Hello
25 November 2008 at 17:03 | In Random | 2 CommentsSorry for the recent absence again. This has been for a number of reasons. The main one being my schedule has been so full recently that I’ve been unable to get back on and blog. Secondly, I have been having a period of personal reflection following my previous blog entry!
Tomorrow I am giving a talk at the organisation where I volunteer entitled “Legal Issues for Children and Young People”. I am really looking forward to it! This talk is aimed at educating those who I work alongside of on the rights and obligations under the law for children and young people (the group that we, as an organisation, deal with). The talk crosses all areas of the Law including Criminal, Family and Contract. I gave the same talk just over a year ago and it was a great success. Hopefully, this year it will just be as big a success and people will leave enlightened. Most of the questions that people have relate to Criminal and Family Law (which has to be one of the most confusing of areas of law!). The thing which shocked most people last year was when I started talking about Rape in Scotland, as the law in Scotland is very backward when it comes to rape (as I’ve explained here before)
Anyway, must go as I’m really busy and will get back soon.
Self-esteem
16 November 2008 at 00:51 | In Personal | 2 CommentsI’ve written before about my lack of self-esteem in myself and how my Guidance Teacher at school totally destroyed the self-esteem that I had (that along with three years of constant and quite horrific bullying). I am still greatly lacking in self-esteem. I don’t appear as lacking in self-esteem to my colleagues, friends, family and those who I meet in other areas of my life. I come over as quite confident of myself and on occasions arrogant and even self-righteous. However, this outward appearance does not stop the constant doubt that I have I my ability.
I keep allowing this lack of self-esteem to eat away at me and knock me even further. When I got into University (proving my Guidance teacher wrong) I had an increase in my overall self-esteem. However, this increase in self-esteem has all but gone.
I find it difficult to talk about myself. However, I have found the anonymity of this blog a good way to express a lot of feelings that I’ve been unable to express in person. If I am being totally honest this is how I see myself:
I am incompetent, I’m not very intelligent, I’m not very assertive nor am I a very confident person (in fact I’m the complete opposite of a confident person). I get nervous very easily and on occasions I am entirely unable to suppress these nerves and this often results in a poor performance in what ever it is that I am doing, which knocks my confidence and self-esteem even further. It is a vicious circle.
When it comes to preparing for university examinations my confidence gets knocked even further as I find it very difficult to memorise all the statutory provisions and cases that one is expected to memorise for an exam as a law student. I perform very well in coursework elements of my modules (which only account for 30% of each module). However, my performance in exams pulls my grades down. I have tried many different methods of revising all this information, but have been unable to discover the method that works for me. This inability to learn vast quantities of very simple information reinforces my feelings regarding my intelligence and my competency. It makes me believe that I am wasting my time at University and that I am never going to be able to practice law.
It’s thoughts like these that have lead to decisions such as my decision to apply to the police in the New Year. The police is something that I have fancied as a career for a number of years now, so this hasn’t been something that has come out of the blue. However, my decision to apply next year has been the result of these feelings and not because of, what one might describe as an epiphany, that this is what I want to do with my life.
I really do need to share this with someone in the flesh, but who I do not know…
Breach of the Peace
15 November 2008 at 01:54 | In Criminal Law, Scots Law | 2 CommentsBreach of the peace is Scotland’s very own ‘catch-all crime’. If I were to compare it to an offence south of the border I would have to say it was used in a similar way to the Public Order Act 1986, s.5 in England.
In order to understand what breach of the peace means we must look to the courts for it has been the Scottish courts who have defined this crime. The leading case on the matter is Smith v Donnelly 2001 SLT 1007. Until this case any conduct which caused, or was capable of causing, mere embarrassment, upset or annoyance to another person was usually sufficient to furnish a conviction.
The case of Smith v Donnelly has given us the definition of the crime currently used today and it is probably the most important decision of the court relating to Breach of the Peace. The case was merely a three judge decision, but its reference to the jurisprudence coming from the European Court on Human Rights has given it added weight. The decision was accepted as correct by a full bench sitting in the case of Jones v Carnegie 2004 SLT 609.
The court in Smith v Donnelly does draw upon dicta from earlier ‘leading authorities’ when reaching its conclusions, it should be noted that this does not mean that the court endorses the actual decisions reached in those cases relating to the facts in these authorities.
The Modern Actus Reus of Breach of the Peace
For the benefit of the lay people out there reading this entry, the actus reus of a crime is essentially the guilty action which when coupled with the mens rea (explained later) and proven to the required standard would lead to conviction in a court of law.
The actus reus of breach of the peace, according to Smith v Donnelly, is
“conduct which [presents] as genuinely alarming and disturbing, in its context, to any reasonable person” (Smith v Donnelly 2001 SLT 1007 at [17])
Conduct will be ‘alarming and disturbing’ if it is of the sort (such as fighting, or challenging persons to fight, in the street) which would cause a reasonable person to fear that the peace of the immediate neighbourhood would be broken (in the sense that it would be likely that a serious disturbance of that peace would ensue) if that conduct were allowed to continue or be repeated (see Stair Memorial Encyclopaedia, Criminal Law, Para 442)
Actual evidence that the witnesses to or the complainers of the conduct were alarmed and disturbed by the conduct is not needed. The court has set an objective test: the reasonable person (if a reasonable person would not have been alarmed to that degree, then the conduct is not sufficient for breach of the peace (Jones v Carnegie 2004 SLT 609)). The conduct itself has to be ‘flagrant’ (which is essentially another way of stating that the conduct must be of sufficient seriousness that it would lead to the inference that it would be likely to result in serious disturbance of the community). It follows that conduct which presents as merely embarrassing or annoying or irritating or inappropriate (which is probably what is meant by ‘a breach of decorum’) will not be of sufficient gravity to satisfy breach of the peace: something ’substantially greater than mere irritation is involved (see both Smith v Donnelly and Jones v Carnegie).
The Mens Rea of Breach of the Peace
For the benefit of the lay people out there reading this entry, the mens rea of a crime is essentially the guilty mind.
As breach of the peace is a common law crime it follows that there must be a mens rea element to the crime. However, the mens rea has not been adequately discussed in any reported case. We can look to a case which pre-dates Smith v Donnelly for some guidance on the matter (although it should be noted that given the fresh look of breach of the peace following Smith v Donnelly it cannot be said whether this can be relied upon). We can look to the case of Hughes v Crowe 1993 SCCR 320. In this case the courts view was that:
“in this case it can reasonably be said that the evidence described a course of conduct persisted in for a substantial period of time which indicated a gross lack of consideration for others who might be present in the other flats in the block at the time” (Hughes v Crowe 1993 SCCR 320 at 323F)
It would appear, that from this, there is a suggestion that there needs to be some form of negligence or even recklessness, in the sense of indifference to the consequences, was what was thought to be relevant in that case. We can presume that the consequence here was the potential for the conduct to provoke severe disturbance of the peace. However, it was recognised in Smith V Donnelly that there is a need to apply breach of the peace to a wide variety of circumstances. This means that Hughes v Crowe cannot be relied upon as a general account of the required mens rea.
Breach of the Peace and Human Rights
Prior to the landmark decision of Smith v Donnelly, breach of the peace was not sitting all that comfortably with the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR).
Article 7(1) of the ECHR requires that offences are clearly defined in law and that applies to common law crimes as well as statutory ones. It is highly doubtful that breach of the peace, in the form it existed prior to Smith v Donnelly, met this requirement and this was put to the test in Smith v Donnelly.
There are other considerations in relation to the ECHR and breach of the peace, but I have decided not to explore those in this entry.
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Disclaimer: This blog article is not intended as a full and authoritative explanation of breach of the peace. It should not be relied upon as an accurate explanation of the law relating to breach of the peace (and indeed it is not, it only touches the surface in many areas of the crime). It is merely intended as an article to give lay people an insight into how complex the criminal law can be and also as an opportunity for legal professionals not familiar with Scots Law to learn a bit about it. You should not use this article to replace seeking advice from a properly qualified solicitor and should you find yourself in court charged with breach of the peace I suggest that you use the duty solicitor or get yourself another solicitor to give you proper and sound legal advice.
Chief Executive and Operations Director quit
14 November 2008 at 21:10 | In Random | Leave a CommentThe Chief Executive and Operations Director of the Scottish Ambulance Service have resigned “in the best interest of all concerned” following an investigation into allegations of bullying within the service.
A spokesperson for the service said:
“Following receipt of allegations made by two employees of the Scottish Ambulance Service against the chief executive, Kevin Doran and the operations director, Grace Kennedy, the service conducted a thorough investigation into those allegations.
During the course of the investigation Mr Doran and Mrs Kennedy have been absent from work on leave.
In the best interests of all concerned it has been agreed that they should pursue their respective careers outwith the service and Mr Doran and Mrs Kennedy have therefore resigned from the service.
Maybe Ambulancenut will share her thoughts on this soon.
Schools crumble while SNP sets up SFT
14 November 2008 at 18:31 | In Eductaion, Politics | 1 CommentI was reading this evening in the Scotsman about the problems the SNP are causing in the Scottish Education system. When the SNP won the election back in May 2007 they stated their opposition to PFI/PPP. It was PFI/PPP schemes that resulted in new schools being built and schools being refurbished under the Labour Executive that lost in 2007.
The SNP said they were going to start a new scheme to pay for these projects: The Scottish Futures Trust (SFT). However, 18 months into their term they have yet to set up this scheme and it could be another 18 months before it comes to fruition (i.e. at the end of the SNP’s term of office).
The Scotsman reports that this is causing major problems for the 832 schools around scotlad that either need to be ripped down and rebuilt or refurbished as this work cannot begin yet.
Local Councils, as the Scottish Government have pointed out, are still free to approach the Government for funding under the PFI/PPP scheme. However, putting together a bid for funding is not cheap and councils are unwilling to risk spending the massive amounts of money required to put a bid together when the current Government is so opposed to the scheme. In short, they feel that the money will be wasted as the SNP administration is unlikely to approve any bids.
The article also reports that a spokesman for the First Minister, Alex Salmond MSP, has said that some 250 new schools would be built in the lifetime of this parliament. However, the spokesman was unable to confirm whether these 250 new schools would have been commissioned by the SNP or whether all (or the majority of) were commissioned under the pervious Executive (the cynic in me says that this means Labour will have commissioned the majority, if not all, of these new schools).
Jeremy Purvis MSP (Liberal Democrats) has said of the SNP administration:
“They have got themselves into that zone where they genuinely believe that the schools they are opening were conceived, were built, designed and financed by them.”
The SNP’s Education policies seem to be falling a part at the seams. They promised new schools and can’t deliver them; they promised smaller class sizes and can’t deliver them. The SNP wants to see an independent Scotland with a strong economy. That will never happen if the children of today (the wealth creators of tomorrow) cannot get a decent education because they are being taught in schools which are not fit for purpose, with fewer teachers and larger class sizes.
Bid to have 250-year old murder case referred to Appeal Court
14 November 2008 at 14:51 | In Criminal Justice, Criminal Law, Scots Law | 1 CommentJohn Macauley, a Glasgow Solicitor, has asked the Scottish Criminal Cases Review Commission to review a conviction from over 200 years ago in a bid to have the conviction quashed.
The SCCRC has been asked by Mr Macauley to look into the case of James Stewart who was hanged for murder after having been convicted of killing Colin Campbell in Argyll wood in May 1752.
Colin Campbell was shot dead in Argyll woods near to where the Ballachulish Bridge currently stands.
The murder of Mr Campbell came in the aftermath of the Battle of Culloden in 1746. It outraged the British establishment.
When looking at this case you can see just why Mr Macauley has made this submission to the SCCRC, it truly was (as Mr Macauley describes it) a farce.
The defeat of the Jacobites had effectively ended their hopes of replacing the Hanoverian dynasty on the British throne with the Stuarts. Mr Stewart was a Jacobite and was tried at a court convened in Inverary in September 1752.
Out of the fifteen jurors who sat on the case, eleven of them belonged to the Campbells who were a clan who fought against the Jacobites at Culloden. The trial was presided over by three judges, the most senior of whom was the Duke of Argyll, staunchly Hanoverian chief of Clan Campbell.
The main witness saw a man with a gun some distance away, but was unable to identity Mr Stewart as being that man. No evidence was ever presented that Mr Stewart had been involved in a conspiracy to murder and Mr Stewart presented an alibi to the court stating that we was several miles away from the site of the killing at the time.
The alibi isn’t particularly important for this appeal as it is almost impossible now to test the evidence. However, the kangaroo court that this trial was held in can be held under scrutiny and it doesn’t stand up. The senior judge and eleven of the jurors all had ulterior motives for finding the accused guilty; there could have been no equitable outcome to this case, something which Scots Law has long prided itself upon.
It will be interesting to hear the SCCRC’s ruling on the case (whether it should be referred to the Court of Criminal Appeal or not) when they finally do make it. The SCCRC has indicated that it will look at the submission made by Mr Macauley in due course.
Interesting Career Development
14 November 2008 at 14:11 | In Personal, Random | Leave a CommentWhen I announced my return to blogging after an unexpected absence I said that there had been exciting career developments recently. In my update I told you about being accepted to start training as a manager in a supermarket. Alas, I mislead, as that was not the exciting development that I was referring to. This post is about it.
University is starting to become tedious and boring. I’m not sure if it is what I want to continue to do. I’m not sure if I can be bothered with another three years of studying, borrowing and just getting by. I’m not sure that university is for me. I’ve felt like this for a while. I’ve been and given it a go. So, after a lot of thought I came to a decision.
Before settling on going to university and the study of Law (in between thinking medicine was off limits and deciding on Law) I considered applying to the Police, and in fact almost left school at 17 to join my local force as a cadet. So, what I have decided is that in the New Year I am going to submit an application to my local police force. If I am successful and get accepted to begin training I will leave university and pursue a career in the police. However, if I am unsuccessful I will stick out university for the remaining three years and then see where it goes.
Now, I have talked this over with many friends and the responses have generally been positive in nature. While, I enjoy learning I hate learning in a confined environment (i.e. being told what I need to learn and when and in what form). I much prefer learning what I want, when I want and how I want. My friends have noticed this and they were not surprised about this decision (it’s not the first time I’ve talked about leaving university – I’ve spoken about it frequently since starting my course).
What I’ve not yet done is talk to my parents about it and I don’t intend to. They’ll not react well to it (although they will give their support as that’s what they are like). So, essentially my parents will never know of this decision of mine unless I am successful in my application. I don’t see the point in bringing them into this uncertainty. I know they want me to get a degree as it will be better for me in the future (leaving university does obviously shut off a large number of these metaphorical doors that careers advisors seem to spend a lot of time talking to you about).
While I do still have this feeling that I want to pursue medicine I’m not sure whether I can be bothered, I can’t be bothered with university just now, what hope do I have of being bothered with another 5 or 6 years having already done 6 years at university!
So, that would be the interesting development I mentioned. Comments (of all kinds) are as usual most welcome.
Bail refused for Lockerbie bomber
14 November 2008 at 13:33 | In Criminal Justice, Criminal Law, Scots Law | 1 CommentThe Court of Criminal Appeal has refused to release Abdelbaset Ali al-Megrahi, the man convicted for the Lockerbie bombing in November 1988, on bail pending an appeal against his conviction.
Megrahi is suffering from advanced prostate cancer and had asked to be released on bail pending his appeal hearing on compassionate ground. The Lord President, Lord Hamilton, said that the critical question for the court was whether the appellant’s health condition was such that the court should allow him bail on compassionate grounds.
The court said that notwithstanding his incarceration, the full services of the NHS are available to him. The court noted that at present Megrahi is suffering minimal pain and disability and depending on how well he responds to the course of palliative treatment he has begun his life expectancy could be in years. The court concluded by saying they would listen to a fresh bail application should Megrahi’s prognosis became “both more certain and poorer”.
Megrahi’s second appeal against conviction is expected to be heard in the middle of 2009. He has already lost one appeal, but the Scottish Criminal Cases Review Commission (SCCRC) ruled that another appeal should take place.
Jury System Proposals
13 November 2008 at 14:03 | In Legal System, Scots Law | Leave a CommentAs I haven’t been blogging in a while I have not blogged about some important consultations taking place in the Scottish Legal System recently. There is an important paper out for consultation just now regarding Juries in Scotland.
On 18th September 2008 the Scottish Government published a consultation paper on modernising the jury system. This paper proposes a range of changes including:
- Allowing citizens aged between 65 and 70 to sit on trial juries (personally, I see no problem with this as judges are allowed to continue sitting until they are 70)
- Reducing the exemption from 5 years to 2 for those who have been called to attend court as potential jurors but are not subsequently balloted to serve on a trial jury.
The paper also talks about removing the exemption for those working in the legal profession from having to sit on juries. The equivalent restriction was removed from the English System and we have already seen judges sitting on juries down there. I am not too sure about this one myself. Personally, I see a potential issue in relation to Article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 (some, however, see this as an opportunity to strengthen this right). I see it as an issue when it comes to jury deliberations. Some members of the jury might vote in the same way as a person who they know to have legal training on this basis, meaning they are not (as they are required to do) arriving at their decision based on the evidence heard in court and the directions of the trial judge in relation to what the law says. While a solicitor, advocate, sheriff or Judge will have a greater understanding of the Law than a lay person does they can and do still get decisions wrong (this is why we have Appeal Courts and why convictions and judgements are overturned). I may be wrong, but we never know what goes son in jury rooms while they are making deliberating and arriving at a verdict. Maybe some of those in the English System who read this blog can help here.
Another proposal, which is proving quite controversial, is reducing the number of jurors who sit on a criminal trial from 15. This proposal has been raised partly on the grounds of cost (which in my opinion should never enter into reforms of the Criminal Justice System, but sadly cannot be ignored as the pot is a limited one). The proposal does raise the question (and the paper acknowledges this) of whether it would still be appropriate to allow a simple majority for conviction should the number of jurors be reduced from 15. This, is a very important point. Currently if you are on trial at least 8 members of the jury must be convinced by the evidence lead in court before they can convict you. This is quite a high number to be convinced by a very high standard of proof. It is a point that cannot be ignored through this consultation.
The consultation runs until 11 December 2008 and views are invited from anyone who happens to have one.
Update
13 November 2008 at 12:03 | In Personal, Random | Leave a CommentWell it has been very busy recently; mainly with work (working full time and studying part time has its disadvantages). Although, I’m not complaining about work too much as I’ve had some perks that full time work gives you (other than the large monthly pay) such as getting to spend 5 days away from work at a course at a lovely 4 start hotel (we were also staying there and it is a very nice hotel in deed) – okay the course was boring, but I’m not complaining about a 5 day expenses paid trip to a nice hotel!
Outside of work things have been going well too. Just about finding time to do some uni work should probably start thinking about preparing for the January Exams (given that I’m unable to attend more than a few lectures across the semester). The new place is also going well – getting along with everyone (which is always a bonus).
Returning to work briefly I’ve officially began training as a manager with the supermarket chain with which I work (only just last week). I am hoping to have completed the training in time to grab myself a PT managers job at a new store they are opening close by in August next year (thus allowing me to be a manager and return to full time education – the extra money will come I handy).
Health wise things have been going well as well. Following my recent annual Asthma review it was decided that we’d try me off my medication for a month, which has been going well (this is fantastic news considering all the problems I had with my Asthma during my early teens). I’m almost off the Antidepressants as well – the doctor is looking to cut out the final one altogether in the New Year!
That is a brief run down of what has happened in my absence. I’ve missed blogging and can’t wait to get back into it!
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