Andrew Tickell: Law needs to catch up to help end harassment of women

The Sheriff Court charge sheet told a ­fairly consistent story about Ahmed’s ­behaviour, which was first exposed by BBC Scotland. He approached women aged ­between 16 and 24 in Glasgow ­centre and in ­Bothwell. He was a ­stranger to these ­people. At the time, he was in his late 30s. All of the ­encounters began with a ­conversational ­approach, making ­comments on their ­appearance, asking for contact details – but some incidents also included unwelcome physical contact. He tapped one ­woman on the shoulder, ­touching her cheek, ­attempting to kiss her.

Another charge told the story of how he approached a 17-year-old ­schoolgirl in ­uniform in a “secluded lane” in ­Uddingston, “repeatedly uttering unsolicited personal comments towards her, take hold of her hand, and request her telephone ­number.” Two further complainers ­testified he had stood in front of them, blocking their paths, while attempting to engage them in conversation, commenting on their ­appearance, and asking for phone numbers. One of these was a 16-year-old, also in uniform, who reported what had happened to a teacher when she arrived at school. In some cases, Ahmed subsequently identified these women on their socials, and began making contact with them.

In court, the five complainers spoke about the impact this behaviour had on them. One changed their route home. ­Others talked about feeling “overwhelmed, or ­uncomfortable, shaken up, ­intimidated or stressed” by Ahmed’s behaviour. ­Having asked my students to read this judgment, ­every one of them could understand why they felt this way. The ­overwhelming ­majority of law students these days are young ­women. Many related their own ­experiences of street harassment in ­Scotland’s cities and towns, and how it made them feel. Others actually ­remembered being approached by Ahmed themselves as they commuted in to my lectures. I suppose I shouldn’t have been surprised.

But Ahmed’s conviction on these five charges was quashed by the Appeal Court in September 2020. At the time, the ­judgment raised eyebrows in legal ­circles – for two reasons.

First, prosecutors had to concede that the sheriff had effectively cross-examined Ahmed during his evidence, presenting the jury with an “adverse view” of his credibility. To say this wasn’t the judge’s job is an understatement. Sheriff Lindsay Wood’s conduct undermined the fairness of the criminal trial. The convictions, as a result, constituted a miscarriage of ­justice. This was surely the right ­conclusion on the law.

But Lord Turnbull and his two ­colleagues went further than that. ­Reviewing Ahmed’s behaviour, the three appeal judges held that “it does not seem to us that a polite conversational ­request or compliment can be construed as ­threatening merely because it is uninvited or unwelcome,” and held that “there was nothing” in the behaviour described by the five complainers “which was overtly threatening or which could reasonably be construed as threatening”.

The Appeal Court didn’t explain what it found so unreasonable about the evidence these five young women and girls gave about how they experienced the encounters. The judges also emphasised that this conduct took place “in daylight hours, in public places” – as if that weighed against the idea the behaviour was problematic. But the upshot of this judgment is that the behaviour narrated above currently isn’t a crime in Scots law.

This conclusion tends to surprise my law students. Perhaps it shocks you too. But it illustrates a real gap in Scots law, which should inform ­reactions to ­Baroness ­Helena Kennedy’s ­recommendations, published last week. Her report ­included a recommendation to introduce a new ­summary offence of ­misogynistic ­harassment, amongst other proposals including a misogyny ­aggravator, and specific recognition in law for threats of sexual violence.

Kennedy has also proposed a misogyny aggravator should be introduced. During the process of the Hate Crime Bill through Holyrood, a controversy arose about whether sex should be ­included in the list of protected ­characteristics. Lord Bracadale thought it should be included in his review of the legislation. So why not include sex here? Some campaigners felt it problematic to say one serious sexual assault would be “aggravated by misogyny” and another was not – based on what the perpetrator may or may not have said during the course of the attack.

There were other more fundamental objections. As Kennedy explained last week, “for decades, women’s organisations have been persuading lawmakers to recognise the misogynistic nature of rape, as not merely a crime of lust but of power abuse”. To talk of one rape being aggravated by misogyny, and another not, struck some as effectively “introducing a hierarchy of rape”.

Beyond this, “the daily grind of sexual harassment” Helena Kennedy described doesn’t fit particularly well into the hate crime framework, which goes looking for “malice and ill-will”. or behaviour which is overtly “threatening or abusive”. As we saw in the Ahmed case, following someone up the street, peppering them with compliments and attempting to make physical contact despite every indication your attentions are unwelcome doesn’t fit well into the current criminal law at all, if judges are going to persist in regarding conduct like this as a “polite conversational request” rather than harassment. Simply adding sex to the hate crime framework wouldn’t get a grip on this ­behaviour.

Hence the proposal to have a ­misogyny aggravator for non-sexual crime, and a new criminal framework for public ­harassment. When it comes to criminal law reform, there is a terrible tendency in Scottish politics to suggest common law breach of the peace is the solution to all of our problems – or to assume there is always adequate legislation to address problematic behaviour.

I can understand the scepticism, at least to a degree. Politicians, whether in London or Edinburgh, never tire of passing eye-catching criminal legislation. Sometimes this duplicates the law for no obvious reason to service a client-group or campaign and catch a headline or two, suggesting “tougher measures” or “greater protections” are being created, when a clear-eyed legal analysis suggests nothing much has really changed.

I don’t think this charge can reasonably be levelled here. Contrary to what you might have read elsewhere, this isn’t proposing any kind of misogynistic thought-crime – it is just recognising the harassment we know people experience day and daily in Scotland’s cities and towns. Too few men and boys in our society appreciate how routine, how normalised, this kind of harassment is for women and girls in our country.

When you’re told the streets you walk down without a peep of commentary are an obstacle course of social navigation for the women in your life – believe them. Resist the temptations to launch into tit-for-tat whataboutery.

The statutory offence of “threatening or abusive behaviour” is probably the most commonly prosecuted crime in Scotland. If the Appeal Court don’t think it prohibits the routine public harassment of women and girls, then there is a ­powerful argument the criminal law needs updated to do so. As Kennedy and her working group argue, it matters what the law prohibits, but it also matters what the law calls things.

Politicians may disproportionately fixate on the idea that the true purpose of the criminal law is to “send a message.” But if we do nothing, the court’s decision in Ahmed sends every woman and girl in our society the message – harassment is your problem, and just we expect you to put up with it.