THE deadline for public submissions on the Scottish government’s new Hate Crime and Public Order (Scotland) Bill passed last week on Friday. The SNP, who introduced the bill, have tried to use the distraction of the coronavirus lockdown to limit its public scrutiny. Fortunately, however, people are starting to understand the implications.
The Bill represents an unprecedented attack on freedom of expression through the creation of crimes and a litany of protected interest groups. This has drawn most of the criticism so far. However, the Bill also threatens the rights of the individual in the way that it attacks and undermines some of the fundamental principles of Scots law. It is this side of the Bill to which I want to draw attention.
Removing the need for corroboration
The Bill is notable for a general weakening of barriers to conviction. For example, it is a principle of law that the burden of proof is on the prosecution. In Scotland, this generally requires evidence from more than one source (corroboration). Yet Section 1 of the Bill states that ‘evidence from a single source is sufficient to prove that an offence is aggravated by prejudice’. This removes the need for corroboration and means that the victim need only allege that the crime was a hate crime for it to be treated as such. This is clearly designed to make it easier to convict, but it goes against legal opinion that corroboration plays an important role in the fabric of the Scots legal system and should not be removed.
The fact that corroboration is not present in some other legal systems does not prove it is dispensable. Rather, all elements of the law play a role in balancing the needs of justice with the rights of the accused. Removing corroboration, as with other changes I will highlight, risks tilting the scales of justice unfairly towards an increasingly authoritarian state.
The result of this will be predictable: the accusation from a denouncer that it was a ‘hate crime’ will be enough to convict.
The abuse of strict liability
Traditional offences in Scots criminal law have two elements. The first, actus reus, is the deed. This specifies what a person must do for it to be a crime. For example, theft in Scots law has several components, roughly equating to taking someone else’s property without their consent. The second element is the mens rea, or mental element. Someone mentally incapacitated is not usually considered capable of committing a crime as they don’t know what they are doing. Each traditional or ‘common law’ offence has a specific set of mental criteria that must be fulfilled before a person can be found guilty. For theft the key requirement is ‘intent’. The accused must intend to steal someone else’s property.
This is crucial. For instance, if you and I have similar coats and I accidentally pick up yours as I leave, this is not a crime. It is a mix-up and nothing more. Proving the mental element – the mens rea – can be difficult for prosecutors but ensures that only those with bad intentions end up convicted.
Because of this, it is increasingly common for governments to create laws which don’t have this requirement. These are called ‘strict liability’ offences (motoring offences tend to be strict liability offences, for example). It is only the actus reus which is necessary to constitute the strict liability offence. What that would mean for theft in our example is that, even if you were completely unaware you have taken someone else’s coat, it would be a crime that you did.
The crimes in the Hate Crime Bill are almost all strict liability. Take Section 5, ‘Offences of possessing inflammatory material’. A crime is committed if ‘it is likely that, if the material were communicated, hatred would be stirred up against such a group’. You need not even be aware that you are in possession of the material, let alone intend to possess or communicate the material, because mens rea is not a requirement of this law. It is enough for you to have the material in your house.
Section 6 grants police officers the powers to search your home or car for such material. It is entirely foreseeable that troublesome citizens might get visits from Police Scotland on a fishing trip, looking through the loft for dusty copies of Huckleberry Finn or Tom Sawyer. And crooked cops don’t even need to plant drugs on you any more; a well-placed copy of ‘Tintin in the Congo’ will suffice.
Strict liability is an affront to justice and will leave citizens living in fear of being unwitting criminals.
Criminalisation of companies and directors
My final point concerns Section 9: ‘Corporate liability and liability of officers’. This extends criminal liability under the act to both the director of a company and the company itself where the offence is committed with the ‘consent or connivance’ of the director, or where he permits an offence to be committed through ‘neglect’.
Traditionally, corporate criminal liability has been a difficult area for Scots law, due to the need for a mens rea. HMA v Transco is perhaps the most notable example of this problem. n this case, a gas explosion destroyed a house and killed a family. The investigation found that Transco, the company responsible for maintaining the pipeline, was at fault. The Crown tried to prosecute the company for culpable homicide but failed. The issue here was that no director knew enough and was involved enough in the conduct to be treated as the controlling mind and without that, there could be no mens rea. The barrier to treating the company as culpable also extended to the directors as individuals. That said, it is possible to find a company liable, but only really in cases with one or a few directors who are closely involved in the criminal act.
The hate crime bill takes significant steps to change this law in so far as it extends to hate crimes. Firstly, it extends liability to managers, secretaries or similar officers of the company. They can now be held jointly liable for the company’s actions, and vice versa. Secondly, it does away with mens rea and replaces it with the undefined terms of ‘consent or connivance’. We don’t yet know what that means, but it is certainly a much lower standard than being the mens rea of a controlling mind.
Thirdly, ‘neglect’ is not a standard I have seen used in Scots criminal law but seems closely related to negligence. Negligence, as any law student must learn, is a civil matter in Scotland and not a criminal one. To be criminal, we demand a level of ‘recklessness’. As Robson v Spiers held:
‘ . . . a high degree of culpability [is] required to be averred and proved before reckless conduct as a crime at common law could be established. Carelessness, negligence or even recklessness in general are not enough. There must, I think, be conduct deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them.’
Section 9 significantly lowers the threshold of criminal conduct for companies and directors to a level that is inconsistent with Scots law. This section obviously exists to prevent people using companies to do things that would now be criminal for individuals, such as possessing offensive material. It indicates that the SNP will not tolerate any attempt to do this and are prepared to suspend normal operation of the law to achieve their goals.
Rightly, the crimes created in this Bill are what are will attract the headlines. However, we should not permit the contempt with which the SNP are treating the principles of Scots law to go unnoticed either:
· It removes corroboration, thereby permitting conviction by denunciation.
· It displays a flagrant disregard for legal principles where they present an impediment to prosecution.
· It criminalises conduct where there is no intent to break the law and even criminalises conduct where the law is broken unknowingly.
· It lowers the threshold for criminal conduct so far that even trivial acts by dissenters and ‘wrong thinkers’ can be punished.
This Bill is a chilling affront to Scots law. The great institutional writers of Scots law, such as Hume and Stair, must be turning in their graves at what the SNP are doing to our legal system.