WE’VE always had black Schnauzers. Niamh was our first dog. She was a giant. We chose her partly because we then lived in rural mid-Argyll and partly because I was a hyper-allergic kid who needed a hypo-allergenic hound to stop me from turning into a burst bagpipe of sneezes and snotters.
During the early part of my childhood, the enthusiastic appearance of a Spaniel or Labrador in my life presaged only pink eyes and hours gulping and gasping away in my bedroom. One of the biggest pawprints Niamh left on my life was helping me control the psychosomatic aspects of my physical reactions. She grew from an inky scamp with larcenous tendencies into a big furry monster with brown soulful eyes and the inclination to treat you as an armchair given the opportunity.
When she bounded off into the big forest in the sky after 13 years with us, Seumas came snuffling up on her tail – a pocket-sized replacement, miniature, but with that indomitable quality Schnauzer owners know to brace themselves for. The wee boy is currently on his holidays in south France, living his best life and eating his own body weight in duck.
This somewhat defensive introduction is intended to establish my credentials as someone very much on the side of our four-legged friends and their owners. I know what pets mean to us. I understand why folk baulk at the suggestion that we should weigh their lives in terms of their market value, treating them as characterless property like a lifted luxury telly or a stolen car.
Because animal companions are family, company, and history to us. They are work and recreation, joy and frustration – and eventually, they’re grief. For many kids, the loss of a pet was our first real reckoning with mortality, before we encountered it again on a more human scale, having learned first from this animal experience.
Given this deep well of sentiment, it’s perhaps the least surprising development in political history that over 90% of people who responded to Maurice Golden MSP’s consultation on “strengthening” the criminal law on pet theft supported the creation of new legislation with stiffer penalties for pauchlers of pooches. Who could be against that?
The Tory MSP is already well on his way to navigating his Dog Abduction (Scotland) Bill through Holyrood. He has already won impressive third-sector support for the proposals. Backers include the Scottish SPCA, the Dogs Trust, and Canine Concern Scotland. And just think of it politically. Whose side are you on: stolen puppies and their owners – or the crooks who’ve stolen them? For any politician with an ounce of populism in them, it’s a no-brainer.
But it really shouldn’t be. We’re told the introduction of this bill will be “a huge relief to dog owners everywhere”. Which it might be – if dog owners were under the impression it is currently legal to steal people’s pets. But it isn’t is it?
Snaffling someone’s Lhasa Apso or shanghaiing their Shih Tzu is already covered by the common law crime of theft. Like other common law crimes, theft currently has no maximum sentence. In principle at least, you could already get anything up to life imprisonment for dog theft in the High Court – and five years after a sheriff and jury trial.
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So what Golden is proposing, in fact, is to create (a) a new offence (b) with lower maximum penalties than are already available, which (c) recriminalises conduct which is already a crime. Why anyone should be “relieved” by this entirely escapes me.
This isn’t a new impulse – nor is a pathology peculiar to Scottish politics, but the devolution settlement certainly aggravates the tendency. In 2021, Holyrood made it a criminal offence to assault or threaten retail workers. Every MSP of every political stripe voted in favour of the proposals. Every MSP agreed these were bad things the criminal law should do something about. But in terms of the detail, the proposal was – if anything – more crackpot than Golden’s.
You’ll be unstunned to discover that beating people up was also already a crime before the retail worker legislation was passed. Like theft – assault has no maximum sentence as a common law crime. Threatening or abusive behaviour already attracts a maximum five-year tariff.
So how did Daniel Johnson’s new legislation “toughen up” sentencing for threatening or assaulting retail workers? The simple answer is it didn’t. It objectively did the opposite. Under the new rules, assaulting a supermarket worker could land you in the clink for up to 12 months. But the Scottish media, once again, regurgitated the political press releases claiming the changes would “strengthen” the law – and everyone nodded uncritically along.
The only way to understand legislation like this is as public relations. To use the political cliché, it’s all about “sending a message” – even if the relationship between the message and the legal detail is completely garbled.
This impulse isn’t harmless. If MSPs say “We feel your pain” to one group of people, others will understandably wonder why they’ve been left out of the equation and don’t seem to merit the official recognition others have secured.
If there’s to be a special kind of assault for police officers, why not retail workers? If retail workers, why not teachers, journalists, or law lecturers? Proposals like this inevitably result in an auction of public concern.
Take a simple example. Why should some pets be treated differently from others? If legislators think it’s worth their time handing out tokens of esteem to dog owners but decide to leave cats unprotected – then the moggy lobby is bound to organise for its share of public attention. Goldfish no doubt mean quite a lot to some people too. Why aren’t they included? Where’s their special law?
On and on this logic unspools till we’ve all got our own little bit of recognition – the criminal law is a complete mess, and all we have achieved is an endless replication in special offences of the basic legal principle we started with – that nobody should be assault, threatened, or stolen from.
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But the modern impulse by politicians of all parties to pass empty performative legislation is arguably worse than that. By creating the – wholly illusory – impression that something is being done, the inexpensive trick of inventing new crimes distracts us from the real things we could do if we think pet-napping isn’t being treated seriously by the justice system.
For starters, we could consider doing something expensive – like investing much-needed resources into the criminal courts and ensuring they have the capacity to undertake all the new responsibilities populist politicians love giving them. What, no takers? Paying the legal aid bills seems even less popular.
Reading Golden’s case for this legislation, even he doesn’t seem to think the absence of law is really a problem. His complaints are almost entirely about enforcement and the attitude of different law enforcement agents to complaints that pets have been stolen. And he may well be on to something here.
Don’t believe the police treating reports seriously? Take it up with the Chief Constable. She’s responsible for operational policing in Scotland.
Worried that prosecutors are treating these as minor offences? Talk to the Lord Advocate. She’s a member of the Scottish Government. She even answers questions in Holyrood from time to time, including on prosecution policy. Ask her about this.
Think the courts aren’t sanctioning these thefts properly? Go raise it with the Scottish Sentencing Council. It’s their job to come up with directions for sheriffs on how to dispose of the cases that appear in front of them – and their agenda is susceptible to public influence in terms of its priorities.
I’m sick and tired of our parliamentarians prioritising empty, sentimental legislation like this over meaningful reforms. It isn’t innovation – it’s political escapism.
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Callum Baird, Editor of The National
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