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Legal News Round Up: April 2023

The End of "Not Proven" by Trip Brown

Scottish lawmakers have proposed a new bill that aims to abolish the “Not Proven Verdict” in criminal prosecutions. The Victims, Witnesses, and Justice Reform Bill is a six part act, which has the potential to be the largest change to the Scottish Justice system in the last several decades. It is currently in stage one, meaning it has been proposed to members of the Scottish Parliament, yet it still needs to proceed through three more stages to be enacted into law. The Bill entails several reform options, most importantly it would reduce jury sizes from fifteen to twelve, create a new court for sexual offences, and do away with the “not proven” verdict.

Scotland’s justice system has historically had three verdicts in cases of criminal prosecution: “guilty”, “not guilty”, and “not proven”. The unique third option, which can only be seen in Scotland, has been a point of contention over the past years and has finally come to the forefront of parliamentary debate with the new bill.

A Scottish Government- funded study into the implications of abolishing the verdict, run by Professor James Chalmers and Professor Fiona Leverick of Glasgow Law School, revealed that most jurors do not understand the meaning of the ambiguous verdict, nor how it differs from a not guilty finding. The answer is that there is no difference in consequence for the affected individual in the two verdicts. This has become a pressing issue, particularly with cases of sexual assault.

The primary argument for the “not proven” verdict is that it is an important protection from wrongful convictions. However, the opposition argues that it stigmatises the accused and that the verdict is used disproportionately among different cases. The conviction rate in Scotland for criminal proceedings is 88%. However, in cases of rape the conviction rate falls to 43%. In the acquitted cases of sexual assault, 40% had a not proven verdict, whereas only 20% of acquitted cases regarding all other crimes were found to be “not proven”.

The Bill has already become highly contentious, particularly concerning the proposed reduction of jury size and the creation of a sexual offences court. A smaller jury and the absence of a “not proven” verdict would push jurors to be more decisive and for case findings to be more perspicuous. The confusing nature of the not proven verdict and its inconsequential effects have nonetheless reached an apt point of reconsideration in the Scottish Parliament and its future in the justice system is becoming increasingly uncertain.

The Conduct of Dominic Raab by Olivia Ellis

The resignation of former Deputy Prime Minister Dominic Raab is related to questions as to whether he breached the Ministerial Code leading up to an investigation into his conduct during April 2023. The Ministerial Code is a code that all ministers must abide by, in order to remain in office- any contravention of which would constitute a breach of the Code’s rules. The part of the Ministerial Code pertinent to Raab’s conduct is Section 1.2 which was inserted in 2018 by then Prime Minister Theresa May.

The Ministerial Code was confirmed in the 2019 edition of the Ministerial Code that was revised by Boris Johnson and he further added that ‘there must be no bullying and no harassment’. The 2018 and 2019 versions of the code were the ones that were enforced at the time the complaints were made, so this was the standard that he was held to.

So, what constitutes harassment, bullying and discrimination, and did Dominic Raab’s conduct in the complaints made against him, by at least 24 civil servants, amount to that? This is exactly what the Prime Minister commissioned Adam Tolley Casey to investigate. His findings were published last month in a report on the 20th April 2023. Harassment and discrimination were both defined under the Equality Act and there is no suggestion on the evidence that his behaviour towards civil servants amounted to either of those things. However, despite there being no legislative definition for bullying, the High Court did consider it in another High Court case back in 2021 and characterised it as follows.

  1. “Offensive, intimidating, malicious or insulting behaviour; or

  2. Abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.”

The Court also said that this definition of bullying behaviour would apply regardless of “whether the perpetrator is aware, or intends that the conduct is: offensive, intimidating, malicious or insulting.”

The remainder of the report summarises the complaints made and the various interviews that Adam Tolley Casey conducted with the complainants. Common themes throughout the complaints include Dominic Raab's abrasive behaviour, unreasonable expectations, partiality to humiliate other civil servants, and general unnecessary criticism of colleagues. There were no allegations of shouting or swearing; in many cases, it was accepted that he probably did not know the impact his behaviour had on others. In conclusion, Casey found Dominic's behaviour in two of the complaints made against him to amount to a breach of either or both limbs of the definition of bullying as per the High Court’s definition from 2021. What this report did not do was explain whether Dominic was in breach of the ministerial code, because as per the Code, that is the job of the Prime Minister. Raab has since resigned, so that the Prime Minister does not have to make that difficult decision. This should set a precedent for employers everywhere, that bullying in the workplace should not be tolerated, even at the highest level. It also sets a precedent that lack of self-awareness is not a defence.

Australia and the “Voice Referendum” by Sebastien Richardson

Late last month, Australia’s federal Labour Party tabled a bill in support of a proposed referendum that would seek popular approval to alter the Australian Constitution and establish an official indigenous advisory policy body, the “Aboriginal and Torres Strait Islander Voice”. A pressing issue that has long been cast aside by federal politicians seeking to stoke ideological divisions and focus on urban voters, indigenous issues have consistently been a contentious and uneasy part of Australian identity and society. Though many policy inroads have been made, particularly over the past two decades since the 1993 Native Title Act and the “Bringing Them Home Report” of 1997, indigenous Australians face severe welfare disparities with the rest of the population, highlighted by a life expectancy 10 years lower than the national average and an incarceration rate of 15 times the national average.

In line with a tradition of state relations with the indigenous community comprised mainly of policy reports, from the Bringing Them Home Report, to the Closing the Gap Report of 2008, the 2017 “Uluru Statement from the Heart” led by Aboriginal and Torres Strait Islander leaders, saw the notion of a constitutionally-recognised advisory body thrust into the national conversation. As a Labour prime minister, considering himself as part of a long legacy of Labour Party- led progress in indigenous affairs, Anthony Albanese views himself as carrying the torch from former Labor leader Kevin Rudd, who formally apologised for the “stolen generation” in 2008.

Though traditionally, moves to reconcile the issues associated with indigenous affairs have been met with a broad nationwide support, with the 1967 referendum on constitutionally-recognising the indigenous population garnering over 90% support, this year’s referendum has seen a marked departure from this trend, with intensifying political divisions cutting across party lines. Though the Liberal Party’s official stance is one of opposition to the bill, many such as current Senate-leader Andrew Bragg see this stance as furthering the voting public’s disenchantment from the party, who have lost political power in all but one state. For opponents to the bill however, the referendum poses unnecessary changes to the Constitution whilst putting forth unclear legal guardrails for the “Voice”.

With the wheels being set in motion, this referendum will see further political division across Australian society, with potentially significant ramifications for the future of the nation’s political landscape.

Elizabeth Holmes Delays Prison Sentence by Michael Tozzi

Elizabeth Holmes, disgraced former CEO of biotech startup Theranos, was sentenced to eleven years in prison last November for defrauding investors. Her now-defunct company had previously made false claims about its ability to perform complicated blood tests from a single drop of blood in a compact device, the “Edison”.

After initially losing a legal appeal against this sentence early last month, she was ordered to report to prison by April 27, seemingly heralding the end of the legal saga over a scandal that had reverberated across Silicon Valley since the story broke following the investigation carried out by Wall Street Journal reporter John Carreyrou from 2015-2016.

However, on April 26, the US 9th Circuit Court of Appeals delayed her entry into prison as they considered an appeal by her legal team for her to remain free. Since then, however, this appeal has been rejected- and U.S. District Judge Edward Davila ordered that the former CEO pay $452 million US dollars to those she defrauded. Holmes entered a minimum security women’s prison in Bryan, Texas on May 30. Holmes’ ex-boyfriend, co-conspirator and former COO of Theranos, Ramesh “Sunny” Balwani, went to prison this April for a thirteen year sentence over his actions in the fraud scandal.

Image via Wikimedia Commons.


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