Aggravation charge harder to prove than breach of the peace

AS far as aggravations are concerned – be they racial, religious or sexual – all these aggravations are going to be put into law by the Scottish Government.

The proof of those proposed aggravation charges is difficult in law, you have to have independent evidence which is corroborated to support it.

I have always been content with the situation we have now where if a person shouted, swore, brandished a bottle and called someone else a “Fenian b******” that is a breach of the peace and the sheriff or judge will sentence accordingly.

The proof is easier because you don’t need two sources of evidence – currently, you don’t need corroboration for the aggravation element as you do for an individual charge of aggravation. In the John Wilson case the jury was not happy with the aggravation and either did not find the witness (who said he heard Wilson call Lennon a “Fenian b******”) credible or were unhappy there was no supporting evidence for it.

And I think we should be very careful about criticising juries’ verdicts. I think in this case the jury did not want to rely on the evidence of one witness. Because here’s the point – if you put the aggravation in a separate charge you have to prove this separately, but if it’s part of a general charge you don’t.

You leave it to the judge to highlight and sentence appropriately. But the powers that be in Holyrood believe it is more important to have a crime relating to racial, religious or sexual bigotry.

So where do we go from here and what happened on Wednesday?

I think you have to go away and consider.

You might want to look at whether aggravations are working in practice. They have been in for a few years, so should someone now have a look at them and how they have worked.

Should there be research and analysis of the number of cases which have been established, or not, and how they have gone?

In my experience they (charges with aggravations) are far more difficult to prove than normal breach of the peace.

If the Scottish Government now brings new hate crime or anti-sectarian laws they may have the same problems.

There must be statistics as to the number of prosecutions, the success rates, and sentences – and whether the conviction rate is increasing, staying the same or decreasing.

When something is introduced after a period of time you look at it to see if it’s working properly.

This should be the basis for looking at it – to see whether it’s doing what it was intended to do.

l Gerard Brown is senior partner in Livingstone Brown Solicitors.