New super-libel law planned for Scotland

While the Westminster Government plans to repeal laws that erode civil liberties, the Scottish Government is proposing the UK’s most far-reaching intrusion into private debate.

The SNP Government in Edinburgh plans to introduce a statutory offence, making it unlawful to alarm or distress another person in word or deed. The offence reaches into private dwellings and carries a maximum penalty of five years imprisonment.

It could, in effect, create a super-libel offence. If a newspaper printed truthful material that embarrassed a high-profile individual, he could claim to be alarmed or distressed by the words and press for criminal charges. The proposed offence carries no defence of reasonableness.

The Scottish Government’s plans purport to deal with domestic abuse, but the offence is not limited to persons in a domestic relationship. The offence has been so broadly drafted that they give police and prosecutors sweeping powers that would erode free speech.

Before last year, domestic abuse in Scotland was often dealt with under the common law of breach of the peace. But in Harris v HM Advocate (2009) a Scottish Appeal Court ruled that a breach of the peace in Scotland must have a public element to it.

So the Scottish Government proposed a statutory offence outlawing ‘distressing’ words or behaviour which would apply inside a private dwelling. While the intention to tackle domestic abuse is laudable, the low threshold and broad scope could cause many unsuspecting people to fall foul of the law.

Under proposals, the offence could have been committed regardless of whether alarm or distress was intended – or even occurred, requiring only that alarm or distress was ‘likely’. A one-off incident would be enough to breach the offence, and it applies inside a private dwelling as well as in public.

A legal opinion by a Scottish QC, Herbert Kerrigan, and a harassment law expert, Solicitor-Advocate Timothy Lawson-Cruttenden, expresses concerns about the original proposal in Amendment 378. The two lawyers conclude: “In our opinion this is a hastily drafted amendment which has not given proper thought to this complex area of law and to the manner in which behaviour and/or freedom of expression can properly and lawfully be restricted under the Human Rights Act.”

Mike Judge, Head of Communications at The Christian Institute, said: “This proposed offence is an alarming erosion of civil liberty. It is a heckler’s veto, making it a criminal offence to alarm or distress another person by something you may say. People are alarmed or distressed by all manner of opinions, but that’s not a crime. It’s part of the cut and thrust of an open society.”

The proposal appeared as Amendment 378 to the Justice and Licensing (Scotland) Bill but was withdrawn for revision. The proposal, in a revised form, is expected to be debated and vote on by MSPs on 30 June.

Read the legal opinion in full here: