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Responsible Debate and The Criminal Law

By 24th November 2021 No Comments

Eamon Keane

Convenor of the Scottish Legal Action Group; Early-Career Fellow in Criminal Law and Evidence, The University of Edinburgh

Given the importance of the rule of law to a democratic society, those who engage in legal debate should always seek to do so accurately, based upon evidence and experience. In this piece, I will focus upon the criminal law specifically and consider a number of its features, relating to its substance, and the process of its formal enforcement. I will highlight how its punitive character, and its human aspect, necessitate that care is taken by all those who are involved in its formulation, application and discussion. Although I focus upon the criminal law, some of the observations I make here also apply to responsible debate and the law more generally.

I will begin by considering the nature of criminal law, particularly its normative power, and the consequences of its breach. The formal criminalisation of behaviour has powerful consequences. By deeming certain forms of conduct criminal, legislatures and courts send a clear message to the populace about their obligations to their fellow citizens, and to the State.[1] Criminalisation delineates the boundaries of permissible conduct, facilitating peace and trust between citizens, and is accordingly an important component of effective governance in modern democratic societies.[2]  The criminal law obtains much of its normative force through the threat of State sanction. Infringement of the criminal law, if proven, carries with it potentially severe consequences, including imprisonment. It is accordingly a powerful tool of coercion, and its role in society, and the punitive repercussions of its breach, necessitate that certain high standards be met in terms of its creation.[3]

Given these attributes of the criminal law, it is clear that the utmost care must also be taken in political, public and academic discussion of the subject. Misunderstanding, and misrepresentation, can lead to damaging consequences but, regrettably, careless debate of the criminal law is commonplace. This article for example, absurdly alleged that following the introduction of new Scottish hate crime legislation, people could “face prosecution for shouting incorrect opinions in their living rooms about Nicola Sturgeon”. Such inaccuracy serves to damage public understanding of the law under discussion.

A regrettably common feature during the response to the COVID-19 pandemic has also been the ambiguity that exists relating to whether certain public health measures were backed by criminal sanction, or were merely advisory, and how potential exemptions operate. The YAS Charter for Responsible Debate provides a mechanism via which some of these problems could have been avoided. For example, Principle 1 of the Charter states that one should “aim for accuracy, and base your contributions on evidence and experience.” By adhering to this principle, politicians and commentators can help the wider populace understand clearly the scope and effect of the criminal measures being implemented. A good example of responsible commentary in this respect can be seen in this accurate piece on the BBC News website.

The final matter I want to mention concerns what I call the human aspect of the criminal law. At the beginning of each semester, in my first lecture to undergraduate law students, I remind them that the subject matter we will discuss, as expressed in various legal judgments and case reports, pertains to real people. Although the names of those involved (often anonymised) may appear to lawyers as merely words upon the page, these cases involve fellow members of Scottish society. Lawyers require professional detachment, but that doesn’t mean they should lose track of the humanity of all those caught up in the criminal law’s machinations.

Worryingly, commentators in Scotland often do lose sight of the humanity of those featured in legal cases. A striking example of this relates to the ongoing political wrangling over the fall out of the former First Minister, Mr Alex Salmond’s, acquittal for various sexual offences. Responsible and informed debate surrounding both the trial and related inquiries is to be welcomed, not least given the complexity of the legal issues involved. Frequently though, the desirable standards of accuracy and responsible language have not been reached by those commenting on the matter.  In this respect, an egregious example of poor practice can be seen in this piece which appeared in The Spectator magazine, by someone who chose to describe themselves as a “former honorary professor’” of law.  The article offered a legal analysis of certain statutory provisions relating to criminal disclosure that was entirely erroneous and was disputed by all those with an understanding of the matters involved.[4] The piece, which was also laden with hyperbolic and reckless language, was shared extensively by various politicians, and is still available online.[5]

All of those caught in the grasp of the criminal law deserve better. It is hoped that the YAS Charter for Responsible Debate will provide a clear framework to enable better legal discussion of such matters in future.

Footnotes

[1] This has been described as the normative, symbolic and functional role of criminal responsibility; see Loughnan, Arlie. 2020. Self, Others and the State: Relations of Criminal Responsibility, 47. Cambridge: Cambridge University Press.

[2] See Farmer, Lindsay. 2016. Making the Modern Criminal Law, 165. Oxford: Oxford Umniversity Press.

[3] From both a philosophical and legal perspective see, e.g., the discussion of the principles of criminalisation in Ashworth, Andrew. 2000. Is the Criminal Law a Lost Cause? Law Quarterly Review 116. And also the requirement that criminal offences are defined in such a way that conforms to the European Convention on Human Rights, which has effect in Scotland.

[4] Which includes, in this instance, myself! See Keane, Eamon. 2021. Clarity on Salmond Inquiry. Scottish Legal News 27 January 2021. https://www.scottishlegal.com/article/eamon-keane-clarity-on-salmond-inquiry, but also presumably the Crown Office and Procurator Fiscal Service, Scotland’s national prosecutor whose advice formed part of the discussion.

[5] To date no correction has ever been printed.

Charter for Responsible Debate report cover

This article is part of a series of reflective blog posts on our Charter for Responsible Debate.  It was originally published in our Responsible Debate project report, which also includes the full text of the Charter, an overview of how we created it, and an exercise pack for using the Charter in our everyday lives.

Our Charter for Responsible Debate proposes nine general principles for responsible public debate. They are based on our belief that joint decision-making should be informed, respectful and inclusive.

We hope that the Charter will kick-start some wider conversations about how we can listen well to each other, even when we disagree, and how we can work together to find common ground and a sense of shared purpose. This is key to improving the culture of debate in all areas of our lives: in person and on social media, locally, nationally and internationally.

We hope you will join our growing movement by signing our charter pledge and trying out the principles of Responsible Debate in your everyday life!

learn more
download the Responsible Debate report