Hansard

In this group, amendments 402A and 544 are in my name. As Rhoda Grant and the cabinet secretary have indicated, the group raises a number of overlapping issues.I agree with the cabinet secretary’s comments on amendment 400—I think it might be a case of overkill. Under the criminal law in Scotland, the Crown has traditionally acted in the public interest as master of the instance. In other words, it is up to the prosecutor when to bring charges and on what basis, when to continue with or abandon a prosecution and when to ask for specific orders. It may well be that a non-harassment order is appropriate in many cases in which there is a stalking conviction, but circumstances vary and the discretion should remain with the Crown.Amendment 402 seeks to introduce the specific offence of stalking. There has been quite a bit of debate about that, but the case for the new offence has been well put. Stalking is a crime that, in essence, is different from breach of the peace because it involves the repeated, deliberate targeting of a particular victim and is often made up of a series of actions that, in normal circumstances, may themselves be unexceptional.However, it is vital that the definition is got right because an offence that is too widely or imprecisely stated will produce injustice. I hope that the cabinet secretary’s officials—who I accept are not in favour of amendment 402—have pored over it carefully to ensure that it does what it says on the tin. I continue to hold the view that the definition must be looked at extremely closely, as it may be too wide. More particularly, the defences in subsection (5) of the proposed new section that amendment 402 seeks to insert are likely to produce considerable trouble.I am not sure that I am altogether persuaded by the cabinet secretary’s point about a single action as opposed to a course of conduct. By its nature, stalking seems to be a course of conduct. I readily accept that, in any event, significant instances of a one-off nature would continue to be dealt with under breach of the peace, so I do not think that that is a problem. I am keen to hear the cabinet secretary’s views on the matter, as it is important to get it right. I do not think that the reasons behind amendment 402 arise out of the Harris case per se, although that adds another dimension. The defences that are set out in the proposed new subsection (5) that amendment 402 would introduce are modelled on the phraseology of the Protection from Harassment Act 1997. However, the 1997 act is not quite the same as the legislation that we are discussing today, as it basically establishes a procedure for providing orders, rather than establishing a criminal action and the immediate offset—a crime is committed under the 1997 act only on breach of a non-harassment order. For example, proposed subsection (5)(a) suggests that a course of action would be legal if it were “authorised by ... any rule of law”. If my memory serves me correctly, various enactments make it legal to walk upon the public highway. Is it possible that walking up and down outside someone’s house, even with malicious intent, could be authorised in that sense, thereby providing a loophole to a stalker? I remind members that the rule of construction is that penal statutes are, rightly, construed strictly against the Crown.Further, the catch-all defence in proposed subsection (5)(c) suggests that a course of action would be legal if it“was, in the particular circumstances, reasonable”.I should say that that is phrased differently from the way in which the cabinet secretary’s amendment 378 is phrased. The difference between the use of the word “reasonable” in the two amendments does not amount to a difference of approach. However, some questions remain around the issue of reasonableness. To whom should the course of action seem reasonable—the accused or the man on the number 18 bus, for example? Reasonable by what criteria?I continue to have a concern about the effect of the proposals on legitimate public protest and lawful industrial action. Students of trade union history will know that early restrictions on what we would now regard as legitimate trade union protest arose from judicial extension of contract and property law into the criminal sphere. Subsection (6)(e) of the proposed section that amendment 402 would introduce defines “conduct” as including “entering or loitering in the vicinity of ... the place of work or business ... or of any other person”,which very much touches on the area of industrial action. Are we entirely sure that such legitimate conduct is authorised by existing trade union law, as opposed to simply not being forbidden by it? I suggest that there is a subtle difference there. I do not pretend to be an expert on trade union law, but I hope that the issues that I have raised will be closely considered by the cabinet secretary’s officials.Further to the issue of public protest, what about football fans who are distressed at their club’s performance and want to demonstrate at the football ground? We have seen examples of that in the recent past. “Conduct” also includes the sending of letters, e-mails and texts. What about whistleblowers or people who go a bit over the top in castigating their MSPs or—perhaps more likely—their MPs for their sins? Would that behaviour be criminalised? Some of us might think that that would be a good idea, but I am not sure that most of us would.People have various and heated views about Orange order parades, Irish republican parades, demonstrations about middle east issues and so on. Some such marches can arouse apprehension and fear in the minds of onlookers—some are intended to do exactly that through a demonstration of strength. However, that does not necessarily make them illegal. The right to freedom of expression gives people a certain latitude, providing that they keep within the law. Are we not at risk of narrowing that latitude too much and unreasonably getting involved in people’s motives and intentions when they engage in legitimate public protest?It is against that background that I lodged amendment 402A to ensure that the law of unintended consequences does not throw its arm over lawful and reasonable public protest or industrial action. I think that we are dealing with a significant point. Others have expressed the view that the proposals do not change the existing defence but I think that they do. The Government’s amendment 378 is designed to deal with a perceived anomaly in the definition of breach of the peace, following the recent decision of the appeal court in Harris v HMA. Effectively, the amendment provides a statutory basis for breach of the peace, which I think is the wrong direction to go in. Breach of the peace is an ancient and useful measure. Its flexibility will be damaged if it is put on a statutory basis. I also note that there has been little consultation on the proposal. It would be preferable to deal with the consequences of the appeal court’s decision by amending the law in a much more minor way so that it reverts to what the situation was thought to be before. Kenny MacAskill mentioned the Young v Heatly case, which I recall from my student days and which set the right tone. If I recall correctly, it was something to do with a headmaster making inappropriate suggestions to a pupil and the pupil not being upset but the public possibly being outraged. My amendment 544 attempts to do what I have suggested by saying that“A person’s behaviour may constitute a breach of the peace”. The amendment is intended to restore flexibility to the courts. I readily accept that I may not have got the phraseology right, but the amendment is a reasonable stab at it, and it echoes the Government’s amendment. The distinctions that the cabinet secretary made do not stand up. If we get things slightly wrong, it is easier to correct them at stage 3 than to fiddle about with a significant and complicated amendment such as amendment 378, which tries to start from scratch and put the whole issue on a statutory basis. The committee has been concerned about doing that in other areas and about any unintended consequences. Against that background, I stand by my position on the amendments. 10:30