List of Contributors

andrew ashworth is Vinerian Professor of English Law at the University of Oxford. james chalmers is a Senior Lecturer in Law at the University of Edinburgh. eric clive is a Visiting Professor of Law at the University of Edinburgh. sharon cowan is a Senior Lecturer in Law at the University of Edinburgh. ian dennis is Professor of Law and Director of the Centre for Criminal Law, University College London. peter duff is Professor of Criminal Justice at the University of Aberdeen. r a duff is Professor of Philosophy at the University of Stirling. lindsay farmer is Professor of Law at the University of Glasgow. peter ferguson is an Advocate at the Scottish Bar. christopher gane is Professor of Scots Law and Vice-Principal at the ­University of Aberdeen. stuart p green is Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers School of Law-Newark. lord hope of craighead is Deputy President of the Supreme Court. fiona leverick is a Senior Lecturer in Law at the University of Glasgow. finbarr mcauley is Professor of Law at University College Dublin and a Law Reform Commissioner. claire mcdiarmid is a Senior Lecturer in Law at the University of Strathclyde. gerry maher is Professor of Criminal Law at the University of Edinburgh. s e marshall is Professor of Philosophy at the University of Stirling. lord rodger of earlsferry is a Justice of the Supreme Court. robert s shiels is a Solicitor and Principal Procurator Fiscal Depute. j r spencer is Professor of Law at the University of Cambridge. victor tadros is Professor of Law at the University of Warwick. t welsh is a Sheriff and Director of Judicial Studies in Scotland. shona wilson is a solicitor in Edinburgh.

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List of Abbreviations

Alison, Practice

A Alison, Practice of the Criminal Law of Scotland (1833)

Alison, Principles

A Alison, Principles of the Criminal Law of Scotland (1832)

Ashworth, Principles of   Criminal Law

A Ashworth, Principles of Criminal Law, 6th edn (2009)

Chalmers and Leverick,   Criminal Defences

J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006)

ECHR

European Convention on Human Rights and Fundamental Freedoms (1950)

Gordon, Criminal Law

G H Gordon, The Criminal Law of Scotland, 3rd edn, by M G A Christie, in two volumes: vol 1 (2000) and vol 2 (2001)

Hume, Commentaries

D Hume, Commentaries on the Law of Scotland, Respecting Crimes, 4th edn, by B R Bell (1844)

Macdonald, Criminal Law J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn, by J Walker and D J Stevenson (1948)

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Table of Cases

Al Megrahi v HM Advocate 2002 JC 99 267, 274, 284 Alford v United States 282 US 687 (1931) 249 243, 254, 255, 256 Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 Allan v Patterson 1980 JC 57 155 146, 183, 184 Alphacell Ltd v Woodward [1972] AC 824 Annan v Tait 1982 SLT (Sh Ct) 108 147 256 Ashingdane v United Kingdom (1985) 7 EHRR 528 Attorney General v British Broadcasting Corporation [1981] AC 303 338 330 Attorney General v The Times Newspaper [1974] AC 273 Attorney General for Jersey v Holley [2005] 2 AC 580 40, 199 Attorney General (Shaughnessy) v Ryan [1960] IR 181 180, 181 Attorney General’s Reference (No 6 of 1980) [1981] QB 715 44, 127 B (a Minor) v DPP [2000] 2 AC 428 Bedder v DPP [1954] 1 WLR 1119 Birutis v Lithuania (App No 47698/99) 28 March 2002 Blane v HM Advocate 1991 SCCR 576 Bone v HM Advocate 2006 SLT 164 Brennan v HM Advocate 1977 JC 38 Brett v DPP [2009] EWHC 440 (Admin); (2009) 173 JP 274 Brown v Farrel 1997 JC 205 Brown v HM Advocate 1993 SCCR 382 Brown v Stott [2003] 1 AC 681 Burrell v Harmer [1967] Crim LR 169

145 200 243 152 3 7, 238 324 299 141 252 44

213 C v Harris 1989 SC 278 CC v Ireland [2006] IESC 33 179, 180, 182–90, 193, 194 267, 275, 276, 277, 278, 284 Cameron v HM Advocate 1991 JC 251 Cameron v Maguire 1999 JC 63 156 Cannon v HM Advocate 1992 SCCR 505 25 Carr v HM Advocate 1995 SLT 800 156 Christian v The Queen [2007] UKPC 47; [2007] 2 AC 400 318 Clark v HM Advocate 1968 JC 53 6 Clendinnen v Rodger (1875) 3 Coup 171 94 Cochrane v HM Advocate 2001 SCCR 655 38, 40, 200 Coleman v Ireland [2004} IEHC 288 180 Connolly v HM Advocate 1958 SLT 79 19

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table of cases

Cosgrove v HM Advocate 1990 JC 333 Crawford v HM Advocate 1950 JC 67 Crawford v Washington 541 US 36 (2004) Crowe v HM Advocate 1990 SLT 670

xi

210 204 255 155

Dempsey v HM Advocate [2005] HCJAC 6; 2005 JC 252 151 Derry v Peek (1889) 14 App Cas 337 149 Docherty v Brown 1996 JC 48 4 Doorson v Netherlands (1996) 22 EHRR 330 243, 246 DPP v Camplin [1978] AC 705; [1978] 2 WLR 679 39, 200 DPP v Morgan [1976] AC 182 192–3 324 DPP v Stephens [2006] EWHC 1860 (Admin) Drummond v HM Advocate 2003 SLT 295 265 Drury v HM Advocate 2001 SLT 1013; 2001 SCCR 583 40, 61–2, 101, 150, 154, 197, 198, 199, 200, 202, 203, 207, 208–9, 220 301 Dunbar v Johnston (1904) 4 Adam 505 E v HM Advocate 2002 JC 215 Ebsworth v HM Advocate 1992 SCCR 671 Fenning v HM Advocate 1985 JC 76 Finegan v Heywood 2000 JC 444 Fraser v HM Advocate 2008 SCCR 407

280 148 205 215 275–9, 265, 266, 267

269–72, 276 Gair v HM Advocate [2005] HCJAC 69; 2006 SCCR 419 Galbraith v HM Advocate 2002 JC 1 42 99 Geo Kerr and Ors (1871) 2 Coup 334 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 29, 30, 32 Gillon v HM Advocate 2007 JC 24 198, 199, 203 Grant v The Queen [2006] UKPC 2; [2007] 1 AC 1 248 93 Greenhuff (Bernard) (1838) 2 Swin 236 Guest v Annan 1988 SCCR 275 213 324 Guttentag v DPP [2009] EWHC 1849 (Admin) H v Griffiths [2009] HCJAC 15; 2009 SLT 199 145, 146, 147, 157 Hammond v The State, Case No 500/03, Supreme Court of Appeal of South Africa, 3 September 2004 22 Harris v HM Advocate 2009 SLT 1078 59, 123 Hardie (William) (1847) Ark 247 99 Hartley v HM Advocate 1979 SLT 26 16 Hess and Nguyen v The Queen [1990] 2 SCR 906 187 HM Advocate v Airs 1975 JC 64 332 HM Advocate v Anderson 1928 JC 1 4 HM Advocate v Campbell (1868) 1 Coup 182; HM Advocate (1880) 4 Coup 326 287 HM Advocate v Campbell 1921 JC 1 4 HM Advocate v Coubrough 2008 SCCR 317 274–5, 276, 278 HM Advocate v Cunningham 1963 JC 80 4 HM Advocate v Doherty 1954 JC 1 205, 206 HM Advocate v Grant (1848) J Shaw 17 20 HM Advocate v Greig, Unreported, May 1979 214

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HM Advocate v Hill 1941 JC 59 198, 206 HM Advocate v Kelly, Unreported, February 2001, High Court at Glasgow 133 HM Advocate v Kidd 1960 JC 61 4 HM Advocate v Kizileviczius 1938 JC 60 204, 215 HM Advocate v Macdonald (1867) 5 Irv 525 212 HM Advocate v McKean 1997 JC 32 207 HM Advocate v Purcell [2007] HCJ 13; 2008 JC 131; 2007 SCCR 520 60–1, 153, 154, 155, 233, 239 HM Advocate v S, Unreported, 9 July 1999 31, 32, 50 HM Advocate v Semple 1937 SLT 48 4 HM Advocate v Simpson 2009 SLT 513 214, 215 242 HM Advocate v Smith 2000 SCCR 910 94 HM Advocate v Wilson 1983 SCCR 420 Hobbs v Winchester Corporation [1910] 2 KB 471 183 267, 268, 269, 271, 273, 274, 275, Hogg v Clark 1959 JC 7 276, 278, 279, 280, 282, 283, 284 Holland v HM Advocate [2005] UKPC D1; 2005 SC (PC) 3 266–7, 268–9, 271, 272, 273, 274, 276, 277, 278, 279, 280, 281 15 Horne v HM Advocate 1991 SCCR 248 Howitt v HM Advocate 2000 SCCR 195 287 Hyam v DPP [1975] AC 55 219 J & P Coats Limited v Brown (190) 6 Adam 19 Jamieson v HM Advocate 1994 JC 88; 1994 SLT 537 Janosevic v Sweden (2004) 38 EHRR 473 Johnson v Grant 1923 SC 789

301 144, 148, 149 256 339

Kane v Friel 1997 JC 69 161 Kane v HM Advocate [2009] HCJAC 8; 2009 SLT 137 86 Kelly v HM Advocate 2006 SCCR 9 272–4, 279, 280 Kennedy v HM Advocate 1944 JC 171 4 7 Khaliq v HM Advocate 1984 JC 23 Knauff v Shaughnessy 338 US 537 (1950) 250 Kostovski v Netherlands (1989) 12 EHRR 434 243, 253 Krasniki v Czech Republic (App No 51277/99) Unreported, 28 February 2006 243, 253 Kyprianou v Cyprus (App No 73797/01) Unreported, 27 January 2004 (Second Section); (2007) 44 EHRR 27 (Grand Chamber) 327, 333, 335–7, 339, 340 L v DPP [2009] EWHC 238 (Admin) Lamont v Strathern 1933 JC 33 Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 Lawrie v Muir 1950 JC 19 Lee v Illinois 476 US 530 (1985) Leverage v HM Advocate 2009 JC 137 Lieser v HM Advocate [2008] HCJAC 42; 2008 SLT 866 Lim Chin Aik v R [1960] AC 161 (PC) Lockhart v National Coal Board 1981 SLT 161 Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466; 2002 SCCR 435

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324 4 135 284 250 282 149–50, 203 183 146 59, 65, 148–9

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table of cases

Low and Reilly v HM Advocate 1994 SLT 277 Luca v Italy (2003) 36 EHRR 807 Ludi v Switzerland (1992) 15 EHRR 173

xiii

198, 199 253, 255 243

M C v Bulgaria (2005) 40 EHRR 459 109 MacAngus v HM Advocate; Kane v HM Advocate [2009] HCJAC 8; 2009 SLT 137 86, 154, 236 McBrearty v HM Advocate 1999 SLT 1333 206 MacColl v The Crofters Commission [2009] CSOH 120 149 McCrindle v MacMillan 1930 JC 56 17 McDermott v HM Advocate 1973 JC 8 207, 211 128 McDonald v HM Advocate 2004 SCCR 161 McDonald v HM Advocate [2008] UKPC 46; 2008 SLT 144 278, 281 McDowall v HM Advocate 1998 SCCR 343 155 McInnes v HM Advocate [2010] UKSC 7; 2009 JC 6 264, 265, 272, 274, 279–81, 282, 283, 284, 285 McIntosh v HM Advocate 1994 SLT 59 156 26, 144 McKearney v HM Advocate 2004 JC 87; 2004 SLT 739; 2004 SCCR 251 McKinnon v HM Advocate 2003 SCCR 224 150 25 McLellan v HM Advocate 1992 SCCR 171 McLennan v HM Advocate 1928 JC 39 17 215 MacLeod v Mathieson 1993 SCCR 488 McManimy and Higgans (1847) Ark 321 99 M’Naghten’s Case (1843) 10 Cl & Fin 200 37 MacPhail v Clark 1983 SLT (Sh Ct) 37 3 McPhelim v HM Advocate 1960 JC 17 143 Macbeth and Maclagan v Macmillan 1914 SC (J) 165 290 324 Malcolm v DPP [2007] EWHC 363 (Admin); [2007] 1 WLR 1230 Mamota-Kulang (1964) 111 CLR 62 240 148 Meek v HM Advocate 1983 SLT 280 Meredith v Lees 1992 SCCR 459 16, 23 181 Michael M v Superior Court of Sonoma County 450 US 464 (1981) Mitchell v Morrison 1938 JC 64 145–6, 147 13 Moorov v HM Advocate 1930 JC 68 Morissette v United States 342 US 242 (1952) 183 Morris v Crown Office [1970] 2 QB 114 327 Morton v HM Advocate 1938 JC 50 17 Murray and O’Hara v HM Advocate 2009 SCCR 624 281–2 N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296

124

O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21 Öneryildiz v Turkey (2004) 39 EHRR 12 Öztürk v Germany (1984) 6 EHRR 409

256 233 77

P S v Germany (2003) 36 EHRR 61 Parr v HM Advocate 1991 JC 39 Paterson v Lees 1999 JC 159 Paton v HM Advocate 1936 JC 19

253 213 146 236

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Peden v HM Advocate 2003 SCCR 605 151 Pemble (1971) 124 CLR 107 240 Penny v State 159 SW 1127 (Ark 1913) 165 People (Attorney General) v Kearns [1949] IR 385 180 People (Attorney General) v O’Connor [1949] Ir Jur Rep 25 180 People (DPP) v Kirwan [2005] IECCA 136 184 Petto v HM Advocate [2009] HCJ 43; 2009 SLT 509 61, 153, 239 Phillips v The Queen [1969] 2 AC 130 202 Prosecutor v Slobidan Milosevic (Case No IT-02-54-T-R77.4) 13 May 2005 335 R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 252 51 R v Adomako [1995] 1 AC 171 R v Aitken (1992) 95 Cr App R 304 45 R v B W P [2006] SCC 27 34 R v Bowen [1996] 2 Cr App R 157 35, 36 R v Brown [1994] 1 AC 212 127, 129, 130, 132, 133–5, 136–7 R v Caldwell [1982] AC 341 50 36 R v Chauhan (1981) 73 Cr App R 232 R v Church [1966] 1 QB 59 185 36 R v Clarke (1972) 56 Cr App R 225 R v Clarke; R v McDaid [2008] UKHL 8; [2008] 1 WLR 338 324–5 R v Davis [2008] UKHL 36; [2008] 1 AC 1128; [2006] EWCA Crim 1155; [2006] 1 WLR 3130 242, 243, 244, 245, 247, 251, 252, 256 R v Davis, Rowe and Johnson [2001] 1 Cr App R 8 265 R v Dica [2004] EWCA Crim 1103; [2004] QB 1257 133–5 R v Donovan [1934] 2 KB 498 45 R v Emmett, The Times, 15 October 1999 127 47 R v G [2004] 1 AC 1034 R v G [2008] UKHL 37; [2009] 1 AC 92; [2006] EWCA Crim 821; [2006] WLR 2052 47, 48, 49, 115, 145 R v Gotts [1992] 2 AC 412 36 174 R v Hancock [1990] 2 QB 242 R v Hines [1997] 3 NZLR 529 246 325 R v Hodgson; R v Pollin [2008] EWCA Crim 895; [2009] 1 WLR 1070 R v Horncastle [2009] EWCA Crim 964; [2009] 2 Cr App R 15 251, 253, 254 255–6 R v Howe [1987] 1 AC 417 36, 219 R v Hughes [1986] 2 NZLR 129 248 R v James [2006] EWCA Crim 14; [2006] QB 588 200 R v Jones; R v Campbell; R v Smith; R v Nicholas; R v Blackwood; R v Muir (1986) 83 Cr App R 375 44–5, 46, 127 R v K [2001] UKHL 41; [2002] 1 AC 462 145 R v Lawrence [1982] AC 510 143 R v Leepile (5) 1986 (4) SA 187 261 253 R v Liverpool Magistrates’ Court ex p DPP (1996) 161 JP 43 R v Mayers [2008] EWCA Crim 2989; [2009] 1 WLR 1915 245, 246, 259, 260, 261 R v Moran (1985) 81 Cr App R 51 328 R v Murphy and Maguire [1990] NI 306 251, 252, 259 R v Pierce (1852) 6 Cox CC 117 175 R v Powar and Powar [2009] EWCA Crim 54; [2009] 2 Cr App R 8 259, 260, 261

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table of cases

xv

R v Slingsby [1995] Crim LR 570 128, 130, 132 R v Smith; R v Jayson [2003] EWCA Crim 683; [2003] 1 Cr App R 13 147 R v Smith (Morgan) [2001] 1 AC 146 40, 199 R v Tyrrell [1894] 1 QB 710 47–8 R v Venna [1976] QB 421 127 R v Warner [1969] 2 AC 256 147 R v Wilson [2007] EWCA Crim 1251 36, 37, 39, 41, 49 R v Woollin [1999] 1 AC 82 37 R v Zafar [2008] EWCA Crim 184; [2008] QB 810 123 R (D) v Camberwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393 248 R (DPP) v Chorley Justices and Forrest [2006] EWHC 1795 (Admin) 323–4 78 R (ex p Purdy) v DPP [2009] UKHL 45; [2009] 3 WLR 403 R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin); [2008] 1 WLR 2001 324 324 R (Lawson) v Stafford Magistrates’ Court [2007] EWHC 2490 (Admin) R (on application of W) v DPP [2005] EWHC Admin 1333 43 30 Re S (a Minor) (Independent Representation) [1993] 2 FLR 437 Reid v HM Advocate 1947 SLT 150 205 Reynolds v G H Austin & Sons Ltd [1951] 2 QB 135 183 Robertson and Gough v HM Advocate 2008 JC 146 337, 339, 340 Robinson v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin); (2007) 171 JP 683 324 89, 141, 142 Ross v HM Advocate 1991 JC 210 Rush v Fife County Council 1984 SLT 391 300 211 Rutherford v HM Advocate 1998 JC 34 Ryan (1966–67) 40 ALJR 488 240 253 115 256 145, 252 24 266, 268, 269, 276, 279, 281 7, 46, 127–8, 129, 131 Smart v HM Advocate 1975 JC 30 Smart v HM Advocate [2006] HCJAC 12; 2006 JC 119 147 Smith v Donnelly 2002 JC 65 59, 123 Smith v Illinois 390 US 129 (1967) 249 Smith v Lees 1997 JC 73 13–14, 15, 16, 17, 21, 23, 24, 25 Soering v United Kingdom (1989) 11 EHRR 439 252 Sporrong and Lonroth v Sweden (1983) 5 EHRR 35 252 Stallard v HM Advocate 1989 SLT 469 65 Stobo v HM Advocate 1994 JC 28 14–15, 23, 24, 25 Strathern v Lambie 1934 JC 137 17 330 Sunday Times v United Kingdom (1979–80) 2 EHRR 245 Sweet v Parsley [1970] AC 132 147, 183 Saidi v France (1993) 17 EHRR 251 Salabiaku v France (1988) 13 EHRR 379 Schenk v Switzerland (1991) 13 EHRR 242 Sheldrake v DPP [2004] UKHL 43; [2005] 1 AC 264 Sinclair v Clark 1962 JC 57 Sinclair v HM Advocate [2005] UKPC D2; 2005 SC(PC) 28

Thomson v HM Advocate 1983 JC 69 Thomson v HM Advocate 1986 SLT 281 Timbu Kulian (1969–70) 119 CLR 47

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38 198, 211 240

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Transco plc v HM Advocate 2004 JC 29; 2004 SLT 41; 2004 SCCR 1 United Mine Workers of America v Bagwell 512 US 821 (1994) United States v United Mine Workers of America 330 US 258 (1947) Unterpertinger v Austria (1986) 13 EHRR 175 Vallance (1961) 108 CLR 56 van den Hoek (1986) 161 CLR 158 van Mechelen v Netherlands (1997) 2 BHRC 486 Visser v Netherlands (App No 26668/95) 14 February 2002 Walker v Emslie (1899) 3 Adam 102 Wilkinson v Lord Chancellor’s Department [2003] EWCA Civ 95 Williams v Phillips (1957) 41 Cr App R 5 Windisch v Austria (1990) 13 EHRR 281 Writtle v DPP [2009] EWHC 236 (Admin); (2009) 173 JP 224 Wylie v HM Advocate 1966 SLT 149 Yip v HM Advocate 2000 GWD 8–280

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89, 142, 151, 154, 233, 236 338 338 253 240 202 243, 253 243 301 339 173 243, 253 324 328, 329–30 198

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Foreword

In June 2009 scholars, practitioners and judges joined in a Festakt to mark Sir Gerald Gordon’s eightieth birthday. Now, in a happy double celebration, we have the Festschrift containing papers which are all, in one way or another, the fruits of that occasion. No Scots lawyer has more deserved a double celebration. It is actually very hard now to recall just what an innovation Gordon’s Criminal Law represented. The great fat book dropped like a bomb into a legal world where nothing had apparently changed for decades and where, if the judges and most of the practitioners were to have their way, nothing was ever going to change. Macdonald’s Criminal Law had last been revised in 1949, the Criminal Appeal Court hardly sat and, even if it did produce a judgment of importance, there was a good chance that it would not be reported. But the bomb did not produce its explosion immediately. Two other events were required. One, the introduction of criminal legal aid, had already occurred, but its effects were only just beginning to be felt. The other, the retirement of Lord Clyde as Lord Justice General and his replacement with Lord Emslie, still lay some five years in the future. So the judges’ initial reaction to the book was typified by Lord Avonside’s famous choleric refusal even to consider a passage from it when he was sitting in the Privy Council. Whether because of that or not, he was never invited back. Lord Emslie’s appointment marked a turning point. He became Lord Justice General in the Spring of 1972 and when I first saw the criminal appeal court later that year, many solicitors and counsel were still dropping in to watch the amazing new sight of the court actually sitting for a whole day – or even for days at a time. And, even more importantly, Lord Emslie was happy to consider new arguments advanced by counsel. Slowly but surely, also, he began to produce a stream of authoritative judgments addressing those arguments. The scene was set for Criminal Law to produce its effect.

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The effect was not quite immediate. Even Lord Emslie sometimes seemed to yearn for the older, simpler, days when Macdonald contained everything that you needed to know. In those simpler days, on common law offences at least, Scottish judges never needed to look beyond the confines of Scotland. Indeed it was positively bad form to do so. I remember the scene – worthy of a Bateman cartoon – when a very junior counsel tried to cite Russell on Crimes to an appeal court containing Lord Wheatley and Lord Kissen. But the material was in Gordon and so, despite opposition, counsel tended to persist. Moreover, the advent of photocopiers meant that counsel could use cases from overseas jurisdictions. As an advocate depute, I found that citing, say, an Australian case was a useful ploy for introducing a supposedly alien concept, which, even in the 1980s and 1990s, might have been resisted if its English origins had been too openly proclaimed. Gradually, the appeal court became used to a somewhat richer diet – and to looking at the passages in Gordon where the new material was discussed. Even if the court may not always have referred to the book, it was having its effect. And then came the Scottish Criminal Case Reports (SCCR), which ensured that any cases of importance were promptly reported. The competition also stimulated the editors of Scots Law Times and Session Cases into action. But SCCR had the unique selling point of Gerald’s commentaries. When a case was cited and submissions were being made about its effects, very wisely, counsel rarely referred to any criticisms in the commentary. But the commentary was the elephant in the room. It was the one thing that everyone was actually thinking about, but no-one was mentioning. “Perhaps not everyone agrees with the reasoning” – was the most that Lord Emslie would say, while looking off into the far distance. What mattered was that the comments did have an effect and, by the time that Lord Hope became Lord Justice General, counsel would routinely and quite openly make arguments based on them. The appeal court judges would also look, rather nervously, at each new part of SCCR to see whether their written work had got a respectable mark from Gerald. Many – perhaps most – of the cases in the criminal appeal court concern procedural points or points of evidence. On these, too, Gerald was providing authoritative guidance not only in his commentaries, but in his work on Renton and Brown. And, when human rights, devolution issues and the like arrived in 1999, he was ready and eager to grapple with those too. The essays in this volume show not only how very much Scottish criminal law has changed, but also how very much it is changing. The world of devolution is one where the Scottish Law Commission and Scottish Parliament

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have now made their first major inroad into the common law with the Sexual Offences (Scotland) Act 2009. Whether it is a change for the better remains to be seen, but there can be no doubt that it marks a major change. The old common law was pragmatic. The drafting of the 2009 Act reflects a completely different, more academic and more theoretical, approach. In that sense, it is the product of the revolution which Gerald triggered. It is fitting therefore that the essays bring theoretical and practical insights from scholars working all over the world. It is fitting also that they contain criticisms of the work of the judges both in Scotland and elsewhere. In a way, it is fitting, too, that some of the essays are directed at points which, even by now, have been modified by new cases. Our criminal law is a mixture of the theoretical and the practical, of the old and the new. No-one knows that better than Gerald Gordon. No one could more richly deserve this collection of stimulating essays reflecting his interests. While enjoying this volume, we look forward to the Festschrift to mark his ninetieth birthday. Lord Rodger of Earlsferry

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Sir Gerald Gordon

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1  Sir Gerald Gordon: An Appreciation Christopher Gane A. the literature of scots criminal law B. The reception of gordon’s criminal law C. gordon and criminal procedure D. gordon and legal education and scholarship E. sir gerald gordon: a personal appreciation “Nobody who knows anything about the criminal law of Scotland is unaware of the name of Sir Gerald Gordon”,1 and no one reading this book can be in any doubt about the significance of Sir Gerald Gordon’s contribution to criminal law and criminal justice in Scotland. But even those who are familiar with these branches of the law of Scotland may be forgiven for overlooking the sheer range of that contribution dating back more than fifty years.2 First and foremost are his contributions to the literature of the criminal law, evidence and procedure,3 and it is on this aspect of his work that this appreciation will focus. But we should not overlook his judicial service both on the shrieval bench and as a judge in the High Court, along with his extrajudicial service on the Thomson Committee,4 Sutherland Committee5 and the Scottish Criminal Cases Review Commission.6 In order fully to appreciate the significance of this contribution it is instructive to look back at the condition of Scots criminal law, and especially   1 Lord Hope of Craighead, “Corroboration and distress: some crumbs from under the master’s table”, ch 2 below.   2 Sir Gerald’s first published work on the criminal law was “The evidence of spouses in criminal trials” 1956 SLT (News) 145.   3 For a full account, see S Wilson, “Sir Gerald Gordon – A Bibliography”, ch 19 below.  4 Criminal Appeals in Scotland (First Report) (Cmnd 5038: 1972); Criminal Procedure in Scotland (Second Report) (Cmnd 6218: 1975); Criminal Appeals in Scotland (Third Report) (Cmnd 7005: 1977).  5 Criminal Appeals and Alleged Miscarriages of Justice (Cm 3245: 1996).   6 Sir Gerald was a member of the Commission from its creation and stood down in 2008 after completing the maximum permissible period of ten years’ continuous service: Criminal Procedure (Scotland) Act 1995 Sch 9A para 2(5), and see Scottish Criminal Cases Review Commission, Annual Report and Accounts 2008-09 (2009) 3.

1

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its literature, prior to the publication of his Criminal Law and his assumption of the editorship of Renton and Brown’s Criminal Procedure According to the Law of Scotland. It is also interesting to examine the reaction to these works, especially the former, in the academy and amongst the legal profession. A. THE LITERATURE OF SCOTS CRIMINAL LAW Even a cursory examination of the literature of Scots criminal law in 1967 would confirm that all was not well. As Gordon himself noted in the first edition of his Criminal Law:7 There has been no extended discussion of the principles of Scots criminal law since Hume’s Commentaries. Alison merely repeats Hume with the addition of a few English cases; Anderson is a very brief treatment and avoids discussion; Macdonald is little more than a convenient digest, and is confused and inaccurate. The only systematic modern treatment is that contained in three comparatively short chapters of Professor Smith’s Short Commentary.

In this, of course, Scots law was not alone. There were clear parallels here with the condition of the literature of English criminal law. The leading criminal law texts – Russell on Crime8 and Archbold’s Criminal Pleading and Practice9 – were essentially nineteenth-century practitioners’ manuals which did not contain fully developed discussions of the general principles of criminal responsibility. The deficiencies of those works were in part addressed by the publication of Glanville Williams’ Criminal Law: The General Part in 1953,10 but it was not until the publication of Smith and Hogan’s Criminal Law in 196511 that students of English criminal law were presented with a modern and comprehensive account of the principles of criminal liability and the elements of the major crimes. There was, however, an important difference between the literature of Scots and English criminal law at this time, and that was the existence of a growing body of secondary literature in legal journals. The Criminal Law   7 G H Gordon, The Criminal Law of Scotland (1967) 3-4, citing Hume, Commentaries; Alison, Principles; Macdonald, Criminal Law; T B Smith, A Short Commentary on the Law of Scotland (1962) 116-238.   8 W O Russell, A Treatise on Crimes and Misdemeanors (1819). A 12th and final edition, by J W C Turner, was published in 1964, shortly before the first edition of Gordon’s Criminal Law in 1967.   9 J F Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (1822). A 36th edition, by T R F Butler and M Garsia, was published in 1966. New editions are now published annually, identified by year rather than by edition number. 10 G L Williams, Criminal Law: The General Part (1953). A second edition was published in 1961. 11 J C Smith and B Hogan, Criminal Law (1965). The latest edition is D C Ormerod, Smith and Hogan: Criminal Law, 12th edn (2008).

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Review had been established in 1954, and while in its early years there was a certain practitioner focus, it had become established as an outlet for material of theoretical significance as well. Neither the editorial policy of the journal, nor its content, confined the Review to matters of English law, and some articles on Scots criminal law were published in the Review in its early years,12 but its content was dominated by issues of interest primarily to an English readership. There was no similar development in Scotland, and the major Scottish law review – the Juridical Review – contained very few significant contributions on Scots criminal law, evidence or procedure. In the ten years preceding the publication of the first edition of Gordon’s Criminal Law, only seven articles in these areas were published in the Juridical Review,13 and one of these – “Crimes without Laws?” – was by Sir Gerald himself. There were, of course, shorter notes and comments published in other outlets such as the Scots Law Times and the Journal of the Law Society of Scotland, and articles on Scots criminal law matters were published in non-Scottish journals,14 but in general it would be fair to say that not a great deal was being written about Scots criminal law matters in the period immediately preceding the publication of Gordon’s Criminal Law. It is not as if issues worthy of consideration were lacking. Then, as now, there was little in the way of modern legislation in the criminal law, and significant areas of basic principle lacked any authoritative guidance from Hume or the courts. So, for example, the existence and scope of criminal liability for omissions was quite unexplored.15 Modern statements of the law were often derived from jury charges rather than considered appel12 See e.g. T B Smith, “A Scottish survey” [1954] Crim LR 500; J Aikman Smith, “A Scottish survey” [1955] Crim LR 94; J Aikman Smith, “A Scottish survey” [1956] Crim LR 104; T B Smith, “Diminished responsibility” [1957] Crim LR 354; A R Brownlie, “Legal aid in Scottish criminal proceedings” [1961] Crim LR 164; A R Brownlie, “Legal aid in Scottish criminal proceedings” [1963] Crim LR 742; J V M Shields and J A Duncan, “The state of crime in Scotland” [1964] Crim LR 193, 268 and 361. 13 W E Elliot, “Nulla poena sine lege” 1956 JR 22; J Walker, “The growth of the criminal law” 1958 JR 230; K W B Middleton, “An apology for DPP v Smith” 1964 JR 75; B Gill, “Impossibility in criminal attempts” 1965 JR 137; J W R Gray, “The admissibility of evidence illegally obtained in Scotland” 1966 JR 89; G H Gordon, “Crimes without laws?” 1966 JR 214; N Young, “Vicarious liability for crime” 1967 JR 22. 14 See e.g. T B Smith, “Bail before trial: reflections of a Scottish lawyer” (1960) 108 University of Pennsylvania LR 305; P Hardin III, “Other answers: search and seizure, coerced confession, and criminal trial in Scotland” (1964) 113 University of Pennsylvania LR 165; T B Smith, “Public interest and safeguards for the suspect” (1965) 11 McGill LJ 43; J G Wilson, “Pre-trial criminal procedure in Scotland: a comparative study” (1965) 82 SALJ 69 and 192. 15 But see now MacPhail v Clark 1983 SLT (Sh Ct) 37 and Bone v HM Advocate 2006 SLT 164 for some partial exploration of this area of the law.

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late judgments.16 There were areas where there were manifestly conflicting opinions on issues of principle17 and clear conflicts between the institutional authorities and judicial opinions.18 And there were judgments that were so devoid of principle as to beggar belief.19 B. THE RECEPTION OF GORDON’S CRIMINAL LAW It was against this background that Gordon’s Criminal Law was published, and it is worth considering how it was received at the time. Gordon’s Criminal Law was by any standard a significant work, and it attracted a significant number of reviews. These were penned not only by specialists in Scots law,20 but also by contributors from the rest of the United Kingdom21 and beyond.22 These reviews were overwhelmingly – but not exclusively – positive. All paid tribute to the evident industry and scholarship inherent in the production of such a substantial work. There were, inevitably, some detailed criticisms about particular elements of the text or the author’s approach. The most consistent of such comments was that the book might be considered to be too philosophical or too “academic”23 or “speculative”24 for some audiences. Some identified particularly innovative features of the book, such as the organisation and classification of the offences discussed “by their subjectmatter and not by whether they were created by judges or by Parliament”25 so that, for example, the crime of taking and driving away a motor vehicle 16 See e.g. the description of the defence of insanity set out in the charge to the jury by Lord Strachan in HM Advocate v Kidd 1960 JC 61. 17 See e.g. H M Advocate v Anderson 1928 JC 1, H M Advocate v Semple 1937 SLT 48 and Lamont v Strathern 1933 JC 33 on the issue of impossibility in criminal attempts. See now Docherty v Brown 1996 JC 48. 18 See, for example, the conflict between the views of Hume (Commentaries i, 43) and the opinions of the courts in HM Advocate v Campbell 1921 JC 1 and Kennedy v HM Advocate 1944 JC 171 on the relevance of intoxication as a defence to a criminal charge. 19 Perhaps the most notorious of these being the judgment in HM Advocate v Cunningham 1963 JC 80 on the defence of automatism. 20 See J W R Gray (1968) 31 MLR 474; N Young (1968-1969) 10 JSPTL 73; “J W” 1967 JR 304; “J D H” (1968) 32 J Crim L 69; A R Brownlie, “A major Scots criminal law re-assessment” [1968] Crim LR 202; A R Brownlie (1967) 7 Journal of the Forensic Science Society 217; E G F Stewart 1968 SLT (News) 94; I M Robertson (1968) 84 LQR 116. 21 P R Glazebrook (1968) 26 CLJ 317; K Boyle (1968) 19 NILQ 141. 22 E M Burchell and P M A Hunt (1968) 85 SALJ 100; B Huber, “Zum schottischen strafrecht” (1968) 80 Zeitschrift für die gesamte Strafrechts wissenschaft 1012; “R S” (1967-1968) 48 Revue de droit pénal et de criminologie 733. 23 N Young (1968-1969) 10 JSPTL 73. This theme is most fully developed in the review by J W in the Juridicial Review, as to which, see below. 24 J W R Gray (1968) 31 MLR 474 at 475. 25 K Boyle (1968) 19 NILQ 141.

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was discussed in the context of the crime of theft. Others used their review of Gordon to comment more widely on the condition of the criminal law.26 Yet others identified the importance of the Criminal Law as a source for comparative study.27 Probably the least sympathetic review is that by an author identified only as “J W”.28 Some of the critical observations in this review seem particularly inapt. Thus the reviewer takes Gordon to task for failing to appreciate the “practical” or pragmatic considerations that must be confronted by the courts when administering justice. This is a particularly surprising observation given Gordon’s professional experience both at the Bar and as a procurator fiscal.29 Indeed, Gordon’s blending of the “academic” and the “practical” approaches to the criminal law is singled out by other reviewers as being a particular strength of the Criminal Law.30 J W also criticises Gordon for favouring contemporary academic opinion of the law over judicial pronouncements:31 It is perhaps reflective of the trend of legal writers to find more assurance in the writings of their colleagues than in the pronouncements from the Bench that one finds him on occasion stating that the modern view, contrary to decided cases, is probably the one stated by a contemporary academic and not by the court.

The reviewer concludes this part of the discussion with a clear indication of where he believed the boundary between academic writing and law-making had to be drawn:32 judges must not be too sensitive of criticism of their judgments, but equally legal writers must remember that in the last analysis the law can only be developed by the court or by the legislature.

The reviewer also takes the opportunity to express a view about the likely enduring value of Gordon’s work by comparing it to Macdonald’s Criminal Law. The reviewer is unwilling to accept Gordon’s famous description of Macdonald as being little more than a “convenient digest” and both “con­­ fused” and “inaccurate”, a description that the reviewer felt did less than 26 See e.g. the reviews by Glazebrook and Stewart. 27 The review by Burchell and Hunt is almost entirely devoted to comparisons of Scots and South African criminal law. 28 “J W” 1967 JR 304. 29 A combination of “experience of his subject, both from the academic and the practical points of view” which one reviewer (Robertson) describes as “unrivalled in Scotland at the present time”. 30 See e.g. Robertson who reflects on Gordon’s “unique qualifications” in this regard. Even foreign commentators appear to have recognised Gordon’s “skill set”: Huber (n 22) at 1016. Ashworth, reviewing the second edition of Gordon, specifically acknowledges Gordon’s ability to combine “a depth of scholarship with practical sureness”: see [1979] Crim LR 475. 31 1967 JR 304 at 306. 32 Ibid.

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justice to a work that had stood the profession in good stead for more than a century, and which had been cited with approval by the bench on numerous occasions. The reviewer concludes this defence of Macdonald in the following terms:33 a fresh examination and a modern reappraisal of our criminal law were badly needed, and in this weighty work Dr Gordon has fulfilled his expressed hope that his book will serve a twofold purpose, namely, to provide a systematic analysis of modern Scots criminal law both in the field of general principles and in connection with particular crimes, and to provide the practitioner with an account of the principal common law and statutory offences. It is as much a “must” for the practitioner as it is for the student or the philosopher of crime. But somehow I feel that for the practitioner at least it will be more of a complement than a rival or successor to Macdonald.

This rather cool reception stands in marked contrast both to contemporary and later assessments of Gordon’s contribution to the literature of Scots law. In 1968 Gray was in no doubt:34 Clearly, not all large books are great ones but if this reviewer began reading as a duty, he continued as a pleasure and ventures the opinion that Dr Gordon has produced the most distinguished work on the criminal law of Scotland since Hume and has every chance of finding himself elected to the select band of legal writers who become authorities in their lifetime.

This assessment of the value of Gordon’s work was shared by lawyers beyond Scotland. In his review of the second edition of Criminal Law, Professor Andrew Ashworth described Gordon’s treatise in the following terms:35 It is now some twelve years since the first edition of Sheriff Gordon’s monumental work was published. It achieved an exceptionally high standard of scholarship, not merely within the confines of Scots law, but in its treatment of general issues of criminal liability, and this second edition confirms its right to be regarded as one of the leading treatises on criminal law written in the English language.

Whatever its strengths, it is clear that Gordon’s Criminal Law was not immediately accepted by the courts as a complement to, let alone a successor to, Macdonald. In one of the very earliest cases to refer to Gordon, Clark v H M Advocate,36 the Court went out of its way to reject Gordon’s argument on the meaning of the term “wilful” in the context of wilful neglect of a child even though it had not been cited to them in argument. In Smart v H M 33 At 307-308. Perhaps “J W” should have declared an interest. It is likely that “J W” was James Walker, one of the editors of the fifth (and final) edition of Macdonald. 34 J W R Gray, “The criminal law of Scotland” (1968) 31 MLR 474. 35 A J Ashworth, “The criminal law of Scotland” [1979] Crim LR 475. 36 1968 JC 53.

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Advocate37 the Court famously rejected Gordon’s arguments on the place of consent as a justification for an assault, holding that the attitude of the victim was irrelevant to whether an assault had been committed. In other instances important issues of principle were simply argued and resolved without reference to Gordon.38 Latterly, Gordon’s Criminal Law has come to be cited almost as a matter of course in the criminal courts and its authority as a major contribution to both the theory of the criminal law, and to its practical implementation is unquestioned. The shift appears to have come at least in part from a generational change. Most of the judges in the High Court, and on the shrieval bench, come from a generation who learned their criminal law not from Macdonald but from Gordon and who have increasingly shown their willingness to grapple with the difficult issues of principle to which they have been introduced through the pages of his Criminal Law. Gordon’s impact on legal education will be considered shortly. Before turning to that, however, it is important to say a little about his contribution in the field of criminal procedure. C. GORDON AND CRIMINAL PROCEDURE For most academic lawyers Gordon’s contribution to Scots law is primarily found in Criminal Law. But that is not necessarily so for probably the majority of criminal practitioners. For those who are daily working in the criminal courts Sir Gerald’s contribution to criminal procedure and evidence is at least as important as his work on the substantive criminal law. Most legal practitioners will go through many months, perhaps even years, without having to grapple with a difficult question of substantive criminal law, especially in the lower courts. Questions of procedure and evidence are another matter altogether, especially in a legislative climate which is productive of frequent, substantial amendments to criminal procedure (but not especially committed to rationalisation or consolidation). In such conditions, a sure, experienced and respected guide through the maze of the criminal procedure “code” is invaluable. The accepted “handbook” of criminal procedure in Scotland is Robert Renton and Henry Brown’s Criminal Procedure according to the Law of Scotland, or, as it is more concisely known today, Renton and Brown. Renton 37 1975 JC 30. 38 See, for examples, Khaliq v HM Advocate 1984 JC 23 on causation, and Brennan v HM Advocate 1977 JC 38 on the (non-)defence of voluntary intoxication and the plea of insanity.

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and Brown was first published in 1909.39 It went through three editions40 between then and 1972, when Sir Gerald took over as editor for the fourth edition. In 1983 the fifth edition was produced, for the first time in loose-leaf format, and following the major criminal procedure reforms of 199541 a sixth edition, also in loose-leaf, was produced.42 Loose-leaf law books present an obvious attraction for subscribers – frequently updated material – and for publishers a regular source of subscription income. For authors and editors they are a nightmare. To them they present the prospect of near-constant updating, often of the most meticulous and technical nature, as pre-existing texts are amended to take account of legislative and judicial developments, while at the same time they seek to preserve any part of the text that might have been commented upon favourably by the courts. In contrast to his Criminal Law, Sir Gerald’s work in the field of criminal procedure is one of authoritative guidance rather than major innovation – although his re-structuring of Renton and Brown to take account of the 1995 reforms was a major editorial accomplishment, and created in effect a new work. But it is no less important for all of that. Since the publication of the fifth edition of Renton and Brown, Sir Gerald has been singlehandedly responsible for the revision and updating of almost the entire work (twenty-seven chapters and more than 550 pages of text) on a quarterly or four-monthly cycle which typically involves the production of 100-150 pages of revised text. When one recalls that until recently this was all achieved against a background of a busy judicial practice (not to mention his continuing commentaries for the Scottish Criminal Case Reports), all that can be said is that for this alone Sir Gerald has earned the undying gratitude of the Scottish criminal practitioner. D. GORDON AND LEGAL EDUCATION AND SCHOLARSHIP Practitioners have reaped the benefits of Sir Gerald’s editorship of Renton and Brown. Academics and practitioners both acknowledge the ­contribution his Criminal Law has made to the development of the substantive law. 39 R W Renton and H H Brown, Criminal Procedure According to the Law of Scotland (1909). 40 The second, by G R Thomson, was published in 1928. The third, by F C Watt, assisted by D J Stevenson and J C Patterson, was published in 1956. 41 Criminal Justice (Scotland) Act 1995; Criminal Procedure (Scotland) Act 1995; Criminal Law (Consolidation) (Scotland) Act 1995. 42 The book is now available as an electronic resource via Westlaw.

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But little, if anything, has been said about his impact on legal education in Scotland. Now, this is not a claim to a major direct innovation in the teaching of criminal law in Scotland. The suggestion is rather that Gordon’s writing has indirectly contributed to a major change in the place of criminal law in the curriculum. In the first place the publication of Gordon’s Criminal Law established that there was an academic discipline there to be pursued. It is fortuitous, no doubt, that this coincided with the development of the honours LLB degree in Scottish universities. Now the study of criminal law did not have to be confined to an introduction to the major crimes and offences of the kind typically delivered to first-year law students (often, moreover, as part of a course on Scots law, as opposed to a free-standing course on criminal law). There was now a major intellectual agenda, and one that could be pursued through the vehicle of Gordon’s Criminal Law. In that sense, also, the advanced study of criminal law could be rooted in the law of Scotland, supported by comparative study as appropriate, but without the need to rely on English, American or other European texts. Advanced courses on criminal law are now taught in all of the Scottish LLB programmes, and each one of them to a greater or lesser extent is influenced by Gordon. That said, and for all its strengths, Gordon’s Criminal Law has two significant disadvantages as a student text. In purely practical terms, it has always proved dauntingly expensive for students, so much so that no Scottish law school has (at least to my knowledge) ever listed it as a required purchase for students. Less defensibly, it is also a difficult book for students, especially at the introductory level. So the publication of Criminal Law helped to create a need in the teaching of Scots criminal law which it was not designed to meet: an inexpensive, accessible student text. At the same time, its very publication served, at least for a time, to discourage the publication of any new criminal law texts. However, from the early 1980s onwards there has been a steady growth of student texts in criminal law, all of which, building upon the foundation provided by Gordon’s work, have extended the range of opinions expressed on issues of Scots criminal law. The influence of Sir Gerald is evident throughout these works, and one of the most recent is dedicated to him.43 43 P R Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2009). The authors refer to Gordon’s Criminal Law as “magnificent” (xvii). See also T H Jones and M G A Christie, Criminal Law (1992) v (noting that their book “is not intended to be a substitute for, let alone a rival of that classic, influential and highly respected text book on the criminal law written by Sheriff Gerald H. Gordon”).

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This growth has been reflected also in the publication of more detailed discursive works on a range of topics including breach of the peace,44 offences against the person,45 sexual offences,46 criminal attempts,47 criminal defences48 and self defence,49 all of which are based upon, or draw upon, Scots criminal law. It was noted above that in the ten years immediately preceding the publication of Criminal Law, the Juridical Review contained only half a dozen articles on Scots criminal law and procedure. The years 2006-2007 alone saw the publication of the same number of pieces in the same journal. It would, of course, be an exaggeration to suggest that this growth of interest in teaching, researching and writing about Scots criminal law was all directly attributable to the work of Sir Gerald Gordon. But those who have been involved in these activities, to whatever degree, would equally assert that his work has been a major impetus towards the advancement of their discipline. E. SIR GERALD GORDON: A PERSONAL APPRECIATION I first encountered Gerald Gordon in 1968. I use the word “encountered” rather than “met” since it better describes my situation at the time. I was a fairly confused, not especially confident, first-year law student. Gerald Gordon was our criminal law lecturer (but since he was not my tutor, I do not recall ever having any direct contact with him). I would like to be able to say that I was so captivated by his delivery that I resolved then and there to become a student of the criminal law. Sadly, I cannot, even though he did manage to get out of me probably my best mark of my first year (in the criminal law Easter exercise – I still have my answers and the mark, which I won’t disclose). It was not until I was asked to teach criminal law in my first academic post that I returned to the subject – a subject on which I had not read a word for more than five years. It was at that point that I discovered that what I had been told back in 1968 had stuck with me, so that even though I was now embarking on the teaching of English criminal law, what would have been a completely alien subject was in fact recognisable, and furthermore, enjoyable. 44 M G A Christie, Breach of the Peace (1990). 45 P W Ferguson, Crimes Against the Person (1990) and 2nd edn (1998). 46 C H W Gane, Sexual Offences (1992). 47 R A Duff, Criminal Attempts (1996). 48 J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006). 49 F Leverick, Killing in Self-Defence (2006).

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It was not until the mid-1980s that I got to know Sir Gerald personally, and that was when I became involved in the editing of Renton and Brown. He was then, and has remained, a generous, courteous senior colleague. Despite his great experience he was always interested in what others had to say, and always happy to advise. I have never once seen him be dismissive of anyone’s views (except from time to time the views of the appeal court). He even gave generously of his time and advice to those of us who were trying to turn the world upside down through an attempt to draft a Criminal Code,50 attending several meetings of our group and commenting on repeatedly revised drafts, even though, as he was happy to admit, he was pretty sceptical about the whole exercise. But most of all I will always recall the great energy, enthusiasm and enormous good humour that he brings to discussion of even the most complex piece of legislation or the least convincing decision of the criminal courts.

50 E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003).

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2  Corroboration and Distress: Some Crumbs from Under the Master’s Table Lord Hope of Craighead* Nobody who knows anything about the criminal law of Scotland is unaware of the name of Sir Gerald Gordon. Some, no doubt, are more aware of its significance than others. The host of accused persons who have had the privilege of appearing before him in his various judicial capacities in the Sheriff Court and the High Court of Justiciary cannot, of course, be expected to view the name of Sheriff Gordon with the same affection and admiration as the generations of law students, academics and practitioners for whom Gordon’s Criminal Law has been an unfailing source of guidance and inspiration. But those on their side of the bar rank him as one of the complete masters of this fascinating subject, up there together with Sir George Mackenzie1 and Baron Hume.2 Judges, from the lowest to the highest in our judicial hierarchy, have looked to him for guidance, and for correction too, as they seek to apply our unique system of criminal law to the ever-changing variety of factual problems with which they must deal. I am no exception. For the seven years that I presided in the High Court as Lord Justice General I was aware that my every word would be studied, and in due course acutely commented on, when the judgments that I had written or dictated appeared each month in the Scottish Criminal Case Reports, of which he was then and still is the editor. Even now, although I have been semi-detached from Scots criminal law for the past thirteen years as a consequence of my self-imposed exile south of the Border, a familiar feeling of anxiety has crept over me as I look at my text and wonder what effect it will have on the mind of the great man. It is a very great privilege, and a very real pleasure, for me to have been invited to deliver this   * A lecture delivered in honour of Sir Gerald Gordon in the Playfair Library, Old College, University of Edinburgh on 12 June 2009. The author is grateful to his judicial assistants Matthew Hancock and Christopher Stephen for their help in the preparation of this lecture.  1 G Mackenzie, The Laws and Customes of Scotland, in Matters Criminal (1678).  2 D Hume, Commentaries on the Law of Scotland, Respecting the Description and Punishment of Crimes (1797); D Hume, Commentaries on the Law of Scotland, Respecting Trial for Crimes (1800). Subsequent references are to the fourth (1844) edition of Hume’s Commentaries.

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lecture in his honour. But I doubt whether my rather indifferent performance on the bench all those years ago really qualifies me for the task. I have chosen as my subject an issue with which I grappled from time to time in the Appeal Court as I searched for a way of trying to express it in terms that would settle the problem in a way that I thought most beneficial in the public interest. Given that no one can be convicted under Scots law of a crime however trivial on the testimony of a single witness, can distress exhibited by the victim of an act of indecency that was not seen by anyone else corroborate her account of what was done to her? If the answer is that it can never do so, it must follow that private acts of indecency which are not inflicted on at least one other person too so that they can be corroborated under the Moorov doctrine,3 which leave no trace and which the perpetrator does not admit to, however distressing they may have been to the victim, are beyond the reach of the criminal law. Is this acceptable in a civilised society? My failure to provide a solution to this problem that stands up to examination was pointed out by my successor, presiding over a court of five judges that had been convened to review decisions for which I was responsible a few months after I had departed for London. The law has now been settled by reversing the coin, as it were, firmly in the other direction. My theme is that, while the law has now been explained with much greater clarity and attention to principle than I was ever able to achieve, difficult questions lurk under the surface that still merit attention. I am encouraged to venture into this sensitive arena by the fact that when Gerald Gordon was invited some sixteen years ago to contribute to a volume of essays in honour of Lord Justice General Emslie, he chose corroboration as the subject that he wanted to write about.4 I should like to begin where he left off. I think that it will not surprise him if I were to end up in much the same state of uncertainty as he did at the end of his essay. Let me say a little more about the factual background. The best example is that which is provided by the facts in Smith v Lees.5 This is the five judge case in which it was held that, while the victim’s distress could corroborate her account that she was subject to conduct which caused her distress, it could not corroborate the crucial fact that the accused had committed the act of indecency that was libelled against him. Smith and his brother-in-law had taken three girls and two boys to a camp site where they were to camp  3 Moorov v HM Advocate 1930 JC 68.   4 G H Gordon, “‘At the mouth of two witnesses’: some comments on corroboration”, in R F Hunter (ed), Justice and Crime, Essays in Honour of the Right Honourable the Lord Emslie (1993) 33.   5 1997 JC 73.

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overnight. One of the children was the complainer, who was aged thirteeen. Two tents were pitched. The boys went into one of them and the girls into the other. The brother-in-law stayed outside beside the fire. Smith decided to sleep in the girls’ tent. He lay down between the complainer and one of the other girls. Sometime later, according to her evidence, the complainer woke up and found Smith’s private member on her hand. As she lay there, pretending to be still asleep, he took hold of her hand and moved his private member up and down against it. When he stopped, she left the tent, too frightened and upset to tell the brother-in-law, who was her uncle, what had been going on. Her uncle also gave evidence. He said that the child was distressed when she came out of the tent and that she came out of it quickly. She then went to the other tent where the boys were. He was very concerned about what might have happened to her, so the next morning he took her to see his sister-in-law. The complainer gave her an account of what had happened, and the matter was reported to the police. Smith pled not guilty to a charge of lewd, indecent and libidinous behaviour which was brought against him on summary complaint. The sheriff rejected a submission of no case to answer, and there was no evidence for the defence. Having held that the child was a credible witness, the sheriff found Smith guilty as libelled. In the note which he annexed to his stated case he said that he was of the opinion that the distress that the uncle had spoken of was quite sufficient to entitle him to regard it as evidence which could confirm the child’s account of what had happened.6 But Smith’s conviction was set aside on appeal by the court of five judges because the child’s evidence of what he had done to her was not corroborated. Among the authorities that were considered by the Appeal Court was a decision for which I was responsible that the sheriff did not refer to but which, if sound, would have enabled the Crown to support the conviction. This was Stobo v HM Advocate.7 The complainer in that case was a married woman who had spent the evening with a friend. At about 1 am her friend phoned for a taxi to take her home. She was alone in the taxi. She said that the driver, having made a detour, stopped his vehicle and subjected her to various acts of indecency. He put his hand inside her trousers, fondled her private parts, pushed her face down on his erect private member and tried to force her to have oral sex with him. When she got home she telephoned the taxi company to make a complaint. The controller said that he received a telephone call from a hysterical woman who was complaining of a sexual   6 For the sheriff’s note, see 1997 SLT 690 at 692-693.   7 1994 JC 28.

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assault. She telephoned her son later that morning in a state of distress, and she was still in a distressed condition when the police called to see her shortly afterwards at her son’s request. The taxi driver was tried on indictment in the sheriff court on a charge of sexual assault. The jury found him guilty, and his case came before a court over which I was presiding. There was, of course, no eyewitness to what had happened, as the complainer was alone in the taxi. The taxi driver made no admission, so there was no other evidence that could corroborate the complainer’s account of what had happened to her other than her distress. The sheriff told the jury that they had to be satisfied that the complainer’s distress was caused by the events of the indecent assault and that it would only be if they were so satisfied that the evidence of her distress could corroborate her own account of what had happened to her. The jury’s verdict shows that they were so satisfied. The taxi driver appealed against his conviction on the ground that the sheriff’s direction to the jury was a misdirection. The advocate depute did not oppose the appeal as he accepted the defence submission that, while distress was an adminicle of evidence, it could not corroborate the complainer’s account of what was done to her. He said that a previous case which might be taken to suggest the contrary8 might need to be reconsidered. In retrospect, I ought of course to have left it there and invited my colleagues to join me in allowing the appeal. But the consequences of doing so would have been to declare, as Lord Sutherland was later to say in Smith v Lees,9 that cases of that kind faced difficulties of proof that were, according to the law of Scotland, insuperable. Contemplating the opportunities for incidents of this kind to be repeated up and down the country with impunity, I could not bring myself to do this. The complainer’s distress, I said, was circumstantial evidence. The question whether it was capable of supporting the complainer’s account depended on whether it was consistent with what she had said. This was a matter for the jury to assess according to their view of its weight and quality.10 My opinion did not, of course, escape the attention of Gerald Gordon. He began his commentary on the report of the case in the Scottish Criminal Cases Reports11 with an entirely appropriate, but carefully worded, rebuke. “It must be quite unusual”, he said: for the High Court to uphold a conviction which the Crown did not wish to support, on the authority of a case which the Crown wished to have reconsidered and  8 Horne v HM Advocate 1991 SCCR 248.   9 1997 JC 73 at 118. 10 1994 JC 28 at 34. 11 1993 SCCR 1105.

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which did not wholly and unequivocally establish the rule of law in question, since there were at least suggestions that there was more than just distress available for corroboration in the case. Moreover, the problem is one which is of some difficulty and raises fundamental questions as to the nature of corroboration, depending as it does on whether the behaviour of a witness can constitute corroboration of his evidence.

After some other observations, he concluded his commentary with these words: The instant case provides clear authority for the view that evidence does not need to be incriminatory in order to be corroborative: all that is needed is that it should be consistent with the evidence of the complainer or other eyewitness or, indeed, with a confession. There is nothing new about that statement of the law (see e.g. Hartley v HM Advocate 1979 SLT 26), but judicial descriptions of this matter are not always quite so clear (see my article in Justice and Crime (Edinburgh 1993) ed Hunter, chapter 3).

Astute readers of his commentaries would have observed that these remarks were part of a dialogue that had been going on between the commentator and the court over an extended period. In his commentary on Meredith v Lees,12 where the accused had confessed to the act of indecency with which he had been charged, he had pointed out that my opinion had failed to make it clear whether, to support a confession, the corroborating evidence “must be incriminatory, or merely a check on the confession or just consistent with it.”13 I had taken the hint and, in the context of what was needed to corroborate the complainer’s evidence, I had opted for the last of these three options. This, of course, was my undoing. With unerring accuracy, Gerald Gordon had put his finger on the flaw in my reasoning that was later to be corrected in Smith v Lees. The Lord Justice General, Lord Rodger, said that, to be valid, evidence of distress must fit into our law of corroboration as a whole. In other words, it had to be incriminatory. It must show or tend to show that what the witness said had happened did actually happen – what exactly the accused did.14 It could corroborate the complainer’s evidence that she did not consent to the accused’s conduct. But it could not support or confirm her evidence that a particular form of sexual activity occurred.15 “Our law of corroboration as a whole”, as the Lord Justice General described it, is the law that is to be found in Hume’s Commentaries, as endorsed more than seventy years ago by a court of seven judges in Morton 12 1992 SCCR 459. 13 At 465. 14 1997 JC 73 at 80. 15 Ibid at 90.

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v HM Advocate.16 It is as settled as any aspect of our criminal law can ever be. Indeed, as Lord McCluskey said in Smith v Lees, the court was not concerned in that case with issues of policy or what the law ought to be – only with what the law now is.17 But it is worth taking another look at the background. That was what Gerald Gordon did in his essay. He introduced his comments with these words:18 The requirement of corroboration is generally regarded by Scots lawyers as one of the most notable and precious features of Scots criminal law, and as something which they will defend religiously, perhaps because it is one of the last remaining links between Scots law and the Old Testament, or perhaps because it is a feature which Scots law shares with very few other legal systems, and which, in particular, it does not share with English law. It is not the purpose of this paper to suggest that the requirement is anomalous, or old-fashioned, or in need of alteration or abolition. I merely want to explore some aspects of it, and perhaps to suggest that it is not as simple or straightforward as we sometimes think, or at least say when we pride ourselves on our superiority to the English.

It is perhaps instructive to work backwards from Morton v HM Advocate. That too was a case of indecent assault. A woman was hustled into a close where she was assaulted. There were no eyewitnesses. The problem was primarily one of identification. Nobody else had seen the accused in the vicinity. The complainer picked him out at an identification parade. The only other evidence was from her brother who said that later the same day when she came home in an excited condition and told him about the assault, and from a neighbour who had heard screaming and saw a man trying to pull her away but could not identify him. Not surprisingly, the conviction was quashed because the complainer’s evidence that the accused was the man who had assaulted her was not corroborated. But doubts had been created by some earlier cases which appeared to suggest that a witness’s evidence could be corroborated by her own de recenti statement19 or by facts and circumstances that only that witness had spoken of.20 So the court took the opportunity to affirm that by the law of Scotland no person can be convicted, except where the legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged.21 The authority that was quoted for this proposition was Baron Hume.22 16 1938 JC 50. 17 1997 JC 73 at 102. 18 Gordon (n 4) at 33. 19 McLennan v HM Advocate 1928 JC 39; McCrindle v MacMillan 1930 JC 56. 20 Strathern v Lambie 1934 JC 137. 21 1938 JC 50 at 55 per the Lord Justice Clerk (Aitchison). 22 Hume, Commentaries ii, 383.

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Gerald Gordon points out in his essay that the requirement of corroboration has its origins in the Bible. He draws attention to a number of formulations of it in the Old Testament. It is to be found in the New Testament too. As Stair puts it,23 quoting from a passage in St Matthew’s Gospel24 which is obviously based on a statement in almost exactly the same terms in Deuteronomy,25 it is confirmed by the word of God, “[i]n the mouth of two or three witnesses let every word be established”. The notion that two or three are better than one is to be found in other contexts. The Prayer of St Chrystosom which concludes the Litany in the Book of Common Prayer says of Almighty God that, where two or three are gathered together in His name, He will grant their requests. The foundation for this assertion is another passage in the Gospel according to St Matthew, where Jesus said that anything that two of his disciples might ask for on earth would be done for them by his Father who was in heaven, for where two or three are gathered together in his name Jesus is there in the midst of them.26 From this it followed, said Stair, that one witness could not make sufficient probation, whatever the veracity and quality of the witness. The probation of some points required but two witnesses, while other matters of very great importance required three. These assertions, which suggest a quantitative justification for the rule, can fairly be said to have had their origin in the Scriptures. In Hume’s case, however, the position is much less clear. He gives no indication in his discussion that he was basing his assertion that no one shall in any case be convicted on the testimony of a single witness on what Stair said, let alone on what is to be found in the Bible. Nor is there anything in his Lectures27 that shows that this is where he got his ideas from as to the sufficiency of evidence, as this is not among the topics that he addressed in that context. In the introduction to his work on the criminal law he said that the main store from which he had drawn the material for his treatise was the records of the Court of Justiciary.28 His technique was to gather together, topic by topic, as many decisions bearing on the point that he could discover and to draw conclusions from them without too much detailed reasoning or analysis. Corroboration, for him, was concerned with the question of reliability. There are, it may be thought, two distinct situations that a developing legal system which is concerned to address the question of reliability ought to deal 23 Inst 4.43.1. 24 Matthew ch 18 v 16. 25 Deuteronomy ch 19 v 15. 26 Matthew ch 18 vv 19-20. 27 G C H Paton (ed), Baron David Hume’s Lectures, 1786-1822, 6 vols (1939-1958). 28 Commentaries i, 18.

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with. The first is how to treat confession evidence. An accused may confess to the crime with which he has been charged for all sorts of reasons. The only safe way of eliminating the risk that it is not genuine, it may be thought, is to require that there must be some other evidence to support it. The second is how to treat the evidence of the complainer or of an eyewitness. People make mistakes. The best way of reducing the risk of a wrongful conviction is to require that the evidence of a single witness on the crucial facts must be supported by some other evidence. Hume deals with these two problems in different places and in different ways in his Commentaries. His treatment of confession evidence concentrates mainly on the question whether it was ever proper to admit what he describes as a purely verbal and occasional confession of guilt as proof of the crime charged. He notes the disadvantages that attach to evidence of this character, both in the manner of proof and sometimes in the circumstances that give rise to them. But he concludes that it had become the custom to admit proof of circumstances of that character and to take them into consideration, as he puts it, according to the nature of the things themselves and the other evidence in confirmation of the charge.29 It is quite striking however that nowhere in his treatment of this subject is there a clear statement of what was later to be seen as a fundamental rule of Scots criminal law that no accused can be convicted on his confession alone. It was left to Burnett30 and later Dickson31 to declare that in Scotland an extrajudicial confession is not full proof of guilt but must be corroborated by other evidence – not merely that a crime has been committed by someone, but throwing suspicion on the prisoner as the perpetrator of it. In Connolly v HM Advocate32 Lord Mackintosh said that this had been settled in the law of Scotland at any rate since the time of Hume. But, as Lord Justice Clerk Thomson pointed out,33 it is uncertain whether the rule relating to confessions was derived from the rule which Hume states with much greater clarity when he is dealing with the evidence of eyewitnesses. It is obviously consistent with it, but it is rather odd that Hume was not more explicit on this point. The rule which Hume states that the evidence of a single eyewitness must be corroborated is, of course, set out in the clearest terms.34 This, he said, was grounded in universal opinion and confirmed with numerous examples 29 Commentaries ii, 333. 30 J Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (1811) 509. 31 W G Dickson, A Treatise on the Law of Evidence in Scotland, 3rd edn by P J Hamilton Grierson (1887) § 352. 32 1958 SLT 79 at 81. 33 At 80. 34 Commentaries ii, 383.

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in every period of our practice. Four unreported cases are cited as confirming the rule. They date from 1701 to 1792. In the latest of them it was openly admitted by counsel for the Crown that the testimony of a single witness was not lawful evidence whereon to convict. But, as Hume himself acknowledges, two further illustrations which he cites, both dated 1705, seem to be precedents on the other side, as the accused in each of them was convicted on the evidence of a single witness only, although the punishment was modified to take account of this. These examples tend to show that, if the rule was indeed grounded in universal opinion, this was a comparatively recent development. There may also be grounds for doubting whether opinion in favour of the rule was as universal as Hume evidently thought it was. I have inherited from my great-great-grand uncle Lord Justice Clerk Hope a copy of the fourth edition of Hume’s Commentaries, which was edited after Hume’s death in 1838 by Robert Bell and published in 1844. It has been heavily annotated by the Lord Justice Clerk. These words appear in the margin just below the passage where the rule that the evidence of a single witness must be corroborated is stated: “Wrong. It is merely a Question how far the single witness is in the opinion of a Jury to be believed.” What are we to make of this observation? The Lord Justice Clerk had been one of Hume’s students. He attended his class in Scots law in the session of 1814-1815.35 He was also one of his many admirers, regarding his services to the law of Scotland as “incomparably beyond any writer in any branch of the law of Scotland except Lord Stair”.36 But he was clearly not beyond subjecting what he had written to criticism. He was also a keen observer of how criminal law was being practised south of the Border. In contrast to Hume, who deliberately refrained from referring to the law of England,37 many of his annotations are drawn from English cases. In the context of proof by confessions, for example, he has inserted a cutting of a report in a newspaper of Baron Alderson’s summing up in a case where the evidence against the prisoner was very slight, based mainly on his own declarations. The judge told the jury that it was not for an officer to tell a prisoner who was in his custody that he was not bound to say anything. If a prisoner, acting of his own free will, chose to make a statement in connection with the charge against him, it was the officer’s duty to hear it and detail it afterwards faithfully. To the same effect, the Lord Justice Clerk said in a footnote of his own, were the reported remarks of Lord Denman and Baron Gurney that prisoners ought not be cautioned from saying anything 35 See the Catalogue of Students in Paton (ed), Lectures (n 27) vol 6 at 411. 36 HM Advocate v Grant (1848) J Shaw 17 at 92. 37 See his introduction: Commentaries i, 3-5.

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to incriminate themselves. They should be left to themselves, after being told that whatever they said might be used in evidence against them. Hope’s comment that Hume was wrong in his assertion that the testimony of a single witness was lawful evidence to convict is not supported by any reference to authority. One can only speculate as to the basis for it. But we do know that Hume’s rule was not part of the law of England. It can be assumed that the Lord Justice Clerk was well aware of this. It seems that, on this matter, he thought that the law of England should be applied here too. He was, as Lord Rodger of Earlsferry has noted elsewhere, accustomed to expounding his arguments in vigorous terms.38 But it would require more research than I have been able to conduct to discover how far he put his view on this point into practice and how many of his colleagues, if any, shared that view. In Smith v Lees the court’s attention was drawn to a number of cases from England and the Commonwealth where the question whether distress could constitute corroboration in cases of that kind had been considered.39 Lord Justice Clerk Ross said that he did not find it necessary to refer to them.40 They are not mentioned in the opinions of the other judges. Lord Justice Clerk Hope’s annotations suggest that he would not have been so disinterested in what they had to say, although it can no doubt be said that it is one thing to use comparative law for guidance where a point is not settled and quite another to use it where it is. Unfortunately we do not have a list of those cases, as the current practice of the editors of Session Cases is to list only those cases that the judges have mentioned in their opinions. Much of the law that is to be found elsewhere is, in fact, the product of statute. In South Africa, for example, the relevant statute provides that an accused may be convicted of any offence on the single evidence of any competent witness.41 Where a witness is uncorroborated cautionary rules require the decision taker to exercise particular care before accepting that evidence, as it is more likely to be false. But in 2007 the cautionary rule was modified by the South African legislature. The court may not treat the evidence of a complainant in criminal proceedings involving the commission of a sexual offence with caution on account of the nature of the offence.42 This was done on the recommendation of the South African Law Commission, following

38 Lord Rodger of Earlsferry, The Courts, The Church and The Constitution: Aspects of the Disruption of 1843 (2008) 33. 39 1997 JC 73 at 93 per the Lord Justice Clerk (Ross). 40 At 101. 41 Criminal Procedure Act No 51 of 1977 s 208. 42 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 s 60.

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similar developments in England,43 Canada44 and all Australian States and Territories,45 as they found that the cautionary rule unfairly prejudiced victims of sexual attacks.46 Caution may however be exercised where the facts of a particular case require this. As for the relevance of evidence of distress in such cases, the Supreme Court of Appeal of South Africa, following English authority,47 has held that evidence of the distressed state of the complainant is admissible to show that sexual contact took place where this is denied.48 It is, of course, difficult to make much of the way distress is dealt with in jurisdictions that do not adhere to the fundamental rule about corroboration that Hume identified. But one is perhaps entitled to question whether Hume’s views should continue to have such a strong influence on the modern law. Professor Victor Tadros, in a book review that was recently published in the SCOLAG Journal,49 has described his continuing influence as troubling. He attributes this to the fact that until quite recently Scots criminal law has suffered from a lack of serious doctrinal academic scholarship. As you would expect, he refers to Gerald Gordon’s work as the one rare shining exception prior to the book which he was reviewing, which was Criminal Defences by James Chalmers and Fiona Leverick.50 My own experience of sitting in the Judicial Committee of the Privy Council has convinced me of the wisdom of the rule that an extrajudicial confession by an accused must be corroborated. That rule does not apply in the Caribbean, which applies English law. It is hard for someone trained in the discipline that this rule has injected into police and prosecution practice in Scotland to accept that justice has been done when a defendant is found guilty of murder and sentenced to death when the only evidence that connects him with the crime is a confession which he is said to have made to the police while he is in their custody. Once they have his confession the police need look no further for corroborating evidence, and cases from those jurisdictions lack the detailed and painstaking forensic evidence which is adduced every day in the Scottish courts. It is rare to find evidence of that quality in Caribbean cases, as the prosecutor can usually get his man without it. Here is something of real value and importance which, I suggest, we must without any shadow of doubt hang on to. 43 Criminal Justice and Public Order Act 1994 s 32(1). 44 Evidence Act 2006 s 121(2). 45 Including e.g. the Crimes Act 1900 s 450C (NSW). 46 South African Law Commission, Discussion Paper on Sexual Offences: Process and Procedure (SALC DP No 102, 2002) chs 31 and 36. 47 R v Chauhan (1981) 73 Cr App R 232. 48 Case No 500/03 Hammond v The State, 3 September 2004. 49 2008 SCOLAG 230. 50 J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006).

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It is clearly far too late to question the rule about the need for a single witness to be corroborated with which Lord Justice Clerk Hope did not agree. But what about corroboration by circumstantial evidence? Hume was quite emphatic on this point. It would not be reasonable, he said, to say that the want of a second witness cannot be supplied by the other circumstances of the case.51 Indeed, he acknowledged that it was lawful also to convict in respect of circumstances only – something that he said was grounded in reason and necessity and the law and practice of all civilised countries.52 The examples which he gives of the corroboration of the evidence of a single witness do not provide much guidance as to what is needed. Hume only says that the circumstances must “confirm his testimony”, such as the accused’s sudden flight from the spot where a stabbing had taken place, blood on his clothes, his possession of a bloody instrument and so on. The last two examples satisfy the test in Smith v Lees. Blood on the accused’s clothes or his possession of a bloody instrument will show or tend to show that the stabbing that the single witness has described did actually take place and that the accused had a part in it. The act of running away is more open to question. It links the accused with the place where the incident took place but, taken by itself, does not tell one anything about what he did there. The Lord Justice General said in Smith v Lees that the answer to the question whether the complainer’s distress can be accepted as corroboration of her account of what was done to her is not to be found in the old authorities.53 That, of course, is true. But there are some straws in the wind that make one wonder whether – leaving distress aside for the moment – in order to “confirm” the witness’s testimony the circumstantial evidence must, as a rule, be in itself incriminatory or whether it is enough for the case to go to the jury that it should be consistent with that witness’s evidence. This is the question that Gerald Gordon put to me in his commentary on Meredith v Lees where the corroboration of a confession was in issue and which I attempted to answer, as to the position of the single witness, in Stobo. The issue to which Hume directed his attention was whether the evidence of the single witness could be relied upon. However high the credit and character of the witness, he said, still the law is averse to “rely” on his single word.54 This suggests that the question whether his word is “confirmed” by the circumstantial evidence may be a question of degree. The more p ­ eripheral 51 Commentaries ii, 384. 52 Commentaries ii, 385. 53 1997 JC 73 at 80. 54 Commentaries ii, 383.

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the circumstances are to the crucial facts that the single witness has spoken to, the less capable it will be of confirming his evidence as to those facts. The closer it comes to the crucial facts, the more capable it is likely to be. The nature of the issue may have a part to play in this too. In Sinclair v Clark55 Lord Justice Clerk Thomson said that the rule that an accused’s admission must be corroborated was somewhat archaic and that in modern conditions, where the admission is made in circumstances that are beyond suspicion, its merit was not always obvious. He said that what was required to elide the risk that there might be something phoney or quixotic about it must depend on the facts of the case and, in particular, the nature and character of the admission and the circumstances in which it was made.56 An indication of the same approach to what is required to confirm a single witness’s evidence is to be found in Alison, a contemporary of Hume, the quality of whose contribution to the law of Scotland is sometimes overlooked. Commenting on what he said seemed at first sight to be an extraordinary difference between the laws of England and Scotland on this point, he suggested that the difference was not all that great when regard was had to what he would have deemed insufficient, and even slighter, that had become acceptable for corroboration in cases of robbery – what we today would think of as highway robbery. The difference in practice, he said, was not so considerable as might be supposed, as in Scotland such confirming circumstances were deemed sufficient as amounting to little more than is held adequate.57 In his description of the crime of robbery he said:58 [It] is evident that, although it is undoubtedly still part of our law that a conviction for robbery, any more than any other offence, cannot take place without more than the evidence of a single witness, yet a very slender support is now deemed sufficient, if that witness is of unexceptionable character. It makes up the measure of legal evidence if such corroboration be afforded as the circumstances of the case will admit. Law does not forget that highway robbers generally select for their victim the most unattended defenceless of the people; and for the places of their outrage the most lonely and unfrequented spots.

I am reminded by that last sentence of the situation that the complainer found herself in Stobo59 when she was assaulted by the taxi driver. The purity of the law was restored by Smith v Lees.60 But sexual abusers are like highway 55 1962 JC 57 at 62. 56 See also my observations on this point in Meredith v Lees 1992 SLT 802 at 804. 57 Alison, Practice, 554. 58 Alison, Principles, 247. 59 1994 JC 28. 60 1997 JC 73.

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robbers. The places that they select for the outrages that they perpetrate on defenceless women and children – and it is almost always women and children who are their victims – are lonely and unfrequented places where what they wish to do to them will not be seen. The only corroboration that the circumstances are likely to admit is the effect of what they have done on the victim. Here too, it might perhaps be said, the law forgets the victim if it will not accept evidence of her distress as meeting the requirement because it is the best that is available. The decision in Smith v Lees came too late for Gerald Gordon to comment on it in his essay in honour of Lord Emslie. He did not say much about it in his commentary in the Scottish Criminal Cases Reports.61 He observed that it put a stop to the development which he had referred to in his commentary on McLellan v HM Advocate,62 where he said that distress had shown signs of developing, by a process of generalisation familiar to students of Scots criminal law, into a rule that distress can corroborate a complainer’s account of what happened to him or her. A few months later, commenting on Cannon v HM Advocate,63 he suggested that the time had perhaps come when we should treat the concept of distress as corroboration as a relaxation of the rules of corroboration as required in order to take account of the fact that rape, which is what that case was about, is normally committed clandestinely, rather than try to see it as a logical outcome of the law of corroboration. Alison, I think, would have agreed with this. But the corollary of that proposition, which I should have foreseen in Stobo, is that it cannot survive the logical scrutiny to which it was subjected in Smith v Lees. There are signs that a fresh look is being taken at the use of distress as corroboration in view of the fact that the crime of rape no longer requires the forcible overcoming of the victim’s will. It has been pointed out that the relationship between corroboration and an assessment of the probative value of evidence is imperfect, and that strict adherence to the rule may result in over-protection of the accused.64 A particularly difficult issue is whether, in view of what was said in Smith v Lees, it can ever corroborate mens rea. This was not usually a problem when force or the threat of force was required. But when force is not alleged and distress cannot provide the corroboration, allegations of rape that cannot be proved by other evidence may share the same fate that has been the lot of sexual assault cases. As the Lord Justice Clerk 61 1997 SCCR 139. 62 1992 SCCR 171. 63 1992 SCCR 505. 64 See M Redmayne, “Corroboration and sexual offences” 2006 JR 309 at 313-317.

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said in McKearney v HM Advocate, the de recenti distress of the complainer may tell us about her lack of consent but it is hard to see how it can tell us anything about the accused’s state of mind.65 This a complex issue, now under consideration by the Scottish Law Commission,66 which is for another day. Gerald Gordon said at the end of his essay that perhaps all that can be said is that the only firm rule about corroboration is that there must be two witnesses to prove guilt. Beyond that, and within the limits of relevance, he said, it is all a matter of circumstances. I am not sure that one can be so confident that this is so, at least where distress is in issue. It does seem that a chasm has been opened up by the court for cases of the kind that I have been discussing that is unlikely to be curable without a revision of the law of corroboration by legislation. Whether this is desirable, even if it was politically feasible,67 must be open to question for fear of what else it might lead to. One would like to think however that the last word of guidance on this long-running saga will lie, as it so often has done over so many years, in his incomparable commentaries, with the Master himself, in whose honour it has been such a privilege for me to have been allowed to deliver this lecture.

65 2004 JC 87 at para 16 per the Lord Justice Clerk (Gill). See also J Chalmers, “Distress as corroboration of mens rea” 2004 SLT (News) 141. 66 Scottish Law Commission, Discussion Paper on Rape and Other Sexual Offences (Scot Law Com DP No 131, 2006). 67 Redmayne (n 64) 317.

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3  Child Defendants and the Doctrines of the Criminal Law Andrew Ashworth* A. childhood B. children as moral agents C. the state’s response to children’s bad behaviour D. the effect of childhood on general defences to criminal liability (1) Duress (2) Provocation (3) Diminished responsibility (4) Ignorance of the law E. The effect of childhood on consent f. The effect of childhood on mens rea G. conclusions In recent years the question of the proper approach of the criminal law to child defendants has been debated extensively, both in Europe and beyond. Despite the existence of a number of international conventions, there are still considerable divergences of approach among legal systems that appear similar in some other respects. There are well-known differences between Scots law, which sets the age of criminal responsibility at eight years1 but in practice deals with the overwhelming majority of accused under the age of sixteen in Children’s Hearings and consigns those aged sixteen and over to the adult criminal courts, and the law of England and Wales, which sets the age of criminal responsibility at ten and deals with the vast majority of prosecuted children under eighteen in the youth court. Internationally, the contentious issues include how to determine whether a child is capable of understanding and participating in criminal proceedings, how to determine whether a child has sufficient capacity to be held criminally liable for what he   * The author is grateful to Heather Keating, Jonathan Herring, Ronnie Mackay and Claire McDiarmid for their comments and suggestions.   1 At the time of writing a legislative proposal to increase this to twelve was under consideration: see the Criminal Justice and Licensing (Scotland) Bill s 38.

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or she has done, and to what extent children who are tried and found guilty of offences should be subjected to different sentencing regimes from older offenders. Some of these issues will be touched upon obliquely below, but the focus of this essay is upon the interactions between the defendant’s youth and the doctrines of the criminal law. Thus the central question here concerns the effect of youth on defences such as duress, provocation, diminished responsibility and ignorance of the law, on consent, and on intention and recklessness. In view of the breadth of the field this is merely an exploratory study; but I offer it as a modest tribute to Gerald Gordon, whose ground-breaking and theoretically sophisticated works on Scots criminal law have had an influence on me and on many others beyond his native land. By way of preparation for this study, part A below examines some relevant characteristics of childhood, part B discusses the question of children as moral agents, and part C outlines some actual and possible responses to misconduct among the young. These three opening sections are merely brief discussions of complex issues, intended to sketch the background for part D on general defences, part E on consent, and part F on fault requirements. The fundamental question is whether the criminal law should be more flexible in its assessment of child defendants and, if so, how this would best be accomplished. A. CHILDHOOD The concept of childhood is as controversial as its implications.2 Even its definition is contested, since there are various purposes for which it may be defined. One might pragmatically take the age of majority (eighteen in the United Kingdom and many other countries) as the end of childhood, accepting that there may be considerable differences in “responsibility” (howsoever defined) between most twelve-year-olds and most seventeenyear-olds. For present purposes it may be sufficient to identify three major respects in which children typically exhibit features that indicate reduced culpability, as compared with adults.3 First, their cognitive abilities tend to be under-developed:4 they may have limited understanding (for example, of  2 See e.g. D Archard, Children: Rights and Childhood, 2nd edn (2004); J Fionda (ed), Legal Concepts of Childhood (2001).   3 Following F Zimring, “Toward a jurisprudence of youth violence”, in M Tonry and M Moore (eds), Youth Violence: Crime and Justice, a Review of Research, volume 24 (1998) 447-501.   4 See e.g. T Grisso and R B Schwartz, Youth on Trial (2000) 158-159, cited by the Law Commission of England and Wales’ Consultation Paper, A New Homicide Act for England and Wales? (Law Com CP No 177, 2005) para 6.81.

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the impact of their conduct on others) and, in particular, little experience of applying the understanding they do possess to new situations. Second, their emotional controls tend to be under-developed:5 this means that their responses to situations may be self-centred, and may tend to overcome any awareness of the vulnerabilities of others. Third, they tend to be more easily led than adults, being more likely to be swept along by the encouragement or “daring” of others, particularly in a group situation. Much more could be written, and has been written, about these and other typical characteristics of children. Clearly they may vary according to the chronological age of the child, the child’s maturity, and the culture and socio-economic circumstances in which the child has grown up. B. CHILDREN AS MORAL AGENTS In the light of these three typical deficiencies, how can we determine whether a particular child should be respected as a moral agent, i.e. whether her or his choices satisfy a threshold of rationality and therefore should be as determinative as the choices of an adult? It might be thought that the easiest step to take would be to assert that this should be a question not of chronological age but rather of relative maturity, to which chronological age may be an imperfect guide.6 Thus the famous Gillick test of competence to take decisions about contraception was said to require “sufficient understanding and intelligence to enable [the child] to understand fully what is proposed”, and “sufficient discretion to enable [the child] to make a wise choice in his or her interests”.7 Details of the test are further developed in the Gillick judgments and in subsequent decisions,8 and versions of it now apply quite widely across child law and medical law. There remains, however, a tension about its application to decisions to refuse treatment rather than to accept it,9 and about the fact that assessments of children’s competence are inevitably carried out by adults who may have particular views.10   5 See the evidence cited in Law Commission, A New Homicide Act (n 4) para 6.82.   6 On this, see C McDiarmid, Childhood and Crime (2007) ch 3.  7 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 184 and 187 respectively. For discussion, see M Brazier and E Cave, Medicine, Patients and the Law, 4th edn (2007) ch 15, esp 400-407 and J Herring, Medical Law and Ethics, 2nd edn (2008) 166-170 and 185-187.   8 See M Freeman, “Rethinking Gillick” (2005) 13 International Journal of Children’s Rights 201.   9 Cf the case reported in The Times, 11 November 2008 (where a girl of thirteen was determined to refuse a transplant operation). 10 For references on this and related issues, see H Keating, “The ‘responsibility’ of children in the criminal law” (2007) 19 CFLQ 183, to which I acknowledge my indebtedness. For varying assessments of the reliability of children as witnesses, see F Raitt, “Robust and raring to go: judges’ perceptions of child witnesses” (2007) 34 Journal of Law and Society 465.

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Children may express their opinions in a forthright manner, and may be able to reason logically and to draw conclusions from premises. As Bingham LJ stated in a case concerning the right of a child aged eleven to litigate on his own behalf, decision-makers should listen to the views of children affected by their decisions, but it should be borne in mind that a child:11 is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is that they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to match the probable against the possible.

Thus Lord Bingham cautioned against accepting articulate children’s views as determinative. At the age of eleven such caution may be the proper response, whereas many children at age fourteen or fifteen will have a degree of maturity that should be accorded some respect. The difficulty is that the different age limits selected by the law for different purposes do not appear to be consistent, and have no flexibility. The age of majority – the age at which a young person can vote and can enter into binding contracts – is eighteen. A young person can marry at sixteen, a decision that ought to require long-term understanding. One implication of the flexible Gillick test is that the consent of a child of fifteen may be relevant when a doctor takes decisions about the child’s “best interests”, even though in English law the age of consent to sexual activity is sixteen. In other words, Parliament regards children under that age as generally not competent to take decisions on sexual matters in their own (long-term) interests. Much more could be written about the different age thresholds in British law, but these few remarks should be enough to illustrate the nature of the problem. C. THE STATE’S RESPONSE TO CHILDREN’S BAD BEHAVIOUR How ought the State (e.g. the legislature, the children’s services and the criminal justice system) to respond to bad behaviour by children, i.e. to behaviour that would certainly constitute a criminal offence if the perpetrator were aged eighteen or over? In the discussion above12 emphasis was placed on limitations on the understanding and control possessed by children, and 11 Re S (a Minor) (Independent Representation) [1993] 2 FLR 437 at 444. For further relevant discussion, see A Cleland, “Children’s voices”, in J Scoular (ed), Family Dynamics: Contemporary Issues in Family Law (2001). 12 See parts A and B.

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on the ease with which they may be led. This would suggest that, in normative terms, the State should not expect such high standards from children as from adults, and should respond in ways that reflect the State’s obligation to assist the proper development of children and not in ways that are likely to be counter-productive or repressive.13 The State’s obligation to support the development of children by promoting the best interests of the child and attending to her or his welfare is uppermost in international instruments such as the United Nations Convention on the Rights of the Child.14 This positive obligation is heightened where criminal liability is the issue, given that this involves public censure and punishment. Two threshold tests need to be examined before a child should be held accountable in a criminal court: the test of sufficient understanding of the proceedings, and the minimum age of criminal responsibility. First, it may be contrary to human rights to hold a criminal trial of a young child in a solemn proceeding. Thus the European Court of Human Rights has twice held that the trial of a very young child in the English Crown Court is likely to violate the Article 6 right to a fair trial unless there are major amendments to the normal procedure, in order to ensure that the child is able to participate effectively in the proceedings.15 There is an obvious parallel here with the question of the fitness of a mentally disordered person to plead to the indictment. The two issues – fitness to plead on grounds of mental disorder,16 and the ability of a child to participate – came together in the Scots case of HM Advocate v S,17 where the trial of a boy of thirteen was not allowed to proceed. Lord Caplan stated that the boy “should not be expected to sit passively, like an object, while adults take exclusive control of his defence”. Thus, irrespective of the minimum age of criminal responsibility, the particular child must have sufficient understanding to be held accountable in a 13 See A von Hirsch, “Reduced penalties for juveniles: the normative dimension”, in A von Hirsch, A Ashworth and J Roberts (eds), Principled Sentencing: Readings on Theory and Policy, 3rd edn (2009) 374-382. 14 UN Convention on the Rights of the Child (1989) art 3 (“the best interests of the child shall be a primary consideration”); UN Standard Minimum Rules for the Administration of Juvenile Justice (1985) (“to further the well-being of the juvenile and her or his family”); see the excerpts and discussion in von Hirsch, Ashworth and Roberts (n 13) 355-365. 15 The Strasbourg Court’s decision in T and V v United Kingdom (2000) 30 EHRR 121 is well known, but the more powerful judgment in S C v United Kingdom (2005) 40 EHRR 226 places even greater emphasis on effective participation and understanding, and its implications are that trials of younger children ought invariably to take place in a youth court and not in the Crown Court. 16 On which now see the new s 53F of the Criminal Procedure (Scotland) Act 1995, to be inserted by the Criminal Justice and Licensing (Scotland) Bill. 17 Unreported, 9 July 1999. Available at: www.scotcourts.gov.uk/opinions/845a_99.html. The case is also discussed extensively by McDiarmid (n 6) at 59-60, 99 and 136-138.

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court of law, which means that the court proceedings should be adapted so that he or she is able to follow and to participate effectively in those proceedings, or the trial should not be allowed to proceed. The decision must depend on an assessment of the particular child, as in HM Advocate v S, and not on a set age limit. Secondly, there is the question of the minimum age for criminal responsibility – the affirmation that it is wrong and unfair to resort to the criminal law beneath a certain age, and that bad behaviour by younger children should be the concern of the social services rather than the criminal justice system. In Scots law the defence of nonage applies only under the age of eight,18 although there are live proposals to raise it to twelve;19 in the law of England and Wales the minimum age is ten.20 Although none of the international instruments specifies a minimum age of criminal responsibility, the United Kingdom has received considerable criticism from international organisations for having such low minimum ages, significantly below the minimum age in comparable countries such as France (thirteen), Germany (fourteen) and Spain (sixteen). Most recently, in October 2008, the UN Committee on the Rights of the Child set out various criticisms of the operation of youth justice in the United Kingdom, the first of which was the low ages of criminal responsibility in Scotland and in England and Wales.21 Although the minimum ages are higher in most other European countries, they all appear to have a fixed age of criminal responsibility, and do not adopt a variable age that depends on the differing degrees of understanding and maturity of children – in other words, a Gillick-type test is universally thought inappropriate for the criminal law. Yet the idea of holding a preliminary inquiry into the child defendant’s level of “responsibility” was adopted in England and Wales while the doctrine of doli incapax formed part of the law: when the defendant was aged ten to fourteen, the prosecution had to prove that he or she was aware that the conduct alleged was “seriously wrong”, and only if that was established could the case proceed to conviction. Now this 18 Criminal Procedure (Scotland) Act 1995 s 41; Chalmers and Leverick, Criminal Defences ch 9. 19 Report on Age of Criminal Responsibility (Scot Law Com No 185, 2002) and the Criminal Justice and Licensing (Scotland) Bill 2009 s 38. Cf the changes in Irish law discussed by U Kilkelly, Children’s Rights in Ireland (2008) 537. 20 Children and Young Persons Act 1963 s 44. There was provision in the Children and Young Persons Act 1969 to raise the minimum age to fourteen, but this was never brought into force. See A E Bottoms, “On the decriminalization of English juvenile courts”, in R Hood (ed), Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radzinowicz (1974) 319. 21 UN Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties under Article 44 of the Convention, Concluding Observations: Great Britain and Northern Ireland (2008). Available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/ CRC.C.GBR.CO.4.pdf.

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doctrine may well have operated in a crude and unsatisfactory manner, but as late as 1990 the government commended it as making “proper allowance for the fact that children’s understanding, knowledge and ability to reason are still developing”.22 The much-cited critique by Glanville Williams turned largely on the claim that the doctrine acted against children’s best interests by acquitting them and thereby excluding them from supportive sentences;23 however, it also saved some children from detention. The doctrine of doli incapax was a kind of developmental test, not far from the Gillick model. This is not to suggest that doli incapax should necessarily be restored,24 but it does demonstrate that despite having the virtues of speed and simplicity, a fixed age may not be the most just or only workable solution. In practice, Scots law mitigates the effect of its low minimum age through the system of Children’s Hearings, which means that very few children find themselves prosecuted in the criminal courts. The vast majority of children under sixteen are dealt with in the hybrid civil-criminal environment of the Children’s Hearings, but after their sixteenth birthday most children are tried and sentenced in the adult courts.25 The effect of this arrangement is to mitigate the effect of the low minimum age of criminal responsibility for almost all accused persons younger than sixteen, although the point of principle remains important for the 150 or so children under sixteen prosecuted in the criminal courts each year.26 In England and Wales the demise of the doctrine of doli incapax27 has left young children open to the full rigours of the criminal law from the age of ten, provided that the article 6 requirement for a fair trial is met. Finally, however, the sentencing provisions to which young offenders are subject are much attenuated, even if open to variable interpretations. In the context of England and Wales, the Criminal Justice and Immigration Act 2008 states that, when sentencing a person under eighteen, a court must have regard to (a) the principal aim of the youth justice system, which is the 22 Home Office, Crime, Justice and Protecting the Public (1990) para 8.4. 23 G Williams, “The Criminal Responsibility of Children” [1954] Crim LR 493, quoted by e.g. Lord Lowry in C v DPP [1996] 1 AC 1. 24 The House of Lords has recently confirmed that the whole doctrine – the presumption and the defence, insofar as they differed – was abolished by s 34 of the Crime and Disorder Act 1998: R v J T B [2009] UKHL 20, on which see F Bennion, “Mens rea and defendants below the age of discretion” [2009] Crim LR 757. 25 At the time of writing, two specialist youth courts dealing with sixteen- and seventeen-year-olds were operating in Scotland as a pilot scheme. No decision has yet been taken on whether or not to extend their operation, despite an evaluation having reported in 2006: G McIvor et al, Evaluation of the Airdrie and Hamilton Youth Court Pilots (2006). 26 Chalmers and Leverick, Criminal Defences para 9.02. 27 See n 24 above and accompanying text.

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prevention of offending by children and young people; and (b) the welfare of the offender. The Act also required the court to have regard to (c) four other purposes of sentencing, notably punishment, reform and rehabilitation, protection of the public, and reparation to those affected by the offence.28 However, this provision has not been brought into force – probably because of the argument that it would exclude deterrence as a lawful purpose when sentencing young offenders29 – and this failure to implement the statute is regrettable. A first offender pleading guilty in England and Wales is normally, unless the offence is very serious, made subject to a referral order, which places the child in the hands of a Youth Offending Team for three to twelve months. A child aged between twelve and fourteen cannot be sentenced to deprivation of liberty unless he or she is a “persistent offender”; that restriction does not apply to those aged fifteen, sixteen or seventeen, but the normal maximum custodial sentence for any offender under eighteen is two years. However, despite the reduced maxima for young offenders, England and Wales uses custody for young offenders at a rate that is internationally very high, and well beyond that of most other European countries.30 D. THE EFFECT OF CHILDHOOD ON GENERAL DEFENCES TO CRIMINAL LIABILITY If the defendant is a child under eighteen, what should be the effect of her or his youth on the normal requirements of a defence or partial defence to criminal liability? Before considering the answers to this question in the context of duress, provocation, diminished responsibility and ignorance of the law, we may reflect on the rationale for defences of this kind. The first three are predominantly excusing conditions, and, according to John Gardner, the gist of such excuses is whether the defendant lived up to society’s expectations in the normative sense: did this person exhibit as much self-restraint, ­resilience, and so on “as we have a right to demand of someone 28 Criminal Justice and Immigration Act 2008 s 9, inserting s 142A into the Criminal Justice Act 2003; see now Sentencing Guidelines Council, Overarching Principles: Sentencing Youths (2009). 29 Criminal Justice Act 2003 s 142 includes the same list of sentencing purposes for adults, plus deterrence. The Canadian legislation, like the unimplemented s 142A, has a list of sentencing purposes for young offenders that omits deterrence (which is on the list of purposes for sentencing adults), and the Supreme Court of Canada decided in R v B W P [2006] SCC 27 that the implication is that deterrence is not a lawful purpose when passing sentence on a young offender. 30 The UN Committee on the Rights of the Child pointed out the high number of children deprived of liberty in England and Wales, suggesting that detention is not always applied as a measure of last resort, as international conventions require: see the UN Committee’s Report (n 21) para 77(c).

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in her situation”?31 Gardner discusses the problem of those who may lack the capacity to measure up to society’s expectations, and his various formulations of the “normative expectations” approach to excuses are consistent with a lowering of expectations for young people beneath a certain age, for the reasons given in part B above. He discusses “normative expectations” in terms of the roles people fulfil, and so argues that the law should expect teenagers to have the self-control, steadfastness and knowledge that “they ought to have if they are fit to call themselves proper, self-respecting teenagers”.32 Whether reference to the “role” of being a teenager is the most illuminating way of expressing the point may be doubted; but Gardner is surely right to insist that the question of what the law should expect of children and/or teenagers is a normative question that should be informed by the characteristics set out in part A above. To some extent, he observes, it may not be morally unacceptable for a teenager to be more “impulsive, passionate, heedless”33 than we would expect of an adult. In the light of this, what is the law’s proper approach to excusatory defences that may be raised by young defendants? (1) Duress Duress is a general defence to criminal liability in English law. In essence, the defence is available where a person acts under threats of death or serious harm to self or family, in circumstances in which a person of reasonable firmness would give way and to which the person had not contributed by joining a gang that used violence.34 The test of the “person of reasonable firmness” may be modified in response to certain conditions, two of which are youth and clinical mental disorder (as held in Bowen).35 Thus it is integral to the law of duress, as it has developed in English common law, that less firmness and control is expected of a child than of an adult. This reflects the fact that children tend to have under-developed controls, as described in part A above. It seems that the test varies according to chronological age rather than the degree of maturity of the given child – i.e. the test would be “a child of fourteen of reasonable firmness” – but the inclusion of clinical mental disorder as a variable that may be taken into account leaves room for the 31 J Gardner, “The gist of excuses”, in Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007) 121 at 124. 32 Gardner (n 31) 170. 33 Gardner (n 31) 170. 34 See Ashworth, Principles of Criminal Law 206-209. 35 [1996] 2 Cr App R 157.

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argument that, where there is evidence that a particular child is less mature than normal for her or his age, the test should be lowered to account for the reduced level of maturity. A major problem for this analysis is the rule of English law that the defence of duress is unavailable in cases of murder or attempted murder.36 This means that where a child is subjected to duress in order to make him or her participate in a killing, this defence cannot apply at all. Thus in Wilson37 a boy of thirteen helped his father to kill a neighbour, by fetching an axe at the father’s request and by joining in the violence, striking the victim’s head with a metal pole. The boy’s evidence suggested that he was not provoked (he denied loss of control) and that he was not suffering from diminished responsibility (he said that he knew what he was doing, and may even have encouraged his father to make the attack). Duress being unavailable, the essence of the defence was that the boy did not intend to cause death or really serious harm, since he was being “swept along” by his father’s uncontrolled aggression and was therefore incapable of forming the necessary intent. Neither the trial judge nor the Court of Appeal found this denial of intent convincing, and the murder conviction was upheld. We will return to this case below, but two matters require discussion at this stage. First, if the defence of duress had been available on the murder charge, there was probably sufficient evidence for it to be left to the jury. It might be said that, when the father was already involved in a violent attack, his command to his son to fetch the axe implied a threat of serious harm if he did not: the son’s evidence was that he was too frightened of his father to disobey. According to Bowen, the applicable standard would be that of a thirteenyear-old child of reasonable firmness. So the defence might have succeeded, in which case the boy would have been acquitted entirely. Secondly, it is unclear whether English law allows a simple defence of “no mens rea” when its effect is to circumvent the limitations on a general defence. If the essence of the defence was that the boy lacked mens rea because he was “swept along” by his father’s aggression, could the judge deem such a defence to fall within (1) duress or (2) provocation and thus insist on applying the tests of the appropriate defence to them? One decision says not: Clarke,38 where the defendant, charged with shoplifting, argued that she took the relevant articles in a fit of absent-mindedness brought on by depression. The trial judge ruled that this had to stand or fall as a defence of insanity, but the Court 36 R v Howe [1987] AC 417; R v Gotts [1992] 2 AC 412. 37 [2007] EWCA Crim 1251. 38 (1972) 56 Cr App R 225.

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of Appeal reversed this and held that a plea of lack of intention is open to those who fall outside the M’Naghten rules39 because they retain the power of reasoning but in moments of confusion or absent-mindedness fail to use their powers to the full. If this remains good law, it suggests that a plea of lack of intent grounded on the evidence that the boy was “swept along” by his father’s aggression should have been put before the jury. The defence of duress being unavailable on a murder charge, there appeared to be nothing to prevent a straightforward argument of lack of intent. Indeed, since the Woollin formula is that, where a person foresees the forbidden consequence as virtually certain, the jury is only “entitled”40 to find intention, this may be an instance where a jury might decide not to exercise its entitlement. In its consultation paper on homicide, the Law Commission of England and Wales demonstrated its consciousness of these issues by raising two questions for consultation. First, it recognised as a “potential injustice” the inability of juveniles to argue duress in a murder case:41 Capacity to withstand duress is increased with maturity and it would be unjust to expect the same level of maturity from a twelve-year-old as from an adult. Bowen also states that youth is a relevant characteristic for the purpose of whether or not the defendant could have been expected to resist the pressure of a threat in cases other than murder. A ten-year-old whose moral character is not fully formed should not be expected in all the circumstances to resist the temptation to kill in order to avert a threat to himself.

The Commission consulted on the idea of a special provision for duress affecting juveniles and young persons. The Commission’s proposals in this regard appear to have met with little enthusiasm from respondents,42 but the Commission did go on to recommend that duress should become a defence to murder, and that youth should remain a relevant factor in deciding how a reasonable person would have responded to the threats. Despite the Commission’s proposed reversal of the burden of proof,43 this would be an advance on the position in Wilson, where the boy could not argue duress at all. The second question raised by the English Law Commission was whether the law should go further and provide a partial defence of developmental immaturity, which would prevent a conviction for murder (or for first-degree 39 Which govern the defence of insanity in English law: see M’Naghten’s Case (1843) 10 Cl and Fin 200. 40 R v Woollin [1999] 1 AC 82, on which see Ashworth, Principles of Criminal Law 173-177. 41 Law Commission, A New Homicide Act (n 4) para 7.72. 42 Law Commission, Report on Murder, Manslaughter and Infanticide (Law Com 304, 2006) para 6.142. 43 On which, see A Ashworth, “Principles, pragmatism and the Law Commission’s recommendations on homicide law reform” [2007] Crim LR 333 at 340-342.

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murder)44 for any killing in which a child was involved. Put another way, the distinction between murder and manslaughter would be abolished for offenders under eighteen: there would be a single offence, perhaps termed “culpable homicide”, with sentencing at the court’s discretion:45 The argument in favour of this solution is that it may be hard to tell whether very young offenders had a proper appreciation of the moral significance of their actions, in a way that engages the fine distinctions between murder and manslaughter.

This particular argument relates specifically to “very young offenders”, in respect of whom it is surely compelling; but there are those who would oppose its application all the way up to the eighteenth birthday, which raises again the appropriate chronological dividing line between young offender and adult. In the end, the Law Commission decided not to pursue this approach, and opted instead for an enlarged doctrine of diminished responsibility (described in (3) below). In relation to the Scots defence of coercion, there seems to be little doubt that the standard of the “ordinary sober person of reasonable firmness” is to be modified for child accused. Sir Gerald Gordon noted a passage from Anderson which refers to threats “of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused”,46 although he made no comment on the reference to age and sex. The appeal court in Cochrane v HM Advocate47 was more specific, holding that:48 The test does not ... apply a single standard to all cases. It recognises that what may reasonably be required of ordinary people will depend on their age; a child cannot be expected to react like an adult.

However, that case did not involve a young accused. More uncertain is the question of whether Scots law would admit coercion as a defence to murder. The point remains without authority, which has the probable benefit that if 44 The Law Commission recommended the creation of a three-tier structure for the law of homicide: offences of first-degree murder, second-degree murder and manslaughter. Only first-degree murder would attract a mandatory life sentence (Law Commission, A New Homicide Act (n 4) para 2.23). 45 Law Commission, A New Homicide Act (n 4) para 6.87. 46 G H Gordon, The Criminal Law of Scotland, 2nd edn (1978) para 13.25, citing A M Anderson, The Criminal Law of Scotland, 2nd edn (1904) 16. This passage is omitted from the third edition of Gordon, by which time there was more reported case law on the coercion defence (specifically Cochrane v HM Advocate 2001 SCCR 655 and Thomson v HM Advocate 1983 JC 69). 47 2001 SCCR 655. 48 Para 21.

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a Scots court were confronted with a case such as Wilson it would be able to consider the justice of the matter in the round.49 (2) Provocation Leaving the details aside, we may say that the partial defence of provocation is characterised by two factors: (1) an uncontrolled reaction to a perceived wrong, (2) in circumstances where a reasonable person might also have been provoked.50 The second factor establishes an objective standard: we are entitled to expect a reasonable standard of self-control from citizens, even in the face of gross provocation. The standard required by English law is lowered in the case of young defendants, however. The leading case of DPP v Camplin51 involved a boy of fifteen who reacted to taunting by a man who had raped him by taking up a chapati pan and striking the man on the head, killing him. In the House of Lords, Lord Diplock held that the proper test was that of the reasonable fifteen-year-old confronted with that situation. Lord Diplock accepted that youth has “its effects on temperament as well as physique”, and held that “to require old heads upon young shoulders is inconsistent with the law’s compassion to human infirmity, to which Sir Michael Foster ascribed the law of provocation more than two centuries ago”.52 Thus, the Camplin decision implies that the State is not entitled to expect as much self-control from children as from adults,53 and indeed that this applies at the age of fifteen, rather than being restricted to the ten to fourteen age group as the doctrine of doli incapax was. It requires an assessment not of the individual defendant but of the standard to be expected of a reasonable child of the defendant’s age. On the other hand, provocation is only a partial defence: since it does not result in an acquittal, any adjustment to reflect culpability can be made at the sentencing stage. The subsequent modification 49 See n 37 above and accompanying text for discussion of Wilson. For general discussion of how Scots law should deal with coercion defences in murder cases, see Gordon, Criminal Law, at para 13.29; Chalmers and Leverick, Criminal Defences paras 5.27-5.31. 50 Gordon, Criminal Law ch 25; Chalmers and Leverick, Criminal Defences ch 10; Ashworth, Principles of Criminal Law ch 7. The partial defence of provocation will be replaced in England and Wales by one of “loss of control” when the Coroners and Justice Act 2009 comes into force on 4 Oct 2010. Although there will be some significant changes to the defence (primarily in relation to the qualifying triggers), these do not affect the discussion that follows. The defence retains the equivalent of a “reasonable person” test, in that it is available only if “a person of D’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or in a similar way to D” (s 54(1)(c)). 51 [1978] AC 705. 52 At 717. 53 See J Gardner and T Macklem, “Provocation and pluralism” (2001) 64 MLR 815 at 826.

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and then restoration of the objective test of provocation in English law54 left the concession for age undisturbed. The law is therefore that the only factor that may reduce the standard of self-control expected of a person is youth;55 other factors such as mental disturbance do not affect society’s expectations in this context, and in such cases diminished responsibility is the appropriate partial defence. In Scots law the partial defence of provocation is much narrower: the above point appears not to have arisen for decision, and it was not specifically discussed by Sir Gerald Gordon.56 However, in the case of Drury v HM Advocate57 the appeal court applied the standard of what might be expected of an ordinary person; and, in their analysis of this and related cases (such as the coercion case of Cochrane),58 James Chalmers and Fiona Leverick conclude that Scots law would most naturally adopt the test of “the ordinary person of the sex and age of the accused”,59 similar to that developed in English law on this point, in the rare cases where it might be relevant. (3) Diminished responsibility It appears that the current English law on diminished responsibility does not include any special reference to children. No reported cases appear to have discussed the point, and the re-worded section 2 of the Homicide Act 1957 suggests that few children could plead that their ability to understand the conduct, to form a rational judgment or to exercise self-control was substantially impaired by a “recognised medical condition”, since that phrase is only likely to include degrees of immaturity that are abnormal.60 The Law Commission for England and Wales had recommended that “developmental immaturity” should become a separate ground for diminished responsibility, where the offender was under eighteen at the time of the killing. This would have ensured that children were not convicted of murder (but only of a lesser offence) where there was evidence of a developmental immaturity that substantially impaired the child’s mental functioning, in terms of the capacity 54 In R v Smith (Morgan) [2001] 1 AC 146 and in Attorney General for Jersey v Holley [2005] 2 AC 580. 55 Some statements of the law suggest that gender is another factor that should lead to a variation in the expected standard, but the implications of this appear not to have been worked through. 56 Gordon, Criminal Law does not deal specifically with the relevance of age to the law on provocation (see ch 25). 57 2001 SLT 1013. 58 Discussed in n 47 and accompanying text. 59 Chalmers and Leverick, Criminal Defences paras 10.18-10.19. 60 Homicide Act 1957 s 2 as substituted by s 52 of the Coroners and Justice Act 2009.

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to understand conduct, form a rational judgment, or exercise control.61 Thus, having earlier decided against a partial defence for all children that would reduce their offences from (first-degree) murder,62 the Law Commission recommended a partial defence that would depend on evidence from psychiatrists or psychologists relating to the developmental immaturity of the particular child. This approach, flexible as to age and dependent on an assessment of each child, would be a significant step forward. It is rather alarming, however, to find the Law Commission stating that “some ten-year-old killers may be sufficiently advanced in their judgement and understanding that such a conviction would be fair”.63 This is extremely controversial, and there are certainly some in the United Kingdom and in wider Europe who would reject this proposition vigorously.64 In the context of the reverse burden of proof – i.e. the defendant must satisfy the court that he or she was suffering from developmental immaturity of the required degree and effects65 – the suggestion is even more controversial and inappropriate. In the case of Wilson,66 no defence of diminished responsibility was raised and it seems to have been assumed on all sides that it was not viable. Some of the points made about the boy’s behaviour and evidence, however, may 61 Law Commission, Murder, Manslaughter and Infanticide (n 42) paras 5.125-5.137; see also the arguments in Law Commission, A New Homicide Act (n 4) paras 6.75-6.76. 62 Law Commission, A New Homicide Act (n 4) paras 6.86-6.98; see n 44 above and accompanying text. It must be said, however, that the argument ultimately advanced by the Law Commission for that conclusion is weak and unpersuasive: “Suppose that anyone under the age of eighteen who intentionally kills is guilty of culpable homicide, not murder or manslaughter. Under this approach someone who kills intentionally on his or her eighteenth birthday can be convicted of first degree murder and will receive the mandatory life penalty, but had that person committed an identical killing on the day before, they could have been convicted only of culpable homicide. That seems wrong.” (para 6.96). Similar consequences flow from all age limits recognised by the law, however. Different sentences are available for offenders when they attain certain ages; none of them was available the day before. A person is old enough to consent to sex at sixteen, but was not the day before, even though his wisdom has probably not increased materially overnight. And so on. 63 Law Commission, Murder, Manslaughter and Infanticide (n 42) para 5.130. 64 The Law Commission footnotes a contrary opinion (ibid para 5.130 n 91), but fails to scrutinise the reasoning of an assertion by the Police Federation on which its own statement appears to be based. When commenting on these matters in his Report on Visit to United Kingdom (Comm DH 6, 2005) at para 105, the European Commissioner for Human Rights did not hold back: “I have extreme difficulty in accepting that a child of twelve or thirteen can be criminally culpable for his actions, in the same sense as an adult. I do not mean to deny that extreme measures may need to be taken, both to punish the act and to attempt to correct whatever it is that has clearly gone so drastically wrong. From this, however, to considering that a child of twelve can measure with the full consciousness of an adult the nature and consequences of their actions is, in my view, an excessive leap.” 65 For an assessment, see A Ashworth, “Four threats to the presumption of innocence” (2006) 10 International Journal of Evidence and Proof 241. 66 See n 37 above and accompanying text.

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have justified further exploration. Two examples of this are: (1) that much emphasis was placed on the fact that the boy lied repeatedly when questioned by the police – this was assumed to be evidence of malice and knowledge of wrongdoing, whereas it may have stemmed from a fear of his father or from an immature and distorted understanding of the situation; and (2) that, insofar as there was any substance in defence counsel’s argument that the boy participated in the killing because he was swept along or carried away by his father’s uncontrolled aggression, this can be linked to the three propositions about childhood development set out above – that children are less culpable than adults because of their under-developed cognitive abilities and emotional controls, and because they are easily led. Whether a partial defence of diminished responsibility could have been put forward on the basis of what was then “arrested or retarded development of mind” is difficult to assess, but the boy in this case was only thirteen and it seems manifestly wrong to judge him by the standards of an adult. In Scots law there appears to have been little discussion of the specific problem of the diminished responsibility of children.67 However, the re-statement of the test of diminished responsibility in Galbraith v HM Advocate,68 in terms of an “abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts”,69 leaves open the possibility that Scots law could encompass cases of developmental immaturity, particularly if Lord Rodger’s reference to “a normal person” were construed as a reference to “a normal adult”. The Scottish Law Commission, reporting in 2004, appears not to have devoted separate consideration to the application of diminished responsibility to young accused persons, and there is no discussion of developmental immaturity as a ground for the verdict.70 (4) Ignorance of the law Knowledge of the criminal law is generally assumed in English law, and (save in special circumstances) there is no defence of ignorantia juris.71 It is one 67 The point is not mentioned in the relevant chapter of Gordon, Criminal Law (ch 11). 68 2002 JC 1. 69 Para 54. 70 Report on Insanity and Diminished Responsibility (Scot Law Com No 195, 2004) part 3. At the time of writing, following the recommendations of the Scottish Law Commission, the defence of diminished responsibility was about to be put on a statutory footing, with the Criminal Justice and Licensing (Scotland) Bill inserting a new s 51B into the Criminal Procedure (Scotland) Act 1995. For the most part, however, this simply codifies the law as it stood in Galbraith and, as in the Commission’s report, there is no mention specifically of the role of youth. 71 Ashworth, Principles of Criminal Law 219-224.

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thing to maintain, however, that all adults ought to be sufficiently aware of the criminal law to be able to conduct their lives without transgressing it; it is quite another thing to suggest that it is right to impose the same burden on children, and to make the same assumptions for them. It may be right to assume that they know that certain core wrongs are criminal – although it should be borne in mind that the doctrine of doli incapax presumed the opposite until the age of fourteen unless the prosecution could establish that the child knew the act was seriously wrong. But many children, particularly younger children, may not know enough about the reach of the criminal law to be able to avoid conflict with it. Thus Brooke LJ held that a prohibition in an anti-social behaviour order that required a boy of fourteen not to commit any criminal offences was not only too wide but also demanded too much of a child of that age as he “might well not know what was a criminal offence and what was not”.72 Similarly, one might ask how many children of fourteen and fifteen know that any consensual kissing or intimate touching of each other is an offence, even if they know that sexual penetration is criminal. Thus it can be argued that the ignorantia juris principle should be modified in its application to children, by asking whether it may properly be expected that a reasonable child of the defendant’s age should know that certain conduct is criminal. No English decision appears to have so held. In Scots law the same general ignorantia juris principle is maintained, Gordon rationalising it on the basis of a general duty to know the law,73 and Chalmers and Leverick discussing a number of supporting arguments, including the general expectation that people should know the law.74 If it is justifiable for the State to expect citizens to know the law – and this is not to neglect the State’s own duty to ensure due promulgation and fair notice of criminal laws – the question is whether this expectation properly extends to children. Fairness surely requires a variable level of expectation, which would, in effect, allow a defence if the ordinary thirteen-year-old or ordinary fifteen-year-old should not reasonably be expected to be aware of the particular legal prohibition. Even that concession might be insufficient if the particular child was conspicuously more or less mature than the average child of her or his age. It is suggested that there is nothing in Scots law or in English law to prevent a court from recognising a defence of ignorance of the law for a child in appropriate circumstances.

72 R (on application of W) v Director of Public Prosecutions [2005] EWHC Admin 1333 at para 8. 73 Gordon, Criminal Law para 9.20. 74 Chalmers and Leverick, Criminal Defences paras 13.03-13.08.

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E. THE EFFECT OF CHILDHOOD ON CONSENT We now broaden the discussion, extending beyond the criminal liability of children to consider the involvement of children in conduct to which they consent. When is such consent valid and effective, and when not? We focus here on offences against the person and sexual offences. The English law on offences against the person generally draws the line at common assault: a person can consent to acts against him or her that amount to common assault, but cannot validly consent to more serious violence, i.e. to an assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, or to wounding or grievous bodily harm. The law is usually stated in relation to adults, which leaves open the extent to which children may validly consent to acts amounting to common assault. It was established in Burrell v Harmer75 that the consent of boys aged twelve and thirteen could not prevent the conviction of a tattooist for assault occasioning actual bodily harm, when the tattoos he had engraved on the boys’ arms with their consent became inflamed and swollen. The Divisional Court appears to have held that “if a child under the age of understanding was unable to appreciate the nature of an act, apparent consent to it was no consent at all”.76 This way of putting the matter is unsatisfactory: the boys probably did appreciate the nature of what was being done when they were tattooed. If the argument is that they failed to realise the possible consequence that their arms would become inflamed and swollen, that might indicate that their consent would have been valid if no ill consequences had ensued. Surely a better approach is to focus on the particular child’s ability to understand the possible consequences of certain treatment. In the event, the legislature went further and the Tattooing of Minors Act 1969 prohibits the application of tattoos to anyone under eighteen. On a broader canvas, English law recognises various exceptions to its rule that consent can only negative conviction for common assault and not for more serious offences. These exceptions pertain to “properly conducted games and sports ... reasonable surgical interference, dangerous exhibitions, etc”.77 Since that statement was made, a further exceptional category has been recognised which is relevant here. In the case of Jones, Campbell et al78 the six defendants had seized another pupil from their school and tossed him into 75 [1967] Crim LR 169. 76 At 169. It must be said that the report of this decision is extremely brief. 77 Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 at 719. 78 (1986) 83 Cr App R 375.

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the air “some 9 or 10 feet”79 three times, allowing him to fall on to grass each time. He suffered a ruptured spleen, which had to be removed at hospital. They also seized another pupil and threw him into the air in a similar fashion, and his arm fractured on landing. The essence of their defence to charges of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861, was that “the whole escapade was a joke and that they had no intention of causing their victims any serious harm, though they anticipated that they might get the odd bruise, as boys do in playground roughness”.80 They also said that they thought their victims were consenting, even though they protested, because such protests were “common form”.81 The trial judge held that these claims, even if true, disclosed no defence. The Court of Appeal disagreed, finding authority for “another exception to the general rule” in “cases of rough and undisciplined sport or play, where there is no anger and no intention to cause bodily harm”.82 This exception has been applied to adults subsequently,83 but what is of interest in the present context is that no point appears to have been taken in Jones, Campbell et al about the ages of the boys involved. Of the six defendants, one was aged seventeen, three were sixteen, one was fifteen and one fourteen. More importantly, the two victims were aged fourteen. This ought to have implications for the validity of their apparent consent, and/or for the defendants’ alleged belief in their consent. Can a boy of fourteen validly consent to a risk of serious bodily harm? The answer must be in the affirmative if we are considering an organised sport such as rugby, soccer or hockey; but why should it be so for mere “horseplay”? It is not clear on what ground this additional exception is founded. The justifications seem to stem from Sir Michael Foster’s reference to “manly diversions [intended] to give strength, skill and activity”84 and to make people fit to fight for their country, but whether the dangerous and ill-disciplined events in this case can be brought within such a rationale must be doubted. True it may be that Foster and others who support this exception have always excluded cases where there is an intention to cause serious harm, thus confining the exception to cases where there is merely a risk of serious harm. However, it is one thing to question the sentence of six 79 At 377. 80 At 377. 81 At 377. 82 At 378, quoting with approval from the judgment of Swift J in R v Donovan [1934] 2 KB 498 at 508. 83 See particularly R v Aitken (1992) 95 Cr App R 304. 84 M Foster, Crown Law, 3rd edn (1762) 260. Foster’s examples were “cudgels, foils and wrestling” among friends.

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months’ youth custody imposed by the trial judge on the first defendant, who was the oldest of the group; it is quite another to suggest that such a broad and poorly-defined exception to the “no consent” rule should have a rightful place in English law. It appears that Scots law finds no place for a “horseplay” exception. Gordon’s statement of the general rule that “consent is a good defence, provided the accused did not act with intent to cause any bodily harm”,85 would allow the defence in cases like Jones, Campbell et al because there was no intent, only recklessness. Gordon goes on to state that “where the prime intention is not to injure but to engage in a sporting contest with recognised rules, presumably for reward or prestige, there is no evil intent and so no assault”.86 It therefore seems that “horseplay” would not be included in this exception, since it is not a sport with recognised rules, even though such cases do not typically involve an intention to injure. Interestingly, the second edition of Gordon goes on to state that “where the victim is incapable of giving true consent any apparent consent will be inoperative. The position of children and persons of weak intellect raises difficulties in this connection.”87 This brings us back to the facts of Jones, Campbell et al, and to the questions (1)  whether an ordinary boy of fourteen should be able to consent to the risk of serious harm resulting from “birthday bumps” or other rough play, not least when he cannot consent to being kissed or touched sexually; and (2) whether the older boys’ belief in the consent of the boys of fourteen was credible. Turning to sexual activity, the age of consent is sixteen and there are no exceptions to this. This was one of several controversial issues during the passage of the English legislation that became the Sexual Offences Act 2003.88 The offences against children are broadly drafted, in consequence of which the government assured critics that the Crown Prosecution Service would not bring prosecutions for minor consensual touchings and so on between children. This reliance on prosecutorial discretion is unsatisfactory, as are various other features of the 2003 Act. One is the approach taken in cases where two children are involved: the law is aimed chiefly at adults who take advantage of children sexually, but section 13 of the Act provides only that where the defendant is under eighteen the maximum penalty is lowered to five years’ detention rather than the maximum of life imprisonment for adults. 85 Gordon, Criminal Law para 29.39. 86 Gordon, Criminal Law para 29.42, citing Smart v HM Advocate 1975 JC 30. 87 Gordon, Criminal Law, 2nd edn (n 46) para 29.43. The passage is omitted from the third edition of Gordon, which cites the provisions of the Mental Incapacity Act 2005 (Gordon, Criminal Law para 29.43). 88 Part 1 of the Act, which creates sexual offences, applies only to England and Wales.

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That provision announces a less severe view of sexual offences committed by young defendants. It is certainly true that some youths can bully other children into sexual activities that are not in their interests at all,89 but the most difficult cases are those where two children of fourteen or fifteen have consensual intercourse. The law clearly states that neither of them can validly consent to this conduct, and it does so for good reasons.90 Children under sixteen are assumed not to have sufficient awareness of the long-term significance of sexual acts, and so their actual consent is deemed to be insufficiently well informed to count.91 Yet from another point of view the law assumes that the children are sufficiently responsible to be held criminally liable for the offence of sexual activity with a child – no worries here about their awareness of the significance of what they have done. Thus, in the recent leading case of G,92 the House of Lords upheld the conviction of a boy of fifteen for rape of a child under thirteen, even though the basis of his plea was that the girl had told him that she was also fifteen and had consented. This case was complicated by the fact that the girl was actually twelve, and the offence of rape of a child under thirteen has strict liability as to age. More to the point is the fact that, had the girl been fifteen (as she stated), both children would have committed the offence of sexual activity with a child. It is unlikely that they would have been prosecuted (this discretionary element in the English system has already been criticised); but, if prosecuted, they would almost certainly have been convicted. Thus at the age of fifteen a child cannot give valid consent to sexual activity but can be convicted of sexual activity with another child, a position that accepts the social wrongness of under-age sexual activity but regards the child as sufficiently responsible to be held guilty. The social condemnation of all sexual intercourse under the age of sixteen is maintained, even if both parties are Gillick-competent and consent enthusiastically. The only concession is the curious rule in Tyrrell,93 which holds that, because the purpose of such legislation is to protect girls against themselves, 89 This is a possible analysis of the facts in Jones, Campbell et al (see n 78 and the accompanying text): the older boys seemed to strike fear in the younger pupils. 90 See Baroness Hale in R v G [2008] UKHL 37, [2009] 1 AC 92 at paras 48-54, esp at para 49: “anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do”. 91 Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences (2000) para 3.5.7. 92 R v G [2008] UKHL 37, [2009] 1 AC 92. The case should be distinguished from the House of Lords decision on recklessness of the same name (R v G [2004] 1 AC 1034) discussed in n 106 below and the accompanying text. 93 [1894] 1 QB 710. See M Bohlander, “The Sexual Offences Act 2003 and the Tyrrell principle: criminalising the victims?” [2005] Crim LR 701.

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it should not be possible to convict a girl under sixteen of complicity in an offence of sexual activity with her, no matter how enthusiastic she was at the time. The Sexual Offences Act 2003 does not deal expressly with this point, but the Act makes the offence of sexual activity gender-neutral and so it is no longer accurate to refer to protecting girls against themselves. The purpose of the legislation is to protect children from adults and to protect children from children (including themselves). It may still be contrary to Tyrrell to convict a girl of twelve of aiding and abetting rape of a child by the boy of fifteen whom she encouraged (to adapt the basis of plea in the case of G), but would it be contrary to Tyrrell to convict a fourteen-year-old who sexually penetrated another fourteen-year-old, both of them consenting in fact, of (1)  sexual activity with a child or of (2) aiding, abetting, counselling or procuring sexual activity with a child? In the absence of evidence of exploitation or dominance, and assuming that the matter goes to court,94 it seems inconsistent to convict one fourteen-year-old and excuse the other, when the basis for doing so lies in the same issues of age, understanding, discretion and self-control. It appears that Scots law would take a similar approach to Tyrrell and would not render a consenting girl art and part guilty of a boy’s sexual offence contrary to the Sexual Offences (Scotland) Act 2009.95 However, the Scottish Law Commission’s Discussion Paper was astute to raise the question of whether children aged thirteen need protection from other children under sixteen where there is consent,96 and in its report the Commission boldly recommended that, where both participants are aged thirteen, fourteen or fifteen and are consenting, sexual activity should not be an offence.97 The Commission thus rejected the objectionable English compromise, whereby all sexual activity is criminalised and reliance is placed on prosecutors to ensure that there are no unfair prosecutions, saying that if conduct is not to be prosecuted it should not be an offence. This approach has now been 94 Baroness Hale in G accepted (at para 48) that many sexual activities between those under sixteen should not be prosecuted at all, impliedly criticising the 2003 Act for over-breadth in this respect; but she seems to suggest that, where penetration takes place, even between two children of fourteen or fifteen, this is such an important matter that criminal proceedings are appropriate (see para 49). Others would argue that, in the absence of evidence of actual exploitation, this is the wrong approach and will result in the needless criminalisation of many young people: see the Scottish Law Commission (n 96 below). 95 Gordon, Criminal Law para 5.05. Gordon was commenting on the law prior to its codification in the Sexual Offences (Scotland) Act 2009 but the same principle applies. 96 Scottish Law Commission, Discussion Paper on Rape and Other Sexual Offences (Scot Law Com DP No 131, 2004) para 5.40. 97 Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007) para 4.55; it will be noted that this would not have altered the conclusion on the facts of G (n 92 above).

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enacted in section 39(3) of the Sexual Offences (Scotland) Act 2009, and it deserves further scrutiny south of the border. The Commission added that referral to a Children’s Hearing should be possible where sexual activity between children gives rise to welfare concerns. F. THE EFFECT OF CHILDHOOD ON MENS REA How do the considerations discussed in the previous sections interact with the mens rea requirements of English criminal law? In part C above it was argued that there are two threshold tests that ought to be satisfied – a child should not be tried in court if an assessment shows insufficient understanding, and the age of criminal responsibility should be set so as to exclude those without a proper level of capacity.98 Turning now to cases which overcome these thresholds, we begin with strict liability. Where an offence imposes strict liability, which requires no fault (unless there is a defence of due diligence), a young defendant is just as liable to conviction as an adult, even for a very serious offence. This was confirmed by the House of Lords in G,99 holding that where the offence of rape of a child under thirteen imposes strict liability as to age, that applies equally to young defendants. The most serious criminal offences tend to require proof of intention to bring about the prohibited consequence. Intention is usually defined in terms of purpose (direct intention) or foresight of the virtual certainty that the prohibited consequence will ensue (oblique intent). The concept of intention is presented as value-independent, unrelated to the moral quality of what is intended.100 Thus the defence argument in Wilson101 to the effect that the boy of thirteen was “swept along” by his father’s uncontrolled aggression does not necessarily negative intention. The first question is whether the boy acted with the purpose of causing really serious harm to the victim when striking her head with a metal pole: even if it is most unlikely that he would have behaved in that manner if his father had not been acting so aggressively, the fact is that he did so and that he was aware of what he was doing. The second question, if purpose is not found, is whether the boy knew that it was virtually certain that the victim would suffer serious injury from his acts. The answer to this is probably yes. Yet one could argue that, in respect of both answers, a  98 See the detailed arguments of McDiarmid (n 6) particularly at 78.  99 [2008] UKHL 37, [2009] 1 AC 92, discussed in the text at n 92 above. 100 As Alan Norrie puts it, it is “a particular legal model of responsibility that was devised to exclude or marginalise difficult or contested moral issues from the law and the courtroom”: A Norrie, Crime, Reason and History, 2nd edn (2001) 58. 101 Above (n 36) and accompanying text.

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child of thirteen would have only a hazy and under-developed notion of the social meaning of serious injury and of death. One might be tempted to say that a child of that age cannot really understand the significance of such acts and their consequences; but, as the earlier quotation from the Law Commission of England and Wales demonstrates,102 this is a controversial assertion in England and Wales, particularly when combined with the possibility of trial in solemn proceedings. The prospects for arguing that a child lacks intention because of an inability to appreciate the social significance of acts and their consequences therefore seem poor in English law, and there appears to be nothing in Scots law to suggest a more accommodating approach.103 Turning to recklessness as a mens rea requirement, English law has changed its stance in recent years. For a while, the position was as stated in Caldwell,104 where the House of Lords replaced the subjective test of awareness of risk with a test that included an additional objective element, that of failure to give thought to an obvious risk. In applying this test, no concessions were made to young defendants, and indeed one of the criticisms that led to the abrogation of the Caldwell doctrine was that it judged children by the same standards as an adult.105 The House of Lords in G106 could have chosen to create an exception for children, but instead overruled the whole Caldwell doctrine of objective recklessness. This means that, when a child is charged with an offence for which recklessness is sufficient, the question is now whether that child was aware of the risk of the prohibited consequence. However, as suggested in relation to intention above, this is a question of awareness of the risk, and not awareness of the social significance of the prohibited consequences. Lord Caplan’s judgment in HM Advocate v S107 suggests that Scots law’s concept of wicked recklessness would be modified in its application to a child,108 and this is one beneficial consequence of the doctrine’s strong moral colouring. The position of children charged with an offence of negligence or gross negligence is unclear. There are few offences of negligence that children 102 Above (n 61) and accompanying text. 103 Gordon, Criminal Law ch 7. 104 [1982] AC 341. 105 Elliott v C (1983) 77 Cr App R 136 (where a mentally handicapped girl of fourteen was convicted of criminal damage by fire, having failed to understand the flammable properties of white spirit). 106 [2004] 1 AC 1034 (where boys of eleven and twelve caused £1 million damage by fire, having failed to foresee the consequences of making a small fire with newspapers; their convictions for causing criminal damage by fire were quashed). For an instructive discussion and further references, see H Keating, “Reckless children” [2007] Crim LR 546. 107 See n 17 above and accompanying text. 108 Gordon, Criminal Law paras 7.47-7.68.

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might commit, but manslaughter by gross negligence should be considered briefly in this connection. In English law the prosecutor must prove (1) that the defendant was in breach of a duty of care towards the victim, (2) that the breach of duty caused the victim’s death, and (3) that the breach of duty amounted to gross negligence.109 The questions here are whether a child would have a duty and, if so, whether the standard of gross negligence is lowered for children. In principle, following the arguments above, the answer ought to be affirmative. This is generally the approach in tort law: the standard for breach of duty should be that of “a child of roughly the same age and maturity as the defendant”.110 Although for the purposes of manslaughter by gross negligence the criminal law has gone beyond tort law in recognising duty situations,111 the question of breach of duty should be answered on the same principles, recognising the developmental immaturity and therefore reduced expectations of children. G. CONCLUSIONS The aim of this study has been to explore the relationship between the doctrines of the criminal law and child defendants. The subject is one with wide-ranging implications, all of which could not be examined within the compass of this essay. Its importance is confirmed by international agreements such as the United Nations Convention on the Rights of the Child. Its significance for the legal systems of the United Kingdom is signalled by critical reports by international monitoring bodies, pointing to several respects in which the spirit and/or letter of the Convention is not being observed.112 The argument here is that the criminal law should recognise the developmental immaturity of children, outlined in part A above, and that fairness therefore demands the amendment of the doctrines of the criminal law so as to expect less of younger defendants. The State would be behaving unreasonably and oppressively if it were to apply the same standards to children as to adults. Instead, in doctrines relating to duress, provocation, diminished responsibility and ignorance of the law, it should aim to apply the standard of what may reasonably be expected of a child of the defendant’s age and maturity. 109 R v Adomako [1995] 1 AC 171. 110 B Markesinis and S Deakin, Tort Law, 6th edn by S Deakin, A Johnston and B Markesinis (2008) 229. 111 Ashworth, Principles of Criminal Law 276-279; for discussion, see J Herring and E Palser, “The duty of care in gross negligence manslaughter” [2007] Crim LR 24. 112 See n 21 and accompanying text, and n 64.

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This assumes that the criminal law will continue to be applied to children as young as ten in England and Wales and, albeit rarely, as young as eight in Scotland. International agencies have been critical of these low ages, and the likelihood is that in Scotland the age of criminal responsibility will rise to twelve,113 but the equivalent English provision should be reconsidered as a matter of urgency. However, any such re-appraisal should also examine the framework that would take the place of the criminal law if it were removed, for example, from all children under fourteen. Compulsory measures would still be possible, under the powers of the children’s services and social services (or a Children’s Hearing in Scotland).114 Their application and extent should be scrutinised, and there should be no naivety about the speed with which they would come to be regarded as punitive, in spite of whatever euphemistic label is applied to the confinement of the most difficult children within secure accommodation. Safeguards for the best interests of children must be incorporated, so as to avoid the kind of disastrous results (for some children) of the introduction of the anti-social behaviour order.115 One important but lingering issue is whether the “age of criminal responsibility” should be altered to a set age (such as fourteen) or should vary according to the capacity of the individual child. There appear to be three leading possibilities – to adopt the standard of the “ordinary child of fourteen” or whatever age the defendant is (as in defences such as duress, provocation, diminished responsibility and ignorance of the law); to require an assessment of each individual to determine the level of responsibility according to certain criteria; or to adopt the pragmatic approach of a fixed age.116 The second approach is right in principle; the first approach may be a reasonable compromise; but the third approach is most likely to be adopted, on the ground that it is thought too resource-intensive to assess every child under eighteen prosecuted in the courts. If this is the conclusion reached, despite the argument presented above, the most sensible approach would be to raise the age of criminal responsibility to fourteen and to allow modifications of the defences 113 See the proposal in s 38 of the Criminal Justice and Licensing (Scotland) Bill. 114 That would also be a preferable approach to dealing with children under sixteen who engage in sexual relations, rather than criminalising all such contacts and relying on prosecutorial discretion. The English approach in the Sexual Offences Act 2003 is manifestly inferior to that recommended by the Scottish Law Commission: see n 97 above and accompanying text. 115 See e.g. www.statewatch.org/asbo/ASBOwatch.html. 116 It is certainly a weak argument to suggest that a fixed age is not sensible because someone a day older has different responsibilities from someone a day younger: that is inherent is all fixed limits, from the age of voting through the age of consent, and is a feature of many other social arrangements such as pensions, speed limits and so forth. See the unconvincing reasoning of the Law Commission for England and Wales (n 64).

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in the ways proposed above.117 This might also be sufficient to deal with the argument in part F above that the intention of a child of twelve or thirteen is not the same kind of intention as that of an adult, since it lacks a broader understanding of social significance. That is a well-founded argument,118 but if children under fourteen could not be prosecuted in the criminal courts its main thrust would be blunted. This, however, lies some distance from the core of this study, which is to argue for flexible amendments to doctrines of the criminal law and for reconsideration of the implications of age limits, particularly in relation to consent to sexual activity between children.

117 McDiarmid (n 6) 178-180 favours twelve as the relevant age, despite the strong arguments elsewhere in her book. 118 J Fortin, Children’s Rights and the Developing Law, 2nd edn (2003) 72-73 and 552, cited by Keating (n 106).

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4  Codification of the Criminal Law Eric Clive A. the consultation on the draft criminal code for scotland B. arguments advanced against codification: loss of flexibility C. arguments against codification: who makes the law? D. what has happened since the draft code was published? E. where do we go from here? The topic of this chapter is the codification of the criminal law, specifically the draft criminal code for Scotland, which was developed over a number of years by a group of academics – of which I was one – and published as a consultation paper by the Scottish Law Commission.1 The chapter assesses the results of that consultation, addresses the only two arguments advanced against codification, looks briefly at developments since the draft was published and asks where we go from here. The draft criminal code for Scotland was an unofficial project, the initiators of which were Professor Sandy McCall Smith and Professor Chris Gane. I was invited to join as a team member, as was Professor Pamela Ferguson. In the later stages Sir Gerald Gordon also attended meetings and participated in discussions. It was typical of him that, although not committed to the project in the way the rest of us were, he was prepared selflessly to make his time and expertise available. At least one provision in the draft code – the one on forced marriage2 – would not be there at all but for his input, and many others are in a much better form as a result of his interventions.   1 E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003).   2 Draft code s 58. Since the drafting of the code, the issue has gone on to attract considerable attention. See e.g. C B Callery, “A call for legislative action against forced marriage” 2009 JR 171; B Clark and C Richards, “The prevention and prohibition of forced marriages: a comparative approach” (2008) 57 ICLQ 501; and, in England and Wales, the Forced Marriage and Civil Protection Act 2007.

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A. THE CONSULTATION ON THE DRAFT CRIMINAL CODE FOR SCOTLAND The draft criminal code for Scotland was published as a consultation paper by the Scottish Law Commission on 19 September 2003. Twenty responses were received. This chapter aims to draw together and comment on some commonly raised issues.3 The first point to be made about the consultation responses is that the general results were not enormously encouraging. There was not a great clamour for codification as a matter of urgency. But they were not as discouraging as might have been feared – and probably not as discouraging as the results of a similar consultation carried out forty or fifty years ago might have been. What can be learned from the consultation? Some criticisms can be accepted right away. One such line of criticism related to process. The consultees in question said that, even if codification were desirable, this was not the right way to set about it. It should not be a matter for a few self-appointed individuals, without research resources or even secretarial assistance. It should be a properly financed and properly funded exercise carried out by the Scottish Government and involving either the Scottish Law Commission or a specially constituted criminal law reform commission. We could, I suppose, all agree wholeheartedly with that. It is only fair to my colleagues on the code team to point out however that this was not an option open to us when we embarked on our work. We did not say to the relevant authorities “Please do not do anything in this area. Please leave it to us.” There was nothing happening. The choice was to do something or simply let nothing continue to happen. We chose to do something in order to focus and stimulate debate. Another helpful comment on the process was that it would be better not to attempt to get a code enacted all at once. In order to give consultees and the Scottish Parliament a proper opportunity to consider and deal with proposed changes the programme should be carried forward in stages. There should be Acts on different parts of the criminal law and then eventually when there was enough legislation it could be put together in one comprehensive code. Again that seems an attractive and realistic idea which could readily be accepted. It is the approach being adopted in Ireland.4 There is perhaps one caveat. In   3 For a summary of the responses, see E Clive, “Codification of Scottish criminal law” 2008 SCL 747.   4 Expert Group on the Codification of the Criminal Law, Codifying the Criminal Law (2004) para 2.165(xi); Criminal Law Codification Advisory Committee, First Programme of Work 2008-2009 (2008) para 1.08.

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enacting the relevant component parts it would be useful to keep an eye on the likely eventual overall structure and drafting style. It could also be a good idea to enact a general part at an early stage as that could help to ensure some consistency, save a lot of repetition and avoid possible gaps. Another line of criticism related to coverage. A number of consultees thought that a code should cover the main statutory offences, such as road traffic offences and drug-related offences. We had excluded such offences partly for purely pragmatic reasons and partly because they generally related to reserved matters. This criticism can also be accepted. The more complete a code is the better. However, that does not mean to say that every miscellaneous statutory offence needs to be included. The criterion is the interests of the users of the legislation. In some cases it will be easier for users to find minor ancillary criminal offences in their own statutory context rather than extracted into a code. Another line taken by some consultees was that there should be more argument and debate before people were expected to make a decision. Some consultees called for full information about criminal codes in other Englishspeaking countries. It is difficult to decline reasonable requests for more information and more discussion, although the arguments on codification and techniques of codification have in fact been very well rehearsed over many years.5 If it were thought necessary to go over the ground again with a view specifically to the Scottish situation, a great deal of help could be obtained from the Irish criminal law codification project.6 Then there were specific criticisms of, or comments on, particular provisions in the draft code. They were all most welcome. Provisions which attracted favourable comment included those on reformulating the law on breach of the peace,7 those on breaking into buildings8 and those on sexual offences involving young people.9 Those which attracted unfavourable comment included the proposal to extend the law of theft to immovable   5 For an excellent overview from a Scottish perspective of some of the questions codifiers have to face, see P R Ferguson, “Constructing a criminal code” (2009) 20 Criminal Law Forum 139. On the arguments against codification in the Scottish context see L Farmer, “Enigma: decoding the draft criminal code” (2002) 7 SLPQ 68; T H Jones, “Towards a good and complete criminal code for Scotland” (2005) 68 MLR 448. For a response to the former, see E Clive and P R Ferguson, “Unravelling the enigma: a reply to Professor Farmer” (2002) 7 SLPQ 81. See also P R Ferguson, “Codifying criminal law (1): a critique of Scots criminal law” [2004] Crim LR 49.   6 See e.g. the comprehensive discussion contained in ch 1 of the Expert Group Report on Codifying the Criminal Law (n 4).   7 Draft code (n 1) ss 49, 50 and 92.  8 Ss 78-79.  9 Ss 64-67.

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property10 and a proposal on squatting.11 There were helpful criticisms of the rules on intention,12 provocation,13 the criminal liability of bodies corporate,14 murder,15 and art and part liability16 – all difficult areas where different views can be held and where discussion and debate can only be useful. There were also some questions on the use which could be made, if the draft code were to be enacted, of the works of the institutional writers and prior court decisions on the old law. The answer under the draft code is that neither would be a source of law on matters regulated by the code but both would of course be available as a source of historical information. All of this was constructive and helpful. What was also particularly constructive and helpful was that a number of consultees expressed a willingness to be involved in any further discussions. Some consultees endorsed the standard arguments for codification: a better organised set of laws, more democratic input and more stakeholder input, greater accessibility, a firmer basis for interpretation of the law by the courts, a better basis for future legislative reform.17 Of those who commented on the merits the most positive were the Association of Chief Police Officers in Scotland (ACPOS), the Association of Scottish Police Superintendents (ASPS) and Safeguarding Communities, Reducing Offending (SACRO). Only a few consultees advanced arguments against codification. One such argument was that a code would lead to a loss of principle and flexibility in the law. The following section considers this argument in relation to the draft code. B. ARGUMENTS ADVANCED AGAINST CODIFICATION: LOSS OF FLEXIBILITY Arguments relating to the loss of flexibility were made by number of consultees. Lord Cullen, the then Lord President of the Court of Session and Lord Justice General, produced one version of the loss of flexibility argument when he suggested that the introduction of a code would require the courts to adhere to the letter of the code even where it was perceived to be based 10 S 77 (theft) and the definition of property in s 112(1)(h). 11 S 84. 12 S 9. 13 Ss 38(3) and (4). 14 S 16(4)(b). 15 S 37. 16 S 17. 17 On these, see e.g. Expert Group, Codifying the Criminal Law (n 4); Clive and Ferguson (n 5) and Ferguson (n 5).

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on error, or produced results which were unfair or not in accordance with sound principle. This is a rather puzzling criticism of the idea of codification. It looks more like an objection to any legislation on criminal law topics – for example, the Sexual Offences (Scotland) Act 2009.18 It seems to underestimate the power of a court to interpret a statutory provision. And it seems to imply that the courts can refuse to follow common law rules simply on the ground that they are unfair. The reference to statutory rules which are in error or not in accordance with sound principle is also puzzling. Surely it is for the legislature to say what the rule is to be and what is a sound principle, not the courts. The argument on flexibility here merges into the argument on who makes the law, to which I turn later. Another respondent who advanced the flexibility argument was Professor Timothy Jones. He was actually in favour of a code provided that it was a good and complete code and introduced at the right time, whenever that is. In his conclusion, he stated that: “As an abstract proposition, codification is very attractive. Who would seek to argue that the criminal law should not be certain, clear, democratically legitimate and rational.” And yet he was surprisingly hostile to the idea of codification in Scotland now. Earlier in his paper, he referred with apparent approval to “the prevailing view in Scotland … that the common law allows the courts a desirable flexibility in dealing with the cases that come before them”. The Law Society of Scotland, in the course of a very comprehensive, balanced and helpful memorandum, mentioned arguments for and against codification which had been considered and debated at length in its criminal law committee. Some members of the committee had favoured “the flexibility of the common law approach which currently exists in the Scots criminal law”. The Scottish Police Federation (SPF) said that its members were generally comfortable with the flexibility inherent in the common law. The implication in all these expressions of view is that a codified system could not have enough desirable flexibility. Is this true? I would submit that it is not. We have to ask first what is meant by “desirable flexibility”. I have argued elsewhere – mainly in regard to the civil law but the argument applies generally – that there is good and bad flexibility.19 Good flexibility is the kind which is built in deliberately by the use of open-ended terms such as “reasonable”, “reckless”, “serious” or “severe” in the formulation of relevant rules. The fact that there is some flexibility is apparent to everybody in the 18 At the time of writing this Act was expected to come into force in late 2010. 19 E Clive, “On the accessibility of the law”, in A Brzozowski et al (eds), Towards Europeanization of Private Law: Essays in Honour of Professor Jerzi Rajski (2007) 513-520.

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very wording of the legal rule in question. Both the common law and statute law have this kind of flexibility. There is no contrast between them. There are several types of bad flexibility. One type is the kind which comes from having unnoticed conflicts in the law. The common law has this kind of flexibility. Every now and then the courts will say that what has been supposed to be a settled rule is actually an erroneous rule because an earlier and binding case was overlooked or because one of two conflicting lines of authority is now to be preferred. In 2001, for example, the High Court of Justiciary held that the view of the law of rape which had prevailed for many decades was wrong because the cases from which it had been derived ignored an earlier binding precedent.20 The actual decision moved the accepted law forward in a very welcome way but it should not have been necessary to do this. The error should not have happened. To praise the common law for having this type of flexibility seems perverse. It is praising it for its defects. It is like saying a house is well ventilated without mentioning that the reason is a lot of broken windows. Statute law does not normally have too much of this type of flexibility. I suppose it could be inserted deliberately just to give the courts and commentators some fun, but fortunately that is not seen as one of the main functions of a legislature. In fact legislators take great pains to avoid unintended conflicts between different provisions at the same level. And enormous efforts are taken in drafting Bills for the Scottish Parliament to avoid conflicts with human rights requirements. So this type of bad flexibility caused by unnoticed conflicts between legal rules is much more likely to be found in the common law areas of the law. To this extent the common law may indeed be more flexible but that hardly seems to be an argument in its favour. Another type of bad flexibility can be caused by an insufficiently precise definition of a crime. At one extreme there can be a definition which seems to cover so much that it is very difficult for a citizen to know what is prohibited and what is not. Practically any kind of conduct of which a court disapproves might be caught. The classic example in Scottish criminal law was breach of the peace. Gerald Gordon was one of those who subjected the former state of the law on this topic to criticism.21 The courts have tried to tighten up the common law offence in recent years.22 In the draft code we 20 Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466. The law relating to rape has since been reformed by s 1 of the Sexual Offences (Scotland) Act 2009 which, at the time of writing, was expected to come into force in late 2010. The principle set down in the Lord Advocate’s Reference – that rape should be defined around the consent or otherwise of the complainer – remains. 21 See G H Gordon, The Criminal Law of Scotland (1967) 929. See also M G A Christie, Breach of the Peace (1990). 22 See Smith v Donnelly 2002 JC 65; Harris v HM Advocate 2009 SLT 1078.

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tried to tighten it up even more by distinguishing different types of offence. Under the heading of “Causing fear, alarm or distress” the draft code has two offences – one termed “violent and alarming behaviour”23 and the other termed “intrusive and alarming behaviour”24 – but both requiring the causing of actual fear, alarm or significant distress. The draft code supplements these offences with a public order offence termed “breach of the peace”25 which is limited to actually causing a disturbance by acting in a way which “a reasonable observer would regard as violent, aggressive, or disorderly”. There could of course be other ways of introducing sufficient precision into this type of offence. The point is that this type of bad flexibility is not peculiar to either common law or statute law. It could be found in both, but nowadays extreme examples ought not to be found in either. Less extreme examples of bad flexibility caused by imprecise wording are quite likely to be found in both common law and statute law but this sort of imprecision is, I think, inherently more likely to be found in the common law than in statute law simply because of what writers and courts are setting out to do. Writers are describing rather than defining and courts are deciding rather than defining. Statutes are defining. The law on murder may provide an example. The early institutional writers described the Scottish law on murder as they found it. It was not confined to intentional killing. It included at least some types of wickedly reckless killing. The writers reflected this in various ways in their descriptions of the crime. A widely quoted description is that from Macdonald’s A Practical Treatise on the Criminal Law of Scotland:26 Murder is constituted by any wilful act causing the destruction of life whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences.

That reads like a definition and was widely used as if it were a definition. But of course it was not a statutory definition. It was a description and it appeared in a broader context which included further elaborations of the sort of things which would fall within the wicked recklessness part of it. In the light of those elaborations, and of a prolonged unwillingness to convict reckless drivers of murder,27 the courts eventually concluded that in cases not involving an intention to kill, there had to be not only wicked recklessness but 23 Draft code (n 1) s 49. 24 S 50. 25 S 92. 26 Macdonald, Criminal Law 89. 27 See HM Advocate v Purcell 2008 JC 131, a case of truly wickedly reckless driving in the streets of Edinburgh which killed a ten year-old boy called Jack Anderson who was dutifully crossing a pedestrian crossing at the green man sign.

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also an act intended to cause physical injury, perhaps even something which would qualify as an assault.28 Gerald Gordon summed up the modern law by stating that:29 there is murder whenever death is caused with wicked intention to kill or by an act intended to cause physical injury and displaying a wicked disregard of fatal consequences.

Again, this was a description of the position the law had reached and not a statutory definition. Indeed the author noted that the existing law was extremely vague and that any attempt to give an analysis of it was liable to distort it. He noted in particular that there was some uncertainty, and a lack of authority, as to whether death caused by wilful fire-raising might constitute an exception to the rule just quoted. That precise problem of death caused by fire-raising arose in the recent case of Petto v HM Advocate.30 Samuel Petto was convicted of murder (actually on a plea of guilty) where he and others, in order to destroy evidence of another killing, had poured three cans of petrol into a downstairs tenement flat in Glasgow and set fire to it, thereby causing an explosion and an intense blaze which killed a woman called Myra Donnachie who lived in one of the upstairs flats. Petto appealed and sought to withdraw his plea of guilty on the ground that the indictment contained no averment of an assault and no averment that he knew there was anyone in the upstairs flats. It was accepted, however, that the accused must have known that the upstairs flats were occupied. So the key question was whether there had to be an assault or something like an assault before there could be murder in the absence of an intention to kill. In these circumstances a court of three judges had to consider again the nature of murder in Scottish law. The court approved of the statement from Gordon mentioned above. It seemed inclined to the view that the indictment in this case might have been sufficient to support a charge of murder but noted that, in cases not based on an intention to kill, a number of questions were unresolved by authority. These included the following: (1) Must there be an assault “in the narrow sense of the word”31 or is some other act intended to cause physical injury enough? The view of the court was that the latter would suffice.32 28 Purcell at para 16. 29 Gordon, Criminal Law para 23.33. On the addition of “wicked” before “intention to kill” see Drury v HM Advocate 2001 SLT 1013. 30 2009 SLT 509. 31 Para 12. 32 Para 12.

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(2) Is wilfully setting fire to a house an assault on persons known to be in the house? Again, the view of the court was that it was.33 (3) Must the wilful act or assault be directed at the person who is eventually killed or could it be directed at some other person? The court tended towards the latter view.34 (4) Would it be enough that the wilful act was directed at causing physical damage to property? Here, the court was of the opinion that this would not be sufficient.35

The court thought that the importance of the case was such, however, that these questions should be resolved by a larger court. At the time of writing, the larger court’s decision was still awaited. It will be interesting to see what a larger court does. It is to be hoped that it does not distort the law on assault in order to solve problems in the law on murder. It is also to be hoped that it does not regard fire-raising as some sort of unprincipled ad hoc exception to a more general rule. If the court does this, then we can be sure that sooner or later another case will arise which seems to be just as bad and just as suitable for a designation of murder. The law would seem to ordinary citizens to be stupid and anomalous. It is going to be difficult for a court to adopt a principled approach without manifestly taking rather important policy decisions on matters of intense public interest. The best outcome would probably be for the court to do what it can in the short term and suggest that the whole area of murder and culpable homicide be reviewed with a view to legislation, something which it would be quite reasonable for the court to do given that the English Law Commission examined this area relatively recently.36 What are we to make of the fact that in 2009 the question of what constitutes murder in the law of Scotland has to be referred to a court of five or more judges? Does this show a desirable flexibility in the common law or is this an example of undesirable flexibility? It seems to me that it is the latter. This is the sort of thing we ought to know by now. The last edition of Macdonald was in 1948. If a statute of 1948 had left such questions unresolved – if it had said, for example, “wicked recklessness suffices but perhaps not in driving cases and perhaps only if there is something like a violent assault or possibly fire-raising” – it would have been severely and rightly criticised. In fact such a provision would never have been enacted. I should stress again that I am not criticising Macdonald or the editors of Macdonald. They were doing their job and trying to describe the law as they found it. 33 Para 12. 34 Para 13. 35 Para 13. 36 Law Commission, Report on Murder, Manslaughter and Infanticide (Law Com No 304, 2006).

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Here I should note briefly that under section 37 of the draft criminal code Petto would have been guilty of murder. And so would somebody who threw a heavy object off a roof into a crowded street, killing another person. And so would somebody who drove a car at speed into a crowded pedestrian area, killing several people. And so would a terrorist who left a bomb in a crowded place intending to give an adequate warning but who, because something went wrong, unintentionally killed many people. Section 37(1) of the draft code provides that: A person who causes the death of another person with the intention of causing such a death, or with callous recklessness as to whether such a death is caused, is guilty of the offence of murder.

There are at least six merits in that provision. It does not have the word “wicked” before “intention”; it has built-in desirable flexibility in the word “callous”; it does not have too much undesirable flexibility; it catches a lot of vicious and callous killers whom most people would probably like to catch within a provision on murder; it does so in a principled way without saying “callous recklessness is enough in some factual situations but not in others”; and it does not put too much strain on the word “intention”. However, I am not arguing that the rules on homicide in the draft code are necessarily the best which could be devised. We did not set out to provide “best” provisions in the draft code but only to put forward for debate a slightly more principled and rational version of the existing Scottish law. My point here is simply that desirable flexibility can be provided in statute law just as well as in the common law. Undesirable flexibility can be present in both too – and indeed there are codified rules on murder which have been criticised for their undesirable flexibility37 – but in the nature of things extreme undesirable flexibility is less likely to be found in statute law. C. ARGUMENTS AGAINST CODIFICATION: WHO MAKES THE LAW? The only other argument against codification which came up in the consultation was the argument that it is better for judges rather than legislatures to make the criminal law. At first sight this is a surprising argument, given the respective roles of judges and parliaments in our constitutional system, but 37 For an interesting survey, see The Law of Murder: Overseas Comparative Studies (itself undated, but some constituent papers dated 2005), a collection of papers produced by the Law Commission for England and Wales and available at www.lawcom.gov.uk/docs/comparative_studies.pdf. Curiously, Scotland features among the “overseas” jurisdictions studied.

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it clearly lurks under the surface of any discussion of codification and has to be faced. Professor Jones referred with apparent approval to what he called a prevailing view in Scotland that “it is appropriate for judges to be involved in the shaping and defining of crimes”. In response, it can be said that of course it is appropriate for judges to be involved in the shaping and defining of crimes. But they can be, and in fact are, so involved where the law is statutory rather than based on the common law. First, it falls to judges to interpret and apply the statutory law. Judges have manifestly, for example, had an influence on the way many statutory provisions on the criminal law are actually applied day by day. Secondly, judges can be involved in the process of statutory reform of the law. The views of judicial bodies such as the Sheriffs’ Association would be regarded as of very great importance in any debate on the legislative reform and development of the law. Indeed it seems probable that the views of the majority of judges are more likely to be sought and taken into account in a properly organised consultation by the Scottish Law Commission or the Scottish Government than they are by a bench of the High Court of Justiciary. That it is appropriate for judges to be involved in one way or another in shaping and developing the law is not in doubt and should not be a matter of contention. But that is not an argument against legislative reform or restatement of the criminal law. The Law Society of Scotland noted that some members of its criminal law committee thought that “the law should continue to be developed by judicial interpretation through case law”. Those members felt “that this would preserve the integrity and independence of the legal system allowing the law to develop on an apolitical basis with due regard to the principles of Scots law”. The same reply can be made here. Judges under a statutory system would continue to have a role in interpreting and developing the law on the basis of the statutory rules and underlying human rights principles. The objective of a code would be the furtherance of human values like freedom, security, justice and efficiency rather than the preservation of the integrity and independence of the Scottish legal system. There would be no reason to suppose, however, that a code would be detrimental to such integrity and independence. The reference to developing the law on an “apolitical basis” is revealing. It is not too difficult to see what lies behind it. Judges generally try to develop the law cautiously, where they can develop it at all, along already determined lines. Only rarely will they try to respond overtly to perceived changes in

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popular views, as they did for example in relation to marital rape38 and indeed the basic definition of rape.39 Politicians are more likely to react hastily and perhaps unnecessarily and inappropriately to popular outrage. Paradoxically, however, this criticism is one which can be directed more against ad hoc knee-jerk, vote-catching legislation on single issues than against a codification project, where the whole focus is on developing the law for the long-term on a coherent and principled basis. The most effective response to the argument that it is better for judges rather than legislatures to make the criminal law is that the judges, although manifestly well qualified for the task, do not have powerful enough tools at their disposal. They cannot choose topics to reform when they want to do so: they are dependent on suitable cases coming up to the right level in the right way. They cannot publish consultation papers and seek input by consultees and interest groups of all kinds. They do not necessarily have an opportunity to consider surrounding and related questions: their focus is on one isolated issue and their task is to produce the right decision on the existing law in one particular case. They cannot nowadays introduce new crimes to fill gaps.40 They cannot make necessary changes overtly on policy grounds and prospectively but have to disguise them as clarifications of old rules – clarifications, it may be added, which often lead to even more confusion. They can often do a lot to reform the law incrementally, and deserve full praise for doing so when they can, but this is quite simply not their main role and they are not equipped to do it in the best possible way. In short, I would argue that the only two arguments against codification which appeared on consultation – namely, the flexibility argument and the better-left-to-the-judges argument – do not seem on analysis to be good arguments. Indeed, as noted already, neither is really an argument against codification so much as an argument against legislation on criminal law topics currently governed by the common law. Neither is going to prevent legislation when it seems to the elected government to be necessary, as will probably be the case quite frequently. So the real question is whether we want at the end of the day to have an organised statutory law or a disorganised statutory law. Few, I think, would be prepared to argue that a disorganised set of statutes is inherently better than an organised set of statutes. 38 Stallard v HM Advocate 1989 SLT 469. 39 Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466. 40 At one time, the High Court possessed a declaratory power to create new crimes if the conduct in question was “obviously of a criminal nature” (Hume, Commentaries i, 12). This power could not now be used as it would contravene art 7(1) of the ECHR.

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D. WHAT HAS HAPPENED SINCE THE DRAFT CODE WAS PUBLISHED? At the time of writing, nothing has happened in Scotland with direct reference to the codification project as such. There has been no attempt to take the draft code further. The Scottish Law Commission has however referred to the draft code in some of its reports, notably on sexual offences41 and the age of criminal responsibility.42 The draft code has also attracted attention outside Scotland. An Italian doctoral student, Sara Mantovani of Turin University, wrote her thesis on the draft code and published an article on it in an Italian journal on criminal law.43 The authors of the draft code also received a request from a virtual-reality game player for permission to use the draft code as the background criminal law in the players’ virtual world. We granted this permission. I have tried to find out how it is functioning but without success so far. However, quite a lot has happened in Scotland which is indirectly relevant to what is in the draft code. I have space here to comment only on major legislative developments. The most important development is undoubtedly the Sexual Offences (Scotland) Act 2009, which is likely to come into force towards the end of 2010. This implements with some modifications the report of the Scottish Law Commission on that subject.44 It is a sort of mini-code and could provide a large part of any subsequent codification of Scottish criminal law. This is clear, for example, from section 40, which expressly abolishes a number of classic common-law offences. It is a most impressive Act with a wide coverage. So far as I can see, it covers every sexual offence covered in the draft code and a lot more besides. It is drafted in an admirably clear and modern way using 41 Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007) paras 1.9, 1.17, 3.26, 4.22, 4.97, 4.98, 4.129, 5.28 and 7.11. 42 Scottish Law Commission, Report on The Age of Criminal Responsibility (Scot Law Com No 185, 2002) para 3.30. 43 S. Mantovani, “Il carattere indipendente del diritto scozzese: dalla common law alla codificazione” (2009) 12 Indice Penale 795. The author notes that in its fundamental aspects the draft code moves in the direction of the principle of legality and respect for human rights. Her conclusion is worth quoting: “It is possible to think, and even hope (knowing that to deal with forms of global crime it is necessary to overcome the barriers posed by national judicial systems), that the time is not so far off when Europe will have a core of common rules also in criminal matters. This common core can only turn in the direction of protection and compliance with that most valuable of juridical formulations, the law on human rights, as incorporated in several European Constitutions and in the Human Rights Act 1998 but, above all, as expressed and accepted by all countries of Europe in the European Convention of Human Rights.” 44 Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007).

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simple ordinary language. I particularly like the fact that it is gender neutral and that it does not use the legislative “shall”. I also particularly like the fact that offences are clearly labelled.45 One interesting general drafting point is that the Act uses the formula: If a person (A) does X then A commits an offence to be known as the offence of Y.

The draft code uses the formula: A person who does X is guilty of the offence of Y.

Both enable the drafting to be gender neutral but the Act’s technique leads to a rather awkward number of As and Bs, particularly when a provision contains paragraphs which are also labelled (a) and (b). This becomes confusing when a provision is read out aloud. So I have to say that I prefer the draft code’s technique in this respect, but this is a small point of drafting. The main point is that this Act is a major achievement and a very welcome development. It is, of course, quite obvious that nothing like this reform could ever have been achieved by the common law. The Act is a complete answer to those who say “Leave everything to the common law”. It would be naive to suppose that there will not be problems under it. There are bound to be, no matter how much care has gone into its preparation and drafting. But the great thing about legislation, and about having an accessible Parliament, is that what has been legislated can be amended, often by just changing a few words.46 The other important development is the Criminal Justice and Licensing (Scotland) Bill which, at the time of writing, was before the Scottish Parliament. This is a very large Bill. It is larger than the entire draft criminal code and contains many important and potentially controversial provisions. It is a concrete answer to those who say that a criminal code could not be enacted in one go. It clearly could be if the political will were there. In the present context one of the most interesting features of the Bill is that it has proposals on sentencing guidelines and a Scottish Sentencing Council which are designed to introduce more transparency and consistency into sentencing.47 This system would not replace the need for a schedule of statutory maximum sentences as provided in the draft code. The public would still expect a statute which introduces an offence to lay down the maximum penalty for it. But it would supplement such a schedule and in the course of time make it much easier to allocate offences to the appropriate slots within it. 45 On the importance of this, see J Chalmers and F Leverick, “Fair labelling in criminal law” (2008) 71 MLR 217. 46 There are several examples of such amendments in the Criminal Justice and Licensing (Scotland) Bill which, at the time of writing, was before the Scottish Parliament. 47 See Part 1 of the Criminal Justice and Licensing (Scotland) Bill.

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The Bill also in effect raises the age of criminal responsibility to twelve as recommended by the Scottish Law Commission48 and, as the draft code had also proposed, using a slightly different technique.49 It has a provision on overlapping charges of fraud and embezzlement50 which deals with one limited aspect of a problem dealt with more generally by the draft code’s provision on overlapping offences.51 It has important new provisions on mental abnormality and diminished responsibility52 which again implement recommendations of the Scottish Law Commission53 and which would fit perfectly well into the draft code.54 Another legislative development worth noting is that we now have, or are about to have, a much more elaborate set of statutory rules on aggravated offences.55 The new rules, scattered over four Acts or Bills, could easily be fitted into the draft code’s single provision on aggravated offences.56 Meanwhile the catalogue of new statutory offences continues to grow. The Criminal Justice and Licensing (Scotland) Bill itself contains nine new offences, including important offences relating to organised crime,57 and extends or amends at least six others. Other offences, including those related to the “grooming” of children for sexual offences, and the offence of corporate homicide, have been introduced by separate Acts of the Scottish Parliament in the past few years.58 48 Report on the Age of Criminal Responsibility (Scot Law Com No 185, 2002). 49 See Criminal Justice and Licensing (Scotland) Bill s 38 and s 15 of the Draft Code (n 1). 50 Criminal Justice and Licensing (Scotland) Bill s 36. 51 S 6. 52 S 117. See also s 120 which abolishes the common law rules on the special defence of insanity, the plea of diminished responsibility and insanity in bar of trial. 53 Scottish Law Commission, Report on Insanity and Diminished Responsibility (Scot Law Com No 195, 2004). 54 The existing provisions in the draft code (n 1) are in s 27 (mental disorder) and s 38 (culpable homicide). 55 See Crime and Disorder Act 1998 s 98; Criminal Justice (Scotland) Act 2003 s 74; Offences (Aggravation by Prejudice) (Scotland) Act 2009; Criminal Justice and Licensing (Scotland) Bill ss 23 and 26. 56 Draft code (n 1) s 7. 57 Criminal Justice and Licensing (Scotland) Bill ss 25-28. 58 The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 introduced a number of new offences (particularly in relation to “grooming” children for sexual offences and similar activities) and amended the law on others. The Animal Health and Welfare (Scotland) Act 2006 introduced offences in relation to various forms of cruelty to animals. Part 3 of the Custodial Sentences and Weapons (Scotland) Act 2007 amended the law on offensive weapons, in particular by introducing a new offence of “having offensive weapon etc. in prison”. The Prostitution (Public Places) (Scotland) Act 2007 introduced new offences of soliciting or loitering in a relevant place (essentially a public place) for the purpose of obtaining the services of a prostitute. The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a new offence for Scotland of corporate homicide.

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This is not the place to discuss the merits or otherwise of each of these new statutory provisions. The general point is simply that more and more of the criminal law, including what might be called the general part, is now statutory. But the statutory provisions are scattered and disjointed. They sometimes deal only with one aspect of a more general problem. E. WHERE DO WE GO FROM HERE? In the absence of a political will to try to introduce a code in one go, the most obvious way forward is probably to follow the pattern set by the Scottish Government and the Scottish Law Commission in recent years. The Commission should be asked to deal one by one, or two by two, over the years with particular topics or groups of topics which would eventually feed into a comprehensive code. The Commission is already carrying over into its next programme of law reform an item on provocation, self-defence, coercion and necessity.59 But the Commission has limited resources and many other important projects to deal with and this way forward will obviously take a long time to produce any comprehensive statute – maybe thirty or forty years. If we are happy with the idea that Scotland will have an inefficient and unsatisfactory system of scattered and disorganised statutory provisions along with common law rules for that length of time, then that is fine. Maybe many of us are. If we are not, or if we do not think that such a system is really in the public interest, then the alternative seems to be to press for the setting-up of a properly resourced special criminal law codification committee or criminal law review committee. It would not be necessary to look beyond Sir Gerald Gordon to find the ideal chairman.

59 Scottish Law Commission, Annual Report 2008 (Scot Law Com No 214, 2009) 13.

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5  Public and Private Wrongs R A Duff and S E Marshall* A. sharing wrongs B. victims and perpetrators C. public wrongs and the criminal law d. criminal and civil proceedings A. SHARING WRONGS Gordon’s Criminal Law begins, as textbooks on criminal law often and naturally begin, by seeking a definition of “crime”. After a brief but incisive discussion, he concludes that only a formal (and far from precise) definition is possible:1 The criminal law is probably, therefore, sufficiently defined as that branch of the law which deals with those acts, attempts and omissions of which the state may take cognisance by prosecution in the criminal courts.

His concern here is, of course, descriptive or analytical rather than normative: the aim is not, that is, to define what should be criminal, with a view to guiding legislators in deciding what to criminalise; it is rather to enable those who would study the criminal law of Scotland to identify the subject of their study. From that point of view, a formal definition is the most we can hope for, and Gordon’s essentially procedural definition has significant merits; we will say more later, in particular, about the importance of focusing on the process of prosecution and on the state as prosecutor. Our concern, however, is normative rather than descriptive or analytic: it is with the question, not of how we can identify what is criminal, of what now falls within the scope of the criminal law, but of how legislatures and polities should set about deciding what ought to be criminalised.   * We are grateful for comments on a draft of this chapter received at the conference in honour of Sir Gerald Gordon, but above all to Sir Gerald himself, whose work offers as much insight and stimulation to philosophers of law as it does to practically-minded lawyers. 1 G H Gordon, The Criminal Law of Scotland, 2nd edn (1978) 15; 3rd edn vol 1 (2000) at 7.

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We have argued elsewhere that this large normative question can be best approached by reviving, and somewhat revising, the classical idea that crimes are “public wrongs”:2 if we are to justify criminalising a certain type of conduct, we must show that it constitutes what can properly be classed as a public wrong. We will not say more here about the claim that crimes must be wrongs: we take it for granted that the criminal law is a censuring practice, which defines certain kinds of wrong and provides for their perpetrators to be called to account, condemned and punished.3 But not all wrongs are even in principle criminalisable: the chief error of traditional Legal Moralism, according to which the proper aim of criminal law is to condemn and punish wrongdoing,4 is not that it focuses on wrongdoing as the proper concern of the criminal law, but that it takes all wrongdoing, of any and every kind, to be in principle the business of the criminal law. We must distinguish “public” wrongs, which are – at least in principle – the criminal law’s proper business, from “private” wrongs that are “in brief and crude terms, not the law’s business”.5 The question then, of course, is what “public” means in this context. On one kind of account, which was Blackstone’s, a wrong is public if it wrongs or harms “the public”, the polity as a whole, as distinct from any individual victim. Now there are such wrongs, wrongs that injure what are essentially shared or public goods (environmental goods such as clean air, for example); but if we take this to be the defining feature of everything that is to be legitimately criminalised, we will have to search for such a wrong at the core of every crime, which will lead us to distort the criminally wrongful character of some familiar mala in se. What makes rape and murder criminal, what justifies or demands the attention of the criminal law, is not that the murderer or rapist harms or wrongs the public at large, but what he does to his individual victim: if we are to give the victims their due, the criminal law’s attention must be on the wrongs that they have suffered. A better understanding of the idea of a public wrong is, we suggest, that it is a kind of wrong that properly concerns “the public” – a wrong that is a matter of public interest in the sense that it properly concerns all members of the polity by virtue simply of their shared membership of the political community. The wrong that merits criminalisation, the wrong for which a wrongdoer is called to account, condemned and punished by the criminal law, is the wrong that   2 See, classically, Blackstone, Commentaries Bk IV ch 1.   3 See R A Duff, Answering for Crime (2007) ch 4.   4 See e.g. M S Moore, Placing Blame (1997) ch 1.  5 Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247: 1957) para 61.

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he does to his individual victim; but it is a wrong in which we share as fellow members of the political community to which wrongdoer and victim belong,6 and a wrong to which we must therefore respond collectively. The wrong committed by a husband who beats up his wife might be “private” in the sense that it occurs within the home, and has no material impact on the wider social world; but it is – as we now recognise – a public wrong in the sense that it is one that should concern us all, and that should not be left to the couple to sort out for themselves as a merely domestic affair.7 That is why, as Gordon’s definition emphasises, the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes (in ideal theory, if all too obviously not in actual practice) such a public calling to account. The state is the proper prosecutor of crimes: since a crime is “our” wrong, rather than only the victim’s wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against D the defendant; it is brought, as the Americans properly have it, by “the People”, or by “the Commonwealth”, against the defendant.8 This is, we still believe, a useful way in which to think about crimes and criminalisation; in the remainder of this chapter, we will try to develop this conception of public wrongs a little further, which will also involve complicating it more than a little. (A developed account of the kind we are suggesting will of course require more underpinning by political theory than we can provide here. We work from a version of liberal communitarianism that rejects the metaphysical version of the individualist’s “unencumbered self”; but the account that we sketch here should be compatible with all but the most radically individualist kinds of liberal theory.) B. VICTIMS AND PERPETRATORS One issue that we should note, though we cannot pursue it in detail here, concerns the status of the offender. We have focused so far on the idea that we share in the victim’s wrong: it is his wrong, as an attack on him, but is   6 The criminal law also, of course, both binds and protects temporary residents of or visitors to a polity, as well as its citizens: its paradigmatic concern, however, is with the polity’s citizens and their dealings with each other (see Duff, Answering for Crime (n 3) ch 2.2).   7 For this argument, see S E Marshall and R A Duff, “Criminalization and sharing wrongs” (1998) 11 Canadian Journal of Law and Jurisprudence 7; S E Marshall and R A Duff, “Communicative punishment and the role of the victim” (2004) 23 Criminal Justice Ethics 39.   8 See further R A Duff, L Farmer, S E Marshall, V Tadros, The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial (2007).

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also our wrong because he is one of us. That is what makes it proper, and perhaps morally necessary, for us to respond collectively not just to him as a victim (to offer sympathy and support), but also to the wrongdoer – to call the wrongdoer to public account for what she has done. However, we must also remember that when a crime is committed by one citizen against another, the offender is also one of us; so should we also say that we share in his wrong(doing), as we share in the victim’s wrong (suffering)? It is certainly important that we see the offender, and that the criminal process of trial and punishment treat the offender, not as an outsider or an enemy, but as a fellow member of the normative community that is partly defined and constituted by the criminal law. The language of penal policy, and the impact of our penal practices, is all too often exclusionary: “we”, the law-abiding, must be protected against “them”, the criminals; and what is then done to “them” in the name of the “war on crime” all too often serves to reinforce their exclusion from civic society. But if the criminal law is to be a properly common law, if it is to be the law of the whole polity (and so our law as members of the polity), it must be inclusive, not exclusive: it must address and treat all citizens, including those who offend, as members of the normative community. One of the key challenges for penal policy and practice, and for the citizens in whose name penal policy is formulated and put into practice, is to make that idea of inclusion something more than a rhetorical flourish: how can the institutions of the criminal law, and in particular our penal institutions, treat offenders as fellow citizens, whilst still taking their crimes seriously as wrongs? One point worth stressing in this context is that an important aspect of taking one another seriously as citizens is precisely that we pay attention to wrongs that we commit; this is one way in which we acknowledge each other as responsible agents.9 Now in some kinds of community, members of the community share the wrongs done by fellow members in a deeper way than this: not only do we respond to you as a fellow member who has done wrong, we are collectively embarrassed, even shamed by that wrong, just because it was committed by one of us. This kind of response is perhaps most familiar, most easily understood, in the context of such small and relatively intimate (and all-embracing) communities as families: given a certain conception of the family, wrongs committed by one member are understood as wrongs that reflect badly on the whole

  9 This illustrates the way in which criminal law theory must draw not just on political theory, for an account of the proper relationships between state and citizen and between citizens, but also on moral theory, for an account of what it is to treat others as responsible agents.

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family and bring shame to its other members.10 It is also possible within small communities that, whilst not intimate or all-embracing in the way that families can be, are defined by a firm, shared commitment to a substantial normative project: an academic department, for instance, which defines itself by a shared commitment to certain ideals of scholarship and education, might feel collectively shamed or demeaned by the academic misdeeds of one of its members; those misdeeds injure the department’s moral character (as well as its reputation), in which all its members share. Citizens can in a similar way feel ashamed of the actions of their governments, or of other official or quasi-official representatives of the polity: even if I did not vote for these people, and have vigorously opposed their policies and actions, they still act in my name. One can even feel ashamed of one’s nation’s historical misdeeds, though there are interesting questions about how far into the past such shame can intelligibly reach: could it really make sense, for instance, for the English to feel ashamed of the Crusades? But does it make sense for the citizens of a modern liberal state to respond in this way to the criminal wrongs committed by others whose only connection to them is that of citizenship? Or would such a sharing of wrongs make sense only from the perspective of the kind of oppressively embracing communitarianism that liberals rightly resist? Even if, as we think is probably so, such intimate sharing of wrongs is alien to the kind of liberal polity in which we live (or hope to live), the question of whether or in what ways we should see ourselves as sharing, as fellow citizens, in the offender’s wrong points us towards other possibilities – other ways in which we might recognise some responsibility for or in relation to the wrongs committed by our fellow citizens. That responsibility might sometimes be retrospective: we need at least to ask ourselves (as critical theorists of various kinds insist that we must ask) how far our collective responsibility for the social, political and economic conditions from which so many crimes emerge – conditions in whose maintenance those who benefit from them are at least complicit – makes us partly responsible for those crimes (which need not imply that the offenders’ responsibility is thereby reduced). More interestingly, it might be prospective: whether or not we should hold ourselves retrospectively responsible for crimes that have been committed, a recognition of the offender as a fellow citizen might bring with it recognition that we have a collective responsibility to help to provide an appropriate response to the crime. That response will focus in part on the victims (when there 10 For a dramatic literary working out of this phenomenon, see Balzac’s Cousin Bette (1846), in which the misdeeds of Baron Hulot D’Ervy also bring destruction to his family, especially his wife and brother.

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are direct victims) as something that we owe to them as our fellows, but will also focus on the offender: we owe it to him to try to bring him to recognise, and to see the need to make moral reparation for, what he has done – rather than, for instance, treating him as an enemy or an outsider. This does not preclude a criminal process of trial and punishment; but it demands that the process treat the offender as a citizen who is still a full member of the political community. There is, clearly, much more to be said about the sense in which we can be said to share in the criminal wrongs committed by our fellow citizens, and about the implications of such sharing, but we cannot embark on a full development of this idea here. We will instead, as a way of drawing out some of what it might involve, focus on the relationship between public wrongs, as that idea is understood here, and the criminal law. We will also consider the question of whether the criminal law (or criminal law as we know it) is always the appropriate way to respond to such wrongs. C. PUBLIC WRONGS AND THE CRIMINAL LAW The criminal law, we have suggested, is properly concerned with public wrongs: that is, with wrongs that are properly the business of all citizens simply in virtue of their membership of the polity whose law it is. This does not, of course, help us to determine which wrongs should count as public – which kinds of wrong we do have good reason to criminalise; that a wrong is in this sense a public wrong does not so much ground as express the claim that it is one that could in principle be legitimately criminalised. Nor, which is more germane to our present purposes, is this to say that we should criminalise all public wrongs: it is at most to say that we have some good reason to criminalise such wrongs – which leaves open the possibility that we have even better reasons not to criminalise many such wrongs.11 In this section we will explore some such reasons, and some alternatives to criminalisation. Given our existing legal institutions, criminalisation has several separable dimensions. First, to criminalise a type of conduct is to make its purported wrongfulness salient:12 it is to focus on its wrongful character, on the need 11 Compare J Schonsheck, On Criminalization: An Essay in the Philosophy of the Criminal Law (1994) on the stages or “filters” through which decisions about criminalisation should proceed. 12 Its purported, rather than its actual, wrongfulness because the claim that the criminal law is focused on wrongs does not imply (absurdly) that it is impossible to criminalise conduct that is not wrongful: it implies only that if we are to justify criminalising a type of conduct, we must at least argue that it is wrongful (see V Tadros and S Tierney, “The presumption of innocence and the Human Rights Act” (2004) 67 MLR 402).

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to call its perpetrators to account and to condemn what they have done, as what is important about it. That is not to say that we cannot also try to deal with, for instance, the material harm that the criminalised conduct might cause – that we cannot or should not seek to prevent such harm, or to repair it when it is caused. However, such concerns are not the particular business of the criminal law, or the grounds for criminalising the conduct. Second, to criminalise conduct is to take it out of the hands of the victim and of others closely involved with it, into the formal structures of the criminal process: to treat the conduct as criminal is to treat it as conduct that should be dealt with, not through the informal responses of those close to it, but through the formal activities of criminal justice officials and procedures. This point is illustrated most vividly by the fact that whether a criminal case is to proceed is not, formally, a matter for the (alleged) victim to decide: the prosecutor can decide not to bring the alleged offender to trial, even if the alleged victim demands it, or can decide to bring the case to trial even if the victim would prefer to see it dropped.13 Third, to criminalise conduct is to make its perpetrators liable not merely to condemnation in court, or to pay compensation for such harm as they might have caused, but to criminal punishment – to the imposition of some measure that is intended to be burdensome. One question that arises is whether all public wrongs, all wrongs that properly concern members of the polity simply by virtue of that membership, are such as to warrant a response that has these three dimensions. Or should we instead say that the criminal law is properly concerned only with some kinds of public wrong, whilst others can be either ignored (as far as any formal process is concerned) or dealt with by other, non-criminal, means? A further, related question, to which we return below, is whether the three dimensions noted above must be linked as they are in our existing institutions: or could we (and should we) develop new procedures that separate them – so that, for instance, certain kinds of crime could make their perpetrators liable to conviction but not to punishment; or so that victims could be formally allowed to decide whether “their” wrongdoers are brought to court (or even to bring the cases themselves)? In relation to the first question, it is worth noticing the variety of ways in which a polity can decriminalise, or avoid criminalising, conduct that passes the first criminalisation test – conduct that constitutes a public wrong, which 13 Very often, prosecutors will, for a variety of reasons, not proceed with a case if the victim is unwilling, but victims have no formal right to bar the prosecution from proceeding. For an interesting discussion of this issue, and of why prosecutors might proceed in cases of domestic violence despite the unwillingness of the victim, see M M Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (2009), especially chs 8-9.

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there is therefore reason to criminalise. We cannot discuss all these ways here, but should note the most interesting ones. First, we could leave such conduct entirely outside the reach of law, so that any response to it by the wrongdoer’s fellow citizens will be extra-legal and informal. Thus if, for instance, we adopt a robust de minimis principle,14 as we surely should, we will recognise a range of public wrongs (minor acts of public rudeness or incivility, for instance) that are just too trivial to be criminalised, or indeed subjected to any kind of formal legal response. Second, we could subject the conduct to a non-criminal regime of legal regulation and sanction: we could, following the German model, make it an Ordnungswidrigkeit rather than a Straftat.15 An Ordnungswidrigkeit is a breach of the law (it is “rechtswidrig”), but it is not defined in terms of the kind of guilt or fault (“Schuld”) that warrants condemnation, and it is subject only to a non-custodial penalty – typically an administrative fine (Geldbusse), which is formally distinguished from a criminal fine (Geldstrafe). Whereas criminal law condemns and punishes wrongs, this kind of administrative or regulatory law penalises violations;16 its most plausible aim is simple ­deterrence. Third, with conduct that involves some actual or alleged harm to other people’s interests, we could make it a matter of civil rather than of criminal law: we could provide procedures through which the (alleged) victim could sue the (alleged) wrongdoer for compensation, so that as far as possible the cost of the harm falls on the person who culpably caused it. Fourth, for conduct that creates or arises from a dispute between citizens, we could make provision for mediation or negotiation, rather than subjecting it to direct regulation: citizens could be enabled or encouraged to seek the services of a state-appointed or state-authorised mediator or arbitrator, who would help them to resolve their dispute and find a more peaceful way of living as fellow citizens. We could, that is, treat the wrongs as conflicts to be 14 Compare Model Penal Code § 2.12 (defining a “de minimis” defence); and see D Husak, “The de minimis ‘defense’ to criminal liability”, in R A Duff and S P Green (eds), Philosophical Foundations of Criminal Law (forthcoming). 15 See Gesetz über Ordnungswidrigkeiten (1968/1975). The transfer of certain kinds of conduct from the criminal law properly speaking (the Strafgesetz) to the category of Ordnungswidrigkeiten was explicitly portrayed as a species of decriminalisation in Öztürk v Germany (1984) 6 EHRR 409, though the court held that this kind of formal reclassification did not exclude the defendant from the protections of article 6 of the ECHR. For critical discussions, see T Weigend, “The legal and practical problems posed by the difference between criminal law and administrative penal law” (1988) 59 Revue Internationale de Droit Pénal 67; Duff et al, The Trial on Trial (n 8) ch 6.5. 16 Compare J Feinberg, “The expressive function of punishment”, in his Doing and Deserving (1970) 95, on the difference between “punishments” and “penalties”.

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resolved rather than as crimes to be punished.17 Fifth, if our primary concern is to prevent conduct that is seen as dangerous or disruptive, and if we think that purely responsive, sanctionbased measures are unlikely to be effective enough, we might look to such pre-emptive measures as control orders – measures (which are themselves often backed by the threat of criminal punishment for their breach) to restrict the freedom of those judged likely to engage in such conduct.18 Finally, a quite different method of decriminalisation relies on officials’ exercise of their discretion. Thus a police force might make it a policy not to bring charges, or to take any kind of action, in relation to certain types of conduct that are formally criminal (the possession of small quantities of a prohibited drug, for instance); or a prosecuting authority might follow – and indeed announce publicly – a policy of not prosecuting some kind of conduct that is formally criminal.19 Each of these methods of de- or non-criminalisation raises problematic questions; some, such as various kinds of preventive order, are controversial in themselves. We cannot discuss most of them here, and list them only to emphasise the complexity of the question of whether or not a given type of conduct should be criminalised, even if we agree that it constitutes a public wrong, and even if we agree that it should be subject to some kind of legal regulation or control: for we have still to decide which of a range of possible kinds of legal provision, of which criminalisation is just one, should be applied. That decision will be partly guided, no doubt, by considerations of cost and efficacy, but should also be guided by considerations of intrinsic appropriateness: given the nature of the wrong that the conduct involves, what kind of formal, official response would be appropriate? In particular, given the defining features of the criminal law noted above, which kinds of 17 Compare the proposals made by advocates of “restorative justice” who urge us to create mediation processes that aim to repair harm and resolve conflicts or troubles rather than to punish supposed wrongs. See, classically, N Christie, “Conflicts as property” (1977) 17 British Journal of Criminology 1; L Hulsman, “Critical criminology and the concept of crime” (1986) 10 Contemporary Crises 63. For critical discussions, see A von Hirsch et al (eds), Restorative Justice and Criminal Justice (2003). 18 For a useful critical survey of such preventive measures, see A J Ashworth and L Zedner, “Preventive orders: a problem of undercriminalization?”, in R A Duff, L Farmer, S E Marshall, M Renzo, and V Tadros (eds), The Boundaries of the Criminal Law (forthcoming). 19 As the English Director of Public Prosecutions has now effectively done (following R (ex parte Purdy) v DPP [2009] UKHL 45, [2009] 3 WLR 403), in issuing guidelines about the factors to be taken into account in decisions about whether to prosecute in cases of assisted suicide: see www. cps.gov.uk/publications/prosecution/assisted_suicide_policy.html. The exercise of official discretion in applying criminal law is especially important in the area of corporate regulation in matters of health and safety: see e.g. B Fisse and J Braithwaite, Corporations, Crime and Accountability (1994).

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wrong are such as to make appropriate a formal response that makes their wrongful character salient, that calls their perpetrators to answer not just to their individual victims but to the polity as a whole, and that condemns and punishes those perpetrators? However, the question of criminalisation becomes yet more complex once we recognise that the three defining features of criminal law, while they coincide in our own legal systems, are separable, for this opens up the possibility of different modes of criminalisation. We can illustrate some of these possibilities by focusing on the contrast between criminal and civil law as two kinds of legal response to, or provision for dealing with, public wrongs. D. CRIMINAL AND CIVIL PROCEEDINGS The distinction between civil and criminal law in our actual systems is of course neither clear nor sharp, but we can identify two paradigms – of a criminal law process and of a civil law process. The criminal paradigm was sketched earlier. A criminal case is brought and controlled by the polity as a whole (by the state, acting as the polity’s agent), not by the individual victim of the wrong; it is focused on the (alleged) wrong for which the (alleged) perpetrator is called to answer in court; its outcome, if the allegation is proved, is condemnation and punishment. By contrast, under the civil law paradigm, the case is brought and controlled by the plaintiff (often an individual, sometimes a collective) who claims to have suffered harm or loss: it is up to her whether to bring the case, whether and how far to proceed with it, whether and on what terms to settle it without going to court, and whether to seek to enforce any judgment in her favour. The focus of the case is on the harm or loss that the plaintiff claims to have suffered (or to be likely to incur) through the defendant’s fault; and its outcome, if the plaintiff wins, is that the defendant is held liable to repair or to pay for the repair of the harm (if it can be repaired), or to pay compensation that will at least ameliorate the effects of that harm.20 To put the matter simply, a criminal case is concerned with who is answerable, and punishable, for a wrong (even if, for those who accept some version of the Harm Principle, it must be a harmful wrong), whereas a civil case is concerned with who should 20 There are difficult questions, which we cannot pursue here, about the limits of reparation or compensation – about kinds of harm, or kinds of wrong, for which nothing could count as complete or adequate compensation, and about kinds of harm or wrong for which a monetary payment (the typical outcome of a civil case) is not merely inadequate, but intrinsically inappropriate: see R E Goodin, “Theories of compensation”, in R Frey and C Morris (eds), Liability and Responsibility (1991) 257.

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have to pay to avert, to repair or to ameliorate some harm (even if, for those who eschew strict civil liability, it must be a wrongful harm). Given these two paradigms, we can bring together two familiar complaints, one about the criminal law and one about civil law. The complaint against the criminal law is, as expressed (over-)dramatically by Nils Christie, that it “steals” our conflicts: it takes the “conflict” that, in Christie’s eyes, crime involves away from those whom it directly concerns, into the formal, professional world of the law, thus depriving them of the chance to deal with it themselves.21 A less dramatic, less misleading version of this kind of objection is that the procedures of the criminal law tend too easily to exclude victims from having any real say in, or any control over, what happens to “their” cases or “their” offenders. Part of the point of calling criminal wrongs public wrongs is of course precisely to insist that they are not (merely or only) the victims’ wrongs, but we might still worry that our existing criminal process implicitly denies that the wrongs with which it deals are even partly the victims’ wrongs. The complaint against the civil law is that it requires those who want to seek redress, or apology, for wrongs that they have suffered to do so by claiming monetary compensation for harm allegedly caused to them by those wrongs – a kind of claim that inevitably distorts the character of their concern. One sad example of this is provided by parents who sue the doctor or hospital whose negligence they blame for the death of a child, and who might complain, if they win their case, that the sum awarded by the court in damages undervalues their child.22 Such complaints are both reasonable and unreasonable: unreasonable because they imply that some much larger sum might have been adequate compensation for their loss, but reasonable because monetary compensation does not address what they have suffered. What they want is (quite reasonably) that those who were responsible for the wrong (the wrong of negligence) done to their child and through their child to them should have to answer for that wrong in a suitable public forum, but a claim for monetary compensation – a claim that looks to a harm rather than to a wrong – is all that the law makes available to them. Perhaps we could try to meet both these kinds of complaint about the existing operations of our criminal and civil procedures by some modest re(or de-)construction of the criminal law paradigm. One possibility would be to extend and adapt the existing, infrequently used, provisions for private 21 Christie (n 17). 22 Another example is provided by the law of defamation.

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criminal prosecutions:23 to specify a category of criminal offences (and perhaps create some new ones: to deal, for instance, with cases of medical negligence) which can be prosecuted only by the alleged victim, and also to provide appropriate post-conviction disposals that focus on the wrong done rather than any harm caused (perhaps formal apology, or an analogue of community service directed towards the victim). Such privately prosecuted crimes would still count as public wrongs: they would be defined as wrongs by the law, and the law would provide a forum in which their victims can seek satisfaction (and would determine what would count as adequate satisfaction). But they would be wrongs that the polity did not insist on sharing in the way that it now insists on sharing criminal wrongs: it would support victims who wished to pursue their wrongdoers, but would not insist on taking over that pursuit. There are obvious objections to such a suggestion. One is that unless private prosecutions were subject to some kind of official control or veto, it would open the way to frivolous or utterly ill-founded prosecutions that would unreasonably burden their targets (although that is of course no less and no more a possibility with private civil law suits). Another is that without a system of legal aid far better resourced and far more widely available than seems likely in the foreseeable future, it would favour wealthy victims, and would further disadvantage those without the substantial means required to pursue their cases, or without the confidence or the understanding required even to think of bringing a case. We might still find a small place for such privately prosecutable wrongs, given an improved system of legal aid, but they would be unlikely to take over much of the existing criminal law. Alternatively, we could give victims a larger formal say in the prosecution process. The law could provide, for instance, that certain kinds of crime should be prosecuted by the public prosecutor, but only at the victim’s request,24 while others should be prosecuted only with the victim’s consent (we cannot pursue the important distinction between request and consent further here). That would leave two kinds of case in which individual victims would not have any formal control over the prosecution: those in which the only victim is “the public”, in which the decision would need to rest solely with the public prosecutor; and those in which although there is an individual victim, the prosecutor could decide to pursue the case with or without the 23 Which in Scotland require the consent of the Lord Advocate or the High Court of Justiciary, and in England can be taken over and dropped by the Director of Public Prosecutions. 24 Which is not of course to suggest that the victim’s request should be a sufficient condition for prosecution.

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victim’s consent, because it involved a kind of wrong that must be condemned, and whose perpetrator must be called to account. The latter kind of case would constitute the hard core of the criminal law, in which only a formal criminal-law response is adequate. The question then, of course, would be what kinds of wrong (if any) are of this kind, and why. A tempting answer might be that only those wrongs that also somehow threaten “the public” fall into this category,25 but we are not sure that that is right: if we are to do justice to the victims of crime, and to the character of the wrongs that the criminal law must condemn, our attention must remain focused on what was done to them, not on its possible further implications for the wider public. Much more work would be needed than we can undertake here to develop the details of this kind of suggestion, or to work out just how the criminal law could best give victims more of a say in the prosecution (or non-prosecution) of those who wrong them. The suggestion is, it should be noted, quite different from those made by advocates of “restorative justice”, who would remove what are now criminal cases from the formal criminal process altogether, to a more informal process of mediation that would be controlled by those (victims, offenders, their families or friends and supporters) most directly involved in the “conflict”:26 our aim is to preserve the formality and authority of the criminal law, as defining the kinds of wrong that merit condemnation by the polity, and as providing an appropriate forum in which those who commit such wrongs can be called to answer for them. Our suggestion is not that we should look for informal, non-criminal ways of responding to some kinds of wrong, even some kinds of public wrong (though we have no doubt that we should sometimes do that), but that within the institutions of the criminal law itself, within the formal procedure of the criminal trial, we should find ways of giving victims more of a say in what happens. What lies behind this suggestion is the thought that not all wrongs categorically require a condemnatory response that calls the wrongdoer to account. Outside the law, we recognise three kinds or categories of wrong. There are, first, those that are too trivial to be worth pursuing very far: some brief complaint or criticism might be in order, but to insist on calling the offender to account, to dwell on the wrong, would be excessive. Second, there are wrongs which it would be reasonable for the wronged party to pursue, but which she might also quite reasonably shrug off as relatively unimportant. 25 Compare the account offered in J Gardner and S Shute, “The wrongness of rape”, in J Horder (ed), Oxford Essays in Jurisprudence: Fourth Series (2000) 193, of the kind of harm that makes rape properly criminalisable. 26 See R A Duff, “Restoration and retribution”, in A von Hirsch et al (eds), Restorative Justice and Criminal Justice (2003) 43.

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Had she wanted to pursue it, we (her friends, her colleagues) would of course have supported her, but we can respect her view that it is not worth pursuing, and perhaps even admire the strength of character or the lack of egoism that her response displays. Third, there are wrongs that the victim ought to pursue, that it would be wrong to shrug off or ignore; she might be disinclined to pursue it, but (we would say) that response is now wrong or unreasonable. In the third kind of case we (as her friends, her colleagues) would see reason to pursue the wrong and the wrongdoer even if the victim asked us not to – perhaps not a conclusive reason to override her wishes, but certainly a reason that is not negated or undercut by her preference. Our suggestion here is that the criminal law should reflect these distinctions, by distinguishing three categories of public wrong. The first category is covered by the de minimis principle: these wrongs are too trivial to merit the law’s attention at all. The second category is that in which the victim should have formal control over whether a prosecution is brought – either through a system of private prosecutions or, as we suggested above, by allowing a prosecution to proceed only at the victim’s request or only with the victim’s consent. The third category is that in which, as now, the victim has no such formal control: the prosecution can go ahead with or without the victim’s consent. The key question about this kind of structure is, of course, how we are to distinguish the second category from the third: how should we identify those wrongs for which a formal criminal response is necessary – those wrongs that the polity must condemn if it is to remain true to itself? 27 It is obviously, in part, a matter of the seriousness of the wrong, but it is not clear that it is simply a matter of seriousness on a linear scale; nor is it clear either how we should assess seriousness, or why some wrongs should be pursued even without the victim’s consent. We have space only to note two points by way of initial approach to these issues. First, in so far as the distinction between the second and third categories does depend on the seriousness of the wrong, we need to ask whether and in what ways the victim’s response to the wrong conditions its seriousness. Consider, for instance, a campaign of racist insults directed against a member of a minority group, intended to humiliate him. Suppose that he is strong and self-confident enough to shrug the insults off, and to regard the insulters with contempt or pity rather than with fear: should we now say that the wrong done to him is a much less serious wrong than it would have been had the insults had their intended impact? Or that the wrong done is just the same, 27 For some suggestive remarks on this, see N Jareborg, “Criminalization as last resort (ultima ratio)” (2005) 2 Ohio State Journal of Criminal Law 521.

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although luckily in this case it does not cause the kind of harm that it was intended, and might have been expected to do?28 When and to the extent that the seriousness of the wrong does depend in this kind of way on the victim’s response to it – on whether the victim regards and responds to it as a serious wrong – we have reason to place it in the second category, and so to allow a prosecution only if the victim requests or consents to it. Second, there seem to be two ways of explaining the suggestion that some wrongs ought not to be, or cannot be, shrugged off, but must be pursued. One explanation focuses on the victim, and on the idea that he owes it to himself to take the wrong seriously and to respond to it: a failure to respond with anger and indignation, and to seek prosecution, would display a lack of proper selfrespect.29 This idea certainly has force in our extra-legal moral thinking, but it is not clear how much work it can do in explaining why criminal prosecutions should sometimes go ahead even without the victim’s consent: it would be a stringent (and probably ineffective) kind of moral paternalism that authorised the state to act in this way on the basis of the respect that a victim ought to have for himself. A second explanation is not thus paternalistic, since it focuses on what the victim owes not to himself, but to others, and on his responsibilities as a citizen. He owes it to his fellow citizens, we might now say, to pursue the wrongdoer: not, or not necessarily, for the kinds of consequentialist reason to which some would appeal (the need to convict the offender before he re-offends against others, for instance), but because not to pursue the wrongdoer would be to betray the defining values of the polity to which we all belong.30 This is more promising as an explanation of why the polity should insist on prosecuting (rather than of why the victim’s friends might urge him to pursue the wrongdoer, which is where the first kind of explanation fits more happily). However, it obviously raises some large and serious questions, which we cannot pursue further here, about the responsibilities or duties (as well as the rights) that we should ascribe to the victims of crime. Can we say, for instance, that the victim of a serious crime has a duty to bear witness to 28 This question is clearly related to the notoriously controversial question of whether the success or failure of a criminal attempt can affect, not the culpability of the agent, but the seriousness of the wrong for which he is to be condemned and punished. 29 Compare Murphy’s discussions of the role and importance of resentment, e.g. in J G Murphy, “Forgiveness and resentment”, in J G Murphy and J Hampton, Forgiveness and Mercy (1988) 14; and J G Murphy, Getting Even: Forgiveness and its Limits (2003), esp ch 2. 30 The issue of prosecuting domestic violence even without the victim’s consent provides a good test case here (if the reasons for thus insisting on prosecution do not have to do simply with the victim’s supposed incapacity to decide the matter rationally for herself): see Dempsey, Prosecuting Domestic Violence (n 13).

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the crime, and so to engage with the criminal process? If so, is that duty of the same kind as the duty of any citizen to assist in the prosecution of a crime that she has witnessed; or is the victim’s duty a special one, by virtue of the distinctive witness that she can bear? (To say that the victim has such a civic duty is not of course yet to say that it should be a legal duty that the state might enforce: the questions of whether, how far and in what ways the state should exercise its coercive power in this context require more discussion than we can provide here.)31 As must be evident, we are not sure how to resolve these issues. We do think, however, that they are worth pursuing not only by moral philosophers, but by legal theorists interested in the proper structure and scope of the criminal law. They bear on the possibility of a more nuanced system of criminal law – one whose core consists of crimes that are “public” in the strong sense that they are to be pursued by “the public”, i.e. by the polity, but which also includes wrongs whose pursuit is left more in the hands of, or subject to the will of, their individual victims.

31 But see further S E Marshall, “Victims of crime: their station and its duties”, in M Matravers (ed), Managing Modernity: Politics and the Culture of Control (2004) 104.

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6  The Idea of Principle in Scots Criminal Law Lindsay Farmer A. the meaning of principle B. principle in scots criminal law (1) Hume’s Commentaries and its successors (2) Gordon’s Criminal Law C. conclusion: on principles and being principled In writings on Scots criminal law, from Baron Hume to the present day, it is common to find reference to the principles that are taken to found or to have shaped the law. In their separate introductions to the 1986 reprint of Hume’s Commentaries on the Law of Scotland, Respecting Crimes, both Lord Cameron and Professor D M Walker refer to the principled basis of the law. For Lord Cameron: Our Scottish system of criminal law derives its flexibility and capacity to adapt to changing social and economic conditions from the fact that it is founded on certain principles which have been elucidated and set out in works of institutional authority.

For Walker, Hume’s achievement was to have abstracted “the principles which could be inductively drawn from the propositions in different cases … frequently from what the court had done rather than from anything the judges said”. Gordon himself declared his intention to discuss the principles of Scots criminal law, while noting that “there has been no extended discussion of the principles of Scots criminal law since Hume’s Commentaries”.1 And there are many references to principle and the principled basis of the law in decided cases from the earliest Justiciary reports to the present day. To give only a very recent example, the appeal court in the case of MacAngus v HM Advocate; Kane v HM Advocate2 declared that they were taking a “practical, but nonetheless principled approach” to the question of criminal   1 G H Gordon, The Criminal Law of Scotland, 1st edn (1968) 3-4.   2 [2009] HCJAC 8, 2009 SLT 137.

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responsibility for causing death by the supply of drugs.3 The existence of these principles has also been linked to more extravagant claims about criminal law and the Scottish legal tradition. Lord Cooper famously declared that the flexibility of the Scots criminal law – its genius – derived from “the application of our native methods to our native principles”,4 and Professor T B Smith expressed relief that the “more liberal principles of Scottish criminal law” had not been submerged in a British criminal code or consolidating legislation.5 It is not always easy, however, to understand what is meant by these claims. There are few attempts explicitly to articulate these principles, and even where this is attempted – as in the works of Hume and Gordon – the ­principles are not always clearly identified. In the absence of further ­specification, it is not obvious that all those who invoke the idea of the principled basis of the law are referring to the same principles. Likewise, it is not clear if there is a set of principles that is distinctively Scottish in its content, or if it is the attitude towards the supposed principles that is distinctive for Scots law. Even if we accept the idea that there may have been some kind of commitment to the idea of a set of guiding principles in Scots law, it would not necessarily follow that the same principles were of importance throughout this period, or even that the idea of what a principle was remained the same. It is not clear, moreover, whether the claim is intended to be one about the content of the substantive law, or about the principles guiding our procedure or punishment or both, or all of these – or indeed something else altogether. In the light of these questions it is thus somewhat surprising that so little attention has been paid to the content of these principles or to the meaning of principle in Scots criminal law. One of the aims of this chapter is to try and articulate some of the ideas about principle – or the uses of the term – that are embedded in doctrinal writings on Scots criminal law. It may, of course, be the case that there are no discernible principles shaping Scots criminal law or guiding its development, and that those who made these claims were well aware of this and made the claim for other purposes – perhaps to discourage parliamentary interference or to defend the integrity of Scots criminal law.6   3 At para 48. For discussion see L Farmer, “‘Practical, but nonetheless principled’? MacAngus and Kane” (2009) 13 EdinLR 502.   4 Evidence presented to the Royal Commission on Capital Punishment (18th day, 4 April 1950). He later argued that “unless a system of law and legal administration is allowed … to develop freely in harmony with its own distinctive principles and methods, the Rule of Law in that country will inevitably languish”: Lord Cooper of Culross, Selected Papers 1922-1954 (1957) 200. This is discussed in L Farmer, Criminal Law, Tradition and Legal Order (1997) ch 2.   5 T B Smith, British Justice: The Scottish Contribution (1961) 96.  6 Farmer, Criminal Law, Tradition and Legal Order (n 4) ch 2.

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While I would not want to discount the significance of these factors, it is important that we take the claims at face value and make some effort to understand what they might mean. This chapter, then, will examine conceptions of principle in the literature of Scots criminal law, from Baron Hume’s Commentaries to Gordon’s Criminal Law, looking at the different conceptions of principle and their implications for the substantive criminal law. In doing so I shall argue that Gordon’s justly celebrated treatise on Criminal Law was primarily organised around an idea of principle that was in important respects alien to Scots criminal law, but that his distinctive and important contribution lies in the way that he was able in this work to graft this conception onto the more native and traditional ideas of principle that had informed the earlier development of Scots criminal law. A. THE MEANING OF PRINCIPLE In order to frame this discussion I want to begin by reviewing some different ways of understanding the idea of principle. These understandings are not intended to be mutually exclusive, and indeed there are some rather obvious overlaps between some of them, but analytically they will assist us in thinking about Scots criminal law. When contemporary criminal lawyers are asked to reflect on the principles of the law, they are likely to think of principle as referring to those aspects of the law which, in the words of Glanville Williams, “apply to more than one crime”.7 This is usually taken to mean one of two things. The first, following Williams, would be the idea of principles of criminal responsibility, expressed primarily, but not exclusively, in the general part of the law.8 This view seeks to link rules of criminal law to broader political or moral values, such as free will or autonomy or theories of punishment and state legitimacy, to argue that such general principles are a means of expressing such fundamental values and can also act as a constraint on the interpretation and application of particular rules. The second, popularised recently by writers such as Ashworth, would be of a set of broadly procedural principles – such as the principles of legality, fair labelling, maximum certainty, and so on – which give shape to and limit both the content and structure of the criminal law.9 While still linked to a central principle of autonomy, these principles are conceived of in   7 G L Williams, Criminal Law: The General Part (1953) v.   8 See ibid: “all are governed by certain general principles, which are conveniently described on the Continent as the ‘general part’ of the law”.  9 Ashworth, Principles of Criminal Law ch 3. Cf L L Fuller, The Morality of Law, 2nd edn (1969) ch 2 on the “inner morality” of law.

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quasi-constitutional or rule of law terms, as potential constraints on the law and its application. Whichever of these two forms it takes, this idea of principle relates primarily to the structure of the criminal law, although it is argued to have a number of further consequences. The primary form of the expression of principle in this sense is in the identification of the general part of the law.10 This is understood as being made up of a combination of rules of general application and more abstract principles and values which express general conditions of criminal liability and which, as well as legitimating the law, also exercise a more regulatory function over the special part of the law. It does this by ordering the definitions of particular offences – perhaps through the requirement that there should be proof of a relevant mental state, or a clear distinction between actus reus and mens rea or the elements of offence and defence – but also through the articulation of standards of coherence or clarity in the law, reducing variations in the application of a certain doctrine.11 However, it is also argued that this can and should lead to principles operating as constraints: to limit the scope or application of the law, or to protect the individual against the power of the state.12 This will have an impact on how decisions are made by courts, because as a principle is more clearly articulated in the law, it thereby provides criteria for decision-making.13 Thus, in recent decisions of the Scottish appeal court we can find judges referring to general principles of criminal liability in this sense as a basis for their decision.14 Requirements such as fair labelling or maximum certainty are in addition aimed at legislators, stressing the importance of clarity in the definition and drafting of offences. Thus modern criminal law theory seeks to articulate principles as the foundation of a rational and legitimate account of the criminal law that can shape the actions of legislators and judges, and where the general part of the criminal law articulates principles that reach out into all areas of the definition, operation and enforcement of the criminal law. 10 Gardner points out that it is unduly restrictive to understand such principles as expressed exclusively in the general part: J Gardner, “On the general part of the criminal law”, in R A Duff (ed), Philosophy and the Criminal Law (1998) 205 at 209-210. 11 See e.g. E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003) 5-6; Law Commission, A Criminal Code for England and Wales (Law Com No 177, 1989) vol 1 paras 2.8-2.9. 12 These kind of principles are in general not taken to be strongly determinative of the content of the substantive law. See e.g. D Husak, Overcriminalization: The Limits of the Criminal Law (2008) ch 1. 13 N MacCormick, Legal Reasoning and Legal Theory (1978) ch 7. 14 Transco PLC v HM Advocate 2004 SCCR 1 at para 26 per Lord Carloway (“That offended against the cardinal principle of criminal law that there was no vicarious liability”); Ross v HM Advocate 1991 JC 210 at 213 per the Lord Justice General (Hope) (“In principle it would seem that in all cases where a person lacks evil intention which is essential to the guilt of a crime he must be acquitted”).

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Both approaches – the general part and the procedural – share the idea that principles can be both factual and normative. They should go beneath the surface of the law or beyond the particular case (“go back to first principles”) either to articulate moral or political values that are already inherent in legal rules or to connect with some deeper underlying moral and political values.15 It does not matter for the purposes of the argument here whether principles are understood as being internal to the law or as a way of drawing on and bringing external values into the law, since it seems to me that this is not material to the concept of principle at work and might even detract from what the approaches share in common. Equally, principles might be articulated through case law in an inductive way or alternatively derived in a deductive way from more fundamental political or philo­sophical concepts. In either case their function is broadly as stated above. This concept of principle, indeed, has become central to much jurisprudential thought where, in the influential formulation of Dworkin, principles are treated as part of the deep reservoir of resources that the Herculean judge can draw on in making a judgment.16 In this jurisprudential universe, principle occupies one side of a binary opposition where that which is principled is to be preferred to or valorised ahead of that which is not. Thus, principle is opposed to policy, to practice, to pragmatism, and to that which is arbitrary (and hence ­unprincipled). It is not my aim here to become involved in a refinement or critique of the idea of principle, or to defend policy, practice and so on against principle or vice versa, or even to criticise (or deconstruct) this kind of opposition. My point is a rather different one: this kind of contemporary thought about the idea of principle, and of the principles of criminal law, has become so dominant that it affects how we understand all writings on the criminal law. Thus, when we look at writings on the criminal law which use the term “principle” in a different way or do not take this form, the reaction is often one of surprise or puzzlement. Let me give three brief examples which do not, at this point, draw on Scots law. First, when Jeremy Bentham used the term principle in his Introduction to the Principles and Morals of Legislation, he defined it as being “applied to any thing which is conceived to serve as a foundation or beginning to any series of operations [either physical or mental]”.17 This draws on a now obsolete meaning of principle as a fundamental source from

15 See MacCormick, Legal Reasoning (n 13) ch 7 16 R Dworkin, Law’s Empire (1986) ch 7. See also N MacCormick, H L A Hart (1981) ch 10. 17 J Bentham, An Introduction to the Principles and Morals of Legislation (1780) ch 1 part II (footnote).

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which some thing originates.18 In this sense “principle” was not a reason for action so much as a claim about a state of affairs. Second, we can note the absence of an extended account of criminal responsibility – of a general part – in Sir James Fitzjames Stephen’s extensive writings on the criminal law.19 As Lacey has noted, Stephen did not seek the principles of the criminal law in general concepts of criminal responsibility, but understood them in terms of the scope of particular offences and their relation to an overall political philosophy of the function of the criminal law.20 Thus, while Stephen’s understanding of the function of principle comes closer to the modern understanding, as a fundamental quality of a rule or set of rules which prescriptively shapes the future application of the rule, its implications for the criminal law were very different. Finally, William Eden’s celebrated book Principles of Penal Law was addressed to the eighteenth-century English debate over the reform of capital statutes, and so was primarily concerned with the right of punishment and the different classes of punishment in respect of “the several species of crimes, their definitions and gradations”.21 Thus, while it covered aspects of what we would understand as the philosophy of punishment, it had little to say about principles of substantive criminal law as we understand them – something which can be attributed to the fact that there was no settled meaning to the category “criminal law” at the time when he wrote.22 These examples raise the basic point, which should not surprise us, that both the concept of principle and the concept of principles of criminal law have their own history. Thus, in attempting to understand particular works of criminal law we must attend to the particular way and context in which these terms are used. B. PRINCIPLE IN SCOTS CRIMINAL LAW In this section I shall focus mainly on the contrast between the idea of principle in Baron Hume’s Commentaries and Gordon’s Criminal Law. There are, of course, other important sources and statements of Scots criminal law, but 18 As opposed to the modern Oxford English Dictionary definition of “fundamental law, motive force, underlying proposition”. 19 J F Stephen, A History of the Criminal Law of England (1883); J F Stephen, A Digest of the Criminal Law (Crimes and Punishments) (1877). 20 See N Lacey, “Contingency, coherence and conceptualism: reflections on the encounter between ‘critique’ and the ‘philosophy of the criminal law’”, in R A Duff (ed), Philosophy and the Criminal Law (1998) 9 at 25-29. In the Introduction to his Digest, Stephen states that principles have been “extracted from cases”: Stephen, Digest (n 19) vii. 21 W Eden, Principles of Penal Law (1771) 83. 22 See the discussion in D Lieberman, “Blackstone and the categories of English jurisprudence”, in N Landau (ed), Law, Crime and English Society 1660-1830 (2002) 139 at 141-142.

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these are the two major attempts to systematise the law and are, without question, in their own distinctive ways the most sophisticated and influential statements of Scots criminal law. (1) Hume’s Commentaries and its successors Hume famously eschewed any explicit discussion of the philosophical basis of crimes and punishments:23 I have no intention of bringing forward a Philosophical Treatise of Criminal Jurisprudence, in which the history of the human species, with respect to this branch of the science of law, is to be traced; and an attempt made to ascertain, on abstract and universal principles, the nature of the several offences, and the application and proportion of punishments.

His purpose, he stated, was rather that of educating the young lawyer in “the Elements of our Criminal Practice”.24 Accordingly he stated that crimes would be treated in order of their practical importance, rather than according to any other schema, and he laid a great deal of stress on the fact that his primary source was case law. He remarked that he had gone through the Books of Adjournal to develop his authoritative statement of the practice of the law – so that it was not necessary that others should have to undertake the same task.25 This led him to define crime according to what he took to be the ordinary meaning of the term, going on to say that he would “consider every act as a crime for which our practice has appointed the offender to make some satisfaction to the public, besides repairing, where that is possible, the injury sustained by the individual”.26 In this, he suggested, “the law always supposes that the delinquent has infringed, in some respect, those duties which he owes to the community”, either by setting a dangerous example of violence, dishonesty and so on, or by trespassing with respect to the matters of “wholesome discipline” or “wise œconomy” which affect the public welfare or are a matter of general concern.27 Perhaps surprisingly in view of the later reception of Hume, he makes little explicit reference to principle in the Commentaries, and when he does so the term is used in a number of different ways. First, it was referred to as a motor of action. In a discussion of provocation by infidelity, for example, he 23 Hume, Commentaries i, 14. This is usually taken to be a barb aimed at H H Kames, Historical Law Tracts, 4th edn (1792). Note also H Arnot, A Collection and Abridgement of Celebrated Criminal Trials in Scotland (1785). 24 Hume, Commentaries i, 13. 25 Hume, Commentaries i, 3 and 18. 26 Hume, Commentaries i, 21. 27 Hume, Commentaries i, 21.

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wondered whether this was as serious as other forms of provocation because it was “done on the principle of rape and revenge”.28 In a similar sense, earlier in his discussion of provocation he had argued that resentment was not an ungovernable impulse for humans, but that it had been “placed by the Author of our natures, under the control of a superior principle”.29 Second, principle was understood as a fundamental proposition on which others would depend. Thus, discussing theft, Hume reviewed the decided cases with a view to attaining “some notion … of the true principle, which may serve to the decision of the still more difficult situations.”30 In a similar vein, he referred to the “common principle of dole”, understood as both a natural and legal fact.31 This overlaps with the third sense, which comes closer to the modern understanding of the term as a general or fundamental rule derived from decided cases and capable of governing outcomes where no case law existed. Here, in various places Hume used a discussion of the case law to develop a general principle that might apply in fresh cases. Thus he argued in favour of a general principle that intoxication should mitigate guilt in crimes where there was no “necessary or immediate damage to one’s neighbour, or to society”.32 Later he suggested that there should be a general principle that lower-ranked judicial officers following orders might be excused where superior officers should not be, because they were bound by law to follow the orders of their superior.33 In these instances, Hume did not seek to identify general principles of law, but rules that might govern the application of the law in specific areas or in relation to specific issues, and that at most could be understood as shaping the definitions of particular offences. The source of principle in this last sense was understood as a combination of the proper nature of things and the practice of the law. This practice 28 Hume, Commentaries i, 246. 29 Hume, Commentaries i, 239, so that a person responding to threats or provocation might act out of justice and necessity rather than anger or revenge. See also 228 and 254. In addition, see 25, referring to the principle of malice, and 269 on art and part liability for murder where “the insurgents are … combined on the principle of executing their purpose by force and blood”. 30 Hume, Commentaries i, 57 See also Lord Cockburn in Bernard Greenhuff who, while dissenting from what was taken to be Hume’s view of the declaratory power of the High Court, uses the term principle in exactly the same way: “An old crime may certainly be committed in a new way; and a case, though never occurring before in its facts, may fall within the spirit of a previous decision, or within an established general principle” (1838) 2 Swin 236 at 274 (emphasis in original). 31 Hume, Commentaries i, 26. Cf criticism of the “strained and artificial principle” of the felonymurder rule, which Hume argued “conjoins things in their own nature different” and which was not supported by Scots practice (24). 32 Hume, Commentaries i, 46-47 (italics in original) in crimes such as blasphemy, heresy and so on. 33 Hume, Commentaries i, 54. For similar usages see e.g. 59, 61 (on theft and breach of trust), 115 (on reset).

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was described as a “general spirit” of the law.34 Practice was a way of settling principle, of avoiding strained and artificial rules of law.35 Practice offered the testimony of experience, and was a means of referring to community values as these were articulated by decided cases. There was thus both a political aspect – the source of legal authority – and a substantive aspect to these principles. The most important point here, though, is that the principle is the practice. The radical opposition between the two that is almost axiomatic for modern legal thought did not exist for Hume.36 It is the understanding of principle in this last sense that has been the most important in the later reception of Hume, and in particular his reception in the courts. While there is certainly no fixed, single approach, it is probably true to say that Hume’s words are treated as though laying down a general rule, which may then be departed from if later cases, or the circumstances of the particular case, require.37 But notwithstanding Hume’s undiminished authority, this approach can be frustrating to the modern lawyer because Hume’s style is more description than definition and he rarely seeks explicitly to articulate any underlying principle. His main aim was that of completeness – to include all relevant crimes discussed in relation to all relevant cases – though by stating and clarifying the law he undoubtedly articulates normative standards or tests capable of being applied by the courts. The measure of his success here was to be his faithfulness to the practice of the law. Indeed, the rapid acceptance of the Commentaries by the p ­ rofession – and the adoption of its schema by later works (notably Alison and Macdonald) – is testimony to his success in this respect.38 However, as is well known, far from stimulating the growth of a literature of Scots criminal law, Hume’s Commentaries seems to have had the opposite effect, as criminal law failed to establish itself as an academic subject in Scotland.39 The main successors 34 Hume, Commentaries i, 2 and 13. 35 See n 31 above. For other examples see Hume, Commentaries i, 38 (on insanity): “Our practice has always been governed by the general precept … which admits of no defence, short of absolute alienation of reason … The same principle governed in the trial of Thomas Gray …”; 177 (on fraud): “The instances which have been given may serve as an illustration of the settled principles of our practice, and a ground of inference to other cases of the like cozenage and circumvention.” 36 Cf Lord Deas in Clendinnen v Rodger (1875) 3 Coup 171 at 180: “Decisions and practice make the great body of our criminal law”. 37 Discussed in Farmer (n 4) 39-40. Cf Gordon’s strong criticism of the approach of the Emslie court in the commentary to HM Advocate v Wilson 1983 SCCR 420. 38 For citations, see Walker’s introduction to the 1986 reprint of Hume’s Commentaries at 7. However, we should note the importance of more regular case reports which also obviated the need, to some extent, for other kinds of text. 39 See L Farmer, “The criminous and the incriminating: narratives of guilt and innocence in Scottish criminal trials” 2000 JR 285 for a discussion of some of the alternative literatures of Scots criminal law.

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to Hume were written by and for practitioners. That said, in both texts it is possible to see a subtle transformation in the conception of principle. Alison’s Principles of Criminal Law was written as a stop-gap after the author – a high Tory – lost his position as Advocate Depute.40 While holding this position he had hoped for advancement to the position of Lord Advocate and ultimately a position on the bench, but he was thwarted by the election of the reforming Whig government in 1832.41 While he was to resume his legal career as Sheriff of Lanarkshire in 1834, his immediate response to his loss of position and income was to turn to writing, and he drew on his eight years of experience as Advocate Depute in writing the Principles and the Practice.42 His immediate justification for writing the book was to provide a work which was “of more immediate application to the business which actually comes before the Court” than Hume’s Commentaries.43 He argued that the years since 1814 had seen a vast increase in criminal business coming before the courts, and that this should be reflected in the new work which, if not superseding Hume as the acknowledged foundation of Scottish criminal jurisprudence, would at least be more up-to-date.44 The key for Alison, though, was in establishing the link between practice and principle. Here he argued that:45 Practice had sufficiently shown me that there was principle in every part of the law, and that it was the power of reaching and applying that principle which constituted the great characteristic of a profound lawyer.

The problem, however, was that the rapid increase of legal business had “rendered it impossible for judges in whose minds principle has become matured to give it to the world, except in detached fragments in the decision of particular cases”.46 Accordingly he claimed to have adopted the plan “of which Heineccius had given an example in his Institutes and Pandects of the Civil Law, of giving the principle on every subject in a single proposition, and deducing from it a variety of cases of which the particulars were given 40 Alison, Principles was published in 1832 and covered the substantive criminal law as opposed to the practice. This was the subject of a second volume (Alison, Practice), published in 1833, covering evidence, procedure and punishment. 41 See M Michie, An Enlightenment Tory in Victorian Scotland. The Career of Sir Archibald Alison (1997) ch 2; M Fry, “Alison, Sir Archibald, first baronet (1792-1867)”, Oxford Dictionary of National Biography. 42 He was to become much better known to his Victorian audience as the author of a popular multivolume history of Europe. See Michie, An Enlightenment Tory (n 41) ch 5. 43 Alison, Principles v. 44 He also claimed that the book contained over 1,000 unreported cases and more than 500 decisions on analogous points of English law: Alison, Principles vi. 45 A Alison, Some Account of My Life and Writings (1883) 299. 46 Ibid 300-301.

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in the paragraph which followed”.47 While this then was ostensibly a deductive method, it is in fact inductive, as the principles were extracted from the case law and other authorities which are set out in the following paragraph. The effect, though, is to present the criminal law as a series of free-standing propositions or principles. Macdonald’s influential Practical Treatise was first published in 1867, written in the young lawyer’s free time as he sought to establish his practice at the Bar.48 He too became an influential legal practitioner, first as Lord Advocate and later on the bench as Lord Kingsburgh, and this, together with the absence of competitors, no doubt contributed to the continuing success of the book.49 While generally following Hume with respect to the content of the law, the Practical Treatise treats principles in a way more akin to Alison. Macdonald’s brief discussion of general conditions of criminal liability, for example, proceeds by stating a series of general principles which are taken to be well-established in the law, but which might be departed from in particular instances. Thus, he states that “[i]t is important to observe that as a general principle, the law holds a man to have acted criminally, when the deed which he has done is criminal in itself”.50 And again, he notes the “well-established principle, that the law of Scotland makes no distinction between guilt by direct commission and guilt by accession”, before going on to detail a series of specific rules and qualifications.51 Thus principles are understood as general rules that have been established by the practice of the law, but that can be formulated as independent propositions which can act as a guide to future action. In this respect at least this is a more modern usage of the concept than Hume. This subtle transformation reflects the growing professionalisation of law. The publication of these texts and the availability of more systematic law reports, even if these were still fairly limited, allowed for the more abstract formulation of legal doctrines of general application. But criminal law continued to be viewed primarily as a practitioners’ subject. This was to begin 47 Ibid. 48 J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland (1867). This went through five editions between 1867 and 1948, the first three under his direction. For Macdonald’s own account of the origins of the work see J H A Macdonald, Life Jottings of an Old Edinburgh Citizen (1915). 49 On his career see Macmillan, “Macdonald, Sir John Hay Athole, Lord Kingsburgh (1836-1919)”, rev R Shiels, Oxford Dictionary of National Biography; Macdonald, Life Jottings (n 48). 50 Macdonald, Criminal Law, 1st edn (n 48) 2-3. 51 Ibid at 4. This is followed by a discussion of the general principles on which individuals are to be held responsible, looking at non-age, alienation of reason, and compulsion, where it argued that the general rule is that a person is answerable unless he or she falls within one of the exceptions: 14 ff.

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to change following the publication in 1967 of the first edition of Gordon’s Criminal Law. With this the criminal law became capable of being viewed as both an academic and a practical discipline, and this was to have a further effect on the understanding of principle.52 (2) Gordon’s Criminal Law As Gordon notes in his introduction, the sources on which a systematic analysis of Scots criminal law could be based were remarkably limited in 1967.53 The most recent edition of Macdonald had been published in 1948, and there were no other textbooks of any currency.54 There was little periodical literature to speak of, and law reporting was in an appalling state. The nineteenth-century series of Justiciary Cases had ceased publishing in 1913, and criminal cases were reported in either the Session Cases or in the Scots Law Times. These reports – especially the former – were issued on a very irregular basis, and frequently omitted significant decisions on the criminal law. In this context, it is hardly surprising that the quality of many judicial decisions was poor; and where judges did have knowledge or experience of the criminal law – such as Lord Justice Clerk Aitchison – it was based on their time at the Bar, and this was reflected in the practical bent of their opinions. Gordon’s aims were set out in the first sentence of the book: “[to provide] a systematic analysis of modern Scots criminal law both in the field of general principles and in connection with particular crimes, and [to provide] the practitioner with an account of the principal common law and statutory offences”.55 These aims roughly correspond to the two parts of the book, with the first part (395 pages) addressing issues of general theory, the second

52 Cf English criminal law. While the literature of the law was dominated by practitioners’ manuals, there were a number of influential criminal law textbooks – notably C S Kenny’s Outlines of the Criminal Law (1902) – reflecting the fact that it was taught as an academic subject as well. In addition several failed codification projects provided a useful resource for theoretically minded lawyers. See K J M Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800-1957 (1998) 53 Gordon, Criminal Law, 1st edn (n 1) 3-8. There is not space here to consider differences between the first and second editions. References are accordingly to the first edition. See also the review by J W R Gray (1968) 31 MLR 474. James Chalmers has recently drawn attention to Thomas Taylor’s lectures on criminal law, dating from around 1945, which followed a different approach to Macdonald, but these were unpublished and probably not widely known. See J Chalmers, “Thomas Taylor’s lectures on criminal law”, in H L MacQueen (ed), Miscellany Five (Stair Society vol 52, 2006) 189. 54 With the notable exception of T B Smith, A Short Commentary on the Law of Scotland (1962) which contained three chapters on the criminal law. 55 Gordon, Criminal Law, 1st edn (n 1) 3.

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part (660 pages) undertaking a systematic exploration of specific crimes.56 In this the book marks a distinct break from its predecessors both in form and content, through the distinction of a general and special part, and through the detailed discussion of the philosophical and legal issues relating to crime and criminal responsibility. The first half of the book is notable for its attempt to impose some sort of theoretical order on Scots criminal law. The model for this was to seek an alignment with the main trends of Anglo-American theory of the period, drawing in particular on Glanville Williams’ Criminal Law: The General Part, in which criminal law was being recast as a form of normative, philosophical inquiry, organised around the question of individual responsibility.57 The book thus began with a detailed discussion of the nature of crime and the distinction between mala in se and mala prohibita, linking this to a critical discussion of the so-called declaratory power of the High Court.58 This was followed by a discussion of the concept of responsibility in chapter 2 which drew on writers such as A J Ayer and H L A Hart on the ascription of responsibility, before moving on to discuss the relationship between responsibility and punishment.59 Another major difference from earlier works, in addition to the size of the general part, was the fact it followed the conceptual schema of Williams. This meant that for the first time in Scots law there were entire chapters devoted to concepts such as causation, error and particular defences, whereas Hume, for example, had largely dealt with cases involving error as part of his discussion of the particular crime in connection with which the issue had arisen. The central concept of principle in Gordon, following Williams, is that of rules of general application which can be formulated independently of particular situations (which is not to say that they are necessarily separate from that practice), and which are to act as a guide to more specific situations.60 Crucially, in seeking to formulate such principles these are justified 56 Sir Gerald’s own account of the genesis of the book is that the general part and the section on homicide were his PhD thesis, while most of the special part was required by the Scottish Universities Law Institute in order to make the book a more attractive commercial proposition. 57 G L Williams, Criminal Law: The General Part (1953). While Gordon borrows the conceptual schema, he is less enthusiastic about Williams’ utilitarianism. See Lacey (n 20) 29-36 for a discussion of Williams and of Jerome Hall who was engaged in a similar project in the US. Williams’ influence extended well beyond the UK, as his work also had an impact on Wechsler and the American Law Institute’s Model Penal Code. 58 This drew on an impressive range of sources from classic criminological writings (Mannheim, Sutherland), to contemporary legal theory (Williams, Friedman, Kenny), to David Hume and Beccaria as well as a range of sources of Scots law. 59 Mens rea was not discussed until ch 7 (“The criminal mind”). 60 Though the idea of rules of general application was not always consistently applied. Diminished responsibility, which applies only in relation to homicide, was discussed in the general part (ch

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not in terms of the practice of the law, but in terms of the more fundamental propositions which are elucidated in the discussions of responsibility and punishment – the effect of which is also to broaden the scope of criminal law to include such as questions as punishment and procedure. That is to say that, by contrast to Hume, cases are cited less to justify or legitimate such principles than to illustrate them. This can be seen, for example, in the discussion of omissions.61 This began with a brief discussion of the nature of liability for omissions, in which it was conceded that there was little Scottish authority.62 He then followed English law in the identification of four duty situations in which criminal liability might arise for the failure to prevent a situation arising.63 In the discussion of each of these four situations, the argument for the imposition of liability is justified by discussion of general principle. However, while there is discussion of a number of old Scottish cases, it has been pointed out that these decisions make little or no reference to the kind of duty that they were being taken to support, and had in most instances been prosecuted as the crime of “cruel and unnatural treatment and neglect of persons”.64 The crucial point here is that the principles were presented as to a great extent independent of the Scottish authority, and as standing or falling on the truth they expressed and their consistency with other parts of the law, rather than their foundation in Scottish practice.65 A similar pattern was followed in the second half of the book. There is once again an attempt to apply a certain kind of conceptual rigour that was alien to Scots law of its time. This is principally seen in the analysis of ­definitions of crimes in terms of the distinction between actus reus and mens rea. While writings on Scots law prior to Gordon did, say, acknowledge a general ­requirement of conduct, there was no systematic discussion of this in the case 11). For further discussion of the influence of crime of homicide on the conception of the general part, see Farmer, Criminal Law, Tradition and Legal Order (n 4) ch 5. 61 Gordon (n 53) 73-82. This is discussed at greater length in R Shiels, “Scots criminal law and liability for omissions” (2006) 70 J Crim L 413. 62 See e.g. Gordon, Criminal Law, 1st edn (n 61) 74: “The problem [of the distinction between voluntary and involuntary omissions] does not appear to have been discussed in Scotland”; and at 75 noting that Lord Ardmillan declined to address the general question of liability for failure to prevent a crime in Geo Kerr and Ors (1871) 2 Coup 334 – though this has not prevented the case being cited as authority for just such a principle. 63 Although he drew also on German law (75 n 74), an Australian case (77 n 84), Macaulay’s notes on the Indian Penal Code (82), O W Holmes (75 n 75) and Jerome Hall (80). 64 See e.g. McManimy and Higgans (1847) Ark 321; Wm Hardie (1847) Ark 247. The case law is discussed in Shiels (n 61) 415-417. 65 Leading Shiels (n 61) to suggest that the proper approach in Scots law might not be duty-based at all.

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law, and far less any attempt to distinguish in any systematic way between actus reus and mens rea in offence definitions. Gordon’s approach, which set out clear definitions and made specific distinctions between the conduct and the mental element of each crime, thus marked a distinctive break. Each chapter proceeds by moving from discussion of the general idea, drawing once again on extensive theoretical and comparative sources, to the attempt to marshal an account of how Scots law expressed and was consistent with the general scope of the crime. This approach can be illustrated by considering the chapter on assault.66 The definition of assault, and its various aggravations, were discussed with an almost exclusive reference to Scottish cases, both reported and unreported. It is not until the latter part of the chapter, where the discussion turns to possible justifications for assault, that the tone becomes more speculative and reference is made to the kind of sources that are found throughout the first part of the book.67 Where there is a marked difference from, say, the treatment of assault in Macdonald is in the critical rigour of the discussion and the way in which the conceptual framework is used to order the discussion and throw a new critical light on the practices of the Scottish courts.68 It is not clear, however, that it is the same idea of principle that is running through the second part of the book – or at least the picture is much more ambiguous. There is an attempt systematically to apply distinctions and concepts developed in the first part to the analysis of particular offences, for example in the separate treatment of actus reus and mens rea. However, the overall model is different, with each chapter moving quickly from general points to the analysis of the history and structure of the offence. Here the discussion of Scots authority is not only detailed and systematic, but it is integral to the justification of the scope and content of the law. Authority is not sought in external sources but draws on the practice of the law. If the first part of the book largely neglected the issue of the legitimacy of the law (in the sense of the foundation of the authority to enforce the criminal law) in favour of more abstract principles of responsibility, it is through a closer reading of the second part, and the structure and development of offences, that we can begin to read such an account into Gordon’s work. In this it draws on and reinvigorates the model established by Hume. 66 Gordon, Criminal Law, 1st edn (n 61), ch 29. 67 See e.g. the references to Glanville Williams’ work at 773, 775 and 776 (on the question of the consent of the victim), and the long reference to the Indian Penal Code at 776 n 48. 68 See e.g. 770 on whether the doctrine of transferred intent applied in Scotland, or 777-779 on confusion in relation to provocation in assault.

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C. CONCLUSION: ON PRINCIPLES AND BEING PRINCIPLED Better understanding of the general principles upon which our law depends may also increase the extent to which these principles are accepted by society in general. The court also has a continuing role in deciding how these general principles fall to be applied to factual situations, which are different in detail, but not in principle, from those which were before Hume and Alison, whose works continue to be central to a proper understanding of the general principles themselves. (Drury v HM Advocate 2001 SLT 1013 at para 5 per Lord Mackay of Drumadoon)

I have shown that there is no single idea of principle in Scots criminal law, and rather that the literature of the law reflects different ideas and uses of principle and that these are in important respects distinct from contemporary ideas in Anglo-American thought. These in turn reflect the different concerns, conceptions of the criminal law, political pressures and legal resources that were available. If there is a continuity it is perhaps to be found in the kind of sentiments expressed in the quote from Lord Mackay. This, centrally, is the commitment to the idea that the criminal law is based on principles – even if those principles are hard to discern to the outside observer – and that it is the role of the courts to interpret and apply those principles in such a way that they are accepted by society in general. While there is of necessity a certain vagueness around the issues of how that acceptance might be manifested or in what it might consist, this commitment to a principled criminal law can play an important function in three different ways. First, there is the sense of being principled in decision-making, as opposed to pragmatism or the making of ad hoc decisions. In this sense a decision can be considered principled if it is made according to criteria that can be clearly articulated in advance, offering some sort of consistency in decision-making, and a measure against which decision-makers can be held accountable. While this sense of principle says nothing about the content of particular laws, it should not be dismissed out of hand since it brings with it a commitment to a minimal level of systemic consistency and coherency. This has been important in the Scottish context, where the courts have often sought to adopt an approach drawing on Scottish resources and are often trying to find (with differing levels of success) distinctively Scottish answers to problems that have taxed criminal lawyers elsewhere.69 Sir Gerald Gordon has made a huge contribution here by having offered a systematic account of such criteria, and by having sustained critical discussion through his commentaries on criminal decisions. More broadly, it suggests a commitment to some substantive principles of 69 This approach also characterises the Draft Criminal Code for Scotland (n 11).

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law, notably the elusive general principles that are said to be found in Hume and Alison. While it is clear that Scots criminal law has had a relatively settled practice, the substance of these principles (or indeed what turns certain statements about practice into principles) is something that is frequently opaque. However, to the extent that the claim goes beyond mere rhetoric, which I think it does, the commitment to such principles is surely a virtue in the sense that it invokes the need for ongoing critical examination of the foundations of the law. The practice alone is not enough, and there needs to be a sustained and developed reflection on that practice. This in turn suggests a requirement of principles of substantive law in the sense that principle is understood as a way of articulating the relationship between law and legitimacy, between the practice of law and the larger political and moral principles which shape our society. This last sense in particular can draw (amongst other things) on the alternative vision of principle set out by Gerald Gordon, which, even if it was alien to Scots criminal law, offers standards against which our doctrines and practices can be critically evaluated. In this respect one of Gordon’s most substantial achievements has been the establishment of Scots criminal law as an academic subject, capable of engaging in dialogue with both the world of practice and the wider legal and political culture. If Baron Hume’s Commentaries (and its successors) were primarily aimed at the practitioner, Gordon’s Criminal Law helped to create an academic community, in the sense of a community of scholars who read the same cases and follow up the same citations to the journals and law reviews.70 The success of this academic community in continuing his critical work, and will be the continuing measure of his achievement.

70 See G Fletcher, “The nature and function of criminal theory” (2000) 88 California LR 687 at 688.

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7  A Human Right to a Fair Criminal Law Victor Tadros* A. what is a human right? (1) The moral basis of human rights (2) Aspiration and the institutionalisation of human rights B. avoiding punishment C. from morals to institutions (1) Principles of democracy (2) The competence of courts D. conclusionS Here’s a puzzle. Article 6 of the European Convention on Human Rights (ECHR) protects the right to a fair trial. Although various articles of the ECHR provide limits on the scope, quality and content of the criminal law, there is no comparable article providing a right to a fair criminal law. Why not? Suppose that a defendant wishes to contest a criminal charge that has been brought against him. The criminal trial (as well as pre-trial procedure) provides the procedure that governs his contest. The content of the criminal law provides the basis of the contest at trial. At first blush, it would seem that ensuring that the rules of the contest are fair does not mean much when the basis of the contest is unfair. To see this, imagine that the state provides that you are entitled to some benefit or burden if some fact, f, obtains. We might think that two kinds of injustice could arise in that case. First, it might be that the methods by which it is determined whether f obtains are unfair. But it is often at least as important – and, in fact, I would say that it is normally more important – that f is an appropriate basis to allocate provision of that benefit or burden.   * Thanks to audiences at Osgoode Hall Law School, York University and at the conference in honour of Sir Gerald Gordon at Edinburgh where earlier versions of this chapter were presented. Particular thanks go to François Tanguay-Renaud and Susan Dimock (who was my respondent at Osgoode Hall). Thanks also to Octavio Ferraz, Danny Priel and Prince Saprai for comments and discussion.

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This is true over a range of contexts. We want to distribute health resources fairly. One question concerns whether a person with a certain illness or disability should get a particular resource. Another question is how to determine who has the relevant illness or disability. In general, we focus more on the first question than the second. We want to allocate school places fairly to children. One question concerns the basis for the allocation (whether the child lives in the relevant area; whether the child has a sibling in the school; whether the child has special abilities or needs that particular schools are best able to provide for). Another concerns the procedure for determining whether that basis obtains. Again, we focus more on the first question than the second. Many people think that serious injustice would arise if we allocated health resources on the basis of a person’s responsibility for having the relevant illness or disability. Many people think that serious injustice would arise if we allocated school places on the basis of educational ability. And that shows that the allocation of these resources is very important. But people do not worry very much about the procedures for allocating these resources. In determining whether a state is just or unjust, in the minds of most people at least, we focus more sharply on the allocation of benefits and burdens in that state than on the procedure that the state uses for the allocation. Furthermore, we certainly would not think that a state that allocated these resources on an unfair basis would make any real progress in becoming more just by ensuring that a fair procedure was used for the allocation. Suppose that it is very unfair to allocate health resources to people on the basis of their responsibility for their illness. We would not think that a state that did this had made much progress in becoming more just by ensuring that strict procedures were in place to determine who is responsible for their illness and who is not. Except in the case of criminal justice, that is. Punishment is a burden, and later I will indicate why it is a burden that has a special quality. So why is it that in thinking about human rights as they apply to criminal justice we have been focused more on the procedure for allocating the burden of punishment than we have on the basis of the allocation? A human rights approach to scrutinising our criminal justice systems has gained considerable momentum in the UK, particularly since the Human Rights Act 1998 came into force, with Andrew Ashworth at the forefront.1   1 See e.g. A Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002); A Ashworth, “Social control and ‘anti-social behaviour’: the subversion of human rights?” (2004) 120 LQR 263; A Ashworth, “Security, terrorism and the value of human rights”, in B J Goold and L Lazarus

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I do not believe that this approach provides the sole way of critically investigating the quality of our law. After all, to say that our law is human rights compatible is not to say that it is just, a distinction that I will interrogate in a moment. But I do believe that a human rights approach can provide an important component of critical inquiry into the quality of the law. Violation of human rights is a distinctive kind of injustice, one that deserves to be marked out as special. It is in this spirit that I offer an investigation of whether there is a human right to a fair criminal law. To make progress in that inquiry, we will need to know something about how best to understand human rights. I am interested here, I should say, not in the human rights that we have agreed in human rights documents such as the Universal Declaration of Human Rights or the ECHR. We can easily agree that there is no human right to a fair criminal law in this positivist sense. But human rights documents may be flawed: they may institutionalise as human rights things that are not really human rights at all, and they may fail to institutionalise things that are human rights. Our inquiry is, in this way, philosophical and moral rather than legal. A. WHAT IS A HUMAN RIGHT? All of the criminal justice scholars that I know believe that the scope of the criminal law of England and Wales, as well as that of Scotland, is so wide, so badly defined, so deficient in providing adequate fault requirements or defences to liability, that it is seriously unjust. The fact that the criminal law is seriously unjust obviously does not establish that any human rights abuse has been perpetrated. In order to establish that, we need to know something more about what human rights are. To say that there are human rights that are not institutionalised supposes a non-positivist conception of human rights. That view is widely endorsed: countries which practised or legalised slavery breached human rights before the idea of human rights was thought of. We can, I think, distinguish two basic non-positivist ideas of human rights, and consequently we can use the language of human rights in two further ways beyond that used by positivists. First, we can use the language of human rights to refer simply to some set of rights that people have against various different kinds of action or inaction of their states (or some other specified set of duty holders), identified solely by the quality of the rights that are protected. For example, some people (eds), Security and Human Rights (2007) 203; and A Ashworth and M Strange, “Criminal law and human rights” [2004] EHRLR 121.

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might think that a human right has been violated by a state if the state has violated a right that a citizen holds against the state and that right protects a very basic need that any person would have. In that sense, we can say that a person’s human rights have been violated without indicating that their human rights should be institutionalised. Some people might believe in human rights in this sense but also think that no human rights should be institutionalised. Human rights, they might say, are best protected through the political process with no special institutional mechanism for protecting these rights.2 Secondly, we can use the language of human rights to refer to those rights that ought to be institutionalised through some convention to be enforced through some institutional mechanism – most obviously, but not necessarily, a court. On this conception of human rights, to say that X has a human right to p is to say that the right to p ought to be protected by some special institutional mechanism to govern or restrain the power of states to interfere with X’s right to p, or to authoritatively criticise states who interfere with X’s right to p. There need not be any institutional mechanism for protecting human rights for human rights of this kind to exist. The existence of human rights of this kind indicates that there is a duty on states to create institutions to help protect those rights. (1) The moral basis of human rights The challenge for a conception of human rights of the first kind is to distinguish human rights from injustice. Can we find some distinctive moral quality of human rights that would adequately constrain the use of human rights language so that it cannot be used to refer to any kind of injustice? If all that we are saying when we say that a person’s human rights are interfered with is that the person is treated unjustly, we are better to drop this moral but non-institutional conception of human rights. This leads some people, such as Joseph Raz, to be sceptical about whether any real progress can be made on a non-institutional account of human rights. Human rights talk is no more than talk of an interference with rights that people have that generate duties on other people. And that is no more than simple injustice. To make some progress we might focus on interests that are derivative of some special feature of human beings. Animals, like humans, have interests. But because of some special quality that humans tend to possess, humans have special rights. It is natural, I think, to focus on the capacity (either   2 See J Waldron, Law and Disagreement (2001).

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emergent, in the case of children, or realised, in the case of competent adults) that most humans have for moral autonomy: the ability that humans have to set goals for themselves, to endorse those goals in the light of values that they consider and endorse, and to pursue those goals. That idea gives rise to two difficult questions that I will not consider here. One concerns those who lack the relevant capacities, or even the capacity to develop those capacities: do they have human rights or are their rights derivative of the human rights of people with the relevant capacities? The other is the question of why our human rights should not vary with our degree of moral autonomy or with our capacity to develop moral autonomy. I leave these questions aside. Assuming an adequate resolution of these issues, we might say that all people are to be treated with equal respect in virtue of the fact that they are, or have the capacity to become, morally autonomous. The key difficulty is that this approach appears to do little to avoid the original difficulty I raised about moral approaches to human rights. Here’s why. Most contemporary theories of justice argue that we ought to derive views about what justice requires from the fact that humans have special qualities of these kinds. We owe what we owe to each other, justice, in virtue of the fact that we are morally autonomous. For example, failure to distribute wealth effectively might be thought, by some political philosophers, to be a failure to make our social policies justifiable to each other as morally ­autonomous agents. And that amounts to a failure to respect the moral autonomy of the worst off: we impose policies on them that they cannot be expected to endorse from their own perspective. If human rights are based on the special interests that we have as humans, any injustice is a human rights violation. And, in that case, human rights have no distinctive quality. We might make progress by drawing the following distinction. On the one hand, states might fail to recognise the equal status that citizens have as morally autonomous. On the other hand, they might fail to appreciate the implications of the equal status that citizens have. In perpetrating an injustice, a state fails to do what the equal status of its citizens as morally autonomous requires of it. It fails to understand the implications of equal status. Human rights are special by virtue of the fact that they protect the equal status of citizens. They are, for this reason, more concerned with the failure of states to recognise equal status than they are with failures to appreciate the implications of equal status. This distinction – between respecting the fact that citizens have equal moral status and understanding the implications of equal moral status – is by no means sharp, of course. The greater the injustice perpetrated, the

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more we will think that the state has failed to recognise that its citizens have the status of morally autonomous agents, rather than failing to understand the implications of that status. But a lack of sharpness is not fatal to a ­distinction. The greater an injustice that the state perpetrates against an individual, the more likely we are to think that the state fails to recognise that the citizen has equal moral status as a morally autonomous agent. A state that does what it believes to be just in distributive justice may recognise that all citizens have equal status as morally autonomous agents even if what it does is less than ideal. But if the state altogether fails to provide for the very poorest citizens in its society, we might conclude that it fails to recognise that they have equal status as morally autonomous at all. After all, in failing to provide adequately for some of its citizens the state fails to provide the circumstances in which their moral autonomy can be realised. The basic moral idea of human rights that I have outlined gives rise to a range of different ways in which human rights can be violated. Perhaps the central way in which inadequate respect for the person as an autonomous agent is shown is by acting (or omitting to act) in a way that deprives the person of the ability to live a minimally decent life, for the whole or for a significant portion of the life. Of course, not every violation of a human right of this kind in fact has this effect.3 When he was imprisoned in apartheid South Africa, Nelson Mandela’s human rights were violated. But one could hardly claim that in consequence he failed to live a life of value, or a minimally decent life. Nevertheless, human rights violations do often substantially erode a person’s ability to live a decent life. The apartheid government of South Africa showed lack of regard for Mandela as a morally autonomous person even though it failed to do what it wanted to do: to make his life lack decency. Many of the tortured, the maimed and the wrongfully imprisoned, as well as the homeless and the starving, will fail to live minimally decent lives, or at least a significant portion of their lives will likely not be minimally decent. But the conception of the moral foundations of human rights that I am considering here has the advantage that it can also recognise abuses of human rights in cases where the circumstances of the person harmed are not such that they are deprived of adequate opportunities to realise their moral autonomy. Here are three further implications of this view that I hope give it further plausibility.  3 Many accounts of human rights violations make this error. See e.g. D Bilchitz, Poverty and Fundamental Rights (2007); D Miller, National Responsibility and Global Justice (2007) 178-185.

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First, a person’s human rights may be violated if that person is wrongfully discriminated against in a way that implies that they are less valuable or important than other human beings. For example, if preference for goods or resources is given to one racial group over another, this can violate the human rights of the group that is discriminated against. That is so even if the group discriminated against have a reasonable quantity of resources. Some people, such as James Griffin, argue that simple unequal treatment is an injustice that does not violate human rights.4 But human rights are violated if a group is discriminated against because they are considered as having less status than other humans. Even if those people have enough to live a decent life, they still have their human rights violated. A second way in which a person’s human rights might be violated is to do with what the state communicates rather than what it does or fails to prevent. The state may fail to vindicate the rights of citizens who have had their rights violated, for example by failing to condemn criminally wrongful conduct or by condemning that which is not criminally wrongful. The state may fail victims of crime by failing to provide a forum to condemn those that have harmed them.5 And it may fail defendants by condemning them where it lacks the epistemic or procedural resources to do so, for example where the presumption of innocence has been interfered with. In this way it may demonstrate that it does not recognise that they have the relevant moral status. A third way in which human rights may be violated, which will be important for my discussion here, is by treating a person merely as a means for the good of others without adequate protection being given to them against being treated in that way. This may violate human rights even if it does not have the tendency to undermine the person’s ability to live a valuable life. For example, suppose that many people in a state find it funny to see fellow citizens suffer. Some citizens are selected at random and given painful electric shocks for the pleasure of others. That would violate the human rights of those shocked even though they are neither treated as though they have unequal status (in that everyone is deemed by the scheme to have the same status) nor are they deprived of the conditions necessary for a valuable life. A central way in which failures of criminal justice give rise to human rights violations is that they fail to give citizens adequate protections against being treated as a means. This should be seen as a denial of the status of citizens as ends in themselves rather than a failure to understand what equal status requires.   4 See J Griffin, On Human Rights (2008) 39-44.   5 This provides one reason for a positive obligation on states to criminalise some conduct. Such a right is recognised in M C v Bulgaria (2005) 40 EHRR 459.

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(2) Aspiration and the institutionalisation of human rights Human rights are commonly thought to have an international dimension, and that is central to how they should be institutionalised. When a state abuses the human rights of its citizens, it becomes a proper subject of criticism from other states. But that is only possible if human rights can be institutionalised at the international level. What do I mean by the institutionalisation of human rights? I take a broad view of the kinds of institutional arrangement that might play a role in protecting human rights. From a European perspective, we might think that courts are the obvious choice for the institutionalisation of human rights. But that is not the most common way in which human rights are institutionalised, let alone protected and promoted, internationally. Nevertheless, if a human right is institutionalised, I take it that some institution has been created which makes determinate declarations about whether a rights violation has taken place, which is designed to create a measure of accountability of states or state actors for their actions. Importantly, it must be remembered that even giving courts or other bodies competence to scrutinise whether human rights abuses have occurred says nothing about the kinds of power those institutions have if they determine that an abuse has been perpetrated. Courts might have the power to strike down legislation that amounts to an abuse of human rights but, as the Human Rights Act 1998 (HRA) demonstrates, this is not the only function that courts can have. Under section 3 of the HRA, courts of England and Wales have the power to interpret legislation in an attempt to make it compatible with the ECHR. If this is impossible, they have the power, under section 4 of the HRA, to declare legislation incompatible with a convention right. But they do not have the power to strike legislation down. If a court makes a declaration of incompatibility, there will be considerable pressure on parliament to act, but that pressure is political rather than legal. I now want to explore the question of the significance of institutionalisation for the existence of a human right. Some people think that we ought to say that a person has a human right to something only if the relevant violation is capable of being institutionalised at an international level. On this view, something may be very bad morally speaking, it may be a serious violation of a fundamental moral duty, grounded in the moral status of the victim, but it will not count as a human rights violation unless it warrants international interference of some kind or another. If that is true, it is a limit on, or a ­specification of, what can be regarded as a human rights violation.

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I doubt that this is the right view. I think that we are better to distinguish the two non-positivist conceptions of human rights that I outlined earlier. Institutionalisation is not the only way in which human rights are currently promoted and protected. There is a broad range of practices, governmental and non-governmental, that are involved in the scrutiny of human rights violations, and that work in different ways to help with the protection and promotion of human rights.6 There is an important difference between the human rights that ought to be institutionalised formally and those that ought to be promoted and protected without any legal or any other formal institutional regime to provide assistance. But we should still use the language of human rights to condemn societies for failing to respect the equal status of their citizens even if there is no prospect of institutionalising those human rights. We do that in order to facilitate and encourage non-institutional responses to these violations. If that is right, it is best to say that we have a human right of a different kind if that human right ought to be institutionalised. As I noted earlier, an institutional conception of human rights is not positivist. We have institutional human rights even if they have not been institutionalised in fact. My institutional conception of human rights depends not on whether the moral human right has been institutionalised, but rather on whether it ought to be institutionalised. The question whether we ought to institutionalise a moral human right can be asked in different ways. We might understand the idea in the way that Joseph Raz understands it:7 that a human right of this kind (or, in his view, any kind) exists only if it should be institutionalised now, under present international economic and social conditions. Raz’s idea is that we should constrain the scope of human rights according to whether the international “community” would tend to do a sufficiently good job of enforcing those rights without further distorting unequal political power between states. This seems to me an important idea about the pragmatics of what human rights we should include on human rights documents at present. But it is insufficiently aspirational. It implies that the human rights that people have, and the moral duties that the international community has to prevent the gravest forms of injustice, are dependent on the tendency, rather than the capacity, of powerful states to carry out those moral duties. The more corrupt the powerful countries tend to be, the less human rights others have!   6 See C R Beitz, The Idea of Human Rights (2009) ch 2.   7 See his “Human rights without foundations”, in S Besson and J Tasioulas (eds), The Philosophy of International Law (2010) 321.

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The institutional dimension is thus better thought of in more ideal terms: something is a human right only if it is capable of being institutionalised. Whether something is capable of being institutionalised depends not on what we have institutionalised, nor indeed on the capabilities of the institutions that we have. It depends on institutions as we can realistically imagine them. A person can have their human rights violated even though there are no institutions which can scrutinise their violation, and even though the social and political conditions are not now present in which their scrutiny and institutional protection can be just. Institutional and political arrangements may not now be present to ensure that protecting some human rights is now feasible. Or perhaps protecting some human rights cannot be done without enhancing the position of rich and powerful states against poor and weak states. But that should not lead us to deny that those human rights are being violated. And it is very important to say that there is a distinctive idea of human rights such that those human rights are being violated. For to say that implies a duty on the rich and powerful states to work towards the political conditions under which those human rights can be i­nstitutionalised. Hence, recognising that there are human rights abuses which are currently non-justiciable is important for two reasons. First, this conception of human rights importantly allows non-governmental organisations to criticise states for their human rights abuses. We thus take seriously the important role that human rights have had in providing a language in which people, rather than states, can expose states that fail adequately to respect their citizens as human beings. And secondly, it puts pressure on states to create international conditions under which those rights could become justiciable, so that those states can fulfil their human rights duties. This view allows us to take seriously the idea that we should have regard to the way in which powerful states may use human rights practice to foster their own political power and influence in the international sphere. But it does so without denying that those states are failing in their obligations to protect the human rights of others. Violations of human rights thus create pressure to create institutions, and to create the international conditions under which their protection is feasible without bolstering the power of rich states over poor states.

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B. AVOIDING PUNISHMENT In the light of these ideas about the nature of human rights, let us turn to the criminal justice system in particular. The central significance of human rights in this area is to protect citizens against being convicted of criminal offences and punished. Citizens are entitled to be protected from punishment, which will be my main focus, for two reasons. The first, which is not very contentious, is that punishment harms people. It harms people to deprive them of resources or liberty that they need to pursue the good projects that they are involved in. People want to be protected against being harmed. But there is nothing special about punishment in that regard. People might be harmed (or at least very significant interests might be set back) through the civil law, which takes resources away from them, or by failing to provide them with medicines that are available and are essential to their survival. Punishment is a special kind of harm, though. When people are harmed through punishment they are made to suffer in order to deter other people from committing offences. They are made to suffer to prevent harms to others, harms which they would have no responsibility for causing were they not punished. That is the nature of general deterrence. It harms people as a means to enhance the security of citizens from crime. General deterrence is not widely accepted as a justification of punishment by philosophers of punishment or criminal justice scholars. I think that these people are wrong not to accept it: general deterrence is central to the justification of punishment. But even if these people are right to reject general deterrence as a justification of punishment, it is a justification that is commonly accepted by the public and by politicians. Even if it was not a justification of punishment de jure, it would be provided as a justification de facto. When we protect people against being punished we protect them against being harmed as a means to the good of others. If we cannot avoid harming some people as a means altogether, because abolition of our institutions of punishment would have social costs that we would be unwilling to bear, we ought to be particularly concerned to provide adequate protection against being harmed in this way. When we think about human rights protections that we provide to people against being punished, both the fact that the person will be harmed, and the fact that they will be harmed as a means, ought to concern us. We have good reason to want human rights protections against being harmed in various different ways: to be deprived of our liberty or our resources. These

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c­ onsequences obviously interfere with our moral autonomy. But we have special reason to want human rights protections against being harmed as a means to the good of others. To be treated as a means is to be denied the status as an end, a status that we value in the light of our moral autonomy.8 We might provide protection to people against punishment in several ways. One very important way in which we might do that is by ensuring that punishment is easy to avoid. One way to enhance the ability that people have to avoid punishment is by providing them with a social structure, a set of opportunities and an education which makes it easier for them to pursue a course of life in which breach of the law is not tempting. We know that poverty, or perhaps inequality, has criminogenic properties. Those who are most likely to be punished for criminal behaviour are the poorest in society, and particularly those who are the poorest in unequal societies. We routinely fail to protect people adequately from being punished by failing to alter the social conditions under which relatively high crime rates are to be expected. Arguably, the criminogenic conditions that we create undermine our entitlement to hold people responsible for their offending, not because they lack responsibility for what they do, but because we are complicit in what they do; we are complicit because we create the conditions under which responsible agents will have a tendency to offend. That, whilst important, is not my focus here.9 Another mechanism of protection is more legal, and that will divert me here. We might protect people from punishment by ensuring that our criminal laws and criminal justice institutions operate in a way that restricts the circumstances in which a person is punished. There are four main ways in which our laws and institutions might provide protection against punishment and they are relatively familiar. First, we ensure that our criminal laws are announced in advance in a way that is reasonably clear, easy to understand and not too complex. That allows people to plan their lives around the criminal law, giving them an adequate opportunity to know its scope and how it applies to them. Second, we ensure that a person can be convicted of a criminal offence, for which punishment is imposed, only if he has had a proper pre-trial pro­cedure, and a fair trial, with the burden of proof placed on the prosecution to an appropriate standard. That protects people against being convicted of an offence when they have not perpetrated that offence. But (assuming   8 I will have much more to say about this in a forthcoming book, provisionally titled The Moral Foundations of Criminal Law.   9 See V Tadros, “Poverty and criminal responsibility” (2009) 43 Journal of Value Inquiry 391.

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that the criminal law is appropriately defined) it also enhances the ability that people have to avoid punishment. If trial rights are protected properly, people need not be too concerned that their conduct looks suspicious if they are not in fact breaching the law. Third, we ensure that a person can be convicted of an offence only if they were criminally responsible for violating the law. That ensures that people do not fall foul of a regime of punishment by accident, or for some action that is not properly attributable to them, or because of circumstances which make it very difficult not to breach the law, or because they lack the capacity to adhere to the law. Fourth, we ensure that the scope of the criminal law is not too broad. We only criminalise conduct when we have serious harms to prevent, and when alternative ways of dealing with the relevant problem, such as using the civil law, are wholly inadequate.10 In that way we ensure that people are not easily tempted to violate the criminal law. There will be many versions of the good life, as well as some versions of the not-so-good life, that are compatible with adhering to the law. People can refrain from violating the criminal law even if they sometimes behave immorally. Along with the first method, these last two methods of protecting us against being punished are components of a fair criminal law. They are part of the substance of the criminal law. But, unlike the first, they are not currently protected by the ECHR, or are protected only in a very piecemeal way. Strict liability offences have generally been regarded by the courts as compatible with our human rights obligations. Whilst it was once thought that strict liability offences had to be kept within “reasonable limits”,11 the House of Lords now suggests that even if the offence is very serious, carrying a heavy sentence, strict liability offences do not violate article 6(2) of the ECHR, which protects the presumption of innocence.12 It is controversial whether this is the right view either morally speaking, or on the best interpretation of the presumption of innocence,13 but it is now firmly established in law. 10 I investigate when this might be so in V Tadros, “Criminalization and regulation”, in R A Duff, L Farmer, S E Marshall, M Renzo and V Tadros (eds), The Boundaries of the Criminal Law (forthcoming). 11 See Salabiaku v France (1988) 13 EHRR 379 at para 28. 12 R v G [2008] UKHL 37. 13 Contrast V Tadros and S Tierney, “The presumption of innocence and the Human Rights Act” (2004) 67 MLR 402; V Tadros, “Rethinking the presumption of innocence” (2007) 1 Criminal Law and Philosophy 193; and R A Duff, Answering for Crime (2007) ch 9 with P Roberts, “Strict liability and the presumption of innocence: an exposé of functionalist assumptions”, in A P Simester (ed), Appraising Strict Liability (2005) 151; and A Ashworth, “Four threats to the presumption of innocence” (2006) 10 International Journal of Evidence and Proof 241.

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Various convention rights do, of course, impose some limits on the scope of the criminal law.14 But these are likely to have little impact on substantive law. In the words of Andrew Ashworth: Governments over the years, of all political hues, have succumbed to the temptation to put through Parliament populist legislation which, on any reasonable conception of the proper limits of the criminal sanction, ought not to have been enacted. The Human Rights Act may not make a great deal of difference to this, because the rights declared in the Convention are not extensive and were never intended as a complete statement of the limits of the criminal sanction. As expected, the impact of the Human Rights Act on the substantive criminal law (as distinct from criminal procedure and evidence) has been rather small.15

This distinction between procedure, which is extensively protected by human rights standards, and substance, which is not, should be surprising given what I have just said. An expansive criminal law, and one with many strict liability offences, fails to protect people against being punished to as great a degree as one with an unfair system of trials. The criminal law fails to protect people from being punished if, given their motivations, we can only expect that people will breach it. For example, suppose that the criminal law proscribes some conduct which, although wrong, is regarded by many people to be enjoyable. We can expect that many people will breach the law. They will do so either because they do not see the conduct as wrong, or if they do see it as wrong they will be tempted to do wrong for fun. They will do it even if there is a threat of punishment. In that case, the protection that people have from conviction will not be enhanced very significantly by ensuring that the law is precise and that they have the right to a fair trial. If any benefits to other citizens by enacting such a law are modest, we ought not to criminalise the conduct. We see this clearly in the US in the area of the prohibition of drugs. Possession of most prohibited drugs is not, I think, morally wrong. The criminal offences which prohibit possession in the US are reasonably precisely drafted and the punishments (which are very severe) are clearly announced in advance. Most people who are convicted of those offences know that they are breaching the law. But even if drug possession is wrong, it is regarded by them either as valuable in pursuing their version of the good life, or at least as very tempting. So the law is frequently breached and many people are punished.16 14 See Ashworth, Principles of Criminal Law 48-52 for a brief list. 15 A Ashworth, Principles of Criminal Law, 5th edn (2006) 64. 16 The person who has done most to highlight these issues is Doug Husak. See e.g. D Husak, Legalize This! The Case for Decriminalising Drugs (2002); D Husak, Overcriminalisation: The Limits of the Criminal Law (2007).

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Similarly, the law of England and Wales prohibits any sexual contact between people below the age of sixteen, even with consent.17 Many of those below the age of sixteen may not know that this is a criminal offence, but even if they did, it is unimaginable that the law would be adhered to. Sexual exploration is seen by those below the age of sixteen as a good, and young people are unlikely to adhere to the requirements of the law in this area. And although some sexual behaviour between young people may be wrong, it is very unlikely that they will adhere to the law. Unless we can claim that the law offers a great deal of protection to people against being harmed through this protection, which is not very realistic, we ought not to criminalise it. Whether people will be tempted to breach the law also, of course, depends on the likelihood of being discovered, prosecuted and convicted for these offences. Because people have good reason to believe that they can get away with committing these offences, they are unlikely to adhere to the law. But they are at risk of prosecution and conviction. It is very unlikely that they will not run that risk. In that way, we fail to give people adequate protection against being punished. The fact that people will be tempted to breach the law may not always provide a decisive reason against criminalisation. There may be offences which are very important for the protection of other people against being harmed but which we do not expect people not to breach. But the fact that many individuals will breach the law given the motivations we can expect them to develop is a powerful reason against criminalisation, or so it seems to me. Creating offences which we expect people to breach reduces the protection we provide them to be treated as a means. It thus does less to protect their status as ends in themselves. C. FROM MORALS TO INSTITUTIONS If I am right in what I have just said, there are no special moral grounds to favour protecting the right to a fair trial or the right against retroactive criminal law over protecting the right to a fair criminal law. A state may fail to provide adequate protection against being punished by a failure sufficiently to protect the rights of citizens at trial, or by criminalising conduct retroactively. But it may also do so by enacting strict liability offences without adequate defences and by developing the reaches of the criminal law too far. Failures of these kinds may demonstrate a failure of the state adequately to 17 Sexual Offences Act 2003 s 13. For further discussion, see V Tadros, “Crimes and security” (2008) 71 MLR 940.

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recognise that its citizens have a special status, given their moral autonomy, not to be harmed as a means to the good of others. If that is right, subjecting citizens to an unfair criminal law violates their human rights in the moral sense. It demonstrates a failure to respect the status of its citizens as morally autonomous agents. It is important to recognise this regardless of whether we think that the human right to fair criminal law should, either now or in the future, be institutionalised. It warrants criticism of many “developed” western jurisdictions for human rights abuses against their citizens. This is an important criticism of both England and Wales and of Scotland. It is of even greater significance in the US, which currently hosts one quarter of the prison population of the world in consequence of its absurdly expansive criminal and punitive law. I now want to investigate whether it is feasible to institutionalise a human right to a fair criminal law. Is the human right to a fair criminal law justiciable? My ambition here is not to answer this question in a complete way. Rather, I want to draw out the comparison between substantive criminal law and criminal procedure. Although there is some resistance amongst academics and criminal justice officials, most people accept that there is a human right to a fair trial, and that institutionalisation of that right is justified. Even many human rights sceptics see the right to a fair trial as one of the best candidates for institutionalisation of human rights. Those who doubt that the right to a fair trial is justiciable doubt it because they are sceptical about the institutionalisation of human rights in general. My aim here is to consider whether criminal law and criminal procedure are on the same footing or whether there are differences between them with respect to the question of justiciability. In other words, I work on the assumption that the institutionalisation of a right to a fair trial is warranted as part of the institutionalisation of human rights in general, and I consider only the extent to which the justification of institutionalising the right to a fair trial applies or does not apply in the case of the substantive criminal law. There are two main questions to ask about this. First, are there special reasons of principle to think that substantive criminal law, in contrast with the right to a fair trial, should be decided democratically without scrutiny by the courts? Secondly, do the courts have greater competence to evaluate whether trials are fair than they do to evaluate whether the substantive criminal law is fair?

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(1) Principles of democracy One set of reasons that might be given against a human right to a fair criminal law has to do with the intrinsic, as opposed to the instrumental, value of democracy. Democracy might be considered important not, or not only, because it tends to produce high-quality results, but also because it ensures that the laws people are subject to are theirs. Democratic decision-making might be thought essential to the right to govern citizens by authoritative rule because through democratic decision-making we give people a participatory voice in establishing the law. It is controversial whether this is true: many people think that democracy is valuable only instrumentally; that is, only insofar as it tends to produce good decisions. But let us grant the intrinsic value of democracy for the moment. This idea might be used to cast doubt on the institutional conception of human rights in general, at least insofar as that conception applies to democratic states. That is not my concern here. As I have just suggested, I work on the assumption that the institutionalisation of human rights is not, in general, unwarranted for democratic reasons. My investigation is limited to whether there are special reasons to be concerned about the right to a fair criminal law on this score. One claim that is sometimes made in this context is that there are particularly strong reasons to think that the state’s sovereignty is eroded when other states interfere with its decisions to criminalise conduct. The character of a state, it might be argued, is particularly bound up with its substantive criminal law, and we should for this reason regard it as beyond interference by other states. It is very difficult to see why this should be so, though, when we compare substantive criminal law and criminal procedure. The criminal procedure of different jurisdictions varies widely, and both officials and citizens probably identify with the criminal procedure of their jurisdiction more profoundly than they do with their criminal law. A very obvious example is the deep attachment that citizens and officials in the UK and the US have to trial by jury and the scepticism which many officials and citizens on the continent have about the adversarial system. Furthermore, even were it true that citizens of a jurisdiction identified very profoundly with its substantive criminal law, which I doubt, it would be difficult to see this as a strong reason against international interference with the criminal law. With respect to other moral human rights, identification with the set of practices governed by those rights would hardly be a reason

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against institutionalising those rights. For example, if the citizens of states strongly identified with practices bordering on torture, or with the restriction of religious freedom, that would provide no principled reason to refrain from institutionalising those rights. At most, there would be a pragmatic concern that states would resist institutionalisation of those rights under those circumstances. But, for two different reasons, we might doubt that there would be such resistance in the case of substantive criminal law. First, given that states have broadly accepted that fair trial rights are to be governed by human rights norms, we should doubt whether these pragmatic concerns are overriding. Pragmatic concerns can be ameliorated by providing states with plenty of latitude in shaping their criminal law, just as they are provided with plenty of latitude in shaping their trial systems. Secondly, decisions to criminalise are already being governed by international agreement to a significant degree, and in crucial areas such as terrorism and drugs. The internationalisation of criminalisation decisions is concerning, given a lack of democratic participation in these decisions and a scant regard for the rights of the people who will be effected by the decision to criminalise. A second possible objection to the justiciability of the right to a fair criminal law is that the question whether a criminal law is fair is more heavily morally contestable than the question of whether a criminal trial is fair. It is more contestable, it might be argued, for the following reason. Trials are fair if they do not create a great risk of wrongful convictions. The question whether there is such a great risk is not a debatable moral question. It is a question of fact that courts are well placed to evaluate. Whether some criminal law is fair, in contrast, is inherently a moral question, and one that is very contestable. It depends on what we ought to be at liberty to do, on what is morally wrong and capable of being condemned publicly, and so on. Very contestable questions like that, it might be argued, ought to be resolved by legislatures rather than by courts. If a question is very morally difficult, we might think that question is best answered through open public debate rather than through judicial decisions. It is true that one way in which trials are unfair is a lack of accuracy. There is no equivalent question with respect to the substantive criminal law. However, that fact should not lead us to conclude that there is a fundamental difference between the right to a fair criminal law and the right to a fair trial. Many legal decisions – both those which engage human rights norms and those which do not – are morally difficult. It is in the nature of human rights that they give rise to difficult moral questions which courts are asked to resolve. An

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objection to courts playing this role is an objection to the institutionalisation of human rights altogether. If one believes in institutionalising human rights, one also believes that deep and difficult moral questions can appropriately be resolved by courts. Furthermore, there are difficult moral questions surrounding fair trials. For example, questions about the competence of defendants to instruct counsel, questions about whether there is a right to confrontation, questions about the extent to which citizens ought to have a right not to participate in their own trial, and questions about whether it is permissible to use evidence obtained by torture in another jurisdiction in a trial in this country, questions about whether juries must give reasons for their decisions are all inherently difficult moral questions concerning trials. Are these questions really easier than the question of whether strict liability criminal offences carrying heavy penalties or offences which prohibit behaviour that is very far removed from the harm to be prevented are compatible with a right to a fair criminal law? Finally, it is important to recall that institutionalising human rights does not mean that courts have the final say on these deep and difficult moral questions. As I noted earlier, the HRA does not give the courts the power to strike down legislation. Courts have the power of interpreting legislation in the light of human rights obligations and, failing that, of declaring legislation incompatible with convention rights. The decisions of courts do not bind Parliament. The fact that human rights in general involve deep and difficult moral questions has an impact on how we should determine the power of courts (or indeed other institutions). There are degrees and kinds of power that courts, whether national or international, can be given short of the power ultimately to determine how these questions will be answered for states. There is nothing special about the right to a fair criminal law in this regard. The fact that the decisions of courts will be morally controversial regarding such a right is not a special feature of this right. It is true of all human rights, not least the right to a fair trial. (2) The competence of courts Even if I am right that there are no special issues of the moral authority of courts with respect to a human right to a fair criminal law, it might be argued that courts lack the competence to evaluate whether the criminal law is fair. This problem is familiar from the debate about whether to institutionalise other constitutional or human rights. The degree to which there is a problem of this kind is thought to differ from right to right.

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Many people think that standard civil and political rights, such as the right against torture or rights of freedom of speech, raise less practical problems for courts than social and economic rights. The courts lack the competence to evaluate whether social and economic rights have been breached, and that is in contrast with civil and political rights. One reason to think that social and economic rights are special in this regard has to do with resources.18 Social and economic rights are breached if insufficient resources are diverted to those who are worst off. But resource questions are not only very contestable, the practical implications of requiring states to divert resources to those bringing human rights cases before the court will inevitably be difficult to predict, and it might be thought that courts will face greater difficulties than governments and legislatures. This is most obvious in the case of health. A person may be very badly off because they have a life-threatening illness. But providing that person with very expensive treatment may not be required by justice. That will depend on other potential uses of those resources, and a decision can be made only in the light of information that it will be difficult to provide to courts. The human right to a fair criminal law is more like standard civil and political rights on this score though. Scrutinising the criminal law does not require courts to make decisions about resource allocation that they are poorly placed to make. But we might think that the problem is not restricted to one of resources. Lon Fuller famously distinguished between those issues which are polycentric and those which are not.19 Polycentric issues are issues where granting one person an entitlement to something will have an impact on the entitlements of many other people. Issues which have large resource implications might be one of many polycentric issues. The decision whether to criminalise some conduct will often be polycentric, we might think. For example, if we criminalise possession of offensive weapons in public places, that might have an impact on the security of many people. But it also has an impact on many people’s liberty. The extent to which we should be concerned about the impact on liberty depends on the legitimate reasons that people might have for wanting to possess offensive weapons in public places. We might make exceptions for some of those people, perhaps through a general defence, or through specific defences targetted, for example, at those who possess such weapons as part of religious dress. 18 I have learned most of what I know about this issue from Octavio Ferraz. For a good discussion, see his “Poverty and human rights” (2008) 28 OJLS 585. 19 L Fuller, “The forms and limits of adjudication”, in K I Winston (ed), The Principles of Social Order: Selected Essays of Lon L Fuller (1981).

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How to tailor this offence will depend on the security gains of defining the offence in different ways compared with the impact on liberty that different offence definitions will have. If courts are given the power to determine whether a criminal offence violates the right to a fair criminal law, they will be required to scrutinise legislation in the light of these different concerns. That might be very difficult for them to do. We might think that Parliament will be better than courts at doing this. Criminalisation decisions, we might think, are in this way p ­ olycentric. There are a number of responses one can make to this argument against a human right to a fair criminal law. First, many of the human rights that we have institutionalised through the ECHR and the HRA raise issues like this. For example, issues about whether a trial is fair have polycentric implications of this kind, and they perhaps have those implications to a graver degree. Criminal justice issues in general have implications for security. Increasing fair trial protections for citizens will often erode the ability of the prosecution to gain convictions. The extent to which we protect fair trial rights depends at least in part on the implications that different policies will have for liberty and security. Furthermore, at least some fair trial issues have implications for resources as well. This is notoriously the case with providing incentives for defendants to plead guilty; many people think that this practice is essential to ensuring that the criminal justice system can continue to operate effectively within a realistic budget. Secondly, the human rights that are currently protected through the ECHR and the HRA do give courts the power and the role of scrutinising and even determining the scope of the criminal law. This is especially true of article 7 of the ECHR. If an offence is defined in a very broad and vague way, the courts currently have the role of attempting to interpret the law in a way that makes it compatible with convention rights. In Scotland this has had an impact on the controversial offence of breach of the peace: the offence has been narrowed somewhat to ensure compatibility with article 7.20 In England and Wales the courts have taken significant and political decisions about the scope of some terrorist offences, such as those created by sections 57 and 58 of the Terrorism Act 2000, to ensure compatibility with article 7.21 If they cannot interpret legislation in a way that makes it compatible with article 7, the Court is permitted to use section 4 of the HRA and declare the offence incompatible with convention rights.22 20 Smith v Donnelly 2002 JC 65; Harris v HM Advocate 2009 SLT 1078. 21 See e.g. R v Zafar [2008] EWCA Crim 184, [2008] QB 810. 22 For a more considered discussion in the light of recent decisions regarding s 58 of the Terrorism

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There is a question about whether courts should be using section 4 more often in article 7 cases to ensure that they do not make positive criminalisation decisions which they have limited competence to make. But the general point remains that article 7, which is probably the most important article affecting the substantive criminal law, already requires courts to do the job that a more general human right to a fair criminal law would require them to do. Third, even if there are some decisions about the fairness of a criminal law that raise problems of this kind, it is not true of all those decisions to the same degree. We might institutionalise a more limited right to a fair criminal law, one that protects citizens against the development of strict liability offences, and one that ensures that criminal offences are not designed in a way that is much broader than the conduct they are intended to capture. Even a more limited right of this kind could have a dramatic, and in my view quite probably a positive, impact on the criminal law of both England and Wales and of Scotland.23 In making decisions about other convention rights, courts shy away from taking decisions which are likely to have very profound resource implications. Sometimes this is done through sophistry. Consider, for example, N v Secretary of State for the Home Department.24 This case, in a very different context, concerned an applicant who suffered from HIV attempting to stay in the UK after an asylum application had failed. Sending her back to her home country, Uganda, was likely to result in her early death given that there was inadequate provision for treatment of her condition. She argued that sending her back would result in her suffering cruel and degrading treatment contrary to article 3 of the ECHR. The House of Lords rejected her application. Whilst there was an attempt to justify this decision on principled grounds, central to the motivation of the House of Lords was the concern that allowing the applicant’s case to succeed would potentially have dramatic implications for resources. Decisions about asylum, we might conclude, are no less controversial and no less fraught with difficulties with respect to resources than decisions about criminalisation. Concerns about resources might make us sceptical about institutionalising human rights altogether. But I doubt that there are special concerns about institutionalising a human right to a fair criminal law. A fair criminal law is Act 2000, see J Hodgson and V Tadros, “How to make a terrorist out of nothing” (2009) 72 MLR 984. 23 For a discussion of a range of offences which are problematic in these ways, see Tadros (n 17). 24 [2005] UKHL 31, [2005] 2 AC 296.

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just as central to the protection that citizens have against being punished as the right to a fair trial and the right against retroactive convictions. It is no more polycentric than many other human rights, and perhaps less polycentric than some. D. CONCLUSIONS We might have three different ideas of a human right. A positivist idea indicates that the human rights that we have are those that have been institutionalised. An institutional idea indicates that the human rights that we have are those that we ought to institutionalise under certain (perhaps more ideal) conditions. A moral idea of human rights indicates that we have a human right not to be treated in ways that imply that we lack the status as morally autonomous human beings. In affirming this last idea we recognise that we have human rights that ought not to be institutionalised even under more ideal social and political conditions. When we ask whether we have a human right to a fair criminal law, we may be asking a question about any of these three conceptions of rights. We clearly lack a human right to a fair criminal law in the first sense, though of course some human rights do have implications for the scope of the criminal law. I have argued that we clearly have a human right to a fair criminal law of the last kind. Jurisdictions with very unfair criminal laws – and we can include both Scotland and England and Wales – violate our human rights in this sense. They should take no comfort in the extent to which their criminal procedures are compatible with article 6 of the ECHR. A fair trial is worth very little when the criminal law that provides the basis for decisions at trial is very unfair. But we may have a human right to a fair criminal law of the second kind as well. It may well be that we ought to institutionalise a human right to a fair criminal law. To some extent this depends on whether we should institutionalise human rights in general. I have not argued that we should. But if it is true that we should, there is no good reason that I can find for excluding a human right to a fair criminal law.

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8  The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults” Sharon Cowan* A. the law on sado-masochistic “assault” B. sexual norm(atives) C. sex or violence? drawing lines D. the role of consent, privacy and autonomy E. risky business F. Conclusion: optimism over experience A bibliography of decriminalisation would give the impression that our civilisation was preoccupied by sex and death. (Nigel Walker, Punishment, Danger and Stigma: The Morality of Criminal Justice (1980) 2)

This essay offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases in Scotland and in England and Wales that address the question of whether sado-masochism (SM) counts as sex or violence, and thus whether consent can work its “moral magic” to render SM lawful.1 The essay examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and “risky”, before moving to inquire as to the possibility of Scots law offering a discursive and legal space for SM sex. In doing so, it will be argued that while both jurisdictions have criminalised consensual assaults, thus marking out pleasurable pain as both wrong and harmful, there may ultimately be room for the Scottish courts to interpret the existing law in a way that is more open to allowing consensual SM sexual interactions. It is possible, therefore, that those practising SM sex have cause to be optimistic about the role of the Scottish courts in rendering their sexual choices legitimate.

  * The author is grateful to Findlay Stark for editorial assistance.   1 H Hurd, “The moral magic of consent” (1996) 2 Legal Theory 121.

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A. THE LAW ON SADO-MASOCHISTIC “ASSAULT” There seems to be some divergence in approach between the English and Scottish courts on criminalising assaults. In R v Brown,2 the House of Lords held by a majority of three to two that, established exceptions aside (such as tattooing, sport, medical treatment and “horseplay”),3 assaults amounting to less than actual bodily harm could be lawful if valid consent was given, but that any injury amounting to actual bodily harm or worse could not be justified by consent.4 Bodily harm inflicted for the purposes of sexual pleasure does not properly constitute an exception to this rule.5 The decision in Brown has been roundly criticised by academic commentators, particularly on the grounds that the majority judges demonstrated a moralistic distaste for homosexuality.6 Nevertheless, in the explanatory notes to the Criminal Justice and Immigration Bill, as introduced, the government referred to Brown as a case of “consensual torture”, and implied that the offence of possession of extreme pornography contained in the Bill was in part justified by the offences committed in Brown.7 The Scottish courts, however, have never directly addressed the legality of SM per se. A case similar in its facts to Brown – where consenting parties are convicted of assaulting each other through SM practices – has not arisen here, but there is authority for the notion that one cannot avoid a conviction of assault merely on the basis that a fight (or “square go”) has been consented to by both parties. The distinction made by the court in that case – Smart v HM Advocate8   2 [1994] 1 AC 212, following Attorney-General’s Reference (No 6 of 1980) [1981] QB 715.  3 In R v Jones (1986) 83 Cr App R 375, rough horseplay – where injury might really be said to have been inflicted for sadistic reasons – was said to be lawful because the defendants believed there to have been consent.   4 The law in England and Wales on assaults is contained in the Offences Against the Person Act 1861. Section 47 deals with assault occasioning actual bodily harm, and sections 20 and 18 govern grievous bodily harm and grievous bodily harm inflicted with intent, respectively. Common assault and battery are common law offences – see R v Venna [1976] QB 421.   5 This view has been confirmed by the subsequent SM case of R v Emmett, The Times 15 October 1999.  6 See L Bibbings and P Alldridge, “Sexual expression, body alteration and the defence of consent” (1993) 20 Journal of Law and Society 356; N Bamforth, “Sado-masochism and consent” [1994] Crim LR 661; S Nash, “Consent: public policy or legal moralism?” (1996) NLJ 382; D Archard, Sexual Consent (1998); K Egan, “Morality based legislation is alive and well: why the law permits consent to body modification but not sadomasochistic sex” (2006-2007) 70 Albany Law Review 1615.   7 See paragraph 803 of the explanatory notes to the Act. A complete set of responses to the government’s consultation on the legislation (Home Office, Consultation: On The Possession of Extreme Pornographic Material (2005)) can be found at www.dur.ac.uk/law/research/politicsofporn/ responses/.   8 1975 JC 30.

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– was not between sex and violence, but between (regulated) sports and the (unregulated) physical fight, the whole purpose of the latter being “to inflict physical damage on the opponent in pursuance of a quarrel”.9 The only Scottish decision that is sometimes thought to deal with questions of consent to SM sex is the gruesome McDonald v HM Advocate,10 which is certainly at one end of the spectrum of injurious behaviour. McDonald killed his wife during sexual intercourse. He claimed that the death was accidental and the sex consensual, but was convicted of culpable homicide. However the case cannot be a final authority for the question of the legality of consensual SM, since one of the parties to the encounter died in the process, therefore precluding a rigorous assessment of whether consent truly existed. Indeed there was some ambiguity as to whether the accused’s wife was trying to communicate that she was suffering pain and distress rather than experiencing pain and pleasure.11 What is more, the case can be read as not one of SM at all: the sex which caused the injury leading to death involved anal penetration with an object (a whip), but this act does not in itself mark the encounter as one of SM. Support for this assertion can be gained from the somewhat analogous English case of R v Slingsby,12 in which a man anally and vaginally penetrated a woman with his fist whilst wearing a signet ring. The woman died of septicaemia after her injuries became infected, and it was held that the accused was not guilty of manslaughter since this was merely vigorous sexual activity to which his partner had consented. Similarly, the Crown in McDonald conceded that if the appellant had intended only to cause pain, as opposed to actual injury, this in itself would not constitute evil intent and the conviction could not be maintained.13 In any case, even if McDonald were held to be relevant to SM, the degree of violence inflicted in the case is not representative of the range of sado-masochistic encounters that take place across the country on a daily basis,14 and we could still look to law to protect those who do not in fact consent to SM sexual behaviour (in the same way that we rely on the law to  9 At 33. 10 2004 SCCR 161. 11 Even if the rule on consent established in Smart were not followed, and SM McDonald sex was something that could be consented to, the jury might still have convicted of culpable homicide (i.e. finding that the encounter was non-consensual). 12 [1995] Crim LR 570. 13 In my view there is an unexplored relationship here between pain and harm, and one can question whether all pain is necessarily harmful. 14 A Beckmann, “Deconstructing myths: the social construction of ‘sadomasochism’ versus ‘subjugated knowledges’ of practitioners of consensual SM” (2001) 8 Journal of Criminal Justice and Popular Culture 66.

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protect us from non-consensual non-SM sexual acts). Arguably then, since the facts of a case like Brown have not been considered in Scotland, if a case concerning SM arose here there might still be room for Scottish courts to find in the future that SM is a valid form of sexual expression and more akin to touching than to fighting. Can Scotland for once step into the breach and boldly go beyond the morality driven conservatism of the court in Brown? In short, are the Scottish courts likely to find that consensual SM contact is sexual activity rather than violence? B. SEXUAL NORM(ATIVE)S A close reading of Sir Gerald Gordon’s authoritative commentary on Scots criminal law yields little on the subject of sado-masochism (though Gordon does comment on consent in assaults elsewhere).15 However, as Gordon notes in the second edition in 1978, the court in Smart rejected the distinction that he himself made in the first edition in 1967 between minor and major injuries. In the first edition, Gordon stated that “[w]here the assault does not involve another crime, the position appears to be that consent is a good defence provided that not more than a certain degree of injury is caused”.16 The court in Smart, however, said that leaving aside the difficulty of distinguishing between minor and major injury, what was relevant was not the level of injury but whether or not the accused displayed “evil intent”.17 It appears, then, that were Brown-like circumstances to come before them, the Scottish criminal courts would reach a similar conclusion to that reached in Brown and convict participants in such acts; indeed, one might speculate that the Scottish courts would be even more conservative in SM cases than their English counterparts, given that unlike in Brown, the court in Smart refused to recognise a distinction between minor and major injuries. Nonetheless, as Gordon also notes in the second edition, the court in Smart suggested that some forms of contact – that is, “touching” – in a sexual context could be consented to, since the necessary “evil intent” to attack the person would not be present in such a case. Gordon goes on to state that “[i]t seems, therefore, that where there is no intention to do bodily harm, consent may still be a defence to assault”.18 Gordon’s analysis of the court’s statement prompts the following question: 15 G H Gordon, “Consent in assault: further thoughts” (1976) 21 JLSS 168. 16 G H Gordon, The Criminal Law of Scotland (1967) 744. 17 At 33. 18 GH Gordon, The Criminal Law of Scotland, 2nd edn (1978) para 29-39 (emphasis added). This sentence remains unchanged in the 3rd edn (2001, by M G A Christie) para 29.39.

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does not SM fall into this category of touching where there is no evil intention, because the primary intention is to bring pleasure and not to do bodily harm or injury? And therefore, why not say that SM can be consented to? The answer might be that there are different degrees of sexual touching, so that mere touching in the course of sexual interaction by itself is acceptable and can be consented to, but more than touching is not and cannot. But what is more than touching? Answering this question involves two separate inquiries. Firstly, what does touching mean in this context – is it a non-­descriptive or thin concept such as physical contact, or is there a more descriptive, thicker notion at play here, implying that the contact is, say, minimal; gentle; caressing; loving; non-penetrative; or some other adjective(s)? And secondly, what does more mean in this context – more what precisely? More vigorous? More extensive? More injurious? We can see then that to claim that mere touching is lawful, and can be consented to but that more than touching is not, does not much help us to understand the proper boundaries of lawful ­behaviour. Assuming that the law cannot stipulate that only loving, non-penetrative and gentle touching is lawful, since to do so would mean that (heterosexual) consensual acts such as those in Slingsby would be criminal, and the law does not seem to want to define these acts as criminal, we might suppose that the distinction between mere touching and more (that is, bodily harm) rests upon the degree of injury caused. But Slingsby’s actions resulted in death and the question of consent as it relates to injury was said not to be relevant (on the basis that this was primarily sex and not primarily violence, the converse of the position taken in Brown). Obviously, then, some of what is seen as “normal” sexual contact involves fairly rigorous activity and can therefore involve bruising, scratching, biting and sometimes bleeding (internal or external). Is this mere touching, or is it bodily harm? In 1953 Kinsey et al found that over 50% of men and women have an erotic response to being bitten.19 Kinsey also noted that scratching and biting frequently play a part in conventional sex, and that physiologically the response to pain is similar to orgasm.20 Even the most traditional form of “vanilla” sexual intercourse can often cause pain (for various physiological reasons). Does this pain in itself count as harm for the purposes of the criminal law? It seems from the court’s statement in Smart that Scots law acknow­ledges that “normal” sexual encounters can involve some level of what could be 19 Egan (n 6). 20 M S Weinberg, C J Williams and C Moser, “The social constituents of sadomasochism” (1983) 31 Social Problems 379.

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described as bodily harm or injury, but that these are not assaults. That is to say, there seems to be a distinction between injury and assault. What precisely is the basis for this distinction? Gordon does not define injury, and neither does the court in Smart. Under English law injuries that might be inflicted through “normal” sexual interaction, that cause manifest damage to skin – bruises, bites, and so on, would be seen as a common assault, and criminalised unless consented to, in which case they may be injuries but not assaults. As in the Scottish context, given the position taken in Smart, it seems that the primary concern regarding assault in both jurisdictions, then, is the question of the motivation or intention underlying the contact. Thus, if the primary intention of the touching is to hurt or harm the touchee, then it is an assault that cannot be consented to; however, if this touching takes place in the course of a “normal” sexual encounter where the primary intention is pleasure (whether mutual or not) then it does not amount to assault but to normal sexual touching. In other words it is still the intention, the mens rea of the person doing the touching that is the lynchpin of the offence of assault, rather than the consent itself. Thus we can say that consent does no work in delineating lawful from unlawful contact in these kinds of cases. Rather, it is the “good” (rather than “evil’) intention of the person doing the touching that is necessary (and also sufficient)21 to render the touching lawful. But the question remains as to what counts as “good” intentions. In practice, assessing good intentions involves a normative assessment of the kind of sexual contact that has taken place. In a “normal” sexual interaction, while there may well be some low-level bodily harm, it is the nature of the sexual interaction, rather than the consent of the touchee, that makes the contact lawful. The presumption that those relationships perceived as normal are (usually) less likely to cause anything other 21 Sufficient in the sense that currently, under Scots criminal law, any man who touches a woman in a sexual context can expect the law to affirm the legality of that contact, regardless of a lack of consent on her part, if he genuinely believed her to be consenting. The Sexual Offences (Scotland) Act 2009, not yet in force, does not replace this subjective test with a fully objective one, but requires that a man has reasonable belief in consent, based on some (unspecified) steps he took to confirm his belief (section 1(2)). Feminists and other critical scholars have been very sceptical of the practical value of a similar reform introduced in England and Wales, particularly when the accused is not compelled to testify and there can be no negative inference drawn from his lack of testimony. For critical comment on both the Scots and the English approaches see S Cowan, “All change or business as usual? Reforming the law of rape in Scotland”, in C McGlynn and V Munro (eds), Rethinking Rape Law (2010) 154; C McGlynn, “Feminist activism and rape law reform in England and Wales: a Sisyphean struggle?”, ibid; S Cowan, “Freedom and capacity to make a choice: a feminist analysis of consent in the criminal law”, in V Munro and C Stychin (eds), Sexuality and the Law: Feminist Engagements (2007); P R Ferguson and F Raitt, “Reforming the Scots law of rape: redefining the offence’ (2006) 10 EdinLR 185.

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than low-level damage (if any at all), and that those interactions which cause high levels of injury are perceived to be abnormal and perverted relies upon a rather narrow view (based on consensual heterosexual, vaginally-penetrative sex in the missionary position) of what constitutes a normal sexual encounter. Certainly it is true to say that the more one strays from this narrow (“vanilla”) form of sexual interaction, and travels along the spectrum of human sexual behaviour, the more likely we are to leave our mark on the bodies of the people we interact with sexually. Also relevant here is the question of what has been used to bring the “injurious” pleasure – if the instruments of pleasure are the hands, the fingers and the penis, then again the risk of “injury” or damage inflicted is both normalised, and minimised – a nipple that is grazed from being pinched or bitten may well be seen as unproblematic as compared with a nipple that is bruised or bleeding from having been compressed in a nipple clamp. Likewise, it seems that internal vaginal bleeding after vigorous and prolonged penile penetrative intercourse (or even, as in Slingsby, fisting) may well be seen as more normal than lesser injuries inflicted with needles, hot wax, hot irons or nails. There appears to be some underlying and unstated normative principle driving the differentiation of normal (permissible) from abnormal (impermissible) sexual behaviours; some consensual encounters where activities result in injury (and in some cases even death) are permissible, others are not. C. SEX OR VIOLENCE? DRAWING LINES Clearly there are a number of places between the rule in Smart (it is not permissible to consent to any injury) and the facts of McDonald (causing death) where one could draw the line which would allow for consent to validate SM sexual activities. One could certainly argue for the decrimin­alisation of SM activities that amount to less than actual bodily harm as the English courts have done in Brown, or for decriminalisation of injury less than serious bodily harm (as some commentators such as Kelly Egan22 have done), or perhaps even to serious harm that does not cause death or endanger life. The majority decision in Brown criminalised consensual assault amounting to actual bodily harm (or above), even where the “assault” is sexual in nature. This is predicated on the following assumptions: that sex and violence are distinct and easily separable (which is not obvious); that the court is in the 22 Egan (n 6).

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best position to tell the difference (which is certainly not obvious); and that consent to one is not necessarily consent to the other (which, insofar as they can be separated, is arguably true). The court does not deny the “enthusiasm” of the defendants in choosing to participate in certain sexual behaviours, but instead reads the acts as seriously violent, and thereby incapable of being “ratified” by the concept of consent.23 In Brown, some judges were prepared to go further than just ignoring consent as the relevant factor – the consent of such persons was perceived by Lord Templeman to be “dubious and worthless”.24 Here, the court’s view of sex is obscured by a focus on violence, in the sense that the supposedly perverted and deviant form of sex engaged in here takes the behaviour out of the normal category of touching and into the abnormal category of injury and violence. Further, the rule in Brown that one cannot consent to assaults that cause actual bodily harm (other than in well established exceptional situations) has now been qualified – clearly after Dica25 (the HIV transmission case) one can consent to the risk of bodily harm through transmission, as well as the harm of actual transmission itself, if it is within a sexual context, and it is a diseaserelated harm that one has specific knowledge of.26 There is an apparent contradiction between Brown and Dica.27 Both Dica and Brown are cases of consensual sexual activity. The former states that parties can consent to the risk of transmission - that is, the exposure to the risk of serious harm, for the sake of sexual gratification. The actual harm of any resulting infection can itself also be consented to. The latter states that parties cannot consent to the risk of serious harm, for the sake of sexual gratification (anyone who risked such harm would be guilty of an attempted assault). Clearly any actual resulting harm is then also criminal. Should the criminal law distinguish between these two sorts of cases in this way? Those who risk harm without consent, such as Dica, are of course criminalised, but if he had gained consent he would not have been criminally liable, whereas those who consensually risk harm, such as Brown, are criminalised. But the reckless non-consensual transmission of disease cases provide us with a clearer and stronger reason for criminalisation 23 N Athanassoulis also suggests that the offences have been misclassified as violence, but she tries to demonstrate this through comparing SM (which she says is sex expressed through violence) with rape (which she claims is violence expressed through sex). See N Athanassoulis, “The role of consent in sado-masochistic practices” (2002) 8 Res Publica 141. 24 At 235. 25 [2004] EWCA Crim 1103, [2004] QB 1257. 26 The question of HIV transmission as assault in Scotland was addressed in HM Advocate v Kelly, High Court at Glasgow, February 2001, unreported. For comment see V Tadros “Recklessness, consent and the transmission of HIV” (2001) Edin LR 371. 27 S Leake and D Ormerod, “Case comment” [2004] Crim LR 944 at 948.

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than a case such as Brown.28 Actions such as those performed by the defendant in Dica are by any measurement morally and ethically wrong, as they are not founded on concepts such as mutuality of sexual expression, communication and sexual autonomy. The actions of those in Brown on the other hand are explicitly communicative, expressive, mutually agreed and enhancing of sexual autonomy. Of course the Court of Appeal in Dica distinguishes Brown. This must be correct: to treat the two cases as if they both relate to the same wrong – merely because they are both dealing with sex, consent and bodily harm – is mistaken. In this respect the Court of Appeal in Dica is right not to apply Brown. However, the court distinguishes Brown for entirely the wrong reasons, explicitly distancing itself from Brown in saying that SM cases are about serious violence, inflicted for sexual gratification, and the present case is not. However, this supposed distinction is not properly justified. One cannot help but question whether the fact that Dica allows consent to the risk of grievous bodily harm whereas Brown does not is because of the court’s explicit assumption that the risk of HIV is just one of those risks that (normal) sexual intercourse incurs.29 Indeed one might be forgiven for suspecting that the justification for allowing for the possibility of consent in Dica and not in Brown rests on a very traditional, conservative and heteronormative view of what sex is really supposed to be about. Lord Justice Judge in Dica also invokes the argument of a realm of private sexual relations with which the criminal law should not interfere – an argument that was explicitly rejected in Brown.30 An alternative reading, that would make neither Dica nor Brown situations unlawful, is as follows. Injury through the transmission of HIV is a risk, like pregnancy, inherent within “normal” sexual intercourse. Disease and therefore GBH is not the intended result, only a secondary by-product of sexual pleasure. Two people can therefore explicitly (through sharing knowledge of disease status) consent to taking such a risk for the purposes of pleasure. Likewise, the risk of injury (GBH) itself is a risk inherent within SM sexual activity. GBH is not the intended result, only a secondary by-product of sexual 28 For persuasive arguments against the criminalisation of HIV transmission see M Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission (2007); M Weait, “Criminal law and the sexual transmission of HIV: R v Dica” (2005) 68 MLR 120; M Weait, “Taking the blame: criminal law, social responsibility and the sexual transmission of HIV” (2001) 23 Journal of Social Welfare and Family Law 441. Cf J Chalmers, Legal Responses to HIV and AIDS (2008) ch 6. 29 At para 47. 30 R v Brown [1994] AC 212: Lord Jauncey at 245-246; Lord Lowry at 256; for the dissent on this point see Lord Mustill at 272-275.

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pleasure. Parties involved can (and the point is, do) explicitly agree to the taking of such risks for the purposes of pleasure. Both take place “in private” and are arguably not the business of criminal law. However, there may be policy reasons, for example public health, that mean we would wish to make reckless (non-consensual) HIV transmission unlawful.31 Combine with this, in the HIV cases, the abuse of trust and lack of respect for sexual autonomy and communication, and we may well have a stronger case for the c­ riminalisation of Dica (non-consensual violence) than for Brown (­ consensual sex). D. THE ROLE OF CONSENT, PRIVACY AND AUTONOMY Those who argue against the criminalisation of SM sex contend that consent should be allowed to do more of the work in drawing the line between lawful and unlawful behaviour. Here it is necessary to set aside the debate over the merits and demerits of allowing a person to consent to enslavement or to being killed. Most of those against the criminalisation of SM agree that the criminal law is warranted in setting some limits to the kinds of behaviour that we can consent to (say, the criminalisation of grievous bodily harm), and that consensual slavery, for example, is one area where the law can justifiably intervene paternalistically. One critique of Brown is that the criminal law prevents the participants from acting in their own best interests as it prohibits them from expressing their sexual autonomy,32 and it is much less clear (assisted suicide notwithstanding) that consenting to being killed or consenting to enslavement is in the same best interests ball-park. The argument remains then, that when pronouncing certain acts unlawful, the criminal law is making prejudicial normative assessments about the sexual behaviour engaged in, and that, instead, we ought to let consent underpin the legality of the sex we have. This is not to say that consent is itself unproblematic (and indeed in the context of sexual offences, consent has been identified as particularly troubling)33 but simply that a contextualised analysis of the opportunity that participants have to freely agree to sexual activity is a more morally sound basis for the criminalisation of (sexual) assaults than a (hetero)normative assessment of “normal” as opposed to “abnormal” (perverted) sexual behav31 Matthew Weait (see n 28) argues that public health is in fact the reason that we should not criminalise HIV transmission. 32 See e.g. the arguments made by the appellants in their appeal to the European Court of Human Rights; Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39. 33 For feminist critique of consent across a number of different legal spheres, including sexual offences, see R Hunter and S Cowan (eds), Choice and Consent: Feminist Engagements with Law and Subjectivity (2007).

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iour or relationships, and “normal” as opposed to “abnormal” levels of injury (and these two levels of inquiry are of course intertwined). Many of those who argue specifically against the criminalisation of SM activities do so from a liberal perspective – the protection of autonomy, selfdetermination, private sexual relations and consent.34 This approach still allows for protection of those who are really harmed because consent must still be freely given, and non-consensual sado-masochism could be prosecuted in the same way as non-consensual sexual intercourse (but presenting, of course, many of the same practical problems of reporting, proof and evidence). There remains a critical tension, however, around key liberal concepts such as autonomy and privacy. In particular, feminists and gay and lesbian scholars (amongst others) have criticised the application of both autonomy and the classic public/private divide to the area of sexual relationships. Nicola Lacey, for example, prefers to talk about the protection of sexual ­integrity rather than autonomy. Sexual integrity, she argues, better d ­ emonstrates that part of the harm of sexual offences centres on the victim’s inability to integrate psychic and bodily experiences.35 Lacey understands autonomy as too closely related to its history of the abstract choosing subject and, referring to Cornell, argues that the project of personhood requires a more active, positive and embodied view of the sexual self than autonomy has traditionally allowed.36 This kind of approach, applied to SM, would allow for consensual sadomasochistic practices, where participants can integrate psychic and bodily experiences, but without having to rely upon individualised, decontextualised, “private” readings of autonomy. Carl Stychin, a queer legal theorist, has argued that not only are homosexual subjects entitled to privacy protections, but that all sexual subjects have a right to claim a public sexual identity, and to take part in public life as sexual citizens;37 as Beckmann (quoting Sarah Livitnoff) would put it, “we’re not talking about what goes on in individual bedrooms, but about the acceptable public face of sex”.38 Perhaps ironically, the majority in the House of Lords in Brown refused to see the acts as purely private, on the (vague, if overtly homophobic) assumption that such activities produce public (social) harms: “[s]ado-masochistic homosexual activity 34 See e.g. Athanassoulis (n 23); Bibbings and Alldridge (n 6). 35 N Lacey, “Unspeakable subjects, impossible rights: sexuality, integrity and criminal law”, in N Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1998) 118. 36 Ibid 120. See also M Childs, “Sexual autonomy and law” (2001) 64 MLR 309 at 311. 37 C Stychin, Law’s Desire: Sexuality and the Limits of Justice (1995). 38 Beckmann (n 14) at 71, quoting S Livitnoff, What’s Your Sexual Style? Solve The Mysteries of Attraction, Love and Sex (1996), the quote itself coming via H Lacey, “Are you getting the sex you want?” Independent 18 May 1997.

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cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society”.39 There is also an associated problem with relying on a formalistic notion of consent without looking to the substance and context of the consent (e.g. knowledge of consequences as in HIV cases, or a coercive relationship as in some rape cases). Turning to consent as a justification for allowing certain behaviours surely has to be mediated by some consideration of the circumstances and social meanings of that consent. Interestingly, then, one of the advantages of consent in the SM context is that it usually takes place in conditions of explicit expectations and boundary-making. In this respect, consent in SM goes beyond a formal consent model towards the substantive realities of mutuality and communication.40 Weinberg et al note in their ethnographic study of sado-masochism over six years in San Francisco and New York that amongst their participants, “a person who was not consenting would be considered neither into SM nor sexually desirable”.41 For Beckmann’s participants, SM was not workable without empathy and communication.42 Arguably, we can read SM as being not of equal worth but in fact potentially less worrying and exploitative than “normal” sex. E. RISKY BUSINESS The court in Brown appeared acutely concerned with the risk of SM to both the participants, and to the public in general. The law here is engaged in the construction of certain kinds of sexual subjects; those who knowingly and consensually risk transmission of HIV (a potentially lethal disease) are depicted as normal responsible sexual subjects who have made responsible choices, but those who deliberately risk injury through sado-masochistic sex are perceived to be irresponsible, deviant, out of control and dangerous. This occurs not only through the explicit words of the majority in Brown. The ways in which responsibility in sexual citizenship is constructed by law here is apparent through the normalising effect of consent: in relation to HIV, consent is the key operative concept that transforms the potentially unlawful act (whether that be deliberate or reckless transmission – or even endangerment) into a mutually agreed upon normal course of behaviour. 39 R v Brown [1994] 1 AC 212 at 255 per Lord Lowry. 40 See Law Commission, Consent in the Criminal Law (Law Com CP No 139) part 10. See also D Archard, Sexual Consent (1998) ch 7. 41 Weinberg, Williams and Moser (n 20) at 385. 42 Beckmann (n 14) at 82.

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Risks of all sorts are inherent in sexual contact. We are at risk of disease, of injury, of fraud and misrepresentation, of assault and rape, and some of us are at risk of becoming pregnant. But we do not outlaw “normal” or non-SM consensual sexual encounters on the basis that they are all, to some extent, risky, and that some will end in a negative outcome. Allowing consenting adults to engage in sex that carries a risk of HIV is testament to this. In other words, we value (historically, reproductive and hetero) sex to the degree that we are willing to accept some level of risk, and some level of abuse and violence, and ultimately are unwilling to outlaw sexual intercourse on the basis of these risks and negative outcomes. Clearly the same is not true of SM. Sado-masochistic sexual contact is not valued as a valid form of sexual expression and therefore the courts have focused on the risks, the potentially negative outcomes, and use these as a basis for outlawing SM. This focus on risk and the labelling of SM as the most risky form in the spectrum of sexual behaviour is in contradistinction to the perceptions of those who take part in SM sexual activities. Participants in Beckmann’s study43 saw their behaviour as less risky than “regular” sex – as a response to HIV and AIDS, both heterosexual and gay male subjects saw it as a way to avoid the risks of “normal” penetrative intercourse and the normative constraints of penetrative sex. Freedom or release through SM is also described by some participants – freedom from constraining expectations of what is normal sex. As Halley says, freedom might be not be a release from repression as such but “a practice of active engagement in power”.44 Beckmann’s participants reported a feeling of safety – not only in terms of safe sex but in terms of community, and an environment of trust,45 but also a feeling of spiritual release: injuries do not hurt, rather it is similar to being caressed.46 Remember also that in Brown itself, the court recognised that (unlike in Slingsby) there were no lasting injuries, no infections and no physical damage requiring medical treatment. In other words, these men were skilled in carrying out physically testing, painful and at the same time pleasurable acts that did not “harm” the so-called victims. Similarly, the focus in SM often moves away from penetrative or even genital acts and encompasses a range of other acts that decentre “normal” genital contact and emphasise the sensuality and erogeneity of the whole body. Since there is no “direct path” (as Beckmann calls it) between the 43 Beckmann (n 14). 44 J Halley, “Gender, sexuality and power: is feminist theory enough?” (parts III and VII) (2003) 12 Columbia Journal of Gender and Law 610 at 615. 45 See also Weinberg, Williams and Moser (n 20). 46 Beckmann (n 14) at 88.

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act and the pleasure, and because the contact is not genital, it encourages broader and more explicit communication between parties as to pleasure, and displaces the expectation that (penile) penetration is the epitome of sexual pleasure.47 This was also referred to by one of the gay men Beckmann interviewed who saw his (non-penetrative) SM practice as an alternative to what he saw as the penetrative sexuality in gay culture. Thus one cannot resist reading the criminalisation of SM in the following way: it is quintessentially “normal” (and therefore not harmful) to have penile penetrative sex (and perhaps this is even true now for gay men), and perhaps also digital penetration. Therefore, injuries caused in this way do not count as assaults. Other forms of penetration, however, or other non-genital forms of sexual contact (for example using instruments) that cause similar levels of injury are inherently too “risky” (though one might suspect that it is really “normal society” that is perceived to be at risk) and therefore do not fall within the protected scope of behaviours and therefore are assaults.48 F. CONCLUSION: OPTIMISM OVER EXPERIENCE? Criminalisation of SM is disproportionate, unnecessary and in many ways unenforceable. Where it is enforced, the pain of pleasure is the cost and pain of punishment. This chapter has offered a re-reading of the law on SM in both Scotland and in England and Wales, to demonstrate how law constructs responsible (hetero)sexual citizens as opposed to risky, perverted and dangerous sexual deviants (SM-ers). A traditional radical feminist reading might see SM as more structurally problematic, as representing all that is wrong with dominance and subordination in gender relations.49 However a more “sex radical” feminism would re-read SM as an opportunity for women to step outside traditional gendered socio-sexual scripts of passivity and victimhood, and away from subordinationladen protectionism.50 Yet another alternative perspective which leans more 47 Ibid. 48 As some writers (for example E Wilkinson, “Perverting visual pleasure: representing sadomasochism” (2009) 12 Sexualities 181) have, however, pointed out, certain levels of SM that are perceived to be kinky rather than injurious – spanking, tying up, and so on – have been eroticised in popular culture and thus socially as well as legally marked out as inherently different from the kinds of behaviour engaged in by the defendants in Brown. Consider for example Max Mosley’s suit against the News of the World in 2008, where Eady J held that with respect to his acts of (heterosexual) sado-masochism with prostitutes, Mr Mosley was entitled to privacy, no matter how unconventional his sex life. See Mosley v News Group Newspapers Ltd [2008] EWHC 1777. 49 S Jeffreys, The Lesbian Heresy: A Feminist Perspective on the Lesbian Sexual Revolution (1994). 50 For discussion see B Cossman, “Gender, sexuality and power: is feminist theory enough?” (parts I and IV) (2003) 12 Columbia Journal of Gender and Law 610 at 620.

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towards queer and postmodern feminism, which I have tried to present here, focuses on the ways in which the law both produces and regulates certain kinds of sexual subjects, and raises the possibility that we might re-imagine law in a less gendered and heteronormative way in order, as Janet Halley would say, to get “a better outcome for the pervert”.51 Historically, variety in sexual stimulation has not always been negatively perceived and the notion of sado-masochism is historically contingent and socially constructed.52 The Scottish criminal courts have yet to meet a case of SM head on. Let us hope, then, that despite the often heteronormatively conservative role of the courts, when faced directly with the question of the lawfulness of SM, the courts here will present us with a better outcome for the pervert.

51 Halley (n 44) at 636. 52 Weinberg, Williams and Moser (n 20).

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9  The Mental Element in Modern Criminal Law Peter Ferguson QC A. mental states and strict liability B. recklessness C. the draft criminal code for scotland D. varieties of recklessness (1) Wicked recklessness: murder (2) Recklessness: culpable homicide (3) Recklessness: dangerous driving (4) Recklessness: non-fatal common law crimes When the first edition of Sir Gerald Gordon’s important textbook on Scots criminal law was published in 1967,1 it was plain that criminal law had been until then an area of Scots law not studied in depth. The standard textbook at that time was still Macdonald’s Criminal Law2 which had been first published in 1867 and, according to its preface, was intended by its author, who was subsequently Lord Justice Clerk, to be “a brief summary of the Criminal Law”.3 Indeed, even by the time of publication of the second edition of Sir Gerald’s work it was still lamented that Scots lawyers were guilty of showing little interest in their criminal law because judicial decisions on “fundamental questions of criminal law” went unreported.4 However, by 1996, one writer could suggest that there were apparent signs over the preceding few years that Scots criminal law was entering a new period in its history.5 Yet, however that may be, one area of Scots criminal law still to this day rather underanalysed is the mental element in crime. Judicial decisions on this aspect of crimes and statutory offences are rarely encountered. That position can be   1 G H Gordon, The Criminal Law of Scotland, 1st edn (1967).   2 J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn (1948). See HM Advocate v B L 2009 SCCR 141 at para 18.  3 Macdonald, Criminal Law vii.   4 G H Gordon, The Criminal Law of Scotland, 2nd edn (1978) para 7-53 n 49.   5 R A A McCall Smith, “Flexible rules”, in H L MacQueen (ed), Scots Law into the 21st Century: Essays in Honour of W A Wilson (1996) 236 at 243. McCall Smith cited in support of his opinion Ross v HM Advocate 1991 JC 210 (non-insane automatism) and Brown v HM Advocate 1993 SCCR 382 (art and part in homicide).

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somewhat sharply contrasted with the steady flow of decisions in England and Wales, not only from the Court of Appeal (Criminal Division) but also from the House of Lords on questions of mens rea. It can be suggested that the difference between the two jurisdictions is at least in part attributable to the different sources of criminal law in the two countries. The English law of crime is very largely statute-based whereas in Scotland most serious crimes are still prohibited at common law. Hence the Scottish Law Commission was able, correctly, to observe some twenty-seven years ago:6 Until comparatively recent times the only concept to express mental element in Scotland was that of “dole”, described by Hume … While this rather moralistic concept of general wickedness has to some extent disappeared from Scots law, no doubt largely because of the proliferation of statutory crimes using express words of mens rea, it still remains as the background against which the mental element necessary for most common law crimes is to be measured … This approach to mental element, coupled with the fact that so much of the criminal law of Scotland is still part of the common law, has had several consequences. It has made it unnecessary for courts to consider and to construe words of mental element in relation to a wide range of crimes, and this has in turn meant that Scotland has been spared the proliferation of judicial glosses on such words that has occurred in England. As a result Scottish courts and juries have usually been able to concentrate more objectively on the actus reus of a common law crime, and to draw more readily what appears to be appropriate inferences from these objective facts, than appears to have been the case in England.

The position may well be little different now. In Transco plc v HM Advocate,7 which will be considered below, the same passage in Hume8 was relied upon by one member of the Appeal Court as his starting point in discussing the requisite mental element in involuntary culpable homicide,9 as well as by the presiding judge at the preliminary diet.10 It is no mis-statement to record that it was not until 1967 that the appropriateness of dole as a concept in modern criminal law was called into question.11 However, while the concept of general wickedness has now a doubtful place in our law, it should not be overlooked that any overly sophisticated approach to   6 Scottish Law Commission, Report on The Mental Element in Crime (Scot Law Com No 80, 1983) para 2.14.   7 2004 SLT 41.  8 Hume, Commentaries i, 21.  9 Transo plc v HM Advocate 2004 SLT 41 at para 42 per Lord Hamilton. See also Ross v HM Advocate 1991 JC 210 at 213 per the Lord Justice General (Hope). 10 Transco plc v HM Advocate 2004 SCCR 1 at para 23 per Lord Carloway. 11 The same point was made in Sir Gerald’s commentary on Transco plc: see 2004 SCCR at 59F-G. For criticism see Gordon, Criminal Law, 2nd edn (n 4) para 7-05 which is reproduced in Gordon, Criminal Law, 3rd edn vol 1 para 7.05.

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mens rea has one very important (perhaps even fatal) disadvantage, especially in a jurisdiction such as Scotland where serious crimes are tried on indictment. Where jurors must be charged on the law, and indeed more generally where the public must be able to follow and approve the court’s judgments as to the basis of any individual accused’s liability, the law must bear a reasonable relation to society’s sense of what should constitute wrongdoing and what should not be punishable. In one of his most significant articles, Sir Gerald put the matter thus:12 Common law crimes, the “old-fashioned” crimes, deal with conduct which evokes simple moral reactions. The morality which the criminal law expresses is that of the simple man – it is what we learn in the nursery and the playground; it is not the morality of a sophisticated philosopher. And if the criminal law is to perform its function of embodying common morality it must be expressed in simple language. Any distinctions it makes between guilt and innocence, or between degrees of guilt, must be intelligible to the ordinary man, and must make sense to him. A criminal court is not a seminar room, nor is a criminal trial an exercise in academic jurisprudence. Trial judges addressing juries are not in the position of professors giving a lecture to students, and even the judgments of appellate courts should not be expressed in esoteric language in this area of the law, whatever may be appropriate in other areas such as trusts or taxation.

Two points are being made. The second is that whatever the law is, it should be as uncomplicated as possible so as to be readily applied by the jury. As Lord Hailsham of St Marylebone LC stated: “a direction to a jury should be custom-built to make the jury understand their task in relation to a particular case”.13 This quotation forms part of a passage that the Scottish Law Commission adopted as expressing what the Commission understood to be the proper approach to charging juries in Scotland,14 although it can be doubted that the English courts in fact follow the Lord Chancellor’s recommendation. Much appellate time seems to be occupied in England in considering what trial judges have told juries about the mental element. It is as if juries cannot be trusted to handle terms such as “intention” or “recklessness” without elaboration by the bench; and once the trial judge has ventured into that area, his words are thereafter scrutinised on appeal to identify whether he has committed the cardinal sin of leaving open to the jury an objective meaning of the mental element. 12 G H Gordon, “Subjective and objective mens rea” (1975) 17 Criminal Law Quarterly 355 at 374-375. 13 R v Lawrence [1982] AC 510 at 519G. 14 Scottish Law Commission, Report on The Mental Element in Crime (n 6) para 2.39. See also McPhelim v HM Advocate 1960 JC 17 at 22.

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However, the first (and far more important) point is that when the law comes to differentiating between various mental states, the distinctions which are drawn must accord with the average citizen’s conceptions of right and wrong or virtuous and vicious. Putting the matter bluntly, the principle of mens rea is directed at answering any individual legal system’s question: who deserves punishment? It is chiefly that point which will be considered here in light of, first, recent judicial discussions of mens rea and its content, especially recklessness, and second the general approach taken by the authors of the Draft Criminal Code for Scotland15 to the mental element in crime. A. MENTAL STATES AND STRICT LIABILITY The accepted view in Scotland is that a common law crime is established only if the prosecution can satisfy the jury that the act or omission which constitutes the actus reus was accompanied at the time of its occurrence by a guilty mind. The Crown bears the onus of proving the requisite mens rea by corroborated evidence.16 The types of guilty mind can be stated in a hierarchy in descending order of (moral) gravity: intention, recklessness and negligence.17 Conviction may be possible for some crimes only where there is proof of intention, but proof of alternative mentes reae is sufficient for certain crimes such as murder, attempted murder, fire-raising, perjury and (at least since Jamieson v HM Advocate)18 rape and attempted rape. Furthermore, a crime which requires only proof of recklessness may be established by proof of intention. However, statutory offences require to be treated differently. Parliament may make specific provision for a particular mens rea,19 but it is not uncommon for offences to be left for judicial construction as to what mental element (if any) is necessary. Where the doing of the prohibited act is all that is required for conviction, the offence is one of strict liability (and in earlier decisions, more usually termed absolute liability); but statutory offences can be interpreted as requiring mens rea for certain material elements of the offence, with other elements bearing strict liability. Accordingly there has 15 E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003). 16 McKearney v HM Advocate 2004 SCCR 251 at para 8 per the Lord Justice Clerk (Gill) and at para 35 per Lord McCluskey. 17 Gordon, Criminal Law, 2nd edn (n 4) para 7-11. 18 1994 SLT 537. 19 Or more than one, as in vandalism where wilfulness and recklessness are specified (Criminal Law (Consolidation) (Scotland) Act 1995 s 52(1)).

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been for years a presumption in favour of mens rea in statutory offences.20 But until relatively recently, the strength of the presumption has varied according to the ease with which the higher courts have been prepared to hold the presumption rebutted. On this latter point, an evident change in Scotland can be detected. The change has been no doubt encouraged by a shift in attitude on the part of the House of Lords (which shift may be due in part to the influence now of the European Convention on Human Rights).21 Thus, in H v Griffiths22 the appeal court held that it was essential to conviction for lewd, indecent and libidinous practices and behaviour used towards a girl of or over twelve years and under sixteen years of age (contrary to s 6 of the Criminal Law (Consolidation) (Scotland) Act 1995), that the accused be proved to have knowledge of the age of the complainer.23 The Crown had contended that the legislature had intended that there should be strict liability as to the age of the complainer. The appeal court relied on two decisions of the House of Lords24 and quoted at length from the later decision.25 After reviewing these decisions, the court concluded that “the presumption for the necessity of mens rea may be seen as a constitutional principle” and that it clearly applies as respects any statute affecting Scotland.26 Furthermore, the court applied the test given in both decisions of the House of Lords, that where the presumption is to be rebutted, the test is whether it is a necessary implication of the statute (and not merely a reasonable construction) that mens rea is excluded as a constituent of the offence.27 The approach in H v Griffiths is noticeably different from that of the former leading case in Scotland, Mitchell v Morrison,28 which was decided by a full bench that divided four to three and held that the offence under section 20 Scottish Law Commission, Report on The Mental Element in Crime (n 6) para 5.1, citing the full bench decision in Mitchell v Morrison 1938 JC 64 at 87 per Lord Wark. 21 Although in a powerful dissent in Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264 at paras 65-76 Lord Rodger of Earlsferry (with whom Lord Carswell agreed: para 79) demonstrated that strict liability offences are compatible with art 6(1) and (2) of the European Convention on Human Rights. Lord Bingham of Cornhill also accepted that proposition (para 21) but it did not lead him to the same conclusion as Lord Rodger. See also R v G [2006] EWCA Crim 821, [2006] 1 WLR 2052 at paras 31-33 per Lord Phillips of Worth Matravers CJ. 22 [2009] HCJAC 15, 2009 SLT 199. 23 2009 SLT 199 at para 28 per Lord Eassie. 24 B (A Minor) v DPP [2000] 2 AC 428 and R v K [2001] UKHL 41; [2002] 1 AC 462. 25 R v K [2002] 2 AC 462 at para 16 per Lord Bingham of Cornhill. 26 H v Griffiths [2009] HCJAC 15 at para 22 per Lord Eassie. 27 At para 23 applying B (A Minor) v DPP [2000] 2 AC 428 at 481 per Lord Hutton. See also R v K [2002] 2 AC 462 at para 32 per Lord Steyn who followed Lord Nicholls of Birkenhead in B (A Minor) in requiring the necessary implication to be “convincingly clear”. 28 1938 JC 64.

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16 of the Road and Rail Traffic Act 1933 was an offence of strict liability. The test applied by the majority in that case can best be seen in a passage from the opinion of Lord Justice General Normand (with whom Lord Justice Clerk Aitchison agreed)29 to the effect that the Crown must “always show that the language of the statute is, without distortion or strain, habile to impose an absolute obligation”.30 Contrary to modern views, Lord Normand did not consider the issue dividing the court to involve any general principle of the criminal law.31 Moreover, Lord Mackay, dissenting, considered that the “ruling consideration” in construing any statute so as to exclude mens rea is that it should be demonstrated by the Crown that the scheme and purpose of the statute would be defeated by implying a requirement of mens rea.32 Lord Mackay did not say (nor exclude) that what had to be demonstrated was a necessary defeating of the scheme. It could have been argued hitherto that strict liability was relatively easily implied in regulatory offences – though largely confined to legislative intervention on grounds of public safety in areas of road traffic, public health, safety at work and environmental pollution33 – so that mens rea would be accepted as excluded by legislation in these areas unless express words importing a mental element were employed.34 But that is not now the case in light of H v Griffiths, the ratio of which applies to all penal statutes. The appeal court could have confined its reasoning to the fact that section 6 of the 1995 Act applied the common law crime of lewd practices (in respect of females under twelve years of age) to victims who were aged between twelve and under sixteen years. The Crown had argued that the common law crime did not require proof of mens rea as to age,35 but the court, in view of the absence of precedent supporting that submission, inclined to the view that the Crown had to prove knowledge of the victim’s age in a common law prosecution.36 As all common law crimes require proof of a mental element,37 the court’s inclination is unremarkable, and as age is an essential constituent 29 At 72. 30 At 71 31 Ibid. 32 At 82. 33 See Lockhart v National Coal Board 1981 SLT 161 where the House of Lords’ decision in Alphacell Ltd v Woodward [1972] AC 824 was followed. 34 Gordon, Criminal Law, 2nd edn (n 4) para 8-10. 35 Gordon, Criminal Law, 2nd edn (n 4) para 36-10 stated that as the predecessor of the 1995 Act (Sexual Offences (Scotland) Act 1976 s 5) was silent about any defence of mistake as to the girl’s age, it appeared that such a defence could never be open. The third edition (vol 2 para 36.11 n 23) notes the recent House of Lords’ authorities without elaboration. 36 H v Griffiths 2009 SLT 199 at para 28. 37 Paterson v Lees 1999 JC 159 at 163 per Lord Sutherland.

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of the common law crime of lewd practices, it would have been unexceptionable for the court to conclude simply that it was Parliament’s intention to apply that mental element to the statutory offence.38 The H v Griffiths court did not draw attention to the difference between the earlier approach in Mitchell v Morrison (which was cited in argument to the court) and the House of Lords’ statement of a constitutional principle. In choosing the latter the court went further than had been done in Smart v HM Advocate39 when the appeal court described the presumption of mens rea as a “strong one”, so that a statute will not be read as abrogating the fundamental requirement of mens rea “in the absence of clear words excluding mens rea”.40 The court in H v Griffiths was not referred to Smart, in which the court was interpreting section 52(1)(a) of the Civic Government (Scotland) Act 1982. That section provides that any person who “makes any indecent photograph or pseudo-photograph of a child” shall be guilty of an offence. On the face of it that is an absolute prohibition.41 The court, however, implied into that p ­ rovision a requirement of knowledge that the photograph or pseudo-­photograph made by the accused was of an indecent image of a child,42 because Parliament could not be taken to have intended to make criminals out of people who were in no way blameworthy in what they did. Finally, it can be noted that in H v Griffiths the appeal court reserved its opinion on whether the accused’s mistake as to the victim’s age must be based on reasonable grounds,43 as no argument had been presented on that point. Where that requirement is imposed, there is scope for an accused’s mistake to be excluded if it is either reckless or negligent, as can be seen below. So the constitutional principle that requires mens rea to be implied does not go the length of necessarily excluding guilt through inadvertence. It is in this area, the borderland between no-mens rea and actual mens rea, that the Scottish approach to recklessness is so important. 38 See R v Warner [1969] 2 AC 256 at 271E-272B per Lord Reid. Cf Annan v Tait 1982 SLT (Sh Ct) 108. 39 [2006] HCJAC 12, 2006 JC 119. 40 At para 22 per Lord Osborne. The Appeal Court relied on the same four passages from the speeches of Lords Reid, Morris of Borth-y-Gest and Diplock in Sweet v Parsley [1970] AC 132 as set out in Gordon, Criminal Law, 2nd edn (n 4) para 8-05. 41 And until 2006 there was no reported Scots case in which the court had held that mens rea was necessary where the statute used words of absolute prohibition: Gordon, Criminal Law, 2nd edn (n 4) para 8-05. 42 As the Court of Appeal (Criminal Division) held in R v Smith; R v Jayson [2003] EWCA Crim 683; [2003] 1 Cr App Rep 13 at para 34 per Dyson LJ. 43 2009 SLT 199 at para 29.

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B. RECKLESSNESS The use of recklessness as a sufficient mental state in crime is uncontroversial. What is problematic is the view generally taken of recklessness in Scots law. The problem with the traditional version of recklessness has been succinctly identified by Sir Gerald:44 Does the phrase “he was bound to foresee” mean (consistently with the Scots view that recklessness is objective) that he was legally obliged to foresee and so was blameworthy whether he foresaw or not; or does it mean (consistently with the view that the question is one of fact for the jury) that he must, as a matter of fact, or as an inference of fact, have actually foreseen?

Juries are regularly instructed that recklessness in murder is, unlike intention, to be objectively determined by them based on consideration of, for example, the deceased’s age and health, the type and number of weapons used, the number of blows delivered and their situation on the deceased’s body and such like, so that the jury can conclude that the assailant was so grossly reckless that he can be equiparated to a deliberate murderer. That approach, however, is not confined to the mens rea of murder: recklessness is established when there is evidence of indifference to obvious (and it may be, serious) risks to health or indeed property. However, a particular change can be seen in Lord Justice-General Cullen’s obiter dictum in Lord Advocate’s Reference (No 1 of 2001),45 in which a bench of seven judges by a majority redefined the actus reus of rape so as to remove the requirement of force or threats of force and simply to require proof of intercourse without the victim’s consent. In Meek v HM Advocate46 the appeal court had held, with hindsight somewhat controversially, that an accused’s belief in consent need not be held on reasonable grounds. That was confirmed in Jamieson v HM Advocate.47 After referring to these two decisions, Lord Cullen said of the mens rea of rape:48 It may be noted that the implication of the court’s decision in Jamieson was to ­distinguish between the man who failed to think about, or was indifferent as to, whether the woman was consenting (which might be described as subjective recklessness); and the man who honestly or genuinely believed that the woman was consenting but had failed to realise that she was not consenting when there was an obvious risk that this was the case. The latter might be described as o­ bjective recklessness. 44 See his commentary to Ebsworth v HM Advocate 1992 SCCR 671 at 681 (para 3). 45 2002 SLT 466, 2002 SCCR 435. It is astonishing that this decision was not reported in Justiciary Cases. See P W Ferguson, “The definition of rape” 2002 SLT (News) 163. 46 1983 SLT 280. 47 1994 JC 88. 48 2002 SLT 466 at para 29.

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Lord Cullen concluded his opinion by stating:49 mens rea on the part of the man is present where he knows that the woman is not consenting or at any rate is reckless as to whether she is consenting. Standing the decision in Jamieson and in the absence of discussion of this topic in the present reference, “reckless” should be understood in the subjective sense to which I have referred earlier in this opinion.

Prior to Jamieson it could with some justification have been asserted that rape required an intention on the man’s part to have intercourse with a non-consenting woman (whose resistance had been overcome for that purpose). Jamieson introduced an alternative mens rea which was deduced from its approach to the effect of the accused’s alleged honest but mistaken belief in the complainer’s consent. If the accused claimed to have believed that the complainer was consenting, the appeal court did not require the belief to be reasonable (such that a reasonable man would form it) but merely that it be actually held. So if the accused never gave his mind to the possibility that the complainer was not consenting, or if he did consider it but was unconcerned whether she was consenting or not (a “couldn’t care less” attitude), he could not succeed in his claim that he had in fact believed his victim was consenting. That form of recklessness is the same as indifference and would destroy the claim of an honest belief. As Lord Herschell said in a case concerning the requirements of proof of fraud, where it is shown that the claim was made “recklessly, careless whether it be true or false” the claimant cannot be held to have had a real belief in its truth.50 One may speculate whether the Lord Justice-General’s observations in Lord Advocate’s Reference (No 1 of 2001) would have been different if error in belief in cases of rape still required to be reasonable. Perhaps it would have made little practical difference. The accused (A) would still be liable to conviction if he either did not think about the risk of non-consent or, recognising the possibility, he was indifferent whether his victim (V) was consenting; but (and this is the vital point) A could also be convicted where he did in fact believe V was consenting but reasonable people would not make that mistake. The situation allowed for in rape is, however, a special case; it can be contrasted with Lieser v HM Advocate, which is a particular application of the general approach of Scots law.51 In Lieser the trial judge gave conventional directions to the effect that the 49 Para 44. 50 Derry v Peek (1889) 14 App Cas 337 at 374 which was recently considered in Scotland (MacColl v The Crofters Commission [2009] CSOH 120 at para 33 per Lord Brodie). 51 [2008] HCJAC 42, 2008 SLT 866.

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accused, who was tried for murder and claimed to have acted in self-defence, must have reasonable grounds for his mistaken belief that his life was in imminent danger. The appeal court rejected the accused’s contention that that was a misdirection. There was a public policy in requiring that mistakes be based on reasonable grounds. Lord Kingarth, delivering the opinion of the court, explained:52 If it were otherwise even an intentional killing would fall to be regarded as wholly justified in circumstances where the accused’s actions could be said to have been prompted by gross recklessness. In other words, an accused who intentionally killed in the mistaken belief that he faced a grave attack on his person, would (assuming all other requirements for self-defence were met) be entitled to acquittal notwithstanding that he had recklessly ignored matters which would have destroyed that belief, had he not thus recklessly cast them aside; and his gross recklessness would go without penalty.

Lieser has attracted some criticism for disregarding a supposed change in Scots law effected by Drury v HM Advocate.53 But since Drury is itself criticised as a distortion of well established law,54 that objection is somewhat beside the point. Lieser treats the requirement that the error (as to the need to use lethal violence) be reasonable as a necessary condition, so as to avoid acquittal of accused who are reckless in overlooking, or casting aside, facts which should correct their mistaken belief. It does so because, it can rightly be said, such persons are in no different moral position from those who are wickedly reckless in their use of violence, such being a sufficient alternative mens rea for murder. Unlike recklessness as defined for rape, this form of recklessness (deduced from the requirement that mistakes of fact be reasonable) includes the person who genuinely does not recognise what others would acknowledge. The wider meaning of recklessness can also be seen in cases of art and part liability for murder with a weapon, although there is some inconsistency in the case law. Where an accused does not strike the fatal blow (or any blow), it has been held by a bench of five judges that he must be proved to have foreseen the risk of the use of a weapon with lethal effect. What mattered was whether there was an obvious risk, and it was immaterial whether the accomplice knowingly ran the risk or was “recklessly blind” to it.55 Yet in Dempsey v 52 2008 SLT 866 at para 10. 53 2001 SLT 1013. See J Chalmers, “Lieser and misconceptions” 2008 SCL 1115 written in response to P W Ferguson, “Reasonable mistakes” 2008 SCL 971. 54 See e.g. J Chalmers, “Collapsing the structure of criminal law: Drury v HM Advocate” 2001 SLT (News) 241; J Chalmers and F Leverick, “Murder through the looking glass: Gillon v HM Advocate” (2007) 11 EdinLR 230. 55 McKinnon v HM Advocate 2003 SCCR 224 at para 25.

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HM Advocate56 the court set aside a murder conviction and granted authority for a retrial on the basis that the trial judge had left it open for the jury to convict where they were satisfied that the accomplice could have known that the principal had a knife and was using it on the deceased “even if they were not satisfied that it could be inferred that he did know these facts”.57 That conclusion, it is suggested, fails to accord significance to the apparent distinction between knowingly running a risk and being recklessly blind to it. Knowingly running a risk is advertent recklessness so the latter mental state must be inadvertent. In Dempsey the appeal court followed Peden v HM Advocate58 where, however, the charge was aggravated assault and it was held that the jury could only convict if they found that the appellant actually knew a knife was being used: recklessness is insufficient for assault but not for murder. Finally one can consider recklessness as it was analysed in Transco plc v HM Advocate.59 The Crown sought to prosecute a limited liability company for culpable homicide in respect of a gas explosion which killed several people in their home. The conventional approach at common law to fixing a corporation with criminal liability is to identify the directing mind and will of the company in a person or persons of sufficient seniority in the company.60 That was impossible in the particular case and so the Crown argued at first instance that, as “lawful act” culpable homicide was a crime of “objective recklessness or gross negligence”, there was no need to identify the controlling mind of the company for the purposes of attributing mens rea to it. The short point was that mens rea “played no part in lawful act culpable homicide”.61 On appeal the Crown departed from that submission,62 but the court held that it was erroneous to suppose that the actual state of mind of a person accused of culpable homicide of this kind could be ignored and “guilt or innocence determined solely on the basis of proof that the conduct in question fell below an objectively set standard”.63 It was necessary to prove what the company through its directing mind knew in order to establish the objective facts from which recklessness or gross negligence could be deduced. Contrary to the law in England, negligence (like indifference) is a state of 56 [2005] HCJAC 6, 2005 JC 252. 57 2005 JC 252 at para 11 per Lord Kirkwood (emphasis added). 58 2003 SCCR 605 at 608B. 59 2004 SLT 41. 60 That approach is now superseded by the new offence of corporate homicide: Corporate Manslaughter and Corporate Homicide Act 2007 s 1(5). 61 2004 SCCR 1 at para 15 per Lord Carloway, summarising the Crown’s argument. 62 2004 SLT 41 at para 45 per Lord Hamilton. 63 Para 38 per Lord Hamilton.

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mind even though it is ascertained by reference to what should have been known, whether or not it was in fact known by the directing mind of the company. C. THE DRAFT CRIMINAL CODE FOR SCOTLAND The authors of the proposed criminal code, which was published under the auspices of the Scottish Law Commission in July 2003, maintained that they sought to provide a modernising draft that, though still firmly based on existing law and recognisably the traditional criminal law of Scotland, was not a simple restatement of the (current) common law. Rather, it was updated so as to eradicate manifestly unsatisfactory aspects of the present law. They hoped thereby that the draft code would be acceptable to the Scottish Parliament.64 The draft code makes provision for intention, knowledge and recklessness. The term “negligence” is never used in the provisions but, as shall be seen, it figures in the definition of recklessness. The draft code deliberately provides no definition of intention, but does specifically extend the concept to include cases where the actor (A) foresees that the result of his act is “certain or almost certain to occur”.65 That is unexceptional. The authors explain that the prosecution must prove that A was aware of the likely consequences of his conduct; it will not be sufficient to show that any reasonable person would have realised that this was the case.66 The old brocard that a man must be taken to intend the natural and probable results of his actions is expressly rejected.67 Intention is therefore plainly meant to be a subjective state of mind: what the jury infer A in fact intended or foresaw. However, in dealing with knowledge, the authors propose that, without restricting the ordinary meaning of the term (which is not otherwise defined), A is to be treated as knowing of a circumstance if it exists and either A would have known of it but for his wilful and unreasonable failure to allow that knowledge to be acquired, or A thinks that it almost certainly exists but nonetheless proceeds where no reasonable person would do so.68 The authors’ treatment of recklessness goes further. Two scenarios are provided for. The first is:69 64 E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003) 3. 65 S 9(1)(a). 66 At 29. 67 S 9(2). Cf Lord Caplan’s statement in Blane v HM Advocate 1991 SCCR 576 at 584G. 68 S 11. 69 S 10(a).

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something is caused recklessly if the person causing the result is, or ought to be, aware of an obvious and serious risk that acting will bring about the result but nonetheless acts where no reasonable person would do so

The second is:70 a person is reckless as to a circumstance, or as to a possible result of an act, if the person is, or ought to be, aware of an obvious and serious risk that the circumstance exists, or that the result will follow, but nonetheless acts where no reasonable person would do so

Thus for intention it is necessary that A be proved actually to foresee a result as certain or almost certain, but for recklessness it is sufficient if A ought to foresee, as a reasonable man would, the result of his act. The authors observe that failing to appreciate risks (whether of results or circumstances) comes close to negligence and so they exclude the ordinary civil negligence standard of care by requiring that the risk be both serious and obvious.71 Gross negligence is in effect sufficient for recklessness. When one turns to murder, the authors repeat the traditional definition in modernised language as an intentional killing or killing “with callous recklessness as to whether such a death is caused”.72 Consequently the current approach is maintained: intentional killing is subjective but reckless murder can be objectively determined. The authors state, however, that such recklessness must be more than “ordinary” recklessness (which is presumably provided for in section 10): it must involve either a callous acceptance of the risk of death created by the acts, or a callous indifference to the possible fatal consequences of the acts. Thus the authors hope that an intention to injure is not necessary under the definition in the draft code.73 D. VARIETIES OF RECKLESSNESS As already noted, the problem with recklessness in Scots law is its definition. There are supposed to be separate forms of recklessness for various crimes. In each case the recklessness includes an objective form based on what the jury conclude a reasonable man would recognise or foresee. But there is a real difficulty in differentiating among the forms of recklessness. 70 S 10(b). 71 At 31-32. 72 S 37(1). 73 At 84. This requirement, made clear in HM Advocate v Purcell [2007] HCJ 13; 2008 JC 131, is to be reconsidered by a full bench in Petto v HM Advocate: see [2009] HCJ 43, 2009 SLT 509. For discussion, see P W Ferguson, “Wicked recklessness” 2008 JR 1.

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(1) Wicked recklessness: murder This form of recklessness is restricted to the crime of murder. The traditional definition was provided by Macdonald74 and was regularly given to juries: “Murder is constituted by any wilful act causing the destruction of life, whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences”. As a result of the decision in Drury,75 present judicial practice is to render MacDonald’s definition in somewhat more modern phraseology and with the qualification that the intent must be wicked. Lord Eassie explained its nature in HM Advocate v Purcell:76 The law in effect attributes to the person committing a violent, fatal assault in circumstances such as to exhibit an utter disregard for the consequences of his violence, a mens rea (or criminal mind) which may be equiparated with that of the intentional killer. Put in other words, a person who uses such gross violence as to indicate that he has no regard or concern whatever for the consequences of that violence on the survival or otherwise of the victim of his violent assault is to be treated as having the mens rea (or criminal mind) equivalently wicked to that of one who actively intends the death of his victim.

(2) Recklessness: culpable homicide Where the jury is not satisfied beyond reasonable doubt that the accused’s recklessness was “wicked” (or “callous”) such as to justify equiparating his mens rea to an intentional killer, the jury is entitled to convict the accused of culpable homicide. But culpable homicide is committed when an assault results in death. Nothing more beyond proof of evil intent and causation is required. The accused need not anticipate death as a result of his actions or be reckless to any degree. It effectively imposes strict liability for homicide. However, culpable homicide is divisible into two forms. In unlawful act culpable homicide, there is no need to consider a lower form of recklessness. However, this form of homicide is now confined to assault and analogous cases where the conduct is in some way directed against the victim.77 On the other hand, lawful act culpable homicide occurs where there is recklessness which is authoritatively defined as “a degree of want of care which is grave … a complete indifference to the consequences”.78 In cases of motor vehicle 74 Macdonald, Criminal Law 89. 75 Drury v HM Advocate 2001 SLT 1013. 76 [2007] HCJ 13, 2008 JC 131. 77 MacAngus v HM Advocate; Kane v HM Advocate [2009] HCJAC 8, 2009 SLT 37. 78 Transco plc v HM Advocate (No 1) 2004 JC 29 at para 37 per Lord Hamilton; approved by a full bench in MacAngus at para 22.

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culpable homicide the appeal court approved the direction that the quality of the driving was such as to show “a complete disregard for any potential dangers which might result, a complete disregard of what the consequences of the driving may be so far as the public are concerned”.79 (3) Recklessness: dangerous driving To this list one can also add the special offence of causing death by dangerous driving under section 1 of the Road Traffic Act 1988 (as amended). It used to be termed causing death by reckless driving. Section 2A(1) provides an exclusive definition of dangerous driving. It is established if (and only if) the way A drives “falls far below what would be expected of a competent and careful driver”, and it would be obvious to such a driver that driving in that way would be dangerous. What is meant by dangerous is explained in section 2A(3): it refers to danger either of personal injury or of serious damage to property. Dangerous driving is thus objectively determined: whether the accused knew of the dangers is irrelevant. It is also precisely what Lord Justice-General Emslie defined as reckless driving in Allan v Patterson.80 In this passage, to modernise it, one can simply substitute the phrase “the adjective ‘dangerous’” for the phrase used in the first sentence:81 Judges and juries will readily understand, and juries might well be reminded, that before they can apply the adverb “recklessly” to the driving in question they must find [1] that it fell far below the standard of driving expected of the competent and careful driver and [2] that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven.

Sir Gerald remarked of that definition (which is regularly given to juries for charges under the amended section 1), that it described behaviour rather than a state of mind “and it can therefore be satisfied by a blank state of mind”.82 But there is nothing intrinsically wrong in that. Lord Justice-General Emslie remarked that if the prosecution were to be required to prove actual awareness of dangers, the statute would be virtually inoperative except in the rarest of cases. 79 McDowall v HM Advocate 1998 SCCR 343 at 348 per the Lord Justice General (Rodger). See also HM Advocate v Purcell [2007] HCJ 13, 2008 JC 131 at para 12. 80 1980 JC 57 at 60 (numerals and emphasis added). 81 The first finding is the principal question for the jury to determine: Crowe v HM Advocate 1990 SLT 670 at 672K-L, per the Lord Justice Clerk (Ross). 82 G H Gordon, The Criminal Law of Scotland: First Supplement to the second edition (1984) paras 7-70 to 7-74.

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(4) Recklessness: non-fatal common law crimes There is a dispute as to whether recklessness as defined in Allan v Patterson (and maintained in the definition of dangerous driving) should be used for common law crimes such as culpable and reckless conduct, fire-raising or malicious mischief. The conclusion now seems to be that it is the correct definition for statutory offences but not for common law crimes.83 Apparently this is thought to be necessary because in common law crimes what is in issue is the accused’s mens rea and not the manner of doing an act which would otherwise be lawful.84 With respect one might question the distinction: a mental element is the issue in both situations85 so that the only dispute is over the standard of recklessness. The difficulty this situation produces is plain and it remains under the proposals in the draft criminal code. What is a judge to say to a jury where the accused faces an indictment with a variety of separate charges for a series of crimes such as discharging a shotgun in a street, fire-raising of a house, murder by multiple kicks and punches in a street fight, and dangerous driving to flee the scene whereby a police officer is killed? And how is the jury to identify the appropriate form of recklessness for these different crimes? In one case the appeal court commented that in directing the jury on recklessness in fire-raising it was an unnecessary complication to refer to a high degree of recklessness as requisite for the crime because the only issue was whether the accused’s acts were accidental or careless (and so non-criminal) or reckless.86 One way to reduce the potential for jury perplexity – but something which can hardly be suggested in this day and age – would be to confine murder to intentional killing with its subjective mens rea. That, however, would be publicly unacceptable and for that reason alone politically unlikely. Another course might be to exclude objective recklessness from the definition of murder: the prosecution would have to prove actual foresight for reckless murder. But objective recklessness would be sufficient mens rea in cases of culpable homicide, so that the jury could convict of that lower offence if not satisfied as to the accused’s actual foresight so long as the accused was proved to have been grossly negligent (in not appreciating the serious risks which reasonable people would recognise). 83 See McIntosh v HM Advocate 1994 SLT 59 at 62B-C per the Lord Justice Clerk (Ross); Cameron v Maguire 1999 JC 63 at 65H-I per Lord Marnoch. 84 Carr v HM Advocate 1995 SLT 800 at 803K-L per the Lord Justice General (Hope). 85 See Sir Gerald’s commentary on Carr: 1994 SCCR 521 at 527. 86 Carr v HM Advocate 1995 SLT 800 at 803L.

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However, as had been noticed, recklessness has a part to play in positive defences such as self-defence. Where A believes in a state of facts which if true would render non-criminal his conduct, should his error be reasonable? Where at present A can be convicted of murder by objective wicked recklessness, it is not inconsistent to require that his error in the need to use lethal force should be based on reasonable grounds as otherwise, as Lieser makes plain, A’s rashness in forming an erroneous belief could go unpunished. Hence the draft code rightly requires the error to be reasonable.87 But if murder were to be limited to intentional killing, or if wicked recklessness were to be restricted to a subjective awareness of risk, the error to be sufficient would have to be nothing more than an honest but mistaken belief. That change would also be publicly unacceptable because it could lead to unmeritorious acquittals. As Sir Gerald said, when defending the Scots approach to wicked recklessness, though his remarks are applicable generally:88 any realistic approach to the problem must recognize that what is ultimately in issue is the community’s moral judgment on the accused’s behaviour, and not the satisfaction of a legal formula.

87 S 28(1) of the Draft Code (n 64). The code would also answer the point, on which the court in H v Griffiths 2009 SLT 199 reserved its opinion (see para 29), by requiring the mistake as to the victim’s age to be reasonable: s 28(3)(a). 88 See Gordon (n 12) 390.

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10  Theft by Omission Stuart P Green A. theft by omission: the legal framework B. fair labelling C. “other things being equal” D. theft by finding and failing to return lost or misdelivered property (1) Failing to return lost or misdelivered property as an omission (2) Lost property vs misdelivered property (3) Legality, omissive theft and the civil law of found property E. failing to make required disposition of funds and failing to correct false impression Other things being equal, should the law regard a crime committed by means of an omission as any more or less blameworthy than the same crime committed by means of an act? The question has arisen mostly in the context of homicide, where significant disagreement about the moral equivalence of killing and letting die persists.1 Even if we were to assume, however, that these two ways of committing homicide were equally blameworthy, it would be worth asking if the principle of equivalence could be generalised to other offences. My focus here is on theft. The question is whether thefts by means of an omission – including especially the offence of failing to return lost or mis­delivered property – are properly thought of as morally equivalent to thefts by means of an act. Under the consolidated law of theft, as found in both the American Model Penal Code and to a lesser extent in the English   1 See e.g. J Glover, Causing Death and Saving Lives: The Moral Problems of Abortion, Infanticide, Suicide, Euthanasia, Capital Punishment, War, and Other Life-or-Death Choices (1990); B Steinbock and A Norcross, Killing and Letting Die, 2nd edn (1994); J Bennett, “Whatever the consequences” (1966) 26 Analysis 83; D Chandler, “Killing and letting die – putting the debate in context” (1990) 68 Australasian Journal of Philosophy 420; D Conway, “Is failing to save lives as bad as killing?” (1988) 5 Applied Philosophy 109; A Norcross, “Killing and letting die”, in R G Frey and C Wellman (eds), A Companion to Applied Ethics (2005); J Rachels, “Killing and starving to death” (1979) 59 Philosophy 159.

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Theft Act 1968, most omissive and commissive thefts are subject to the same punishment. In this chapter, I shall argue that this is a mistake. Under basic retributive principles, only acts that are the same in terms of blameworthiness should be subject to the same punishment. Yet it is far from clear that theft by omission is always, or even normally, as blameworthy as theft by act. Indeed, I shall argue that some thefts by omission probably should not be criminalised at all. My argument is based primarily on the view that even if, other things being equal, commissive and omissive theft were properly viewed as morally equivalent, other things generally are not equal, and that the relevant differences – in terms of harms caused, wrongs inflicted, community understandings and criminalisation norms – provide a justification for differential treatment in theft law. A. THEFT BY OMISSION: THE LEGAL FRAMEWORK There are at least four ways to commit what I refer to here as theft by omission.2 The first is where an offender comes into possession of another’s lost property by finding and fails to restore it to its owner though it would be easy to do so. The second is where the offender fails to restore property to its owner after coming into its possession as a result of a mistaken delivery (once again it must be easy for the finder to restore the lost property to its owner). The third is where the defendant fails to make a required disposition of funds received. The fourth is where the defendant commits theft by deception by failing to disclose information he is under a legal duty to disclose. The trend in modern Anglo-American theft law is to subject all four kinds of omissive theft to the same punishment as each other and as commissive theft. This trend is most obvious under the influence of the Model Penal Code. Section 223 of the Code deals with, among other consolidated theft provisions: (1) failing to return lost property; (2) failing to return mis­delivered property; (3) failing to make required disposition of funds; and (4)  committing theft by deception by failing to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship, or by failing to disclose a known lien, adverse claim or other

  2 I appeal here to what I take to be a common sense understanding of omission, sidestepping deeper questions about whether omissions can be distinguished from acts, and the extent to which omissions should be viewed as “causes”. For a helpful recent discussion, see M S Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009) at 436-452.

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legal impediment to the enjoyment of property.3 Under the Code, all of these offences are treated as equivalent to, and interchangeable with, each other as well as another half dozen theft and theft-related offences (including theft by unlawful taking, theft by deception by various other means, theft by extortion, receiving stolen property, theft of services, and unauthorised use of automobiles and other vehicles).4 Thus, under the Code, if D were charged with, say, theft by failing to return lost or misdelivered property, the government could satisfy its burden of proof by showing that D had committed theft by extortion or receiving stolen property, and vice versa. Moreover, each such offence would be liable to the same basic punishment. In English law, consolidation is both less complete and more complex. The Theft Act 1968 makes no explicit reference to theft by failing to return lost or misdelivered property, though, as Smith’s Law of Theft notes, the Act is “obviously intended” to preserve the substance of the common law rule which makes failing to return found property a form of theft.5 Section 1 states that a person is guilty of theft if he dishonestly “appropriates” property belonging to another with the intention of permanently depriving the other of it. Section 3(1), in turn, states that, “[a]ny assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner”.6 Thus, under English law, theft by failing to return lost or misdelivered property is subject to the same punishment as core cases of commissive theft. English law deals with the remaining forms of omissive theft separately. Section 3 of the Fraud Act 2006 states that a person commits fraud if he “(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information – (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss”.7 Section 4 of the Act further   3 See the Model Penal Code (hereafter MPC) § 223.5 (theft of property lost, mislaid, or delivered by mistake); §  223.8 (theft by failure to make required disposition of funds received); §  223.3(3) (theft by failing to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship); and §  223.3(4) (theft by failing to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained).   4 Each provision is consolidated through MPC § 223.1 (accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this article, notwithstanding the specification of a different manner in the indictment or information).   5 D Ormerod and D H Williams, Smith’s Law of Theft, 9th edn (2007) para 2.282.   6 Theft Act 1968 s 3(1).   7 Fraud Act 2006 s 3.

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states that a person may be regarded as having committed fraud by abuse of position “even though his conduct consisted of an omission rather than an act”. Both kinds of fraud by omission are treated the same as fraud by affirmative misrepresentation.8 The approach to theft by omission is quite different in Scottish law, reflecting its adherence to the common law and rejection of statutory consolidation. Theft by failing to return lost or misdelivered property is clearly a crime, but it is one that appears to have been treated as a less serious offence than commissive theft. 9 A style of charge for theft of found property is found in the Criminal Procedure (Scotland) Act 1995, and reads as follows: “having found a watch, you did, without trying to discover its owner, sell it on, to O.R., and steal it”.10 Interestingly, and properly as I shall suggest below, Scottish law seems to focus more on the affirmative civil obligation to return found property than it does on the criminal penalties imposed if one fails to comply with such obligation. As such, the Civic Government (Scotland) Act 1982 provides a fairly elaborate set of procedures for dealing with found property, including procedures for: the deposit of such property with the chief constable, the constable’s retention and disposal of property, claims by the owner for return, payment of rewards to the finder, and compensation for property improperly disposed of. It also imposes, almost as an afterthought, criminal fines not exceeding £50 for failure to comply with such procedures, a penalty that is substantially less than for theft proper.11 Scottish law also treats as a crime cases in which “an over-payment is made to A in error and A retains this payment in knowledge of the error”.12   8 Fraud Act 2006 s 1(3).   9 See citations in Gordon, Criminal Law vol 2 at 22. At this point, it seems appropriate to say something about the man and work being honoured in this volume. I first encountered Sir Gerald’s treatise on Scottish criminal law during a year-long sabbatical at the University of Glasgow in 2002-2003. I originally consulted it in the hopes of finding an authoritative statement of Scottish criminal law on any number of different points. I did indeed find this, but I also found a work that was so rich in insight that I have often since found myself consulting it even when I was not specifically interested in a question of Scottish law. I also had the pleasure of meeting Sir Gerald on several occasions during my year in Scotland and I found him to be at least as engaging a companion in person as he is in print. I am delighted to have had the opportunity to take part in this birthday celebration. 10 Criminal Procedure (Scotland) Act 1995 Sch 5. 11 Civic Government (Scotland) Act 1982. The practical significance of the 1982 Act in relation to the law of theft is not, however, entirely clear. In Kane v Friel 1997 JC 69, the appellant was convicted of the theft of a quantity of metal piping and a sink unit, which he claimed to have found behind a shop. The appeal court quashed his conviction on the basis that theft required a “dishonest” intention, meaning that he “must have known that the items were property which someone intended to retain”. The appeal court noted that neither counsel had referred to the 1982 Act, saying that its provisions “might have been of relevance to the argument – we express no view on that – but they were simply not raised” (at 70 per the Lord Justice General (Rodger)). 12 Gordon, Criminal Law vol 2 at 43.

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B. FAIR LABELLING Does the modern tendency to treat theft by omission as equivalent to theft by commission, which we have seen in the US and (to a lesser extent) in England and Wales, but not in Scotland, make sense? Should theft by failing to return lost property be punished in the same manner as larceny and embezzlement? Should theft by failing to make a required disposition of funds receive the same punishment as extortion and false pretenses? Together with my collaborator, Matthew Kugler, I recently conducted a study to test people’s intuitions about the relative blameworthiness of various forms of theft.13 We asked our subjects to rank the seriousness of twelve hypothetical cases and found, among other matters, that they consistently rated theft by failing to return misdelivered property as less blameworthy, and deserving of less punishment, than (commissive forms of) larceny, embezzlement, extortion, and false pretenses.14 (We did not question subjects about their views on the blameworthiness of failing to return lost property, failing to make required disposition of funds, failing to correct a false impression, or failing to disclose a known lien or adverse claim.) Our study suggests that there is in the realm of theft offences a significant gap between law and norms. We found that people make much more finely-graded blameworthiness distinctions among different forms of theft than is recognised by modern law. The problem presented is thus one of fair labelling, the idea that, as Andrew Ashworth has put it, “widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking”.15 Where people consistently regard two or more types of conduct as different in terms of blameworthiness, the law ought to reflect those differences: other things being equal, it ought to punish the more blameworthy act more severely and the less blameworthy act less severely, whether it is in the area of theft or any other criminal offence.16 If the law treats some kinds of theft more, or less, harshly than people believe they should be treated, it risks being unjust and 13 S P Green and M B Kugler, “Community perceptions of theft seriousness: a challenge to Model Penal Code and English Theft Act consolidation” (2010) 7 J Empirical Legal Studies, 511. The text in this paragraph and the next closely tracks language used in that article. 14 Also consistently rated as less blameworthy was the act of receiving stolen property. 15 A Ashworth, Principles of Criminal Law, 6th edn (2009) 78. See also J Chalmers and F Leverick, “Fair labelling in criminal law” (2008) 71 MLR 217. 16 For a discussion of fair labelling in the context of theft, see C M V Clarkson, “Theft and fair labeling” (1993) 56 MLR 554; P R Glazebrook, “Thief or swindler: who cares?” (1991) 50 CLJ 389; S Shute and J Horder, “Thieving and deceiving: what is the difference?” (1993) 56 MLR 548.

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out of step and likely to lose some of its moral authority and effectiveness. The same can be said if the law fails to criminalise some forms of theft that people believe should be criminalised, or criminalises other forms of theft that people think should be free of criminalisation. The point is not that the criminal law should always follow popular opinion, or that people’s moral intuitions are necessarily correct. It is simply that, in formulating an effective and authoritative criminal law, it is essential to know what people’s intuitions are and where they diverge from current or proposed legal rules. C. “OTHER THINGS BEING EQUAL” How should we compare the moral content of a crime committed by means of an affirmative act to that of the same crime committed by means of an omission? The most obvious approach is to try to construct pairs of hypotheticals that differ in no way other than the means of commission. This is the approach widely used in the literature on killing and letting die.17 How would this approach work in the case of theft? Elsewhere, I have suggested that the moral content of any crime can be broken down into three kinds of element: the mens rea with which it is perpetrated, the harms it causes or risks, and the wrongs it effects.18 Following this approach, we could try to construct pairs of cases that are identical in terms of each such element and that differ only with respect to the means of commission. In the context of theft, this would presumably mean that both acts would involve depriving a victim of the same property (say, a car, a bicycle or a boat), that both acts would be done with the same intent or purpose to deprive the owner ­permanently of his property, and that both acts would involve the same element of dishonesty or lack of consent or involve the same violation of duty or of rights.19 If I am right that the moral content of criminal acts consists solely in these three elements, and if we could find two otherwise identical cases of theft that differed only in the sense that one was committed by means of an act and the other by means of omission, then I believe we would be obliged to conclude 17 See sources cited above at n 1. 18 S P Green, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime (2006). I use mens rea in its narrow “elemental” sense to refer to the particular mental state with which an offender commits a crime. I use “harmfulness” to refer to the degree to which a criminal act causes, or risks causing, harm, defined loosely as a significant setback to a person’s interests. I use the term “wrongfulness” to refer to the extent to which the act violates a victim’s rights or a moral norm more generally. 19 The moral content of theft law is explored in far greater detail in my forthcoming book, tentatively titled Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age.

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that the two acts were equivalent in terms of their moral content and that, at least as far as retributivism goes, they should be punished equivalently. Unfortunately, as Tony Honoré once pointed out in much the same context, “[o]ther things are usually not equal”.20 In particular, though there is little problem in positing commissive and omissive thefts that involve the same mens rea, it is much harder to find commissive and omissive thefts that involve precisely the same harms and wrongs. Indeed, as we shall see now, the kinds of harm and wrong entailed by at least some forms of omissive theft differ significantly from the kinds of harm and wrong associated with most kinds of commissive theft. In what follows, my main focus will be on the various ways in which the moral content typically associated with the first two kinds of omissive theft identified above – namely, failing to return lost property and failing to return misdelivered property – differs from the moral content typically associated with commissive theft. I focus on these two types of omissive theft because they seem to me to present a conceptually clearer case for distinguishing between omissive and commissive thefts. I will therefore have less to say about the second two kinds of omissive theft – namely, theft by failure to make required disposition of funds, and theft by failure to correct a false impression. They will be discussed primarily in contrast to the first two. D. THEFT BY FINDING AND FAILING TO RETURN LOST OR MISDELIVERED PROPERTY At common law beginning late in the fifteenth century, one who found lost goods and failed to return them to their owner upon demand was liable in tort, for trover.21 It was not until several centuries later, apparently as late as the nineteenth century, that one who took into his possession lost, mislaid or misdelivered property and failed to make a reasonable effort to find the owner could be held guilty of larceny.22 A failure to make an effort to find the owner was considered to be unreasonable if the finder knew the owner’s identity or had reason to believe that he could discover it (for example, from 20 T Honoré, “Are omissions less culpable?”, in P Cane and J Stapleton (eds), Essays for Patrick Atiyah (1991) 31 at 31. 21 F V Harper and F James, Jr, The Law of Torts, 3rd edn (2006) vol 1 at 113-115; W L Prosser, “The nature of conversion” (1957) 42 Cornell LR 168 at 169; D Reisman, Jr, “Possession and the law of finders” (1939) 52 Harvard LR 1105 at 1130. The Oxford English Dictionary records that the word “trover” comes from the French trouver, meaning “to find”. 22 W LaFave, Criminal Law, 4th edn (2003) at 928-931; R M Perkins and R N Boyce, Criminal Law, 3rd edn (1982) at 308-314.

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earmarkings on the property or from the circumstances of its finding).23 Merely picking up or possessing the lost property did not constitute a crime; the finder had to fail to make an effort to find the owner. If the finder took possession of property intending to look for its owner and restore the thing to him, he did not assume the rights of the owner and did not commit larceny. This was true even if he picked up the property intending to return it to the owner and subsequently decided not to do so.24 As we saw above, theft by failing to return lost or misdelivered property is among the bundle of common law offences that the Model Penal Code incorporated into its undifferentiated offence of “theft”, and thereby subjects to the same punishment as theft by unlawful taking, theft by deception, theft by extortion, theft of services, and receiving stolen property. Section 223.5 of the Code provides as follows:25 A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable steps to restore the property to a person entitled to have it.

The Code formulation is thus both broader and narrower than the common law offence. It is narrower in the sense that a defendant can avoid liability in cases in which he has the intent to steal at the time he takes possession but subsequently changes his mind and takes reasonable steps to find the owner. It is broader in the sense that the defendant cannot avoid liability by postponing his intent to deprive until some time after he has taken possession of the property. The same is true of the Theft Act 1968: as section 3(1), quoted above, makes clear, a finder who forms the intent to deprive the owner of his property only after he has taken possession will nonetheless be guilty of theft.26 (1) Failing to return lost or misdelivered property as an omission There are two senses in which theft by failing to return lost or misdelivered property might be said to involve the criminalisation of an omission. The first, which will be discussed in this section, arises out of the requirement that the offender, having actively taken possession of some property, subsequently “fails to take reasonable steps to restore the property to a person entitled to 23 See e.g. Penny v State, 159 SW 1127 (Ark 1913). 24 LaFave, Criminal Law (n 22) 929. 25 MPC § 223.5. 26 Theft Act 1968 s 3(1).

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have it”. The second sense, which will be discussed below, occurs in those cases in which the defendant’s coming into possession of the property is itself passive, as where the property was misdelivered to his house. In considering the criminalisation of omissions, we begin with an approach developed by Tony Honoré, who divides conduct into doings and not-doings.27 When a doing is contrary to a norm, it is a commission; when a not-doing is contrary to a norm, it is an omission. Norms, in turn, are divided into ordinary norms and norms which impose distinct duties. The distinctduties theory holds that we have, beyond the background duties we owe to all, special duties to other people and entities, which vary from person to person according to individual circumstances and past dealings between them. A classic example is the duty that parents owe to their children. Under this approach, harms caused by omission are, other things being equal, comparable in their wrongfulness to harms caused by affirmative act when the person who omits to perform some act is under a distinct duty to do so. When only background duties are operative, however, positive acts are normally worse than omissions. One of the questions we need to ask is whether the offence of failing to return lost property involves a distinct duty and, if so, what form it takes. According to Honoré, there are five types of situation that yield distinct duties: (1) The agent, by a positive act, causes a harm or increases a risk to others, and thereby incurs an affirmative duty to mitigate such harm or risk. For example, a motorist who runs over a pedestrian has a duty to summon help, even if his initial act was not at fault (e.g. where he has blamelessly struck a pedestrian who has run into the street). (2) The agent occupies a position or office or fills a role which may require him to act positively. An example would be that of a parent who is obliged to act affirmatively in caring for a child, even when he did not create the initial harm. (3) Society imposes a duty to act positively because of a need or dependency which the agent is well placed to fulfill, as where an agent takes custody of another and thereby deprives him of normal opportunities of being rescued. (4) Receipt of a gift or other benefit sometimes imposes an obligation on the recipient to act. (5) People have specific duties to act affirmatively when they have voluntarily agreed to do so, as in the case of promises. 27 Honoré (n 20) 33-34. For alternative approaches, see L Alexander, “Criminal liability for omissions: an inventory of issues”, in S Shute and A Simester, Criminal Law Theory: Doctrines of the General Part (2002); A Ashworth, “The scope of criminal liability for omissions” (1989) 105 LQR 424; A P Simester, “Why omissions are special” (1995) 1 Legal Theory 311; G Williams, “Criminal omissions – the conventional view” (1990) 107 LQR 86.

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Of course, not all of these situations create duties in law, let alone criminal law; in some cases, the duty is merely a moral one. So, what kind of duty, if any, is at play in the case of theft by failure to return found property? For a start, we can rule out, as obviously inapplicable, the second, fourth and fifth grounds noted above. This leaves as potential candidates grounds (1) and (3). Taking ground (1), first, can we say that the finder of lost property has, by a positive act, caused a harm or created a risk to others, and thereby incurred an affirmative duty to mitigate such harm? Assuming, as will normally be the case, that the finder has had no role in the owner’s loss of the property, it seems to me wrong to say that the finder of lost property has caused a harm or created a risk. This is therefore not like the case of the motorist who runs over a pedestrian and is then legally obligated to summon help. A more plausible basis for finding a duty is ground (3) – namely, that the finder, by taking possession of the lost property, deprives the owner of a normal opportunity to find it. Consider the case of Geoffrey Rowlett, an English magistrate who found a £3,200 Rolex watch on the floor of a Tesco supermarket, made no effort to find its owner, and gave it to his wife as a sixtieth birthday present.28 He was subsequently convicted of theft. Rowlett’s case seems to reflect the core case of theft by finding. Upon finding the lost watch, Rowlett had three basic choices. He could have taken possession of the property and then tried to find its owner, such as by alerting the store manager of his find or putting up a “Found” notice on the store’s bulletin board. Such conduct would have been proper, even praiseworthy. Alternatively, he could have done nothing; he could have simply walked on by, leaving the watch lying on the floor. Most people in our society today would probably say that, if Rowlett had done this, he would have done nothing wrong, and that his conduct would have been morally neutral (though it is worth noting that Jewish law seems to disagree on this point, also viewing as morally wrong those who find lost property and do nothing to reunite it with its owner).29 Finally, Rowlett could do what he 28 S de Bruxelles, “Magistrate convicted for giving wife Rolex he found in Tesco’s”, The Times, 28 January 2005. 29 See M J Broyde and M Hecht, “The return of lost property according to Jewish and common law: a comparison” (1995-1996) 12 Journal of Law and Religion 225 at 235 (“The exact parameters of the obligation to assist in property return is of some dispute within Jewish law. Most authorities are of the opinion that one who sees lost property and then declines to pick it up has transgressed both the negative prohibition of ‘you have no right to withdraw [from returning it]’ and the positive commandment of ‘you shall give it back to him’”) (citations omitted). The moral obligation to act affirmatively to find the owner of lost property is based on Deuteronomy 22: 1-3, which states: “If you see your fellow’s ox or sheep gone astray, do not ignore it; you must take it

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actually did, which was to take the property for his own use and make no effort to find the owner. Most people, I assume, would regard such conduct as wrongful. By taking possession of the watch, rather than leaving it lying on the floor, he deprived the owner of the opportunity to return to the store and find the watch lying on the floor where it was lost. The owner of the watch became (in Honoré’s term) “dependent” on Rowlett by virtue of Rowlett’s having taking possession of it. Even if we agree, however, that it is morally wrong to take possession of lost property and then fail to make any effort to find the owner, it hardly follows that such an omission should constitute a crime, let alone that it should be treated as equivalent to commissive theft. Let me suggest a number of reasons why this is so. The first is that the harm caused by the offender’s failure to look for the owner of found property is arguably less serious than that caused by an ­affirmative act of stealing. If Rowlett had affirmatively stolen O’s watch, say, by picking his pocket, he would certainly have caused O a substantial harm. But where O has already lost the watch, the additional harm caused by Rowlett’s preventing him from having an opportunity to recover it is relatively small. The difference, in short, is between worsening a situation and merely failing to improve it. Second, even if Rowlett’s preventing O from recovering his lost watch were as harmful as his stealing it in the first place, it is doubtful that the harm would be sufficient to merit criminal sanctions. In almost all of those cases in which the law imposes on one who creates a ‘dependency’ in another a duty to act, the risk involved is one of serious physical harm. This is true even in the case of so-called Bad Samaritan statutes, which almost always say that the victim must be at risk of grave physical harm before the defendant is required to act.30 In the case of omissive theft, by contrast, the harm is the loss back to your fellow … You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find; you must not remain indifferent.” See also Bava Metzia chs 1 and 2 (Talmudic tractate offering regulations as to what constitutes finding, how to take care of found property, under what conditions the finder of a thing is or is not bound to take care of it, and how to guard against false claimants).  It is worth noting that Jewish law also regards the failure to give to charity as a form of theft. For example, the thirteenth-century text Sefer Chasidim imagines God as saying: “I gave you wealth so that you could distribute it [in part] to the poor, but you didn’t do so … you kept all the money for yourself. Since you did not keep your part of the bargain, you will be punished as though you have robbed them”: Sefer Chasidim: The Book of the Pious, para 415, quoted in J Telushkin, A Code of Jewish Ethics, Volume 2: Love Your Neighbor as Yourself (2009) 160. 30 J Kleinig, “Good samaritanism” (1976) 5 Philosophy and Public Affairs 382. For example, a Vermont statute (Vt Stat Ann tit 12 §  519(a)) makes it a crime to fail to give “reasonable assistance” to another person whom one “knows … is exposed to grave physical harm” if such aid “can be rendered without danger or peril” to the bystander.

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of property.31 The criminal law simply does not regard such property-related harms as equal in seriousness to harms to one’s physical well-being. Third, it seems a more significant violation of O’s rights that D wrongly take property that is in O’s possession than that D fails to return property that is not in O’s possession to begin with. Certainly, making an effort to find the owner of the watch would be the decent thing for D to do. But to what extent would D’s failing to make such an effort constitute a wrong to the owner? Consider how you would feel if you lost your watch and had it returned to you the next day by its finder. You would, I think, feel grateful. You might even think that the finder had acted supererogatorily.32 You might think it appropriate to give the finder a reward for his virtuous act, as occurred in the recent US case of Mohammed Khalil, a Newark taxi driver who returned to its caretaker a $4 million Stradivarius violin left on the backseat of his cab.33 For his honesty, Khalil was given: a cash reward; a private recital by the grateful violinist, Philippe Quint; and Newark’s highest honour, the Medallion, presented by Mayor Cory Booker. Indeed, some jurisdictions now require that the true owner give the finder a reward for his trouble.34 Assuming that all of this is true, it would seem odd to say that it is morally wrongful to fail to do that which, had one done it, would merit a reward.35 Fourth is the fact that people are presumably less certain about the moral and legal obligations to return found property than they are about the moral and legal prohibitions on out-and-out taking of property from another’s possession. The norms associated with returning found property are simply not as strong or as deeply rooted as those associated with the prohibition on taking others’ property. The schoolyard proverb “finders keepers, losers weepers”, though neither an accurate reflection of the law nor a particularly admirable ethical sentiment, nevertheless seems to have had a lasting effect 31 I leave to the side those cases in which the found property is itself vital to a person’s physical wellbeing, as where a defendant finds another’s vial of insulin, takes possession of it, and fails to look for its owner. 32 The seminal piece is J O Urmson, “Saints and heroes”, in A Melden (ed), Essays in Moral Philosophy (1958). For a helpful taxonomy of morally significant actions, see H Hurd, “Duties beyond the call of duty” (1998) 6 Annual Review of Law and Ethics 1 (taxonomy includes actions that are required, actions that are forbidden, actions that are praiseworthy but not required (supererogatory), actions that are blameworthy but not forbidden (suberogatory), actions that are supererogatory if performed and suberogatory if omitted, and amoral or morally neutral actions). 33 R G Jones, “Cabdriver thanked for returning a Stradivarius”, New York Times 7 May 2008. 34 See e.g. NY Pers Prop L. §§  251-258. 35 Against this, it might be argued that the relevant question is not how one would feel if one lost one’s watch and had the finder return it, but rather how one would feel if one lost one’s watch and knew that its finder was failing to return it. If this is right, then it suggests an interesting asymmetry in our reactive emotions that calls for further inquiry.

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on many people’s moral sensibilities. As Gordon’s Criminal Law of Scotland has put it in this context, “what is clear to a lawyer is not necessarily appreciated by members of the public”.36 Fifth, and closely related, is the fact that the criminal law in this area, as we shall see below, is to an unusual degree dependent on somewhat esoteric concepts in the civil law of property. This suggests that theft by finding is even more malum prohibitum-like in its character than other forms of theft.37 Finally, it is worth noting that the norms concerning the return of lost property are, to a degree unusual in the law of theft, culturally-specific. For example, a recent study suggests that residents of Tokyo are significantly more likely to return found property than residents of New York.38 Undoubtedly this gap reflects the fact that Japan, in contrast to the United States, has a more widely recognised, accessible and efficient system for reporting lost objects, one that rewards good behaviour and punishes bad – a coherent system of “carrots” and “sticks”, as Saul Levmore puts it in his discussion of finders’ law.39 To what extent these norms have been internalised, in the sense that residents of Tokyo could be said to be more honest than New Yorkers, seems somewhat harder to say. (2) Lost property vs misdelivered property In the previous section, I argued that the reasons for criminalisation are weaker in the case of the non-return of lost or misdelivered property than in the case of affirmative takings of property. We now turn our attention to the difference between failing to look for the owner when one takes possession of property that has been lost and failing to look for the owner when one takes possession of property that has been misdelivered. I will argue that, as weak as the arguments are for criminalising the first sort of omission, the arguments for criminalising the second sort of omission are even weaker. If I am right, we can observe yet another respect in which the Model Penal Code and the Theft Act 1968 improperly conflate morally distinct forms of theft. As noted above, the MPC provides that theft is committed where a person “comes into control of property of another that he knows to have been … 36 Gordon, Criminal Law of Scotland (n 9) 22. 37 The malum prohibitum character of theft more generally will be discussed in Green, Thirteen Ways to Steal a Bicycle (n 19). 38 M D West, “Losers: recovering lost property in Japan and the United States” (2003) 37 Law and Society Review 369. 39 S Levmore, “Waiting for rescue: an essay on the evolution and incentive structure of the law of affirmative obligations” (1986) 72 Virginia LR 879.

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delivered under a mistake as to the … identity of the recipient” and then “with purpose to deprive the owner thereof … fails to take reasonable steps to restore the property to a person entitled to have it”.40 The Theft Act 1968, as we saw, says that in committing theft by failing to return lost or misdelivered property, one must “assume” the rights of the owner, by “keeping” it or “dealing with it as owner”.41 In the case of lost property, it will normally be clear when the offender comes into control of the property of another. In the case of misdelivered property, however, the existence of such control is likely to be less clear. Imagine, for example, that a box containing a Rolex watch, addressed to someone other than Magistrate Rowlett, is mistakenly delivered to his house by the mail carrier. And imagine that Rowlett disposes of the box or takes it into his house and puts it in a closet without ever using it. Should we say that Rowlett has necessarily come into control of the property? Even assuming that Rowlett has come into control of the watch, the idea that he should be subject to criminal sanctions for failing to takes steps to return it to its owner seems troubling. Rowlett’s conduct in the case of the misdelivered Rolex is even more passive, and therefore arguably even less wrongful, than in the case of the lost Rolex. In the actual case, it was Rowlett’s own act of taking the lost watch into his possession that made it even less likely that its owner would be able to recover it. In my hypothetical case of the misdelivered Rolex, the risk that the owner of the watch will be unable to recover her lost property was created by a third party, namely, the carrier who misdelivered the mail in the first place. One can easily imagine a case in which O, the former occupant of some premises, has moved away, and that day after day mail addressed to O is received by the new occupant, R. If R fails to send some of the mail on, and instead discards it or keeps it piled up on a table by the door, there is a reasonable argument that R is guilty of theft. Yet to impose sanctions for failing to return misdelivered property in such circumstances would seem to compound the problems of omission liability discussed in the last section. To treat as criminal those who come into control of misdelivered property and fail to look for the owner becomes even more problematic in the context

40 MPC § 223.5. 41 Theft Act s 3(1). Cf E Melissaris, “The concept of appropriation and the offence of theft” (2007) 70 MLR 581 at 590-591 (2007) (arguing that property left with an offender for safekeeping is not appropriated by the offender unless and until he “replace[s] the owner in [a] special proprietary relationship with the thing … [h]is attitude towards the [left property] is that of its owner, he behaves as if the [property] were his”).

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of intangible property.42 Imagine the following: (1) Rowlett’s bank mistakenly credits to his account a sum that should have been credited to another depositor’s account; (2) Rowlett is aware of the mistake but never tells the bank about it; and (3) the money remains in his account. Has Rowlett committed the offence of “theft of property … delivered by mistake”? Must he use or transfer the funds in order to assert control over them?43 Or can he come into control by simply knowing that the funds have been incorrectly credited to his account and allowing them to remain there? Assuming that he comes into control of the funds as soon as he becomes aware that they are in his account, it would appear that Rowlett has violated MPC section 233.5. The problem is that Rowlett’s conduct in this case seems even more passive than in the previous case, since he has not even done so much as taken physical control of the property. (3) Legality, omissive theft and the civil law of found property Another problem with the offence of theft by finding and failing to return lost property is that it criminalises conduct the lawfulness vel non of which is dependent on sometimes arcane rules in the civil law of property. Indeed, questions concerning the ownership of lost property are among the most difficult and contested in all of personal property law.44 Such complexity raises serious concerns about the legality of criminalising this sort of conduct. As we shall now see, there are difficult questions that must be resolved about: when property can properly be said to be abandoned; who owns salvage, treasure trove, property found at sea, and property found underground; and the possible distinction between lost and mislaid property. Regarding the law of abandonment, consider the case of Fabio Piras, a Sardinian tourist vacationing in London shortly after the death of Princess Diana. Tens of thousands of flowers, teddy bears, letters and other tributes 42 Though it is worth noting that the Scots law of theft is restricted to corporeal property. See Gordon, Criminal Law vol 2 para 14.13. 43 Were Rowlett to withdraw the funds and spend them, I assume that he would be unambiguously guilty of theft, since he would have knowingly appropriated funds belonging to another with the intent to deprive the other of them permanently. Cf R v Shadrokh-Cigari [1988] Crim LR 465. 44 See e.g. R H Helmholz, “Equitable division and the law of finders” (1983) 52 Fordham LR 313; R H Helmholz, “Wrongful possession of chattels: hornbook law and case law” (1987) 80 Northwestern University LR 1221; W Landes and R Posner, “Salvors, finders, good Samaritans, and other rescuers: an economic study of law and altruism” (1978) 83 Journal of Legal Studies 83; Levmore (n 39); J S Moorman, “Finders weepers, losers weepers? Benjamin v Lindner Aviation, Inc” (1997) 82 Iowa LR 717; J V Orth, “What’s wrong with the law of finders and how to fix it” (2001) 4 Green Bag 2d 391; R A Posner, “Savigny, Holmes, and the law and economics of possession” (2000) 86 Virginia LR 535.

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had been left outside various royal palaces. Piras took one of the teddy bears from outside the gates of St James’ Palace and, not surprisingly, made no effort to find the owner. He was convicted of theft and initially given a sentence of one week in prison. He later had his sentenced reduced to a £100 fine, but was punched in the face by a member of the public when he left the court having won his appeal.45 The obvious question is whether the property taken by Piras should properly be regarded as abandoned. Theft is committed only if the defendant takes the property “of another”. Property that is abandoned is deemed not to be property belonging to another. So did the teddy bear belong to “another”, and, if so, to whom? It seems unlikely that property left outside the gates of St James’ Palace should be said to belong to the royal family (who own the palace) or to the British government. Nor is it likely that it still belonged to the person who left it there; such leaving was surely not intended to be temporary. On the other hand, the property does not seem to have been entirely abandoned. It was presumably intended to remain where it was, at least for a time, as a tribute to the late princess, and perhaps later to be given to charity (though it is unclear whether this latter fact would even have been contemplated by the person who left it there). In taking the teddy bear for his own use, Fabio surely violated some expectation of the person who left it there. What seems doubtful, however, is that this is the kind of property violation that theft law is meant to prohibit.46 The difficulty of determining whether property is truly abandoned and, if so, who should get subsequent title to it, is reflected in a number of important dichotomies in the civil law of personal property, such as those between: property found at sea and property found underground; property found on land owned by third parties and property found on public lands; property buried intentionally by owners since deceased and property lost unintentionally; property lost, property mislaid, and property unclaimed; property found by a trespasser and property found by one lawfully on property; and treasure trove and salvage. Consider the case of the container ship, MSC Napoli, loaded with brandnew BMW motorcycles and other goods, and stranded in the English Channel 45 J Barnes, “Kitty zipper” The New Yorker 29 September 1997, 78. 46 For another example of the difficulty in determining when property should properly be said to be abandoned, see Williams v Phillips (1957) 41 Cr App R 5 (upholding theft conviction of “dustmen” who helped themselves to trash left on curb by householder for trash collection by local authority; the court reasoned that refuse remained property belonging to the householder until collected, whereupon title passed to the local authority). See generally R Hickey, “Stealing abandoned goods: possessory title in proceedings for theft” (2007) 26 LS 584.

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off the coast of Devon in January 2007.47 After containers from the wreck began washing up on the shore, around 200 people ventured onto the beach to scavenge the flotsam. At first the police tolerated the acts as “salvage”, but later they branded them as “despicable”, closed the beach, and threatened prosecution.48 As far as can be determined, there seems to have been genuine confusion among both the scavengers and the police about whether such conduct was permissible. The law concerning such finding is complex and varies significantly from jurisdiction to jurisdiction. The term “treasure trove” refers to valuable property, such as gold, silver, gemstones or money, hidden underground, in cellars or in attics, where the property is old enough for it to be presumed that the true owner is dead and his heirs undiscoverable. Unlike the Rolex watch lost by its owner and found by Magistrate Rowlett, treasure trove is property that was hidden by its owner with a view to its subsequent discovery. (Thus, shipwrecks like the Napoli and Titanic are not properly regarded as containing treasure.) In Britain, the traditional rule is that treasure trove is regarded as property of the Crown.49 (This is so even if the property was hidden on private land.) One who takes such property for his own is therefore committing theft. In most American states, by contrast, the finder is allowed to keep the property50 (though in Louisiana, following the “civilian” tradition, the rule has been that the property is divided between the finder and the owner of the land on which it is found).51 The rights of finders vary depending on where property is found, how it was lost or abandoned, and how long ago it has been lost or abandoned. For example, if abandoned personal property is found embedded in the soil, it will ordinarily be awarded to the landowner rather than the finder.52 Abandoned chattels found in public places will ordinarily be awarded to the finder, in contrast to chattels found on private property (such as a store or a restaurant), which will go to the property owner.53 As Gordon’s Criminal Law 47 “Can you keep ship-wrecked goods?” BBC News Online 22 January 2007. 48 “Police crack down on scavengers”, BBC News Online 23 January 2007. 49 In English law, see R v Hancock [1990] 2 QB 242. The Scottish position is a little more complex: see K G C Reid, The Law of Property in Scotland (1996) § 553 (“the precise meaning of treasure in Scots law is not, as the law stands, of vital importance. In principle, all ownerless property belongs to the Crown if it has once been owned. Thus, where title to the property is concerned, it does not matter whether or not it is classed as treasure unless it should be claimed by a donatory from the Crown of the right to treasure”). 50 J W Singer, Introduction to Property, 2nd edn (2005) 803; L Izuel, “Property owners’ constructive possession of treasure trove: rethinking the finders keepers rule” (1991) 38 UCLA LR 1659. 51 Louisiana Civil Code § 3420. 52 Singer, Introduction to Property (n 50) 803. 53 Ibid.

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of Scotland indicates, property is not abandoned when put out for rubbish collection or handed over for cremation or burial at sea, while property that is properly abandoned is deemed to belong to the Crown.54 It can be difficult to say exactly when lost or abandoned property has become subject to appropriation, at least in cases where it has not been sold or destroyed.55 Another traditional distinction is that between lost, mislaid and unclaimed property. Property is considered lost if its owner parted with it involuntarily: a phone that drops unnoticed onto the street through a hole in its owner’s pocket is considered lost: the owner will probably not know where to look for it. Property is considered mislaid if the owner parts with it intentionally, but forgets where he puts it: a phone put down on a table in a restaurant and then forgotten would be regarded as mislaid. Its owner may well remember where she placed it and retrace her steps to retrieve it.56 The law traditionally held that the owner of lost property lost possession, while the owner of mislaid property maintained constructive possession.57 In criminal law terms, this meant that one who took possession of mislaid property was more likely to be held guilty of theft than one who took possession of lost property. Modern theft statutes, following the MPC approach, abrogate the distinction between lost and mislaid property, on the ground that the distinction is too elusive in practice; after all, how exactly is a finder supposed to know whether property is lost or mislaid? By this point in the discussion, it will, I hope, be clear that the legal status of lost and misdelivered property often depends on finely drawn and contested distinctions in the civil law of property. To premise criminal liability on such distinctions is to introduce serious questions of notice and legality. From a larger social policy perspective, the goal of the law in this area is to reunite owners with their lost property, and where it is not possible to find the owner, to encourage its use by someone else, so that the value of the property is not lost to the community entirely.58 Often, but not always, the 54 Gordon, Criminal Law of Scotland (n 9) vol 2 at 22. 55 Ibid. 56 Owners of both lost and mislaid phones, incidentally, are usually fairly easy to track down. See e.g. C Flanagan, “Dial M for mother” New York Times 11 May 2008 (recommending that one locate the owner of a lost phone by scrolling through the names in the list of contacts, and dialling “Mom”). Even easier, in my view, would be to scroll through the contacts and dial “Home”. 57 See e.g. R v Pierce (1852) 6 Cox CC 117. The distinction between lost and mislaid property is even more significant in Jewish law. See Broyde and Hecht (n 29). While a person is compelled to act affirmatively when he encounters lost property, he is in fact prohibited from picking up mislaid property, the rationale being that if property is placed in a particular place that is relatively secure, the easiest way to ensure that the object is returned to its owner is to do nothing: the owner will return to retrieve possession. 58 For a similar point, see Perkins and Boyce, Criminal Law (n 22) 311.

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finder of the chattel will have a better claim to it than anyone other than the original owner. One way to achieve this societal goal would be to reward people – to give them a “carrot” – for their honesty in returning found property. This is not to say that there should be no role in this area for “sticks” as well, including, certainly, tort actions for conversion and, perhaps, civil fines. What role the criminal law should play in furthering such a policy is another question. What seems clear, at a minimum, is that certain types of theft by omission, such as failing to return lost or misdelivered property, should be viewed as less unambiguously wrongful – and should therefore be subject to less severe punishment – than most kinds of theft by affirmative act. E. FAILING TO MAKE REQUIRED DISPOSITION OF FUNDS AND FAILING TO CORRECT FALSE IMPRESSION So far we have been focusing on the moral content of failing to return lost and misdelivered property. I have argued that these kinds of omissive theft are quite unlike commissive thefts in terms of the harms and wrongs they entail, and that they should therefore be punished differently. I now want to say something about the third and fourth kinds of omissive theft identified above – namely, failing to make a required disposition of funds received, and failing to disclose information that one is under a legal duty to disclose. Let us consider each in turn. The case for treating the offence of failing to make required disposition of funds the same as commissive theft is, in some respects, straightforward. The bank that fails to pay funds received from a depositor and the trustee who fails to pay money received from a beneficiary each breach a distinct duty of the sort that is less clearly present in the case of failing to return lost or misdelivered property.59 Such failure to make required disposition thus reflects one or more of Tony Honoré’s situations that yield distinct duties: (1) the agent occupies a position or office or fills a role which may require him to act positively; and (2) the agent has a specific duty to act affirmatively when he has voluntarily agreed or promised to do so. On the other hand, criminalising the failure to make a required disposition of funds received poses a difficulty that is not present in the case of failure to return lost or misdelivered property: it is often difficult to distinguish such cases from mere breach of contract, an 59 Cf American Law Institute, Model Penal Code and Commentaries Part II § 220.1 to 230.5 (1980) 255-270.

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act that modern law regards as inappropriate for ­criminalisation.60 Finally, there is the offence of committing fraud by failing to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship. Here again, the basis for finding a duty to act seems more secure than in the case of failing to return lost or misdelivered property. While the law is ordinarily reluctant to impose affirmative duties to disclose information (for fear that commercial relations will be chilled), the story is different where such affirmative obligations are narrowly limited to cases in which the deceiver fails to correct a false impression that he himself falsely created or reinforced, or in which the deceiver knows he is influencing another to whom he stands in a fiduciary relationship.61 In such cases, there seems to be a reasonable argument for criminalisation.

60 Although it should be noted that the reason why theft is a crime and breach of contract is not is not all that obvious. The issue will be dealt with in Green, Thirteen Ways to Steal a Bicycle (n 19). 61 See American Law Institute, Model Penal Code and Commentaries (n 59) 197-200.

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11  Statutory Rape and ­Defilement in Ireland: Recent Developments Finbarr McAuley A. introduction and summary B. statutory rape under the criminal law amendment act 1935 C. CC v Ireland (1) Decision and reasoning (2) Strict liability and punishing the morally innocent (3) Strict liability and serious crime (4) Strict liability and statutory rape (5) The constitution and the criminal law D. the legislative response to cc (1) The key provisions of the Criminal Law (Sexual Offences) Act 2006 (2) An assessment of the 2006 Act E. Conclusions and recommendations This chapter is based on a report written in my capacity as Criminal Law Rapporteur for the Legal Protection of Children,1 which I had the honour of submitting to the Dáil and Seanad for consideration and debate on the subject of statutory rape and cognate offences. It tells the story of what happens when the fundamental doctrines of the criminal law are perceived to conflict with constitutional norms; at all events, it offers an Irish perspective on this difficult problem. I am honoured to be able to contribute a chapter to this Festschrift. I have known Sir Gerald since the autumn of 1968 when, as a young law graduate, I arrived at Edinburgh University to take the Diploma in Criminology. In my first weeks in that beautiful city, I purchased and read the first edition of Sir Gerald’s treatise on the criminal law of Scotland, and knew instantly that my relationship with the discipline of criminology was  1 F McAuley, Report of the Criminal Law Rapporteur for the Legal Protection of Children (2007), available at www.omcya.ie/documents/child_welfare_protection/Report_of_Criminal_Law_Special_ Rapporteur_on_Child_Protection_Professor_Finbarr_McAuley.PDF.

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destined to be a flirtation. As presented by Sir Gerald, the moral sweep and intellectual grandeur of the criminal law would, eventually, be too difficult to resist, especially for someone contemplating an academic career. In the forty years since then there has not been a single one in which I have not stopped in the middle of wrestling with a criminal law problem and asked: what does Gordon say about this? During that time I have had the pleasure of meeting Sir Gerald on several occasions, and have been able to experience the warmth and charm that I first encountered as a graduate student all those years ago. A. INTRODUCTION AND SUMMARY This chapter deals with key aspects of the criminal law relating to sexual offences against children. It sets out the legal regime governing statutory rape under the Criminal Law Amendment Act 1935; considers the effect of the decision of the Supreme Court in CC v Ireland2 and analyses the reasoning in that case; presents a description and assessment of the legislative response to CC; and draws conclusions and makes recommendations as to how the law in this area might be improved. The principal conclusion of the chapter is that strict liability should be reinstated as the cornerstone of the criminal law governing statutory rape. The principal recommendation of the chapter is that the Irish Constitution should be amended to permit this to happen; but that a legal regime built on the principle of strict liability should be structured so that experimental sexual behaviour between children of comparable age should be excluded from the ambit of a newly configured offence of statutory rape. B. STATUTORY RAPE UNDER THE CRIMINAL LAW ­AMENDMENT ACT 1935 The Criminal Law Amendment Act 1935 created two separate offences in the Republic of Ireland in respect of sexual intercourse with a girl under the age of seventeen. Both offences described sexual intercourse as unlawful carnal knowledge, but were commonly known as statutory rape. Section 1 of the 1935 Act made it an offence for a male to have sexual intercourse with a girl under the age of fifteen. The offence was punishable by up to life imprisonment. Section 2 made it an offence to have sexual intercourse with a girl under seventeen. The offence was punishable by up to five years’ imprison  2 [2006] IESC 33.

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ment for a first offence and up to ten years’ imprisonment for a subsequent offence. The exclusive concern of the legislature in sections 1 and 2 was the protection of young girls; the Act was silent on the issue of the sexual exploitation of underage boys by mature females. Thus a woman who had sexual intercourse with a boy under fifteen could have been convicted of sexual assault as consent is no defence to that offence.3 But she would have committed no offence if the boy was over fifteen since male consent became fully operational at that age. The policy underlying the offence of statutory rape was “to protect young girls, not alone against lustful men, but against themselves”.4 Accordingly, consent was no defence to a charge under either section of the 1935 Act. Nor was it a defence that the girl looked over seventeen, or that the defendant believed, even on reasonable grounds, that she was over the age of consent.5 Consequently, the fact that the defendant may have been misled by the girl’s appearance, or may have had other grounds for believing that she was over the age of consent, was relevant only to sentence but did not affect his liability.6 In short, the offence of statutory rape was complete once it was proved that the defendant had had sexual intercourse with a girl who was in fact underage.7 Nor did it matter that the defendant was more or less the same age as the victim, or even that the defendant and victim were boyfriend and girlfriend. If the girl was underage, the boy was guilty of the offence even in a case where the girl had instigated the sexual contact between them. To that extent the offence of statutory rape as defined in the 1935 Act might be regarded as over-inclusive. Insofar as the rationale for the offence was the protection of young girls from sexual exploitation by older males, it is arguable that the legislature ought to have limited the scope of the offence accordingly. By the same token, it may be thought that any newly constituted offence of statutory rape should not comprehend cases in which sexual intercourse is free of any element of exploitation. On the other hand, if the rationale for the offence of statutory rape is more broadly defined as including the paternalistic goal of protecting young girls “against themselves”, this objection falls away. On this approach, the issue is whether there are legitimate objective reasons for imposing strict liability even in the absence of an element of exploitation. This approach   3 Criminal Law Amendment Act 1935 s 14.  4 Attorney General (Shaughnessy) v Ryan [1960] IR 181 at 183.  5 Coleman v Ireland [2004] IEHC 288; CC v Ireland [2005] IESC 48.  6 People (Attorney General) v Kearns [1949] IR 385.  7 People (Attorney General) v O’Connor [1949] Ir Jur Rep 25.

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has been endorsed by the United States Supreme Court. In Michael M v Superior Court of Sonoma County,8 the appellant objected to a provision broadly similar to section 1 of the 1935 Act on the grounds that its failure to provide for the sexual exploitation of young boys was discriminatory. But the Supreme Court found that the risk of pregnancy was an objective justification for treating young girls differently, and upheld the constitutionality of the provision on these grounds. As already indicated, the broader version of the rationale was expressly adopted in this jurisdiction in Attorney General (Shaughnessy) v Ryan.9 The weakness of this approach is that it failed to distinguish between two categories of defendant who deserve to be treated differently on moral grounds: older male predators who fully merit the stigma of conviction and punishment for a serious criminal offence, and young boyfriends of sexually active underage girls who clearly do not. In practice this weakness was ameliorated by the relatively low risk of prosecution in cases where the element of sexual exploitation was missing (in the nature of things, such cases would have been hampered by a lack of witness evidence); and by the imposition of an appropriately light sentence in the event that the defendant was prosecuted and convicted. There was always a real possibility, however, that a successful prosecution could be brought even in a case where the element of exploitation was missing. Given that the actus reus of the offence of statutory rape under the 1935 Act was cut-and-dried – sexual intercourse with an underage female – the defendant was either guilty or not guilty of the offence as charged. Unlike many other criminal offences – such as assault and theft, for example – there was no harm continuum on which the prosecution authorities could rely as a basis for invoking the de minimus rule, in other words as a basis for not prosecuting in a case where the injury or damage caused by the defendant was deemed to be too trifling to merit prosecution in the public interest. In the final section of this chapter a possible solution to this difficulty will be canvassed – to cater for the prospect of the Irish Constitution being amended to permit the reinstatement of strict liability as the cornerstone of a new offence of statutory rape.

 8 (1981) 450 US 464.   9 See n 4 above and accompanying text.

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C. CC v IRELAND (1) Decision and reasoning In CC v Ireland,10 the applicant was convicted of statutory rape under section 1(1) of the 1935 Act. The applicant, who was nineteen, had had sexual relations with a fourteen-year-old girl. The applicant admitted the charges against him, but claimed that the girl had lied about her age – saying she was sixteen – and had initiated the contact between them after their first encounter, when no intercourse had taken place. The gravamen of the applicant’s complaint in the Supreme Court was that the unavailability of a defence of mistake of fact as to the girl’s age was inconsistent with the right to a trial in due course of law as enshrined in article 38 of the Constitution of Ireland (and as guaranteed by article 6 of the ECHR). Counsel for the applicant also contended that the absence of a defence of mistake of fact to a charge under section 1(1) of the 1935 Act amounted to the punishment of the morally innocent and, consequently, constituted a failure to vindicate the applicant’s personal rights as enshrined in article 40.3.1 and 2 and article 40.4 of the Constitution.11 Unanimously allowing the appeal, the Supreme Court granted a declaration that section 1(1) of the 1935 Act was unconstitutional on the grounds set out by the applicant, and quashed his original conviction. Delivering the judgment of the Supreme Court, Hardiman J said that section 1(1) of the 1935 Act was being struck down because it afforded the applicant “absolutely no defence once the actus reus is established, no matter how extreme the circumstances”,12 and because its application in the instant case entailed the stigma of conviction and punishment for a serious criminal offence of a morally innocent person: I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1 of the Constitution.13

10 [2006] IESC 33. 11 Article 40.3.1 guarantees that the State will respect and, as far as possible, defend and vindicate, the personal rights of citizens. Article 40.3.2 protects the life, person, good name and property rights of citizens. Article 40.4 provides that no citizen shall be deprived of his personal liberty save in accordance with law. 12 CC at para 31. 13 At para 49.

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(2) Strict liability and punishing the morally innocent The logic of the reasoning supporting the decision of the Supreme Court in CC is debatable. Contrary to the view repeatedly articulated by the Court in the course of its judgment, the doctrine of strict liability does not involve the punishment of morally innocent defendants. On the contrary, the doctrine of strict liability is based on the invariable requirement that there must be something that the defendant should have done to comply with the law in the circumstances before criminal liability can be imposed.14 Accordingly, where the defendant was not in a position to comply with the law’s requirements, or was otherwise powerless to prevent the commission of the offence, he has a good defence notwithstanding that the charge against him is one of strict liability.15 Similarly, the doctrine of strict liability does not override the fundamental requirement that the accused’s conduct must be voluntary; nor does it exclude the possibility that one of the general defences may be available to him.16 Admittedly, strict liability offences do not require proof of ordinary mens rea in the form of intention or subjective recklessness. Consequently, it is no defence to a charge of strict liability to say that one did not intend the prohibited result, or that one did not consider the risk of bringing it about. The rationale for this state of affairs is simple. Strict liability is normally imposed to protect the public interest in situations where the law would be effectively unenforceable if proof of intention or subjective recklessness were required. Thus strict liability is usually imposed in the context of statutory regimes dealing with what have come to be known as public welfare offences17 – in other words, with the legal protection of public health, hygiene, safety and morals.18 Similarly, it is true that strict liability is routinely imposed in the absence of negligence on the defendant’s part. Consequently, it is no defence to a charge of strict liability that an ordinary person might have acted as the defendant did in the circumstances.19 Again the rationale is straightforward: the public interest would be frustrated if a defendant could wash his hands of an inherently risky venture simply on the basis that he had taken reasonable steps to ensure its safety.20 This does not, however, mean that strict liability can be imposed in the 14 Hobbs v Winchester Corporation [1910] 2 KB 471; Alphacell Ltd v Woodward [1972] AC 824. 15 Reynolds v G H Austin & Sons Ltd [1951] 2 QB 135; Lim Chin Aik v R [1960] AC 161 (PC). 16 F McAuley and J P McCutcheon, Criminal Liability: A Grammar (2000) chs 2.3, 2.4 and 7.1. 17 Morissette v United States (1952) 342 US 242 at 246. 18 Sweet v Parsley [1970] AC 132 at 163. 19 Hobbs v Winchester Corporation [1910] 2 KB 471; Alphacell Ltd v Woodward [1972] AC 824. 20 Alphacell Ltd v Woodward [1972] AC 82.

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absence of fault. As the jurisprudence cited in the preceding paragraphs illustrates, it simply means that the moral or fault element in strict liability offences is more stringent than ordinary mens rea. In a nutshell, this higher or stricter standard of fault may be described as follows: a defendant who embarks on a course of conduct which is inherently dangerous or risky with respect to the occurrence of a prohibited result must take the consequences if things go wrong.21 Thus in Alphacell v Woodward22 the conviction of a riparian company for polluting the local river was upheld notwithstanding that it was accepted that the company was not negligent. Although the company had taken reasonable steps to ensure that effluent from its plant did not enter the river, the fact remained that pollutants had entered the river as a direct result of a manufacturing process for which the company was responsible. (3) Strict liability and serious crime Nor is it true that strict liability is incompatible with conviction and punishment for serious crime – defined as an offence capable of attracting a substantial custodial sentence, or, even more stringently, a term of life imprisonment. In both the common law and civil law traditions strict liability has long been a core component of the law of murder. For example, in Irish law the mental element in murder is defined as an intention to kill or cause serious injury.23 As a result, a person may be found guilty of murder (and, if convicted, sentenced to a mandatory term of life imprisonment) once it is established that he intended to cause serious injury to his victim, notwithstanding that he had no intention to kill and that the injury he inflicted would not normally be regarded as life-threatening.24 Known as the doctrine of implied malice, this has traditionally been the criminal law’s way of saying: “Avoid the risk of seriously wrongful other-directed conduct which may result in death – even where it is not obviously life-threatening. If you engage in such conduct and cause the death of another person, you will be convicted of murder on the grounds that your behaviour is no less culpable than that of the intentional killer.” Strict liability is also a feature of the crime of manslaughter, which in modern legal systems is typically regarded as the second most serious 21 Alphacell Ltd v Woodward [1972] AC 82. 22 [1972] AC 82. 23 Criminal Justice Act 1964 s 4. 24 Law Reform Commission (Ireland), Homicide: Murder and Involuntary Manslaughter (LRC No 87, 2008); People (DPP) v Kirwan [2005] IECCA 136 (discussing the meaning of the term “serious harm” in s 1 of the Non-Fatal Offences Against the Person Act 1997).

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offence in the criminal calendar after murder; and is punishable by up to life imprisonment at the discretion of the court. Thus on a charge of unlawful act manslaughter, it is enough for the prosecution to show that the accused committed an unlawful act which caused the victim’s death; and that the unlawful act was dangerous in the minimal sense that it was likely to cause some harm to the victim, though not necessarily serious harm.25 As a result, a single push or shove which results in death is enough to convict a person of manslaughter in Irish law, notwithstanding that a reasonable person would not have foreseen death or even serious injury in the circumstances. In the common law tradition, reliance on strict liability in the law of homicide has attracted widespread criticism. In the context of the law of murder, it has been suggested that the element of strict or constructive liability could and should be removed by defining “serious injury” as “life-threatening injury”.26 Similarly, it has been suggested that the scope of unlawful act manslaughter should be confined to acts which are unlawful and likely to endanger life, thereby making this form of involuntary manslaughter turn on a finding of negligence with respect to the victim’s death.27 Be that as it may, in most common law jurisdictions including Ireland, it remains the case that a person may be convicted of murder on the basis of an intention to cause serious injury, defined as including injuries not normally regarded as life-threatening; and of manslaughter where even serious injury (not to mention death) was both an unforeseen and unforeseeable consequence of his actions. Thus where the mental element in murder includes an intention to cause serious injury thus defined, it follows that it is no defence for an accused to say that he did not realise, either through ignorance or mistake, that the injury was life-threatening, or that a reasonable person would not have regarded it as life-threatening. By parity of reasoning, on a charge of unlawful act manslaughter it is no defence to say that the blow which caused the victim’s death would not normally be regarded as likely to result in serious injury or death, or that the defendant, either through ignorance or mistake, failed to appreciate that his actions were likely to cause injury of any kind. In short, lack of mens rea – even in the attenuated sense of negligence – as to a crucial element of actus reus is no defence in either case. Nor has commentary on the employment of strict liability in homicide been all one way. On the contrary, since the division of homicide into murder 25 R v Church [1966] 1 QB 59. 26 For discussion, see Law Reform Commission (Ireland), Homicide (n 24) paras 3.50-3.61, although in the event the Commission recommended that “serious injury” remain undefined. 27 For discussion, see Law Reform Commission (Ireland), Consultation Paper on Involuntary Manslaughter (LRC CP 44-2007, 2007) ch 2.

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and manslaughter in the sixteenth century, the use of constructive malice in the law of homicide, and in some offences against the person, has been resolutely defended on policy grounds. Broadly speaking, the argument has been that strict or constructive liability in the form of “short-measure mens rea” is the most effective means of affording adequate protection to the key inter­­ests of life and bodily integrity within the framework of the criminal law.28 (4) Strict liability and statutory rape Interestingly, the Supreme Court does not appear to have been invited to consider, and did not itself consider, the operation of the doctrine of strict liability in the context of the offences of murder and manslaughter. Had this matter been given a proper airing, it is open to question whether the court may have been more circumspect in its assessment of the propriety of strict liability in the context of statutory rape. To be fair to the court, its silence on the issue of strict liability in homicide may have been because it was assumed by both counsel and the court that implied malice and unlawful act manslaughter are instances of constructive, as opposed to strict, liability. In other words, it may have been assumed that strict liability offences are sui generis because, unlike those of constructive liability, they lack any element of culpable wrongdoing from which liability for the prohibited outcome may be derived. Hardiman J’s treatment of counsel for the State’s analogy between the offences of dangerous driving causing death and statutory rape supports this interpretation. When counsel appeared to suggest that a person could be convicted of dangerous driving causing death without any prior culpable wrongdoing on his part, Hardiman J correctly rejected this proposition on the ground that it had no basis in the authorities. But the learned judge then went on to say that this was precisely the problem with statutory rape:29 What, precisely, is the difference between the present measure and the dangerous driving hypothesis? At bottom it is this: one person’s rights would be negated because he took the risk of driving, while another person’s rights are negated because he took the risk of having sexual intercourse. I do not believe that a legally significant distinction can be drawn on that basis since the act of consensual intercourse is, like the act of driving … prima facie lawful.

But this conclusion only follows ex hypothesi. If we choose to define the defendant’s behaviour in a CC-type case as “having consensual sexual ­intercourse”, 28 McAuley and McCutcheon, Criminal Liability (n 16) chs 1.6, 6.9, 6.10. 29 CC v Ireland [2006] IESC 33 at para 64.

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then there is certainly no basis for saying that his actions were prima facie unlawful, and Hardiman J’s conclusion that criminal punishment in these circumstances would be arbitrary and unjust seems quite natural. In other words, conviction in these circumstances seems egregiously wrong because we cannot point to a piece of prior culpable wrongdoing which caused the prohibited outcome and which, by analogy with a single punch in involuntary manslaughter, can be used as a basis for the ascription of strict liability in respect of the prohibited outcome. But if we follow the logic of the legislative prohibition contained in section 1(1) of the 1935 Act, things look different. Since section 1(1) makes it an offence to have sexual intercourse with a girl under fifteen, and bearing in mind that the victim saw fit to lie to the defendant about her real age, it seems more realistic to describe the defendant’s behaviour as “having sex with a girl who might be underage”. On this analysis, the defendant can fairly be said to have engaged in an inherently risky activity which might turn out to be unlawful. He embarked on a course of conduct which was inherently dangerous or risky with respect to the occurrence of the prohibited result. The risks in question were succinctly identified by McLachlan J in her dissenting judgment in the Canadian Supreme Court case of Hess and Nguyen v The Queen: “the girl may lie as to her age or even produce false identification, a not uncommon practice in the world of juvenile prostitution”.30 Admittedly, this approach seems harsh where the defendant believes, on reasonable grounds, that his victim was not underage. But it does not involve the punishment of the morally innocent. Viewed objectively, having sex with a young girl who might turn out to be underage is blameworthy conduct, and in that sense is the functional equivalent of a blow or a push in unlawful act manslaughter, or a serious blow in implied malice murder. In other words, it supplies the element of prior fault from which liability for the prohibited outcome can be constructed. This point can perhaps be made with greater force if we focus on the popular paradigm of statutory rape: the older male predator who seeks to rely on the defence of mistake as a way of escaping liability. In a case of this kind, it seems inconceivable that we would consider defining the defendant’s behaviour in morally neutral terms, as “having consensual sexual intercourse”. Indeed, to do so would be to collude with the self-justifying rhetoric frequently resorted to by defendants of this kind. Plainly this was not the intention of the Supreme Court in CC. It is at least arguable, however, that the reasoning in CC was over-determined by 30 [1990] 2 SCR 906 at 950.

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the assumption that the defendant’s behaviour was morally neutral – in other words, by focusing on the fact that the sexual encounter between the defendant and the victim was consensual and appears to have been initiated by the victim, rather than on the risk involved in having sex with a very young girl. (5) The constitution and the criminal law Nothing in the foregoing remarks should be taken as a criticism of the Supreme Court’s exercise of its constitutional jurisdiction in respect of the criminal law. The argument is rather that if that jurisdiction is to be exercised effectively it should be based on a suitably nuanced analysis of the fundamental doctrines of the criminal law. Considered as a body of legal doctrine, the criminal law is over 800 years old. Its fundamental doctrines, principles and policies have all been tested in the crucible of long experience. One of the fundamental doctrines of the criminal law is that the prosecution must normally prove mens rea in the form of intention or subjective recklessness. Mens rea thus defined is not, however, an invariable requirement even in respect of serious crime. As already indicated, even in the case of the two most serious crimes in the criminal calendar, murder and manslaughter, significantly lower levels of culpability will sometimes be enough to secure a conviction. It is therefore a mistake to approach mens rea as a top-down criterion to be applied without exception to offences generally. It has never operated in this way. On the contrary, as the history of criminal liability in the common law tradition illustrates, the doctrine of mens rea evolved as a bottom-up idea which always accommodated the peculiar requirements of particular offences.31 From the time of the Tudors onwards, mens rea has functioned as an inductive, flexible concept that, while serving as convenient shorthand for the essential features of criminal responsibility, was always applied without prejudice to the exigencies of particular patterns of wrongdoing such as murder, manslaughter and statutory rape. Unfortunately, nothing of this is reflected in CC, where, following the pattern of the applicant’s submissions, the burden of the Court’s reasoning was that failure to provide for a defence of mistake of fact to a serious criminal charge was anomalous and unjust and should be discountenanced as an unacceptable deviation from the normal pattern of mens rea. To some extent this state of affairs is an inevitable by-product of constitutional scrutiny of the criminal law. Compared to the criminal law, c­ onstitutional jurisprudence is a relatively new body of knowledge. Moreover, given its 31 McAuley and McCutcheon, Criminal Liability (n 16) ch 1.

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intellectual roots in the Enlightenment and its dominant focus on fundamental rights, constitutional reasoning tends to deal in universals where the criminal law is more interested in particulars, albeit as seen through the lens of general principle. Be that as it may, given the power vested in the Supreme Court of Ireland to strike down criminal legislation found to be incompatible with the provisions of the Constitution, it seems entirely right that its decisions should be informed by a proper understanding of the deep structure of the principles and policies of the criminal law. Accordingly, it may be considered to be a defect in the current arrangements for the judicial review of the constitutionality of legislation that, even where fundamental issues of principle are at stake, cases receive relatively little attention before the Supreme Court has finally determined them, either from the legal profession and legal scholars, from other relevant sources of expertise, or from public opinion more ­generally. The reactions which a decision provokes from those quarters may well give the court pause for thought at a point when – at least in the case of a finding of unconstitutionality – it is too late to undo what has been decided. Submissions made by any amicus curiae granted leave by the court are one possible remedy for this lack of feedback on the strength of the arguments for and against a finding of unconstitutionality. However, as matters stand, the effect of such submissions is merely to amplify the argument before the court from a particular perspective; there is no opportunity for impartial analysis designed to alert a wider body of expertise and opinion to the issue or issues at stake in the impending judgment. A more radical solution would be to emulate the practice of the French Conseil d’État and the European Court of Justice by which a rapporteur (a judicial officer – in the former case the Commissaire du gouvernement, in the latter the Advocate General) publicly presents a reasoned recommendation to the court as to how the case should be decided. In effect a draft judgment, this opinion is, of course, in no way binding on the court. However, a formal proposal for an opinion and recommendation of this kind, delivered in open court, would be far more effective than existing arrangements – the arguments of counsel and hints given by questions from the bench during oral argument – as a means of putting on notice those whose contributions to an informed public debate on the issues might be of assistance to the court. Under this system the Supreme Court could of course give leave to reopen the argument after the report had been received from the “Advocate General”. However, even in the absence of such further argument, at least

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in some cases public and/or expert discussion of the proposed decision may be of assistance to the court in reaching a final decision. Interestingly, in many recent Indian cases the amicus curiae – in that system senior counsel in private practice, appointed by the Supreme Court impartially to assist it in relation to the case, and therefore in reality more like an Advocate General – has played just such a role: by publicly recommending in open court what appears to him or her to be the appropriate orders. Again, a system designed along these lines would give clearer notice both to the general public and appropriate centres of expertise of the possible outcome of an important case than current arrangements do. D. THE LEGISLATIVE RESPONSE TO CC (1) The key provisions of the Criminal Law (Sexual Offences) Act 2006 The core of the legislative response to the Supreme Court’s decision in CC was to enact the Criminal Law (Sexual Offences) Act 2006. Broadly speaking, the 2006 Act does two things: it replaces the old offences of statutory rape under the 1935 Act with two new offences of defilement of a child under fifteen32 and defilement of a child under seventeen,33 respectively; and it introduces a defence of mistake of fact as to the victim’s age in respect of both offences.34 The new offences of defilement criminalise a wider range of sexual conduct than the old offences of statutory rape. The latter were confined to sexual intercourse stricto sensu, and could only be committed by males against female victims.35 In contrast, the new offences are gender-neutral in respect of both offenders and victims. Moreover, they comprehend acts of anal intercourse and the penetration of the mouth and anus by the penis and by other objects, as well as various forms of aggravated sexual assault.36 In the nature of things, the 2006 Act provides for a defence of mistake of fact as to the victim’s age in respect of both offences of defilement. The defendant is entitled to a defence of mistake on these grounds if he establishes on the balance of probabilities that he honestly believed his victim had attained the relevant age at the time of the alleged offence.37 The question of whether 32 Criminal Law (Sexual Offences) Act 2006 s 2. 33 S 3. 34 Ss 2(3) and 3(5) respectively. 35 See n 3 above and accompanying text. 36 Criminal Law (Sexual Offences) Act 2006 ss 1(a) and (b). 37 Ss 2(3) and 3(5) respectively.

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the defendant honestly believed his victim had attained the relevant age is to be judged subjectively, although the Act specifically provides that “the court shall have regard to the presence or absence of reasonable grounds”38 for the alleged belief when deciding this issue. (2) An assessment of the 2006 Act Three key criticisms may be made of the regime of protection established by the 2006 Act. The first is that the new offences appear to be over-inclusive in respect of the range of conduct criminalised. As already indicated, the actus reus of both offences includes a wide range of sexual activity above and beyond sexual intercourse. Although this strategy was doubtless adopted in pursuit of the laudable aim of maximising the protection of young children from sexual exploitation by predatory adults, it may result in the unnecessary criminalisation of other children. For example, sexual activity between children has long been widespread, and is known to involve boys and girls as young as twelve. Moreover, it is known to include various forms of heavy petting and oral sex.39 Where activity of this kind can fairly be described as regrettable but nevertheless “consensual” sexual experimentation between children, it seems entirely inappropriate that it could result in prosecution and conviction for a serious criminal offence. Nor is it right that we should have to rely on prosecutorial discretion as the only effective means of avoiding such an outcome. Where a particular activity does not fit the pattern of wrongdoing contemplated by the legislature, it should not have been criminalised in the first place. Second, the inclusion of various forms of non-standard rape – including anal rape and rape by implements – and aggravated sexual assault in what is now in effect an omnibus offence of sexual defilement arguably compromises one of the core functions of the criminal law: namely, the proper discrimination and labelling of criminal conduct according to its essential character.40 The non-standard rape and sexual assault of young children are undoubtedly serious offences and deserve to be treated as such. However, they should not be lumped together with offences whose primary focus is and should remain on inappropriate sexual relations with young children, and especially – because of their particular vulnerability – young girls. In other words, the division and classification of sexual offences should not be 38 ss 2(4) and 3(6) respectively. 39 J R Spencer, “Child and family offences” [2004] Crim LR 347 at 354 and 360. 40 For discussion, see Expert Group on the Codification of the Criminal Law, Codifying the Criminal Law (2004) para 1.103 et seq.

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allowed to obscure the core issue in statutory rape: the sexual exploitation of young children by mature adults in circumstances where consent may have been given in the context of prostitution, or obtained in the context of abuse of trust by a predatory adult, where there may be an economic incentive for children to exaggerate their real age, and where, in the case of young girls, society has a legitimate interest in reducing the individual and social costs of teenage pregnancy. The argument is not that these offences are more or less serious than the other forms of rape and aggravated sexual assault comprehended by the new offences of defilement of children established by sections 2 and 3 of the 2006 Act. It is rather that the principle of proper labelling requires that offences which are sui generis deserve to be classified and punished as discrete entities in their own right. Deviation from this principle blunts the communicative function of the criminal law by blurring, and in some instances collapsing, the moral distinctions which, even for purely pragmatic reasons, should be clearly reflected in the criminal calendar. In other words, in view of their communicative and deterrent functions, the law’s commandments or conduct rules should be clear and distinct, and omnibus offences are not, by definition, conducive to this outcome. Third, although the legislature was constrained to provide for a defence of mistake of fact as to the victim’s age on a charge of defilement, it is to be regretted that it saw fit to tether the new defence to the doctrine that mistakes need only be honest in order to excuse. In CC the Supreme Court left open the question of how the defence of mistake should be configured in the context of a new offence of statutory rape; and it seems unlikely that the legislature could have been unaware of the fact that a requirement of reasonable belief would have afforded a higher level of protection to victims than the subjective criterion described above. The decision to opt for the subjective approach was doubtless made in the interests of consistency. The subjective criterion, as mediated by the need to have regard to the presence or absence of reasonable grounds, first made its appearance in section 2(2) of the Criminal Law (Rape) Act 1981, which effectively codified the controversial rule in DPP v Morgan,41 and was subsequently adopted by the legislature as the test for mistaken belief in the context of the use of defensive force in section 1(2) of the Non-Fatal Offences Against the Person Act 1997. Be that as it may, the subjective test as laid down by the House of Lords in Morgan has now been abandoned in English law. By virtue of sections 41 [1976] AC 182.

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1-4 of the Sexual Offences Act 2003, a defendant’s belief that his victim was consenting to sexual intercourse, including non-standard intercourse of the kind described above, must now be based on reasonable grounds in order to excuse. As Ashworth has argued:42 [e]ven if Morgan is defensible as a case on general principles, it is unacceptable as a rape decision. There are certain situations in which the risk of doing a serious wrong is so obvious that it would be right for the law to impose a duty to take care to ascertain the facts before proceeding.

Although it took a generation to undo its effects, it is now accepted that the rule in Morgan was derived from an unduly prescriptive conception of mens rea. Like the reasoning in CC, the Morgan ratio proceeded on the assumption that the doctrine of mens rea leads, as a matter of inexorable logic, to a one-size-fits-all approach to the basic structure of serious criminal offences; whereas, as the preceding sections of this chapter illustrate, the doctrine has traditionally allowed for the exigencies of particular patterns of wrongdoing when fixing the proper limits of criminal responsibility. E. CONCLUSIONS AND RECOMMENDATIONS In conclusion, this chapter makes a number of recommendations. First, it is submitted that the criticisms of the Criminal Law (Sexual Offences) Act 2006 raised in the preceding section should be addressed in the context of a comprehensive review of the law relating to sexual offences, initially by the Law Reform Commission as part of its third programme of law reform43 and subsequently by the Department of Justice, Equality and Law Reform. Second, in the course of that review consideration should be given to returning to the original conception of statutory rape based on sexual intercourse between adults and children. Third, save where the defendant is more than two years older than, or is a person in authority over, the victim, sexual experimentation between children should be excluded from the ambit of any offence of statutory rape thus configured. Fourth, by parity of reasoning, save where the defendant is more than two years older than, or is a person in authority over, the victim, sexual experimentation between children not involving the infliction of injury should otherwise be decriminalised. Fifth, a constitutional referendum should be held to remove the impediment created by the Supreme Court’s decision in CC in respect of the use of strict 42 Ashworth, Principles of Criminal Law 341. 43 On the projects currently included in the third programme of law reform, see Law Reform Commission, Third Programme of Law Reform 2008-2014 (LRC 86-2007, 2007).

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liability in the context of statutory rape. Sixth, in the event that the constitutional impediment created by the Supreme Court’s decision in CC has been removed, any new offence of statutory rape should be based on the principle of strict liability as to the victim’s age (and, it goes without saying, consent). Finally, in the event that the aforementioned constitutional impediment has not been removed, the defence of mistake of fact as to the victim’s age in an offence of statutory rape should include the requirement that it is for the defendant to prove on the balance of probabilities that his belief as to age was honestly held and reasonably based.

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12  Don’t Look Back in Anger: The Partial Defence of ­Provocation in Scots Criminal Law Claire McDiarmid A. the current law in its theoretical context and certain problems arising (1) Justification and excuse (2) The current law (3) Compartmentalising provocation and the problematic restraining ­conditions (4) Provocation as (partial) justification or excuse B. provocation, self-defence and the inadequacy of violence and sexual infidelity C. the current lack of a role for the victim D. the case for abolition E. the way forward for reducing murder to culpable homicide F. conclusion Provocation privileges homicidal fury. It allows certain persons who kill in that state to be convicted of culpable homicide rather than murder. It does not do this overtly and it does not, in theory, exclude those who kill under the influence of other extreme emotions but, as will be discussed subsequently, the conditions of the defence still lend themselves to a response of excessive anger to the initial provoking act. It has not been particularly problematic operationally in Scots law1 but this is because its scope is extremely limited rather than because it works well in identifying circumstances in which the accused truly deserves to be partially excused. This chapter argues that, to   * The author is grateful to Antony Duff, Pamela Ferguson, Jane Scoular and Simon Halliday for reading and commenting on earlier drafts. All errors remain her own.   1 Chalmers and Leverick, Criminal Defences para 10.01.

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be fit for purpose in a twenty-first-century society, provocation cannot escape reform. It considers the influence of its historical development, from its roots as a form of excessive self-defence, and the lack of clarity in the law to which this led in the early part of the twentieth century. It argues that it is no longer appropriate to limit the entry points into the defence – the provoking acts – to the historically contingent behaviours of violence and the discovery of sexual infidelity. To constitute a true defence of “provocation”, which provides mitigation based on the fact, or presumption, that the accused was provoked to lose self-control, it must, at the very least, expand its base of provocative behaviours. This takes forward one of Gerald Gordon’s many incisive observations in Criminal Law. He states: “If ... contemporary attitudes in Scotland recognise that provocation should not be restricted to cases of serious assault, the law should accept this and modify or develop its concept of provocation accordingly.”2 The aim of the law in this area should be to ensure that its formal mechanisms for the return of a culpable homicide verdict where murder is charged are fair and reflect contemporary attitudes and mores. The chapter therefore considers other means of achieving this. Alongside this, it examines the more radical option that the law should regard anger in all its forms, and however it is triggered, as neutral – neither blame-inducing nor mitigatory. Such a move would, effectively, sound the death knell of the current form of the provocation defence, which is fuelled by poorly controlled anger. A. THE CURRENT LAW IN ITS THEORETICAL CONTEXT AND CERTAIN PROBLEMS ARISING (1) Justification and excuse Much ink has been spilt over the question of whether provocation, as a general concept, is a partial justification or a partial excuse.3 The analysis is helpful in this context because it situates the part played by, and the value placed on, the accused’s anger. Justification means that the behaviour was acceptable – indeed not wrong or at least tolerable4 – because the accused acted for

 2 Gordon, Criminal Law para 25.23.   3 See e.g. F McAuley, “Anticipating the past: the defence of provocation in Irish law” (1987) 50 MLR 133; J Dressler, “Provocation: partial justification or partial excuse?” (1988) 51 MLR 467.   4 See P H Robinson, “Criminal law defenses: a systematic analysis” (1982) 82 Columbia LR 199 at 229.

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good, compelling reasons.5 It is sometimes cast in terms of f­ orfeiture – that, as a result of their own wrongful act, the victim “forfeits” their right not to be criminally wronged.6 Self-defence is (usually) the paradigm example of justification where the accused, having been met with genuinely life-­threatening force, is left with no option but to respond in kind. If the behaviour is properly justified, others would be similarly vindicated if they joined in the attack.7 Excuse denotes that the behaviour itself is still wrongful and reprehensible but something about the accused – the circumstances in which they acted and/or the reasons which impelled them – means that they personally should not be blamed for their criminal act. Thus, coercion and necessity are often categorised as excuses, at least where the harm perpetrated by the accused was broadly equivalent to that with which she or he was threatened.8 The accused did not have to act criminally – she or he made a choice to do so – but the circumstances (say, the coercer held a gun to their head) were such that they personally should be excused. (2) The current law To fit the law on provocation into this framework, it is first of all necessary to be clear as to its requirements. For a defence which is extremely limited in scope such that it can only be used in two circumstances, the legal position is complex. It was not simplified in any way by the statement of the Lord Justice General (Rodger) in Drury v HM Advocate9 that it was wrong to conceive of provocation as “reducing” murder to culpable homicide. Instead, he stated that it should be taken simply as part of the mechanism for demonstrating that the accused did not have the mens rea for murder in the first place and, therefore, could only be convicted of culpable homicide.10 James Chalmers and Fiona Leverick have taken the view that “[this] point is terminological rather than substantive”.11 This chapter is concerned with the principles of provocation rather than the mens rea for homicide offences. It therefore takes it as a given that a successful defence of provocation results in the return of a culpable homicide verdict on a murder charge.

  5 See e.g. V Tadros, “The structure of defences in Scots criminal law” (2003) 7 EdinLR 60 at 60.   6 See e.g. F Leverick, “Defending self-defence” (2007) 27 OJLS 563 at 571-573.   7 See e.g. K Greenawalt, “The perplexing borders of justification and excuse” (1984) 84 Columbia LR 1897 at 1900.   8 See Chalmers and Leverick, Criminal Defences para 5.04.   9 2001 SLT 1013. 10 At para 17. 11 Chalmers and Leverick, Criminal Defences para 10.05.

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The chapter examines provocation only as a partial defence to murder.12 Scots law requires a loss (though not a complete loss)13 of self-control.14 This must be brought about, immediately,15 by one of the two accepted provoking acts: either an initial act of violence towards the accused by the ultimate deceased16 or the discovery of sexual infidelity.17 Informing the accused verbally of sexual infidelity is the only circumstance in which words can constitute provocation.18 Where the initial provocation is violence, the accused’s response to this – that is, the level of violence she or he employs – must be “reasonably proportionate”.19 Where it is sexual infidelity, she or he must have over-reacted as would the ordinary man or woman.20 Reasonable proportionality and the ordinary person test are quite separate responses to each of the two accepted provoking acts. As Lord Osborne puts it, “[t]he result is ... the simultaneous existence of two different tests, applicable to the different situations described”.21 The “ordinary person” has no place where the provoking act is violence;22 it is regarded as impossible to find reasonable proportionality between the discovery of infidelity and violence in any form.23 The two tests, while very different in their scope, do have in common their attempt to delineate an appropriate response to their respective provoking acts. (3) Compartmentalising provocation and the problematic restraining conditions Provocation, then, can be compartmentalised. It requires an entry condition – one of the two provoking acts – which must cause an immediate loss of self-control, and it then imposes what could be termed a restraining condition in its insistence that the accused’s response – her or his attack upon the deceased – should fall within parameters of appropriateness. The ­“reasonable 12 Provocation can also be pled in relation to assault, though only in mitigation at sentencing. See e.g. Yip v HM Advocate 2000 GWD 8–280. 13 See Drury v HM Advocate 2001 SLT 1013 at paras 22-24 per the Lord Justice General (Rodger). 14 Low and Reilly v HM Advocate 1994 SLT 277. 15 Thomson v HM Advocate 1986 SLT 281. 16 This is found in Macdonald’s now classic definition of provocation which will be discussed below: Macdonald, Criminal Law 94. 17 HM Advocate v Hill 1941 JC 59. 18 See e.g. Drury at para 9 per Lord Cameron. 19 The leading case in this area is now Gillon v HM Advocate 2007 JC 24. 20 The law in this area was considered by a five-judge bench of the appeal court in Drury (n 9) especially at para 32 per the Lord Justice General (Rodger). 21 Gillon at para 21. 22 At paras 37 and 39 per Lord Osborne. 23 Drury at para 28 per the Lord Justice General (Rodger).

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proportionality” restraint on violence-type provocation is not dissimilar to self-defence’s requirement of “no cruel excess”, though the two have been rigidly distinguished.24 In its application, “reasonable proportionality” requires juries to compare directly the violence offered by the victim to the violence returned by the accused but effectively to ignore the fact that the accused’s violence brought about the victim’s death. While the High Court has recently upheld this as an appropriate comparison for a jury to be asked to make,25 it is certainly arguable that it requires an unnatural separation of cause (violence) and effect (death), when the events are part of an unbroken chain. The other restraining condition – that the accused’s reaction to the discovery of sexual infidelity should be that of an “ordinary person” – is a relatively recent (2001) transplant from English law26 which had used a “reasonable man” concept since the enactment of section 3 of the Homicide Act 1957.27 Because it restrains only sexual infidelity-based provocation, it is of much less significance in Scots law than it was in England and Wales, where it served this function in all cases where it was established that the defendant had, by any means, been provoked. Nonetheless, it still requires some examination. There is no doubt that the reasonable man/ordinary person concept is problematic. Indeed, it was said of the English defence of provocation, that it “[was] bound to encourage and exaggerate a view of human behaviour which [was] sexist, homophobic, and racist”.28 Scots law adopted the “ordinary man or woman” specifically because “reasonable” people do not commit homicide, even in response to extreme provocation,29 but the change in terminology does not obviate the conceptual difficulty that most people do not kill ever. Its operation is also cumbersome and complex. In England, great difficulty arose in determining which personal characteristics of the defendant were, or should have been, relevant in deciding whether they reacted to the provocation in the way of a reasonable “man”.30 On the one hand, it seems slightly 24 Low and Reilly v HM Advocate 1994 SLT 277 at 286 per the Lord Justice Clerk (Ross). 25 Gillon at para 22 per Lord Osborne. 26 Drury at para 24 per the Lord Justice General (Rodger). 27 The “reasonable man” test will be abolished in English law when s 54 of the Coroners and Justice Act 2009 comes into force. The legislation replaces the defence of provocation with a new defence of “loss of control” which will be available where “a person of D’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or in a similar way to D” (s 54(1)(c)). 28 C Wells, “Provocation: the case for abolition”, in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 85 at 85. 29 Drury at para 24 per the Lord Justice General (Rodger). 30 The cases of R v Smith (Morgan) [2001] 1 AC 146 and Attorney-General for Jersey v Holley [2005] 2 AC 580 reached opposite conclusions on whether the “reasonable man” test (set down in s 3 of the Homicide Act 1957) should be subjective (so that more or less all of the defendant’s

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absurd to insist, for example, that an impotent man, taunted for this failing, should be judged by the standard of a man not so afflicted but insulted in the same way.31 If the standard is wholly objective, like this, it may well simply be unattainable – and unfairly unattainable – for many accused.32 On the other, it is all but impossible to determine which characteristics of an individual accused ought, in fairness, to be relevant.33 There is a danger that actual characteristics of real accused which impelled them to act may be ignored, because the law fails to select these – for example, impotence, in the circumstances outlined above. Despite this, adding any characteristic risks essentialising, and thereby distorting, it. Accused who are members of a group to whom a particular relevant characteristic is attributed may seek to rely on that, even though, in reality, it did not affect their actings. Even gender,34 which was accepted as relevant in England,35 is not easily applied. If it is taken as an example, in general, women are less violent than men.36 An “ordinary woman” standard might, therefore, make it less likely that a woman could successfully use the provocation defence at all. On the other hand, women often use weapons in killing (men) because this compensates to some extent for their smaller size.37 An “ordinary” woman who kills with a weapon in response to sexual infidelity might, therefore, be able to use the defence where, otherwise, her actions are more likely to have been dismissed as extraordinary. In Scots law, the “ordinary man or woman” has not been imbued with any personal characteristics,38 though whether this “nakedness” renders it less or more serviceable is unclear. Orit Kamir has commented that, in Israel, where a bare “reasonable person” standard was developed by the Supreme characteristics were relevant) or objective (when only gender and age would automatically have been taken into account). The matter was finally settled (in favour of an objective test) in R v James [2006] EWCA Crim 14, [2006] QB 588. 31 These were the facts in Bedder v DPP [1954] 1 WLR 1119. 32 P H Robinson and M T Cahill, Law without Justice: Why Criminal Law Doesn’t Give People What They Deserve (2006) 49. 33 Helen Power’s article “Provocation and culture” [2006] Crim LR 871 demonstrates the difficulties that arise in trying to decide which characteristics are so intrinsic to an individual that his or her “reasonable” counterpart cannot fairly be judged without them. 34 In Drury, the Lord Justice General (Rodger) referred to the “ordinary man or woman” (at para 32), thereby suggesting that gender would be relevant in Scotland, but Lord Cameron’s judgment uses the term “ordinary person” (at para 6). Whether or not the Scottish “person” should be imbued with gender therefore remains a moot point. 35 DPP v Camplin [1978] 2 WLR 679 at 718 per Lord Diplock. It continues to be relevant to the new defence of “loss of control” in the Coroners and Criminal Justice Act 2009: see s 54(1)(c). 36 See N Naffine, Feminism and Criminology (1997) 6-7. 37 S S M Edwards, “Abolishing provocation and reframing self defence: the Law Commission’s options for reform” [2004] Crim LR 181 at 189-191. 38 Drury at para 29 per the Lord Justice General (Rodger). The matter has only been addressed in Scots law in relation to the defence of coercion. See Cochrane v HM Advocate 2001 SCCR 655.

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Court, no finding was ever made that such a person had killed in hot blood, in terms of the provocation defence. While the Court might find another reason to reduce murder to manslaughter in particular cases, its own “reasonable person” standard was never met. The fact that real Israelis clearly did kill in such circumstances was irrelevant.39 There seems no point in having an unattainable standard. Kamir’s view is that the reasonable person could be read as “a heterosexual Jewish man of average intelligence”.40 On the other hand, Kamir cites an Israeli case involving a homosexual, Palestinian police informer. Would it ever be possible to provide a generalised test, in Israel, which met fairly the characteristics of both this individual and, simultaneously, the Supreme Court’s reasonable person? Overall, the reasonable/ordinary person standard, while deceptively easily stated, is so complex in its application that it is difficult to ensure that it is applied fairly. The law is not really seeking to delineate how an individual should respond to the discovery of sexual infidelity because, in the abstract, its answer would surely be “not by killing”. It might be better to ask a much more straightforward question such as whether the accused’s action could be regarded as appropriate or reasonable given the provocation to which she or he was initially subjected. (4) Provocation as (partial) justification or excuse Provocation, then, has a number of component elements of which the restraining conditions are only one. Chalmers and Leverick argue that it “contain[s] elements of both justification and excuse”.41 Its legal principles fit this theoretical framework as follows: the accused is partly justified in becoming angry in the first place, because of the victim’s act. This anger, which she or he cannot help, seriously impairs her or his ability to resist the (angry) impulse to lash out. Because the impairment (which is the “loss of self-control” element) arises for a good reason, she or he is then partly excused from responsibility for the killing. The law’s message is that the accused should not have killed but that there was a level at which the justified anger they were experiencing made it much more difficult for them to control the violent impulse. It acknowledges that there was an acceptable reason for this – the provoking act – and that in all the circumstances they could not be expected to exercise more self-control. 39 O Kamir, “Responsibility determination as a smokescreen: provocation and the reasonable person in the Israeli Supreme Court” (2004-2005) 2 Ohio State Journal of Criminal Law 547 at 551-552. 40 Ibid at 553 n 12. 41 Chalmers and Leverick, Criminal Defences para 10.04.

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In fact, the actual law on the meaning of the “loss of self-control” requirement is less clear than this. In Drury, Lord Rodger quite properly rejected an attempt by the defence to argue that, once an accused had been provoked to lose self-control, she or he had lost all self-control and therefore could not be expected to respond to the provocation within the requirements of the restraining condition.42 A complete loss of self-control would mean that a different defence (such as (temporary) insanity) was indicated.43 Accordingly, provoked accused find themselves somewhere on a continuum between “icy detachment and going berserk”,44 though this formulation may not make it easy for a jury to calibrate the level of loss or retention of control which the law envisages. Looking at the matter in terms of an impairment of the ability to restrain an impulse to attack draws on the way in which anger generally affects individuals.45 But, in principle, there is nothing to prevent an accused who acted in fear from utilising provocation – the law is not prescriptive about emotion and the “classic” definition of provocation in Scots law, taken from Macdonald, is broadly stated:46 The defence of provocation is of this sort – “Being agitated and excited and alarmed by violence, I lost control over myself, and took life when my presence of mind had left me, and without thought of what I was doing.”

If the accused was in a state of agitation, excitement and alarm because she or he was frightened by the accused’s violence, she or he ought, therefore, to be able to make use of the defence.47 Nonetheless, fear seems very much the province of self-defence, and fear is more likely to lead the accused to flee or to freeze than to lose self-control homicidally.48 It is as true in Scotland as it is in New Zealand that “anger is the context in which [provocation] is commonly understood to operate, and is most frequently used”.49 It is important not to lose sight of the fact that this anger is so fierce that it has impelled the accused to kill. As noted above, it is a prerequisite of provocation that the accused had a good reason for becoming angry. Scots law states that the only such good 42 Drury at para 23 per the Lord Justice General (Rodger). 43 At para 23 per the Lord Justice General (Rodger). 44 At paras 23-24 per the Lord Justice General (Rodger), quoting Lord Diplock in Phillips v The Queen [1969] 2 AC 130 at 137. 45 See E A Posner, “Law and the emotions” (2000-2001) 89 Georgetown LJ 1977 especially at 1993. The author is also grateful to Antony Duff for discussion of this point. 46 Macdonald, Criminal Law 93 47 Chalmers and Leverick, Criminal Defences (para 10.04 n 20) cite a case where provocation arose through fear, though not from Scotland: van den Hoek (1986) 161 CLR 158. 48 See Posner (n 45) at 1993. 49 New Zealand Law Commission, The Partial Defence of Provocation (NZLC R98, 2007) 11.

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reasons are violence and sexual infidelity. It is necessary, therefore, to investigate whether these two forms of behaviour actually merit their pre-eminence. This can only be done by considering, critically, provocation’s historical ­development. B. PROVOCATION, SELF-DEFENCE AND THE INADEQUACY OF VIOLENCE AND SEXUAL INFIDELITY Provocation’s existence, and the elevated status it accords to violence and sexual infidelity, arise primarily because the modern law replicates its historical foundations. These forms of conduct have been recognised since Hume’s time as bases for the defence of provocation. His account indicates the extent to which he saw provocation as overlapping with self-defence such that both defences raised similar passions in the accused. For him, provocation required “some adequate and serious cause, some severe and continued assault, such as is attended with trepidation and a dread of further harm, as well as with present smart and pain of body”.50 Minor assaults were – and remain – insufficient. Provocation was self-defence which had gone too far. With regard to sexual infidelity, which was, and has always subsequently been treated as, an exceptional form of provocative conduct,51 Hume accepted that James Christie had been entitled to plead provocation in 1731 when he caught another man in the act of adultery with his wife and instantly killed him. Nonetheless, Hume regarded this as a less good basis for provocation than an assault.52 At this level, then, the law has not evolved. Violence and sexual infidelity alone constitute the recognised provoking acts in the modern law because these were the ones recognised in earlier times. This is not, in itself, a good enough reason especially in an area underlain by (shifting) policy considerations53 to the extent of provocation. Indeed, it is likely that, in Hume’s time, the underlying principle was that of honour. “Honour Codes” allowed “gentlemen” to respond with physical violence to certain apparent insults but also sometimes required them to do so, to maintain their status.54 In the 50 Hume, Commentaries i, 248. 51 Drury at para 25 per the Lord Justice General (Rodger). 52 Hume, Commentaries i, 245-246. 53 See e.g. Gillon v HM Advocate 2007 JC 24 at para 21 per Lord Osborne. See also Lieser v HM Advocate 2008 SLT 866 at para 10 per Lord Kingarth. 54 See J Horder, Provocation and Responsibility (1992). In relation to Scots law, see also J Casey, “Gillon v HM Advocate: provocation, proportionality and the ordinary person” 2006 SLT (News) 193 at 197-200.

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twenty-first century, the recognition of “honour” as a justification, excuse or even simply a reason for killing is deeply questionable.55 Nonetheless, Hume’s influence remained strong, certainly in the early part of the twentieth century when “the idea that provocation [was] a form of unjustifiable self-defence continued”.56 It is fair to say that, at that time, the law was not always particularly clear as to why it was allowing the accused to be convicted of culpable homicide – whether because of excessive selfdefence or because of provocation or simply because the justice of the situation seemed to merit this and the facts fell somewhere between these two situations. In HM Advocate v Kizileviczius,57 the accused was convicted of culpable homicide on a charge of murdering his father. The evidence was that he had acted in response to an assault earlier in the day on his mother (against a background of very brutal dealings generally by the deceased with his family). In the homicidal encounter, the accused was the initial aggressor, though his father reached for a poker at one point and, at another, advanced towards the accused wielding a flat iron.58 He did not actually attack with either of these weapons. In Crawford v HM Advocate,59 the Lord Justice General (Cooper) referred to the “provocation which the jury may have been entitled to infer from [the accused’s] unhappy home life”.60 In both of these cases, the real exculpation seems to have come from the fact that the deceased, the accused’s father in each instance, was habituated to threatening behaviour.61 These cases suggest that, even then, provocation’s strict terms did not necessarily allow juries to return culpable homicide verdicts where they regarded these as merited, though juries still returned such verdicts. Gordon notes “the confusion between self-defence and provocation”62 though, at the appeal stage, Lord Cooper seems very carefully to have separated them in Crawford, where he said:63

55 For a nuanced discussion, see R Reddy “Gender, culture and the law: approaches to ‘honour crimes’ in the UK” (2008) 16 Feminist Legal Studies 305 especially at 306-307. 56 Gordon, Criminal Law para 25.14. 57 1938 JC 60. 58 Lord Jamieson’s charge to the jury would, however, have led them to believe that they could return a verdict of culpable homicide, separately from any question of provocation, if the accused had used unnecessary violence in the heat of the moment after any threat to his life had passed (at 63). 59 1950 JC 67. 60 Crawford v HM Advocate 1950 JC 67 at 71. 61 There was also an element of diminished responsibility in Crawford. 62 Gordon, Criminal Law para 25.15. 63 Crawford v HM Advocate 1950 JC 67 at 69-70.

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Exculpation is always the sole function of the special defence of self-defence. Provocation and self-defence are often coupled in a special defence, and often I fear confused: but provocation is not a special defence and is always available to an accused person without a special plea … I desire to emphasise that the pleas are not identical but entirely separate and distinct and that the special defence of self-defence must either result in complete exculpation or be rejected outright.

The procedural effect of the distinction was itself clarified by Lord Cameron’s dictum in Fenning v HM Advocate that:64 The issue of self-defence and the issue of “provocation” are not only entirely different in substance and effect, but their solution is dependent upon quite distinct and distinguishable factual circumstances, and are not matters of ­concurrent consideration. Thus, it is only if the defence of self-defence is rejected that it is then for the jury to consider afresh the whole evidence to determine whether the matter of provocation is established so as to reduce the quality of the crime from murder to culpable homicide. This, I think, requires to be made very clear.

Since provocation arises in the same initial circumstances as self-defence – that is where the deceased physically assaulted the accused, who responded in kind – it is unsurprising that the defences are often pled together. After all, provocation provides the opportunity for the “half-way house”65 of the return of a culpable homicide verdict on a murder charge, where evidence exists that the deceased was the initial aggressor. In theory, however, the defences proceed on entirely different bases. Provocation excuses because the accused lost self-control. Self-defence implies that this was retained, so that the accused could make an assessment of the appropriate response to the violence being used against her or him. These responses are so different that, stating them in this stark way, it is difficult to see how they could be pled together, though it has to be accepted that events progress from the initial violence, and both defences are grounded in pressurised circumstances. A hot-headed response is a prerequisite of provocation; in self-defence, the accused should not be expected to weigh the issues in “too fine scales”.66 While the distinction between the defences may no longer be blurred, provocation still places heavy reliance on violence because it is derived from a form of excessive self-defence, yet, as a partial defence, it now stands on its own terms. Accordingly, it is necessary to consider whether there are still good reasons to prioritise violence and sexual infidelity, as uniquely provocative and excusatory. 64 1985 JC 76 at 79. 65 See Reid v HM Advocate 1947 SLT 150 at 154 per Lord MacKay. 66 HM Advocate v Doherty 1954 JC 1 at 4 per Lord Keith.

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It is accepted that a physical attack may be provocative but Scots law does not have a wide base of provocative conduct, so the question is whether violence stands out. It is certainly not clear that everyone, or even most people, respond so angrily, and violently, to violence used against them. In fact, the literature on battered women who kill their abusers indicates that this model of an“instant burst” of angry violence, in response to being assaulted, is singularly ill-fitting. As a group, battered accused are likely to experience a “slow burn” of anger, which cumulates over time as more and more assaults are committed against them until, eventually, they do lose self-control and kill, though not necessarily as an immediate response to a specific act of violence.67 More generally, other individuals might flee – it is, in fact, a prerequisite of self-defence that any reasonable means of escape should be taken.68 The instinctive “fight or flight” response to dangerous or stressful situations is well recognised.69 Indeed, “[f]ear typically involves a preference to flee or freeze, not to attack”,70 and it is entirely possible that, for some individuals, fear might be the predominant emotion which a physical attack invokes. What about sexual infidelity? Hume only considered the situation where a husband killed his wife’s paramour after finding them “in the act of adultery”.71 In 1941, in HM Advocate v Hill,72 the law developed to incorporate the mere discovery, after the event, that a wife had been unfaithful. (Hill shot dead both his wife and her lover.) This case is surprising not only for its departure from the pre-existing position, but also in that the husband (a military police officer stationed in England) had come home specifically because he was suspicious that his wife was having a sexual relationship with another man.73 This fact suggests that his discovery lacked suddenness, though it is true that it is the response that provocation requires to be immediate. In any event, the trial judge instructed the jury that a clear distinction should be drawn between mere suspicion and confirmed knowledge.74 It still might have been possible to sideline this decision, taking into account Gordon’s comment that it could have arisen “because of a disin67 See e.g. J Horder, “Reshaping the subjective element in the provocation defence” (2005) 25 OJLS 123 at 128-129; R Sanghvi and D Nicolson, “Battered women and provocation: the implications of R v Ahluwalia” [1993] Crim LR 728 at 730-731. 68 HM Advocate v Doherty 1954 JC 1; McBrearty v HM Advocate 1999 SLT 1333. 69 It is discussed in K W Simons, “Self-defense: reasonable beliefs or reasonable self-control?” (2008) 11 New Criminal Law Review 51 at 77. 70 Posner (n 45) at 1993. 71 Hume, Commentaries i, 245. 72 1941 JC 59. 73 Hill at 60. 74 Hill at 62.

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clination even to envisage hanging a soldier who returned from the wars to discover that his wife had been unfaithful and responded by killing her”.75 Instead, however, the mere discovery of sexual infidelity remains an accepted basis for the defence of provocation. The defence is now available to anyone in a situation in which sexual fidelity is expected including cohabitees,76 and those in same-sex relationships77 and even, following Drury v HM Advocate,78 on/off relationships where the parties occasionally sleep together. Nonetheless, it was only in 1996 that it was expressly acknowledged that women could use the defence at all. Lord MacLean stated:79 In these somewhat more enlightened days of sexual equality I can see no reason why the law should not extend uniformly to a man and a woman. In other words, a wife or female companion should have the benefit of the mitigating plea of provocation equally with the husband or male partner.

Hume had allowed it for husbands over 200 years previously and the Lord Justice General (Rodger), in Drury, indicates that it might have been available (presumably to men) since 1510.80 There are two general issues arising from the current legal position which suggest that the discovery of sexual infidelity should not be privileged as one of only two provoking acts. The first is that this form of provocation may be sexist. The second is the difficulty in determining the value placed on fidelity both by the partners in individual relationships and by society as a whole. The report on Scottish homicide statistics for 2006-2007 states:81 For homicides recorded [from 1997 to 2007], over half (53 per cent) of the female victims aged between 16 and 69 were killed by their partner … For male victims aged 16 to 69, only 6 per cent were killed by their partner.

In 2006-2007, 92% of those prosecuted for homicide were male and the official government statistical report notes that these figures are similar to those for previous years.82 These figures do not reveal how many partner homicides were sparked by sexual infidelity, therefore any conclusion taken from them can only be tentative. Nonetheless, they do demonstrate that women are both much less likely to kill at all and, importantly in this context, 75 Commentary by Gordon on Drury v HM Advocate 2001 SCCR 583 at 618. 76 McDermott v HM Advocate 1973 JC 8. 77 HM Advocate v McKean 1997 JC 32. 78 2001 SLT 1013. 79 HM Advocate v McKean 1997 JC 32 at 33. 80 Drury at para 26. 81 Scottish Government, Statistical Bulletin: Homicide in Scotland 2006-7 (2007) para 6.5, chart 8. Available at: www.scotland.gov.uk/Publications/2007/12/14114316/6. 82 Ibid para 5.1 and table 7.

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much less likely to kill their partner. By definition, sexual-infidelity-based provocation can only be pled in the killing of a partner. As a defence then, this form of provocation is disproportionately available to men because they commit the majority of partner homicides. Clearly this makes no comment on the numbers of men and women who actually invoke the defence or its relative success for the two groups. Indeed, if Scots law recognised many provoking acts, it might not matter. However, since the reality is that only two such acts have this status, the point is that one of these should not lend itself so much more to a form of homicide which is disproportionately committed by men. The second point is that this form of provocation proceeds on the basis that there is consensus about the value attached to sexual fidelity and, hence, the provocative quality of infidelity when, in fact, this may vary from relationship to relationship and even in terms of the positions adopted by individual partners within a relationship. Indeed, it may be difficult to find consensus within any society as to the value generally to be placed on fidelity in this context. It is certainly the case that contemporary society no longer regards adultery as an attack on the husband’s property, as was the situation in Hume’s time. The point about individual relationships is illustrated by the leading case on provocation by the discovery of sexual infidelity: Drury v HM Advocate.83 Here the accused, having inferred from the circumstances in which he found her that the victim, a woman called Marilyn McKenna, had been having sexual intercourse with another man, killed her in a sustained attack with a claw hammer. Drury had once lived with her for a sixteen-month period and the court accepted that they sometimes slept together thereafter. The case proceeded on the basis that there was sufficient evidence that he had been entitled to expect sexual fidelity. Her view was that her relationship with him was at an end and she wanted nothing further to do with him.84 In fact, he was stalking her. He had incurred five convictions for breach of the peace in this regard and there was an interim interdict in place to protect her.85 Drury should not have been permitted to plead provocation but there is no hint of these background circumstances in the case report. The sexual infidelity exception proceeds on the basis that both parties place the same interpretation on the nature of the relationship and the same value on fidelity itself. 83 2001 SLT 1013. 84 See the Scottish Parliament’s Public Petitions Committee’s discussion of a petition lodged by Marilyn McKenna’s sister (“Crime Victims (PE408)”: Scottish Parliament, Official Report cols 1367-1377 (6 November 2001). 85 See S Morris, S Anderson and L Murray, Stalking and Harassment in Scotland (2002) 17.

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It is arguable that Drury killed not because he felt that the deceased had betrayed his trust, but out of a sense of sexual ownership. This is not a value which Scots law should uphold. Interestingly, English law is about to eschew sexual infidelity altogether as a basis for its new “loss of control” defence.86 This may go too far. The argument advanced here is not that the discovery of sexual infidelity is not provocative but rather that it should not be prioritised as one of only two provoking acts. Overall, then, violence and sexual infidelity do not merit the pre-eminence the law currently accords them. It was acknowledged in Drury that they are not uniquely provocative. Lord Rodger stated:87 The difference in scope of the doctrine of provocation in the two systems does not arise, it should be stressed, because Hume and the Scottish judges are unaware that people may react violently to minor physical provocations or to insults. Rather, as a matter of policy, the law has taken the view that in such cases the person assaulted or the person insulted should be expected to control himself, at least to the extent of not killing his tormentor.

Unfortunately, this policy is too restrictive. Violence and infidelity are not the only forms of conduct that constitute good reasons for an accused losing selfcontrol so that the resulting anger may be regarded as justified. Assaulting the accused’s child, secretly withdrawing all the money in a joint bank account and spending it or pouring acid on the accused’s prize possession might all be equally provocative – and, more importantly, equally excusatory of anger leading to fatal consequences – let alone the examples given by Macdonald of upending a chamber pot over the accused or tailoring verbal taunts to his personal characteristics, with the intention of provoking him.88 Accordingly, it is no longer appropriate to restrict provocation to violence and sexual infidelity. The partial defence could be reformed and improved simply by making the issue of acceptable provocative conduct – the entry condition – open-ended. Indeed, it may be that, rather than representing an increasingly liberal attitude to different types of relationship, the expansion of the sexual infidelity exception is a recognition of the excessive narrowness of 86 The Coroners and Justice Act 2009 s 55(6)(c) provides that “the fact that a thing done or said constituted sexual infidelity is to be disregarded”, in relation to the new partial defence to murder of “loss of control”. 87 Drury at para 25. The “two systems” referred to are Scotland and England. In English law, the partial defence has, hitherto, operated where “the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control …” (Homicide Act 1957 s 3). The use of the defence is then limited by a “reasonable man” test. This is, clearly, considerably broader than the Scottish position. (It should be noted that the English law will change once ss 54-56 of the Coroners and Justice Act 2009 come into force.) 88 Macdonald, Criminal Law 94.

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the defence. Provocation’s entry condition would expand to become, simply, whether or not the accused had been provoked (by something recognisably provocative to the reasonable person). Might this entail a greater focus on the role of the victim than is currently the case? C. THE CURRENT LACK OF A ROLE FOR THE VICTIM Calling the defence “provocation” at least semantically focuses on the provocative conduct. By definition, the accused must have been provoked by something. It is this which gives the defence its justificatory element. In Scotland, this arises because the provoking act provides a good reason for the accused’s anger. Other jurisdictions are more directly focused on the fault of the victim.89 It is also sometimes referred to as the “heat of passion” defence,90 thus shifting the focus to the accused’s state of mind. She or he is partly excused because they acted in the “heat of passion”.91 If this is where the focus lies, then the defence can only be a partial excuse. Generally, both elements are necessary therefore neither label is sufficiently inclusive, and the partial defence has a hybrid quality in justification and excuse terms. This is recognised in section 232(1) of the Canadian Criminal Code which provides that: “Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.” It is important, nonetheless, to consider, in slightly more detail, the relative significance of, and the fit between, these elements within the Scottish defence. Considering first the “provocation” aspect, because the entry conditions into the partial defence are so narrow, the first role of these provoking acts can be read as filtering out cases where there is neither sexual infidelity nor an appropriate level of violence.92 Where there is minimal violence, this potential entry condition is run together with the restraining condition – that the accused’s response should be reasonably proportionate – so that provocation is ruled out with little or no discussion of the interaction between the 89 See e.g. McAuley (n 3) especially at 137 and V Bergelson, “Victims and perpetrators: an argument for comparative liability in criminal law” (2004-2005) 8 Buffalo Criminal Law Review 385 at 408-419. 90 See e.g. J Dressler, “Rethinking heat of passion: a defense in search of a rationale” (1982) 73 Journal of Criminal Law and Criminology 421-470. 91 See Bergelson (n 89) at 409 (though her overall argument is that the victim’s behaviour is the more important issue). 92 In Cosgrove v HM Advocate 1990 JC 333, for example, the provocation consisted of a verbal confession that the victim had a conviction for sexual abuse of a child, the victim having smirked while uttering the words. Because there was no assault, provocation was ruled out.

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role of the victim, the provocative conduct and the accused’s loss of selfcontrol.93 In such cases, the court seeks to establish exactly what the victim did but, because this cannot engage the partial defence, it has no interest in any provocative quality of that conduct. Where there is an accepted provoking act, the law’s interest shifts to whether this caused the requisite loss of self-control in the accused. It is fair to say that its interest in the victim’s actions extends only to ensuring that its threshold condition – that there was violence or sexual infidelity sparking a loss of self-control – is met. The law’s focus on the deceased is factual, and often fleeting. It has no interest in any degree of blameworthiness which might be attributable to her or him. It does not even necessarily ask whether they actually “provoked” the accused. Its question is the passive one of whether the accused was provoked to lose self-control by the provoking act. Its position would be the same, following the discovery, by the accused, of sexual infidelity where the unfaithful partner had gone to great lengths to conceal the affair as where he deliberately taunted the accused with its existence.94 While, of course, the law simply regards infidelity as provocative no matter how it arises, in the latter case, the victim’s role in instigating the angry attack is much greater. She or he is more at fault. If the law’s concentration is largely on the “heat of passion” or loss of self-control aspect of the partial defence (and then on the restraining condition) and the provoking acts operate mainly as triggers to this, might this suggest that, in Scots law, provocation is exclusively a partial excuse? There are certainly aspects of the concept of justification which do not sit well with provocation. As McAuley points out, provoked accused are not physically prevented from controlling themselves, as is the case with automatism and insanity,95 nor is the violence itself made necessary by the circumstances. Such accused could, albeit with great difficulty, exercise control but the anger which they experience seriously impairs their ability to restrain the (angry) 93 For example, in Thomson v HM Advocate 1986 SLT 281, the deceased pulled the accused back into a room as the former was trying to leave. The accused stabbed him eleven times. Lord Hunter stated (at 285) that he had “found the absence of any proper or reasonable balance between what was done by the appellant, and anything said by him to have been done by his victim to be a most compelling consideration”. 94 Drawing an example from the existing case law, in McDermott v HM Advocate 1973 JC 8 it appears that the victim – the “paramour” – had not actually had sexual intercourse with the accused’s partner. He had kissed her and he had argued with the accused about which of them she preferred but no more than that. By contrast, in Rutherford v HM Advocate 1998 JC 34, the victim told the accused that she had been “‘been screwing that guy for months right underneath your nose’ and that she had been enjoying every minute of it” (at 44 per the Lord Justice General (Rodger)). In both cases, a culpable homicide verdict was returned. 95 McAuley (n 3) at 134.

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impulse to lash out. They should not lash out, still less lash out and kill, but they are excused because the law makes a concession to provoked fury. Nonetheless, the concession only arises where the anger is sparked by one of provocation’s entry conditions. The provoking acts may not play a great part but one of them must be present and its existence justifies the anger. Again, not all aspects of the theory of justification, which is generally used to appraise actions, map exactly onto an emotion such as anger. For example, justification holds that others who act alongside the justified attacker are similarly justified, but it is surely not necessarily the case that they are equally justified in flying into a rage. If the accused is angry because her or his partner was unfaithful, no one else ought to experience the same level of anger. She or he is uniquely affected by that circumstance. Sexual infidelity itself also seems to present particular problems in any attempt to apply the forfeiture theory of justification – that the victim’s initial wrongful act leads her or him to forfeit the right not to be criminally wronged. The deceased’s wrongful act is having sex with someone other than her or his partner. This is neither life-threatening to the accused nor is it even criminal in its own right. The accused’s response is to kill the partner. While the accused is only partly justified in terms of the provocation defence, the right to life cannot be partly forfeited. Because it is the accused’s anger which is partly justified, however, the direct link between the deceased’s and the accused’s acts is broken. Sexual infidelity is recognised in law as a good reason to become angry and lose self-control. Overall, then, the justificatory component in provocation seems to stand up to scrutiny. While Scots law does not dwell on this, the two provoking acts imply some level of wrongdoing against the accused on the deceased’s part – at least enough to justify the anger and consequent loss of self-control. D. THE CASE FOR ABOLITION Even if the accused’s anger is justified, however, there is an argument that this should be irrelevant in criminal proceedings. One rationale for the provocation defence generally is that killing in hot blood is less serious than killing in cold blood.96 As a validation, this is only superficially attractive. In Scotland, premeditation is not a necessary element of the mens rea of murder97 and 96 Historically, in other jurisdictions, this meant that provocation negated the requirement for “malice aforethought”. With regard to Ireland, see McAuley (n 3) at 134-135. In Scotland, killing “on suddenty” had a similar effect. See Chalmers and Leverick, Criminal Defences para 10.06; Hume, Commentaries i, 240-242. 97 This was stated in HM Advocate v Macdonald (1867) 5 Irv 525.

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the accused’s mens rea is judged at the moment of committing the killing. If, in any other circumstances, the accused was in a murderous fury which led them to launch a frenzied attack it is almost certain that they would be found to be wickedly reckless98 and, therefore, guilty of murder. While anger both generates, and makes it more difficult for individuals to resist, an impulse to harm another,99 if they should resist, the law ought to reflect this. Clearly, individuals may become angry – even furiously angry – for a wide variety of reasons but, however good these reasons are, the law should still expect the anger to be controlled, certainly to the extent of not killing another. In C v Harris,100 a case on reasonable chastisement of a child, for example, the sheriff at first instance (in considering whether a ground of referral to a children’s hearing had been established) inferred the mens rea of assault (of evil intent) from the fact of the mother’s anger when inflicting physical punishment on her child101 suggesting that, far from mitigating her act, the anger rendered it blameworthy. This was overruled on appeal. The Court of Session’s view was that “the mere fact that a parent is angry when punishing a child, using moderate force, cannot, by itself, demonstrate the existence of … evil intent”.102 This does not, however, suggest that “normal” anger is, in any way, excusatory. Effectively, it seems that the court accepted that individuals will become angry but took the view that this had no effect on criminal liability. It neither established nor negated it. This point can be generalised: anger, even if justified,103 should be neutral in relation to criminal liability. The difference in the quality of the anger in provocation cases – that it has spilled over into homicidal fury and the accused has lost self-control – seems, on the face of it, to render it more rather than less culpable. This view – that anger should always be controlled – effectively requires the abolition of the provocation defence, at least as it currently stands. E. THE WAY FORWARD FOR REDUCING MURDER TO CULPABLE HOMICIDE How, then, should the law progress? If the legal principles of provocation are too narrow to be fit for purpose, juries will simply depart from their terms in cases in which their view of the justice of the situation is that a culpable  98  99 100 101 102 103

See e.g. Parr v HM Advocate 1991 JC 39. Posner (n 45) at 1993. 1989 SC 278. See also Guest v Annan 1988 SCCR 275. C v Harris 1989 SC 278 at 280 per the Lord President (Emslie). At 280 per the Lord President (Emslie). C’s anger was justified because her child had behaved very badly.

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homicide verdict is appropriate.104 In the recent case of HM Advocate v Simpson,105 for example, the accused was convicted of culpable homicide on the basis of provocation. The fatality arose out of a brawl which had been started when the deceased punched the accused, knocking him to the ground: a clear provoking act. At the end of the fight, the victim was left lying motionless in the roadway but the accused continued to kick him repeatedly and to jump on his head with both feet.106 The case is reported only as an appeal against sentence by the Crown so it is difficult to draw definite conclusions but, since the culpable homicide verdict was definitely returned on the basis of provocation, the jury must have accepted that the violence offered by the accused, including the final attack, was “reasonably proportionate”. But should it have? The level of violence after the fight was over seems very high. The victim, who was regarded by the trial judge as culpable, with the accused, for starting the fight, was a “mature adult”. The accused was aged sixteen. Did this factor, rather than a strict application of the provocation principles, lead to the verdict of culpable homicide? Again, in the case of HM Advocate v Greig,107 the accused, June Grieg, killed her violent husband by stabbing him while he sat dozing in a chair. Lord Dunpark allowed provocation to go to the jury but stated that he did not believe that the grounds for the defence of provocation had been established.108 The jury still returned a culpable homicide verdict. This may be taken as an example of how poorly the actual terms of the provocation defence serve battered accused. It is the prerogative of juries to weigh the evidence and still reach a conclusion which is, or certainly may appear to be, contrary to the legal principles. But if that is because the principles are excessively restrictive, and fail to allow relevant factors – a history of battering; the accused’s youth – to be taken into account, then there is a need for a reassessment. June Greig’s case merely exemplifies the inappropriateness of the current law’s response to battered accused – those who have been subjected to violence by their partner over a lengthy period. Often the issue is not even canvassed in court because the Crown accepts a plea to culpable homicide.109 While this may meet the justice of the individual case, it does not allow the 104 105 106 107

See Gordon, Criminal Law para 25.23, and the authorities cited in n 84 therein. 2009 SLT 513. Para 6. HM Advocate v Greig, May 1979, unreported (see C Connelly, “Women who kill violent men” 1996 JR 215). 108 Connelly (n 107) at 215. 109 Ibid at 215-216.

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law to develop coherent principles. A bespoke defence, which accepts that the final loss of self-control that precipitates the killing does not necessarily follow immediately on a specific act of violence but which allows the offence to be examined in the context of the whole history of the accused’s relationship with the deceased is required. More generally, there is scope for a new defence of excessive, or unjustifiable, self-defence which would allow the law to acknowledge anger without prioritising it, and to respond better and more intuitively to individuals whose response is actually precipitated by fear. Lord Jamieson’s charge to the jury in HM Advocate v Kizileviczius110 gives a flavour of the circumstances in which this could apply:111 the accused, having been put in a position of … danger to his life, … used unnecessary violence or continued to use violence after the danger had passed which he was not justified in using, but … he did so in the heat of the moment, with no intention to kill and without thinking of the consequences of what he was doing …

It would seem that this better fits the facts of Simpson112 than does provocation with its “reasonable proportionality” requirement. Provocation could be retained in an expanded form, alongside new defences. In a reformed mode, it would be reasonable for the partial defence to consider whether the accused could, in the first place, have taken any steps to avoid becoming so angry that he killed another person. It is impossible to avoid getting angry but it might be possible to limit the likelihood of getting into a murderous rage.113 In relation to the defence of automatism, Scots law has already indicated that accused who suffer from particular conditions – diabetes and parasomnia (a form of sleepwalking) – should avoid getting into the situations in which criminal consequences are known to occur. Diabetics with “poor hypoglycaemic perception” – that is those who are poor at recognising the onset of an attack – should not drive.114 Those with parasomniac tendencies which they know to be induced by alcohol should not drink115 or, at least, in both cases, the afflicted individuals cannot avoid criminal consequences if they do. By the same token, there is scope to say that an accused who knows that he is often overwhelmed by violent anger – say while drinking, or while in the company of certain individuals – should drink less and find other friends, or lose the advantage of the defence of provocation. 110 111 112 113 114 115

1938 JC 60. At 63. See n 105 above and the accompanying text. See Posner (n 45) especially at 1995. MacLeod v Mathieson 1993 SCCR 488. Finegan v Heywood 2000 JC 444.

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F. CONCLUSION It is axiomatic that cases will arise where, prima facie, the accused satisfies both the actus reus and the mens rea for murder, but the justice of the situation is such that a culpable homicide verdict would be more appropriate. Whatever position it may adopt on provocation specifically, this is an issue that Scots law should address. This chapter posits that new partial defences for battered accused and of excessive, or unjustifiable, self-defence may be warranted. Nonetheless, the real issue is whether provocation is still fit for its purpose as one of the main mechanisms by which the determination to convict only of culpable homicide is made. As it stands, currently, the defence is almost illusory and certainly illo­gical. It is illusory because none of its elements is exactly what it seems. The loss of self-control is not to be absolute, yet it must be sufficient that the accused is no longer acting rationally. The provoking acts are used as much to limit the use of the defence at all as for their provocative qualities, and the “ordinary person”, who determines the appropriateness of the response to sexual infidelity, has had to be so named because in reality most people – and certainly reasonable people – do not kill at all in such circumstances. It is illogical because there is no especially good reason to prioritise violence and sexual infidelity as provoking acts. It is not that these are not provocative. It is, rather, that they do not stand out from all the variety of possible provocations which could impact on any individual, and that sexual infidelity is disproportionately available to men. More fundamentally, however, a decision needs to be taken as to the position the law should adopt on extreme anger. In support of the abolition of provocation, the New Zealand Law Commission has stated:116 We would … argue that the defence puts a premium on anger – and not merely anger, but homicidally violent anger … [O]ut of the range of possible responses to adversity, why is this the sole response that we choose to partially excuse?

There is a strong argument that anger should be legally neutral. Currently the provocation defence privileges anger’s effects (a loss of self-control) when the accused is overwhelmed by it, as a result of an act which the law deems provocative. Scots law could, however, reasonably take the view that every person should control her or himself, at least to the extent of not killing another. Nonetheless, it is important not to lose sight of the fact that ­provocation’s 116 New Zealand Law Commission, The Partial Defence of Provocation (n 49) 11.

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effect is only mitigatory. The accused is still convicted of culpable homicide. This may tip the balance in favour of retention and reform. Provocation must not, however, expand to become, to the homicidally furious, a licence to kill (rather than to murder).

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13  “The Most Heinous of all Crimes”: Reflections on the Structure of Homicide in Scots Law Gerry Maher A. homicide offences B. the drivers of change (1) Academic writing (a) Fair labelling (b) Levels of rules (2) The work of law reform bodies (3) Codification projects (4) The role of pressure groups C. debates and possible solutions (1) Homicide and the mandatory sentence for murder (2) Maximum differentiation (3) Differentiation based on factors other than fault (4) Separate offences for road traffic and corporate killings (5) The division between murder and culpable homicide: the scope of culpable homicide D. the proper scope of murder: the most heinous of all crimes E. appendix: honours criminal law syllabus “The different degrees of Homicide, considered as to their legal effect, are more the result of an improved system of law, than of any general and acknowledged rule, subsisting at all times, and founded on a just notion of the true nature of this crime.” (J Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (1811) 1)

One of the classes taught by Sir Gerald Gordon during his tenure as Professor of Criminal Law, and later in the Chair of Scots Law, at Edinburgh University was honours criminal law. I inherited this class and Gerald’s reading lists 218

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when he left to take up an appointment to the shrieval bench in 1976. The topics taught in that class over thirty years ago are not very much different from those included in honours criminal law classes today.1 But one matter not covered then but almost without exception considered now is the structure of homicide offences, an aspect of the criminal law which has generated extensive appellate decisions, academic commentary and proposals for law reform. It also happens to be a matter on which Gerald Gordon’s own writings have played a significant role in the development of the law in this country. A. HOMICIDE OFFENCES A useful starting point for this flurry of juristic activity is 15 July 1972. In Coventry, in the early morning of that day, Pearl Kathleen Hyam killed two girls by setting fire to the house they were in. Her purpose in resorting to arson was to frighten the girls’ mother, a rival for the affections of a man with whom she had previously had a relationship, into leaving the neighbourhood. She did not intend to cause death or do injury to anyone. But did she commit murder? Was she a murderer? “Yes” said a jury, the Court of Appeal and, in a decision which still provokes controversy, the House of Lords.2 Most of the opinions in this decision focused on the historical origins and contemporary authority on the mens rea of murder in English law, especially the question whether foresight of death or of serious bodily injury is equivalent to, or evidence of, intention. The only Scottish judge in that case was Lord Kilbrandon, who issued a short opinion agreeing with the dissenting opinion of Lord Diplock. But Lord Kilbrandon set out a more general point about the law of homicide:3 My Lords, it is not so easy to feel satisfaction at the doubts and difficulties which seem to surround the crime of murder and the distinguishing from it of the crime of manslaughter. There is something wrong when crimes of such gravity, and I will say of such familiarity, call for the display of so formidable a degree of forensic and judicial learning as the present case has given rise to. I believe this to show that a more radical look at the problem is called for … There does not appear   1 See the appendix to this chapter. This was the syllabus for the class taught in the mid 1970s.  2 Hyam v DPP [1975] AC 55, a three to two majority decision.  3 Hyam at 98E-H. Similarly in R v Howe [1987] 1 AC 417 Lord Hailsham of St Marylebone said (at 433): “Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, ‘mercy killing’ of a beloved partner.”

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to be any good reason why the crimes of murder and manslaughter should not both be abolished, and the single crime of unlawful homicide substituted; one case will differ from another in gravity, and that can be taken care of by variation of sentences downwards from life imprisonment. It is no longer true, if it was ever true, to say that murder as we now define it is necessarily the most heinous example of unlawful homicide.

Yet how unlawful killings are to be separated and categorised has a longer history, and not only from a legal perspective. Consider the following passage from Hamlet:4 ghost: List, Hamlet, oh list. If thou didst ever thy dear father love. hamlet: O God! ghost: Revenge his foul and most unnatural murder hamlet: Murder? ghost: Murder most foul, as in the best it is; But this most foul, strange, and unnatural. … ghost: It’s given out, that sleeping in my orchard, A serpent stung me: so the whole ear of Denmark Is by a forged process of my death Rankly abus’d: but know thou noble youth, The serpent that did sting thy father’s life Now wears his crown hamlet: O my prophetic soul, Mine uncle?

This passage identifies a number of themes which feature in later debates. One is the contrast between murder as such (“most foul, as in the best it is”) and aggravated murder (“most foul, strange and unnatural”). Another is the method of killing (poisoning); and another, the characteristics of the victim (a king). And a further point is the relationship between murderer and deceased (family members, brothers). All of these issues have for long featured, and continue to do so, in discussions of the structure of homicide. But for an insight into contemporary debates one can consider the following list of offences. First, there is the distinction between murder and culpable homicide, and in English law murder and manslaughter. These distinctions turn mainly on the required mental element for each offence, though the two legal systems define this key matter in different ways. In Scots law, the definition of murder is still largely based on the words of Macdonald:5   4 Act I, scene iv.  5 Macdonald, Criminal Law 89. The addition of the term “wickedly” to describe the intention to kill is derived from Drury v HM Advocate 2001 SLT 1013. In that case the High Court radically

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Murder is constituted by any wilful act causing the destruction of life, whether [wickedly] intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.

By contrast culpable homicide is an unlawful killing where the accused lacks intention to kill or such wicked recklessness. In English law murder is committed when the defendant unlawfully kills the victim in circumstances where he intends (1) to kill the victim, or (2) to cause the victim grievous bodily harm. Manslaughter is an unlawful killing where the defendant lacks either of these intentions. The distinction between murder and culpable homicide (and the corresponding distinction in English law) is basic to our understanding of the law of homicide but the precise way of marking the difference between the two has always been controversial. Because in modern law the distinction turns on mens rea, the offences are general homicide offences. But we also have particular homicide offences, which involve some definitional element other than mens rea. In practical terms the most important of these involve killing on the roads. In recent years there has been a mushrooming of statutory offences of road traffic homicides. These offences include causing death by dangerous driving;6 causing death by careless or inconsiderate driving;7 causing death by driving while unlicensed, disqualified or uninsured;8 and causing death by careless driving when under the influence of drunk or drugs.9 A further statutory homicide offence is that of corporate homicide (corporate manslaughter in England) which can be committed only by a corporation or other type of organisation.10 Furthermore, English law contains other particular homicide offences not known to Scots law. One is causing or allowing the death of a child or ­vulnerable adult.11 Another is infanticide, which operates more as a defence re-interpreted the plea of provocation not as a mitigating circumstance which reduced murder to culpable homicide but rather as involving a type of criminal intention short of the “wicked” ­intention which, according to the court, was part of the definition of murder. This re-interpretation is generally regarded as mistaken, and outwith the context of provocation the term “wicked” adds little to the idea of intention in the context of murder (see J Chalmers, “Collapsing the structure of criminal law” 2001 SLT (News) 241; M Christie, “The coherence of Scots criminal law: some aspects of Drury v HM Advocate” 2002 JR 273).   6 Road Traffic Act 1988 s 1.   7 Road Traffic Act 1988 s 2B (added by the Road Safety Act 2006).   8 Road Traffic Act 1988 s 3ZB (added by the Road Safety Act 2006).   9 Road Traffic Act 1988 s 3A (added by the Road Traffic Act 1991). 10 Corporate Manslaughter and Corporate Homicide Act 2007. The types of organisation which can commit the offences are set out in s 1(2). 11 Domestic Violence, Crime and Victims Act 2004 s 5, a provision said to be needed to deal with

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akin to diminished responsibility. The offence arises where a mother kills her child (under the age of twelve months) but her mental state was disturbed as a consequence of the birth.12 There are also, towards or on the borderland of homicide offences, the crimes of concealment of pregnancy and abortion. Concealment of pregnancy deals with the situation where a woman’s failing to take steps during pregnancy and the birth of her child leads to the death of the child, which can gives rise to a statutory offence.13 English law has a further offence of child destruction which involves the killing of a child which is capable of being born alive by causing it to die before it has an existence independent of its mother.14 Procuring an abortion, that is the destroying the life of a foetus at any time during pregnancy, is a crime at common law but this is subject to the provisions of the Abortion Act 1967. In Scots law suicide is not a crime,15 nor is attempted suicide. It is not clear what offence, if any, is committed where two people make a suicide pact and one survives.16 By contrast, in English law the common law crime of suicide survived until abolished by statute in 1961 and there is a statutory offence of aiding, abetting or procuring a suicide or attempted suicide.17 Furthermore the survivor of a suicide pact who has killed the deceased or is party to him being killed by someone else is guilty of manslaughter (but not murder).18 the problem where a child is cared for by two people and dies as a result of ill treatment but it is not clear which carer ill-treated the child. The Act allows for both carers to be convicted of this offence. The Home Office has indicated that it is likely that there will be few prosecutions of the new offence (Home Office Circular 9/2005, Domestic Violence Crime and Victims Act). For a general discussion see J Herring, “Mum’s not the word: an analysis of section 5, Domestic Violence, Crime and Victims Act 2004”, in C M V Clarkson and S Cunningham (eds), Criminal Liability for Non-Aggressive Death (2008) 125. 12 Infanticide Act 1938. A conviction of infanticide in effect reduces a charge of murder to one of manslaughter. At the time of the 1938 Act English law had no plea of diminished responsibility, which was introduced by the Homicide Act 1957. However, recently the English Law Commission has recommended that a separate offence of infanticide should be retained (Law Commission, Report on Murder, Manslaughter and Infanticide (Law Com No 304, 2006) part 8) and this recommendation has been implemented in the Coroners and Justice Act 2009, which makes some minor amendments to the wording of s 1 of the Infanticide Act but otherwise does not alter its provisions. 13 Concealment of Birth (Scotland) Act 1809. This Act replaced an Act of 1690 (APS ix, 195, c 50). On some views the offence is a species of the more general offence of culpable homicide (see Hume, Commentaries i, 293). 14 Infant Life (Preservation) Act 1929. 15 Mackenzie recognised a category of “self-murder” which had significance for questions of succession to the self-murderer’s estate (G Mackenzie, The Law and Customs of Scotland in Matters Criminal, 2nd edn (1699) vol I tit XIII). 16 For discussion see G H Gordon, “Suicide pacts” 1958 SLT (News) 209. 17 Suicide Act 1961 s 2. 18 Homicide Act 1957 s 4(1).

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Moreover, different categories of homicide exist not just in relation to the definition of offences but also in relation to sentencing. For example, in English law there are provisions for determining the minimum term to be given for the mandatory life sentence on a conviction for murder.19 Various starting points are set out which depend on factors such as the murder of a child which involved sexual or sadistic motivation; murder of a police officer in the course of his duty; murder done for gain; whether the offender was below the age of eighteen. In addition, there are various factors which are aggravating (such as a significant degree of premeditation or concealment of the body) and mitigating (intention to cause serious bodily harm rather than to kill, or the offender having been provoked in a way not amounting to a defence of provocation). This snapshot of the structure of homicide captures the law in its current form but it is quite possible that this will change. The English Law Commission has recommended some important reforms.20 In particular the present two-tiered structure of murder and manslaughter would be replaced by a three-tiered structure of first-degree murder; second-degree murder; and manslaughter.21 First-degree murder would cover intentional killings and killings with intent to cause serious injury where the defendant was aware that his conduct involved a serious risk of causing death.22 Second-degree murder would cover killing with intent to do serious injury and killing with intent to cause some injury or risk of such an injury where the defendant was aware of a serious risk of causing death. It would also cover cases of what would otherwise be first-degree murder but a partial defence of provocation, diminished responsibility, or killing pursuant to a suicide pact was made out.23 Crucially, the mandatory life sentence would apply to first-degree but not second-degree murder. Manslaughter would extend to two situations: (1) killing through gross negligence and (2) killing through the commission of a criminal act which was either intended to cause injury or one that the defendant was aware involved a serious risk of causing some injury.24 At much the same time these issues had been considered by the Law 19 Criminal Justice Act 2003 s 269 and Sch 21. 20 Law Commission, Murder, Manslaughter and Infanticide (n 12) especially part 2. At the time of writing, most of the recommendations in the report were unimplemented. 21 Para 2.33. 22 Para 2.69. 23 Para 2.70. The Commission also recommended re-formulation of the defences of provocation and diminished responsibility, recommendations which have been implemented in Part 2 of the Coroners and Justice Act 2009. 24 Para 2.163.

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Reform Commission of Ireland,25 but the recommendations of that body varied from its English counterpart. For a start the Irish Commission proposed that the mandatory life sentence for murder should be abolished.26 Even if (as for political reasons is likely) that proposal was not accepted the mental element for murder should be broadened to include reckless killing manifesting an extreme indifference to human life.27 The mental element should also, as under current Irish law, include intention to cause serious injury but should not be expanded to include recklessness as to serious injury.28 The Commission also recommended that the law on unlawful and dangerous act manslaughter should be retained29 as should a reformulated version of gross negligence manslaughter.30 In addition there should be a new homicide offence “below manslaughter” of assault causing death.31 B. THE DRIVERS OF CHANGE What is driving this increased and still increasing interest and activity on the law of homicide? There are a number of overlapping origins for the recent interest in the structure of homicide offences. (1) Academic writing Perhaps the most influential source of debates and arguments about the law of homicide is to be found in academic and scholarly writings on criminal law. Criminal law has for long been a core academic subject but until relatively recently was one which gave rise to only sporadic literature. This is not to say that writings on criminal law before this notional “modern” era lacked depth. Two of the most significant works written on the subject in the twentieth century are Glanville Williams’ Criminal Law: The General Part (first published in 1953) and Gerald Gordon’s own book, first published in 1967. These books in turn inspired a blossoming of interest in the criminal law as an academic subject. Over the last twenty-five years or so academic writings have taken on a high level of maturity, combining both analytical 25 Law Reform Commission (Ireland), Homicide: Murder and Involuntary Manslaughter (LRC No 87, 2008). 26 Para 1.66. 27 Para 3.40. 28 Para 3.49. 29 Para 5.38. 30 Paras 5.68-5.69. 31 Para 5.46. Assault causing death would occur where an accused committed an assault which caused death and a reasonable person would not have foreseen that death or serious injury was likely to result in death.

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­sophistication and depth of normative theory.32 Two particular issues in this recent scholarship have had an major impact on the structure of homicide offences, namely fair labelling, and “levels” of rules of criminal law. (a) Fair labelling The idea that the criminal law should embody a principle of fair labelling has become an accepted orthodoxy in criminal law scholarship and has also been accepted as an important principle for reforming the criminal law.33 Its concern is with how criminal offences should be separated out from one another and with affixing each offence with a name or label that both describes that particular offence and marks it out as different from other offences, especially those similar or related to it in some way. As such, it has obvious implications for the structure of homicide offences. Despite its acceptance as a basic principle of criminal law, however, fair labelling has received very little detailed attention.34 So it is hardly surprising that when it is put under critical scrutiny a picture emerges of a concept or principle which operates at various levels and serves different purposes. For example, labelling offences for the purpose of guiding sentencing decisions35 can result in a quite different set of categories from labels used to communicate with offenders or victims. Cutting across this kind of distinction is another which is more functional. Chalmers and Leverick point out that, for purposes of addressing the general public, labelling is important as a mode of describing offences. In contrast, where labelling is addressed at personnel working within the criminal justice system, its function is that of differentiating offences, or more importantly pointing to differences within one category of offence. In short, there is very little reason to suppose that there is one, and only one, way of labelling criminal offences, including homicide. Rather there are a whole range and many levels of labels, depending on the purpose of the exercise and its addressees. 32 For a useful survey of these developments see R A Duff, “Theorising criminal law: a 25th anniversary essay” (2005) 25 OJLS 353. 33 For a comprehensive account of the topic see J Chalmers and F Leverick, “Fair labelling in criminal law” (2008) 71 MLR 217. An example of its application in law reform can be found in Law Reform Commission (Ireland), Homicide (n 25) paras 1.01-1.02 (headed “labelling and moral culpability”). 34 Chalmers and Leverick (n 33) noted that “while frequently deployed, however, fair labelling has sometimes been assumed to be a principle of self-evident value; it has often been invoked without any consideration of its underlying principles” (at 220). 35 An example in English law, noted earlier, is the Criminal Justice Act 2003 s 269 and Sch 21.

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(b) Levels of rules This conclusion is supported by another strand of contemporary criminal law theory. This is the distinction drawn between different levels of rules within criminal law.36 The essential idea is that some rules are aimed at guiding the conduct of citizens, while others provide guidance for courts and other officials in determining questions of breach of the criminal law and attribution of criminal responsibility. Again, it has been recognised that this distinction has direct implications for the ways in which offences are described and differentiated.37 (2) The work of law reform bodies A further explanation for the new interest in the structure of homicide lies in the work of law reform bodies, some of which has already been noted. In both England and Wales and in Ireland the official law reform agencies were moved to considering questions of the law of homicide in general by earlier examination of the law on partial defences to homicide, especially provocation.38 In common law jurisdictions many deep-rooted problems with the defence of provocation have been recognised by the courts and academic commentators,39 but there appears to be little hope of resolving these problems solely by the accepted law reform technique of proposing statutory redefinition. Rather the reform of provocation depends upon much wider issues such as the retention of the mandatory life sentence for murder and the distinction between murder and other categories of homicide. A similar process may happen in Scotland. The Scottish Law Commission has indicated that it may consider the defence of provocation,40 but it is ­difficult to see how this law reform project could proceed without the 36 The standard texts are P Alldridge, “Rules for courts and rules for citizens” (1990) 10 OJLS 487; M Dan-Cohen “Decision rules and conduct rules: on acoustic separation in criminal law” (1984) 97 Harvard Law Review 625; and P H Robinson, “Rules of conduct and principles of adjudication” (1990) 57 University of Chicago LR 729. 37 For example, Robinson (n 36) at 758-764, accepts that whole criminal codes could be written at different levels and in different styles of language (what he calls Codes of Conduct and Codes of Adjudication). 38 In its Report on Partial Defences to Murder (LC No 290, 2004), the Law Commission recommended that it should be asked to conduct a more general review of the law of murder (para 2.74). 39 See e.g. C McDiarmid, “Don’t look back in anger: the partial defence of provocation in Scots law”, ch 12 of this volume. 40 The topic was contained in the Commission’s Seventh Programme of Law Reform but work on the project was delayed because of other commitments. The Commission has indicated that it intends to carry the subject over to its next programme (Scottish Law Commission, Annual Report 2008 (Scot Law Com No 214, 2009) 13).

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Commission first considering the mandatory sentence for murder and general issues of the structure of homicide offences. (3) Codification projects Another aspect of law reform with implications for the law of homicide is the re-birth of interest in the codification of the criminal law. The Law Commission in England and Wales had for a long time regarded its work on criminal law as part of a rolling programme of finalising a project on c­ odification.41 An unofficial draft criminal code for Scotland, drawn up by a group of distinguished lawyers, was published in 2003.42 The code does not, on the whole, deal with statutory offences and has nothing to say about homicide offences such as road traffic killings or corporate killings. It retains an offence of abortion very much in its present form but this is explained as a matter of the legislative competence of the Scottish Parliament.43 The most direct aspect of the draft code on homicide offences is that it retains but redefines the distinction between murder and culpable homicide. The distinction is drawn primarily in terms of mens rea,44 though provocation and diminished responsibility are kept as pleas which reduce a conviction for murder to one for culpable homicide. The work on criminal codes has an obvious connection with the structure of homicide offences since that very issue is an important part of any code. But there is another significant, though perhaps less noted, point. This is the way in which homicide offences fit into the overall scheme of criminal offences and are differentiated from related offences (such as assault).45 41 See e.g. Law Commission, Annual Report 2006-07 (Law Com No 306, 2007) paras 5.16-5.17; Law Commission, Annual Report 2007-08 (Law Com No 310, 2008) paras 5.14-5.23. It is also worth noting that an official project for codifying the criminal law is under way in Ireland. For a statement of the planned programme for the code, see Criminal Law Codification Advisory Committee, Annual Report 2008 (2009). 42 E Clive, P Ferguson, C Gane and A McCall Smith, A Draft Criminal Code for Scotland with Commentary (2003). The authors note (at 1) that Sir Gerald Gordon took part in discussions in the later stages of preparation of the draft. Despite its unofficial status the draft criminal code has proved influential in law reform projects. See e.g. Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007) para 1.9 and the other examples noted in E Clive, “Codification of the criminal law”, ch 4 of this volume. 43 The intention of the code team was that the draft criminal code could be enacted by the Scottish Parliament. Abortion is a reserved matter under the Scotland Act 1988 (Sch 5, Part II, head J1). 44 The mens rea of murder is defined as the intention of causing death or callous recklessness as to whether death is caused (Draft Code (n 42) s 37(1)). Culpable homicide involves causing the death of a person recklessly or by an assault or another unlawful act likely to cause significant physical harm where there is intention or recklessness as to causing such harm (Draft Code s 38). 45 Law Reform Commission (Ireland), Homicide (n 25) recommends that there should be a new offence of assault causing death but the Commission still see this offence as part of the law of homicide rather than the law of assault (para 5.46).

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(4) The role of pressure groups A further pragmatic explanation for some of the recent growth in separate offences is the existence of pressure groups involved with single-issue politics who argue for specialised offences in the areas of concern to them.46 This phenomenon is certainly in the background of some recent developments in English law noted earlier but it also applies to the new offence in Scots law of corporate homicide.47 One problem about creating separate offences for separate situations, such as death in the workplace or the death of a vulnerable person, is that it might unduly fragment the law of homicide and disguise what these separate offences share with the broader categories of murder and culpable homicide. C. DEBATES AND POSSIBLE SOLUTIONS This section will seek to identify the main issues in the debates over the structure of homicide and will offer some brief comments on possible solutions, especially from the perspective of Scots law. It has to be said that, compared with other legal systems, there has been little discussion on many of these issues in Scotland. One point which should be noted at the start is that Scots criminal law has historically taken a wide approach to the categorisation of crimes. The clearest example of that is assault, which is essentially a unified crime, despite the recognition of various factors (both common law and statutory) that may aggravate the commission of an assault. There is a general culture of avoiding over-differentiation of offences. Broad categories are preferred, with differences being marked out by means other than the specification of different offences. An example, which applies throughout criminal offences, including homicide, is aggravation by way of racial motivation.48 More recently, however, there has been some movement towards the use of more elaborate differen46 See J Horder, “Homicide reform and the changing character of legal thought”, in Clarkson and Cunningham, Criminal Liability for Non-Aggressive Death (n 11) 11 at 29-31. 47 However, the politics of the changes brought about by the Corporate Manslaughter and Corporate Homicide Act 2007 are complicated by the fact that in Scotland much of the pressure group activity, especially by trade unions, was aimed at getting a bill before the Scottish Parliament. Nonetheless, the point remains that focus was placed in Scotland on creating a particular homicide offence that could be committed only by corporations and similar organisations. 48 Crime and Disorder Act 1998 s 96. This approach, of not making separate offences but adding aggravating levels to existing crimes, applies also to crimes (including homicide) committed with prejudiced motivation in respect of a person’s disability or sexual orientation (see Offences (Aggravation by Prejudice) (Scotland) Act 2009).

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tiation of offences under the heading of a general category of crime.49 A related point is that labelling of homicide offences aimed at sentencers has much less point in Scotland where, in contrast with legal systems such as England and Wales, the whole sentencing system is far less structured and considerably more emphasis is placed on the discretion of the sentencing judge. (1) Homicide and the mandatory sentence for murder Perhaps the key issue in debates on homicide is the mandatory sentence for murder. Historically much of the development of the law on the distinction between murder and culpable homicide, especially in relation to the partial defences of provocation and diminished responsibility, depended on the fact that murder was a capital offence and that today it continues to attract a mandatory life sentence. In Hume’s time there were two categories of murder: murder as such and aggravated murder.50 Hume gives several examples of this second category, such as murder under trust; killing in the royal presence; murder by assassination or poison; and the killing of a parent by a child or of a child by a parent.51 But the distinction between murder and aggravated murder itself reflected differences in what happened to the murderer. Hume explained that the pains of murder are death and confiscation of the moveable property of the murderer.52 But he also pointed out that aggravated murder, which in some cases had earlier been re-classified as a form of treason, had been punished with “forfeiture of life, lands, and goods”.53 Could and should the mandatory sentence be removed? It is sometimes thought that public opinion would oppose this change and accordingly there would be no political will to introduce such a measure. However, it is not totally inconceivable that at least in Scotland, as a separate political system 49 For example, the Sexual Offences (Scotland) Act 2009. Most of the provisions of this Act follow the recommendations in the Scottish Law Commission’s Report on Rape and Other Sexual Offences (n 42), which were based on a fair labelling principle (para 1.24). 50 “I have now to treat of the cases of AGGRAVATED MURDER; those cases, where on account of some singular baseness or cruelty in the manner of the deed, or some peculiar relation between the parties, our custom proceeds against the murderer with more than ordinary severity” (Hume, Commentaries i, 286). 51 Hume’s category of aggravated murder helps to explain the agitation of the Ghost in Hamlet and why he uttered the famous phrase “murder most foul”. His killing was an aggravated murder at several levels: murder in the royal presence, indeed murder of the king; murder by poisoning; murder by way of assassination in the Scots law sense; and murder by a member of his own family. 52 Hume, Commentaries i, 284. 53 Hume, Commentaries i, 286.

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from the United Kingdom as a whole, such a change might happen and that sentencing for all forms of homicide would be discretionary (though subject to guidelines laid down by statute or judicial determination, including cases where a life sentence would be appropriate). Clearly if the mandatory sentence for murder remained, that situation would rule out one option for change, namely the reductionist approach of having one homicide offence. But if the mandatory sentence were abolished, an unitary offence approach would not be the only option, for there could be good reasons – for example, based on fair labelling – for retaining different categories of homicide, even in that scenario. What might happen is that the current distinction between murder and culpable homicide would disappear, as that distinction is primarily a historical one and would have little point if the mandatory sentence were to go. Different types of distinctions and classifications of homicides could instead be made. But how would Scots law react to proposals to adopt a unified approach to homicides? Reductionism entails the collapsing of the distinction between murder and culpable homicide, and with it partial offences, as well as bringing into the offence what are currently road traffic and corporate homicides.54 A flavour of what such an offence would look like can be gained from a suggested draft made by two writers who favour this approach:55 A person who, by any act or omission, intends to cause, or by behaviour manifesting recklessness, gross negligence or by reason of serious failure of corporate management, causes serious physical harm to another person resulting in that person’s death, commits the offence of criminal homicide.

Of course, an approach such as this does not mean that there are no essential distinctions between different sort of killings. The point is that the differences appear not in the definition of the offence but elsewhere, particularly in respect of sentencing. Thus killings involving provocation would be defined in exactly the same way as those where it is absent but provocation would be a matter for consideration at the stage of sentencing.56 It could be said that such a unified crime would parallel assault in Scots criminal law, which is 54 But even this approach does not incorporate abortion which has always been regarded as different from other types of taking life and no one has seriously suggested otherwise. 55 L Blom-Cooper and T Morris, With Malice Aforethought (2004) 175. The next part of the draft clause states: “A person convicted of criminal homicide shall be liable to a sentence of life imprisonment, or a fine, unlimited in amount, or both, or such other non-custodial penalty including a hospital order as the court might deem appropriate.” 56 And it might be argued (in the spirit of “levels of rules” considered earlier) that as sentencing is a part of the criminal law aimed at officials rather than citizens, the definition of provocation need not be made too finely, thus avoiding some of the problems with the present law in relation to that plea.

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a unitary offence with one actus reus and one mens rea but which can be committed in a variety of aggravating ways or circumstances. But even on this definition homicide is not like assault, for there are a range of different fault elements involved in the unified homicide offence (seen most dramatically in “serious failure of corporate management”) which suggests different offences rather than different ways of committing one offence. Allied to this point is the question of appropriate labelling. Corporate homicide, for example, takes place in different social and moral contexts from a killing in the course of an armed robbery. And there does seem to be an important moral difference between a killing which is the purpose of an accused’s conduct and one which arises, for example, from an accused acting recklessly by throwing stones from a high building. (2) Maximum differentiation An opposite approach is to provide for different offences and labels to try to capture better than the present law the richness of the ways in which different killings are differently wrong. The trouble is that the overall picture might become too rich. Consider, for example, the argument that appropriate labelling might require the following separate categories of unlawful homicide:57 murder; killing upon provocation; killing during mental abnormality; killing by excessive force in self-defence; killing under duress; reckless killing; grossly negligent killing; killing as a result of an attack. To this list there can also be added: infanticide; corporate killing; and causing death by dangerous driving (and other road traffic homicides). The difficulty with this type of differentiation is that it does not make clear why fair labelling requires such detailed distinctions to be made. The killings are different but do they all need a separate label? For example, killing upon provocation and killing during mental abnormality (which must be something lesser than insanity) obviously involve different sorts of ways in which the wrong of killing is modified by extenuating circumstances. But at most all this argues for is that the defences of provocation and diminished responsibility are defined as separate defences. There is no need for the type of offence, to which they both act as a partial defence, to be itself differentiated in the same way.

57 A Ashworth and B Mitchell, “Introduction”, in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 1 at 16.

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(3) Differentiation based on factors other than fault A key element of the way in which homicide offences are currently structured is the mental element of the different offences. Other criteria for distinguishing homicides could be by reference to the mode of killing or characteristics of the parties (victim or perpetrator). Indeed this approach is already used in respect of road traffic and corporate homicides. It was noted earlier that Hume described a specific category of aggravated murder defined in terms of the nature of the assault and the identities of the parties. A more recent example of this approach can be found in the Homicide Act 1957, which arose out of the work of a Royal Commission on capital punishment. The Commission had considered the possibility of leaving alone the murder/culpable homicide (manslaughter) distinction but of subdividing murder into capital and non-capital cases (as was and is the practice in some parts of the United States). But the Royal Commission rejected this idea on the basis that it was impractical and that it was impossible to identify any coherent basis for the subdivisions.58 Nonetheless, the resulting legislation divided murders into capital and non-capital.59 Capital murders were those: done in the course of theft; by shooting or by causing an explosion; done resisting arrest; whilst escaping legal custody; of a police officer acting in the execution of his duty; of a prisoner of a prison officer; and repeat or multiple murders. As with Hume’s list of aggravated murders, the main emphasis was on the method of killing and the identity of the victim. The 1957 Act was not a success, and its repeal led the way to the abolition of the death penalty in 1965. The problem with the 1957 Act was that its categorisation of murder as capital and non-capital was driven solely by issues of penalty. But, unlike more modern divisions of murder which use similar criteria for purposes of sentencing, it made no allowance for mitigating or (aggravating) circumstances within each category of capital killing. (4) Separate offences for road traffic and corporate killings Homicides arising from the driving of vehicles have been beyond the common law offences for decades.60 Of course where a car is used as a weapon for 58 Report of the Royal Commission on Capital Punishment (Cmnd 8932: 1953) 189. 59 Homicide Act 1957 ss 5 (death penalty for certain murders) and 6 (death penalty for repeated murders). 60 Historically, separate statutory road traffic homicide offences were justified on the basis that juries were thought to be reluctant to convict of murder or culpable homicide drivers who caused death by driving dangerously or carelessly. But even if this was the case, it seems an unprincipled basis

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attacking someone a charge of murder would be appropriate. In HM Advocate v Purcell,61 a man was charged with murder where he killed a pedestrian while driving a car recklessly. The court held that in the absence of an intention to injure the victim a conviction for murder was not possible. But at the same time the offence committed in this case was a common law culpable homicide, which suggests that such an offence could have been charged itself, rather than just being an offence under the Road Traffic Act. The question, then, is whether in principle there is any point in having such separate statutory offences. There is a convincing case for the view that road traffic offences are essentially concerned with criminalising dangerousness; where death occurs as a consequence of driving, the conduct should be treated as culpable homicide provided it falls within the range of that offence.62 From the perspective of fair labelling, what matters is that death has occurred unlawfully; the fact that it is caused by driving seems of much less significance. Another area where a separate offence exists is corporate homicide introduced by the Corporate Manslaughter and Corporate Homicide Act 2007. There is no doubt that the offence under the 2007 Act, whatever its defects, is an improvement upon the common law approach to corporate homicide in Scotland, and in particular the insistence of the courts on adhering to the need to identify a specific person or persons within a corporation who had the necessary controlling, and guilty, mind.63 But the common law could have developed differently, and the adoption of a test of an aggregating or cumulative theory of corporate activity or of management failure was not beyond the scope of proper judicial development. Nor would it be sufficient to leave prosecution of corporate failings, especially those involving death, to laws dealing with health and safety at work. It would be literally a category error to consign a form of criminal homicide to that part of the law.64 Criminal homicides are part of the law of homicide. At the same time failure by the courts to develop legal doctrine on corporate liability could have been put right by reforming the law on corporate liability in the context of the common law offence rather than by creating a separate statutory offence. As against for a separate category of road traffic homicide offences. Moreover, if there were such views in the past, public attitudes towards killing on the road now appear to be more inclined towards treating them as akin to common law homicides. See B Mitchell, “Further evidence of the relationship between legal and public opinion on the law of homicide” [2000] Crim LR 814 at 823-824. 61 2008 JC 131. 62 See S Cunningham, “Vehicular homicide: need for a special offence?”, in Clarkson and Cunningham, Criminal Liability for Non-Aggressive Death (n 11) 97. 63 On this, see Transco plc v HM Advocate 2004 JC 29. 64 On this, see Öneryildiz v Turkey (2004) 39 EHRR 12 and the discussion in J Chalmers, “Just an expert group that can’t say no: reforming corporate homicide law” (2006) 10 EdinLR 290.

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this view, the very fact that a specialised form of guilty mind would have been required even for common law purposes suggests that the offence itself should be differently categorised. (5) The division between murder and culpable homicide: the scope of culpable homicide In the previous discussion on whether there should be separate offences for road traffic and corporate killings, one reason for retaining separate offences is that the present law on murder and culpable homicide is itself unsatisfactory. There are large issues involved in the discussion of the division between murder and culpable homicide, but as with many parts of the criminal law, the debate in Scots law is very much underdeveloped when compared with other legal systems. It must also be borne in mind that the distinction does not necessarily depend on the existence of a mandatory sentence for murder. If the mandatory sentence were to go, the issue would still arise of whether murder and culpable homicide should be distinguished, and if so, how. In most general terms, the issues involve the desirable scope of the crime of murder (considered in the next section) and the related matter of the nature and structure of culpable homicide. One major problem is that culpable homicide is too widely defined, and contains quite disparate elements. Indeed it has for long been thus. Hume described the structure of homicide offences in terms of four separate levels:65 (a) Non-blameable homicide, sub-divided into (i) casual homicide and (ii) justifiable homicide; (b) Homicide less than murder but blameable; (c) Murder; (d) Aggravated murder.

In modern times aggravated murder has disappeared, at least as a category of homicide offence. In modern eyes the key distinction is between (b) and (c). But for Hume the crucial contrast lay elsewhere. For Hume the primary distinction was between (a) on the one hand and on the other hand (b), (c), and (d) taken together. That is to say, the crucial part of the structure was the difference between non-culpable homicide and all the categories of culpable homicide. On this basis culpable homicide is not a lesser version of murder; rather murder is a greater type of culpable homicide.66 The difficulty 65 Hume, Commentaries i, 191. 66 The distinction between culpable and non-culpable homicide and of murder being a particular form of culpable homicide has a long tradition. It appears also in the nineteenth-century criminal codes (see e.g. Indian Penal Code 1860 ss 299-301).

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is that the second level has no clearly marked-out name. Culpable homicide becomes a residual category; it is the type of blameworthy killing which is not murder. But unless we already know how to define murder, this category becomes difficult to grasp. In the present law culpable homicide remains the residual category but there are simply too many disparate elements within its scope.67 Murder is still essentially defined in the terms of Macdonald.68 An unlawful killing which is not caught by this definition is, unless it is a separate species of homicide, a form of culpable homicide. But within culpable homicide there are several subdivisions. The problem is that these subdivisions are not “official” categories of culpable homicide but act rather as analytical distinctions. Nonetheless, they do indicate important differences between types of culpable homicide and the issue of appropriate labelling therefore arises. One such distinction is between voluntary and involuntary culpable homicide. This terminology is confusing and should be avoided. A so-called voluntary culpable homicide is one where the conduct falls within the scope of murder but where an extenuating factor exists in the form of provocation or diminished responsibility. The effect of this factor is that the accused is not liable to be convicted of murder but instead of culpable homicide. The historical explanation for the recognition of these partial defences is the need to avoid applying a mandatory penalty, especially when that was capital in nature, where these mitigating circumstances are present. But these culpable homicides are quite different from the others. Furthermore, labelling requires not only that they should not be called murder but that they should be distinguished from other culpable homicides. The question then is what is an appropriate label. As already noted, the English Law Commission has recommended a three-tiered structure of homicide offences.69 Murder would be divided into two degrees. The mandatory sentence would apply to first-degree, but not to second-degree, murder. The problem with the Commission’s recommendation is that it includes in second-degree murder homicides where there is an intent to do serious injury and/or an intent to cause injury where there is awareness of a serious risk of causing death. Whether such killings are to be classified as murder or manslaughter is one thing but labelling cases of provocation and diminished responsibility along 67 This can be seen from Hume’s opening discussion of this point where he says that “culpable homicide appears to be of several kinds and degrees; and these are grounded in different reasons” (Commentaries i, 233). 68 See n 5 above. 69 See n 20 and accompanying text.

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with these killings seems wrong. Killing under extenuating circumstances is not murder and should have its own separate label. Involuntary culpable homicides are those which are not voluntary ones. Within the level of involuntary culpable homicides, there is a further distinction between lawful act killings (where a fault element of gross negligence is required) and unlawful act killings (where death occurs as a consequence of a criminal act even though there was no intention to kill or even necessarily to injure the accused). There is much work to be done in working out this distinction, which in practice can become blurred.70 As for the unlawful act type, it is not entirely clear which crimes do and should attract this label when death occurs.71 The notion of lawful act culpable homicide is equally unsatisfactory. What transforms the act into a type of homicide when death ensues is a degree of negligent acting which displays a state of mind that is criminally indifferent as to consequences.72 But there is an element of circularity in this approach. A lawful act becomes a criminal one when committed with a criminal state of mind. It is difficult to be precise about when negligence becomes so gross that it constitutes this form of mens rea. More fundamentally, whatever the contours of unlawful and lawful act culpable homicides, should they be labelled as the same sort of crime? This approach has long been adopted in Scots law, as in other systems.73 But do they involve the same sort of wrong? If not, should there be separate labels for the two categories, not just as analytical distinctions but legal categories? Furthermore where death occurs as a consequence of an act which is itself a type of crime, does the fatal outcome require a different offence or should it rather be an aggravating factor of that offence?

70 On this, see L Farmer, “‘Practical, but nonetheless principled’? MacAngus and Kane” (2009) 13 EdinLR 502. 71 At present assault does, but here there is a clear moral link between committing an attack with evil intent and holding the accused liable for an ensuing death even if that death was not intended. It is less easy to identify such a link in other offences. In MacAngus v HM Advocate; Kane v HM Advocate 2009 SLT 137, it was held that the unlawful act in question must be “directed against” the victim to form the basis of liability for this form of culpable homicide (para 29). 72 This is the formulation made in the classic case of Paton v HM Advocate 1936 JC 19. The emphasis on gross negligence as evidencing a criminal state of mind has been made in later cases (see, for example, Transco plc v HM Advocate 2004 JC 29). 73 The English Law Commission’s most recent work on the structure of homicide (Law Commission, Murder, Manslaughter and Infanticide (n 12)), which is very much informed by the principles of fair labelling, has recommended that the law should continue to categorise unlawful act and lawful act killings as undifferentiated forms of manslaughter. A similar approach was adopted by the Law Reform Commission of Ireland: see Law Reform Commission (Ireland), Homicide (n 25).

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D. THE PROPER SCOPE OF MURDER: THE MOST HEINOUS OF ALL CRIMES It is obvious that clarity is needed as to what should fall within the scope of culpable homicide. There is another major issue to consider. This concerns the desirable scope of the offence of murder; in other words, how to draw the line between murder and culpable homicide. An appropriate way of considering these issues is to look at the views of Sir Gerald Gordon. Gordon’s massive contribution to the writings on Scottish criminal law is based on a wide range of journal papers but in particular his monograph The Criminal Law of Scotland.74 This book is one of the major pieces of writing on criminal law in the English-speaking world and its influence has been felt well beyond Scotland. It is not a re-working or updating of Hume but a statement of general principles of criminal law along with detailed discussions of the main offences in Scot criminal law. It is characterised by a theoretical rigour, integrating the writings of philosophers such as Gilbert Ryle, J  L Austin, and Wittgenstein. A major influence was the work of Glanville Williams on English law, especially in relation to the need to understand mens rea primarily in a subjective sense but Gordon adopts a more nuanced approach to this issue than did Williams. Gordon accepts that intention as a form of mens rea must be subjective in nature but he argues that issues of interpreting and proving intention lessen the force of a subjective/objective distinction.75 But, like Williams, Gordon did accept (at least in the context of murder) that recklessness should be understood subjectively, as otherwise the idea would collapse into negligence. Though Gordon was willing to depart from Hume on the content of the law of homicide, in large part he follows the structure of the discussion set down by his predecessor in the chair of Scots law. Gordon’s book begins with a consideration of general issues relating to criminal law (the general part), which is followed by an examination of specific offences. Like Hume, Gordon does not take murder as his first topic, which is instead offences of dishonesty. The next part deals with non-sexual offences involving injury, and it is the second section of that part which considers homicide. Chapter 23 (of the first edition) considers murder. This chapter sets out in some three or four pages a discussion of homicide in general, including classes of homicide, largely on the Humean pattern. 74 The first edition was published in 1967, the second in 1978. The third edition (volume 1, 2000; volume 2, 2001) was edited by M G A Christie. 75 The key writing here is G H Gordon, “Subjective and objective mens rea” (1974-1975) 17 Crim LQ 355, a paper which shows a distinctly Wittgensteinian influence.

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When discussing murder as such Gordon suggests a distinction between “voluntary” murder (characterised by the presence of an intention to kill) and “involuntary murder” where there is no such intention.76 At the end of this chapter he moves on to discuss “justifiable homicide” but this is brief, and the topic of self-defence is dealt with on its own in the following chapter. The next chapter considers so-called “voluntary” culpable homicide but this chapter focuses on provocation; other partial or reductive defences to murder which can result in voluntary culpable homicide, such as diminished responsibility or intoxication,77 are dealt with in other parts of the book. The following chapter deals with “involuntary” culpable homicide, and the d ­ iscussion considers the three categories of lawful conduct culpable homicide; assault culpable homicide; and “other” unlawful conduct culpable homicide. The general theme running through the discussion of homicide, especially murder, is that Scots law is uncertain and at times difficult to state. Gordon recognises that its flexibility has advantages but his attitude towards this flexibility is never entirely free from ambiguity.78 But certain issues are dealt with more on general principle than as according with the dicta of decided cases. Gordon would agree with those judges who have described murder as a heinous crime,79 but the conclusion he draws is subtly different. Because murder is the most heinous of crimes, it must be confined to circumstances which accord with this description. On one particular issue Gordon’s views have been clear and unwavering, namely that the mental element of murder (and hence of the scope of the crime) must be read narrowly. Clearly, intention to kill suffices, but in the absence of such intention there must be an intention to cause injury in circumstances amounting to a display of wicked recklessness. At times there has been a tendency to use the idea of wicked recklessness loosely as embodying an objective judgment of the accused’s conduct. But this is not Gordon’s approach. For him the paradigm case of murder is where there is intention to kill. But where there is intention to cause injury, there may also 76 “It is undisputed that murder can be committed unintentionally, that is to say, without any intention to kill the deceased” (G H Gordon, The Criminal Law of Scotland, 1st edn (1967) 679). 77 This position reflects the then rule that an accused who killed, but by reason of intoxication could not form the intention to kill or do serious injury, could not be convicted of murder but only of culpable homicide. This rule was critically examined by Gordon, Criminal Law, 1st edn (n 76) 357-362. It was removed by the decision in Brennan v HM Advocate 1977 JC 38. 78 “The absence of an academically satisfactory definition of murder is, however, perhaps but a small price to pay for the practical advantage of flexibility”: Gordon, Criminal Law, 1st edn (n 76) 683. 79 See e.g. dicta at n 3.

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be circumstances which make the accused’s state of mind morally equivalent to that of someone who intends to take life:80 Murder is the most heinous of all crimes, and cannot be present in the absence of wickedness and depravity. Such wickedness and depravity is clearly present where the killing was intentional; where the killing was unintentional but caused by an assault these qualities must be found in the nature of the assault, which must exhibit “wicked recklessness”. Recklessness is therefore not so much a question of gross negligence as of wickedness. Wicked recklessness is recklessness so gross that it indicates a state of mind which is as wicked and depraved as the state of mind of a deliberate killer.

In HM Advocate v Purcell81 an accused was charged with murder where it was alleged that a boy had been killed after he was struck by a car which the accused had been driving in a dangerous manner but where the accused had not any intention to injure the boy. The court held that the absence of such intention meant that the accused’s conduct did not amount to murder, and expressly approved this passage (and others) in Gordon’s book.82 Clearly there are issues still to be resolved as to the scope of the crime of murder in Scots law. But for many of these the writings of Sir Gerald Gordon will usually be the first word, and often the final word, in finding the solution.

80 Gordon, Criminal Law, 1st edn (n 76) 683 (emphasis added). This passage has remained virtually unchanged in later editions (see The Criminal Law of Scotland, 2nd edn (1978) para 23-17; Gordon, Criminal Law para 23.19). Gordon has more recently re-affirmed this key point: “Murder has never been restricted to intentional killing, and I am far from persuaded that the acceptance of recklessness as a mens rea for murder arose out of the idea that intention could be inferred from recklessness. Be that as it may, it is clear that recklessness is an independent form of mens rea and not just evidence of intention. But the law does require some form of intention to support the basic requirement of wickedness, and the only form acceptable, at least nowadays, is an intention to cause physical injury: it is not any conduct displaying wicked recklessness but only wicked recklessness in the carrying out of such an intention, which makes homicide murder.” (Commentary on HM Advocate v Purcell 2007 SCCR 520 at 530). 81 2008 JC 131. 82 “And talking of the modern law we would comment, importantly, that it should be noted that the views expressed in regard to that domain in the 3rd edition of Gordon are those expressed in the 1st edition, published some forty years ago in 1967. Since that time they have represented the accepted views among jurists which have not been the subject of any subsequent challenge” (at para 16). The same passage was treated as significant in Petto v HM Advocate 2009 SLT 509 at para 11. That case involved a charge of murder where the accused had killed a man and then set fire to the flat where the victim lived. The fire spread throughout the building and killed a woman living in another flat. It was accepted that the accused must have known that other flats in the building would have been occupied at the time he started the fire. The case was remitted to a fuller bench on the issue of whether on these facts the accused had the mens rea of murder in accordance with the approach set out by Gordon. At the time of writing, the decision of the full bench was pending.

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E. APPENDIX: HONOURS CRIMINAL LAW SYLLABUS 1st term Week 1 Introductory Week 2 Devlin and Hart, I Week 3 Devlin and Hart, II Week 4-5 Euthanasia; abortion; drugs; obscenity Week 6 Theories of punishment Week 7 The need for mens rea (Wooton-Hart) Week 8 Definition of insanity Week 9 The need for an insanity defence Week 10 Persistent and dangerous offenders 2nd term Week 1 An introduction to mens rea Week 2 Subjective and objective mens rea Week 3 Some Australian cases[83*] Week 4 Negligence and error Week 5 Intoxication and automatism Week 6 General defences Week 7 Criminal procedure: arrest and search Week 8 Criminal procedure: statements

83 [* The Australian cases are Ryan (1966-67) 40 ALJR 488; Vallance (1961) 108 CLR 56; MamotaKulang (1964) 111 CLR 62; Timbu Kulian (1969-70) 119 CLR 47; and Pemble (1971) 124 CLR 107.]

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14  Witness Anonymity in the Criminal Process Ian Dennis A. the problems presented by witness anonymity B. the defendant’s right to “confrontation” ­deconstructed C. prioritising confrontation: a critique of davis D. the “sole or decisive evidence” principle: A critique of the strasbourg jurisprudence E. the 2008 act F. conclusion It is a privilege to have been invited to contribute to this Festschrift in honour of such a distinguished criminal lawyer. Gerald Gordon’s work has had a major impact on the thinking of many scholars and practitioners, not only in Scotland but south of the border also, and indeed in many jurisdictions overseas. His work has spanned criminal procedure and evidence as well as the substantive criminal law, and it is in the area of criminal process that I am delighted to offer this contribution. My subject is witness anonymity. Its focus is witnesses who provide evidence adverse to a defendant in a criminal trial, but whose identity is sought to be withheld from the defendant. The chapter attempts to answer two key questions. First, what problems does non-disclosure of a witness’s identity raise for the defendant and for the criminal process generally? Second, how should these problems be resolved? What is the appropriate response to a request for anonymity? We shall see that although the problems are not difficult to identify, they raise fundamental issues about our understanding of fairness in criminal process and about the extent of a defendant’s rights under article 6 of the European Convention on Human Right (ECHR). The responses to these issues which have been given recently by the House of Lords, the European Court of Human Rights, and the Westminster Parliament are all open to criticism. I will argue that the statutory scheme for 241

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the regulation of anonymity introduced in England in 2008 comes closest to a satisfactory solution, but it needs reshaping. Although witness anonymity has not yet presented major difficulties for Scots law1 the debate has direct relevance to the Scottish context. Provisions virtually identical to the English legislation are included in the current Criminal Justice and Licensing (Scotland) Bill. In due course the issues discussed in this chapter will be engaging the attention of many Scots criminal lawyers. Before setting out my argument in more detail I should explain the context of the contemporary debate in England about witness anonymity and the reasons why the subject has assumed such current importance. The problems associated with witness anonymity are not of course new. They have an extensive and chequered history which has been dated back to at least the Roman Empire, and which takes in such notorious institutions as the Court of Star Chamber and the Catholic Inquisition on the way to the present day.2 But the issue took on renewed significance in England in 2008 as a result of the decision of the House of Lords in R v Davis.3 In that case the House of Lords unexpectedly held that anonymity orders made in respect of three prosecution witnesses who gave decisive identification evidence against the defendant amounted to an unlawful constraint on the conduct of the defence and rendered the trial unfair. This decision cast doubt on the legality of virtually all witness anonymity orders which the English courts had purported to make under their inherent jurisdiction at common law. It thus threatened to bring to an abrupt end a growing trend in England towards witness anonymity, based on a perceived rise in the incidence of witness intimidation. The decision provoked consternation amongst police and prosecutors, who expressed alarm that numerous trials would have to be abandoned.4 Jack Straw, the Secretary of State for Justice, promised swift Government intervention to restore legality to anonymity orders, and this duly materialised in the form of the Criminal Evidence (Witness Anonymity) Act 2008.5 The   1 There appears to be only one reported case: HM Advocate v Smith 2000 SCCR 910, discussed by L Sharp, “Anonymous witnesses” 2009 SCL 1.   2 There is a concise account of the history in the article by D Lusty, “Anonymous accusers: an historical and comparative analysis of secret witnesses in criminal trials” (2002) 24 Sydney LR 361.   3 [2008] UKHL 36, [2008] 1 AC 1128.   4 A survey by the Crown Prosecution Service gave a figure of some 380 anonymous witness cases pending at the time of Davis: see a Ministry of Justice Briefing Note dated 4 July 2008, cited in D Howarth, “The Criminal Evidence (Witness Anonymity) Act 2008” [2008] Archbold News 8, 6.   5 The Act received Royal Assent on 21 July 2008 and came into force on that day. It has a “sunset” clause (s 14), whereby the power to make anonymity orders will expire on 31 December 2009. Chapter 2 of Part 3 of the Coroners and Justice Act 2009 replaced the 2008 Act with largely identical provision for witness anonymity orders from 1 January 2010.

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legislation provides courts with a considerable degree of discretion as to the making of anonymity orders. It is clear from the history and the terms of the legislation that such orders are not intended to be made only in a limited class of cases where a witness’s evidence is of formal or marginal significance. However, even in these cases, and certainly where the evidence may make a significant contribution to the defendant’s conviction, an application for an anonymity order will continue to raise the kind of questions about the fairness of the defendant’s trial that have concerned not only the English courts but also the European Court of Human Rights in Strasbourg. In R v Davis the House of Lords resolved the questions of fairness by reference to a defendant’s right at common law to confront witnesses against him. The anonymity orders were held to be irreconcilable with the longstanding right to confrontation. The decision in Davis was thus not founded on, although it was reinforced by, the jurisprudence of the European Court of Human Rights. A line of cases in Strasbourg6 holds that the use of anonymous evidence is not necessarily incompatible with a defendant’s right to a fair trial under article 6 of the ECHR. But the court has insisted that counterbalancing measures should be in place to compensate for the handicaps to the defence, and crucially, the court has maintained on several occasions that anonymous evidence may not constitute the sole or decisive evidence on which the defendant is convicted. The principle was reiterated by the court as recently as January 2009 in a leading case dealing with hearsay evidence, Al-Khawaja v UK,7 to which we shall return. In answering the two questions set out above I intend to argue four points. The first is a claim that the problems associated with witness anonymity are not all of a piece. They embrace different types of case and are more complex than either the House of Lords or the European Court of Human Rights have acknowledged. Certainly it is the case that anonymity presents the criminal process with conflicts of rights. But it is important to note that these conflicts can differ. They are usually portrayed as a clash between the rights of defendants and witnesses for the prosecution. But it may be a witness for a co-accused who seeks anonymity, and that gives rise to a further conflict between the rights of two defendants. Second, I will suggest that the priority given by the House of Lords in  6 Kostovski v Netherlands (1989) 12 EHRR 434; Windisch v Austria (1990) 13 EHRR 281; Ludi v Switzerland (1992) 15 EHRR 173; Doorson v Netherlands (1996) 22 EHRR 330; van Mechelen v Netherlands (1997) 2 BHRC 486; Visser v Netherlands (App No 26668/95) 14 February 2002; Birutis v Lithuania (App No 47698/99) 28 March 2002; Krasniki v Czech Republic (App No 51277/99) 28 February 2006.  7 Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.

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Davis to the right to confrontation was inadequately justified, and fails to provide a satisfactory resolution of the problems of anonymity. This is because confrontation is not a unitary right of well-defined content that should command a self-evident priority. It is a convenient term for a bundle of different although related rights, none of which is absolute. We find that in all its forms the supposed right of confrontation is subject to exceptions and qualifications. Moreover, invoking a right of confrontation for a defendant against prosecution witnesses does not address adequately a conflict of rights between co-defendants. Third, I will argue that the limitation placed by the European Court of Human Rights on anonymous witness evidence – that such evidence should not be the sole or decisive evidence for conviction – is arbitrary and overinclusive. It is based on an inconsistent application of the rationales of the right to examine witnesses under article 6, and should be rejected as a limiting principle. Finally, I will note that the recent English legislation adopts a contextsensitive approach to witness anonymity. This is a preferable approach, but it is based on a principle of balancing which takes insufficient account of the importance of defence rights. Under the legislation these are simply “relevant considerations”. Their role is to act as a possible constraint on the operation of a principle of necessity for witness anonymity, and they are freely tradeable against other factors. I will suggest that it would be better to justify or reject restrictions on defence rights of confrontation, such as anonymity, according to a principle of proportionality. This approach has been accepted in relation to other defence rights under article 6, and there is no good reason why it should not apply in this context also. A. THE PROBLEMS PRESENTED BY WITNESS ANONYMITY In considering the problems presented by witness anonymity we should distinguish three groups of cases. The first group comprises prosecution witnesses who are civilians. They may be the victims of the offence charged against the defendant, or they may be eyewitnesses of the offence, or witnesses who can give other relevant evidence for the prosecution. Witnesses in this group may seek anonymity because they fear reprisals if their identity becomes known to defendants against whom they give incriminating evidence. They may or may not know the defendant personally, but quite often they are members of the same community or live in the same area. They may feel intimidated by a climate of fear created by the defendant and his associates. The problem for

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the prosecution is that without anonymity they may refuse to testify, or even to make a witness statement to the police. The second group comprises prosecution witnesses who are police officers or other law enforcement agents working under cover. These witnesses present a further problem. Like civilian witnesses they may fear that revealing their identity may expose them to the risk of reprisals, particularly where they are investigating organised crime or violent drug dealers. In addition their superiors may be concerned not to imperil their use for future operations.8 Police authorities may feel they have to drop prosecutions in many cases of proactive investigations rather than risk their agents’ cover being blown. If the security of undercover agents were to be compromised the police would stand to lose valuable assets in whom they had invested substantial resources. The problems for the administration of justice are then obvious. If prosecution witnesses in these first two types of case will not testify through fear of reprisals, or because of a desire not to compromise the value of an undercover agent, it may become difficult or impossible to enforce the criminal law against the defendants who inspire that fear,9 or against suspects who might be investigated by undercover agents. Defendants and suspects may acquire effective immunity from criminal process in this way; and the stronger the fear they inspire, the better they may be protected. Such a state of affairs challenges the rule of law, and it may result in the state failing to deliver justice to victims of crime, with the well-known consequential dangers that follow. The third group comprises witnesses for the defence. A problem can arise where one defendant wishes to call a witness in his defence whose evidence will have the effect of incriminating a co-defendant. For example, D1 might wish to call W to testify that it was not D1 who stabbed V in a nightclub but D2, who might be another member of the same group, or a member of a rival gang. W may have a well-founded fear of reprisals from D2 or his associates in these circumstances. Where it is a witness for a co-accused who is unwilling to give evidence on his behalf without the protection of anonymity, a different kind of failure of justice may arise. A refusal of anonymity may mean that the co-accused cannot adduce vital evidence to establish his innocence. There is then a danger of miscarriage of justice to the co-accused. On the other hand, a defendant who does not know the identity of a witness against him may be significantly handicapped in responding to the   8 See the discussion by the Court of Appeal in R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR 1915 at paras 30-35.   9 As Judge LJ put it in the Court of Appeal in R v Davis [2006] EWCA Crim 1155, [2006] 1 WLR 3130 at para 10: “[the climate of fear] serves to silence, blind and deafen witnesses. Without witnesses justice cannot be done”.

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witness’s evidence. From the defendant’s point of view this applies equally whether the witness is called by the prosecution or a co-accused. In either case the effect of adverse evidence against him may be to increase the likelihood of conviction. The defendant may still challenge the witness’s credibility and the reliability of her evidence, but challenges to credibility in particular may be much more difficult if the witness is anonymous. The ability to crossexamine the witness, with a view to bringing out the witness’s bad character and lack of credibility may be significantly limited. The risk of a miscarriage of justice to the defendant may be thereby increased. The defendant’s objection to anonymity can be reinforced by a claim that his right to a fair trial under article 6 of the ECHR has been violated because his right to examine witnesses against him10 has not been respected. At this point we should clarify the nature of the challenges that witness anonymity presents for human rights law. Since the landmark decision of the European Court of Human Rights in Doorson v the Netherlands11 it has been accepted that the rights of victims and witnesses under articles 2, 3 and 8 of the ECHR may be engaged by the operation of a member state’s criminal process. Where there is a risk of reprisals, the substantive rights of victims and witnesses under these articles may be imperilled by the state’s decision to call them to testify against the defendant. The state therefore comes under a duty to take this into account in organising its criminal process, with implications for article 6. As the court put it in Doorson: “Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”12 A state that insisted on revealing a person’s identity when calling her as a witness in the face of a well-founded fear of reprisals might accordingly risk violating one or more of her substantive rights. Judges have sometimes described this situation as giving rise to a “real problem of conflict of rights”.13 However, we should note that the “conflict” here is between different rights. The defendant’s right to measures guaranteeing a fair trial, where his liberty and reputation are at stake, is set against the rights of victims and witnesses to measures to protect their lives, freedom from inhuman and degrading treatment, and their privacy and family life. 10 Article 6(3)(d). 11 (1996) 22 EHRR 330. 12 At para 70. 13 By Sir Ninian Stephen, a judge of the International Criminal Tribunal for the former Yugoslavia, in “International Criminal Law and its Enforcement” (2000) 74 Australian LJ 439. See also R v Hines [1997] 3 NZLR 529 at 551 per Gault J. In R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR 1915 at para 6 the Court of Appeal preferred to speak of the “delicate balance” between the rights of defendants and witnesses.

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In this kind of conflict we might think it clearly possible to privilege one set of measures over the other. For example, life might plausibly be thought to be a weightier interest than liberty. Ashworth and Redmayne argue that the ECHR does in fact recognise a hierarchy of rights, namely non-derogable rights (such as those under articles 2 and 3), strong rights (such as those under articles 5 and 6), and qualified rights (such as those under articles 8-11).14 This might suggest that in a situation of conflict at trial, the rights of witnesses should prevail over those of the defendant, at least where there is a real risk to a witness’s life. But the cases show that the European Court of Human Rights does not adopt this order of priorities. If anything it reverses the apparent priorities by asking whether interference with the defendant’s rights under article 6 can be justified.15 The situation of the co-accused presents a further and more intractable conflict. A defence witness’s substantive interests are the same as those of a prosecution witness. Her substantive interests are equally engaged where the state permits a defendant to call her as a witness where her evidence may lead to reprisals from the defendant or his associates. But suppose she refuses to testify because the court will not grant her anonymity, in the interests of protecting the defendant’s right to examine a witness against him. Can the co-accused now claim that his own article 6 right to call witnesses on his own behalf has been violated? If the state could protect that right by granting anonymity, how can it justify its refusal? This further conflict is between two rights of the same order. The co-accused’s process right to call witnesses is set against the defendant’s process right to examine witnesses. Prioritisation according to the nature of the interest to be protected is not therefore possible. B. THE DEFENDANT’S RIGHT TO “CONFRONTATION” DECONSTRUCTED Having set out the problems presented by anonymity we may now turn to the significance attached to the right to confrontation. In R v Davis the House of Lords identified what Lord Bingham described as “a long established principle of the common law that the defendant in a criminal trial should be confronted by his accusers”.16 In discussions of criminal trials a defence right of “confrontation” of accusing witnesses is frequently invoked as a key 14 A Ashworth and M Redmayne, The Criminal Process, 3rd edn (2005) 35 ff. 15 See the cases cited at n 6 above. 16 [2008] UKHL 36, [2008] 1 AC 1128 at para 5.

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element of due process. The most prominent reference is to be found in the “Confrontation Clause” in the Sixth Amendment to the US Constitution. This guarantees the accused in a criminal prosecution the constitutional right “to be confronted with the witnesses against him”. In the influential New Zealand case of R v Hughes Richardson J described the right to confront an adverse witness as “basic to any civilised notion of a fair trial”.17 Lusty refers to the right of confrontation as “a central and defining feature of the adversarial system of criminal trial”.18 Costigan and Thomas state that it is a right of “prime importance”.19 However, it is clear that judges and commentators understand different things by the term “confrontation”. This term is a convenient and evocative descriptor, but when we look more closely at what its users take it to be describing there is no common conception. It is not a unified right of generally agreed content. “Confrontation” should rather be understood as a term capable of referring to one or more of a bundle of rights. These are closely linked, but it is helpful to distinguish between them. This is because they emphasise different aspects of the testimonial process in a criminal trial, and they also differ in their strength. None is absolute in any strong sense. They all have certain limitations and qualifications. In summary20 I suggest that “confrontation” may be used to refer to any or all of four possible “rights”. First, there is the right to public trial, meaning that witnesses should give their evidence in public rather than having it taken in private and then reported to the court. This right is given effect in article 6(1) of the ECHR, but is subject to significant exceptions.21 Second, there is the right to face-to-face confrontation, meaning that a defendant is entitled to have an accusing witness give her evidence in the defendant’s presence and subject to his scrutiny. This right forms part of the defendant’s right to confrontation under the US Sixth Amendment, but it is not recognised in English law,22 nor is it guaranteed by article 6.23 Third, there is the right to cross-examination of a witness against the ­defendant. This is widely regarded as fundamental. Article 6(3)(d) states that 17 [1986] 2 NZLR 129 at 148. 18 Lusty (n 2) 361. 19 R Costigan and P Thomas, “Anonymous witnesses” (2000) 51 NILQ 326 at 328. 20 I examine the right to confrontation in more detail in “The right to confront witnesses: meanings, myths and human rights” [2010] Crim LR 255. What follows here is a brief outline of the key points. 21 These include in camera hearings, numerous cases of admissible hearsay statements, and some types of special measures for vulnerable witnesses. 22 R (D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at para 14; Grant v The Queen [2006] UKPC 2, [2007] 1 AC 1 at para 20. 23 R (D) v Camberwell Green Youth Court at para 15.

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one of the minimum rights of a defendant is to examine witnesses against him. But the right is in no sense absolute. It is subject to significant limitations. The defendant may be restrained from cross-examining certain witnesses24 in person, and from asking certain types of question,25 and may have no opportunity to ask any questions of the maker of an admissible hearsay statement. It is also important to note two rather different rationales for the right of cross-examination. One is its instrumental role as a technique for testing the reliability of evidence and for enabling the factfinder to make an informed decision on the weight to be attached to the evidence. The other is its role as a process value, enabling the defendant to participate fully in the presentation of the evidence to the factfinder. The defendant’s autonomy and dignity is acknowledged by allowing his voice to be heard to the maximum extent, irrespective of the effect of the cross-examination on the reliability of the evidence and the likely outcome of the case. Fourth, there is the right to know the identity of the accuser. This is the form of the right to confrontation which is at the heart of the debate about witness anonymity. In a sense the other three forms of confrontation – public justice, face-to-face engagement and cross-examination – can all take place without knowledge of the witness’s identity. The witness can turn up in court, be “eyeballed”26 by the defendant and be questioned by him without the defendant necessarily knowing who the witness is. But it is fairly obvious that in many cases a crucial dimension of confrontation may be missing. We can start with the point that knowledge of identity may be instrumentally critical in facilitating cross-examination. Cross-examination as to credibility will be much more difficult if the defendant is unable to investigate the witness’s background and reputation.27 If the essence of the defence is that the defendant has been framed by his accusers, the anonymity of the accusers may make that defence virtually impossible to support. 24 Notably children and complainants of sexual offences. For England see the Youth Justice and Criminal Evidence Act 1999 ss 34-39, and for Scotland see the Criminal Procedure (Scotland) Act 1995 ss 288C-288F. 25 The “rape shield” legislation found in virtually all common law jurisdictions is a clear example. For England see the Youth Justice and Criminal Evidence Act 1999 ss 41-43, and for Scotland see the Criminal Procedure (Scotland) Act 1995 ss 274-275. 26 A term memorably coined by J R Spencer and R Flin, The Evidence of Children: The Law and the Psychology, 2nd edn (1993) 79. 27 Alford v United States (1931) 282 US 687; Lord Diplock, Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cmnd 5185: 1972) para 20. In Smith v Illinois (1967) 390 US 129 at 131, the Supreme Court declared “The witness’s name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself”.

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Furthermore, the defendant will not be in a position of equality for the purposes of face-to-face confrontation if he is faced with an unknown accuser.28 And where the anonymity order also includes screening the witness and modulating her voice, the face-to-face aspect of confrontation shrinks to vanishing point. Finally, reliance by prosecuting authorities on anonymous witnesses, especially when anonymity is combined with private accusation through hearsay evidence, may open the door to the possibility of state abuse and oppression. Folk memories of the practices of the Court of Star Chamber in England, and of the Inquisition in continental Europe, are still potent in evaluating the importance we attach to knowledge of identity. In modern times the McCarthyite “loyalty security” programmes in the US, which generally relied on sources of information and witnesses whose identity was concealed from the defendant, attracted severe criticism of their process.29 Jackson J commented in Knauff v Shaughnessy “the plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected”.30 C. PRIORITISING CONFRONTATION: A CRITIQUE OF DAVIS As noted above, in R v Davis the House of Lords was in no doubt that a longstanding right to confrontation existed at common law, but their Lordships appear to differ in their understanding of the right. The terms of the speech of Lord Bingham suggest that he considered it to comprise three elements of the above analysis, namely the rights to public trial, cross-examination of an adverse witness, and knowledge of the witness’s identity. On the other hand Lord Carswell and Lord Mance discussed confrontation in terms of the rights to cross-examination and knowledge of identity (the third and fourth elements), and considered the right to public trial to be a separate principle. None of their Lordships thought that the English right included the second element, namely the right to face-to-face confrontation embodied in the Sixth 28 In Lee v Illinois (1985) 476 US 530 at 540, Brennan J commented “the Constitution provides certain safeguards to promote to the greatest possible degree society’s interest in having the accused and accuser engage in an open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown – and hence unchallengeable – witnesses”. 29 Lusty (n 2) 377-378. 30 (1950) 338 US 537 at 551. See also W O’Brian, “The right of confrontation: US and European perspectives” (2005) 121 LQR 481 for a forceful restatement of the dangers of state manipulation of evidence in the process of case construction.

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Amendment. A contrast with both the views taken in R v Davis is seen in the statement of the Court of Appeal in the recent case of R v Horncastle, where Thomas LJ referred to the “ordinary rule … that witnesses are examined in court – often described as the right of confrontation”,31 seemingly combining the first and third elements. Putting to one side this conceptual incoherence, it is clear that in Davis the House of Lords attached great strength to the right to confrontation at common law which they identified. Their Lordships regarded it as an essential element of a fair trial at common law. They thought the right was violated, and the trial rendered unfair, where as in the case itself the ­conviction was based solely or decisively on the statements or testimony of anonymous witnesses. Moreover it appears that they thought the force of the right would extend to ruling out almost all anonymous evidence. They stopped just short of making the right to confrontation an absolute priority by saying that anonymity might be justified in a case such as R v Murphy and Maguire.32 This was a Northern Ireland case where the Court of Appeal in Northern Ireland upheld anonymity orders for television journalists who gave evidence in a trial arising from the murder of two army corporals in Belfast. Their evidence was largely formal, being the identification of certain television footage of the incident. It did not itself implicate the defendants in the murder and the credibility of the journalists was not in issue. Accordingly, the case was not much of an inroad into the common law right to know the identity of the accusers; nevertheless Lord Brown described it as coming close to the limits to which the courts should go in permitting invasion of the right.33 However, the right to confrontation was given this degree of strength with limited and unpersuasive supporting justification. Their Lordships were content to assert the historical importance of the right at common law, largely relying on institutional writers whose main focus was on the importance of public trial,34 and on the absence of recommendations for anonymity in the Diplock35 and Gardiner36 reports in the 1970s into terrorism in Northern Ireland.37 Much emphasis was laid on the value of cross-examination as a 31 [2009] EWCA Crim 964, [2009] 2 Cr App R 15 at para 33. 32 [1990] NI 306. 33 [2008] UKHL 36, [2008] 1 AC 1128 at para 65. 34 See Davis at para 5 per Lord Bingham. 35 Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (n 26). 36 Report of a Committee to Consider, in the Context of Civil Liberties and Human Rights, Measures to Deal with Terrorism in Northern Ireland (Cmnd 5847: 1975) ch 2 para 55. 37 [2008] UKHL 36; [2008] 1 AC 1128 at para 6.

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technique for determining the reliability of anonymous witness evidence, and the handicaps that anonymity would impose on its use for this purpose. This suggests an adoption of the instrumental rationale of cross-examination as a key element of confrontation, but this was not made explicit. There was no attempt to ground the strong view of confrontation in any theory of criminal process. Nor was any satisfactory attempt made to account for the cases where hearsay evidence is admissible in criminal proceedings. Even at common law there were numerous exceptions to the rule against hearsay. The existence of these cases calls into serious question the alleged strong right to confrontation, but their Lordships were content to note simply that admissible hearsay statements are now authorised by statute in England38 and that there is a discretion to exclude them if admission will result in unfairness to the accused.39 The possibility that the defendant’s right to confrontation could be balanced against other interests according to a principle of necessity was discussed in a number of the speeches. Lord Carswell was in a minority of one in considering that the law currently allowed for it.40 Lord Rodger41 thought that the law did not, but that Parliament could address the problem of witness intimidation by making statutory modifications to the common law principle. Lord Mance agreed that any further relaxation of the common law beyond the “exceptional” circumstances in a case such as R v Murphy and Maguire was a matter for Parliament.42 He added that his review of the Strasbourg case law suggested that there was sufficient flexibility in the ECHR to allow for this.43 Given this conclusion, which was accepted by Lords Bingham, Carswell and Brown,44 it is surprising that none of their speeches referred at any point to the concept of proportionality. This concept has been said to be inherent in the whole of the Convention as part of the framework for determining the scope and limits of Convention rights.45 It has been deployed by the Privy Council46 and the House of Lords47 in other leading cases which have considered the relationship of article 6 and the domestic law of evidence. It may be that the focus in Davis on the common law enabled the House of Lords to 38 Under the provisions of ch 2 of Part 11 of the Criminal Justice Act 2003. 39 [2008] UKHL 36, [2008] 1 AC 1128 at para 20 per Lord Bingham and para 57 per Lord Carswell. 40 Para 59. 41 Para 44. 42 Para 98. 43 Paras 84-87 and 95. 44 Paras 25, 58 and 66 respectively. 45 Sporrong and Lonroth v Sweden (1983) 5 EHRR 35 at para 69; Soering v United Kingdom (1989) 11 EHRR 439 at para 89. 46 Brown v Stott [2003] 1 AC 681. 47 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45; Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264.

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avoid engagement with proportionality, or it may be that the omission simply reflected the Strasbourg jurisprudence itself. This point will be discussed further in the next section. Finally, in relation to the different problems presented by witness anonymity, the House of Lords made no distinction between civilian and police witnesses. The latter were not in issue in the case, but they were involved in one of the authorities considered by the court,48 so their existence must have been taken into account in the decision. However, the proposition that the defendant had a common law right to confront his accusers was stated in unqualified terms. It appears it did not depend on the status of the accuser. Is it then equally immaterial that the anonymous witness is called for a co-accused rather than the prosecution? This is unclear. The possibility is simply not addressed at any point in Davis, and this is a further reason for regarding the insistence on a broad quasi-absolute right to confrontation as unsatisfactory. D. THE “SOLE OR DECISIVE EVIDENCE” PRINCIPLE: A CRITIQUE OF THE STRASBOURG JURISPRUDENCE The European Court of Human Rights has found violations of the fair trial guarantee in a number of cases where the defendant’s conviction was based solely or decisively on the pre-trial statements or the testimony of anonymous prosecution witnesses.49 The court appears to take the view that “counterbalancing” measures are insufficient to compensate the defendant for the difficulty of cross-examining anonymous witnesses in such cases. It is important at this point to note that the court has frequently stated that the same principle applies to hearsay evidence, where the witness is identified but absent from the trial and so unavailable for cross-examination.50 The Court of Appeal in England has recently criticised this equating of the two situations. In R v Horncastle51 the court gave its response to the reaffirmation by the European Court of Human Rights in Al-Khawaja and 48 This was R v Liverpool Magistrates’ Court ex p DPP (1996) 161 JP 43, in which the Divisional Court allowed an application by the DPP for judicial review of a decision to refuse anonymity for undercover police officers testifying in a drugs case. 49 Kostovski v Netherlands (1989) 12 EHRR 434; Windisch v Austria (1990) 13 EHRR 281; van Mechelen v Netherlands (1997) 2 BHRC 486; Krasniki v Czech Republic (App No 51277/99) 28 February 2006. 50 Unterpertinger v Austria (1986) 13 EHRR 175; Saidi v France (1993) 17 EHRR 251; PS v Germany (2003) 36 EHRR 61; Luca v Italy (2003) 36 EHRR 807. 51 [2009] EWCA Crim 964, [2009] 2 Cr App R 15. The judgment of the Court of Appeal was ­subsequently approved by the Supreme Court in R v Horncastle [2009] UKSC 14.

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Tahery v UK52 of the “sole or decisive evidence” principle as a limit on the admissibility of hearsay evidence. The Court of Appeal robustly rejected the principle, in effect challenging Strasbourg to think again. It held that hearsay evidence may fairly be relied on for conviction of the defendant, even where it is the critical evidence, provided that the evidence is either demonstrably reliable, or there are proper means available of assessing its reliability, thereby providing counterbalancing measures that respect the rights of the defence. The court went on to say, however, that different considerations apply to anonymous witnesses.53 This is dubious. Of course the two situations are different in one respect: the maker of a hearsay statement is generally identified but absent from the trial, whereas an anonymous witness is generally present but unidentified. But the situations merge in the case of anonymous hearsay, where the witness is both unidentified and absent. More importantly a common factor exists where it is sought to admit the hearsay statement of a witness in fear of testifying. Fear of the witness is, as we have seen, the main reason for requests for anonymity. The effect of allowing for anonymity or for the admission of a hearsay statement is in both cases to affect adversely the defendant’s right to examine witnesses against him. The same question arises therefore of the limits of the attrition of the right. How far can it be adversely affected before the right to a fair trial is violated? I suggest therefore that the European Court of Human Rights is not wrong in treating the two situations as comparable in principle. The problem is not, pace the Court of Appeal, that the situations of anonymity and hearsay are different, it is that the Strasbourg solution to the common problem is wrong. The reason why it is wrong is that it represents an arbitrary and unacknowledged shift of rationale for the right of cross-examination under article 6. When the court requires that counterbalancing measures be in place when hearsay or anonymous evidence is admitted, it is concerned with the adequacy of replacement procedures for testing the reliability of the evidence. But, as the Court of Appeal has demonstrated in Horncastle, the reliability and the importance of the evidence are separate issues.54 Hearsay evidence may be critically important, but if it is demonstrably reliable or we have satisfactory procedures for estimating its reliability, why should it be unfair to the ­defendant to act upon it? 52 (2009) 49 EHRR 1. At the time of writing this decision of the Fourth Section has been referred to the Grand Chamber of the European Court of Human Rights. The hearing is awaited. 53 [2009] EWCA Crim 964, [2009] 2 Cr App R 15 at paras 31 and 48-51. 54 Paras 60-64.

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The answer according to the European Court of Human Rights is that it is unfair to convict the defendant on “untested” evidence where that is the sole or the decisive evidence in the case.55 But this notion of testing seems to be founded on the conception of cross-examination as a process value, not as an instrument for determining reliability. The principle seems to be that the defendant should not be convicted largely on the strength of evidence from witnesses whom he has not had the opportunity to examine.56 The right to a fair trial seems to be violated in such a case irrespective of whether the opportunity was likely to have been valuable. To that extent, form is preferred to substance. It is not clear why such a principle should come into play when the evidence in question reaches a certain degree of importance, given that the inquiry up to that point has proceeded on the basis that cross-examination is a right of instrumental value. The court seems to have adopted an incoherent approach to the nature of the article 6 right. If the idea is that the right of examination of witnesses is a process right akin to the right of confrontation under the US Sixth Amendment then its impact should be determined by the nature of the evidence (whether it is “testimonial”),57 not its importance. There are other objections to the “sole or decisive” principle to limit the use of anonymous witnesses. First, it is over-inclusive and pays insufficient attention to the different types of problem that anonymous witnesses present. Absent an allegation of entrapment or of planting of evidence,58 it is not convincing to maintain that a defendant must always know the identity of an undercover police officer who gives decisive evidence against him. The defendant can question the officer under his or her assumed name about their dealings. If the principle is deployed to resolve a conflict between co-defendants, it will privilege the right of cross-examination of an adverse witness over the right of a defendant under article 6 to adduce evidence in support of his innocence of the charge. This seems hard to justify. Second, if the principle operates as a rule of admissibility of evidence, then it may present courts with an impossible test. The Court of Appeal argued in Horncastle that while it may be possible to identify cases where anonymous 55 Al-Khawaja and Tahery v United Kingdom (2009) 44 EHRR 1 at para 37 ff. 56 Para 36, where the court cites its earlier statement in Luca v Italy (2003) 36 EHRR 46 that “where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined … the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6”. 57 See Crawford v Washington (2004) 541 US 36. 58 When the officer’s personal history and circumstances might be relevant. Even then a prosecution duty of investigation of the witness might go a long way towards meeting defence concerns. See further below.

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or hearsay evidence is the sole evidence against the defendant, “[n]o one can know what evidence is decisive until the decision-making process is over. On no view can it be possible to rule in advance, at the stage when admissibility is in question, which evidence will be decisive …”59 This is overstating the point, since there may well be cases where, for example, there is a dispute about the admissibility of critical identification evidence from an anonymous witness or in the form of a hearsay statement, and the prosecution indicates that they could not continue without it. But the point will certainly hold good for many other cases. The principle is equally problematic if considered as a rule of use of evidence rather than admissibility. In a jurisdiction where the factfinder does not give reasons for its decision how can we know what evidence it regarded as decisive? As noted earlier, in Davis Lord Mance suggested, after a close analysis of the European case law, that the “sole or decisive” principle is not absolute and that there might be scope for some modification of it.60 This was his cue for suggesting that Parliament might legislate to modify the common law right to confrontation so as to provide for anonymity orders, while still staying on the right side of article 6.61 It is doubtful whether his suggestion of flexibility in the Strasbourg approach has survived the emphatic reaffirmation of the principle in Al-Khawaja and Tahery v United Kingdom. The European Court of Human Rights seems in effect to have laid down a general rule of evidence, in apparent contradiction of its repeated claims that it is concerned only with the fairness of individual trials and that rules of evidence are matters for national legal systems.62 There is also a marked inconsistency in the court’s failure to consider the principle of proportionality in this context, when it has embraced it in considering restrictions on the scope of certain other article 6 rights.63 A possible position might have been that the right to examine adverse witnesses may be restricted in cases of conflict with other rights according to a principle of proportionality, but that restrictions may not be so extensive as to negate the “very essence” of the right. This is the position the court now appears to have adopted in relation to inroads into the privilege against self-incrimination.64 A merit of adopting the same approach to witness anonymity is 59 [2009] EWCA Crim 964, [2009] 2 Cr App R 15 at para 70. 60 [2008] UKHL 36, [2008] 1 AC 1128 at para 89. 61 Para 98. 62 See e.g. the clear statement in Schenk v Switzerland (1991) 13 EHRR 242 at para 46. 63 Ashingdane v United Kingdom (1985) 7 EHRR 528 (access to court); Janosevic v Sweden (2004) 38 EHRR 473 (reverse onuses). 64 O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21, although Professor Ashworth

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that it would require the court to identify what is the very essence of the right to examine witnesses. Is it the opportunity to test the reliability of the evidence, including examining the credibility of the witness? If it is, then it can be argued that if adequate alternative indications of reliability exist, or other means of testing reliability can be put in place, the handicaps to the defence are adequately compensated for even where the evidence is critically important. If on the other hand, the right of examination is regarded as a non-instrumental process right, analogous to the American principle of faceto-face confrontation, then all restrictions on it become problematic even where the evidence is not critically important. E. THE 2008 ACT The purpose of the Criminal Evidence (Witness Anonymity) Act 2008 (and its successor legislation in the Coroners and Justice Act 2009) is to provide statutory authority for the making of orders to secure the anonymity of witnesses in criminal proceedings.65 To that end section 1(2) of the 2008 Act abolishes the common law rules relating to the power of a court to make an order for securing that the identity of a witness is withheld from the defendant (or, on a defence application, from other defendants). Section 2(1) empowers a court to make an order that requires such specified measures to be taken in relation to a witness as the court considers appropriate to ensure that the identity of the witness is not disclosed. These measures include, but are not restricted to, withholding the witness’s name and other identifying details, the use of a pseudonym, a ban on questions that might lead to the identification of the witness, screening of the witness, and the use of voice modulation technology. Screening must still enable the witness to be seen by judge and jury, and voice modulation must still allow the witness’s natural voice to be heard by judge and jury. Section 4 of the Act provides for three conditions to be satisfied before a witness anonymity order can be made. First, the measures specified in the order must be necessary to protect the safety of the witness or another person or to prevent serious damage to property, or to prevent “real harm to the public interest” (section 4(3)).66 Second, having regard to all the circumstances, the taking of those measures would be consistent with the defenhas argued that the court did not embrace a broad “balancing” approach to proportionality in that case: see his Commentary at [2007] Crim LR 898. 65 s 1(1). 66 The concept of harm to the public interest will cover the danger that revealing the identity of police undercover officers will jeopardise their utility for future operations.

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dant receiving a fair trial (section 4(4)). Third, it must be necessary to make the order in the interests of justice by reason of the fact that it appears to the court that it is important that the witness should testify, and the witness would not testify if the order were not made (section 4(5)).67 In deciding on the first of these conditions the court must have regard to any reasonable fear on the part of the witness that if the witness were identified the witness or another person would suffer death or injury or there would be serious damage to property (section 4(6)). The court is further directed by section 5 to have regard to a number of “relevant considerations” in deciding whether the three conditions are met. These considerations are expressed to be: (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness has a tendency to be dishonest, or has any motive to be dishonest in the circumstances of the case, having regard to any previous convictions of the witness, and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than by making a witness anonymity order. These considerations go primarily to the fair trial condition since they mostly concern the importance of the witness’s evidence, its likely reliability, and the defendant’s ability to challenge it. It seems to follow from the considerations that the Act would not change the result in a case such as R v Davis. Where the evidence of the witness is potentially decisive, and the defendant would be hampered significantly by anonymity orders in conducting a defence that the witnesses in question had been put up to give false testimony against him, he would not receive a fair trial and the anonymity orders could not therefore be validly made.68 Given the recent affirmation by the European 67 Under s 88(5) of the Coroners and Justice Act 2009 the third condition is amended slightly to the effect that the court must be satisfied that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify, and the witness would not testify if the proposed order were not made, or there would be real harm to the public interest if the witness were to testify without the proposed order being made. 68 The Director’s Guidance on Witness Anonymity (August 2008, available at www.cps.gov. uk/­publications/directors_guidance/witness_anonymity.html), issued to the Crown Prosecution

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Court of Human Rights of the “sole or decisive evidence” principle, it is almost inconceivable that the court would not find a violation of article 6 if anonymity is granted where the essence of the defence is a frontal attack on the credibility of the identifying prosecution witnesses. Such a defence is virtually impossible to conduct if the identities of the witnesses are withheld. That said, we can be confident that the courts will not wish to restrict the operation of anonymity orders to particular types of case,69 or to cases where the evidence is of largely formal significance, as in R v Murphy and Maguire. There is nothing in the Act to support a very restrictive application of the power to make an anonymity order, and the legislative history, such as it is, suggests a Government intention to give the courts a considerable degree of latitude. Indeed, in the first case under the Act to reach the Court of Appeal, Lord Judge CJ went so far as to suggest that an anonymity order should not be made where the oral testimony is not potentially important.70 Moreover, the question whether the anonymous evidence would be the sole or decisive evidence against the defendant is stated in the Act to be only one of six relevant considerations in deciding whether the conditions for an order are satisfied. It is not one of the conditions that anonymous evidence should not be the sole or decisive evidence. It is not even a priority amongst the other relevant considerations. Similarly, the defendant’s “general” right to know the identity of a witness appears simply as one of the list of six “relevant considerations”. There is no indication that it has any priority or any special weight.71 The scheme of the Act appears therefore to treat this form of the right to confrontation as ­essentially negotiable according to the facts of the case. Of course this is subject to the condition that an anonymity order must be consistent with the defendant receiving a fair trial. But the meaning of “fair trial” is not defined in the Act. The only link with the jurisprudence of article 6 is the point just noted that the “sole or decisive evidence” principle is a relevant consideration, not a condition. This approach to witness anonymity requires a court therefore to engage in a context-specific balancing process. It is not a wholly unstructured process Service by the Director of Public Prosecutions, comments that where it is clear that the credibility of a witness may be in issue, and the witness’s evidence remains the sole or decisive evidence, it is unlikely that the defendant will be able effectively to cross-examine an anonymised witness. 69 In R v Powar and Powar [2009] EWCA Crim 594, [2009] 2 Cr App R 8 at para 63, the Court of Appeal rejected a submission that witness anonymity orders should be confined to cases of terrorism or gangland killings. 70 R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR 1915 at para 26. 71 Para 19.

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since it is subject to strict necessity requirements. An anonymity order must be necessary, not just desired or convenient, both to protect the witness or the public interest, and to secure her evidence where it is important that she should testify. In R v Mayers Lord Judge CJ described an anonymity order as a new statutory special measure and said that it should be regarded as the “last practicable resort”.72 It is only once the necessity conditions are satisfied that the court moves to the balancing process in deciding whether the defendant can receive a fair trial. This process is not the same as a proportionality exercise in relation to the ECHR. The latter would involve the court in asking whether an anonymity order could be justified as a proportionate restriction on the defendant’s right under article 6 to examine witnesses against him. This structuring of the question would attach primary value to the defendant’s right so as to require departures from it to be founded on good justifying reasons. The necessity for the order would undoubtedly be one such reason, but this would form part of the calculation of proportionality. Under the Act the questions and the priorities are reversed. The necessity for the order becomes the startingpoint, as the Court of Appeal underlined in Mayers by indicating that conditions C and A in section 4 should be addressed first in deciding whether to make an order.73 The defendant’s right is then assigned a secondary status as a potential check on the granting of the order that necessity would otherwise justify. In this way the conflict of rights is presumptively resolved in favour of witness anonymity. F. CONCLUSION No one researching the topic of witness anonymity can fail to be struck by the global nature of the problems presented by witness intimidation and by the need to conceal the identity of undercover law enforcement officers. Many jurisdictions across the world have had to respond to these problems.74 Lusty’s leading article demonstrates the variety of the responses, which range from giving the right to confrontation an absolute, or near-absolute, priority to regarding the interests of witnesses as paramount, with intermediate positions involving different presumptions either way. One important consideration is whether alternative means of protecting potential witnesses from 72 Para 8. 73 Paras 26-29. This approach was followed by the Court of Appeal in R v Powar and Powar [2009] EWCA Crim 594, [2009] 2 Cr App R 8. 74 Space does not permit a full comparative survey, but the article by Lusty (n 2) provides a useful, albeit partly dated, starting-point.

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reprisals exist within the relevant jurisdiction. Some jurisdictions in which the defendant’s right to confrontation has been strongly upheld have established statutory witness protection programmes, as in South Africa.75 On the other hand, in the international arena Sir Ninian Stephen has noted that the international criminal tribunals are able to offer very little or no protection of this type. Accordingly he has suggested that the prosecution may have no alternative but to decide not to call a witness under threat, where the right to confrontation would require the witness’s identity to be revealed.76 In England the idea that witness relocation schemes could offer a practicable alternative to anonymity orders has received short shrift from the Court of Appeal. There is of course the obvious problem of adequate resources for such a scheme. But there are stronger objections in principle. The court has pointed to the disruption and unfairness to the witnesses and their families in being cut off from their roots and compelled to start new lives.77 There is also a danger that the scheme may be ineffective in concealing identity where the community from which they are removed is small and close-knit, so that their sudden departure is highlighted. If witness relocation is not feasible or desirable, and the dropping of all prosecutions where witnesses will not testify without anonymity is not acceptable as criminal justice policy, it follows that the state must achieve some kind of accommodation of the competing interests of witnesses and defendants. For the UK jurisdictions this requires account to be taken of the ECHR and the Strasbourg jurisprudence. I have argued that the three different approaches to witness anonymity adopted by the House of Lords, the European Court of Human Rights and the Westminster Parliament are all open to criticism. A quasi-absolute priority for the right to confrontation is too sweeping and fails to take adequate account of the different problems presented by witness anonymity. The “sole or decisive evidence” principle is an arbitrary rule founded on an incoherent view of the rationale of the right to examine witnesses. The necessity condition in the 2008 Act downgrades an important defence right to the status of a mere relevant consideration that appears to be freely tradeable against other interests. I have suggested that a preferable solution is the one that has been adopted in relation to restrictions on other article 6 rights. We may accept that safeguarding witnesses in fear of reprisals and protecting the 75 Witness Protection and Services Act 1998, passed in the light of the powerful ruling in favour of the right to confrontation by Ackermann J in R v Leepile (5) 1986 (4) SA 187. 76 Stephen (n 13) 442. 77 R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR 1915 at paras 9 and 71. See also R v Powar and Powar [2009] EWCA Crim 594, [2009] 2 Cr App R 8 at para 97.

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public interest in the security of law enforcement agents is a legitimate aim of anonymity orders. The question then should be whether such an order would be a proportionate or disproportionate restriction of the defendant’s right to examine witnesses in the circumstances of the particular case. What might this mean in practice? It should certainly involve considering the factors listed in section 5 of the 2008 Act. But it should involve more than that. It should involve looking at the kind of evidence the proposed anonymous witness will be giving, and the kind of challenges the defence will wish to make to it. Let me take an example. Suppose an undercover police officer has made concealed recordings of incriminating conversations with the defendant. The defendant might want to dispute that it is his voice on the recording – a challenge to its reliability – in which case he only needs to know the assumed identity of the officer in order to cross-examine the officer about the occasion when the recording is said to have been made. If he does not dispute that it is his voice, then a challenge to the officer’s credibility appears to be beside the point. Once the recording is accepted as genuine, the officer’s credit should not be an issue. Anonymity could only affect the defendant’s right to confrontation if it was the defendant’s case that he had never met the officer and the recording was a fabrication. Even then, if the officer has no convictions or adverse disciplinary findings, it is not clear that knowing the officer’s identity is going to be of much use on cross-examination on credibility. It is worth noting that this would be a case where the recording might well be the sole or decisive evidence for a conviction. This approach would require the defendant to disclose the particulars of his defence in advance of trial. But English law already imposes an obligation to do that under the Criminal Procedure and Investigations Act 1996.78 That burden, however, only comes into play once he has received the benefit of prosecution disclosure of unused material. This should consist of anything that might reasonably be thought to undermine the prosecution case or assist the defence. It will therefore include material going to the witness’s credibility and reliability, such as any inconsistent statements, previous convictions, disciplinary findings, and so on. The prosecution will not be able to take the benefit of anonymity without discharging this burden of disclosure, and it is right in principle that if the prosecutor is to fulfil the role of “minister of justice” he or she should have a burden of investigating the witness if the defence will not be able to do so.79 78 S 5(5). 79 The DPP’s Guidance on Witness Anonymity (n 68) refers to “an absolute duty” on the prosecution

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A contrary argument, founded on traditional adversarialism, might be that the defence ought to be able to sit back and wait until the trial in order to see whether the identified prosecution witnesses actually turn up, and then if they do, decide then whether they will attack their credibility. But this is not persuasive. A right to a fair trial should not mean a right to a trial by fear and ambush. But we should also consider an example the other way to demonstrate the difficulties that some defendants may face with anonymous witnesses. Suppose in a murder case the prosecution have a key witness identifying the defendant as one of a crowd of people who attacked the victim. Her evidence would be the only evidence incriminating the defendant. She has made a police statement but is terrified of giving evidence and even of being identified. Her statement would be admissible hearsay under the 2003 Act, but it would be quite wrong to admit it that way and thereby deny the defendant the opportunity to cross-examine her about the identification. It would be equally wrong to call her as a witness with the protection of an anonymity order, if the result would be that the defendant would effectively be unable to develop a defence that she had a motive for falsely incriminating him. Finally, I should say a word about the difficult case of an anonymous witness for a co-accused. Here I think the defendant must be permitted to call on the prosecution to investigate the witness and disclose any convictions she has and any motive to incriminate the defendant falsely. If there is any doubt about the adequacy of such an investigation this might be a case for the appointment of special counsel.80 If a case arose in which even these measures were not sufficient to enable the defence to be developed that the witness was lying, then I see no alternative to an order for separate trials. These of course come with their own costs for the prosecution. They should be a measure of last resort where there is otherwise good reason for a joint trial, but it may be that they are the only way in which the rights of both defendants can be adequately protected.

to provide the defence with as much information as possible – commensurate with the granting of anonymity – to enable the defence effectively to cross-examine the anonymous witness. 80 The 2008 Act makes no provision for the appointment of special counsel, but the Attorney-­ General’s Guidelines on the Prosecutor’s Role in Applications for Witness Anonymity (Jul 2008, available via www.attorneygeneral.gov.uk/Publications/Pages/AttorneyGeneralsGuidelines. aspx) confirm that in “exceptional circumstances” a prosecutor should be prepared to assist the court to consider whether to invite the Attorney-General to appoint special counsel.

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15  Disclosure Appeals: A Plea for Principle Peter Duff * A. setting the bar low for disclosure: holland and sinclair B. fresh evidence and disclosure contrasted: the two gair appeals C. are there different tests? the case of kelly d. setting the bar high for fresh evidence: coubrough E. the fresh evidence and disclosure teSts unified: fraser F. confirming a higher bar? the case of mcinnes g. further uncertainty: mcdonald, murray and leverage H. conclusion I. POSTSCRIPT The purpose of this chapter is to examine critically the approach of the Scottish courts to determining appeals based on the failure of the Crown to disclose material evidence to the defence prior to trial. In particular, I wish to analyse in some detail the level of confusion which has arisen as a result of the recent cases and to argue briefly that a more principled approach might have avoided much of this.1 I have argued elsewhere that “theorising” the Scots law of criminal evidence would be helpful2 and, in my view, the current debate over disclosure provides yet another illustration of this point. It might   * I should like to thank Sir Gerald Gordon and Findlay Stark for their comments on a draft of this chapter. Any remaining mistakes are, of course, my responsibility.   1 R Johnston, “McInnes v HM Advocate: time for a(nother) definitive decision on disclosure”, 13 (2009) EdinLR 108, has usefully drawn attention to the currently muddled situation.   2 P Duff, “Admissibility of improperly obtained physical evidence in the Scottish criminal trial: the search for principle” (2004) 8 EdinLR 152. 

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be that the awaited decision by the Privy Council in McInnes will clarify what the test for quashing a conviction in such circumstances is but, in my view, its judgment is unlikely to be the last word on the matter. In purely practical terms, there is no guarantee that the High Court will necessarily accept the guidance of the Privy Council given that, as we shall see, there appears to have been something of a turf war between these two courts over the issue of disclosure in the last few years. More fundamentally, however, I think there is legitimate scope for disagreement over the test which should be applied in disclosure appeals. In particular, the key question concerns whether the same approach should be adopted for, on the one hand, disclosure appeals and, on the other, appeals based on the emergence of fresh evidence. The answer is by no means as obvious as some commentators think because it depends to a large extent on what one envisages the purpose of the appeal system to be.3 One argument is that the approach of the courts to disclosure and fresh evidence appeals should be the same. In both instances, the task of an appeal court is to assess the significance of evidence which was not heard at trial and thereafter to determine whether the appeal should be upheld. Clearly, if the new information is of little significance and, in the appeal court’s view, would not have affected the jury’s verdict, the appeal should be dismissed. Conversely, if the additional evidence is highly significant and, in the appeal court’s view, might well have led to a different verdict, the conviction must be quashed. This line of argument tends to assume, often without reflection, that it does not matter why the new information was not available at trial. On the other hand, it is generally accepted that the appeal process is concerned with more than the factual accuracy of the verdict. It is designed also to uphold the fairness and probity of the criminal justice process,4 hence the occasional quashing of a conviction for purely technical reasons regardless of the factual innocence or guilt of the accused.5 If one accepts this kind of reasoning, it becomes justifiable to adopt a different approach to fresh evidence and disclosure appeals. In fresh evidence cases, there was no impropriety or fault on the part of the police or prosecution whereas, in disclosure   3 Johnston (n 1) 112; Fraser v HM Advocate 2008 SCCR 407 at para 223 per Lord Osborne.   4 Theorists have justified this argument on closely related, but subtly different grounds, for instance, on the basis of a “disciplinary” rationale (i.e. constraining the activities of the investigating authorities) or a “vindicatory” principle (i.e. asserting the rights of an appellant whose rights have been (seriously) infringed) or the need for “moral legitimacy” (i.e. ensuring that a conviction cannot stand where the state has broken procedural rules and thus has lost the moral high ground). For a summary of these arguments and references to the main theorists, see Duff (n 2) 160-176.  5 Drummond v HM Advocate 2003 SLT 295 is a particularly good example. See also the English case of R v Davis, Rowe and Johnson [2001] 1 Cr App R 8 at para 94 per Mantell LJ.

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cases, these state agencies have failed to tell the defence about potentially helpful evidence. Thus, it can credibly be argued that it would be entirely appropriate to grant a disclosure appeal more readily than a fresh evidence appeal. It is fitting given the purpose of this collection of essays that of all the judges and commentators who have thus far debated the issue, only Sir Gerald Gordon has made this simple, but insightful, point. He suggests that it would be justifiable for the appeal court to be readier to quash a conviction in a disclosure case because the reason why the evidence was not available to the defence was a failure on the part of the prosecution. In his view, this would recognise that the trial was unfair, rather than that there was a possibility of a mistaken verdict in the absence of the newly discovered information, and might also discourage the concealment of evidence by the Crown.6 I return to this argument in the concluding section but it should be noted that, of course, there can be no definitive answer to the above dilemma. In my view, reasonable people may differ over whether there should be one test or two different ones. My purpose in this chapter is primarily to show that if the judiciary took a more principled approach, it would be easier to come to a conclusion, tentative although it might be, on the appropriate approach to disclosure appeals. Instead, as we shall see, the courts seem to be stumbling about blindly between the two possible options – treating disclosure and fresh evidence appeals similarly or differently – giving no explanations for their decisions other than the selection, from a wide range of authorities, of those which happen to support their conclusions. The result is that after a succession of disclosure appeals, it is still not possible to discern whether the test for a disclosure appeal is less exacting than that in a fresh evidence case. A. SETTING THE BAR LOW FOR DISCLOSURE: HOLLAND AND SINCLAIR The obvious starting point in an analysis of the case law is the conjoined decisions of the Privy Council in Holland and Sinclair, which can be said to have revolutionised the law of disclosure in Scotland.7 The facts of these cases, which both involved the Crown’s failure to disclose material evidence to the defence prior to trial, are sufficiently well known not to need further rehearsal here. In what for the purpose of this chapter is the key part of the decision, Lord Rodger, concluding that Holland’s right to a fair trial had been   6 Commentary by Gordon on Fraser v HM Advocate 2008 SCCR 407 at 468.  7 Holland v HM Advocate [2005] UKPC D1, 2005 SC (PC) 3; Sinclair v HM Advocate [2005] UKPC D2, 2005 SC (PC) 28.

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breached, thought that information about the outstanding charges against one of the two key prosecution witnesses might “have played a useful part”8 in the defence attempt to undermine the credibility of that witness. He went on to observe:9 At least, that possibility cannot be excluded. One cannot tell, for sure, what the effect of such cross-examination would have been. But applying the test suggested by Lord Justice General Clyde in Hogg v Clark 1959 JC 7, 10, I cannot say that the fact that counsel was unable to cross-examine in this way might not have possibly affected the jury’s (majority) decision …

The implication of these dicta is that the threshold for a disclosure appeal to succeed is fairly low and, as we shall see, this approach has been influential in the subsequent development of the case law. It is interesting to note that Hogg v Clark was a case in which a sheriff had wrongly excluded evidence which might have provided a useful basis on which the defence could question a key witness. Thus, in Lord Rodger’s view, the similarity was that in both instances, the defence was wrongly restricted in its ability to cross-examine a key witness. There is little doubt that, whether deliberately or otherwise, Lord Rodger was adopting an approach which was different from that used by the High Court in fresh evidence appeals, often referred to as the “Cameron test’.10 As regards the latter, which I will not describe in detail, essentially:11 the appeal can only succeed only if the court is satisfied that if the jury had heard the new evidence it would have been bound to acquit; or that the new evidence is of such significance that it is reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

There are various possible ways of characterising the difference between the two tests. I have found it useful to portray them in terms of their different “default positions” because this is the schema into which the appeal cases I am about to analyse most naturally fall. In fresh evidence cases, unless the appellant can show that the new information would have been likely to have  8 Holland at para 82.  9 Para 82. 10 It was first formulated in Cameron v HM Advocate 1991 JC 251 and has been applied in several subsequent cases, most notably in Al Megrahi v HM Advocate 2002 JC 99 where a bench of five judges approved and restated it. For a more detailed history, see Lord Osborne’s opinion in Fraser at paras 204-206. 11 Fraser at para 133 per the Lord Justice Clerk (Gill). It is worth noting that the second leg of the Cameron test seems to involve circular reasoning – there is a miscarriage if the verdict of the jury, without the missing evidence, can be regarded as a miscarriage – and, thus, it is not particularly helpful. It is clear, however, that the intention is that the threshold for an appeal to succeed on the basis of fresh evidence is set fairly high.

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led to a different verdict, the appeal will fail. On the other hand, in disclosure cases, assuming that the undisclosed information is “material”,12 unless the Crown can show that its disclosure prior to trial could not possibly have led to a different verdict, the appeal will succeed. Alternatively, one might characterise the difference in terms of where the onus lies: in fresh evidence cases, it is for the defence to satisfy the appeal court that the relevant material would have been likely to have made a difference; in disclosure cases, it is for the Crown to demonstrate that the relevant material would not have made a difference.13 Whichever formula one uses, it is clear that in a position of doubt or indeterminacy, in a ­disclosure case the appeal will succeed, whereas in a fresh evidence case it will fail. One might object to my schema on the basis that in both situations the onus lies on the appellant to make out his case. In order to succeed, the defence must convince the court either that the fresh evidence is “significant” enough or that the undisclosed information is “material” enough. That much is true but one might respond that, according to Holland and Sinclair, in a ­disclosure case, the appellant has merely to show that some information was not disclosed and it is then up to the Crown to demonstrate that it was not material. Adopting a less extreme position, one might accept that it is for the appellant to establish that the undisclosed information is “material”, a fairly low threshold, upon which the onus passes to the Crown to demonstrate that the appeal should be rejected. In contrast, in a fresh evidence case, the onus clearly remains on the defence throughout and is generally agreed to be very high.14 Thus, in the forthcoming discussion, I am assuming that the undisclosed information satisfies the not particularly demanding test of “materiality” because, as we shall see, this is the stage at which the treatment of fresh evidence and disclosure appeals begins to differ.15 Returning to Lord Rodger’s observations in Holland, the clear implication is that it was for the Crown to demonstrate that the undisclosed evidence could not possibly have affected the outcome of the case. If the court were not so satisfied, the default position was that the conviction had to be quashed. Gordon’s interpretation of the test adopted by Lord Rodger is similar: “It is 12 See the following paragraph for justification of this assumption. 13 In Hogg v Clark, the Lord Justice General (Clyde) observed (at 10) that “a very heavy onus lies on the Crown” to show that the loss of the opportunity of cross-examination might not possibly have affected the verdict. 14 See F Davidson, Evidence (2007) paras 16.17-16.26; I Bradley et al, Criminal Procedure (Scotland) Act 1995, 4th edn (2005) s 106(3). 15 If the reader is not convinced, I would simply ask him or her to bear with me for the time being. This approach is being adopted only for the purposes of analysing the cases.

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for the Crown to show that … (the trial was not unfair) … and they can do so only by showing that it could not possibly have affected the jury’s verdict.”16 In the conjoined case of Sinclair, Lord Hope, who gave the leading judgment, adopted a similar approach. In his view, undisclosed previous inconsistent statements by the key prosecution witness were “plainly likely to be of assistance to the defence”.17 He continued: “It is impossible, therefore, to say that the appellant’s defence was not prejudiced …”18 While not mentioning Hogg v Clark, it is fairly obvious that he was thinking along much the same lines as Lord Rodger in Holland, namely that unless the appeal court can be sure that the failure to disclose would have made no difference to the verdict, the conviction must be quashed. Once more, he saw the default position as upholding the appeal. B. FRESH EVIDENCE AND DISCLOSURE CONTRASTED: THE TWO GAIR APPEALS The next case to be analysed is that of Gair v HM Advocate, in which the grounds of appeal included both fresh evidence and disclosure. Each of these was heard by a differently constituted bench, over a year apart, but both essentially revolved around defence claims that the main prosecution witnesses had lied at trial. At the outset of the fresh evidence appeal,19 which came first, the Lord Justice General (Cullen), in delivering the court’s opinion, commented: “It is for the appellant to satisfy the court as the “significance” of the new evidence.”20 This is clearly an application of the Cameron approach; the onus was on the defence to convince the court that the appeal should be upheld, the default position being that the appeal failed. In the event, the potential significance of the new information did not have to be assessed because the court concluded that the fresh testimony of the three witnesses who were recanting on the evidence they had given at trial was “not capable … of being regarded by a reasonable jury as being either credible or reliable”.21 Thus, the appeal was emphatically rejected. It is noteworthy that the court’s attitude to the appellant’s arguments seems to have been somewhat hostile. This, I suspect, illustrates a long-standing judicial reluctance to accept fresh evidence and the consequent imposition 16 Commentary on Holland v HM Advocate 2005 SCCR 417 at 444. 17 Para 34. 18 Sinclair v HM Advocate [2005] UKPC D2, 2005 SC (PC) 28 at para 35. 19 Gair v HM Advocate [2005] HCJAC 69. 20 Para 4 (emphasis added). 21 Para 62.

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of a high threshold before such appeals can succeed. Lord Cullen went out of his way to emphasise how unsatisfactory the recanting witnesses were, commenting of one, M, who was to feature prominently in the later disclosure appeal, that he was “very unimpressive and unstable”.22 Ironically, this was precisely what the defence was arguing in order to discredit the witness’s original evidence, thus one might comment that what was sauce for the goose could equally have been sauce for the gander. Other judicial comments also demonstrate a negative response to the appeal: “[i]t is, however, plain that each of these witnesses has been subject to pressure to exonerate the appellant”;23 and, of one of the witnesses, “[i]t is not difficult to envisage (the fresh testimony) as resulting from his being put under pressure by persons campaigning for the quashing of the appellant’s convictions”.24 The irony again is that the defence was arguing that the evidence given by these witnesses at the original trial was false because of illegitimate pressure by the police. Once more, the court preferred the original testimony, although both versions of events given by witnesses seemed equally questionable. The default position was clearly the rejection of the appeal. In contrast, just over a year later, the disclosure appeal was upheld.25 It focussed on the Crown’s failure to disclose previous inconsistent statements made by three witnesses, the fresh testimony of two of whom, including M, had not been believed in the first appeal. The court agreed with the Crown that there had been no duty to disclose the previous statements of two of these three witnesses because they would not have assisted the defence case and thus were not material.26 There was also undisclosed information that the third witness, M, had been suffering from psychiatric problems when he made his previous statements to the police.27 The Crown claimed that it had not been under a duty to disclose information about his admission to a psychiatric hospital during this period because it was “just a precognoscer’s note” rather than any kind of “expert” comment or opinion.28 As regards M’s four police statements, the Crown conceded that they should have been disclosed but argued that even if his evidence “could be completely discounted”, there was “ample evidence” to conclude that no miscarriage of justice had resulted

22 Para 41. 23 Para 61. 24 Para 24. 25 Gair v HM Advocate 2006 SCCR 419. 26 Paras 26-27 and 32. 27 Para 12. 28 Para 29.

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from the defence not having had access to these.29 In giving the opinion of the court, Lord Abernethy emphasised that the trial judge had observed that the Crown’s principal witness was “appalling”30 and that, without supporting evidence from other witnesses, the jury could not have concluded that he was credible or reliable. M was thus an “important” if not “essential”31 supporting witness and at trial “there was nothing to suggest that he was other than a straightforward eye-witness doing his best to give credible and reliable evidence”.32 The defence did not know that he had given previous inconsistent statements or that he was a fantasist or that he had been in hospital receiving treatment for mental illness. In the court’s view, the defence would have used this information and it “would have tended dramatically to undermine the credibility and reliability”33 of M’s evidence. The failure to disclose meant that the defence “were deprived of a powerful argument”.34 Lord Abernethy concluded: “[i]t is not possible to say that without his evidence the jury would nevertheless have convicted”.35 The Crown case was not as strong as that, “[s]o the possibility that the jury might have reached a different verdict if the police statements and other information about M had been disclosed is in our view real and certainly cannot be excluded”.36 Consequently, the appeal was allowed and the conviction quashed. While Lord Abernethy cited no authorities in giving the court’s decision, it is clear that the court was using something very similar to the Hogg v Clark test, adopted by Lord Rodger in Holland. Unless the court could be satisfied, presumably by the Crown, that the undisclosed information could not possibly have affected the verdict, the appeal had to be allowed. There does not seem to be the same emphasis as there was in the fresh evidence appeal on the need for the appellant to demonstrate the significance of the evidence. Thus, at this stage, it seemed that the appeal court was adopting different approaches to disclosure and fresh evidence appeals. In brief, as regards the former, the default position was the quashing of the conviction (as illustrated by the second Gair appeal) whereas, as regards the latter, the default position was the refusal of the appeal (as illustrated by the first Gair 29 Para 30. 30 Para 33. 31 Para 34. 32 Para 35. 33 Para 38. 34 Para 38. 35 Para 39. 36 Para 39.

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appeal). Unfortunately, matters were subsequently confused as a result of the decision in Kelly, which was actually decided between the two Gair appeals, but did not come to prominence until much later.37 At the time, the decision seemed of little significance, largely because of the brief and desultory nature of the discussion of the appropriate standard to apply in determining a disclosure appeal.38 However, given the importance subsequently attached to this decision by the High Court in McInnes,39 it is essential to examine it. C. ARE THERE DIFFERENT TESTS? THE CASE OF KELLY Kelly v HM Advocate40 revolved around an undisclosed prior statement by the victim of an assault, who provided a much fuller account of the incident in court than she gave in the prior statement. It is clear from the court’s opinion, delivered by Lady Cosgrove, that the defence argued in favour of the Hogg v Clark test and cited Lord Rodger’s approval of this approach in Holland.41 In essence, the defence claimed “it was impossible to assert”42 that cross-examination challenging the victim’s credibility “would not have made a difference to the outcome”.43 In opposition, the Crown argued that, while the statement lacked the “peripheral”44 detail of her testimony in court, it was nevertheless “entirely consistent”45 with her evidence. Therefore, the statement would have been of very “limited use”46 to the defence and there was no unfairness to the accused. In a short outline of the court’s reasoning, Lady Cosgrove stated that the “critical issues”47 included the “materiality”48 of the undisclosed statement and “the nature and extent of any prejudice suffered”49 by the appellant, citing judicial remarks from Holland and Sinclair as authority.50 In refusing the appeal, she emphasised that the statement did not contain 37 Kelly v HM Advocate 2006 SCCR 9. While Lord Abernethy mentioned it in passing as having been cited by the Crown (at para 26), neither it nor any other authorities were cited as to the appropriate test to be applied in the successful Gair disclosure appeal. 38 It should be noted that none of the judges in Kelly was on the bench in either of the Gair appeals. 39 McInnes v HM Advocate 2009 JC 6, which is discussed below. 40 2006 SCCR 9. 41 Kelly at para 30. 42 Para 30. 43 Para 30. 44 Para 31. 45 Para 31. 46 Para 31. 47 Para 32. 48 Para 32. 49 Para 32. 50 Para 32.

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“material that was plainly likely to be of assistance to the defence”51 because, in the court’s view, it would not have helped undermine the witness’s credibility. There was only “very limited inconsistency”52 with the victim’s evidence in court and, indeed, her “essential consistency”53 might well have been used by the Crown to support her testimony.54 Thus, according to Lady Cosgrove, the failure to disclose the statement did not give rise to “any real risk of prejudice”55 to the appellant. Despite the brevity of the judgment, what is significant about Kelly is that the court’s attitude to the appeal does not appear to be entirely consistent with the approach adopted in Holland or the subsequent decision in Gair. According to Kelly, it has to be shown, presumably by the appellant, that the Crown’s failure to disclose led to a “real” risk of prejudice at trial whereas under Hogg v Clark, it has to be demonstrated, presumably by the Crown, that the undisclosed information could not possibly have led to a different outcome. The Kelly approach seems to set a more demanding test in disclosure appeals because the onus has been subtly shifted. It is also interesting that, on examination, the authorities cited, but not quoted, by the court do not support an argument for changing the default position in disclosure appeals. In the relevant passage in Holland,56 Lord Rodger was simply narrating the history of the Crown’s duty of disclosure and explaining the decision in McLeod, which was concerned with a pre-trial application for disclosure, rather than addressing his mind to the appropriate test to be applied in an appeal if there was a subsequent breach of that duty.57 In the relevant passage in Sinclair,58 Lord Hope, having decided that there was a breach of the Crown’s duty to disclose all material evidence, concluded that “it is impossible … to say that the appellant’s defence was not prejudiced by what happened in this case”.59 That does not seem too far away from the test in Hogg v Clark and seems to support the defence submission rather than that of the Crown. It might be argued that I am reading too much into what was perhaps simply an instance of loose terminology in the context of a very brief opinion. The main problem lies in discerning the court’s intention because it did not 51 Para 33. 52 Para 33. 53 Para 33. 54 Para 33. 55 Para 33. 56 Holland at para 64, cited in Kelly at para 32 per Lady Cosgrove. 57 When he did address this point (at para 82), he adopted the test in Hogg v Clark and this part of his opinion was, of course, cited by the defence. 58 Sinclair at paras 33-35, cited in Kelly at para 32 per Lady Cosgrove. 59 Sinclair at para 35.

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explicitly address the Hogg v Clark test. Thus, it is difficult to determine whether it was applying that test or, as I have suggested, adopting a rather more stringent approach. Be that as it may, it does seem to me that the court’s attitude was rather different from that of the Privy Council in Holland and a different bench of the High Court in Gair (admittedly a few weeks after Kelly). Support for my surmise comes from the fact that, as we shall see, the decision in Kelly was later used by the High Court in McInnes explicitly to disapprove the use of the Hogg v Clark test in disclosure appeals. Thus, the bench in McInnes clearly thought that Kelly embodied a different and higher threshold, just as I have suggested. D. SETTING THE BAR HIGH FOR FRESH EVIDENCE: COUBROUGH The next case worth mentioning is that of HM Advocate v Coubrough,60 which was an appeal based on fresh evidence. Here, the appeal court very firmly reiterated the approach taken in Al Megrahi v HM Advocate, the leading case on fresh evidence, and rejected the notion that the approach taken in disclosure cases was of any relevance.61 Lord Osborne, in giving the court’s opinion, explained that there was a “fundamental difference”62 between the Privy Council’s role in determining whether there has been a breach of the accused’s right to a fair trial under the ECHR and the role of the High Court in determining whether there has been a “miscarriage of justice” under s 106 of the Criminal Procedure (Scotland) Act 1995.63 For that reason, the consideration of fresh evidence in this case was a “completely different issue”64 from matters which come before the Privy Council, such as disclosure, and it was “not helpful”65 to cite dicta from Privy Council decisions: “[t]hat is likely only to produce confusion”.66 With respect, the latter claim seems questionable because, as I noted above, in both fresh evidence and disclosure appeals, the court has to address its mind to much the same issue: what impact should the new information have?67 If the appeal process is concerned solely with 60 2008 SCCR 317. 61 Para 93. 62 Para 95. 63 In Scotland, there exists only a single ground of appeal against conviction: that, as specified in s 106, there has been a “miscarriage of justice”. Such a miscarriage can be demonstrated in various ways, of which a failure to disclose on the part of the Crown would be one. 64 Para 96. 65 Para 96. 66 Paras 95-96. 67 I deliberately use the broad term “information” here. In a fresh evidence case, the appeal can

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factual guilt or innocence, the answer should be the same in each instance. If the appeal process has a broader function of upholding the probity of the criminal justice system, then the answers might be different. In terms of principle, one cannot simply state that disclosure and fresh evidence appeals are completely different without providing a satisfactory justification for this claim. In his commentary on the case, Gordon notes that the “important aspect”68 of Coubrough is its rejection of the Hogg v Clark test. He goes on to suggest, rather optimistically, that the fresh evidence and disclosure approaches are perhaps not all that different because, under the disclosure test, the possibility that the verdict would have been different obviously cannot be entirely fanciful. Nevertheless, Gordon concedes that the distinction between the two formulae “could be seen as the difference between possibility and likelihood”,69 potentially quite a large gap in my view. Given the robust nature of the court’s dismissal of the applicability of the Hogg v Clark test in Coubrough, it seems to me that Gordon rather underestimates the distinction which the court sought to draw between the tests in fresh evidence and disclosure appeals.70 In Coubrough, the court was saying, to some extent implicitly, that the bar had been set too low by the Privy Council in disclosure cases for it to be a useful standard in fresh evidence cases. It seems to me that this was why Lord Osborne went out of his way to emphasise that the two tests are very different and went so far as to assert that they have nothing to do with each other. E. THE FRESH EVIDENCE AND DISCLOSURE TESTS UNIFIED: FRASER Three months later came the decision in Fraser v HM Advocate,71 which again is interesting because, as in Gair, there were two grounds of appeal: fresh evidence and disclosure. As regards fresh evidence, all three judges emphasised that they were following the traditional Cameron test and thus had little difficulty in dismissing this ground of appeal. They were also unanimous in be founded upon only what would be regarded by a court as evidence stricto sensu whereas in disclosure cases all that may be required is information which might have allowed the defence to elicit new evidence in cross-examination or otherwise have assisted in discovering such material. 68 Commentary by Gordon on Coubrough v HM Advocate 2008 SCCR 317 at 356. 69 At 356. 70 A point which Gordon partially concedes in his commentary on Fraser v HM Advocate 2008 SCCR 407. 71 2008 SCCR 407.

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dismissing the disclosure argument but made some interesting comments about the relationship between these two grounds of appeal, particularly because it was clear that they were unhappy about various aspects of the decisions in Holland and Sinclair.72 In his leading opinion, Lord Gill, having cited Lord Rodger’s now (in)famous dicta in Holland, observed that this “raised the question” of whether a disclosure appeal can be upheld on “a different criterion” from that of Cameron.73 Having noted the Crown’s hope that the decisions in Holland and Sinclair would be reconsidered, he followed Lord Osborne’s lead in Coubrough74 and stated that since no devolution issue was raised, the disclosure ground would be dealt with under s 106 of the 1995 Act, i.e. on the basis of whether there was a miscarriage of justice. Thus the Privy Council’s views on disclosure, which related to the question of whether there was a fair trial, were irrelevant and the Cameron – i.e. new evidence – test would be applied in the instant case.75 Lord Gill went on to note that both Crown counsel and defence counsel accepted this and had agreed that the case “fell to be treated as a new evidence appeal”.76 One wonders why defence counsel was prepared to concede this point, rather than arguing for the Hogg v Clark approach apparently utilised in Gair. After all, the appeal court dealt with Gair under s 106, namely as a miscarriage of justice case, rather than one where the issue was the fairness of the trial. It is probable that it was fairly obvious to defence counsel that the court would not be sympathetic to any submission that Hogg v Clark should be applied and perhaps that explains the failure to press this argument. It is fair to say that Lord Gill did note that the question had arisen as to whether the High Court had imported the Holland (i.e. Hogg v Clark) test in Gair but decided, somewhat questionably, that “its overall conclusion was not inconsistent”77 with the Cameron test. In any event, Lord Gill went on to state that in the present case it was for the appellant to “demonstrate the importance and significance of the undisclosed evidence to the crucial issues at trial” under the “general principles” applied in fresh evidence appeals.78 As he had already decided that the appeal had failed on the fresh evidence 72 In particular, their ire was raised by Lord Rodger’s claim that the Crown had to disclose precognitions but they also did not like the adoption of Hogg v Clark (at para 188 per Lord Gill and at para 238 per Lord Johnston). Gordon, in his commentary to Fraser, also makes the point (2008 SCCR 407 at 464) that the Fraser bench was clearly unhappy with Holland and Sinclair. 73 Para 191. 74 See n 60 above. Lord Osborne was also on the bench in Fraser. 75 Fraser at paras 191-195. 76 Para 193. 77 Para 197. 78 Para 195.

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ground, it therefore failed on the disclosure ground, for precisely the same reasons which he did not bother to reiterate.79 In Lord Gill’s view, therefore, the default position in respect of the fresh evidence and disclosure appeals was the same: if the appellant could not demonstrate that the new information was likely to have made a difference, the appeal fails. Lord Osborne observed that “setting aside the verdict of a jury is no light matter”80 and implied that in Cameron this was why the bar for fresh evidence cases had been set quite high. Having gone through the authorities in fresh evidence cases at some length, he then turned his attention to Lord Rodger’s dicta in Holland in order to comment upon their “true significance”.81 Having repeated the now standard argument that the jurisdictions of the Privy Council and the High Court were different and that an “unfair trial”82 was not “co-extensive”83 with a “miscarriage of justice”,84 he concluded in fairly strong terms: “For these reasons, I do not find anything said in Holland … to be of any assistance in this case.”85 Lord Osborne then went on to discuss the appropriate test(s) to be used in fresh evidence and disclosure cases stating that “logic and consistency would require that the … outcome would be the same”86 whichever ground was applicable. This would be so whether the appeal fell to be considered under both heads or just one of them because the court would have to make “in substance, the same assessment”,87 otherwise there “would plainly be an inconsistency … which would be unacceptable”.88 Thus, like Lord Gill, he thought that the tests were the same, and chose to treat the instant appeal as one based on fresh evidence because, given the way it was focused, that was the “appropriate”89 ground. One might question various aspects of these views. While an “unfair trial” and a “miscarriage of justice” are not synonymous, as Lord Osborne observes,90 79 Para 196. 80 Para 204. 81 Para 214. 82 Para 219. 83 Para 219. 84 Para 219. 85 Para 219. 86 Para 223. 87 Para 224. 88 Para 224. See Gordon’s commentary (2008 SCCR 407 at 468), which interprets Lord Osborne’s opinion in the same way. 89 Para 225. The third judge, Lord Johnston, did not think that Fraser was a fresh evidence case at all because the issue of the jewellery was “quite secondary to the main issue of guilt”. While he was critical of the Crown’s failings as regards disclosure, he was satisfied that in the context of all of the evidence, there was no miscarriage of justice (at paras 236-237). 90 Para 219. He notes, for example, that the emergence of fresh evidence may constitute a m ­ iscarriage of justice but cannot found an appeal on the basis of an unfair trial. In such an instance, one does

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that does not mean to say that where a particular procedural problem leads to a potential appeal under both heads, it should not be treated in the same way. In my opinion, it would be difficult to justify adopting very different approaches to disclosure appeals (and other “procedural” appeals) depending solely upon whether one is arguing that there has been a “miscarriage of justice” or an “unfair trial’.91 In this situation, it is surely more logical and, thus, fairer to argue that the tests should be the same or, at least, very similar. It also strikes me as somewhat short-sighted to create a situation where the approach to disclosure appeals adopted by the High Court and Privy Council is markedly different. This simply means that appellants whose disclosure appeals are rejected by the High Court will immediately go to the Privy Council, who made it clear in McDonald v HM Advocate92 that the High Court may not block such appeals.93 Thus, the High Court’s desire to implement a stricter approach is unlikely to succeed in any event. In summary, the decision in Fraser means, first, that in the High Court the tests for fresh evidence and disclosure appeals are the same and, second, the relevant criteria under s 106 (miscarriage of justice) are those set out in Cameron and reiterated in Megrahi. Gordon wonders whether in his earlier comments on Coubrough (see above) he “underestimated”94 the difference between this test and the Hogg v Clark approach adopted by the Privy Council in Holland. In his view, however, as long as one is referring to a “reasonable” possibility that the verdict might have been affected rather than to a “logical, or even to “only a mere’, possibility” which would prove “unworkable”, then there is little distinction.95 With all due respect, I again would note that there might be a larger gap between the two approaches than Gordon suggests: the emphasis of each test is rather different and, as I argued above, in a position of indeterminacy, the default position is different. not have the difficulty of reconciling potentially different tests under the two different appeal avenues. 91 Precisely this point is also made by R Johnston, “Disclosure: the High Court strikes back” (2008) SCL 862 at 868. 92 The High Court had declined to accept a late devolution minute (namely raising the issue of “fair trial”) on a disclosure issue, commenting “we are not persuaded that the circumstances justify a jurisdiction being invoked which might render competent an appeal to the Privy Council” (McDonald v HM Advocate 2008 SLT 144 at para 67). However, the Privy Council, having granted special leave to appeal, held that this decision in itself was the “determination” of a devolution issue, thus giving it jurisdiction (McDonald v HM Advocate [2008] UKPC 46 at paras 15-17 per Lord Hope, paras 48-49 per Lord Rodger). The substance of the case will be discussed briefly below. 93 Again Johnston (n 91) makes this point at 867-868. 94 2008 SCCR 407 at 465. 95 Ibid.

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Further, the judicial comments in Fraser suggest that the judges thought the Hogg v Clark approach sets the bar too low and were keen to apply a significantly higher standard. F. CONFIRMING A HIGHER BAR? THE CASE OF MCINNES The next case to be considered is that of McInnes v HM Advocate.96 Following conviction, the accused appealed on the ground that the prior, inconsistent statements of a crucial witness had not been disclosed, although it was clear that the defence solicitor had been informed of their contents by the Crown. Nevertheless, the fact that the defence did not physically possess copies of the statements prevented counsel from putting to the witness his “precise words”97 in order to undermine the latter’s “confident identification”98 of the accused at trial. The appellant argued that the test was whether disclosure “could have made a difference”99 to the outcome rather than “would have made a difference”,100 citing inter alia Hogg v Clark and Lord Rodger’s comments in Holland. The Crown disagreed with this test, claiming that its application would mean that the “slightest”101 matter would lead to the quashing of the “jury’s verdict”.102 Instead, it argued that the correct test was that used in Kelly (citing in support remarks made by Lord Rodger and Lord Hope in Sinclair), namely that it was necessary that the relevant material would have been of “material assistance”103 to the defence and that its non-disclosure had caused “real prejudice”104 to the accused. The Lord Justice General (Hamilton), in giving the court’s opinion, fully accepted that an appeal would be upheld where the undisclosed material “would have been of material assistance”105 to the accused and then turned his attention to the situation where it “might have prejudiced the defence”.106 In his view, that was a matter for the High Court to assess in all the circumstances of the case, although this would not always be “a straightforward or easy task”.107 Lord Hamilton emphasised that the court should not “in effect avoid this task”  96  97  98  99 100 101 102 103 104 105 106 107

2009 JC 6. Para 15. Para 15. Para 15 (emphasis added). Para 15 (emphasis added). Para 16. Para 16. Para 16. Para 16. Para 20. Para 20. Para 20.

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by adopting the Hogg v Clark test which hinges on whether the failure to disclose “might not possibly have affected”108 the outcome. He noted that this test had been adopted by Lord Rodger in Holland, although he had not reiterated it in Sinclair. Lord Hamilton then commented that it was not clear that it had been a matter for argument before the Privy Council what the appropriate test actually was. He then observed that Lord Rodger’s test “has been used (or abused)”109 in Scotland to suggest that “the threshold for reversing the verdict of a jury”110 in non-disclosure and analogous cases  is  “low”.111 In Lord ­Hamilton’s view, a “robust test”112 was required and he stated that it was that of “a real risk of prejudice to the defence”113 as applied in Kelly. In the circumstances of the case, there had been no such prejudice and thus the appeal was refused. It is worth commenting on Lord Hamilton’s reference to “reversing” a jury verdict because what he was probably suggesting is that the Hogg v Clark test is liable to undermine the jury in a similar way as would upholding an appeal on the basis of an “unreasonable jury verdict”.114 This is not so, of course, because in the disclosure situation the jury has not heard all the evidence, and one can only speculate as to its verdict if it had, but rhetorically it justifies his dislike of the low threshold in Hogg v Clark. Gordon makes a similar point in his commentary on McInnes, observing that one might support “robustness”115 where the jury has heard all the evidence but that in the situation where the jury has been deprived of hearing evidence as a result of the Crown’s failure to disclose it to the defence, the argument for not interfering with the jury’s verdict is not so strong.116 Gordon also notes that this is one of a series of cases where the High Court appears to be moving away from 108 109 110 111

Para 20, quoting directly from Hogg v Clark at 10. Para 20. Para 20. Para 20. By “analogous” here, I first assumed that Lord Hamilton was referring to cases like Hogg v Clark where there has been a procedural impropriety committed by the Crown or judiciary. In his commentary on the case (2008 SCCR 869), Gordon (at 884) suggests that Lord Hamilton was “presumably” talking about fresh evidence cases where usually no-one has been at fault. It is simply not clear what type of case Lord Hamilton had in mind but, in any event, the message is clear: Hogg v Clark sets the bar too low in disclosure appeals. 112 Para 20. 113 Para 20. 114 Under the Criminal Procedure (Scotland) Act 1995 s 106(3)(b), one way of demonstrating the miscarriage of justice necessary for a successful appeal against conviction is to show that the jury “returned a verdict which no reasonable jury, properly directed, could have returned”. The appeal court, of course, has been notoriously reluctant to uphold appeals on this ground, arguably having done so only once in circumstances where the jury’s verdict was not logically inconsistent (E v HM Advocate 2002 JC 215). 115 2008 SCCR 869 at 885. 116 Ibid.

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the approach in Holland because of a view that this sets the threshold too low, going on to observe that which of the “competing criteria” should be adopted – “might possibly have affected the trial” or “real risk of prejudice” is ultimately “a question that only the Privy Council can answer”.117 G. FURTHER UNCERTAINTY: MCDONALD, MURRAY AND LEVERAGE It is worth mentioning briefly McDonald v HM Advocate,118 a decision of the Privy Council about a fortnight after McInnes. This involved three conjoined applications on the grounds of disclosure, all of which were dismissed. There is little to be gleaned about the appropriate test to be applied in such cases because the decision revolved around other elements of the rules on disclosure. However, Lord Hope, in giving the leading judgment, made one relevant observation, that concerned trials that took place before Holland and Sinclair (the situation here). He stated that he would not be willing to accept that it was incompatible with article 6 for the Lord Advocate to try to support a conviction where there had been a failure to disclose unless the applicant could “demonstrate that there was a reasonable possibility of unfairness as a result of the non-disclosure”.119 This does seem to place the onus on the accused to show that the undisclosed material might well have had an impact on the verdict. It is important to note, however, that his observations are confined to “past cases”120 when “a very different approach”121 to disclosure was adopted by the Crown. Unfortunately, Lord Hope gave no guidance on the appropriate test to be used in disclosure appeals as regards trials which took place after Holland and Sinclair.122 The penultimate case to be examined, albeit very briefly, is that of Murray and O’Hara v HM Advocate,123 which nicely demonstrates the present lack of clarity in the law. There were several grounds of appeal but the only one that concerns us here is the second appellant’s claim that the Crown’s failure to disclose various statements and other related information had led to a miscarriage of justice. On this point, the Crown argued first that it could 117 Ibid. 118 [2008] UKPC 46. 119 Para 37. 120 Para 37. 121 Para 37. 122 See Gordon’s commentary on McDonald (2008 SCCR 954 at 981), because he also expresses some bafflement at what test was being applied here but observes that the question is “probably now academic” because it only applies to pre-Holland and Sinclair cases. 123 2009 SCCR 624.

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not be said that the non-disclosure had posed “a “real risk of prejudice” to the defence case”,124 citing Lord Hamilton’s dicta from McInnes. Adopting a belt and braces approach, the Crown then went on to claim that “even when”125 one applied the Hogg v Clark test, the appeal could not succeed. In delivering the court’s opinion, the Lord Justice General (Hamilton), possibly with an eye on the forthcoming McInnes appeal to the Privy Council, simply observed that “whichever test is adopted as to the effect of non-disclosure by the Crown”,126 there was no miscarriage of justice nor was the trial unfair. He made no comments as to which test the court should apply and thus seemed to step back from reaffirming his earlier comments in McInnes dismissing the Hogg v Clark test. Finally, the recent case of Leverage v HM Advocate127 is also of some interest, although it involved the erroneous dismissal by the trial judge of a potential topic for defence cross-examination (like Hogg v Clark) rather than non-disclosure. Very briefly, according to Lord Kingarth’s opinion, defence counsel argued that the appropriate test for the High Court to adopt was that of Hogg v Clark – namely “whether it could be said that the verdict might possibly have been different”128 – whereas the Crown argued for the McInnes test – namely “whether … the trial judge’s decision could be said to have caused a real risk of prejudice”.129 The High Court concluded that it was not necessary to decide which was the appropriate approach. This was not because of any argument that the Hogg v Clark test had to be construed as referring to a “reasonable, rather than to a far-fetched or purely hypothetical, possibility”130 and thus the difference between it and the McInnes test was perhaps “more apparent than real”.131 Rather, in the court’s view, even if one adopted “the more favourable test”132 (i.e. Hogg v Clark), it could not be said that had cross-examination on the point been allowed, there was a “real possibility”133 that the verdict would have been different. Therefore, as in Murray and O’Hara, the court, no doubt wisely, chose to remain emphatically upon the fence as to the relative merits of the more robust approach 124 125 126 127 128 129 130 131 132 133

Para 64. Para 64. Para 85. 2009 JC 137. Para 14. Para 18. The Court’s opinion was given by Lord Kingarth. Lord Eassie was on the bench in this case and that of McInnes. Para 19. Para 19. Para 19. At para 19. Gordon, in his commentary on Leverage (2009 SCCR 371), points out (at 379) that the dicta in Hogg v Clark do not include the qualification “real”.

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to appeals adopted in McInnes or the less exacting threshold embodied in Holland and Sinclair. It is worth emphasising that the court stressed that the two tests were different and that its decision was not based on any suggestion that there was little difference between them. H. CONCLUSION What then is the test adopted by the courts in disclosure appeals? It is safe – or as safe as it can be in an area so fraught with confusion – to say that the argument now seems to have crystallised around two possibilities: (1) Hogg v Clark, requiring the Crown to rule out a (real?) possibility of a different outcome; and (2) McInnes, requiring the appellant to demonstrate a real risk of prejudice. At the moment, it is impossible to say which is the appropriate test. Further, although the court in McInnes observed that the latter and stricter test is that adopted in fresh evidence appeals, the terminology is somewhat different and it is not obvious that subsequent appeal courts would adhere to that view. As I suggested at the outset, it might be easier to find a solution to the problems if the courts were to take a more principled approach to the issues raised by disclosure appeals. In my view, the most important question that needs to be resolved is whether the approach used should be the same in fresh evidence and disclosure appeals. As noted in my introduction, a reasonable argument can be mounted for using the same threshold in disclosure and fresh evidence appeals but, equally, there is a good justification for adopting different tests. It simply depends on what weight one attaches to the “moral legitimacy”, as opposed to the “factual accuracy”, function of the appeal process and how seriously one takes the Crown’s breach of its duty to disclose all material evidence. (I should just reiterate briefly here that I can see no reasonable argument in principle for adopting a different approach to disclosure appeals depending upon whether one is arguing that there has been a miscarriage of justice or unfair trial.) Personally, I would favour adopting a lower threshold in disclosure appeals than in fresh evidence cases because I think it is important that when the state infringes the rights of its citizens, the criminal justice system should be seen to mark its disapproval of such conduct in an appropriate and meaningful way.134 However, I fully accept that others might take a different view and ascribe more weight to the factual accuracy of the verdict and the need to ensure that the guilty are convicted for the protection of us all. 134 See A Duff, L Farmer, S Marshall and V Tadros, The Trial on Trial Volume Three: Towards a Normative Theory of the Criminal Trial (2007) for an excellent, extended version of this argument.

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If one were to agree with my preference, the above analysis suggests that the easiest way to operate a less restrictive test in disclosure appeals might be for the courts to engage in a Lawrie v Muir type balancing exercise.135 In other words, the appeal court would take account of such factors as the reason for the failure to disclose (malice or oversight), the level within the police or Crown Office at which the failure occurred, the nature of the undisclosed material and so on, and weigh these against such factors as the seriousness of the crime, the strength of the other evidence against the appellant and so on.136 Alternatively, one could adopt something like the different “default” position or placing of the “onus” that I outlined at the beginning of this chapter. Unfortunately, that kind of schema has led to a somewhat sterile debate about the difference between a “possibility”, a “hypothetical possibility”, a “reasonable possibility”, a “real possibility”, and so on.137 Further, it is clear from the judicial decisions that such a framework would allow a determined bench to construe the test in disclosure appeals in such a way as to return to the higher test applied in fresh evidence appeals. Thus, I suspect that a Lawrie v Muir approach would be a more practical and certain solution. Further, it would have the additional advantage of making it entirely clear why the disclosure test is lower than that in fresh evidence appeals: the crucial difference is the failure of the agencies of the state to perform their duty to provide the accused with all material information. I. POSTSCRIPT While this book was in press, the Supreme Court issued its judgment in McInnes v HM Advocate.138 This decision makes it clear, first, that the test in disclosure appeals approximates to the higher threshold adopted in fresh evidence cases rather than the lower standard of Hogg v Clark139 and, second, that the Supreme Court will leave the appropriate standard to be set by the High Court because the more robust test does not impinge upon the accused’s right to a fair trial. What remains to be seen is whether the High 135 I am indebted to Findlay Stark for this suggestion. Lawrie v Muir 1950 JC 19 governs the admissibility of improperly obtained physical evidence. 136 For a list of the factors that have been taken into account in applying Lawrie v Muir see M L Ross and J Chalmers, Walker and Walker: The Law of Evidence in Scotland, 3rd edn (2009) at para 1.7.8. 137 For the same reason, if it is decided to adopt the same approach to disclosure and fresh evidence appeals, I do not think that the McInnes test offers the best way forward. It would seem more sensible simply to use the Cameron/Megrahi approach in disclosure appeals too. 138 [2010] UKSC 7. 139 1959 JC 7.

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Court will merge the tests in disclosure appeals and fresh evidence appeals or retain slightly different formulations. Reconciling the two tests makes more sense because, if one leaves aside the “moral legitimacy” argument, the issue is precisely the same in both instances: what impact might the fresh/undisclosed evidence have had on the verdict of the jury? Following McInnes, the significance of this chapter is now limited to, first, showing that it would nevertheless be justifiable for the appeal court to adopt substantially different approaches to fresh evidence and disclosure appeals and, second, the rather unsatisfactory way in which the jurisprudence of the appeal court(s) develops as a result of their reluctance to embrace a more principled and theoretical approach to the law of evidence.

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16  Crown Counsel: From Sir Archibald Alison to Lord Brand Robert S Shiels A. the victoriaN period B. the edwardian era C. the work of crown counsel d. conclusion The position of Crown counsel is pivotal in the system of public prosecution in Scotland.1 By whatever means the authority of Crown counsel is manifest in practice, individually or collectively they constitute the controlling mind of the system of public prosecution. In the recent past the office was described succinctly by Lord Brand as “a prosecuting counsel who has been commissioned by the Lord Advocate”, whose tasks included prosecuting cases regularly in the High Court of Justiciary and, in the Crown Office, marking papers sent in by procurators fiscal for prosecution or otherwise.2 Lord Brand went on to say that he:3 found the office of Advocate-Depute most satisfying and in accordance with the best traditions of Scots law and practice. It is misleading to describe our system as adversarial. The duty of prosecuting counsel is not to obtain a conviction but to present the Crown case fully and fairly before the jury. He should not hesitate to abandon a prosecution if it becomes clear that a conviction would not be warranted.

This represents the period when Lord Brand was appointed, although certain of the offices that he described, such as Sheriff Court advocate-depute and extra advocate-depute for the Glasgow circuit, now no longer exist as such.4   1 This chapter excludes the law officers (the Lord Advocate and the Solicitor General for Scotland) for whom different considerations apply and is limited to advocates depute, although in general speech Crown counsel is the term that often applies to all collectively. The reason for that is the anonymous nature of the instructions that come out of the Crown Office.   2 Describing his appointment in 1956: Lord Brand, An Advocate’s Tale (1995) 47.   3 Ibid at 50 (emphasis added).   4 For another contemporary view see L Gordon, “The Lord Advocate and the Crown Office”, in M R McLarty and G C H Paton (eds), A Source Book and History of Administrative Law in Scotland (1956); Lord Wheatley, One Man’s Judgment: An Autobiography (1987) 95-97.

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However, the precise legal duties of Crown counsel, although generally settled over the years, have nevertheless varied from time to time and also place to place.5 The appointment by the Lord Advocate of a particular lawyer to be an advocate depute is a matter of absolute discretion and may well be informed by a variety of characteristics including empathy, temperament, skills and ability, all under the general heading of delectus personae: the only possible encroachment on the executive preferment is that of necessity or emergency.6 Moreover, appointment might be for a specific case, or series of cases of a similar nature. Private practice is not necessarily precluded,7 and nor does it follow that appointment as Crown counsel meant that a particular advocate depute had had an extensive or even any criminal practice prior to that appointment.8 In England some nineteenth-century law reformers concluded from a reluctance to prosecute on the part of some victims that there was need for a system of public prosecution similar to that in Scotland as well as elsewhere in Europe. In 1826 Sir Robert Peel expressed sympathy for the idea, believing that it would ensure a prosecution when necessary and prevent frivolous or vexatious prosecutions; he suggested that much could be learned from Scottish practice.9 There was, however, specific criticism of the immense discretion within the Scottish system.10 A suitable starting point for examination of the role is Baron Hume’s assertion that: “like other officers, whose agency may be required in several places at the same time, the Lord Advocate enjoys a power of naming deputies or substitutes, through whom his powers may be exercised, towards the doing of justice, without delay, in several parts of the kingdom”.11 Hume noted that the earliest deputation that he was able to find on record was  5 See e.g. Howitt v HM Advocate 2000 SCCR 195 where it was held at 200B-D that what happens after a conviction is not in the control of the Crown.  6 HM Advocate v Campbell (1868) 1 Coup 182; HM Advocate (1880) 4 Coup 326. Prior to these decisions it is known that Lord Cockburn had been offered and accepted a post of advocate depute before the Lord Advocate had received his commission: see G W T Omond, The Lord Advocates of Scotland (1883) vol 2, 224.   7 The point was contentious in England: see “Law Officers and private practice” (1892) 4 JR 357 where the problem is said to have dated from events in 1872.   8 G H Gordon, “Institution of criminal proceedings in Scotland” (1968) 19 NILQ 249 at 272 where the reason given for that approach being accepted was that such members of the Bar were not in any danger of being “prosecution minded”.  9 C Emsley, Crime and Society in England 1750-1900, 2nd edn (1996) 189, citing Parliamentary Debates (n s) VIV (1826) col 1232. 10 See D Hay and F Snyder (eds), Policing and Prosecution in Britain 1750-1850 (1989) 32-33 especially at n 103. 11 Hume, Commentaries ii, 132.

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one dated 2 May 1582.12 The existence of such an early source of power is of great relevance when the history, for example, of the police is considered: regulations governing the appointment and responsibilities of constables in Scotland were introduced in 1617, and subsequently amended a generation later, with a statute of 1661 forming the main basis for the administration of local justice in Scottish towns for much of the eighteenth century.13 The office of advocate depute was later described as the “first recognition by the State” to which an advocate aspires.14 It was said to “embody the State’s corrective power”,15 with the advocate depute fulfilling to some extent the function of the English grand jury:16 The Scotch [sic] system is favourable to the prisoner to begin with; the English is so at trial. The advocate depute is slow to prosecute unless he has a clear case. The private prosecutor may be to some extent governed by malice and ill-will; the advocate depute is not. The advocate depute, therefore, is generally able to count upon judicial aid in bringing a malefactor to trial; the private prosecutor frequently finds on the bench a senior on the side of the prisoner whom he had not calculated upon.

Selection for this coveted appointment, which usually marks the first step on a precarious and factitious ladder, is governed by a variety of considerations, among which may be mentioned as not the least powerful, favour, family influence, political service, as well as professional ability and promise. In Inglis’ time, 1844 to 1846, the deputes named by the Government of the day were all the young men of any brains or influence on their side.17

Sir Archibald Alison, for example, had accepted the invitation to become an advocate depute because Sir William Rae, the Lord Advocate, had advised him that if Alison took the office Rae would recommend him for Solicitor General.18 Alison became an advocate in December 1814 and he took office as advocate depute in February 1823.19 It is not clear that he matched the description of being “in general, young persons, and of short standing at the bar”.20 However, the work involved in the appointment soon confirmed Alison’s 12 J Ll J Edwards, The Attorney General, Politics and the Public Interest, (1984) 295 points out discrepancies amongst writers in purported dates for the first advocate depute. 13 D G Barrie, Police in the Age of Improvement: Police Development and the Civic Tradition in Scotland 1775-1865 (2008) 24-25. 14 J C Watt, John Inglis: A Memoir (1893) 108. 15 Ibid. 16 At 108-109. 17 At 109. 18 M Michie, An Enlightenment Tory in Victorian Scotland: The Career of Sir Archibald Alison (1997) 44. 19 Ibid. 20 Quoted in Omond, The Lord Advocates (n 6) 268.

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fear: there was virtually no time off.21 There were at that time only three advocate deputes for the whole of Scotland, although in 1822 it had been said in Parliament that the Lord Advocate “may multiply himself as many times as he pleases, and appoint an indefinite number in the country”.22.Leaving aside the question of ad hoc assistance, the number of ful-time advocate deputes was remarkably steady throughout the nineteenth century, in 1893 it was said that it had been the practice to appoint only four, “each with a definite salary”.23 The law officers did not interfere with cases or indictments unless these were extremely serious or political cases.24 Alison thought that the advantage of the system was that it entrusted the administration of criminal law to a small number of lawyers who “from the great amount of business constantly put through their hands, soon became familiar with their duties and acquainted with its niceties”.25 Indeed it was a major argument of Alison that the Scottish system of public prosecution, being largely conducted by public officials with a wealth of practical experience, allowed for a more disinterested application of the law.26 In 1833 Alison wrote that “Crown counsel are paid by fixed salaries, and have no interest whatever in increasing the number of prosecutions. By so doing they augment their own trouble, without adding any thing to their emolument”.27 Moreover, he added with subtlety, if they decline to prosecute when there is good evidence, their professional character suffers an irreparable injury, by the successful prosecution of the offence, at the instance of the injured party. To decline to prosecute in such a case would be to proclaim their own imbecility in despairing of evidence, which one of their brethren, with inferior advantages, has brought to a successful issue.28

Alison went on, in somewhat contrary terms it might be thought, to state that the advocates depute are, in general, men about thirty years of age; the immense increase of criminal business, compared with the small amount of their salaries, rendering it ­impossible 21 Michie, An Enlightenment Tory (n 18) 45. 22 Quoted in Omond, The Lord Advocates (n 6) 277. In 1867 fourteen honorary advocate deputes were appointed but this event is unexplained: see G W T Omond, The Lord Advocates of Scotland: Second Series 1834-1880 (1914) 310. Watt records that all fourteen had taken “the oaths” which suggests that they were able and intended to appear in court: John Inglis (n 14), 108 n 1. Given the sensitive political times around the Second Reform Bill there may have been an enhanced political edge to these appointments. 23 Watt, John Inglis (n 14) 109. 24 Michie, An Enlightenment Tory (n 18) 45. 25 Ibid. 26 At 45-51. 27 Alison, Practice xviii. 28 At xviii.

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to find senior practitioners of any eminence who will undertake the office. It has not been found, however, that this department of the public business has been either negligently or unsuccessfully conducted; and the greatest lawyers whom Scotland has ever produced … have been trained in this school.29

He was, however, alive to realities: to say that these circumstances ensure propriety of judgment in every case which is submitted to the consideration of the law officers of the Crown, would be to say more than can be expected of any human institution. But the result, which shall be immediately given, proves that they have done as much as has ever yet been effected by human wisdom, to attain that object.30

This may have been an oblique reference to the political problems in 1804 and also in 1822-33;31 however, a century later it was said that “since these events the Lord Advocate’s conduct has not seriously been impugned on the grounds that he had allowed political or party considerations to interfere with the judicial discharge of his duty”.32 A. THE VICTORIAN PERIOD The fourth edition of Hume’s great work was published in 1844 and by that time elements of the legal profession were becoming settled into their respective roles as understood for generations: this affected the nature of the office of advocate depute. The advocates had from their formation by legislation in 1532 survived on a monopoly of all work brought before the College of Justice, “including the preparation of cases, the actual pleading and all incidental work. They were both counsel and agent”.33 The hierarchical legal profession was accentuated by the monopoly in law that advocates had in pleading before the Supreme Courts.34 That privilege was emphasised in the traditional “chain of command” within the system of public prosecution. For example, as Crown counsel deputise for the Lord Advocate, a procurator fiscal is bound by an instruction from Crown counsel.35 Even amongst Crown counsel, however, there was an order of ranking. In 1886 the Lord Advocate (Sir John Macdonald) requested advocates depute 29 At xviii-xix. 30 At xix. Gordon thought that this point was perhaps a little excessive: Gordon (n 8) 272 n 96. 31 See Omond, The Lord Advocates (n 6) 272-286. 32 W G Normand, “The public prosecutor in Scotland” (1938) 54 LQR 345 at 354-345. 33 J B Barclay, The SSC Story 1784-1984 (1984) 53. 34 The authority for that was long established but for a contemporary challenge see e.g. Macbeth and Maclagan v Macmillan 1914 SC (J) 165. 35 Instructions in individual cases are given by Crown counsel, and anyone departing from such an instruction may be called upon to justify his or her instructions: COPFS Book of Regulations (1998) r 1.02.

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“when cases are before them in which they deem it necessary to take the instructions of the Law Officers, to back the papers to the Solicitor General, who will dispose of those which he does not consider it necessary should be laid before the Lord Advocate”.36 This approach is of course entirely consistent with a constitutional practice that the person most accountable to Parliament for a decision being invited to take that decision or at least be aware of the matter raised for the future. Such a possibility was not then theoretical: it has been said of this precise era that directives from the Home Office in London and from the Secretary for Scotland, “along with opinions from the Scottish Law Officers of the Crown also played a significant part in increasing central control over Scottish policing”.37 The consideration of the papers for individual cases sent from procurators fiscal to Crown counsel allowed for a practical review of police procedures and the efficacy of their being carried out. On the appointment in 1888 of A Graham Murray (later Lord Dunedin) as what was apparently for the first time known as a senior advocate depute, contemporary legal comment was somewhat pointed:38 Technically there is no such appointment as senior advocate depute, but practically such a distinction exists, and Mr Graham Murray has been appointed senior advocate depute over three deputes who are all his seniors at the Bar. Of Mr Murray’s eminent qualifications for the office of advocate depute there can be no question, and his appointment will undoubtedly strengthen the service. But the appointment created some surprise, and there was a feeling that if he desired to see criminal practice, Mr Graham Murray should have been simply appointed an advocate depute in the ordinary course. Mr Murray’s position at the Bar, however, is such that he could hardly have been expected to take the Junior Deputeship, and his services could have been secured only by appointing him senior advocate depute. We are no adherents of the principle of seniority in public appointments, and if the Senior Deputeship had been an office of decidedly larger responsibility, there would be no objection to an exceptionally strong man being promoted over the heads of seniors in the service. But the Deputes have all equal responsibility.

Further it was said that:39 the advantage of the Senior Depute is that he does not go on Circuit, but takes instead the Edinburgh work, and accordingly his private practice is not seriously interfered with. In the general case it would not be in the interests of the public service that the arrangements of public appointments should be altered to suit 36 Regulation 284 dated 27 Oct 1886. See Crown Office, Regulations to be Observed in Criminal and Other Investigations (1920) 53. 37 K Carson and H Idzikowska, “The social production of Scottish policing 1795-1900” in D Hay and F Snyder, Policing and Prosecution (n 10) 278. 38 (1888) 32 Journal of Jurisprudence 645-646. 39 Ibid.

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the private convenience of individuals, and it is certainly not in the interest of the members of the legal profession that patronage should be so arranged as to allow public office to be combined with the maximum of private professional emolument. In the circumstances of the case, we have no warrant to censure the present appointment, and we are sure that the arrangement was not suggested or sought by Mr Murray, but we cannot forbear an expression of regret that the entry to official life of so distinguished a member of the profession should have been signalized by a departure from the traditions of the public service and the old-established etiquette of the Scottish Bar.

The reason for the existence of a senior advocate depute is probably to be found by implication in a contemporary observation: Formerly the Solicitor General for Scotland was not expected to be in the House [of Commons]. Now it has become the practice for him to be a Member of Parliament, and if he is in Parliament, the whips, in virtue of his being a member of the Government, can compel his constant attendance.40

The general rule by the end of the nineteenth century seems to have been that the Lord Advocate was expected to be in London during the session and the presence of the Solicitor General was desirable for some of his official duties. The regular absence of the two Law Officers in London during the Parliamentary session required a supervisory role by another in their absence.41 However, in 1913 there was comment in the legal press that it seemed to have been overlooked that Robert Munro was the senior advocate depute and that this was probably because of his absences in London as a Member of Parliament.42 In the period prior to the Great War the organisation of the Crown Office was made public. For the purposes of disposal of the criminal work reported to the Crown Office there were:43 constantly in touch with this office four advocates depute, appointed by the Lord Advocate – the senior depute … chiefly attending to what is known as the home circuit, being criminal cases from the metropolitan county; while the other three deputes … take charge of the criminal business coming from the north, the east and the south. There is also an extra depute attached to the western circuit who holds office for six months at a time, and an assistant depute, whose duty is to conduct important prosecutions in the Sheriff and other inferior criminal courts … The three advocates depute other than the senior take their turn of each circuit every quarter, because the amount of work varies much in amount, and the western circuit is always heavy at Glasgow. These four advocates depute all vacate 40 (1888) 32 Journal of Jurisprudence 650. 41 For the pressures on the Solicitor General when he remained in Edinburgh with the Lord Advocate in London see H F Andorsen (ed), Memoirs of Lord Salvesen (1949) 61. 42 (1913) 29 SL Rev 90. 43 “Our Scottish official departments” (1904) 20 SL Rev 31-32.

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office on a change of Government and are replaced by the new ones appointed by the next Lord Advocate.

It seems that generally there was an order of ranking amongst Crown counsel: the advocate depute in the Sheriff Court might be promoted to be an extra advocate depute and thereafter advocate depute.44 The allowances then for all the advocates depute amounted to £2,800 in total, the extra advocate depute received £200 for six months work and the Sheriff Court advocate depute was paid by fees according to the work done.45 There were conventions and practices that were most probably passed on from one advocate depute to another without necessarily being written down in a formal sense: for example in the 1940s, most probably reflecting an earlier era, the extra advocate depute who appeared on the Glasgow circuit prosecuted in the South Court where “by custom all the below-the-belt cases were dealt with”.46 B. THE EDWARDIAN ERA In 1831 the population of Scotland was 2.447 million but by 1911 it had doubled to 4.761 million.47 At about the time that Alison was appointed an advocate depute there were two law officers and three advocate deputes in office as Crown counsel and yet eighty years later there were only two law officers and four advocates depute in office.48 There were, of course, some meaningful changes in the conditions: with the new Liberal government it was said that instead of appointing a new advocate depute for the Western circuit to hold office for six months, the appointee was to be a permanent one during the existence of that government, with eligibility for promotion. The salary was £350.49 The extra advocate depute was not merely a temporary post: at least one officer holder had the position for five years. 50 There was at this point concern in the Faculty of Advocates as to the right of 44 (1901-1902) 9 SLT (News) 21 and 121. 45 “Our Scottish Official Departments” (n 43). The extra advocate depute was popularly called “the Boots” for some unspecified – probably pejorative – reason: see (1906) SL Rev 22 46 Wheatley, One Man’s Judgment (n 4) 95. 47 E W McFarlane, “Scotland” in C Williams (ed), A Companion to Nineteenth-Century Britain (2007) 506. 48 At the front of the 1982 Scottish Criminal Case Reports volume there is a list of sixteen advocates depute. 49 (1906) 22 SL Rev 79. 50 (1900-1901) 8 SLT (News) 73. The appointment probably gave rise to a good claim for a judicial appointment. The claims for advancement associated with Crown Office holders is of course a separate but necessarily related matter.

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king’s counsel acting as advocates depute. It was thought by one commentator that there could be no objection to king’s counsel acting as an advocate depute if (as had then occurred with one person) the appointment as king’s counsel had been made while that person was already acting as an advocate depute. It was thought to be otherwise where, as had occurred with the in-coming Liberal government, three king’s counsel accepted office as advocates depute: it has hitherto been understood that when a counsel takes silk he never writes i.e. draws pleadings; now advocates depute draw, or are supposed to draw, their indictments, and it may be plausibly argued that this ought to be the work of a junior, and in holding office as Deputes while KC’s the three gentlemen … appear to be infringing on the time-immemorial rule that a senior never draws papers, but only revises them.51

Whatever a committee of the Faculty of Advocates had in contemplation about lawyers’ demarcation, a cynical commentator of the era pointed out that “it was quite well known that the bulk of our High Court and circuit indictments are drawn by the clerks to the deputes, who each receive £50 a year for his trouble”. 52 Further, in 1892 it has been commented that comparatively few advocates aspired to a seat in the House of Commons, with the explanation that in that year there were between eighty and ninety English lawyers in the House of Commons and only nine from the Scottish Bar. It was further pointed out that during the previous half century “the average has stood at three, consisting of the chief law officer – he who is in and he who is out – and the odd adventurer”.53 In both the Victorian and Edwardian eras, there was no doubt that the appointment of advocates depute was one personal to the Lord Advocate and that politics, that is to say party politics, was not an irrelevant consideration. There are two aspects to the political careers of advocates depute. First, there was a clear preference for many years for party allegiance either to be a requisite or at least a decisive factor in the decision to appoint. A true or accurate picture would require the study of the careers of many lawyers over a longer period, but a sample can provide ample evidence for the point: the professional portraits in the Scots Law Times indicate appointments and relinquishments that coincide with governments going into or out of office, but are circumspect as to allegiance as a factor in their appointment.54 51 (1906) 22 SL Rev 79-80. 52 (1906) 22 SL Rev 80. 53 Watt, John Inglis (n 14) 134. 54 (1896-97) 4 SLT (News) 57; (1896-97) 4 SLT (News) 149; (1897-98) 5 SLT (News) 45; (1897-98) 5 SLT (News) 137.

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The portraits can on occasions be explicit that appointment follows party.55 Occasionally allegiance was said to be personal rather than wholly political, although the difference might be hardly discernible: in 1897 it was written that John Craigie had “not sought official preferment, except that, a faithful follower of Mr Gladstone, he sustained the labours of an extra-advocatedepute under the late Government”.56 The second aspect was the appointment of advocates depute who remained active politically: in 1906 it could be said that there had been “only one advocate depute in living memory who also sat as a member during an entire Parliament”.57 Roger Montgomerie had narrowly missed election for Ayrshire North in an election in November 1868 but in February 1874 he was elected for the Conservative party.58 In 1886 George Omond, while an advocate depute, contested West Perthshire as a Gladstonian and was defeated.59 It was also recalled in 1906 that “since then none of the Crown junior counsel have been so venturesome as to contest a seat in Parliament”.60 Two general elections were held in 1910 as a result of the bitter constitutional battles over the House of Lords: some advocates depute, while holding appointments as such, stood for Parliament. The result of one contest was recorded in one journal with barely concealed hilarity. The first general election was:61 fought in such a bitter spirit that the wonder is that breaches of the Election Acts have not in Scotland been made the subject of judicial inquiry … One election petition nearly came into Court; indeed, it is believed that the petition was actually printed, but, to the disappointment of many the proceedings were dropped. This was a petition arising out of the Wick Burghs election, which was won by one of our advocates depute, Mr Munro, and had it gone on, two of the four election judges would have held a local inquiry at Dingwall.

The nub of the point was that at such a local inquiry it is necessary that the Lord Advocate should be represented by one of his Deputes or by the procurator fiscal of the Sheriff Court of the District, according to the provisions of section 68 of the Corrupt Practices Prevention Act 1883, and the situation would be a strange one of an advocate depute (possibly a Member of Parliament) officially appearing to represent the Crown at an inquiry into the 55 WJ Mure (1896-97) 4 SLT (News) 221. 56 (1897-98) 5 SLT (News) 133. 57 (1906) 22 SL Rev 81. 58 J Vincent and M Stenton (eds), McCalmont’s Parliamentary Poll Book: British Election Results 1832-1918 (1971) 11. 59 F W S Craig (ed), British Parliamentary Election Results 1885-1918, 2nd edn (1983) 556. 60 (1906) 22 SL Rev 81 61 (1910) 26 SL Rev 73. See Craig, British Parliamentary Election Results (n 59) 521.

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cleanliness of the methods of conducting the candidature of a colleague and fellow-politician.62

A commentator noted rather sourly that there were then, in March 1910, four advocates depute paid by the State for conducting Crown criminal work. At the recent election three of the four stood as candidates for Parliament, and of the three two have been successful and still retain their posts and salaries as Crown counsel. If the administration of the criminal law of Scotland can safely be left to two Crown counsel who have occasional assistance from their colleagues in Parliament, then let us have a reduction in the number of advocates depute and a consequent saving of money to the nation.63

It was thought that there was much (unspecified, it has to be admitted) in favour of having an advocate depute in Parliament. At that time there was a very good chance of there being three advocates depute having seats in Parliament, and it would be a difficult matter to find precedent for two, let alone three, of such officials doing conscientious duty to the office which they hold … At the present time there are four out of the six counsel representing the Crown who must closely attend to their Parliamentary duties, and how they can also efficiently perform their official functions in Scotland is yet to be found out.64

The theme of savings of public money reappeared later in 1910 at the time of the second general election:65 Four of the legal candidates are counsel for the Crown; these being the Lord Advocate, the Solicitor General, and two advocates depute. Now it stands to reason that the two remaining advocates depute who are not standing as candidates for Parliament cannot fairly be required to perform at this time the whole duties which fall to be discharged by six Crown counsel, even assuming that the two are capable of grappling with the task, and here it seems likely that the business which falls to be discharged by Crown counsel in Scotland is most decidedly interfered with by a Parliamentary election. This statement is liable to be contradicted by those interested. Contradiction, however, involves the admission that two advocates depute can discharge efficiently all business falling to be discharged by Crown counsel, and consequently that a thrifty Government ought to reduce the staff. Leaving party politics out of account altogether, and viewing the following of the legal profession as a business proposition, which nowadays it most certainly is, no sympathy need be wasted on those who with their eyes open make manifestly large financial sacrifices from patriotic motives, and they will, of course, be the last to look for sympathy on that account. 62 (1901) 26 SL Rev 73. 63 (1910) 26 SL Rev 74. 64 (1910) 26 SL Rev 74. 65 (1910) 26 SL Rev 288.

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It was also pointed out that the “holding of a seat [in Parliament] by an advocate depute saves £400 per annum to the nation, for a member’s wage [sic] is not paid in addition to the official salary”.66 It was then thought that since the appointment was made by the Lord Advocate and not His Majesty. Accordingly, the office of advocate depute was not one of profit under the Crown. The salary was paid by the Treasury at £700 per annum.67 It is perhaps surprising that comparatively little has been written about this aspect of Crown counsel.68 It is certain that party politics played a central role in the appointment of the upper level of decision-making in the system of public prosecution until the reforms of the 1970s: prior to the general election of 1970 the Labour Lord Advocate, Lord Wilson of Langside, had agreed to remove what was then regarded as an anachronism and the incoming Conservative and Unionist Lord Advocate, Norman Wylie, implemented the change.69 A generation later the matter had changed utterly with the office of advocate depute being one that disqualifies the holder from being a member of the Scottish Parliament.70 C. THE WORK OF CROWN COUNSEL Instructions, although often phrased as a request, are based on the many directions in the Books of Regulations that have given structure to what was being done at any one time. Sir Gerald Gordon has adverted to the central role of instructions and has suggested that what Crown Office are likely to do might be more interesting than what the courts do but that it was “almost impossible to find out and to state the principles” on which the Crown Office act.71 Given the period of time considered (here about 120 years) there were comparatively few individuals involved in key decision-making roles at any one time, an arrangement that probably enhanced the influential role of permanent officials. Some evidence of the influence of the permanent officials exists: David Duncan, for example, entered the Crown Office in 66 (1913) 29 SL Rev 273. 67 (1913) 29 SL Rev 295. This might not be quite correct as a few years earlier it had been said to be £750 and that dated from the time of Lord Advocate Young in the late 1860s: see (1906) 22 SL Rev 81. 68 See, however, A Maitland, “Crime: criminal administration”, in Encyclopaedia of the Laws of Scotland vol 5 (1928) 180, 183-184. 69 See the obituary of W G Chalmers in The Scotsman 9 June 2003 and also that of Lord Wylie in the same newspaper on 20 September 2005. 70 See the Scottish Parliament (Disqualification) Order 2003, SSI 2003/409. 71 G H Gordon, The Criminal Law of Scotland, 1st edn (1967) 5.

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1847 and retired forty-seven years later; the public generally had “few opportunities of knowing the influence exercised by Mr Duncan in connection with the work of the Crown Office, where every form of criminal inquiry in Scotland is closely supervised”.72 Hugh Milroy was a solicitor who joined Crown Office in 1862 and retired in 1903 after about forty years’ service.73 Thus two permanent officials covered between them a continuous period of about fifty-six years, that is to say much of the Victorian era. In a small but pivotal office, with Crown counsel fluctuating constantly, the influence of permanent officials on the business and development of criminal law over that period was incalculable. It is possible that over that time not many more officials were ever employed at Crown Office: in 1914, as the case of Oscar Slater simmered on, an angry public commentator noted that the Scottish Crown authorities did not have a bureau of permanent experts available such as is to be found in other countries … Until we can have permanent Crown representatives in conducting investigations of a criminal nature, we continue to run the risks of botched trials, for it is nonsense to think that a few clerks in the Crown Office, supported by procurators fiscal with political antecedents, and police officials, represent anything like an adequate criminal investigation bureau.74

The work of Crown counsel might then be said to have consisted of three main strands: first, there was a general supervisory function in regard to the local public prosecutors, the procurators fiscal, throughout Scotland; second, the drafting of indictments and associated papers for Supreme Court business; and third, the conduct of trials. In respect of the first of these, a series of directions, and occasionally a revised Book of Regulation, were issued in 1824, 1839, 1868, 1896 and 1920. The cumulative nature of the 1920 edition meant that many of the earlier instructions, such as that of 1886, are available to illustrate the mode of working by and amongst Crown counsel. Some of the instructions have the name of the directing law officer and are dated, but that is not the invariable practice. It is difficult to specify any single instruction that would take absolute precedence but Instruction 23 of 1920 remains indicative of an important principle applied in the past and yet relevant today. Headed “Crown counsel not to be fettered by unauthorised assurances”, the terms are that 72 (1898-1899) 6 SLT (News) 154 where there is no reference to his having held any legal qualification. 73 (1903-1902) 11 SLT (News) 101. Hugh Milroy “was ever ready to place his wide experience at the disposal of those who sought his advice”. 74 (1914) 30 SL Rev 112-113.

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when a delinquent is disposed to confess, apparently in expectation of being taken as a witness for the Crown, it must be kept in view that neither the Magistrates nor the procurator fiscal has authority to give assurances which may fetter Crown counsel in afterwards determining whether it be proper to bring such a person to trial.75

In the hierarchical system of public prosecution in Scotland, Crown counsel have the final authority.76 Moreover, their supervisory role was assured: procurators fiscal were exhorted to “exercise the utmost despatch in bringing accused parties to trial, and advocates depute will check any remissness on the part of procurators fiscal, whether in investigating or reporting, or in bringing cases to trial”.77 The advocates depute had delegated powers in the exercise of the duties of the Crown, but a General Order of 1896 stated that more frequent consultation with the Solicitor General was desirable to keep him informed of all important or unusual business, especially when the matter is at all likely to be made the subject of public discussion “or parliamentary interpellation [sic]”.78 Reference was made in the General Order to a contemporary instance of “a case of eviction or rather deforcement on eviction” being disposed of by the advocate depute in charge without consultation. It was said to be:79 not easy to frame definitions of what matters should, and what should not, be brought to the cognisance of the Law Officers. But in practice no difficulty should arise, because the common sense of the advocate depute will easily solve the question of whether a matter should be referred or not. They must remember that the Lord Advocate is responsible for all their proceedings, and that he neither ought nor can excuse himself by explaining in any particular case that the order of the advocate depute had been pronounced without consultation with him.

This need for consultation by Crown counsel extended to extra expenditure: in 1885 it was asserted that as some difficulty may arise as to the certification of expenses incurred in criminal cases which are not covered by the Exchequer table of Fees, advocates depute will, whenever it is possible, before authorising extra expense, take the opinion of the Lord Advocate or Solicitor General.80

75 Regulation 73: see Crown Office, Regulations (n 36) 11. For a more recent assertion of the inability of procurators fiscal to inhibit Crown counsel, see Brown v Farrel 1997 JC 205. 76 Although Crown counsel may have to defer to the Lord Advocate personally if a difference of view should arise amongst them. 77 Regulation 73: see Crown Office, Regulations (n 36) 11. 78 Regulation 285 dated 14 November 1896: see Crown Office, Regulations (n 36) 53. 79 General Order by Lord Advocate Graham Murray: see Crown Office, Regulations (n 36) 123. 80 Regulation 123 dated 28 February 1885. See Crown Office, Regulations (n 36) 21. For Lord Advocate Balfour’s Order, see 57.

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The otherwise undoubted and devolved discretion of advocates depute was actually specified in one place. The principle against which the instruction is to be considered was the universal principle that Crown precognitions were “very highly confidential” and in practice it was rare that their production would be ordered by the Court.81 However, in the defence of poor prisoners the Lord Advocate authorised advocates depute, when conducting prosecutions in that capacity, to act on your own discretion in all cases in allowing the counsel and agents for prisoners to see such of the Crown precognitions as you consider can be exhibited without objection. The granting of this concession is to be considered more usually in reference to all merely formal evidence and evidence of witnesses who may reside at a distance, or who, for other reasons, are difficult to precognosce.82

Second, in regard to the drafting of indictments, one cannot avoid noting the comment from a series of mid-Victorian articles that our past survey of the changes in criminal procedure will have been without result if it has not disclosed how much pounds, shillings and pence have had to do with them … Not only were advocates depute paid at one time by fees, to the increase of which the number of indictments contributed, but their clerks were, until Lord Jerviswood, while Lord Advocate in 1859, got them put on salary paid by fees on the indictments they drew. It thus, among other things, depends as much on the advocate depute, or perhaps his clerk, as on the crime of the district, whether the jury have heavy or light work on a Circuit.83

The extent to which civil pleadings influenced criminal matters is ripe for consideration.84 Finally, the prosecution of crime and the defence of the accused were reserved to advocates because of their monopoly of the right of audience in the Supreme Courts of Scotland. 85 This is of course part of the history of the legal profession itself rather than Crown counsel: two points may be made, however. First, notwithstanding a professional monopoly Crown counsel were able to determine the nature and extent of business for the Crown: “Crown counsel were seldom ever known to recommend a private party to prosecute, 81 See e.g. R W Renton and H H Brown, Criminal Procedure according to the Law of Scotland, 5th edn by G H Gordon with J MacLean and C H W Gane (1983) para 5-93. 82 Regulation 121 (see Crown Office, Regulations (n 36) 20) which regulation incorporates a letter dated 25 February 1910 conveying the instruction of Lord Advocate Ure. The same instruction allowed for the addition of defence witnesses to the Crown list so that the witnesses for poor prisoners might have their expenses reimbursed from public funds: this may be seen as a clear indication of the test of public interest being applied in small but telling ways. 83 (1877) 21 J of Jurisprudence 373 84 D R Parratt, The Development and Use of Written Pleadings in Scots Civil Procedure (2006) would provide an excellent starting point, not least because counsel who drafted civil papers one moment might well turn their attention to criminal papers the next. 85 See Rush v Fife County Council 1984 SLT 391.

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and thus relieve Exchequer. It was Crown counsel who got all the Post Office prosecutions put into their hands and those of the Fiscals.”86 Second, it was the extent and seriousness of the assumption of authority by Crown counsel consistently over a long period that enhanced their position, and that was done at Imperial expense. “Why private prosecution has fallen into desuetude in Scotland, although still competent, is not difficult to discover, in the pecuniary interest which procurators fiscal and Crown counsel had for long in its discouragement.”87 It should be added that private prosecution, despite appearances in 1877, had not completely fallen into desuetude although private prosecutions on indictment in the Sheriff Court had certainly been held to be incompetent.88 In 1909, however, there was, as is well known, a private prosecution in the High Court of Justiciary: J & P Coats Limited v Brown.89 This was a case in which the facts suggested a breach of contract on the cusp of a fraud, or vice versa. In practical terms the case allowed the prosecuting complainer to throw good money after bad. The decision reasserted the requirement for the private prosecutor to obtain the concurrence of the Lord Advocate, failing which the authority of the High Court of Justiciary, a court that will not interfere lightly with the discretion of the Lord Advocate. In short, down to the mid-twentieth century the only private prosecution on indictment in the High Court of Justiciary served to enhance rather than detract from the universal authority of Crown counsel. D. CONCLUSION Even 175 years ago it was said that the consideration of cases by Crown counsel was “part of the ancient law of Scotland”.90 The importance of Crown counsel lies not merely in the individual ability and the aggregation of talents of those appointed but also in the unity, cohesion and continuity of policy brought to a system of public prosecution in which centralised control was the essence of the system. The system could not in law function without a public prosecutor in court: the absence of a duly qualified public prosecutor meant that no proceedings could take place and conviction in that event could, accordingly, be nullified.91 86 (1877) 21 J of Jurisprudence 375. 87 (1877) 21 J of Jurisprudence 375-376. 88 Dunbar v Johnston (1904) 4 Adam 505. 89 (1909) 6 Adam 19. 90 Alison, Practice xxx. 91 Walker v Emslie (1899) 3 Adam 102.

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In the period under consideration all Crown counsel were members of the Bar but their independence from the remaining parts of the legal system (essentially the solicitors) meant that they constituted a core executive, responsible for co-ordinating and arbitrating both prosecution policy in the general sense, decisions as to proceed to trial or not, and the actual conduct of cases in the High Court of Justiciary.92 A system of public prosecution requires consideration of public law principles and practices: this was not necessarily the approach taken in the past. Crown counsel gave instructions to procurators fiscal without necessarily giving reasons for their decisions. There was a need to maintain a united front as a necessary condition of the collective responsibility that lay at the heart of the decision-making function. The parallel with the collective responsibility of the Cabinet may appear to be not unreasonable.93 The confidentiality of the decisions of Crown counsel was an act of policy to prevent others having grounds to exploit divisions if there were any discordant views. The language of Cabinet responsibility is strongly redolent of the working practices of Crown counsel. Crown counsel provided an advisory role and a supervising and controlling function within a government department while not civil servants themselves. The terms and conditions of appointment of individual Crown counsel seem traditionally to have allowed each to maintain a civil practice; that too was the position of procurators fiscal and that was not necessarily a bad thing as it cut across what might develop into departmental solidarity. It was well into the twentieth century before all procurators fiscal became civil servants.94 The survival of the idea that appointment as Crown counsel should be restricted to the Bar, thus accentuating the importance of their role as independent assessors, was perhaps paradoxical after 1927, when procurators fiscal were given greater security of tenure. There were limits within the system: the 1927 Act merely asserted in statutory form an old rule that the right of appointing and removing a person from the office of procurator fiscal was vested in the Lord Advocate.95 On one view the terms of that rule meant that any procurator fiscal had a right of direct access to meet with and 92 As all indictments in this era were drafted by advocates, the sizeable and perhaps unique collection of indictments in the Advocates Library constituted as styles or precedents a monopoly of knowledge on one aspect of Scots law to which presumably only members of the Faculty of Advocates had access: see the list of authorities and abbreviations in J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland, 1st edn (1867) xii-xv. 93 G H L Le May, The Victorian Constitution: Conventions, Usages and Contingencies (1979) 104. 94 R S Shiels, “The ‘Scotch Theory’ and the procurator fiscal” 2008 SCL 1291. 95 Sheriff Courts and Legal Officers (Scotland) Act 1927 s 1(2).

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discuss relevant matters with the Lord Advocate personally and not through others, whether Crown counsel or the permanent officials in Crown Office.96 An appointment as Crown counsel was never in the period under consideration a career in itself. It could hardly be considered to be such when advocates depute went out of office with the Lord Advocate: it was, however, a means by which preference for judicial appointment could be obtained. Service to the state and also to a political party could be rewarded after a suitable period of national service. It has also to be recognised that a period of exposure to the inner workings of central government would provide many at the Bar with some empathy for the associated problems. Further, their time on the other side of the table would allow them in future judicial posts to see both sides: audi alteram partem. The Victorian state remains elusive.97 Put alternatively, it is an error to think that historical understanding must become more perfect in proportion to the nearness to our own time. The opposite may actually be the case.98 Throughout the nineteenth century the minimal state proved remarkably enduring and the “powerful, almost schematic model of this state was of striking simplicity considering the complexity of the society to which it was applied”.99 That generality could well apply to the position of Crown counsel. However, political and administrative developments through the nineteenth century were essentially those that tended towards a greater interventionist state. It is remarkable that, notwithstanding the major political changes and fissures, there was a central mechanism in the Scottish system of public prosecution that offered immediate Parliamentary accountability through the law officers and ensured executive direction with a collective memory as well as continuity and balance.100 There was “uniformity and efficiency of action” and “uniformity of administration”, all of which are enduring attributes.101 These matters, in a clear line from Sir Archibald Alison for well over a century to Lord Brand, are as much of constitutional importance, which is to say public law, as they are of relevance to criminal law. The importance of the brief remark of Lord Brand is to advert to a greater theoretical foundation  96 That comes from a strict reading of the 1927 Act but there is no authority for the proposition and is probably best described as part of an oral tradition that has died out as older generations who asserted the existence of such a rule have retired.  97 K T Hoppen, The Mid-Victorian Generation 1846-1886 (1998) 91.  98 G Best, Mid-Victorian Britain 1851-1875 (1971) 282.  99 H C G Matthew, Gladstone 1875-1898 (1995) 388. 100 “Again and again centralization was attacked as foreign to the national spirit”: Hoppen, The Mid-Victorian Generation (n 97) 104. 101 Normand (n 32) 350 and 352.

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to the Scottish system than may initially have been thought. It would appear that the ostensibly adversarial system was heavily supervised and as a consequence greatly influenced by Crown counsel. Sir Gerald Gordon has made an important contribution to Scots criminal law with the publication of his great work on the subject: there is, however, quite clearly a deeper history and theoretical basis to the modern criminal legal system of Scotland. This might profitably be studied further in order to provide a necessary background to Gordon’s Criminal Law, and thus show the value of his work in even sharper relief.

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17  The Codification of Criminal Procedure J R Spencer A. the codification of criminal procedure in ­continental europe B. codification in the english-speaking world: failure in england, success elsewhere C. the new attempt to codify criminal procedure for england and wales Much has been written in recent years about attempts to codify, for different parts of the United Kingdom, substantive criminal law – not least, Eric Clive’s contribution to this volume.1 Considerably less has been written about attempts to codify criminal procedure. But here too there is a story to tell. And it is a story which, in a book to honour the leading Scottish writer on all aspects of criminal justice, it seems particularly appropriate to tell, because it is one in which, at least for the present, Scotland has taken the lead. While the main rules of English criminal procedure, insofar as they are cast in statute rather than in case law, are still scattered across a mass of individual Acts of Parliament enacted from the middle of the fourteenth century to the present day, the Scottish statute law is conveniently assembled in a single modern consolidating statute: the Criminal Procedure (Scotland) Act 1995. The fact that Scotland has a code of criminal procedure will come as a surprise not only to most English lawyers, most of whom know shamefully little about criminal law north of the Border, but perhaps to some Scottish lawyers too, because they are not accustomed to describe the Criminal Procedure (Scotland) Act as a code. In this they are right, to the extent that it is not a complete statement, in written form, of the rules of the whole body of Scottish criminal procedure, but only a rationalised consolidation of the various pre-existing statutes that regulated the greater part of it. But   1 See ch 4 above.

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I believe it is proper so to call it. In this chapter, I shall use the term “code” to cover rationalised compilations of existing law as well the more radical type of document that sets out to put the whole system into written form, usually with many changes in the process. And as we shall see later, these two contrasting types, though different, are related. Viewed in context, each concept stands at the far end of a continuum. In reality, codes of criminal procedure (and indeed attempted codes that never reached the statute book) are often an amalgam of the two ideas. In the rest of this chapter I shall not presume to talk further about Scottish criminal procedure, and shall discuss the subject from the perspective of an English lawyer. The main purpose of this chapter is to discuss the various attempts that have been made to codify criminal procedure south of the Border. As readers will see, the chapter is divided into three sections. The first, which sets out the broader context, briefly describes the history of criminal procedure codes in continental Europe. The second describes the unsuccessful attempts to introduce a criminal procedure code in England in the nineteenth century, and the more successful attempts to codify it in some other parts of the English-speaking world. And the third and last will tell the story, still ongoing, about the attempt to revive the idea in England in the early years of the present century. A. THE CODIFICATION OF CRIMINAL PROCEDURE IN CONTINENTAL EUROPE In continental Europe the codification of criminal procedure has a history that goes back 500 years – to long before the time of Bentham, and the general movement towards codification of the law that grew up after the French Revolution. The story, in fact, began in the Renaissance rather than the Age of Reason. In their time, two pre-Revolutionary codes of criminal procedure were particularly famous. The first was the Constitutio Criminalis Carolina, usually known as the “Carolina”, which was enacted in 1532, after many years of debate, as a code for the collection of central and eastern European states that went by the name of the Holy Roman Empire.2 The Carolina derives its name from the Emperor, Charles V, in whose reign and in whose name it was enacted. It was   2 For an account in English, see J H Langbein, Prosecuting Crime in the Renaissance: England, Germany and France (1974), which contains inter alia an English translation of the articles dealing with criminal procedure. And see E Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege, 3rd edn (1964) §§  104-116.

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heavily based on an earlier code of 1507, applicable in part of the territory, which was the work of the German jurist Johann von Schwarzenberg. The Carolina was a code of both criminal procedure and criminal law, with 140 paragraphs devoted to the first and seventy-seven to the second. The main aim of the new code appears to have been to create a more civilised and refined version of the inquisitorial procedure, in particular by limiting the use of torture, on which the inquisitorial system in its earlier forms heavily depended. Written originally in German, it was translated into many other languages, including Latin – the language which, in those days, ensured its widest circulation – and it influenced thinking about criminal procedure in many parts of Europe for several centuries.3 The second was the Ordonnance Criminelle, alias the Ordonnance de Sain-Germain-en-Laye, which was promulgated as a criminal procedure code for France under the “Sun King”, King Louis XIV, in 1670. This was drafted for the king by a team of experts, the minutes of whose discussions are preserved.4 Like the Carolina, the Ordonnance Criminelle was designed to regulate in greater detail a form of inquisitorial procedure already in existence, but unlike the Carolina it was exclusively concerned with criminal procedure and did not also deal with criminal law. With modifications – including the abolition of torture by Louis XVI in 1788 – the Ordonnance of 1670 governed French criminal procedure until after the French Revolution. It was abrogated by the revolutionaries in 1791, but its influence is to be seen in the code that, under Napoleon, eventually replaced the laws of the revolutionary period. Although the period before the French Revolution produced some codes that were more modern than the Carolina and the Ordonnance Criminelle,5 it is Napoleon’s Code d’instruction criminelle of 1808 that can justly claim to be the “grandfather” of the modern continental criminal procedure codes. Unlike most previous attempts at codification, this was not an attempt to put the existing system down on paper, with improvements, but to construct a system that was new from A to Z.  3 Langbein, Prosecuting Crime in the Renaissance (n 2), citing in particular E Schmidt, “Die Carolina” (1933) 53 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Germanistische Abtei­ lung) 34.   4 See N Picardi and A Giuliani, Code Louis: vol II – Ordonnance criminelle 1960 (1996). This book sets out the text of the Ordonnance, plus the minutes of the Commissioners, together with a preface and a comment by A Langui. An account in English is contained in A Esmein, A History of Continental Criminal Procedure, With Special Reference to France (tr J Simpson, 1913).   5 Among the others were the “Leopoldine”, a code for Tuscany promulgated by Archduke Leopold in 1786, and the “Theresiana”, a code for Austria promulgated by the Empress Maria-Theresa in 1768.

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This came about as follows. In a temporary period of admiration for all things English, in 1791 the revolutionaries had initially replaced the traditional French system of criminal procedure, which was heavily inquisitorial, with a new system which was – or which they believed to be – a copy of the current English one. But the experiment was unhappy because the new procedure proved to be incapable of coping with the wave of crime and disorder that swept the country in the wake of the collapse of the existing social order. This unhappy experience led French lawyers to see some merits in the more authoritarian and inquisitorial system that the revolutionaries had so cheerfully abolished. And so, under Napoleon, an attempt was made to construct a new “mixed” system in which the better features of the old French system and the English system were fused together.6 The result was a form of procedure in which there was an “inquisitorial” pre-trial phase conducted by a juge d’instruction, followed by an “adversarial” trial before a new court that had taken no part in the investigation – and which, in grave cases, sat with a jury. The “CIC”, as the French usually call it, was exported, in the wake of Napoleon’s armies, to the other parts of Europe which France for a time controlled. After the defeat of Napoleon the French withdrew from the countries they had conquered, but left their codes behind, the CIC included. Although a reminder of the French occupation, these were widely seen as an improvement on the laws they had replaced and the newly-liberated countries were in no hurry to go back to the chaotic laws they had had before. In one of them, Belgium, the CIC of 1808 remains in force until this day (though subject, of course, to a vast number of amendments). In France, where it originated, it lasted until 1958, when it was replaced by the current French Code, the Code de procédure pénale, which is in essence a modernised and expanded version of the CIC.7 But from the end of the French occupation the other countries gradually replaced the CIC with new criminal procedure codes of their own – though for many of these, the CIC was the initial underlying model. From 1814 onwards the detailed history of the codification of criminal procedure in continental Europe becomes too complicated to describe in detail here, because (in essence) every country had its own. However, 6 See Esmein, History of Continental Criminal Procedure (n 4) Pt III, title II. 7 The CPP of 1958 was the work of an official commission chaired by the procureur général, M Antoine Besson. It was an “in-house” technocratic reform stage-managed by the government and – unlike what took place in Italy thirty years later – the emerging text was not circulated for discussion, and neither the courts nor legal academics were invited to comment on the draft. See R Merle and A Vitu, Traité de droit criminal, 7th edn (1997) §  213.

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one general trend is worth mentioning, which is the tendency of European states to draw up new codes of criminal procedure at times of major political change, as part of the process of marking the “new dawn”. In 1987, for example, a new and more “liberal” Còdigo de Processo Penal was prepared and introduced in Portugal, in reaction to its return to demo­cracy, at the end of many years of dictatorship. Similarly, a number of countries in Eastern Europe introduced new codes of criminal procedure following the fall of the Iron Curtain and their re-alignment to the West: for example, Poland, which adopted both a new code of criminal law and a new code of criminal procedure in 1997. But the habit of marking new political eras with new codes, including codes of criminal procedure, goes back much earlier in time. The foremost example was the code for the newly-united Germany, the Strafprozeßordnung, which was adopted in 1877 and came into force in 1879. This drew upon the codes that had been created in a number of the component states in a spirit of reform that followed the unsuccessful attempt at a “liberal” German unification in 1848. Conforming to the popular stereotype of products German, the Strafprozeßordnung was solidly engineered and has proved exceptionally durable. Shorn of a number of undesirable modifications that were made to it during the Nazi period, it still regulates criminal procedure in the newlyreunited Germany of today.8 Italy, like Germany, acquired a new code of criminal procedure in the aftermath of unification;9 but unlike Germany, it has discarded and replaced its criminal procedure code several times over in the course of its history since. During fascism, a new and supposedly “fascist” code of criminal law and criminal procedure was introduced in 1930. The procedural part of Codice Rocco (as it became known, after the eminent lawyer, Arturo Rocco, who was in charge of the drafting project) survived, with modifications, until the end of the 1980s, when after many years of discussion it was replaced by a new Codice di procedura penale, designed to reshape Italian criminal procedure along “Anglo-Saxon” and “adversarial” lines. This new code was drawn up by an official commission, under the authority of an Act of the Italian parliament which set out a list of basic principles, and then left the commission to do the detailed work.10 Conforming to the stereotype of things   8 For this I am indebted to the paper written by Antje Pedain for the conference in 2006: see n 49 below, and also to Schmidt, Einführung (n 2), §  299.  9 The Codice Zanardelli of 1889. 10 For a full account, see Mario Chiarario, Procedura penale: un codice tra “storia” e cronaca, 2nd edn (1996). For an account of the new Code in English, see E Amodio and E Selvaggi, “An accusatorial system in a civil law country: the 1988 Italian code of criminal procedure” (1989) 62

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Italian, the Codice di procedura penale of 1988 is, as criminal procedure codes go, a thing of beauty. It is logically arranged and clearly written. And in consequence, it enables anyone who can read the language, even imperfectly, to discover without difficulty how Italian procedure operates – or at any rate, how in principle it is supposed to do so. B. CODIFICATION IN THE ENGLISH-SPEAKING WORLD: FAILURE IN ENGLAND, SUCCESS ELSEWHERE As most readers of this chapter already know, the nineteenth century saw not one but two serious attempts to equip England and Wales with a penal code. The first was Lord Brougham’s project, in which a group of commissioners laboured from 1833 to 1849 to produce a series of reports, which led in 1853 to a series of Criminal Law Amendment Bills, all of which ultimately failed in the face of opposition from the judges: a reaction which “resembled the clamorous protests that might have been expected from a body of total abstainers asked for their views on a proposal to provide the pupils at state schools with tots of whisky instead of free meals”.11 The second attempt, which took place between 1878 and 1883, was inspired and driven by Sir James Fitzjames Stephen, and this ultimately foundered, not because the judges were opposed to it, but because the attention of Parliament was diverted from reforming the criminal law to attempting to deal with the Irish question.12 What appears to be less well known is that each of these attempts to codify substantive criminal law was coupled with an attempt to codify criminal procedure. Brougham’s Criminal Law Commissioners were instructed, among other things, to “make a Report on Criminal Procedure, with a Digest of the existing Law relating thereto”,13 and criminal procedure was the subject of their eighth and last report, which appeared in 1845. This was the work of two men, both well-known lawyers in their day, though now more or less forgotten. One was Henry Bellenden Ker (1785-1871), a well-connected barrister and man of Temple Law Review 1211, and the paper written by A Gualazzi for the codification conference in 2006 (see n 49 below). And see generally A Perrodet, “The Italian system”, in M Delmas-Marty and J R Spencer (eds), European Criminal Procedures (2002) 348. 11 R Cross, “The reports of the Criminal Law Commissioners (1833-1849) and the abortive Bills of 1853”, in PR Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978) 5. 12 G Williams, Criminal Law: The General Part, 2nd edn (1961) §  187; L Radzinowicz, “Sir James Fitzjames Stephen 1829-1894, and his contribution to the development of criminal law” (Selden Society Lecture, 1957). 13 Eighth Report of Her Majesty’s Commissioners on Criminal Law (1845) 3.

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many talents, who was not only “an energetic and innovative, if sometimes impractical, law reformer” but also an expert in the cultivation of orchids.14 The other was Thomas Starkie (1782-1849), a barrister who edited a set of law reports, wrote exhaustive (and exhausting!) practitioners’ texts on defamation, evidence and criminal pleading, and in 1823 become the second Downing Professor of the Laws of England at the University of Cambridge. The draft Code of Criminal Procedure that was contained in their report was, in size at least, a monster: with no less than 1,308 articles, spread over twelve chapters – nearly ten times the number of articles in Stephen’s attempt to draft a criminal procedure code thirty years later. Part of the reason for its size was the fact that it sought to be comprehensive, covering every aspect of the subject. But another reason was the conservative view that Ker and Starkie took of their task, which they interpreted as being primarily to codify English criminal procedure as it then stood, and only secondarily to attempt to simplify or reform it. As they explained, in order to execute our duty as nearly as might be within the limit prescribed to us, we have, in many instances, adhered strictly to the rules of the existing law, in preference to the preparing and suggesting of new ones. Although many alternations might, we think, be made with advantage, they are frequently of such a nature as to involve the preparation of a number of new rules, the substitution of which for those at present existing would, if the reasons for alteration were to be disapproved, be so much useless labour.

In consequence, substantial parts of the Ker and Starkie Code were devoted to the codification of things that were already obsolete, or nearly so: like outlawry, and the hue and cry. Similarly, a huge number of articles dealt, in minute detail, with arcane issues about the territorial jurisdiction of magistrates and the various criminal courts. Of certain aspects of the existing law the authors were highly critical, among them the provision – or be more accurate, the absence of any provision – for a defendant to appeal against his conviction on the merits.15 But these criticisms the authors kept to the pages of the report, and they did not attempt to produce solutions to the problems they had identified in the articles of the draft Code that was attached to it. Looking at this draft Code 150 years later provokes two competing feelings. The first is a sense of wonder and admiration at the quantity of painstaking labour that went into it; and the second is a lack of surprise that it never reached the statute book. And this lack of surprise is coupled with a degree 14 W R Cornish and D J A Cairns, “Ker, (Charles) Henry Bellenden (c. 1785-1871)”, Oxford Dictionary of National Biography (2004) (www.oxforddnb.com/view/article/15447). 15 Eighth Report of Her Majesty’s Commissioners on Criminal Law (1845) 19.

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of relief because, apart from its mammoth size and retrospective gaze, the style of the document is anything but pleasing. The Ker and Starkie Code combines, often on the same page, relatively neat and crisply-drafted new provisions designed to codify the common law and huge, hideous chunks of virtually unreadable text, lifted straight out of existing Acts of Parliament. The second attempt at codification was, from the beginning, the initiative of Sir James Fitzjames Stephen.16 It was he who, at the outset, created the pressure for a further attempt in a forthright article entitled “Codification in India and England” which he published in the Fortnightly Review17 in 1872, shortly after his return to England from India. While in India he had been much impressed by the advantages of the codification of criminal law that had been carried out in the early 1860s. This consisted not only of the Indian Penal Code, which Macaulay had drafted in 1837 and which had finally been enacted, a year after Macaulay’s death, in 1860, but also of the Code of Criminal Procedure, which had been enacted in the following year.18 Unlike the Penal Code, this was more in the nature of a compilation of existing statutes than a comprehensive statement of the law. However, said Stephen,19 [n]otwithstanding this deficiency, the advantage of having the whole written law upon the subject contained in a single enactment was so great that the Criminal Procedure Code was an immense assistance to the administration of justice.

Pressing ahead with his usual energy, Stephen then drafted a Criminal Code (Indictable Offences) Bill which he persuaded the government of the day to take up. In 1878 it was introduced, then withdrawn and referred to a Royal Commission of judges, which made various amendments to it; in this amended form it was reintroduced in 1879. The Stephen code was in two parts. The first, as everyone remembers, was a code of substantive criminal law, and the second, as is now largely forgotten, was a code of criminal ­procedure. The procedural part of Stephen’s code was in almost every way the antithesis of the earlier code drafted by Ker and Starkie. In the first place it was immensely shorter: a mere 178 clauses, as against their 1,308. This contrast in size was partly due to the fact that Stephen’s code, unlike theirs, did not attempt to be comprehensive, but dealt only with the prosecution of ­indictable offences. But its more compact size was also a consequence of the second 16 R Cross, “The making of English criminal law (6): Sir James Fitzjames Stephen” [1978] Crim LR 652; Radzinowicz, Sir James Fitzjames Stephen (n 12). 17 J F Stephen, “Codification in India and England” (1872) 18 Fortnightly Review 644. 18 Act XXV of 1861. 19 Stephen (n 17) 654.

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major difference, which is that Stephen’s code looked forwards instead of backwards. Unlike Ker’s and Starkie’s draft, Stephen’s text attempted to reform and simplify the law governing criminal procedure, and not merely to reduce the existing jungle to a written form. For example, under Stephen’s code, the defendant would have been made competent as a witness in prosecutions for offences of all types: a change which, though it might seem obviously necessary to us, was controversial at the time and took another twenty years to be achieved. Other reforms that his draft contained were the abolition of the distinction between felonies and misdemeanours; the abolition of the rule that no civil action may be brought for an act that is a crime until the offender has been prosecuted; and the extension of the power of justices of the peace to enable them to authorise a search for evidence of any indictable offence: all necessary changes which came about eventually, though not until the second half of the next century.20 The third major difference was one of style. Instead of the patchwork that Ker and Starkie put together, Stephen rewrote everything – and did so in his usual clear and forceful language. His draft, unlike theirs, was a contribution to legal literature, in more senses of the phrase than one. As everybody knows, the Bill containing Stephen’s code was eventually dropped for want of Parliamentary time. This was not quite the end of the story in England, because in 1883 the Attorney General, Sir John Holker, made an attempt to resurrect the procedural part of it, although this time the Bill never got beyond the Standing Committee to which it was referred.21 As what might be called an unofficial final movement to an unfinished symphony, in the same year Stephen, with the help of his son, published as a book A Digest of the Law of Criminal Procedure in Indictable Offences.22 Although the attempt to enact Stephen’s code in England failed, in the years that followed it formed the basis for criminal codes that were enacted

20 The first two reforms were introduced by the Criminal Law Act 1967, and the third by the Police and Criminal Evidence Act 1984. In his original draft, Stephen also included provisions designed to deal with miscarriages of justice by giving the convicted defendant the right to seek a new trial, but this was deleted by the Royal Commission of Judges. 21 Radzinowicz, Sir James Fitzjames Stephen (n 12). 22 (1883). Though written with the benefit of the work that he had done in the preparation of the procedural part of his Draft Code, with which there are some similarities, this book is essentially different, inter alia because it was designed to set out English criminal procedure as it then was, rather than to simplify it and reform it. Unlike Stephen’s Digest of Criminal Law and his Digest of the Law of Evidence, both of which went through many editions, and were still in current use until well after the Second World War, the Digest of Criminal Procedure appears to have “fallen on its face”, and there were no subsequent editions; but the first edition was reprinted by Elibron Classics in 2000.

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in a number of parts of the British Empire: Canada, New Zealand,23 Western Australia, Tasmania and the Northern Territories. In adopting Stephen’s code, these countries took both parts of it; which explains why, to this day, a number of countries in the Commonwealth – like Canada and New Zealand – have double-barrelled criminal codes, the second half of which is a code of criminal procedure. The codification of criminal procedure has also been widely achieved in the United States. The first attempt in this direction was made in the 1820s by Edward Livingston,24 an eminent and energetic codifier and prominent member of the Louisiana Bar, who was partly responsible for the Civil Code that was enacted in the State of Louisiana in 1825. In 1821 he was commissioned to revise the criminal law of the State of Louisiana, and to this end produced in 1824 his System of Law, a collection of four related codes: a penal code, a code of criminal procedure, a code of evidence and a code of prison discipline. This mammoth work involved him in heroic labours, not least because, just after he had completed it, the only copy of the manuscript was accidentally destroyed by fire and he had to start again from the beginning. Though Livingston’s scheme was much discussed, on both sides of the Atlantic, no part of was ever enacted – either in Lousiana, for which he first prepared it, or by the Federal authorities, to whom he presented it when it had failed to make progress in Louisiana.25 Greater practical success attended the second attempt, which was made fifty years later by the New York lawyer David Dudley Field.26 After being prominently involved in a Commission appointed by the State of New York that produced a code of civil procedure which was enacted in that state in 1848, in 1865 he produced a “criminal code” which, like Stephen’s draft code, was both a code of substantive law and a code of criminal procedure.27 After twelve years of discussion this was finally enacted in New York in 1881, and thereafter quickly adopted in a series of other states, among them California. The “Field Code” was a compilation of existing statutory material rather than a rational restatement of the 23 S White, “The making of the New Zealand Criminal Code Act 1893: a sketch” (1986) 26 Victoria University of Wellington Law Review 353; and see the paper by A T H Smith (n 49) below. 24 1764-1836. 25 The story is told in the preface to The Complete Works of Edward Livingston on Criminal Jurisprudence; Consisting of Systems of Penal Law for the State of Louisiana and for the United States of America (first published by the US National Prison Association in 1873, and reprinted, with the co-operation of the American Correctional Association, by Patterson Smith, Montclair, New Jersey, in 1968). 26 1805-1894. 27 The Penal Code of the State of New York, Reported Complete by the Commissioners of the Code (1865).

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law, and useful as this was, some Americans were critical of it28 and began to press for a codification along lines that were more radical. It was with general aspirations of this sort that in 1923 the American Law Institute was founded. One the first projects of this new body was a draft Code of Criminal Procedure, which it offered to the world in 1930.29 Forty-five years later, in 1975, this was followed by a Model Code of Pre-Arraignment Procedure. As in the area of substantive criminal law with its well-known Model Penal Code,30 the drafts of the American Law Institute have been a source of inspiration to the individual states of the Union when drawing up or rewriting criminal procedure codes. A further major step towards the codification of criminal procedure in the USA was the creation of the Federal Rules of Criminal Procedure, a neat and tidy code which for the past sixty years has governed criminal procedure in the Federal courts. Their life began in 1934, when Congress passed an Enabling Act which in essence delegated the making of rules for the Federal courts to the Federal judiciary.31 After a long period of gestation, the first version of the Rules was adopted in 1946. After a number of amendments and updatings, a comprehensively revised version was adopted in 2002. The Federal Rules, like the work of the American Law Institute, have been widely copied in the various states.32 C. THE NEW ATTEMPT TO CODIFY CRIMINAL PROCEDURE FOR ENGLAND AND WALES After the abortive attempt to enact Stephen’s draft code in England, a century passed before the issue of codification was raised there again; and when it was, it was at first with reference to substantive criminal law alone. In the early 1980s, a group of academic lawyers worked under the auspices of the Law Commission to produce a draft criminal code, a preliminary version of which was published in 1985,33 and a revised version in 1989.34 This work of this Codification Group, unlike that of Stephen and the Royal Commission of the 1870s, was centred exclusively upon the codification of substantive law. 28 S H Kadish, “Codifiers of the criminal law: Wechsler’s predecessors” (1978) 78 Columbia LR 1098. 29 American Law Institute, Code of Criminal Procedure: Official Draft (1930). 30 American Law Institute, Model Penal Code: Proposed Official Draft (1962). 31 Rules Enabling Act, 28 U.S.C. §§ 2071-2077. 32 See Jonathan Wroblewsky’s paper for the codification conference in 2006 (n 49). 33 Law Commission, Codification of the Criminal Law: A Report to the Law Commission (Law Com No 143, 1985). 34 Law Commission, A Criminal Code for England and Wales (Law Com No 177, 1989).

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And to the general regret of judges35 as well as of most academic lawyers, even this limited project failed to interest the government of the day – or of later days – sufficiently to persuade them to include it in their legislative programme. Ten years later the Statute Law Society tried to revive the dying embers of the Law Commission’s project by making the codification of the criminal law the subject of a conference in 1999. Going off at a tangent to the main topic of the conference, one speaker – the author of this chapter – used the occasion to present a paper arguing the case for the codification not of criminal law, but of criminal procedure. His paper was published some months later as an article in the Criminal Law Review.36 Shortly afterwards Lord Justice Auld was invited by the Lord Chancellor, the Home Secretary and the Attorney-General to conduct a review of the criminal courts. Lord Justice Auld had been present at the Statute Law Society’s conference earlier in the year; and in his Review,37 which was published in 2001, he gave great prominence to the case for codification. In Chapter 1 he:38 took the opportunity early in the Report to join the swelling chorus for codification of the criminal law, a basic tool for understanding and application of the law commonplace in many civil and common law jurisdictions.

He then briefly set out the case for comprehensive codification, comprising a criminal offences code, a code of procedure, a code of criminal evidence and a sentencing code. And then in Chapter 11 he developed, at some length and in some detail, the particular case for a code of criminal procedure. Having pointed to the example of Scotland, where the main statutes had been usefully consolidated, he then said that England should follow where Scotland has led. Taking up the practical suggestion made at the conference and then in the article in the Criminal Law Review, he said that39 we should proceed in two stages. First, there should be an exercise in consolidation of primary and secondary legislation coupled, possibly, with some codification of the more important and uncontroversial common law rules. This would be a valuable exercise in ground clearing, in identifying the inconsistencies and anomalies and in searching for and identifying some broad overriding principles … 35 Lord Bingham, “A criminal code: must we wait for ever?” [1998] Crim LR 694; M Arden, “Criminal law at the crossroads: the impact of human rights from the commission’s perspective and the need for a code” [1999] Crim LR 439. 36 J R Spencer, “The case for a code of criminal procedure” [2000] Crim LR 519. 37 R E Auld, Review of the Criminal Courts of England and Wales (2001). 38 Ibid ch 1 §  35. 39 Ibid ch 10 §§  276 and 277.

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  A start could then be made on codification, an exercise of both systematic restatement and reform, with the aim of producing a single corpus of rules for a unified Criminal Court.

An important part in a scheme for codification should, he said, be played by a “Criminal Procedure Rule Committee”, similar to the Civil Procedure Rule Committee which was (and is) responsible in England and Wales for drawing up the procedural rules for the civil courts. Although some rules of criminal procedure raise important points of principle that would have to be determined by Parliament, the new body, he said, could be given the responsibility for formulating the bulk of the work. This new committee, he said:40 should be chaired by the Lord Chief Justice and should include judges from each level of the criminal court … It should also contain a number of experienced criminal practitioners from both branches of the profession, and at least one academic specialising in the field, together with appropriate representatives of voluntary organisations with a direct interest in the work of the criminal courts. And it should be supported by a full-time staff of lawyers and administrators with similar experience.

Responding to this, the government, in a White Paper entitled Justice for All, announced its conversion to the cause of codification. In this document it deplored the fact that “in Britain, you still need a whole library to understand the law’s rules and procedures”.41 And shortly afterwards it took one practical step in this direction when, in the Courts Act 2003, it caused to be included provisions creating the proposed Criminal Procedure Rule Committee.42 This new body was constituted more or less as Auld proposed.43 To this new committee were transferred various specific rule-making powers that had previously belonged to a range of ad hoc committees created piecemeal over many years. And more importantly, it was given in its own name extensive powers to make “rules of court (to be called ‘Criminal Procedure Rules’) governing the practice and procedure to be followed in the criminal courts”.44 By section 72 of the Act, the Lord Chancellor may, after consulting the Lord Chief Justice, “by order amend, repeal or revoke any enactment to 40 Ibid ch 10 § 279 41 Justice for All (Cm 5563 : 2002). 42 Courts Act 2003 ss 68-73. 43 Courts Act 2003 s 70. Auld’s proposed list was shorn of his suggested academic and in its place appeared a person nominated by the Home Secretary and another nominated by the Association of Chief Police Officers. Since the provision was first enacted, the list of members has been changed in various ways, notably by removing the Home Secretary’s nominee, and substituting a nominee of the Lord Chancellor. Apart from the Lord Chief Justice, who is a member ex officio, the other members, who in principle represent the particular groups mentioned in the section, are also nominated by the Lord Chancellor. 44 Courts Act 2003 s 69(1).

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the extent that he considers necessary or desirable” in order to facilitate the making of Criminal Procedure Rules. And by section 69(4): Any power to make or alter Criminal Procedure Rules is to be exercised with a view to securing that – (a)  the criminal justice system is accessible, fair and efficient, and (b)   the rules are both simple and simply expressed.

At the time this legislation came into force the Lord Chief Justice was Lord Woolf, a strong-minded reforming judge with firm views about the virtues of codification and the need for the text of the law to be simple and accessible. At an earlier stage in his career it was he who had masterminded a major overhaul of civil procedure, which involved rewriting the Civil Procedure Rules45 – which are in reality if not in name the English code of civil procedure. His views on the need for the rules of criminal justice to be readily accessible are indicated by a passage from a judgment in a high-profile criminal case, where he spoke of:46 the principle that it is a requirement of almost every modern system of criminal law, that persons who are intended to be bound by a criminal statute must first be given either actual or at least constructive notice of what the law requires. This is a requirement of the rule of law, which in relation to the criminal law reflects the need for legal certainty.

Under his leadership, the Criminal Procedure Rule Committee rapidly produced a “mini-code” of criminal procedure in the form of the Criminal Procedure Rules in 2005.47 These new rules restated in an orderly form and simple language a large body of what might be called “second-level” rules of criminal procedure, which had previously been scattered about in various pieces of secondary legislation. And, even though the new Criminal Procedure Rules, unlike the Civil Procedure Rules, were really only a “mini-code” of “second-level” rules, the committee decided that the Criminal Procedure Rules, like the Civil Procedure Rules, should begin with a statement of an “overriding objective”, setting out in broad terms what the aims and objects of criminal procedure were supposed to be. Of this “overriding objective”, more will be said later. With the new Criminal Procedure Rules the Criminal Procedure Rule Committee had consolidated and rationalised as much of the rules of criminal procedure as had previously been cast into various forms of secondary legislation. But what was to be done about the much bigger issue of the uncodified 45 Civil Procedure Rules 1998, SI 1998/3132. 46 Christian v The Queen [2007] UKPC 47, [2007] 2 AC 400 at para 40. 47 Criminal Procedure Rules 2005, SI 2005/384.

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primary legislation? In the hope of finding a way of reducing this to some orderly form as well, in May 2005 the Criminal Procedure Rule Committee set up a Codification Group, with Lord Justice Auld as chairman. With the support of the then Lord Chancellor, Lord Falconer, as well as of the Lord Chief Justice and the President of the Queen’s Bench Division, this Group supervised the collection in one place of all the primary legislation, with a view to rationalising and organising the material, so that it could eventually be turned into an English equivalent of the Criminal Procedure (Scotland) Act. This work was done by civil servants in the Department of Constitutional Affairs (as it was then called)48 during 2005 and 2006, with substantial help from the Law Faculty at the University of Cambridge. The Codification Group thought that, before going any further, it would be useful to hear from other legal systems which have managed to reduce the main rules of their criminal procedure to writing what their experiences had been. With that in mind, in January 2006 it organised an international conference in Cambridge, with the help of the university’s Law Faculty. For this, the “home team” was fortified by the Lord Chief Justice and his Deputy, the head of the Criminal Law Policy Unit at the Home Office, and a group of academics. The “visiting team” consisted of judges, academics and others from France, Germany, Italy, Belgium, Holland, and within the English-speaking world, from Scotland, New Zealand, Australia, Canada and the United States. The visitors produced background papers of excellent quality, and a discussion of the highest level followed.49 A subject that was at the forefront of the minds of the members of the Codification Group was the practical mechanics of how the consolidated collection of primary legislation which was being assembled could eventually be turned into statutory form. One possibility, at least in theory, was persuading the government to include a Criminal Code Bill in its legislative programme. Another was to try to persuade the Lord Chancellor to use his powers to “amend enactments” under section 70 of the Courts Act to turn some parts of the primary legislation into new chapters of the Criminal Procedure Rules – a solution that looked feasible for the parts that are not politically sensitive. During the first months of 2006 the work of assembling all the existing primary legislation was completed, and with the help of Cambridge Law Faculty a simple computer programme was devised so that it was possible 48 Until 2003 it had been called the Lord Chancellor’s Department. In 2007, following a further rearrangement of government departments, it became the Ministry of Justice. 49 A collection of papers written for the Cambridge codification conference in January 2006 is avail­­able on the Law Faculty website (www.law.cam.ac.uk/about-the-faculty/project-to-codifycriminal-procedure.php).

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to navigate around it: a necessary tool, since the collection consisted of some 2,750 provisions. And then towards the end of 2006 the project ran out of money. The Department of Constitutional Affairs had a spending cut imposed on it by the Treasury, and could no longer afford the time of the small team of civil servants working on the project. At this point Sir Robin Auld wrote to Lord Falconer, who was still the Lord Chancellor, to ask for the extra funds needed to enable the work to continue. After a delay of many weeks his request was met with a rebuff. In declining the request, Lord Falconer said that he no longer supported the project. For this change of mind, he gave the following explanation:50 it is by no means certain that in the long term it would amount to a consolidation and nothing more, or that it really would be cost effective and uncontroversial. And I have significant doubts about whether time could be found for it in any legislative programme presently foreseeable.

At this point the codification project appeared to have been killed stone dead: the time, energy and enthusiasm of those who had worked upon it wasted, and the public money spent upon it poured down the drain. Then in 2007, at the stroke of a pencil on the back of an envelope in No 10 Downing Street, the Department of Constitutional Affairs became the Ministry of Justice, and shortly after that Lord Falconer was replaced as Lord Chancellor and Minister of Justice by Jack Straw. On this happening, Sir Robin Auld wrote to Mr Straw in an attempt to revive the project once again. His approach received, at first, a rebuff in identical terms to the one delivered earlier by Lord Falconer; in a letter which was really written, everyone suspected, by the same senior civil servant who had penned the first. But later, when direct communication was established with Mr Straw himself, he told Lord Justice Auld – and others too – that he was in favour of the project.51 It remains to be seen, however, whether Mr Straw (or any of his successors) will be able to put the “codification show” upon the road again. The basic difficulty, unfortunately, is that criminal justice has become a matter of extreme political sensitivity. Crime, and the government’s alleged failures to deal with it effectively, have become an obsession with the newspapers, and in recent years the government appears to have reached the frame of mind in which it feels that it must produce an instant legislative response to every outcry, whether justified or unjustified, which the popular newspapers produce. The result has been a torrent of hasty criminal justice legislation which is the subject of bitter criticism by practitioners who are expected to 50 In a letter dated 3 February 2007 (the author of this chapter has a copy of it). 51 Personal communication.

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apply it. And as one commentator put it, with brutal sarcasm:52 A standard response to such criticism by a reported statement from a Justice Ministry spokesman, “The Government has legislated in a number of important areas to update and modernize the law, to make it responsive to modern society.” That might be translated as “we pass laws that please the tabloids and hopefully keep sufficient voters happy enough to support us”.

But notwithstanding informed criticism of this sort, the government shows no inclination, at any rate at present, to stem the flow of “instant” legislation; and for the prospects of an orderly codification, this flow is undoubtedly bad news. The time available in Parliament for debating and voting legislation on criminal justice, and the time available to the civil servants for preparing it, is limited. And as long as criminal justice continues to be dictated by the tabloids, it seems likely that the government’s main concern will be to keep the legislative coast clear so that it can continue to enact an endless run of instant, bitty measures, each designed to meet the latest “scandal”. However, even if the current move to endow England and Wales with a comprehensive code of criminal procedure does not succeed, this time the effort will not have been completely wasted. In the first place, the new Criminal Procedure Rules mean that at least the secondary legislation in this area has been recast in a form in which it is accessible, and in a shape in which it is coherent; and for good measure, much of it has been rewritten in language which is clear and can be easily understood. Second, there now exists in the form of the Criminal Procedure Rule Committee a high-level body which keeps the more technical parts of criminal procedure under permanent review. The work of this body was not finished once it had turned the existing body of secondary legislation into a tidy and accessible “mini-code”. The Criminal Procedure Rule Committee now meets regularly in order to discuss improvements and additions to the rules. Through this process it has already secured a number of important, if relatively low-profile reforms. One was a redrafting of the rules about indictments in order – so it is hoped – to cut down to size the celebrated “rule against duplicity”: a body of abstruse legal learning, which formerly provided needless traps for unwary prosecutors, and corresponding “get out of gaol free” cards for unmeritorious defendants.53 Another was the creation of a new and reformed set of rules about expert witnesses;54 these, inter alia, now 52 G Robson, “Learning the hard way” (2009) 173 Criminal Law and Justice Weekly 391 at 391-392. 53 Criminal Procedure Rules 2005, SI 2005/384, r 14.1. For a scathing account of the previous law, see G Williams, “The count system and the duplicity rule” [1966] Crim LR 255. 54 Rule 33.

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make it clear that an expert witness owes a duty to the court which “overrides any obligation to the person from whom he receives instructions or by whom he is paid”, and which give the court the power to direct the opposing expert witnesses to hold a discussion, in order to “prepare a statement for the court of the matters on which they agree and disagree, giving their reasons”. It seems likely that further and equally useful reforms will later follow. Third, and most importantly, the new Criminal Procedure Rules have introduced the “overriding objective”. The rules begin with a section which is as follows: 1.1 The overriding objective (1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes – (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account – (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected, and (iv) the needs of other cases. 1.2 The duty of the participants in a criminal case (1) Each participant, in the conduct of each case, must – (a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective. (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule. 1.3 The application by the court of the overriding objective The court must further the overriding objective in particular when – (a) exercising any power given to it by legislation (including these Rules); (b) applying any practice direction; or (c) interpreting any rule or practice direction.

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When the “overriding objective” first appeared it attracted little attention, despite the fact that the committee did its best to publicise what it was doing. If practitioners noticed it at all, most seem to have assumed that it would make little difference, and in the courts it would be “business as before”. But the opposite is true. A quick online search reveals that the “overriding objective” has now been invoked by the Criminal Division of the Court of Appeal, and by the Divisional Court, in at least forty judgments. And the contents of certain of those judgments show that the “overriding objective” is causing fundamental changes in the way that business in the criminal courts is conducted. Until recently, one aspect of English criminal procedure was what might be called the “penalty shoot-out theory” of the trial. A criminal trial was traditionally envisaged as a match: to win it the Crown was allowed one shot at goal, and if its striker missed, however unluckily, it did not get another chance. Traditionally, this was so even where the reason the prosecution failed to score was that the defence, having carefully “kept its powder dry” until the trial, pointed out some technical deficiency in the procedure which, if noticed earlier, could easily have been corrected. But in the light of the “overriding objective”, this approach has now been officially discarded – and in this situation the court should ordinarily give the Crown the chance to put the matter right. A striking example of this change of mood is the decision of the Divisional Court in R (DPP) v Chorley Justices and Forrest.55 When the defendant Forrest was prosecuted for driving with excess blood-alcohol he entered a not guilty plea and then, at the pre-trial case management hearing, “reserved his defence”. At the eventual trial the prosecution, as usual, sought to prove his excess blood-alcohol by producing the written certificate of the analyst who had examined it; at this point Forrest submitted that the certificate could not be used in evidence because it had not been served on him in strict compliance with the formalities the law requires. The justices accepted his submission, and dismissed the case. In time past, this course would have been appropriate, but now the Divisional Court overturned the justices’ decision and sent the case back to them for further action.56 And in doing so, it took the occasion to criticise in blunt terms the conduct of the case below, making it plain beyond any doubt that the “penalty shoot-out theory” is now dead:57 55 [2006] EWHC 1795 (Admin); noted by J R Spencer, “Acquitting the innocent and convicting the guilty – whatever will they think of next!” [2007] CLJ 27. 56 The justices were directed to state a case – i.e. furnish the Divisional Court with a detailed statement of the facts that they had found – to enable the Divisional Court to make a final ruling. 57 Chorley Justices at para 26.

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If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective or deciding cases justly, acquitting the innocent and convicting the guilty.

In the light of the “overriding objective”, they said, the defendant should have revealed his proposed defence at the pre-trial case-management conference. And if, having “kept his powder dry”, he had ambushed the prosecution at the trial, the justices, instead of throwing out the case, should have granted an adjournment, so enabling the Crown Prosecution Service to serve the certificate with the formalities which the defendant claimed they had neglected.58 The “overriding objective” was in reality the brain-child of the higher judiciary, who on the Criminal Procedure Rule Committee are prominently represented. And its creation, and the willingness of the higher courts to use it in the way described, are both part of a bigger picture, which is a drive by the higher judiciary towards a less technical and more merits-based approach to criminal procedure. This new approach is not to everybody’s taste: some say that it is “incompatible with an adversarial system of justice”.59 And so traditionally-minded commentators were delighted when, in R v Clarke; R v McDaid 60 the House of Lords, bucking the new trend, ruled that the accidental failure of the relevant court official to sign the indictment rendered the resulting trial completely invalid, with the consequence that the convictions of the defendants must be quashed.61 However, in so holding, one Law Lord, Lord Carswell, expressed his broad agreement with the “prevailing trend” against “regarding procedural steps as mandatory requirements”.62 And Lord Bingham, who said that where “the state exercises its coercive 58 For decisions in similar spirit, see Guttentag v DPP [2009] EWHC 1849 (Admin); Brett v DPP [2009] EWHC 440 (Admin), (2009) 173 JP 274; Writtle v DPP [2009] EWHC 236 (Admin), (2009) 173 JP 224; L v DPP [2009] EWHC 238 (Admin); R (Lawson) v Stafford Magistrates’ Court [2007] EWHC 2490 (Admin); Robinson v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin), (2007) 171 JP 683 and Malcolm v DPP [2007] EWHC 363 (Admin), [2007] 1 WLR 1230. In R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin), [2008] 1 WLR 2001, however, the Divisional Court held that the Criminal Procedure Rules did not empower the judge during the pre-trial phase to compel the defendant to identify the witnesses he intended to call at trial – as against identifying the general nature of his defence – a decision now overturned by s 6C of the Criminal Procedure and Investigations Act 1996, in force from 1 May 2010. 59 J Richardson, [2006] 43 Criminal Law Week §  4, commenting on DPP v Stephens [2006] EWHC 1860 (Admin). 60 [2008] UKHL 8, [2008] 1 WLR 338. See J R Spencer, “Quashing convictions for procedural irregularities” [2008] CLJ 227; P J T Fields, “Clarke and McDaid: a technical triumph” [2008] Crim LR 612. 61 See the comment by J Richardson, [2008] 6 Criminal Law Week §  2. 62 Clarke; McDaid at para 31.

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power to put a citizen on trial for a serious crime a certain degree of formality is not out of place”,63 based his decision primarily on the history of the statutory provision requiring indictments to be signed, from which it was clear to him that Parliament “intended that the bill should not become an indictment unless and until it was duly signed by the proper officer”.64 If this decision bucked the trend, later decisions of the lower courts demonstrate that it has not reversed it by restoring a more technical approach.65 But reverting to the topic of this chapter, which is the codification of criminal procedure in England in general, and the most recent attempt in particular, the time has come to bring the discussion to an end. And the ending will leave readers with a paradox. As we saw, the recent movement began as an attempt to codify criminal procedure, not to reform it. And the main practical result of the attempt has been, not codification, but the creation, in the form of the Criminal Procedure Rule Committee and the “overriding objective” to the Criminal Procedure Rules, of two potent instruments of reform.

63 Para 17. 64 Para 18. 65 See R v Hodgson; R v Pollin [2008] EWCA Crim 895, [2009] 1 WLR 1070, as well as the more recent cases mentioned in n 58 above.

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18  The Summary Jurisdiction to Punish for Contempt of Court in Scotland Sheriff T Welsh QC A. the nature and history of the power B. the civilian perspective C. the civilian tradition encounters the summary jurisdiction: kyprianou v cyprus D. how has the scottish court responded to ­kyprianou? E. epilogue The self evident common-law principle of responsibility for contempt is, as principle, simply unknown in the civil-law countries, at least to the extent to which it represents a sanction for non performance of substantive duties. (A H Pekelis, “Legal techniques and political ideologies: a comparative study (1943) 41 Michigan Law Review 665 at 667-668)

The subject of this chapter is the summary jurisdiction of the court to punish for contempt of court in Scotland. I will not discuss civil contempts, nor shall I address contempt as it may arise in the form of the prejudicial pre-trial publication of material which is subsequently held to interfere with the proper administration of justice within the court and is accordingly held to be contemptuous and deserving of sanction. I shall rather confine my remarks to that species of contempt known as contempt in the face of, or in the presence of, the court. This is the species of contempt well known to all movie-goers in the common law world. It is the contempt that results in the offender being sent to prison by the trial judge – immediately, in the extreme case – for offence caused to the court. I shall address four areas. First, I will say something about the nature of the power and the history of the jurisdiction. Second, I shall briefly examine how this power and jurisdiction appears from the perspective of a lawyer studying our legal system from outwith the common law world, specifically 326

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from a European or civilian point of view. Third, I will go on to consider the recent significant judicial review of the common law power by the European Court of Human Rights which occurred in the case of Kyprianou v Cyprus,1 where the court, at first instance, was comprised largely of judges from the civilian tradition. Finally, I shall consider how the summary jurisdiction has adapted here in Scotland to scrutiny from outside, and pose the question of whether the power and jurisdiction can survive future scrutiny from outwith our system, especially from the European Court of Human Rights. I will make some reference to how other legal systems have dealt with the summary jurisdiction to punish for in facie contempt. A. THE NATURE AND HISTORY OF THE POWER If one turns to chapter 50 of Gordon’s Criminal Law there appears what I would describe as an orthodox and classical struggle to define the criminal nature of contempt of court. In what is the very last chapter of the book, nine pages are devoted to this odd travelling companion of the criminal law because the first sentence focuses the conundrum, stating: “Contempt of Court is not a crime and is in many ways sui generis, but since it is punishable by fine and imprisonment it may be regarded as virtually a crime, at least where the court in question is a criminal one.”2 If contempt of court is not a crime, then what is it? Gordon directs the reader to a late twentieth-century definition by the Lord Justice General (Emslie) in HM Advocate v Airs,3 wherein he defines contempt of court as “[c]onduct which challenges or affronts the authority of the court or the supremacy of the law itself”.4 Authority and supremacy of the law are at the very heart of the definition of contempt of court. Any conduct by a litigant, lawyer, member of the public or accused which seeks to challenge that supremacy and authority runs the risk of amounting to contempt of court and being subject to summary punishment. This, in the extreme case, can and does mean committal to prison for up to two years in serious criminal cases. The summary jurisdiction enjoys a number of distinct characteristics. First, in proceedings for criminal contempt there is no prosecutor.5 Second, the judge is entitled to proceed on his own motion. There is no summons  1 Kyprianou v Cyprus (Application No 73797/01) (unreported) 27 January 2004 (decision of the Second Section); (2007) 44 EHRR 27 (decision of the Grand Chamber).  2 Gordon, Criminal Law para 50-01.   3 1975 JC 64.  4 At 69.  5 Morris v Crown Office [1970] 2 QB 114.

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or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. Third, the system is not adversarial in character. The judge himself inquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a right of cross-examination), decides on guilt and pronounces sentence. Thus it can readily be observed that the summary procedure, which by its nature was historically to be used quickly if it was to be used at all, omitted many of the traditional safeguards to which an accused person in the prosecution system is ordinarily entitled both in our domestic jurisprudence and in terms of the incorporated rights contained in the Human Rights Act 1998 which mirror the minimum rights guaranteed in the European Convention on Human Rights (ECHR). Of course the summary or instant procedure invoked to punish for contempt is not to be confused with a summary trial which is adversarial and entirely regulated by primary and secondary legislation.6 The summary procedure relating to contempt, by constrast, has been created and developed by the court at common law. Because of the clear draconian quality of this summary jurisdiction, all of the modern authorities counsel that the power it gives to the judge be used sparingly, and only as a last resort in extreme cases, because in serious cases committal to prison instantly at the hand of the judge is the punishment imposed.7 Traditionally the jurisdiction was always exercised immediately. Hume’s term is “upon the spot”,8 and that phrase is used repeatedly in cases when the power was explained in the nineteenth and twentieth centuries.9 Instant imprisonment for contempt of court is a great power to vest in the hands of the judiciary. In terms of legal theory, various justifications are offered for the unique summary jurisdiction to imprison without trial (in the sense of a trial we would recognise as an orthodox trial for crime at the instance of the state). In Borrie and Lowe, the existence of the power is explained as a by-product of the medieval English court’s struggle to protect the subject from the excesses of the state.10 Essentially, the court developed teeth to assert its own authority against the executive as a bulwark against executive oppression of the subject.  6 Criminal Procedure (Scotland) Act 1995 part IX and Act of Adjournal (Criminal Procedure Rules), SI 1996/513.  7 See e.g. R v Moran (1985) 81 Cr App R 51.  8 Hume, Commentaries ii, 138.  9 See e.g. Wylie v HM Advocate 1966 SLT 149 at 151. 10 G Borrie and N Lowe, The Law of Contempt, 3rd edn, by N Lowe and B Sufrin (1996).

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Professor Michael Chesterman, an acknowledged authority on the subject, maintains that the summary power is in fact a remnant of medieval absolute royal power to assert authority.11 He argues that contempt of court is rooted in the historical principle that judicial authority constituted a vital component of the exercise of absolutist royal power. The broad scope which the summary procedure still attributes to the judge, including in particular determining what forms of conduct should be punishable as challenges to judicial authority, deciding whether the relevant rules of conduct have been infringed and maintaining full discretion as to punishment, is a legacy of absolutism. Hume, by contrast, justifies the existence and use of the power as a necessary adjunct of the court in the administration of justice. The power to punish, which the judge has “summarily” and “upon the spot”,12 is the tool he uses to control the court, the persons in it and the process and administration of justice, otherwise, as Hume observes, “the course of justice would be liable to be stopped”.13 Finally, it has also been suggested that the power is more akin to a disciplinary than a penal power.14 This argument has been rejected by the European Court of Human Rights, however, because of the penal consequences which follow the use of the power in criminal cases.15 Thus did the position remain in Scotland until the late twentieth century. The jurisdiction was developed by the common law, unregulated by statute, inquisitorial and declaratory. Once invoked, which would be entirely a matter for the presiding judge, the contemnor was dealt with swiftly and severely by the judge in serious cases with little by way of background inquiry or regulated procedure. The judge had a very wide discretion as to how to proceed. The case of Wylie v HM Advocate16 is typical. This appeal came before the appeal court by way of petition to the nobile officium. This form of appeal in itself indicates the absence of statutory regulation of the summary procedure. No statutory form of appeal exists in serious cases.17 In Wylie, as punishment for contempt of court, two men were imprisoned for three years each by Lord Kissen for failing to take the oath or give evidence in a High Court trial in Edinburgh. The two men were witnesses called to give evidence in a case of attempted murder. A central part of their appeal related to the allegedly 11 M Chesterman, “Contempt: in the common law but not the civil law” (1997) 46 ICLQ 521. 12 Hume, Commentaries ii, 138. 13 Hume, Commentaries ii, 138. 14 Stair, Inst 4.36.7-8. 15 See the reasoning of the Second Section of the European Court of Human Rights in Kyprianou v Cyprus (Application No 73797/01) (unreported) 27 January 2004. 16 1966 SLT 149. 17 In summary cases the form of appeal is by way of Bill of Suspension and Liberation if committal to custody is the disposal.

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unfair nature of the summary way in which the trial judge disposed of the matter. From the report, it seems that the trial judge, Lord Kissen, dealt with the contempt “on the spot”,18 and having witnessed the contempt before his very eyes proceeded to punish summarily. It is not clear that the two men had much by way of initial representation, at their contempt hearing before the trial judge, or time to prepare for it. In those days the legal aid scheme was in its infancy and the culture of supplying representation for contemnors was not as robust as it is today. The Lord Justice General (Clyde) explained the orthodox summary procedure in the appeal decision:19 It has always been recognised in Scotland that when such a situation [potential contempt] develops at a trial, the Judge should investigate the matter “on the spot” and if satisfied that contempt has been committed he may award at once such punishment as he thinks fit. He is not, of course, bound to dispose of the matter right away but he is clearly entitled to do so and there is much to be said for his doing it at once. He knows exactly how the matter has arisen and is in the best position to judge how grave or flagrant the contempt is. So much depends on the demeanour and bearing of the person alleged to be in contempt. The presiding judge, before whom it has happened, accordingly is in the best position to determine the matter fairly and accurately. Any other judge or court can only recapture the atmosphere from a perusal of the cold printed record of what was said and therefore can only be dealing with the matter at second-hand. In our view therefore the attack upon the procedure adopted by the presiding judges fails.

So, one readily notes, the procedure was quick and the punishment in serious cases could be quite severe by modern standards. No inquiry occurred because the judge witnessed the contempt. No background reports were called for. Provision for representation was primitive. Clearly disquiet existed in relation to the very wide unregulated powers possessed by the judiciary to punish in relation to contempt especially on the part of the press.20 Accordingly, a Parliamentary Committee was set up in 1971 under Lord Justice Phillimore to consider the question and report.21 Lord Grant was initially the Scottish judge on this committee, but when he died he was replaced by Lord Cameron.22 18 At 151. 19 At 151. 20 See Attorney General v The Times Newspaper [1974] AC 273; also the controversial sequel Sunday Times v United Kingdom (1979-80) 2 EHRR 245 (the case was unrelentingly pursued by Harold Evans, the then pioneering and flamboyant editor of the Sunday Times). 21 Report of the Committee on Contempt of Court (Cmnd 5794: 1974). 22 This committee was set up in June 1971 under Phillimore LJ. Lord Grant sat on it until his death in November 1972. Lord Cameron replaced him and latterly acted as chairman of the committee. Robin Day, the television journalist, was also on the committee. Lord Emslie gave evidence to the committee. The committee reported on 24 May 1974.

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The Phillimore Committee considered, inter alia, the special features of the summary procedure in contempt cases in the UK jurisdictions, including the absence of the usual safeguards which exist in the ordinary criminal law to ensure a fair trial to an accused person. The committee recommended retaining the power to punish summarily in the form it has always existed here, considering that there were sound practical reasons in favour of retaining it, including convenience and speed.23 The committee took account of some aspects of the criticism of the procedure based on natural justice, considerations taken in conjunction with article 6 of the ECHR (not then part of British law). It recognised the potential for conflict between article 6(3)(b) (the right to have adequate time and facilities for the preparation of a defence) and article 6(3)(c) (the right of a person to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require) and the summary procedure. In the final analysis, however, it considered that the extension of legal aid to the contemnor would “remove any real risk of conflict”.24 This in itself, of course, was quite inadequate to address the issue of perceived unfairness in relation to the use of the summary procedure. The Phillimore Committee took the view there were positive advantages to retaining the summary procedure, largely based upon expediency and a confidence that the judiciary would use the power sparingly, namely (1)  that the judge is in the best position to deal with the matter because he has witnessed what has just taken place; (2) the judge might be inclined to take a more lenient view, in relation to disposal, after a period of reflection than a judge who simply reads the transcript (on a remit) and who would naturally be inclined to protect a fellow judge; and (3) the threat of immediate prison is an effective deterrent when disruption occurs during live proceedings, as opposed to a disputed trial which may occur months later.25 The Phillimore Committee did, however, recommend that the power in relation to disposal should be capped26 and such a restriction was subsequently introduced by the Contempt of Court Act 1981, which restricted committal to prison to a period of two years even in the most serious of cases.27 The committee recommended that the judge should continue to exercise summary jurisdiction in relation to in facie contempt. It rejected 23 Report of the Committee on Contempt of Court (n 21) para 30. 24 Para 18. 25 Para 30. 26 Para 201. 27 Contempt of Court Act 1981 s 15(2).

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the idea that the judge, particularly when the incident affects him personally, should refer the matter to another judge.28 The Phillimore Committee reported in 1974. In June 1975, the appeal court decided the case of Gordon Airs, the Daily Record news reporter who committed contempt when he refused to give evidence (and reveal his journalistic source, who was the ringleader of the conspiracy which was the subject of the trial and the principal accused) during the “Tartan Army” trial.29 The trial judge, Lord Keith, did not himself deal with the matter on the spot, which was the orthodox way of dealing with such contempts at that time, although he did indicate that he considered the refusal to answer the questions amounted to contempt. No actual finding of contempt was made, but the trial judge declared: “Well this matter will have to be dealt with as contempt of court. Steps must be taken Mr Advocate Depute, but it is better that it should be dealt with by another judge than myself.”30 The reason for this declinature is unknown and not recorded in any of the case papers retrieved from the National Archive. In a separate proceeding brought by the Crown, though not a prosecution, the case was brought before the appeal court by way of Petition and Complaint, the law was reviewed, the contempt established and punished.31 Airs was fined £500.32 Within a month, guidelines were issued by the Lord Justice General (Emslie) detailing how cases of contempt ought to be dealt with by presiding judges.33 The law in Scotland thus moved into a period (1975 to 2004) during which the summary jurisdiction was shaped by judicial guidelines. The first guidelines in relation to contempt of court were, as noted above, issued following the Airs case.34 These were revised following the incorporation of the Human Rights Act 1998 into British law.35 These guidelines (1975 and 2003) refined and clarified aspects of the procedure to incorporate safeguards relating to natural justice, objectivity and fairness to the alleged contemnor. All the guidelines stressed the importance of adopting a measured, balanced, restrained and informed procedure. The alleged contemnor had to be informed of the 28 Report of the Committee on Contempt of Court (n 21) para 30. 29 HM Advocate v Airs 1975 JC 64. 30 At 67. 31 This was not a public prosecution against Airs. The Crown simply brought to the attention of the Appeal Court what had happened before Lord Keith. He could have dealt with the matter himself. Some would say he ought to have done so. Lord Keith might also have remitted the matter to a wider court in Edinburgh if he considered the case merited that. In the event he did neither. 32 Airs at 71. 33 Internal memorandum of 2 July 1975. 34 Ibid. 35 Internal memorandum of 28 March 2003, as amended.

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nature of the potential contempt. He had to be given adequate time to seek legal representation, give an explanation for the contemptuous conduct and/ or apologise. The judge should be seen to proceed with caution, reserve and balance in investigating and declaring any conduct to be contempt in the face of the court. The guidelines were, however, mere guidelines. They lacked the force of law. After the European Court of Human Rights’ initial judgment in Kyprianou v Cyprus condemning the summary procedure, the Lord Justice General (Cullen) issued the last guidance to all judges advising that, pending review of the Second Section’s decision by the Grand Chamber, all potential contempts should be remitted to another judge to “deal with that question, and, if a finding of contempt is made, [decide] what action should be taken in respect of it”.36 Obviously, referral for separate prosecution is incompetent in Scotland so the guidance took compliance as far as it could go, here, at that time. B. THE CIVILIAN PERSPECTIVE In my experience, if one discusses with a judge or lawyer from the European mainland the subject of the summary jurisdiction which a judge of the common law tradition has to punish instantly for contempt of court, these judges and lawyers are incredulous when you try to explain that certain British judges have the inherent power to imprison a contemnor for up to two years for conduct deemed by the judge alone, without a public prosecution, to be in contempt of court. Within the civil law tradition, which is the largest global legal tradition, taking in virtually all of Europe, Russia, South America and large parts of Africa and Polynesia, this judicial power to imprison without trial after a process initiated by the judge and developed by the judiciary is unknown. In Europe the legal systems created by and after the Napoleonic period curtailed the power of the judiciary. While always accepting that one must be careful not to over-generalise in any comparison between the common law and the civil law tradition, there is no doubt the function of the judge is in certain material respects quite different in these systems.37 Legislators and codifiers make law in the civilian tradition in the main. Judges apply, but do not generally develop, law in civil law countries. The doctrine of stare decisis does not apply in the civilian tradition but law is clearly developed by some continental constitutional and cassation courts. The point, however, is 36 Internal memorandum of 20 February 2004. 37 See, generally, J H Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2nd edn (1985).

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that judges of the civil law tradition have no inherent jurisdiction to punish for conduct deemed by a presiding judge to be contempt. Any conduct which amounts to contempt of the authority of the court or disturbance of the court is referred by civil law system judges to the public prosecutor for standard prosecution within the relevant civilian legal system. The deep constitutional and historical British tradition that recognises inherent judicial power which is the legal basis for the summary jurisdiction is considered quite shocking by civilian lawyers. The reason for this, of course, relates to the confusion of roles which the continental lawyer perceives. The judge in contempt proceedings is complainer, prosecutor and judge all rolled up into one. Also, the continental lawyer complains the offence of contempt of court is lacking in conceptual clarity. It seems vague to the continental legal mind. It may be argued that it is so vague, so imprecise and uncertain in its scope as to be both inherently objectionable and unconstitutional to continental jurisprudence. A further problem is that the procedure, swift as it is, appears to the civilian tradition to offend against natural justice. The common law procedure in relation to contempt is vulnerable to the criticism that because it imposes such an accumulation of responsibilities upon the judge, the result is to deny the accused the basic protection of several principles of the ECHR, as well as constitutional protections before the law and natural justice within these continental systems. The common law judge acts as complainant, witness and prosecutor, then combines the role of judge and juror in determining the factual and legal issues of liability for contempt in the face of the court and then, in addition, has the task of punishing the contemnor. The combination of several responsibilities in one person causes two main difficulties. The first is in relation to bias: how can the victim and prosecutor be the judge? To allow this, the argument runs, offends against the principle that one cannot be a judge in a cause in which one has an interest, nemo judex in causa sua. Second, there is a problem with the presumption of innocence. The potential contemnor is required to meet, not a case which is presented against him in evidence (the orthodox adversarial model), but a case which exists in the mind of the judge at the commencement of the inquiry (the inquisitorial model), even though such a case may be explained progressively and orally to the contemnor by reference to various matters which form the basis of the judge’s suspicion that contempt of court has occurred. To critics of the summary jurisdiction this can only mean that the tribunal commences, not with the presumption of innocence but with a presumption of guilt. Such procedures are not easily reconcilable with fundamental principles of justice. Article 6(2) of the ECHR provides that everyone charged with a criminal

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offence shall be presumed innocent until proved guilty according to law. Also the person accused of contempt will not be able to cross-examine the judge who will be the main witness against him, which engages article 6(3) (d), namely, the right to confrontation or, in the summary procedure, the absence of confrontation C. THE CIVILIAN TRADITION ENCOUNTERS THE SUMMARY JURISDICTION: KYPRIANOU v CYPRUS In Kyprianou v Cyprus,38 which considered a verbal contempt by a Cypriot lawyer defending in a murder trial, the Second Section of the European Court of Human Rights held at first instance that contempt of court in all cases was a crime and that all those “accused” of it are entitled to the protections and minimum rights afford by the ECHR. This includes the right to a fair trial by an independent and impartial tribunal. The Cypriot government did not at any stage dispute that article 6 of the Convention applies to contempt cases.39 The Second Section of the court, in its judgment, stated that “the criminal nature of the offence in this case cannot be disputed”.40 This was affirmed by the Grand Chamber on appeal.41 The Second Section went on to state how contempt in the face of the court should be treated procedurally, in every case, in what effectively represents the ratio decidendi of the case: The Court considers that in situations where a court is faced with misbehaviour on the part of any person in the court room, which may amount to the criminal offence of contempt, the correct course dictated by the requirement of impartiality under Article 6(1) of the Convention is to refer the question to the competent prosecuting authorities for investigation and, if warranted, prosecution, and to have the matter determined by a different bench from the one before which the problem arose. In fact, with the exception of Cyprus, this is the practice in the High Contracting Parties to the Convention as regards behaviour which amounts to the criminal offence of contempt of court.42

The Second Section was also critical of the approach of the Cypriot Supreme Court, which agreed with the first instance Cypriot court that the latter could, itself, try a case of criminal contempt committed in its face. It was that 38 Kyprianou v Cyprus (Application No 73797/01) (unreported) 27 January 2004 (decision of the Second Section) (henceforth “Kyprianou, Second Section”); (2007) 44 EHRR 27 (decision of the Grand Chamber) (henceforth “Kyprianou, Grand Chamber”). 39 Kyprianou, Grand Chamber at para 63. 40 Kyprianou, Second Section at para 31. 41 Kyprianou, Grand Chamber at para 64. 42 Kyprianou, Second Section at para 37 (emphasis added). Cf separate opinion of Judge Bonomy: Prosecutor v Slobidan Milosevic (contempt proceedings against Kosta Bulatovic, 13 May 2005, Case No IT-02-54-T-R77.4 at para 11).

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approach, using the summary procedure, which carried with it the appearance of bias, which the Second Section held to be incompatible with article 6(1), importantly, not in the particular circumstances of the case but as a matter of principle. In Scotland contempt is not a crime (yet), so referral is impossible. Also, the final sentence in the passage quoted above is inaccurate. Malta, Ireland and the combined UK jurisdictions all deal with serious contempt in the same way as Cyprus,43 recognising the inherent common law right of the court to investigate and punish contempt summarily without referral to a prosecuting authority for investigation or a separate court for determination. However, because the Second Section’s decision had the potential for rendering the law and practice of common law jurisdictions incompatible with the Convention, the governments of the UK, Ireland and Malta exercised their right to intervene in the appeal, by the Cypriot government, against the Second Section’s judgment, as they were entitled to by virtue of article 36(2) of the Convention and rule 44.2(a) of the Rules of the Human Rights Court. By contrast, however, the Grand Chamber on appeal held that there had been a breach of article 6(1), in the particular circumstances of the case, for two reasons. First, the facts disclosed that there had been an objective appearance of bias in that the judges confused their roles as complainants, witnesses, prosecutors and judges.44 Second, there was also an appearance of subjective bias because of the emotive language the judges used, the length of the sentence and the speed of the verdict.45 The Grand Chamber stated that it was neither necessary nor desirable to review the practice of the use of the summary jurisdiction in Cyprus or the other common law systems. However, the description by the Grand Chamber of the summary jurisdiction as “a functional defect in the relevant proceedings”,46 coupled with the failure of the court to overrule the Second Section’s assertion that contempt in the face of the court should always be referred for separate prosecution and determination before a different court when it arises, has resulted in an unresolved tension between the full content of this judgment and the continued use of the summary jurisdiction 43 The Second Section Chamber was composed of Mr J-P Costa (French), Mr A B Baka (Hungarian), Mr L Loucaides (Cypriot), Mr C Birsan (Romanian), Mr K Jungwiert (Czech), Mr Butkevytch (Ukranian), Mrs A Mularoni (San Miranese). These were all judges trained in the civil law yet none of them knew the scope of the summary procedure beyond Cyprus. This is not a surprise. Common law lawyers are notoriously ignorant of the substantive and procedural law of the civilian tradition. 44 Kyprianou, Grand Chamber at paras 123-128. 45 Kyprianou, Grand Chamber at paras 129-133. 46 Kyprianou, Grand Chamber at para 124.

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for the punishment of contempt in the face of the court in common law countries. Judges Bratza (British) and Pellonpaa (Finnish), in a joint concurring opinion, stated that it would be a question of fact whether a specific type of contempt would automatically fail the objective test for impartiality if tried immediately. For these reasons Kyprianou has an importance which travels far beyond the particular facts of the case. D. HOW HAS THE SCOTTISH COURT RESPONDED TO ­KYPRIANOU? The case of Robertson and Gough v HM Advocate47 is the first significant challenge to the summary jurisdiction in Scotland post-Kyprianou and has immediately resulted in the appeal court developing the domestic common law to address the fairness issues raised by the applications.48 The appeal court emphatically approves of the use of the summary jurisdiction to identify, determine and punish contempt of court, when it arises, subject to a series of clearly-stated procedural safeguards.49 A positive duty is recognised that the judge confronted by contempt of court is obliged to deal with it unless the contempt constitutes a direct attack upon the judge personally or there are other exceptional reasons to justify remitting the case to another judge to hear. So the normal expectation is that unless the contempt in question is directed at the presiding judge personally he must deal with it, subject to the procedure laid down not as a matter of guidelines but as a development of the common law in Robertson and Gough.50 Essentially the content of the existing guidelines has been adopted into the decision in Robertson and Gough, although in their present form the guidelines are legally binding on judges. The appeal court stressed that domestic jurisprudence can evolve to ensure fairness to a potential contemnor and that is what has happened. The decision of the Grand Chamber in Kyprianou has changed our domestic jurisprudence to the extent that the old guidelines are superseded and the law developed to produce a regulated system which enjoys the force of the common law.

47 2008 JC 146. 48 See paras 64 and 65 of the opinion of the Lord Justice-Clerk (Gill). 49 Paras 83-102. 50 SSI 2009/243 creates Chapter 29B of the Criminal Procedure Rules 1996 which now regulates the procedure to be adopted when a judge requires to remit a case of contempt to another judges because it is directed at him personally or there exists some other compelling reason why he cannot deal with the matter.

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I doubt we have heard the last of this. Lord Scarman51 and Lord Devlin52 have criticised the continued use of the summary jurisdiction. Both the Australian and Canadian Law Commissions considered the question of contempt of court.53 The Canadian Commission recommended abolition of the summary jurisdiction because it conflicts with natural justice and the Canadian Charter of Human Rights. The Canadians got as far as a Bill (C-19) before the legislature in 1984, but the Bill lapsed with the fall of the Trudeau government and has not been revived. In one case, the Canadian Chief Justice expressly reserved judgment on the question of “whether the common law rule which permits a judge to act in such a manner is constitutionally infirm”.54 The Australian Law Reform Commission recommended abolition of the summary procedure and the introduction of a series of specific statutory offences, to be prosecuted in the normal way, directed at disruption of and interference with court proceedings for many of the same natural justice and constitutional reasons as the Canadian Law Commission. However, there has been no disquiet about the existence and use of the summary power in the USA. As a common law system, the USA has a welldeveloped set of rules governing both civil and criminal contempts. Judicial sanction in civil contempt proceedings is used to coerce the contemnor into compliance with the court’s orders or to compensate a party for loss arising from the contempt complained of.55 Usually the person is ordered into custody or fined progressively until the order of court is complied with.56 If the contempt is civil, the court has a wide discretion as to whether or in what way to afford a hearing. By contrast, criminal contempt is an act which cannot be purged and must be punished. This is regulated by Rule 42 of the Federal Rules of Criminal Procedure. There is provision for remit to a separate court where the contempt is directed at the judge personally. In 1989 the Irish Law Commission was asked to examine the law and practice in relation to contempt by the then Attorney General, Mr John Murray SC (the present Chief Justice of Ireland). A consultative paper was produced in 199157 and a report in 1994.58 The Irish government also 51 Attorney-General v British Broadcasting Corporation [1981] AC 303 at 362. 52 In an article in the Sunday Times, 21 July 1968, cited by the Australian Law Reform Commission, Report on Contempt (Report 35, 1987) at para 12. 53 Law Reform Commission of Canada, Report on Contempt of Court (1982); Australian Law Reform Commission, Report on Contempt (Report 35, 1987). 54 B K v R [1995] 4 SCR 186 at para 1. 55 United States v United Mine Workers of America 330 US 258 (1947) at 303-304; UMWA v Bagwell 512 US 821 (1994) at 829. 56 K L Hall, The Oxford Companion to the Supreme Court of the United States, 2nd edn (2005) 222. 57 Consultation Paper on Contempt of Court (1991). 58 Law Reform Commission (Ireland), Report on Contempt of Court (LRC 46-1994, 1994).

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­intervened in Kyprianou v Cyprus.59 The summary jurisdiction is retained there on the grounds of expediency and there are presently no plans by the national government to remove it. Nor was there disquiet identified by the Irish Law Commission among the public or in the academic community that the court should have such power. Expediency was recognised as the basis for allowing the judge to use the summary procedure. So in summary there has been an amelioration of the way the jurisdiction has operated over the latter part of the twentieth century and into the twentyfirst century. Human rights issues have focused and influenced the way in which the jurisdiction has been changed by the court at common law. This has occurred in Scotland and England and Wales.60 E. EPILOGUE When the United Kingdom government ratified the ECHR in March 1951, the then Lord Chancellor, Lord Jowitt, doubted that the power of the British judge to imprison the British subject summarily, for contempt of court, would survive the requirement for a fair hearing before an independent and impartial tribunal, laid down by article 6.1. In Robertson and Gough, the appeal court stated: “The nature of the judicial process and the primacy of the rule of law make it essential that every court should have power to vindicate its authority against contemptuous challenges, and to do so by punishing contempt at its own hand.”61 This is the necessity principle invoked at the cutting edge of the common law. What is it, though, about the judicial process and the rule of law that makes the summary jurisdiction necessary today as opposed to in medieval Britain or in Hume’s day where the court may have needed a blunt instrument to maintain order and authority? It may be argued that in modern times there are adequate alternative legal responses to protect the judge, the judicial process, the rule of law, the authority of the court and the administration of justice in general without the necessity for summary contempt proceedings. These alternatives include simply warning or excluding the contemnor from the court; adjournment of the proceedings; clearing the court; physical restraint of the contemnor if necessary, including the use of handcuffs if required, without further punishment to vindicate the authority 59 See Kyprianou, Grand Chamber at paras 50-52. 60 See Wilkinson v Lord Chancellor’s Department [2003] EWCA Civ 95, which effectively develops the English common law to introduce all the safeguards now found in Robertson and Gough. 61 Robertson and Gough at para 67 citing Johnson v Grant 1923 SC 789 at 790, 791 per the LordPresident (Clyde).

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of the court; conducting the proceedings in the absence of the accused if he is the contemnor, or anyone else who disrupts the court’s business. Other alternatives in appropriate circumstances include prosecution for specific offences, such as assault, public disorder or malicious damage. The nuclear option for the common law summary procedure would be the outright criminalisation of contempt of court in some form such as the creation of a new offence of interfering with the practice, procedure or decorum of the court. In that way the contempt would be prosecuted like any other crime and the alleged contemnor entitled to all the protections and rights of the domestic law augmented by the ECHR. In Robertson and Gough, however, the judge’s role as both witness and judge is described in positive terms rather than as a “functional defect” in the system, the phrase used in Kyprianou:62 When the conduct is directed at the administration of justice, it is positively the duty of the presiding judge to decide whether it is contemptuous. The judge has seen the conduct at first hand and can best assess how serious it is. In the case of prevarication, the judge can assess the quality of the witness’s evidence in the context of the issues in the trial and, it may be, the evidence that has preceded it. The judge must give effect to these advantages.

If the judge’s recollection of what happened is reliable, which is an issue in itself, then being a witness is an advantage, but, if there is a dispute as to what happened, the judge’s declared factual advantage is vulnerable to the criticism that it is inherently biased in his own favour no matter how many other procedural safeguards are in place. The confusion of those two roles remains capable of being perceived as a functional defect in the system on this view. Kyprianou was a skirmish. The summary jurisdiction will be revisited again, in my view, by the Strasburg Court. Lord Jowitt’s original doubts about the viability of the summary jurisdiction to punish without conventional trial despite the safeguards introduced by the common law may yet be seen to be well founded.

62 Robertson and Gough at para 80, citing Wylie at 151 per the Lord Justice General (Clyde).

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19  Sir Gerald Gordon: A Bibliography Compiled by Shona Wilson 1956 “The evidence of spouses in criminal trials” 1956 SLT (News) 145 1957 “New evidence in criminal appeals” 1957 SLT (News) 125 1958 “Suicide pacts” 1958 SLT (News) 209 1960 “Criminal Responsibility in Scots Law”, unpublished PhD thesis (University of Glasgow) Book review of John Gray Wilson, Not Proven (1960) 1960 JR 203 1961 Book review of J C Smith (ed), Criminal Case and Comment (1960) 1961 SLT (News) 48 1965 Book review of Johannes Andenaes, The General Part of the Criminal Law of Norway (1965) 1965 SLT (News) 135 Book review of W E Cooper and B R Bamford, South African Motor Law (1965) 1965 JR 198 Book review of The German Code of Criminal Procedure (1965 translation) 1965 JR 305 Book review of G O W Mueller and E M Wise (eds), International Criminal Law (1965) 1965 SLT (News) 143 341

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1966 “Crimes without laws?” 1966 JR 214 Book review of T R Fitzwalter Butler and Marston Garsia, Archbold: Pleading, Evidence and Practice in Criminal Cases (36th edn, 1966) 1966 SLT (News) 187 Book review of J A Coutts (ed), The Accused: A Comparative Study (1966) 1966 JR 279 Book review of L Radzinowicz, Ideology and Crime (1966) 1966 JR 194 1967 The Criminal Law of Scotland (Edinburgh: W Green & Son / Scottish Universities Law Institute) “Criminal Justice Bill 1966” 1967 SLT (News) 21 (with N H A) “The mens rea of murder” 1967 SLT (News) 89 “Random thoughts on the Criminal Law Act 1967” 1967 SLT (News) 205 Book review of Sheldon Glueck, Law and Psychiatry (1967) 1967 JR 312 Book review of R M Jackson, Enforcing the Law (1967) 1967 SLT (News) 72 Book review of H Silving, Constituent Elements of Crime (1967) 1967 JR 300 Book review of J W Cecil Turner, Kenny’s Outlines of Criminal Law, 19th edn (1966) 1967 JR 90 1968 “Institution of criminal proceedings in Scotland” (1968) 19 NILQ 249 “The burden of proof on the accused” 1968 SLT (News) 29, 37 Letter to the Editor: “Rogues and vagabonds” 1968 SLT (News) 87 “Social Work (Scotland) Bill 1968” 1968 SLT (News) 89 Letter to the Editor: “Attempt to take and drive away” 1968 SLT (News) 128 Book review of Ian Brownlie, The Law Relating to Public Order (1968) 1968 SLT (News) 120 Book review of H L A Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968) 1968 SLT (News) 96 Book review of Delmar Karlen, Anglo-American Criminal Justice (1967) 1968 JR 87 Book review of Meyer H Parry, Aggression on the Road (1968) 1968 SLT (News) 146

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1969 “Cawthorne and the mens rea of murder” 1969 SLT (News) 41 Book review of Aspects of the International Validity of Criminal Judgments (1968) 1969 JR 285 Book review of Ted Honderich, Punishment: The Supposed Justifications (1969) 1969 JR 281 Book review of J D McClean and J C Wood, Criminal Justice and the Treatment of Offenders (1969) 1969 JR 180 Book review of Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750. Volume 4: Grappling for Control (1968) 1969 JR 79 1970 “Plea bargaining” 1970 SLT (News) 153 “Recent developments in criminal law” (1970) 15 JLSS 91 Book review of J Imrie (ed), The Justiciary Records of Argyll and the Isles. Vol II: 1705 to 1742 (1969) 1970 JR 93 1971 “Retrials in criminal cases” 1971 SLT (News) 169 “Tesco v Nattrass – the vicarious responsibility of a company” 1971 SLT (News) 189 “The mental element in crime” (1971) 16 JLSS 282 Book review, B E M Burchell and P M A Hunt, South African Criminal Law and Procedure. Vol 1: General Principles of Law (1970) 1971 JR 90 Book review of Francis G Jacobs, Criminal Responsibility (1971) 1971 JR 185 Book review of Nigel Walker, Crimes, Courts and Figures: An Introduction to Criminal Statistics (1971) 1971 SLT (News) 168 1972 R W Renton and H H Brown, Criminal Procedure According to the Law of Scotland (4th edn by G H Gordon, Edinburgh: W Green & Son) 1973 “Prosecuting children: an assessment of the situation in the light of the 1968 Act” (1973) 18 JLSS 346 Book review of Rupert Cross, Punishment, Prison and the Public (1971) 1973 JR 102

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Book review of J C Smith and Brian Hogan, Smith and Hogan’s Criminal Law (3rd edn, 1973) 1973 SLT (News) 256 1974 “The breathalyser in Scotland” [1974] Crim LR 165, 209 “Fundamental nullity and the power of amendment” 1974 SLT (News) 154 “Subjective and objective mens rea” (1974-1975) 17 Criminal Law Quarterly 355 “Lindie v HM Advocate: a procedural potpourri” (1974) 19 JLSS 5, 33 “Another attempt at the impossible: R v Smith (Roger)” (1974) 19 JLSS 246 Book review of Martin L Friedland, Double Jeopardy (1969) 1974 JR 108 1975 “English criminal law: two recent developments” (1975) 20 JLSS 4 Book review of Bernard S Jackson, Theft in Early Jewish Law (1972) 1975 JR 183 Book review of Mortimer R Kadish and Sanford H Kadish, Discretion to Disobey (1974) 1975 JR 76 1976 “Automatism, insanity and intoxication: are unconscious acts defensible?” (1976) 21 JLSS 310 “Consent in assault: further thoughts” (1976) 21 JLSS 168 “Mentally abnormal offenders: The Report of the Butler Committee” 1976 SLT (News) 77 Book review of S Mitchell, Archbold’s Pleading, Evidence and Practice in Criminal Cases (3rd edn, 1976) 1976 SLT (News) 263 Book review of Alf Ross, On Guilt, Responsibility and Punishment (1975) (1976) 26 University of Toronto Law Journal 215 1978 The Criminal Law of Scotland, 2nd edn (Edinburgh: W Green & Son / Scottish Universities Law Institute) “The admissibility of answers to police questioning in Scotland”, in P R Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (London: Stevens)

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1979 Book review of Glanville Williams, Textbook of Criminal Law (1978) 1979 JR 224 1980 “Shameless indecency and obscenity: an analysis” (1980) 25 JLSS 262 1981 The Criminal Justice (Scotland) Act 1980 (Edinburgh: W Green & Son) Book review of Christopher H W Gane and Charles N Stoddart, A Casebook on Scottish Criminal Law (1980) 1981 JR 88 1981-present date Scottish Criminal Case Reports (Edinburgh: The Law Society of Scotland) [Sir Gerald has been the editor of the Scottish Criminal Case Reports since their inception in 1981, and apart from a small number of reports published in late 1995 (see 1995 SCCR 685) has edited every report and written every case commentary in these reports up until the present date.] 1982 Book review of Colin Tapper (ed), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (1981) (1982) 33 NILQ 92 1983 R W Renton and H H Brown, Criminal Procedure According to the Law of Scotland (5th edn by G H Gordon assisted by John MacLean and Christopher H W Gane, Edinburgh: W Green & Son) [loose-leaf service, regularly updated up to the publication of the 6th edition (below) in 1996] 1984 The Criminal Law of Scotland: First Supplement to the Second Edition (Edinburgh: W Green & Son / Scottish Universities Law Institute) Book review of C H W Gane and C N Stoddart, Criminal Procedure in Scotland: Cases and Materials (1983) 1984 JR 90

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1987 Scottish Criminal Case Reports Supplement (1950-80) (Edinburgh: The Law Society of Scotland) 1989 “Miscarriages of justice” (1989) 34(10) JLSS 359 Memorandum to HL Select Committee on Murder and Life Imprisonment (HL Paper 78, 1988-1989) 1992 The Criminal Law of Scotland: Second Cumulative Supplement to the Second Edition (Edinburgh: W Green & Son / Scottish Universities Law Institute) Book review of T H Jones and M G A Christie, Criminal Law (1992) 1992 SLT (News) 234 1993 “‘At the mouth of two witnesses’: some comments on corroboration”, in R F Hunter (ed), Justice and Crime: Essays in Honour of the Right Honourable The Lord Emslie (Edinburgh: T & T Clark) “Judicial creativity in a common law system” (1993) 27 Israel Law Review 118 “The Report of the Royal Commission on Criminal Justice” (1993) 38(10) JLSS 384 1996 R W Renton and H H Brown, Criminal Procedure According to the Law of Scotland (6th edn by G H Gordon assisted by Christopher H W Gane, Edinburgh: W Green & Son) [loose-leaf service, regularly updated up to the present date] 2000 The Criminal Law of Scotland, 3rd edn, volume 1, by Michael G A Christie (ed) (Edinburgh: W Green & Son / Scottish Universities Law Institute) 2001 The Criminal Law of Scotland, 3rd edn, volume 2, by Michael G A Christie (ed) (Edinburgh: W Green & Son / Scottish Universities Law Institute)

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[a  supplement to the third edition, by Michael G A Christie, was published in 2005] 2007 Book review of J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) (2007) 11 Edin LR 284 2008 Book review of F Leverick, Killing in Self Defence (2007) (2008) 12 Edin LR 493

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Index

abandonment, 172–3 abortion, 222, 227, 230n actus reus children, 191 common law crime, 144 generally, 89, 99, 100 provocation, 216, 231 rape, 148, 181, 182 see also mens rea advocates depute appointment, 287, 288, 291, 294 characteristics, 287 generally, 286–90 king’s counsel as, 294 politics, 95, 294–7 salary, 289, 293, 297, 300 senior, 291–2 see also Crown counsel age of criminal responsibility, 27–8, 31–2, 52–3, 68 aggravated murder, 229, 234 aggravated offences, 68 aggravation by way of racial motivation, 228 Alison, Sir Archibald, 24, 95, 102, 288–90, 303 American Law Institute, 315 American Model Penal Code, 158, 159–60, 165, 170, 172 amicus curiae, 189, 190 Archbold, J F, 2 Ashworth, A J, 6, 88, 104, 116, 162, 247 assault actual bodily harm, 127, 132–5 Brown and Dica compared, 132–5 categorisation, 228 consent, 127–9, 131, 132–5 criminalisation, 127–9 discussion in Gordon’s Criminal Law, 100 HIV transmission, 133, 134, 135, 137, 138 instruments, 132, 139 intention, 129, 130, 131 mens rea, 131, 213 recklessness, 151 serious bodily harm, 132–5 sexual norms, 129–32 sexual touching, 129, 130, 131 see also sado-masochism

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asylum, 124 Auld, Lord Justice, 316–17, 319, 320 automatism, 215 Ayer, A J, 98 Bad Samaritan statutes, 168 Beckmann, A, 136, 137, 138, 139 Bentham, J, 90 Blackstone’s Commentaries, 71 Books of Regulations, 297, 298 Borrie, G, 328 Brand, Lord, 286, 303 breach of the peace, 59–60, 123 Brougham, Lord, 310 Burnett, J, 19 Cameron, Lord, 86 Canada contempt of court, 338 provocation, 210 Canadian Criminal Code, 210 Carolina, 307 Chalmers, J, 22, 40, 43, 197, 201, 225 Chesterman, M, 329 child age of criminal responsibility, 27–8, 31–2, 52–3 age thresholds, 29–30 bad behaviour, state response to, 30–4 best interests, 30, 31 causing death of, 221 coercion as defence, 38 concept of childhood, 28–9 consensual intercourse, 47 consent, 44–9 death, 221 defences to criminal liability, 34–43 developmental immaturity as defence, 37–8, 40–1, 50, 51 diminished responsibility, 40–2 doli incapax doctrine, 32–3, 39 duress as defence, 35–9 Gillick test of competency, 29, 30, 32 grooming, 68 horseplay, 44–5, 46 ignorance of the law, 42–3

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index

intention, 49, 50 ‘loss of control’ defence, 39n manslaughter by gross negligence, 51 mens rea, 49–51 moral agents, 29–30 negligence, 50–1 provocation as defence, 39–40 reasonable expectations, 51 ‘reasonable firmness’ test, 35–6 recklessness, 50 sentencing provisions, 33–4 sexual activity, 46–9, 180, 191, 193 sexual offences against see sexual offences against children statutory rape in Ireland see sexual offences against children strict liability, 49 Youth Offending Team, 34 child destruction, 222 Children’s Hearings, 27, 33, 49, 52 Christie, N, 80 CIC see Code d’instruction criminelle civil law tradition, contempt of court and, 333–5 Civil Procedure Rules, 318 Code d’instruction criminelle, 307–8 Codice di procedura penale, 309–10 Codice Rocco, 309 Còdigo de Processo Penal, 309 coercion, 38, 197 common law crimes, recklessness and, 156–7 compensation, 77, 80 concealment of pregnancy, 222 confession evidence, 19 Confrontation Clause, US Constitution, 248 confrontation right cross-examination, 248–9 deconstructed, 247–50 different meanings, 248–9 face-to-face, 248 generally, 243, 244, 250–3 identity of accuser, 249–50 New Zealand, 248 Northern Ireland, 251–2 principle of necessity, 252 priority, 250–3 public trial, 248 South Africa, 261 United States, 248 consent assault, 44, 127, 129, 131 children, 44–9 horseplay, 44–5, 46 reasonable grounds, 148 recklessness, 148–9 sado-masochism and, 127–9, 135–7 serious bodily harm, 45, 132–5 sexual activity, 46–9 sport, 45 tattoos, 44

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349

Tyrrell rule, 47–8 Constitutio Criminalis Carolina, 306–7 contempt of court alternatives to summary proceedings, 339–40 appearance of bias, 334, 336, 340 Canada, 338 civil law tradition, 333–5 criminalisation, 340 definition, 327 ECHR, 328, 329, 331, 333, 334–5, 336, 339 fairness issues, 337 generally, 326–7 Hume, 328, 329 impartiality, 336, 337 Ireland, 338–9 judicial discretion, 327–8, 329–30 judicial guidelines in Scotland, 332–3 Kyprianou case, 329, 333, 335–7 legal theory, 328–9 nature and history, 327–33 Phillimore Committee, 330–2 post-Kyprianou, 337–9 power of disposal capped, 331 presumption of innocence, 328, 334–5 summary jurisdiction, generally, 327–33 Tartan Army trial, 332 United States, 338 ‘upon the spot’, 328, 329, 330 Convention rights, 116, 121, 123, 124, 252; see also European Convention on Human Rights Cooper, Lord, 87 corporate homicide, 228, 231, 233–4 corporate liability, 151–2, 233 corporate manslaughter, 221 corroboration biblical origins, 18 Caribbean, 22 cautionary rule, 21–2 circumstantial evidence, 23 distress, 13–14, 15, 16, 17, 21, 23, 24 highway robbers, 24–5 identification parade, 17 Morton v HM Advocate, 17 reliability, 18–19 sexual offences, 24–6 single eyewitness, 19–20 Smith v Lees, 13–14, 15, 16, 17, 21, 23 South Africa, 21 Stobo v HM Advocate, 14–17, 23, 24 Court of Star Chamber, 242, 250 Craigie, John, 295 crime, definition, 70 Criminal Code, draft see Draft Criminal Code for Scotland Criminal Justice and Immigration Bill, 127 Criminal Justice and Licensing (Scotland) Bill, 67–8, 242 Criminal Law Amendment Bills 1853, 310

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index

criminal law literature, generally, 2–4 Criminal Law Review, 2–3 criminal law syllabus example, 240 criminal procedure codification Auld LJ’s proposal, 316–17, 319, 320 Code d’instruction criminelle, 307–8 Codice di procedura penale, 309–10 Còdigo de Processo Penal, 309 Constitutio Criminalis Carolina, 306–7 continental Europe, 306–10 Criminal Procedure (Scotland) Act 1995, 305 Criminal Procedure Rule Committee, 317, 318, 319, 321–5 Criminal Procedure Rules 2005, 318, 321 England, 310–13 England & Wales: another attempt, 315–25 English-speaking countries, 310–15 expert witnesses, 321–2 Federal Rules of Criminal Procedure, 315 Field Code, 314–15 France, 307–8 Germany, 309 Italy, 309–10 Ker and Starkie code, 311–12, 313 Ordonnance Criminelle, 307 overriding objective, 322–3, 324–5 Portugal, 309 Scotland, 305 Statute Law Society, 316 Stephen code, 312–13 Strafprozeßordnung, 309 United States, 314 Criminal Procedure Rule Committee, 317, 318, 319, 321–5 Criminal Procedure Rule Committee Codification Group, 319–20 Criminal Procedure Rules 2005 creation, 318 expert witnesses, 321–2 overriding objective, 322–3, 324–5 rule against duplicity, 321 cross-examination confrontation right, 248–9 knowledge of identity, 249–50 Crown counsel appointment of advocates depute, 287, 288, 291, 294 assumption of authority, 300–1 Books of Regulations, 297, 298 civil servants, 302 confidentiality, 300, 302 consultation for extra expenditure, 299–300 consultation with Solicitor General, 299 delectus personae, 287 descriptions of office, 286–90 drafting of indictments, 300 early records, 287–8 Edwardian era, 293–7 general overview, 301–4

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hierarchy, 290–1, 293, 299 instructions, 290, 297, 298–9 politics, 290, 294–7 Victorian period, 290–3 work, 297–301 Cullen, Lord, 57–8 culpable homicide division between murder and, 234–6 Hume’s structure, 234–5 involuntary, 236 lawful act, 236 limited liability company, 151 murder, 213, 221; see also murder provocation, 204, 213–15 recklessness, 154–5, 156 scope, 234–6 structure of offences, 235–6 unlawful act, 221, 236 voluntary, 235 driving offences see road traffic offences de minimis principle, 77, 83, 181 de recenti statement, 17 death, child or vulnerable adult, 221 declaration of incompatibility, 110, 121 declaratory power of High Court, 98 Department of Constitutional Affairs, 320 developmental immaturity, 40–1, 50, 51 diabetes, 215 Dickson, W G, 19 diminished responsibility, 40–2 directing mind, 151 disclosure appeals balancing exercise, 284 Cameron test, 267, 275, 276, 277 Fraser case, 275–81 fresh evidence and, tests unified, 275–81, 285 fresh evidence contrasted with, 269–72, 274–5 Gair appeals, 269–72, 276 generally, 264–6 Hogg v Clark test, 267, 276, 278, 279, 280, 282, 283 Holland / Sinclair cases, 266–9, 276, 277, 278, 281 Kelly approach, 272–4 lack of clarity, 281–3 low threshold, 266–9, 276, 277, 278, 279, 280, 281, 282, 283 material, 268 McInnes case, 279–81, 282, 283, 284–5 prior statement, 272 real risk of prejudice, 279–81, 282, 283, 284–5 test to be applied, 265, 266–9, 272–4 threshold, 266–9, 272–4 doctrine of transferred intent, 100n dole, 93, 142 doli incapax doctrine, 32–3, 39, 43 domestic violence, 76n, 84n; see also provocation

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index Draft Criminal Code for Scotland abortion, 227 arguments against: loss of flexibility, 57–63; who makes the law, 63–5 breach of the peace, 59–60 coverage, 56 criminal responsibility, 66, 68 developments since publication, 66–9 flexibility, 57–63 generally, 11, 227 homicide, 227 murder, 63, 153 publication, 55 recklessness, 152–3 responses, 55–7 sexual offences, 66–7 Scottish Law Commission consultation paper, 55 thesis on, 66 virtual-reality game, 66 who makes the law, 63–5 Duncan, David, 297–8 Dunedin, A G Murray, Lord, 291–2 duress availability, 35, 36 child, 35–9 coercion, 38 developmental immaturity, 37–8 lack of intention, 36–7 ‘person of reasonable firmness’ test, 35–6 ECHR see European Convention on Human Rights Eden, W, 91 Emslie, Lord Justice General, 13 England criminal law codification, 227, 310–13, 315– 25 developmental immaturity, 40–1, 50 draft criminal code, 315–16 homicide, 221–2, 223, 235–6 juveniles and duress, 37–8 murder, 62, 221 provocation, 226 theft by omission, 160–1, 165, 170 witness anonymity, 242–3 see also Law Commission (English) European Convention on Human Rights contempt of court, 328, 329, 331, 333, 334– 5, 336 Convention rights, 116, 121, 123, 124, 252 fair criminal law, 103, 110, 115, 123, 125 hearsay evidence, 254–5 hierarchy of rights, 247 mistake of fact defence, 182 proportionality, 252–3, 256, 260 right to fair trial, 31, 241, 243, 244, 246, 247, 248, 263; see also witness anonymity strict liability, 145

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351

victim’s rights, 246 witness anonymity, 241, 243, 244, 246, 253–7 evidence anonymous witness see witness anonymity confession, 19 fresh, 267–72, 274–81, 285 single eyewitness, 19–20, 23 sole or decisive, 253–7, 259, 261 excuse, 197 expert witness, 321–2 fair labelling generally, 67, 68, 89, 225 homicide, 225, 229n, 230, 231, 233, 236n theft by omission, 162–3 false impression, 177 Federal Rules of Criminal Procedure, 315 feminism and sado-masochism, 139–40 Field, David Dudley, 314 fire-raising, 61, 62, 144, 156 first-degree murder, 223, 235 forced marriage, 54 Foster, M, 45 France, 307–8 fraud, 149, 160–1, 177 French Revolution, 307 fresh evidence Coubrough case, 274–5 disclosure and, unified, 275–81, 285 disclosure contrasted with, 269–72, 274–5 threshold, 274–5 see also evidence Fuller, L, 122 funds, failure to make disposition, 159, 176 Gardner, J, 34–5 Germany, 309 Gordon, G H bibliography, 341–7 criminal procedure, 7–8 disclosure, 280–1 disclosure appeals, 266 draft criminal code, 54 forced marriage, 54 fresh evidence, 275, 278 judicial service, 1 legal education, 9–10 mens rea, 143 note on Scots criminal law literature, 2 provocation, 206–7 recklessness, 148 scholarship, 9–10 wicked recklessness, 157 Gordon’s Criminal Law abandoned property, 175 aims of book, 97–8 breach of the peace, 59 consent in assault, 129 contempt of court, 327

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index

Crown Office, 297 dangerous driving, 155 definition of crime, 70, 72 generally, 2, 3, 9, 141 homicide, 224, 237–9 idea of principle, 86, 97–100, 102 ignorance of the law, 43 murder, 61 provocation, 196, 204 reception, 4–7 Gray, J W R, 6 Halley, J, 138, 140 Hamlet, 220 harm, 79–80 Hart, H L A, 98 hearsay evidence, 243, 252, 253, 254 Heineccius, 95 HIV transmission, 133, 134, 135, 137, 138 Holker, John, 313 homicide offences academic writing, 224–6 aggravating factors, 223 appropriate labelling, 231 categories, 223 categorisation of crimes, 228–9 codification projects, 227 corporate, 221, 233–4 criteria for distinguishing, 232 debates over structure, 228–36 differentiation: factors other than fault, 232; maximum, 231 English law offences, 221–2 fair labelling, 225, 229n, 230, 231, 233, 236n Hyam case, 219 Law Commission (English): recommended changes, 223 law reform bodies, 226–7 Law Reform Commission of Ireland, 223–4 mandatory sentence for murder, 229–31 maximum differentiation, 231 mens rea, 219, 221, pressure groups, 228 reductionist approach, 230–1 road traffic, 221, 232–3 self-murder, 222n sentencing, 223 see also murder Honoré, T, 164, 166, 176 horseplay, 45, 46, 127 human rights allocation of resources, 104, 109 competence of courts, 121–5 discrimination, 109 fairness of trials, 120–1 institutionalisation, 106, 110–12, 125 internationalism of criminalisation decisions, 120 moral issues, 106–9, 118, 121, 125

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polycentric issues, 122–3 principles of democracy, 119–21 punishment, protection from, 113–17 social and economic rights, 122 strict liability offences, 115, 116, 117 terrorism, 120, 123 trial of young child, 31–2 unfair criminal law, 117–18, 125 violation, 108, 109, 112 see also European Convention on Human Rights Human Rights Act 1998, 104, 110, 121, 123 Hume, D aggravated murder, 229 circumstantial evidence, 23 confession evidence, 19 contempt of court, 328, 329 corroboration, 16, 17, 18, 19 generally, 12 homicide, structure of offences, 234–5, 237 idea of principle, 86, 92–7, 100, 102 Lord Advocate, observations on, 287–8 provocation , 203, 204, 206 single eyewitness, 19–20, 23 ignorantis juris principle, 42–3 implied malice doctrine, 184 incrimination, 20–1 indictments held in Advocates Library, 302n infanticide, 221–2 Inquisition, 242, 250 intention, 49, 50 intoxication, 93 involuntary murder, 238 Ireland criminal law codification, 227n homicide, 223–4 Law Reform Commission of Ireland, 223–4, 226 provocation, 226 see also sexual offences against children Italy, 309–10 Jones, T, 58, 64 Journal of the Law Society of Scotland, 3 Juridical Review, 3, 10 Justice for All White Paper, 317 Justiciary Cases, 97 Kamir, O, 200–1 Ker, Henry Bellenden, 310–11 Kingsburgh, Lord, 96; see also Macdonald, JHA Kinsey, A, 130 Kugler, M, 162 Lacey, N, 91, 98n, 136 Law Commission (English) criminal law codification, 227 developmental immaturity, 40–1, 50

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index draft criminal code, 315–16 homicide, 223; structure of offences, 235–6 juveniles and duress, 37–8 murder, 62 provocation, 226 Law Reform Commission of Ireland, 223–4, 226 Law Society of Scotland, 3, 58 Leopoldine, 307n Leverick, F, 22, 40, 43, 197, 201, 225 Livingson, Edward, 314 ‘loss of control’ defence, 39n lost or misdelivered property culturally-specific return, 170 deprivation of oppportunity to find, 167–9 failure to return by omission, 165–70 finder’s reward, 169–70 Rolex watch example, 167–8, 171 Louis XIV, 307 Louis XVI, 307 Lowe, N, 328 Lusty, D, 260 McAuley, F, 211 Macdonald, Sir John, 290–1 Macdonald, J H A, Criminal Law assault, 100 definition of murder, 60, 154, 221, 235 generally, 5–6, 141 idea of principle, 96 murder, 60, 62, 154 provocation, 202, 209 Mackenzie, G, 12 M’Naghten rules, 37 Mandela, N, 108 manslaughter, 221 manslaughter by gross negligence, 51 Mantovani, S, 66 marriage, forced, 54 mediation, 77, 82 medical treatment, 127 mens rea assault, 131, 213 children, 36, 49–51 culpable homicide, 151, 154, 221 distress as corroboration, 25 Draft Criminal Code, 227 generally, 89, 99, 100, 142, 143, 144, 154 163, 188 intention, 237 murder, 148, 150, 197, 212, 219 negligence, 236 proof, 144 rape, 148–9, 193 recklessness, 50, 156, 239 strict liability, 144–7, 183, 184, 185, 186 mental element in crime age of victim, 145–7 H v Griffiths, 145–7 juries, direction to, 143

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353

recklessness, 148–52 regulatory offences, 146 Scottish Law Commission, 142 Milroy, Hugh, 298 Ministry of Justice, 320 miscarriage of justice ground of appeal, 280n mistaken belief, 150 Model Code of Pre-Arraignment Procedure, 315 Montgomerie, Roger, 295 Moorov doctrine, 13 Munro, Robert, 292, 295 murder aggravated, 229 as heinous crime, 220, 238, 239 death caused by driving in a dangerous manner, 239 definition, 221, 227n degrees, 235 division between culpable homicide and, 234–6 Draft Criminal Code for Scotland, 153 English law, 221 flexibility, 60–3 foresight, 219 imprecise wording, 60–2 involuntary, 238 Macdonald’s description, 60, 154, 221, 235 mandatory sentence, 226, 229–31 mens rea, definition, 227n new partial defences, 214–15, 216 premeditation, 212 provocation defence see provocation reduction to culpable homicide, 213 road traffic, 233, 239 scope, 237–9 voluntary, 238 wicked recklessness, 154, 157, 239 see also homicide, mens rea Murray, A Graham, 291–2 necessity, 197 negligence child, 50–1 mens rea, 236 strict liability, 183 nemo judex in causa sua, 334 New Testament, 18 New Zealand Law Commission provocation, 216 Northern Ireland witness anonymity, 251–2 Old Testament, 18 omissions, 99; see also theft by omission Omond, George, 295 Ordonnance Criminelle, 307 overriding objective, 322–3, 324–5

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354 parasomnia, 215 Peel, Sir Robert, 287 penalty shoot-out theory, 323–4 ‘person of reasonable firmness’ test, 35–6 Phillimore Committee on Contempt of Court, 330–2 phone, lost or mislaid, 175 police officer, undercover, 245, 253, 255, 262 politics advocates depute and, 292, 294–7 Crown counsel and, 290, 292 polycentric issues, 122–3 Portugal, 309 pregnancy, concealment of, 222 presumption of innocence, 115, 328, 334–5 pressure groups, 228 principle, idea of concept, 88–91 constraint, as, 89 content, 87 criminal responsibility, 88 decision-making, 101 general part, 88, 90 general rules, as, 96, 98–9 ‘general spirit’, as, 94 generally, 86–8 Gordon’s Criminal Law, 86, 97–100, 102 Hume’s Commentaries, 86, 92–7, 102 meanings, 88–91, 101–2 procedural principles, 88–9, 93 Scots criminal law, in, 91–100, 101–2 private prosecution, 80–2, 301 property abandonment, 172–5 finders’ rights, 174 found, 172–6 Jewish law, 175n lost, 159, 160, 164–70 misdelivered, 159, 160, 161, 164–70 mislaid, 175 removal of memorial tribute, 172–3 unclaimed, 175 see also theft by omission proportionality principle, 252–3, 256, 260 provocation abolition, 212–13, 216 act causing, 210–12 battered accused, 214, 216 children, 39–40 compartmentalising, 198–201 controlling anger, 212–13, 216 culpable homicide, 204, 213–15 current law, 197–8 Drury case, 197, 202, 207, 208–9 excuse, 197, 201–3 expansion to provocative conduct, 209–10 factors, 39–40, 210–12 fit for purpose, 213–15 generally, 195–6, 216–17

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index honour, 203–4 justification, 196–7, 201–3 loss of control, 198, 199n, 201, 202 ordinary man or woman, 199, 200–1 ordinary person test, 40, 198, 199, 216 provoking act, 210–12 reasonable man test, 199, 200 reasonable proportionality, 198, 199 self-defence, 203, 204; distinguished, 205 sexism, 207–8 sexual infidelity, 198, 203, 206–10, 212 standard, 39, 40 violence, 198, 203–6 words, 198 public wrongs collective responsibility, 74 compensation, 77, 80 criminal law, 75–9 de minimis principle, 77, 83 definition of crime, 70, 72 discretion, 78 domestic violence, 76n, 84n fines and penalties, 77 meaning, 71–2 mediation, 77, 82 offenders, 72–5 pre-emptive measures, 78 private criminal prosecutions, 80–2 resentment, 84n restorative justice, 78n, 82 suggested categories, 83–5 punishment and human rights, 113–17 racially motivated aggravation, 228 Rae, Sir William, 288 rape actus reus, 148, 181, 182 by implements, 191 mens rea, 148–9, 193 non-standard rape, 191 recklessness, 148 strict liability, 186–8 statutory rape in Ireland see sexual offences against children rape shield legislation, 249n Raz, J, 106, 111 recklessness art and part liability for murder, 150, 151 assault, 151 consent, 148–9 culpable homicide, 151, 154–5, 156 dangerous driving, 155 Draft Criminal Code for Scotland, 152–3 fraud, 149 mens rea, 50, 156, 239 mistaken belief, 149 non-fatal common law crimes, 156–7 self-defence, 157 varieties, 153–7

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index wicked, 154, 157 Redmayne, M, 247 Renton & Brown’s Criminal Procedure, 2, 8, 11 restorative justice, 78n, 82 road traffic offences, 155, 221, 232–3, 239 Royal Commission on Capital Punishment, 232 rule against duplicity, 321 rules in criminal law, 226, 230n, 256. Russell, WO, 2 sado-masochism actual bodily harm, 127, 132–5 autonomy, 136–7 consensual torture, 127 consent, 127–9, 131n, 135–7 criminalisation, 127–9 culpable homicide, 128 death, 128, 130, 135 ethnographic study, 137 feminism and, 131n, 139–40 HIV transmission, 133, 134, 135, 137, 138 injury, 130, 131, 132 instruments used, 132, 139 intention, 129, 130, 131 legal approach, 127–9 privacy, 136–7, 139n risk, 138–9 serious bodily harm, 132–5 sex or violence, 130–2, 132–5 sexual norms, 129–32 see also assault salvage, 172, 173, 174 Schwarzenberg, Johann von, 307 Scots criminal law academic subject, as, 97, 102 codification of procedure, 305 literature in 1967, 2–4 nature of crime, 98 see also principle, idea of Scots Law Times, 3, 97, 294–5 Scottish Criminal Case Reports, 12 Scottish Criminal Cases Review Commission, 1 Scottish Law Commission age of criminal responsibility, 68 diminished responsibility, 42 mental element in crime, 142 provocation, 226 sexual activity under age sixteen, 48–9 sexual offences, 26, 66–7 Scottish Police Federation, 58 second-degree murder, 223, 235 self-defence, 157 self-murder, 222n Session Cases, 21, 97 sexism, 207–8 sexual activity: children consensual sexual experimentation, 191, 193 consent, 46–9, 180, 191, 193 heavy petting, 191

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oral sex, 191 same age, 180 see also sexual offences against children sexual contact risk, 137–8 touching, 129, 130, 131, 191 sexual offences children see sexual offences against children rape, 148–9, 181, 182, 191, 193, 249n Sexual Offences (Scotland) Act 2009, 66–7 sexual offences against children amicus curiae submission, 189, 190 CC v Ireland case, 182–90 consent, 180, 191, 193 constitution and the criminal law, 188–90 Criminal Law Amendment Act 1935, 179–81 Criminal Law (Sexual Offences) Act 2006, 190–3 defilement of a child, 190 mistake of fact as to age, 182, 190–1, 192, 194 mistaken belief as to consent, 192–3 morally innocent defendant, 182, 183–4 Morgan case, 192–3 recommendations, 189–90, 193–4 strict liability, 179, 186–8 Sheriffs’ Association, 64 Smith, T B, 87 Smith & Hogan’s Criminal Law, 2 sole or decisive evidence principle, 251–7, 259, 261 Solicitor General for Scotland, 292 South Africa confrontation rights, 261 corroboration, 21 human rights, 108 sport, 127, 128 stare decisis doctrine, 333 Starkie, Thomas, 311 Statute Law Society, 316 statutory offences, 144–7 Stephen, Sir James Fitzjames, 91, 310, 312 Strafprozeßordnung, 309 Straw, J, 242, 320 strict liability absence of negligence, 183 homicide, 185–6 intention to cause serious injury, 185 intention, 183 manslaughter, 184–5 mental states and, 144–7 mistake of fact defence, 182, 188 morally innocent defendant, 182, 183–4 murder, 184 pollution, 184 public welfare offences, 183 serious crime, 184–6 standard of fault, 184 statutory rape, 186–8 Stychin, C, 136

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index

sui generis, 186, 192 suicide, 78n, 222 superior orders, 93 Sutherland Committee, 1 Tadros, V, 22 Tartan Army trial, 332 tattoos, 44, 127 Taylor, Thomas, 97n terrorism, 120, 123, 251–2, 259n theft moral content, 163–4 perceptions of seriousness, 162–3 theft by omission affirmative act comparison, 163–4 cultural differences, 169, 170 deception: failure to disclose information, 159 deprivation of opportunity to find, 167–9 dishonest intention, 161n disposition of funds, 159, 176 English law, 160–1, 165, 170 failure to return lost or misdelivered property, 159, 160, 161, 164–70 fair labelling, 162–3 finder’s reward, 169–70 fraud, 160–1, 177 funds, 159, 176 generally, 158–9 labelling, 162–3 legal framework, 159–61 lost contrasted with misdelivered property, 170–2 mail, 171 misdelivered contrasted with lost property, 170–2 Model Penal Code, 158, 159–60, 165, 170, 172 moral content, 163–4 over-payment, 161 punishment, 159 Rolex watch example, 167–8, 171 Scots law, 161 treasure trove, 172, 173, 174 Theresiana, 307n Thomson Committee, 1 Titanic, 174 treasure trove, 172, 173, 174 trover, 164 undercover law enforcement agent, 245, 253, 255, 262

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United Nations Convention on the Rights of the Child, 31, 51 United States of America American Law Institute, 315 American Model Penal Code, 158, 159–60, 165, 170, 172 confrontation right, 248 contempt of court, 338 criminal procedure codification, 314 Federal Rules of Criminal Procedure, 315 human rights and punishment, 116 loyalty security programmes, 250 theft by omission, 158, 159–60, 165, 170, 172 victim rights, 246 vulnerable person, causing death of, 221 Walker, D M, 86 wicked recklessness, 154, 157, 239 Williams, G L, 2, 33, 88, 98, 224, 237 Wilson of Langside, Lord, 297 witness anonymity civilian prosecution witnesses, 244–5, 253 co-accused, 243, 247, 263 confrontation rights and, 243, 244, 247–53 credibility challenge, 246 Davis case, 242, 243, 250–3, 256 debate in England, 242–3 defence witnesses, 245 disclosure of prosecution material, 262–3 discretion of courts, 243 hearsay evidence, 252, 253, 254 justification, 251 miscarriage of justice risk, 246 police officers, 245, 253, 255, 262 relocation scheme, 261 ‘sole or decisive evidence’ principle, 253–7, 259, 261 special counsel, 263 statutory authority, 242–3, 257–60, 262 statutory scheme for regulation, 242 terrorism, 251–2 undercover law enforcement agents, 245, 253, 255, 262 see also confrontation right witness anonymity order, 242, 243, 257–60, 262 witness protection programme, 261 Woolf, Lord, 318 Wylie, Norman, 297 Youth Offending Team, 34

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