Law reform round up January 2017

The Criminal Law Committee has responded to the Scottish Government’s consultation on the creation of a specific offence of domestic abuse. We fully support measures to improve how the justice system responds to domestic abuse and welcome the government’s proposals. However, we believe that banning individuals accused of domestic abuse from conducting their own defence case could give rise to practical challenges and resourcing implications must be considered.

Accused individuals are already prevented from conducting their own defence in cases related to certain sexual offences, serious offences involving child witnesses and offences involving other vulnerable witnesses. We support the proposal to extend this provision to cases of alleged domestic abuse, however there is likely to be a significant increase in the number of cases where it could apply, and where courts then need to appoint a solicitor.

The eligibility criteria for resourcing and legal aid should also be taken into account and the government needs to consider whether those fees would be funded by legal aid without any enquiry into the financial means of the accused.

We have also highlighted potential issues around resourcing expert evidence relating to the behaviour of complainers. In certain sexual offence cases, the introduction of expert evidence relating to the behaviour of a complainer is already permitted and we recommend evaluating the impact of this existing provision before moving forward.

You can read our full response here.

The Digital Economy Bill has been looked at by a number of our committees and sub-committees, namely the Property and Land Law Reform, Consumer, Criminal and Technology committees. We issued a briefing ahead of the Second Reading of the Bill in the House of Lords on 13 December 2016 and have also submitted amendments ahead of the Committee Stage.

We generally approve of the principles behind the bill particularly in terms of modernising the electronic communications infrastructure, restricting access to online pornography, making provision concerning intellectual property and data sharing and the regulation of direct marketing. We made no comments on the relationship between OFCOM and BBC.

You can read our full briefing and amendments here.

We have welcomed plans to raise the age of criminal responsibility following a statement in the Scottish Parliament by Minister for Childcare and Early Years Mark McDonald MSP on 1 December 2016. The Criminal Law Committee previously responded to the Scottish Government’s consultation on raising the age of criminal responsibility from eight to 12 and we also issued a briefing paper to all MSPs ahead of the Ministerial Statement on 1 December.

Scotland’s age of criminal responsibility, at eight years of age, is the lowest in Europe and we are very pleased to see the Scottish Government intends to raise it to 12 years of age. The UN Committee on the Rights of the Child has said that setting the age of criminal responsibility below 12 is not ‘internationally acceptable’ and we have argued for several years that a child of eight is too young to be held criminally responsible. Raising the age will bring it in line with the existing age of criminal prosecution in Scotland, providing clarity in the law, and will ensure that children are not treated and then labelled as offenders because of things they did when they were under 12 years old.

You can read our full response and briefing paper here.

The Intellectual Property Law Sub-Committee has responded to the Intellectual Property Office’s consultation on the European Commission’s draft legislation to modernise the European copyright framework. This includes the implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and proposals relating to copyright in the Digital Single Market.

Overall, we support the Commission’s proposals. However, we have some concerns about the definitions used in the draft legislation.

You can read our full response here.

The Licensing Law Sub-Committee has responded to the UK Government’s call for evidence on the review of gaming machines and social responsibility measures. The Department for Culture, Media & Sport are consulting on the maximum stakes and prizes of gaming machines across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players and communities from gambling related harm.

We have previously noted that there may be different views in the profession as to how the Scottish Parliament should exercise the powers devolved by section 52 of the Scotland Act 2016. There was consensus that it would be an undesirable outcome for some aspects of the Gambling Act 2005 and aspects of any future Scottish Parliament legislation to apply to the same betting premises.

We are supportive of the general policy objectives of social responsibility measures, and the need to balance the interests of the industry and those of the public. In respect of regulation of the gambling sector, we have noted previously that the Society would prefer an approach that will give clarity to the trade and licensing boards.

You can read our full response here.