Thursday, 19 April 2012
A dirty breach
The above film features the immediate aftermath of the police attack on the demonstration.
One of the most commonly cited charges in
Scotland used against the population in general, and the protest movement in particular, is that of so-called ‘breach of the peace.’ It is a widely defined crime, which was stated in 2001 as requiring conduct which is ‘severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.’  It has often been criticised for lacking precision – and falling short of the necessary requirements of the European Convention on Human Rights in this respect. In a case of breach of the peace relating to protests against the G8 Summit in Gleneagles in 2005, the Sheriff sustained a case that there was no case to answer, and this decision was later upheld in the appeal court since the ‘demonstration was entirely peaceful’ and there was ‘no evidence of anyone being alarmed or distressed.’ 
Recent appeal cases have upheld the need for the Crown to show evidence of actual alarm or distress having been caused by other people – something more than mere swearing or obscene gestures is likely to be required before the conduct could be said to amount to breach of the peace.  It is also clear that breach of the peace must have a public element, although the nature of this element remains unclear. 
Glasgow police parlance, what is termed a ‘dirty breach’ is used against those who the police intend to fit up, where no actual offence has taken place. Nowhere is this more evident than on the Palestine demonstration in Glasgow on 17 April, where one young protester was arrested and further arrests were thwarted due only to the solidarity of the crowd. The Glasgow Defence Campaign has footage of the actual arrest which took place, which in our legal opinion not only exonerates the targeted activist but implicates the police in yet another politically motivated arrest.
Scotland, over 90 per cent of people plead guilty to the charges levied against them and, in all but the most serious cases, pushed through non-jury courts sitting with a single judge. Many defence lawyers collaborate with the prosecution, encouraging clients to plead guilty for a lesser charge as part of the plea-bargaining or charge-bargaining process. It is established practice for the Procurator Fiscal to consciously overload the charge sheet to this end.
This is exactly what Fight Racism! Fight Imperialism! supporters in
Glasgow have faced over the past two years, with pressures placed on people to plead guilty. If a defence is mounted, trials can take well over a year to come to fruition. The so-called summary route to justice established in Scotland in the 1970s, ostensibly to speed up the judicial process, is in complete disarray. Farcical scenes are played out in the courts every day in those isolated instances where the accused mounts a defence. An afternoon spent in any local court would confirm this.
Another common myth is that in pleading guilty you will received a lesser sentence. In the recent Dundee case involving Shaun Divin (16) and Jordan McGinley (18), we saw young people politically sentenced to four and three years custody respectively for something they wrote on Facebook. The absolute danger of collaborating defence lawyers advising and lodging guilty pleas is there for all to see. These are the hard lessons which must be learned by the protest movement.
As we have repeated time and again on this blog and in articles in Fight Racism! Fight Imperialism!, the law is used as just another weapon in the state’s arsenal of repression. Political charges must be fought with a political defence. We once again pledge our support for all those on the receiving end of police attack. Do not speak to the police. Admit nothing, volunteer nothing. Speak to defence solicitors who will give you the time of day. Educate yourself on the law, in a few short hours you will know more than the average beat officer.
But we are reminded constantly, in the end it is not about legal knowledge; it is about the fundamental political point – that the police are waging a political war against any form of effective protest in this country. Reliance on legal methods alone is a complete dead end. We need to put those officers directing these attacks under as much public scrutiny as possible. It is high time that the impunity of police actions in
Scotland came to a dramatic halt before Scotland has to bury its own Ian Tomlinson. This was the gravity of the chaotic scenes on Glasgow’s street on yesterday’s protest.
18 April 2012
 Smith v Donnelly 2002 JC 65
 Dyer v Brady 2006 SLT 965 at 969
 For a detailed critique of the criminal law of Scotland, see Pamela Ferguson and Claire McDiarmid’s work, Scots Criminal Law: a critical analysis published by Dundee University Press Ltd in September 2008
 Harris (M) v HMA 2010 SCCR 15 at 23 A