FERGUS EWING: There are no return verdicts of ‘a bit iffy’ or slightly guilty in Scots law
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Before being elected in 1999, I had worked as a solicitor for 20 years.
Frequently I appeared in the Sheriff Courts on civil and criminal cases.
I can say from painful experience: irrelevant arguments were simply not tolerated by our excellent Sheriffs.
Quite right too.
Readers may understand therefore that it took me a little while to get used to the world of politics!
So many arguments are personal - ad hominem - playing the man not the ball as it were.
The professional foul of politics.
I was reminded of these thoughts last week in Holyrood in the debate on so called ‘Hate Crime’.
This law, passed three years ago but only recently come into force, has been criticised by many leading figures and voices in Scotland not least Lord Hope, the Police Federation and J K Rowling.
The first week saw about 8,000 complaints - only three per cent of which were found to be crimes, but everyone of which had to be investigated by our overstretched police officers.
I could not support the Scottish Government line because the police if, after investigation of a complaint of a hate crime - stirring up hatred - they find there is no crime committed, they may nonetheless record against the individual something called a ‘non-crime hate incident’.
Indeed they must do so if the complainant ‘perceived’ the behaviour to have caused offence. A ludicrous purely subjective test.
When they do so, the police retain this ‘incident’ on an internal database. Most people will consider this to be a kind of black mark.
The individual against whom the black mark has been entered on this secret database is not even told about it - nor the complaint and has no opportunity to defend himself and is not even able to find out about it.
This practice has already been found by a Court in England to breach human rights law set out under the ECHR - law which is also of course applicable in Scotland.
So this is almost certain to be successfully challenged in court here possibly by a Conservative MSP!
I remember in my law degree at Glasgow University attending the classes on crime. I must have missed the one on ‘incidents’… maybe because they do not exist in Scots law.
Here one is found either guilty, not guilty or not proven of charges of which you are notified and which you can defend yourself.
There is no process here of a secret complaint against you where you are found ‘slightly guilty’ or ‘a bit iffy and we think he did it but we could not prove anything’.
This insidious practice reminds me of the Franz Kafka novel, “The Trial” where a man arrested and prosecuted by a remote, inaccessible authority the nature of his crime revealed neither to him nor the reader.
It’s not on. It must go. I predict it will be gone within a year.
Fanning the flames
Here in Badenoch and Strathspey our gamekeepers have issued a very strong warning to the Cairngorms National Park about wildfires over the coming summer.
Readers will recall very serious and widespread fires in the Highlands in recent times very nearly threatening human life.
The advice to park boss Grant Moir and his executives is this - ban muirburn at your peril.
As everyone involved in the countryside knows, muirburn keeps the heather under control and without muirburn it grows to such a depth and thickness that it creates a massive “fire load” which makes serious fires even worse because it’s then almost impossible to extinguish.
A consultation carried out by the Cairngorms National Park Authority has just closed, and I most sincerely hope that they listen to the voice of the people that know how the countryside actually works.
