Since September last year, I've been arguing we need urgent law reform in Scotland to give complainers in sexual offence cases the automatic legal right to anonymity which already applies in the rest of the UK -and almost all of the rest of the common law world.
I'm delighted today to launch a dedicated campaign website with @seonaid90 and our @GCULaw students to press on with the arguments for reform in this new session of Holyrood.
We've already made significant progress - raising political consciousness that this is an issue & securing support for change. A commitment to reform was embraced by @theSNP, @ScotTories, @scotlibdems & @scottishgreens manifestos - we hope to hold our MSPs to their promises.
Why does this matter? Last year, it became clear to me that Scotland was out of step with every other part of the UK on this issue. Most people I speak to *think* complainers here already have a right to reporting restrictions in their cases. They do not. researchonline.gcu.ac.uk/en/publication…
Since then, I've been looking at how other legal systems deal with this & have discovered Scotland is not only out of step with England, Wales & NI - but almost every comparative common law jurisdiction you can mention. I discuss this in more detail here:
We can fix this issue. But it is critical we legislate in the right way - respecting the right of complainers to go public if they choose to do so, and share their stories. The Australian #LetHerSpeak campaign illustrates how the law can go wrong here. letusspeak.com.au
After the difficulties identifying a willing candidate to serve as Presiding Officer across a number of sessions, is there an argument for making Holyrood's PO a directly-elected, non-party political position? (The argument might be: nooooooo don't do this.)
Counterarguments? The PO is Holyrood's servant, not its master. A separate mandate might confuse issues. MSPs also have the chance to express their view of the candidate's temperament and behaviour towards colleagues - which the voting public wouldn't necessarily know about.
If anyone *did* want to do anything about this - you could. The legal provisions on the appoiment of the Presiding Officer in s.19 of the Scotland Act is one of those bits of the Act which Holyrood has the legislative competence to change under Schedule 4. legislation.gov.uk/ukpga/1998/46/…
Coming up in Holyrood on Tuesday, MSPs will take their final vote on the Defamation and Malicious Publications Bill. This is a critical reform, which will better protect free expression in Scotland & make it harder for frivilous actions to be brought. beta.parliament.scot/-/media/files/…
At stage 3, only @fultonsnp and @andywightman are proposing any amendments. Fulton's focuses on the court power to order removal of allegedly defamatory statements. Andy wants to replace the "serious harm" threshold to sue with a "real harm" threshold. beta.parliament.scot/-/media/files/…
This Bill is particularly important for social media as, amongst other things, it will significantly restrict the ability of pursuers to bring defamation proceedings against "secondary publishers" who may have shared or retweeted material from websites, newspapers and so on.
When it comes to legal restrictions on Holyrood's proceedings on the Scottish Government's handling of sexual harassment complaints - most of the focus has, understandably, has been on the impact of the contempt of court order on a parliamentary process which isn't privileged.
As I indicated a few weeks ago, however, perhaps the most significant legal restriction in play here isn't the order - but s.162 of the Criminal Justice and Licensing Act 2010. Here it is: legislation.gov.uk/asp/2010/13/se…
What is its significance? It says that if material is disclosed to an accused person by the Crown, they can only use or disclose that evidence for the purposes of their criminal defence and any appeals. It is a crime under s.163 to breach this. legislation.gov.uk/asp/2010/13/se…
In press reports about Salmond's scheduled appearance before Holyrood next week & written evidence, there's a lot of vague references to "legal considerations" informing what can and cannot lawfully be disclosed. For outsiders looking in, here are the most obvious limitations.
Firstly, Holyrood procedures are insulated from the law of defamation in the way publishing elsewhere or holding a press conference would not be. This is in section 41 of the Scotland Act. Parliamentary privilege in Holyrood is a pretty limited compared to Westminster.
In contrast with Westminster, Holyrood proceedings are covered by any orders made under the Contempt of Court Act 1981. One relevant order applies in this case.
Is Bonnington just going to keep churning out articles which get basic facts about the law wrong & suggest he hasn't actually read the legislation he cites? Read s.23 of the Scotland Act. The High Court has no role whatever here. legislation.gov.uk/ukpga/1998/46/…) scottishlegal.com/article/alista…
Under s.23, Holyrood has the power to call witnesses on its own authority. Under s.24, a requirement is imposed when the clerk gives notice to the person or body it is imposed on. Under s.25, failure to comply is an offence. No court (nevermind the High Court) is involved.
Basic, basic stuff - the kind of elementary reading of statute any solid LLB student should manage, nevermind someone who continues to identify themselves as an "honorary former law professor."
One of the funniest cases I've ever heard of concerned a man accused of impersonating a police officer. A thread. This chap had been out for a few too many pints & decided to take a cab home. Disaster! Mid-journey, he discovers he doesn't have the cash on him to cover the fare.
So what does he do? Confesses to the driver, who punts him out on the street. Consumed by guilt about the ride he's stolen from the taxi driver, our drunken hero decides to turn himself in to the police. He seeks out the local police station - and finds it locked up tight.