The Admissibility of Covert Video Data Evidence in Wildlife Crime Proceedings: A “Public Authority” Issue?

This post is by Dr Phil Glover. It builds on earlier blog posts on this site and flags his recently published academic article.

I have just had the pleasure of having an article published in in Issue 4 of the 2017 Juridical Review, the law journal of the Scottish Universities.

The article focuses on recent controversy surrounding some Crown Office and Procurator Fiscal Service (COPFS) decisions not to proceed to prosecution in cases of wildlife crime, despite the apparent availability of what I term ‘video data evidence’. This term reflects the modern conception of investigative video recording (whether or not undertaken covertly) and the storage of recorded material in electronic form (data) and offered as evidence.

Taking the contents of a publicly available letter of explanation exchanged between the COPFS and Graeme Dey MSP (Convenor of the Scottish Parliamentary Environment, Climate Change and Land Reform Committee) the article examines why investigative video data acquisition undertaken as part of an investigation might be conceived as being likely to  be ruled inadmissible by Scottish Courts. The article builds on previous blog posts on the subject by Professor Peter Duff and this author.

I take the view that any investigator acting in a capacity outside the parameters of a ‘public authority’ in Scotland is therefore acting outside the ECHR-compliant data acquisition framework set out in the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). This means that a serious question mark attaches itself to the legality of obtaining evidence of criminal activity where such investigations are conducted by actors not being public authorities such as Police Scotland.

I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision. In the longer term, the Scottish Government might benefit from examining the provision of a mechanism whereby well-intentioned private investigatory actors can be added to the list of ‘approved’ authorities for undertaking surveillance.

The Juridical Review is published by W. Green/Thomson Reuters and is available via Westlaw. An open access version of the article can be made available after an embargo period of 12 months. The most recent issue of the Juridical Review also carries an article by Malcolm Combe, on the regulation of short-term letting in Scottish land law. He has blogged about that article on his personal blog.

Hung jury – the de facto third verdict

This post showcases a poster presentation by PhD candidate David Lorimer

The poster follows at the end of the post. An abstract sets the scene and a note on methodology explains the basis of the work.


The 15 juror courtroom may be viewed as a self-compensating system with in-built safety mechanisms to accommodate attrition, diversity and even jury nobbling. The hung jury can be viewed as a de facto third verdict and Scotland’s not proven verdict is arguably a more sophisticated and empowering version of the ‘too close to call’ option in modern comparative jurisprudence – regardless of its historic evolution.  In reality every coin has three surfaces.

Quantitative Methodology

The Scottish criminal jury is composed of 15 members compared to the 12 found in other common law jurisdictions. It requires a simple majority verdict which means conviction or acquittal by 8 or more as opposed to a unanimous verdict or qualified majority (usually 10 or more in other jurisdictions). This means that there are no ‘hung juries’ in Scotland. The Scottish system is therefore arguably more efficient but is it less fair? Does it ‘fly in the face of conviction beyond reasonable doubt’ as some commentators have suggested? Quantitative analysis carried out recently at Aberdeen University uses decision tree logic as a basis on which to develop and evaluate probabilities of conviction in both types of jury system. The results are presented graphically and provide a unique perspective on jury analysis, including the observation that the ‘rogue juror’ may be as much a numerical phenomenon as anything else. Consideration of the analysis raises a number of propositions:

  1. The drivers for a ‘Not Proven’ vote or verdict may be closely related to those which lead to a hung jury, leading to the concept of the ‘Hung Juror’ (see below).
  2. The simple majority may be a timely indication of how a Scots jury would ultimately vote if given a mandate to reach a unanimous or qualified majority verdict.
  3. The option to vote ‘Not Proven’ in Scotland vents the pressure on the ‘Hung Juror’ to make a peer driven, biased or otherwise uneasy decision without compunction.
  4. The hung jury is a de facto third verdict.

What next for the Scottish criminal jury?

Research has been commissioned by the Scottish Government.

Jury verdicts visualised: David Lorimer’s poster presentation

15 v 12 Jurors - Lorimer
Copyright: David Lorimer

Raptor Persecutions & Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making

This post is by Dr Phil Glover.

As an academic opposed to wildlife crime and with no ‘huntin/shootin/fishin’ interests (or indeed abilities) to declare, I have penned this article as a follow up response to my colleague Professor Peter Duff’s recent contribution to this blog relating to the correctness of recent Crown Office and Procurator Fiscal Service (COPFS) decisions not to prosecute in some recent wildlife crime cases. His piece stimulated robust debate on the emotive issue of wildlife crime and the admissibility of evidence pertaining to it, an issue that I wholeheartedly agree is crying out for greater legal (and legislative) certainty in Scotland and the UK. A number of the comments posted on the Raptor Persecution Scotland blog following Professor Duff’s article reflect complex research issues currently vexing me and on which I am seeking comments. As the academic responsible for Professor Duff’s references to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA) I feel it is necessary to expand upon them in light of some of the comments they have received.

The comments reflected questions I believe the COPFS would have to address in their decision-making. Some of them were partially (but in my view incompletely) addressed in a very helpful COPFS letter (PDF) of 30 May 2017 to Graeme Dey MSP (in his capacity as Convener of the Scottish Parliament’s Environment, Climate Change and Land Reform Committee). This article provides my arguably fuller answers and a suggestion or two as to how the current impasse or inconsistency in achieving successful prosecutions might be achieved.

Assuming no disingenuousness as to their purposes on the part of the Royal Society for the Protection of Birds (RSPB), it appears settled that its conduct in the controversial cases involved covertly placing and subsequently monitoring video-recording (data capturing) equipment adjacent to vulnerable wildlife sites for the (laudable) purpose (sole or otherwise) of processing the recorded film so as to provide Police Scotland and the COPFS with evidence identifying persons committing crimes against wildlife. On my admittedly skim reading of the cases referred to it appears that it is the RSPB, rather than Police Scotland, who undertakes the covert investigatory conduct. If not, disregard much of the analysis that now flows.

What are the legal implications of the RSPB’s conduct?

The legal implications of the RSPB’s conduct depend on the interpretation of two distinct legislative regimes that arguably apply.

The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).

Initial inspection suggests that the first principle has the most relevance:

(1) Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

In the context of the present analysis, the relevant Schedule 2 conditions are:

  • that the subject of the personal data has consented to the processing (not realistic in investigative covert information acquisition) OR
  • the data processing is necessary for the administration of justice OR
  • for the exercise of any functions of the Crown, a Minister of the Crown or a government department, OR
  • for the exercise of any other functions of a public nature exercised in the public interest by any person.

Schedule 3(6) additionally provides that sensitive personal data may be processed where such processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), and 3(7) replicates the permissions in Schedule 2 regarding administration of justice etc.

On this reading, the registered data controller (here the RSPB) can lawfully obtain and process personal data tending to identify a living wildlife offender for these purposes under the DPA and its principles. Added weight to this assertion can be given by the fact that section 29 of the DPA provides, inter alia, that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).

If it is lawful, necessary and proportionate to the legitimate aim pursued (prevention of wildlife crime)  it is also ECHR compliant. Within the DPA regime therefore, all looks rosy for evidence of wildlife crime obtained and processed by the RSPB using covert investigative technical measures.

My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert, non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1)) and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.

One initial view therefore might be that the RSPB’s covert investigative conduct as a ‘non-public authority’ takes place outside any statutory regime and therefore outside any European Convention on Human Rights (ECHR) safeguards. This view would mean that all the purportedly ECHR-compliant provisions of the RIP(S)A 2000 vis a vis ‘directed surveillance’ do not apply and are non-enforceable against the RSPB, meaning that their acquisition of private information about persons via covert video recording (in these cases the images enabling the identification of the alleged offenders) did not require to be authorised and would ultimately be admissible under the Scots law of evidence as no more than ‘irregularly’ obtained. This cannot in my view be correct, and I infer from their reference to ‘not authorised’ in their letter that the COPFS agree with me. Here’s why.

Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfully obtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.

European Human Rights Expectations

Unsurprisingly, the European Court of Human Rights (ECtHR) has made decisions that acknowledge this potential circumvention. Simon McKay, author of Covert Policing Law and Practice (OUP, 2011) outlines in Chapter 10 (Private Surveillance) the decisions in MM v The Netherlands (2004) 39 EHRR 19 and Van Vondel v The Netherlands (Application No 38258/03, 25 January 2008) holding that investigating authorities cannot evade their ECHR responsibilities by the use of evidence obtained by non-State or ‘private’ agents. Crucially, in MM the police and the public prosecutor ‘made a crucial contribution’ to the eventual criminal proceedings, thus engaging the responsibility of the State. It is highly likely that the COPFS, as Scotland’s public prosecutor, would be held as being similarly engaged and therefore responsible for flaws in the human rights compliance of surveillance undertaken outside the RIP(S)A. It is this consideration of the implicit failure of the RSPB to adhere to the RIP(S)A, by seeking authorisation from Police Scotland to undertake ‘directed surveillance’ on an agency basis, that may have influenced the COPFS decision not to prosecute in the recent cases referred to. In my view the COPFS would be correct to consider this, as it seems unacceptable that public authorities are bound by the RIP(S)A compliance safeguards whilst bodies such as the RSPB remain currently exempt.

In the absence of a rapid amendment to the RIP(S)A, a simple solution to this problem, if no one has already thought of it, would be for the RSPB to engage Police Scotland in the practical implementation of covert investigative conduct, with Police Scotland taking all the relevant requisite steps under the RIP(S)A to ensure ECHR compliance and thus the lawfulness of the conduct. This might involve no more than the secondment of a Police Scotland operative to ‘supervise’ the RSPB investigation teams, but with the necessary RIP(S)A authorisations in place.

When considering the notion of amending legislation, a question arises as to whether the RSPB could or should be added to the ‘relevant public authority’ taxonomy in the RIP(S)A, s8(3) so as to enable them to authorise their conduct in ECHR-compliant terms. Regrettably, due to my favourite bugbear (legislative drafting), this could be problematic: section 8(4) provides that the Scottish Ministers may by order amend section 8(3) by adding or removing a ‘public authority’, but there is no provision for adding entities such as the RSPB that fall outside the ‘public authority’ definition.

At this point it can be noted that nailing down a set definition for ‘public authority’ appears beyond the UK and Scottish legislatures and is purpose-dependent.

The RSPB does not constitute a public authority for the purposes of the Freedom of Information (Scotland) Act 2002, Schedule 1, but can be designated as such under that Act (s4 and s5(2)). This point is worth expanding upon: s4 empowers the Scottish Ministers to amend Schedule 1 by adding or removing particular ‘bodies’, with s5(2) further empowering them to ‘designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office’. Subsection 2 provides that such persons include, inter alia, those who ‘appear to the Scottish Ministers to exercise functions of a public nature’. It seems strange that legislative drafting has enabled this here, but not in the RIP(S)A.

A further argument for applying the RIP(S)A – Domestic Human Rights Expectations

The arguably overarching Human Rights Act 1998 mandates: that courts and tribunals must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (s2); that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s3) and that “public authority” includes—(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature (s6(3)(b)).

The first point therefore is that the RIP(S)A must be read and given effect in a way that is compatible with the Article 6 right to a fair trial and the presumption of innocence and the Article 8 right to respect for private and family life, home and correspondence. One possible outcome of this is that the RIP(S)A cannot be read in such a way as to render directed surveillance by bodies not designated as relevant public authorities and that a section 4 declaration of incompatibility might be required. Another is that section 8 could be ‘read down’ to include all bodies exercising functions of a public nature.

Examples abound of jurisprudence and associated academic commentary on what constitutes ‘functions of a public nature’. To my knowledge, and subject to the caveat that airing a hasty academic legal opinion can leave gaps in analysis, covert investigative information acquisition equating to covert directed surveillance under the RIP(S)A conducted by a registered charity has not yet been the subject of domestic or European legal challenge. Given the Strasbourg jurisprudence already mentioned however, I am of the view that such conduct would be construed as ‘of a public nature’ and would render the RSPB a ‘public authority’ for RIP(S)A purposes. Put another way, I believe that the RIP(S)A would be ‘read down’ to incorporate conduct amounting to covert directed surveillance on the part of any body undertaking conduct amounting to covert investigative information acquisition that assists the State (in this case the COPFS) in bringing a prosecution. This would undoubtedly require the RSPB and similar bodies to seek an authorisation under the RIP(S)A by involving Police Scotland as outlined previously.


What we are left with then, is that the COPFS, when weighing up whether or not to lead evidence comprising recorded video data acquired covertly for investigative purposes by an organisation not currently recognised in law as a public authority, have to consider the effect of two distinct regimes. The first, ‘older’ regime is that within the DPA, in which the RSPB as a lawful registered data controller, processes data acquired covertly for a purpose exempted under s29 from a requirement to be fair and lawful and which will therefore be processed lawfully in the course of prospective legal proceedings and appears admissible. The second, ‘newer’ regime is that framed by an inadequately drafted RIP(S)A read, as it must now be read, with the relevant provisions of the Human Rights Act 1998. On this reading, the RSPB cannot currently lawfully undertake conduct amounting to lawful directed surveillance.

Having revisited the limited available published information surrounding the Colin Marshall case (heard in 2006), I am of the view that the Sheriff erred in admitting evidence of what may have started out as a nest surveillance, but what ended up as being directed surveillance of Marshall over 3 nights in 2003. There is no indication that the RIP(S)A was even considered. The second case, that of Mutch, similarly involves no recorded discussion of the RIP(S)A or the Sheriff’s view on its applicability. It is my respectful view that the Sheriff’s decision here was courageous and taken for public policy reasons, but that it either ignored or circumvented the applicable law (the RIP(S)A) albeit for laudable reasons. It is a disingenuous and ultimately untenable position to assert that an ‘RSPB investigation team’ (their description, not mine) monitors nests as part of a survey and captures/processes video evidence of criminality as a ‘by-product’ of that survey. It is my belief that the COPFS feel the same and are therefore unfortunately bound to discount video recorded evidence if it has been obtained by investigation teams not listed as public authorities in RIP(S)A s8. Consequently, in my view, the answer lies in ‘contracting’ directed surveillance of vulnerable sites back to Police Scotland, seconding Police Scotland personnel to supervise RSPB investigation teams, or in the longer term amending the RIP(S)A after suitable public consultation.

It is understandable that champions for wildlife protection will feel frustrated at inconsistencies in the bringing of criminal proceedings and that courts represent the best and most transparent arbiter on matters of admissibility. However it is not the role or function of Scottish courts to decide whether or not to prosecute. That thankfully wholly independent decision is for COPFS. Having weighed the evidence that has been obtained outside the requirements for lawful, authorised, directed surveillance conduct and therefore outside the guaranteed ECHR compliance, the COPFS are probably right to err on the side of caution and avoid risking widespread public censure for abuse of process. Bodies such as the RSPB, in the short-term absence of them being added to the RIP(S)A mechanisms, should engage with Police Scotland to ensure lawful RIP(S)A and Human Rights Act 1998 compliance. In the mid- to longer term, those in government entrusted with wildlife protection should be lobbying vigorously to have the RIP(S)A amended to incorporate the RSPB, in the same manner as SEPA. Wildlife crime is too serious not be prosecuted, but the overarching requirement under ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.

The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions?

This post is by Professor Peter Duff.

Non-lawyers might be bewildered by the recent decisions of the Crown Office and Procurator Fiscal Service (COPFS) not to proceed with prosecution in a series of cases where the RSPB has video footage of employees of large estates setting traps for or killing protected birds of prey (as reported by BBC News here).

COPFS has stated that this is because such video footage is not admissible in evidence at a criminal trial. While this might seem to the layperson like a legal technicality, it can be argued that under the law COPFS has little choice in the matter. After all, no purpose is served in bringing prosecutions which are destined to fail because the courts will not admit the crucial evidence. A common reaction might be that ‘the law is an ass’ but there are important principles at stake which justify the position that the law currently takes towards such evidence.

As COPFS explains in a recent letter (PDF) to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament, the admissibility of evidence at criminal trials is governed generally by a substantial body of case law. COPFS states that its review of this body of law reveals that where covert cameras are placed, without the necessary authority (for example, a warrant granted by a Sheriff), for the purposes of detecting crime, the subsequent evidence has been obtained ‘irregularly’. As a general principle, this renders such evidence inadmissible in criminal proceedings according to the leading Scottish case of Lawrie v Muir 1950 JC 19, which has been cited with approval by courts all around the world. However, the judges in this case qualified this rule to some extent by stating that an irregularity in obtaining evidence can be excused depending on the nature of the irregularity and the general circumstances of the case.

The yardstick for a criminal court in determining whether an irregularity can be excused, thus allowing the evidence to be admitted at trial, is a balancing act between the ‘public interest’ in convicting those accused of crime and the need to protect the civil liberties – or, in modern terms, the human rights – of the ordinary citizen. If the latter are not given considerable weight, the fear is that we might well end up living in a police state under a ‘Gestapo’ type regime. Thus, for example, if the police irregularly seize the incriminating evidence in a very serious case, because it is at immediate risk of destruction by the perpetrator of the crime, a court might well deem that such an irregularity can be excused. On the other hand, if the police simply break down a suspect’s door in the middle of the night in a minor case to collect incriminating material because they cannot be bothered to obtain a search warrant, then the court is almost certainly not going to excuse the irregularity.

In the cases in question, we have the RSPB installing video cameras on private estates, apparently without the permission of the landowner, which is a breach of the privacy of the landowner and his or her employees who work on the estate. It seems that the RSPB claim that these cameras are placed solely for research purposes with no thought of detecting crime. It is not surprising that COPFS seems to find this explanation unconvincing because while one purpose may well be to gather research evidence – for example, as to the causes of the high attrition rate among birds of prey – it seems unlikely that the RSPB has not considered the possibility of gathering evidence of estates and their employees engaging in ‘wildlife crime’. As a non-ornithologist, I have always assumed that the long-established surveillance cameras at the Boat of Garten ospreys’ nest served at least two functions: to deter the collectors of rare birds’ eggs from stealing them in contravention of the law; and in order to find out more about the breeding habits of ospreys. (Incidentally, ‘birds or prey (raptor) persecution’ is one of six ‘Wildlife Crime Priorities’ listed by Police Scotland.)

Thus, COPFS is faced with the situation where the RSPB has covertly placed surveillance cameras on private land, probably at least partly with the aim of detecting individual instances of criminal behaviour and deterring other potential criminals from engaging in such behaviour in future. Thus, any evidence of a crime recorded by such cameras has been irregularly obtained and would require to be excused by a court before the recording could be admitted as evidence at a criminal trial. As I observed above, the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees (whilst not quite analogous, imagine if your neighbour installed a secret camera to record everything that went on in your garden). A court would have to determine that the public interest in preventing wildlife crime of the type in question is sufficient to outweigh the unauthorised and deliberate invasion of privacy by the RSPB before it would admit the recorded evidence. In the judgement of COPFS, the criminal courts would not do this and it seems to me that this is a perfectly reasonable view to take. In my view also, for what it is worth, I agree that the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless. (On a more technical note, such video evidence might well also be rendered inadmissible under the Data Protection Act 1998 and the Regulation of Investigatory Powers (Scotland) Act 2000.)

Hen Harrier
Photo credit: Gail Hampshire. Licensed under the Creative Commons Attribution 2.0 Generic license

Aggravation by Religious Prejudice in Scotland: The Lord Advocate’s Lacuna

This post is by Dr Phil Glover.

The Lord Advocate, the Rt Hon James Wolffe, QC, recently wrote to the Scottish Justice Secretary Michael Matheson following the conviction and sentencing of Tanveer Ahmed for the religiously-motivated murder of Asad Shah.  His correspondence referred to a ‘gap in the law’ (the Lord Advocate’s lacuna) and reflected ‘the earlier decision by senior Crown Office and Procurator Fiscal Service counsel that the circumstances of the killing did not meet the statutory test for an offence to be aggravated by religious prejudice’. Mr Matheson’s public response was that ‘as a government we are now going to consider [the Lord Advocate’s letter] very carefully and if necessary… bring forward legislation to address this very issue’.

Following my own research into the current legislative and common law provisions relating to aggravation by religious prejudice, I have reached the same conclusion as the Lord Advocate and also written to Mr Matheson. The purpose of my letter, in the absence of an official consultation, is to provide evidence of the existence of the lacuna, comment on some of its implications and propose a solution which involves amending the current statutory provision for aggravation by religious prejudice rather than the enactment of completely new legislation.

In summary, I recommend that a very simple amendment could be inserted to the provisions of the Criminal Justice (Scotland) Act 2003, s74(2) to include the evincing by an offender of malice and ill-will towards their victim (if any) based on ‘the victim’s public expression of personal religious belief(s)’. This would correct the Lord Advocate’s lacuna. I will now make the case for that assertion.

That the Offence was ‘religiously motivated’.

Asad Shah’s murder was undoubtedly based on religious prejudice and his sentence should have ‘officially’ recorded the fact as a matter of law and of appropriate societal labelling. In passing judgement and sentence, Lady Rae observed that Ahmed’s murder of Mr Shah:

was a brutal, barbaric and horrific crime, resulting from intolerance and which led to the death of a wholly innocent man who openly expressed beliefs which differed from…[those of Ahmed]…this was a religiously motivated crime, although it was not directed towards the Ahmadi community…[a branch of the Muslim faith of which Asad Shah professed adherence]

Lady Rae’s conclusions in the agreed narrative are founded on the fact that Tanveer Ahmed unashamedly and unrepentantly admitted (via a statement made on his behalf by his solicitor) that his conduct was motivated by his religious intolerance of Asad Shah’s expression of personal religious beliefs. Lady Rae’s use of the term ‘intolerance’, as opposed to ‘prejudice’ in her statement is somewhat unfortunate, as Scots Law currently does not make common law or statutory provision for ‘intolerance’. A description of Ahmed’s conduct as motivated by ‘religious prejudice’ would have perhaps served to narrow the Lord Advocate’s lacuna.

It is my view that, regrettably, consistency in Scottish society and Scots law as regards interpretation and usage of terms such as ‘hate crime’, ‘intolerance’, ‘offensive’ and ‘prejudice’ is currently lacking. However, if literal (rather than legislative) English is applied to the Lord Advocate’s issue, it is plain that ‘intolerance’ (unwillingness to accept views, beliefs, or behaviour that differ from one’s own) and ‘prejudice’ (dislike, hostility, or unjust behaviour deriving from preconceived and unfounded opinions) are readily interchangeable. It is therefore not difficult to concur with Lady Rae’s and Tanveer Ahmed’s statements that the brutal murder of Mr Shah was, as a matter of fact, aggravated by religious prejudice. Of course the issue raised by the Lord Advocate is that the circumstances of the murder were not, as a matter of law, aggravated by religious prejudice. As such, the relevant law will now be examined.

Scots Law regulation of ‘Aggravation by Prejudice’

The Scottish Government have acknowledged that Scottish courts possess longstanding common law powers to punish offenders more severely for the commission of prejudice-related crime by taking into account aggravating factors when sentencing. These have been complemented by a number of ‘statutory aggravations for criminal offences and substantive criminal law offences’. Leaving aside the debate over terminology and any potential benefits of consolidation, Scots law’s statutory aggravations include aggravation of substantive criminal offences by: racial prejudice; religious prejudice; disability prejudice; and sexual orientation prejudice and transgender identity prejudice. The current absence of Scots law provisions proscribing age prejudice and gender prejudice aggravations has been the subject of adverse comment. The statutory aggravations that do exist will now be examined. For present purposes, and to demonstrate the evolution of a drafting pattern that has inadvertently facilitated the Lord Advocate’s lacuna, aggravation by religious prejudice is examined last.

Origins of the Drafting Pattern – Racially aggravated harassment

Leaving aside the substantive offences of the (UK) Public Order Act 1986, which introduced the UK and Scotland to the concept of ‘racial hatred’, the first pre-devolution Act (i.e. law passed prior to the establishment of the Scottish Parliament) to directly address racial prejudice was the Criminal Law (Consolidation) (Scotland) Act 1995, as amended by the (UK) Crime and Disorder Act 1998. This enacted a new Scotland-specific substantive offence of racially aggravated harassment. This proved to be the beginning of what evolved into an identifiable drafting pattern, in that a ‘course of conduct’ or an ‘action’ is racially aggravated if:

(a) immediately before, during or immediately after carrying out the course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person’s membership (or presumed membership) of a racial group; or

(b) the course of conduct or action is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

‘Racial group’ means ‘a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins’, ‘membership’ includes association with members of that group, and ‘presumed’ means presumed by the offender. It is immaterial whether or not the offender’s malice and ill-will is also based, to any extent, on the fact or presumption that any person or group of persons belongs to any religious group or any other factor.

In the absence of accompanying Explanatory Notes, the reason why the definition of the term ‘racial hatred’ contained in the Public Order Act 1986, is not replicated in the racially aggravated harassment provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (as amended) is not readily evident. ‘Evinces’ seems a carefully chosen word meaning ‘to reveal the presence of, or indicate’. ‘Racial hatred’ is replaced by ‘malice and ill-will’. This may be because proving ‘hatred’, a very strong, subjective and emotive term, on the part of an individual offender, was thought to represent too high a threshold for proof beyond reasonable doubt. Despite this ‘drop’ in threshold, the Scottish provisions, which require ‘malice and ill-will’, still demand a higher threshold of nastiness (for want of a better term) as part of the criminal behaviour (the actus reus, in legal circles) than the equivalent English offence. This only requires the transient and less nasty behavioural threshold of ‘demonstrating hostility’ towards the victim. (As an aside, the requirement for different Scots provision is never really made clear, but there was some relevant discussion in the House of Lords: see HL Deb 12 February 1998 vol 585 cols 1265-1325 and in particular Lord Monson on ‘nastiness’, col 1277.)

Aggravation by racial prejudice

The Crime and Disorder Act 1998 additionally introduced section 96, also drafted specifically for Scotland. Aggravation [of a substantive offence] by racial prejudice will occur where:

the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a racial group or the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

Unsurprisingly (as they emanate from the same statute) the definitions of ‘member’, ‘presumed’ and ‘racial group’ replicate those for racially aggravated harassment. More importantly for present purposes, the drafting pattern wherein the conduct required (the evincing of malice and ill will towards a person based on their membership/presumed membership of a group an offender perceives as different to, and somehow irritating to him or her) is now becoming clearly evident.

Aggravation by Disability-related prejudice

This pattern continues in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, section 1. As for the older statutory aggravations by racial or religious prejudice, this applies where it is libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice relating to disability, and subsequently proved. An offence is aggravated by prejudice relating to disability if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to a disability (or presumed disability) of the victim, or (b) the offence is motivated (wholly or partly) by malice and ill-will towards persons who have a disability or a particular disability.

It is submitted that Scots statutory aggravations by prejudice as drafted therefore continue the now established practice of requiring the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (i.e. grouped together). In this provision, the relevant victim is perceived by the offender as being part of a wider group that the State has categorised as the ‘disabled’ group, or the offender feels predisposed to evincing malice and ill-will towards that State category more generally.

Prejudice relating to sexual orientation or transgender identity

The drafting pattern unsurprisingly continues in section 2 of the same statute.

An offence is aggravated by prejudice relating to sexual orientation or transgender identity if, at the time of commission or immediately before or afterwards, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to (i) the sexual orientation (or presumed sexual orientation) of the victim, or (ii) the transgender identity (or presumed transgender identity) of the victim, or

the offence is motivated (wholly or partly) by malice and ill-will towards persons who have (i) a particular sexual orientation, or (ii) a transgender identity or a particular transgender identity.

For the purposes of the provision, ‘sexual orientation’ is described as ‘sexual orientation towards persons of the same sex or of the opposite sex or towards both’; the Explanatory Notes to the legislation explain this means ‘heterosexuality, homosexuality or bisexuality’. ‘Transgender identity’ is reference to ‘transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or any other gender identity that is not standard male or female gender identity’.For this definition, the Explanatory Notes explain that it also:

extends expressly to cover other persons under the generality of broad reference to non-standard gender identity…[including, but not limited to]…those who are androgynous, of…non-binary gender or…otherwise exhibit[ing] a characteristic, behaviour or appearance…[not conforming]… with conventional understandings of gender identity.

As for the previous forms of prejudice, aggravation by prejudice relating to sexual orientation or transgender identity requires the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (grouped). In this case the State is seeking to protect the victim through categorising them as part of a ‘homosexual’ group, ‘heterosexual’ group, ‘bisexual group’ or ‘transgender group’.

Aggravation by Religious Prejudice in Scotland: the current law

The drafting used in Scotland’s statutory provisions providing for aggravation by religious prejudice represent a virtually verbatim derivative of the UK legislature’s older provisions for aggravation by racial prejudice previously outlined. The relevant statutory provision is the Criminal Justice (Scotland) Act 2003, section 74. As with the other statutory aggravations, it applies ‘where it has been either libelled in an indictment or specified in a complaint, and, in either case, proved that an offence has been aggravated by religious prejudice’.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation;

or, the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.

Critically, for present purposes, section 74 defines ‘religious group’ as:

a group of persons defined by reference to their religious belief or lack of religious belief, membership of or adherence to a church or religious organisation, support for the culture and traditions of a church or religious organisation, or participation in activities associated with such a culture or such traditions.

Aggravation by Religious Prejudice: the gap in the law

As for the previous forms of prejudice, aggravation by religious prejudice requires the offender’s malice and ill-will to be based on their perception (correct or otherwise) of their victim as belonging to a group comprising persons the offender sees as somehow different, irritating or repulsive to them. Protection against acts based upon evinced malice or ill-will founded on religious prejudice is therefore only available to self-confessed or ‘obvious’ members of a religious group, or of a social or cultural group with a perceived religious affiliation. There is currently no protection for individuals freely holding or freely expressing individual religious beliefs. This is surely wrong.

As it stands, Section 74 would, ironically and on the agreed narrative, have encompassed Tanveer Ahmed’s conduct if Asad Shah had expressed any religious profession of belief that was not associated with any branch of Tanveer Ahmed’s Muslim faith.

Regrettably therefore, the Lord Advocate’s lacuna is that, as drafted, ‘aggravation by religious prejudice’ cannot be applied to offences committed against individuals exercising, exhibiting or expressing their fundamental human right to freedom of thought, conscience or religion. That human right is enshrined in Article 9(1) of the European Convention on Human Rights.

Asad Shah exercised his personal articulation of religious belief as permitted by this right but he could not be categorised within any particular ‘religious group’ as the State currently requires in the Criminal Justice (Scotland) Act 2003. Mr Shah was not murdered on account of ‘malice or ill-will’ towards a ‘group of persons’ to which he was presumed by Tanveer Ahmed as belonging. He was murdered on account of the ‘malice or ill-will’ Tanveer Ahmed evinced towards his expressed religious beliefs.

The Lord Advocate’s lacuna is therefore (perhaps inadvertently) expressed by Lady Rae in her sentencing statement to Tanveer Ahmed based on an agreed narrative:

This was a…crime, resulting from intolerance…of a wholly innocent man who openly expressed beliefs which differed from yours…this was a religiously motivated crime, although it was not directed towards the Ahmadi community.

As such, unlike any other form of aggravation by prejudice in Scotland, Tanveer Ahmed’s malice and ill-will towards his victim, although founded on religious grounds, does not aggravate his murder of Asad Shah by religious prejudice as a matter of law.


As such, the Lord Advocate is not only correct, but has acted correctly in his role as the head of a public authority bound to act in accordance with the provisions of the Human Rights Act 1998 by highlighting the lacuna to the Justice Secretary. The Lord Advocate’s lacuna undermines individuals’ rights to State protection of their freedom of thought, conscience and religion, and to freely express that belief, under the following international treaties:

Universal Declaration of Human Rights, Articles 18 and 19;

Charter of Fundamental Rights of the European Union, Articles 10 and 11;

European Convention on Human Rights, Articles 9, 10 and 14.

In addition, the lacuna demonstrates Scotland’s current non-compliance with the Framework Convention for the Protection of National Minorities 1995, which requires (in terms of Article 6(2)) States to ‘take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity’. The use of ‘religious identity’ is particularly noteworthy here as it clearly distinguishes the Framework’s requirement upon States to protect individual persons vulnerable on account of their religious identity from Scots laws current protection of persons only if they can be categorised as falling within a particular religious, social or cultural group.

The lacuna also means that the sentencing provisions of the Criminal Justice (Scotland) Act 2003, s74(4A) cannot apply to crimes motivated by religious prejudice such as that of Tanveer Ahmed discussed herein. As such, Lady Rae’s calculation of sentence was undoubtedly affected (which she made implicitly clear) and despite the obvious aggravation by religious prejudice, Tanveer Ahmed avoided having his conviction appropriately labelled and attracting heavier sanction.

Correcting the lacuna

In my view, the outward expression by an individual of religious belief to wider society is sui generis. Expressions of race, colour, ethnicity, nationality all involve displaying or expressing characteristics or behaviours or physiological features that make the individual expressing them perceivable (rightly or wrongly) as belonging to some wider ‘group of persons’. Similarly, perceptions (correct or otherwise) of individuals’ sexual orientation, transgender identity, age and gender label such individuals as part of a wider group. Such groups have been proven to be marginalised to varying degrees in varying circumstances, and as such have deservedly attracted protection from international and domestic law aimed at preventing discrimination and prejudice directed against those groups and individuals presumed to belong to them. The State has categorised such groups accordingly and afforded definitions for them that are broad in scope and protective ambit. This is laudable.

Expression of religious belief however, simply does not fit this altruistic policy mould. Religious expression is an individual act of expression. The protection afforded by ECHR, Article 9:

includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private…[it]…applies to all personal, political, philosophical, moral and, of course, religious convictions. It extends to ideas, philosophical convictions of all kinds, with the express mention of a person’s religious beliefs, and their own way of apprehending their personal and social life.

As such, state protection for those expressing religious beliefs should be on that very basis. This would fundamentally enhance the demonstrably ineffective provisions drafted on the basis of the State’s perception of individual religious practitioners as inevitably forming part of a wider religious, social or cultural group, or an offender’s perception of the individual’s membership (correct or otherwise) of a religious social or cultural group. It is surely not the Scottish Government’s policy to exclude those who murder someone because that someone has expresses a religious belief that is anathema to him or her from the ambit of the statutory aggravation by religious prejudice.

It is submitted that Lady Rae, in the words she chose as part of her sentencing statement for Tanveer Ahmed, has provided a partial draft solution to the problem, and which could be enacted as an amendment to the Criminal Justice (Scotland) Act 2003, section 74(2). The amendment (embedded in the existing drafting) is highlighted in bold.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will, based on the victim’s public expression of personal religious beliefs, or the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation.

There would be no need to alter the second and more general definition of the aggravation. It is submitted that this simple amendment would correct the Lord Advocate’s lacuna by providing protection for individuals, such as Asad Shah, freely expressing their personal religious beliefs. It would also ensure that those who evince malice and ill-will based on intolerance of an individual’s publicly expressed personal religious beliefs, would (as was surely intended) fall within the ambit of hate crime legislation, thus correctly aligning Scots criminal law and procedure with wider Scottish Government policy on hate crime.

Presenting as an Integral Part of Research

This blog post is by Dave Lorimer, an LLM by Research candidate at the University of Aberdeen. In this post – the second this blog has hosted from a postgraduate student – he reflects on a recent interdisciplinary event at the University of Aberdeen.

The inaugural Granite Symposium on 25 April 2016 provided a good opportunity to present some postgraduate thoughts. The event allowed discussion of interdisciplinary issues, in particular where the social sciences meet technology, with a view to publication in a special edition of Granite Online Journal .

The keynote presentation by Prof Karen Kelsky was an enlightening review, albeit a very trans-Atlantic one, of where to go after ‘grad school’ and how to get there. Tricky questions for many of us. There was some thought-provoking advice about pacing the publication of research and how to tie it into an academic career.

For my part I presented on my latest numerical analysis on aspects of the criminal law. Having had an interesting and varied career as an engineer in the oil and gas industry, my early retirement (at a time when ‘bean-counting’, diminishing local reserves, standardization and ‘business modelling’ was taking much of the creative fun out of engineering) allowed me to pursue a life-long fascination with the law. It struck me in the course of my LLB that there were a number of analogous processes in the logic of the law and the logic of engineering. In fact, much of the work towards the end of my engineering career was primarily determined by a Law Lord.

The technical quality of Lord Cullen’s report on the likely chain of events leading to the Piper Alpha disaster would have made any experienced engineering professional proud. His review and recommendations on the use of Quantitative Risk Assessment (QRA) as a predictive tool in industrial safety management, for me at any rate, now resonate with a defeasible approach (as often used in artificial intelligence work) to assessing the ‘unknowable’ using the logic of numbers in a legal context; QRA predicts the likelihood of possible future events in order to identify the optimum approach to the best outcome – so why not seek to apply the same logic to the understanding of past events? So far I’ve worked on four discrete numerical applications within the area of criminal law. I presented separately on the first three at Strathclyde and Aberdeen, namely: 1) the risk reducing nature of corroboration with respect to wrongful conviction; 2) a numerical view of the criminal process as a chain of events; and 3) an exculpatory assessment of defence witness reliability in a murder case-study. The Granite Symposium allowed the opportunity to present on the fourth: a numerical assessment of information transfer by witnesses at trial. Each time I present, not only do the ideas under consideration become better understood but new facets are revealed in the process of receiving feedback from the audience, which ultimately strengthens and further develops the thinking.

Information transfer by witnesses at trial

At the heart of the witness accuracy model is some Enlightenment philosophy that I gleaned during the relatively brief study of McCoubrey and Whyte’s Jurisprudence as a law undergraduate, in conjunction with a curiosity about the history of philosophy as integrated with fiction by Jostein Gaarder and Robert Pirsig, plus a schoolboy interest in the writings of Jean-Paul Sartre. The Existentialist/Kantian view that what we see is not what we think we see and that the real world is unknowable is readily transferable to the analysis of the perceptive capacities of a jury. Information transfer from crime to witness to jury in the course of a trial may be broken down into seven stages and High (> 95%), Medium (50% mid-range) and Low (< 5%) rates of information transfer accuracy can be applied at each stage to give an overview of the ultimate extent of ‘erosion of truth’ in the picture as perceived by the jury. The seven ‘Kantian’ stages can be broken down as follows;

Event occurs – Witness perceives – Witness reflects – Witness recalls – Witness testifies – Jury perceives – Jury reflects.

The idea of ‘reflection’ after perception comes from David Hume (the philosopher, uncle of the institutional writer Baron David Hume) as do a number of other ‘Kantian’ concepts (the possibility that Kant believed he had a Scottish grandfather makes one wonder if he had read Burns too; ‘To see oursels as ithers see us’, ‘A man’s a man for a’ that’  and ‘That sense and worth o’er a’ the earth’ are well reflected in Kant’s moral philosophy; in this author’s humble view, they represent the Scotsman’s equivalent to Kant’s Categorical Imperative and its various formulations).

The surprising thing was that this ‘Kantian’ breakdown of stages raised the majority of feedback after the Granite Symposium presentation, in particular from researchers variously asking about applications with regard to:

  • advertising design development processes;
  • studying the history of theology;
  • computer science and the possibility of empirical work on the seven stages; and
  • neuroscience research, raising the question of whether Magnetic Resonance Imaging (MRI) scanning of the brain (known as functional MRI or ‘fMRI’) could lead to real-time assessment of information transfer accuracy at any or each of the seven stages. The state of the art with respect to the current size of MRI machines presents obvious practical issues with this but the idea that one day witnesses (and even jury members??) could wear an MRI scanner as a hat, may ultimately make polygraph (lie-detector) machines as obsolete and humour-inspiring as the wind-up gramophone.

The initial perception that this fourth and latest numerical application was of little more than scene-setting or background interest turned out to be wrong, at least as far as the Granite Symposium feedback is concerned. Some interesting ideas have been generated and the strength of the analysis – as in many if not most numerical assessments of this type – is not necessarily in the final arbitrary or defeasible numbers generated. As with experience in numerical risk analysis in industrial projects, much of the real value is in the analytical process of categorising inter-related parameters and the comparison of a range of inputs from a cause and effect perspective, as well as development of deeper understanding of the overall process and identification of key issues and new ideas. This is at the heart of a reasoning process and the numerical approach may be seen as a thread that binds or a link that chains – or even a kernel that continues to grow.

As far as academic presenting is concerned, any form of peer review – which includes presenting and discussing the issues with people of sound intellect and experience, plus any ‘digital dialectic (reasoning)’ such as blogging – also becomes part of the research and reasoning process. In fact, with respect to the research under consideration here, it seems at first thought perhaps a pity that jury members no longer get to question witnesses directly… but that’s another story.

Granite Q&amp;A with Karen Kelsky
Photo Credit – Granite: Aberdeen University Postgraduate Interdisciplinary Journal