The Actus Reus

Introduction and preface to the article:

This topic, difficult at times in terms of identifying causation, requires looking at various issues related to the legal tenet.

For example, closely related issues such as the requirement to have a voluntary act, what categories include a non-voluntary action – such as reflex actions, automatism and somnambulism – and, pertinently, liability for omissions such as the duty to act and causation itself?

This topic bridges law with many aspects of medical science. A considerable amount of time has been spent in researching the subject and, as readers will note, a significant number of case-law histories have been identified for inclusion as proof within the journal.

Where references have been made to external sources the author will identify these within a bibliography at the end of the work.


© Copyright MarkDowe 2007: all rights protected

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PART 1:

The voluntary act requirement -

Ladies and gentlemen, in my last delivery on Scots Criminal Law (The nature and administration of Scots criminal law), I ended that article stating that it is a fundamental requirement for liability under Scots criminal law that there is some form of voluntary act.

It is often stated, there can be no conviction for a "thought crime" alone without a related criminal act. 'Thought crimes' are instances where a person has had a criminal thought but has done nothing to put it into effect. That act may amount to very little, for example an attempt to commit a crime which fails to come to fruition. Nonetheless, there has to be some form of act which moves beyond preparation and does show the accused's criminal intent sufficiently to provide a basis for conviction. There appears to be two main reasons for refusing to punish 'pure thought crimes':

1. It is impossible for the prosecuting authorities to know what someone was thinking at a particular time, unless those thoughts were put into action and,

2. Even if those thoughts were evil, it is likewise impossible to predict whether they will necessarily lead to criminal actions.

- It is often felt that the legal system cannot justify interfering with a person's freedom simply because his thoughts are such that he might behave criminally in the future.

What is required is an act which shows that the accused is capable of actually harming society and which is prohibited under criminal law. Thus, the combination of criminal act and criminal state of mind gives the legal system its justification for intervention.

There are two classifications of crimes, depending on the type and duration of the conduct involved. A crime which is encompassed within a single event is know as a conduct crime. For example, the law prohibits the possession of illegal substances under the Misuse of Drugs Act 1971. The mere fact of possession, which is an aspect of the accused's conduct, is sufficient enough for conviction. Specifically, there is no need for a result to flow from that possession and thus deemed a conduct crime. However, some crimes require a specific result to flow from conduct in order to make that conduct the subject of the particular crime. In such cases, these are known as result crimes. The classic example is murder. If the accused commits murder, he is guilty. However, it is the unlawful result (the killing of the victim) that secures conviction. It does not matter what form of conduct the accused has engaged in order to achieve that result. He may, for instance, have stabbed, beaten or poisoned the victim, but the conviction will still be the same, because the crime of murder simply looks for a resultant unlawful killing by the accused.

Although it is not possible to convict for a guilty mind without a criminal act, it is possible to convict an individual on the basis of a criminal act without any intention. These are known legally as 'strict liability offences'. It is not my intention at this moment in looking too closely at strict liability offences, suffice to say that such offences will be examined later under a separate journal posting of statutory offences.

On finding that the accused has committed an act of some kind, it must amount to a voluntary act. This should not be confused with an act which the accused wanted to perform. A voluntary act is one over which the accused has exercised control, or one of which he is aware. There are established categories of voluntary and non-voluntary actions, which will be looked at in the next chapter.

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PART 2:

Nature and Administration of Scots Criminal Law:

Part 1:

All areas of law can be classified under broad descriptive headings. These headings include 'European', 'International', 'Jurisprudential', but the greatest divide is between public and private law.

Private law is the classification under which come all areas of law which regulate an individual's rights and claims against others. Thus, it includes property law, family and contract law, to mention but a few.

Public law is that which describes all those areas of law which involve the state or some organ of the state. It includes constitutional law, administrative law and, the subject under consideration here, criminal law. Criminal law is treated as an aspect of public law because it involves the state in its capacity as prosecutor. Except in very rare cases where a private prosecution may be brought, the accused and his defence team face the procurator fiscal, the Lord Advocate (or one of his deputies), all of whom are representatives of the Crown. Prosecutions are thus run by the state, albeit for the benefit of society. It is this state involvement which characterises criminal law as public law.

The scope of criminal law can be more difficult to justify, particularly at the boundaries of liability. It covers all criminal behaviour by any person over the age of 8, although the blog author understands that the Scottish Law Commission has published proposals for reform. Nevertheless, difficult theoretical issues can arise in merely defining criminal behaviour but, at its most basic, criminal behaviour is simply that which legislation or case law prohibits, and to describe something as 'criminal' adheres to some notion of proscribing immoral or unacceptable behaviour.

The problem is this: who is to say what is immoral or unacceptable? One man's immorality may be another's pastime. However, those in charge of creating the criminal law have decided, and continue to decide, what is and is not criminal behaviour. The proper question is whether the accused has overstepped that line. If he has, he deserves punishment.

The question of the nature and purpose of punishment is also a difficult area, one in which there is a vast body of literature. The classic divide in theories of punishment falls between retribution and rehabilitation. The retributive theory postulates that punishment is based on the state's duty to subject the criminal to such unpleasant consequences as the gravity of their offence deserves. The oldest version of retribution, in practice, can be seen in the Biblical notion of 'an eye for an eye'. Judaism, for instance, bases much of its punitive retribution on this authority. Other theories concentrate on the need for punishment to provide the offender with the opportunity to reform and rehabilitate or re-educate himself, or stress that its primary purpose is to deter the criminal from committing a similar, or indeed any other crime, in the future and thereby prevent recidivism (repeat offending).

Scots criminal law is unusual among its fellow systems in that it is based almost entirely on the common law. There are relatively few statutes, and most of them tend to relate to criminal procedure - that is, they relate to the handling of the criminal process from detention and questioning to trial and sentence, rather than specify what actually amounts to a crime under Scots criminal law. However, the courts deal with statutory provisions on a regular basis, given that both road traffic offences and drug related offences are governed by statute, and are among the most frequently prosecuted offences. Ladies and gentlemen, there is no such thing as a criminal code in Scotland, as is favoured by many European systems, which sets out the types of conduct which will be prosecutable in one document. For example, the French Code Penal and American Code Penal are both legislative documents that highlight precisely what types of conduct are deemed unacceptable and what actions of punishment will be enforced if such criminal acts are committed.

Because no criminal code as such formally exists in Scotland, cases are resolved on the basis of the doctrine of precedent, whereby previous established decisions from higher courts, usually the High Court of Justiciary as an appeal court, are used as authority and followed by lower courts in coming to a decision in the case in hand. The most noticeable result when examining Scots criminal law as a body of law is that the definitions of crimes tend to be broader and more generalised because they have developed from a series of authoritative decisions throughout the years. Criminal law in Scotland does not suffer from the stringencies of statutory definitions, which tend, as a rule, to be far tighter and exclusive in nature. The writer accepts that common law definitions are more flexible and it is easier to adapt them to changing social circumstances and thereby retain the 'relevance' of particular crimes over a longer period. However, this breadth and broadness of definition has become problematic following the incorporation of the European Convention on Human Rights into Scots law. Article 6, for example, of the Convention, requires that the accused be informed, in a language which he understands and in detail, of the nature of the charge against him. Arguably, some of the more broadly defined crimes actually fall foul of this provision.

There are several historical texts which are viewed as authoritative statements of Scots criminal law and which are used by the courts in Scotland on a regular basis. In the next part of my work on this topic I will examine more closely what these historical texts are.

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Part 2:

There are several historical texts which are viewed as authoritative statements of Scots criminal law and are used by modern day courts on a regular basis. The most important of these is Hume's 'Commentaries on the Law of Scotland Respecting Crimes'. This, despite dating from 1797, is still referred to in judgements and remains the main source for an initial definition of many crimes.

The account given in Hume's latest edition - based on Hume and updated after his death - is founded on principles which could be drawn from the decisions of the High Court prior to that date which Hume used as his sources.

Use of law reports:

There are numerous series of law reports which reproduce the text of criminal cases. In modern times, it is fairly safe to say that no one series is more or less authoritative than another, although some are certainly much more brief, providing only a short summary, while others are reproduced with the text and, for notable cases, a short commentary.

The two main series of reports are the 'Scots Law Times' and the 'Session cases'. Each are bound by year and cover civil as well as criminal cases. Each volume of the Session Cases is divided into three sections dedicated respectively to House of Lords cases, Justiciary cases and Session cases. All criminal cases reported in the Session Cases are found in the Justiciary cases section.

The doctrine of precedent:

The doctrine of precedent basically requires lower courts to follow decisions of higher courts in cases that deal with the same area of law. These cases are said to be 'in point'.

However, the 'doctrine of precedent' is weaker in criminal law than it is in civil law because, within the arena of criminal law, there is no possibility of appeal to the House of Lords as it only deals with Scottish appeals on civil matters. Instead, the 'doctrine of precedent' means that the Scottish criminal courts will follow decisions of the High Court of Justiciary, which sits as the most senior court within the jurisdiction. The High Court sitting as an appellate court binds the High Court sitting as a trial court: the appeal court will follow its own prior decisions, although it is quite possible for a larger bench to be convened in order to overrule an earlier appellate decision.

A judge sitting in the High Court on his own is not bound by earlier decisions made by another sole judge. A Sheriff will be bound by the High Court on appeal, and will usually also follow prior decisions by a sole judge in the High Court, or by a Sheriff, although he is not bound to do so. Decisions retain their authoritative status until overruled or, exceptionally, until they became so old that they fall into disuse. Although older decisions of the High Court are clearly still authoritative and are referred to on a daily basis in court, the emphasis on the text will, where possible, be on more modern day precedents.

Even if a prior decision is not actually binding on the court in question, it can be treated as persuasive and therefore may carry some weight. It is known as 'persuasive', rather than binding, precedent. Binding precedent can become even more authoritative if it has remained unchallenged, been cited with approval, and been followed by other courts for many years. Conversely, the weight of any binding precedent can be diminished if the decision was by majority and the dissenting options were strong, or from a particularly respected judge.

Once a case has been identified as binding, it then becomes necessary to isolate the part of the decision which is binding. Only the ratio decidendi is binding; that is, the underlying basis for the decision, which will be expressed as a general principle, without any of the specific details particular to the case from which it is derived. In practice, the ratio is not always actually expressed by the judge in his opinion, and often has to be deduced instead.

Any statement which is obiter dicta is not binding, although judges may take note of what has been said in, for example, English rulings. This applies to all statements made 'by the way' and which are not necessary for, or strictly related to, the decision in hand.

The declaratory power of the High Court of Justiciary:

The declaratory power is one of the most unusual features of the High Court of Justiciary. It was described by Hume as: "an inherent power ... to punish ... every act which is obviously of a criminal nature".

The power allows the High Court to declare as criminal, conduct which which was not, at the time the act was committed, subject to criminal sanction. In effect, the power allows the High Court to declare the accused's conduct to be criminal retrospectively.

In determining what types of conduct would justify such retrospective criminalisation, older authorities suggest that the conduct should be so clearly and grossly immoral that it would be obvious to everyone and, crucially, would or should have been obvious to the accused that it was criminal in nature. Indisputably, it is necessary for the common law to be able to adapt and move forward and, in order to do so, it is accepted that new types of criminal activity will be brought before the court and will, ultimately, lead to the gradual development of the definitions of existing crimes. The accused would be convicted of an existing crime because, for example, his act amounted to a new means of committing theft, fraud, or any other common law crime. However, the nature of the declatory power is somewhat different; instead of allowing the new form of conduct to be assimilated into an existing crime, the High Court simply declares this conduct to be criminal in and of itself.

The existence of the declaratory power has been recognised in a number of cases, most notably the case of Bernard Greenhuff which expressly states the existence of this power. More recent cases have acknowledged its existence, although they have not actually used it. Such cases include Khaliq v. HM Advocate [1984: SLT 137] and Grant v. Allan [1988: SLT 11]. In Grant, the accused had been charged with unlawfully taking, detaining and offering to make available to another, confidential information belonging to his employer. It was argued that this was not a crime known to Scots law. The High Court on appeal were very cautious about using the declaratory power. Although they acknowledged Hume's statement that the power allowed the court to punish every obvious criminal act, and that it would sometimes be appropriate to use such a power, it was also noted that any such exercise should be carried out with great care. Simply stating that conduct is immoral or reprehensible is not sufficient to make it criminal, but the court felt it was proper for Parliament, and not themselves, in declaring new law. If Parliament is not so minded, the courts are generally reluctant to step in.

The declaratory power is also subject to strong criticism to the extent that it offends against fundamental principles. It is axiomatic that there can be no crime without the existence of a law which makes that conduct criminal at the time of its commission. It is irrelevant, under this principle, that it became criminal within a very short time of its commission. If legislation had come into effect on the Tuesday, and the accused had carried out the act in question on the Wednesday, but in ignorance of the new law, he will be prosecuted for his acts because they were criminal at the time of their commission. It does not matter that he did not know they were criminal, as ignorance of the law is not a defence.

The declaratory power also faces criticism from a different source, in that it offends against Article 7 of the European Convention on Human Rights which enshrines the principle of non-retroactivity and prohibits *any* law from attaching liability to conduct which pre-dates the implementation of that law.

The nature and impact of the European Convention on Human Rights:

The Convention was incorporated into Scots law by virtue of section 57 (2) of the Scotland Act 1998, which forbids the Scottish Executive from acting in ways which are incompatible with the Convention and the rights that such European rights enshrines. Likewise, the same prohibition has been imposed on public authorities (section 6 (1)), which are defined so as including the courts. Thus, even if legislation was passed by the Scottish Parliament which was Convention non-compliant, the courts could not lawfully enforce it. This has brought into Scots law a number of rights which are now explicitly identified. Of particular note to the criminal law, these give the accused the right to a fair and timely trial and of the right to be informed of the charge laid against him in detail. This, in itself, has already caused problems in relation to the ‘charge of breach of the peace’.

The Human Rights Act 1998 (section 3) further requires that all domestic legislation should be interpreted and given effect to in a way which is compatible with the Convention rights. If legislation is not compatible with these rights, the court may make a declaration to that effect under section 4 of the 1998 Act. Section 6 requires that all public authorities act in ways which are likewise compatible, unless they are prevented from doing so by primary legislation – but, as explained above, would then itself then fall foul of section 3.

The Convention sets out broad rights with little explanatory detail. Several articles impinge to a greater or lesser extent on the criminal law. Article 1 enshrines the right to life, but gives no guidance on issues such as when life begins and ends. Thus, there is for example no specific guidance on the contentious issues of abortion and euthanasia. Article 4 provides a right to liberty and security, unless those rights are compromised by a lawful detention or arrest. Article 6 is perhaps the most frequently used and comprehensive Convention right. It gives the accused the right to a fair and public hearing within a reasonable timescale before an impartial tribunal. It also encompasses the presumption of innocence and allows the accused to insist that he is informed promptly, in detail and in a language to which he understands and, of the nature and cause of the charge against him. He is assured of adequate time and facilities to prepare his defence, and is given the right to choose in defending himself, hire a representative of his choice, and in applying for legal aid to cover his costs if he meets the financial criteria. Article 7 enshrines the principle of non-retroactivity, such that the accused can only be charged with an offence if his acts were criminal at the time they were committed. If an offence has been created after the date of the accused’s acts, they cannot be penalised, as they did not constitute an offence at the relevant time. Articles 10 and 11 assure freedom of expression and assembly, and the 6th. Protocol, Article 1 outlaws the use of the death penalty unless reintroduced by the State in exceptional circumstances during wartime.

As part of the move to Scottish devolution, the role of the Lord Advocate as head of the prosecution system has been subject to scrutiny. The problem was caused by the inclusion of the Lord Advocate within the Scottish Executive, which requires that the Lord Advocate take account of Convention rights. For instance, as head of the prosecution service in Scotland, the Lord Advocate has a core role in the appointment and reappointment of temporary sheriffs. Temporary sheriffs are vital to the administration of the criminal justice system, as they help to deal with the increasing volumes of work which come before the Sheriff Court. However, in the context of antagonism, the argument was pledged that, as they were appointed by the Lord Advocate - and therefore by a member of the Executive - their appointments were to closely connected to the Executive as a whole in being viewed as independent and impartial. It was alleged that this lack of independence (in the form of a judge) was an infringement of Convention rights to a fair trial before an impartial tribunal.

Ladies and gentlemen, difficulties have also been faced in relation to criminal procedure, and particularly the accused's right to a timely trial as enshrined in Article 6. For example, the blog author notes the case of O'Brien v. HM Advocate: In this case 23 months had elapsed between the original charge and the trial. This was due to pressure of work on the forensic laboratory and the police. It was held - "If this type of delay was a regular occurrence as the inevitable result of the limited resources available, it would amount to systematic under-funding by the state and therefore a failure to connect this inadequacy would be unreasonable in terms of Article 6". But, in this particular case, the appellant had 'failed to show' that his case had suffered due to anything more than a temporary problem and his appeal was dismissed.

In another case, noted by the author, Dyer v. Watson [2002: SLT 229 (Privy Council], the High Court held that a delay of 27 months was to long in a case involving sensitive matters. The Crown had argued that, since the case was one requiring sensitivity and was to be dealt with by particular and specifically trained skilled people, it was inevitable that it would take longer. It was held that Article 6 (1) did not lay down any precise time limits, but instead looked to provide an objective level of protection to all parties against procedural abuses. The test for establishing that a delay had been unreasonble is a stringent one, and it must be shown that the length of delay gives real cause for concern on its face, before it is necessary to look into the details and require an explanation from the prosecution for the delay.

The courts:

There are a number of criminal courts in Scotland, and the decision to which court is appropriate for a particular case depends on several factors. For example, a child under the age of 16 who is thought to have committed an offence will usually be dealt with by the Children's Hearings system instead of the criminal courts.

There are geographical considerations; all the courts in Scotland, with the exception of the High Court of Justiciary, hear those cases involving crimes committed in their area. The High Court of Justiciary is a peripatetic court - in that, it can hear cases in its buildings in either Edinburgh or Glasgow or, for convenience, it can also move around the country sitting in local Sheriff Court buildings in the area covering the crime scene.

The severity of the crime committed may also determine the type of court used, as each court has different (maximum) levels of sentencing powers. There is little point prosecuting a serious assault before a court which can only sentence the accused to a maximum three months imprisonment. This decison, ladies and gentlemen, is for the prosecutor in the individual case.

Readers might like to note that a seperate journal is being considered for the different types of courts in Scotland which, I would argue, although linked to the nature of this topic in hand, is a subject within its own right.

Before embarking on works relating to the various courts in Scotland, in my next delivery I intend to concentrate on the difficult area of Scots Criminal Law known as 'The Actus Reus'. This will be presented via a seperate journal and to which will be available through RSS updates. In essence however, and as a guiding legal tenet, it has always been a fundamanetal requirement for liability under Scots criminal law that there is some form of voluntary act. This is directly related to the Actus Reus maxim.

THIS IS SCOTLAND AND MATTERS JOURNALLED HERE ARE IN REGARDS TO SCOTS LAW.

IF YOU ARE IN DOUBT AS TO THE CONTENT OR ANY MATTER REQUIRING LEGAL CLARIFICATION CONCERNING YOUR RIGHTS, IF YOU ARE SO CONCERNED, YOU SHOULD CONTACT A SOLICITOR IN SCOTLAND REGARDING THOSE RIGHTS IN MATTERS THAT MAY CONCERN YOU WITHIN THE ABOVE COMMENTARY.

© Copyright MarkDowe 2007: all rights protected.

Scots Law: The Modern Period

The two most outstanding features in the development of Scots law since 1800 have been:

• the influence of English law; and
• the increase in statutory law.

The entry of the United Kingdom to the European Communities has, since 1973, opened up the way for a further important feature and, in particular, how it has affected the development of the law in Scotland.

English law has been the principle foreign influence on Scots law since 1800. That influence has been exerted mainly through two channels, legislation and decisions reached by the House of Lords.

Parliament may, and some times does, pass Acts which apply only to England. Devolved matters attributed to Scotland under the Scotland Act does give Scottish Ministers powers in creating laws but the area of contention remains matters reserved by Westminster. This article is concerned how Scots law has been influenced by factors since 1800.

Ladies and gentlemen, with the ever increasing number of Acts of Parliament which have accumulated during the modern period, the result has been to make Scots law much more similar to English law than it was at the beginning of the nineteenth century. This was particularly true of those branches of the law, such as commercial and industrial law, which the London parliament had been most active in controlling and reforming throughout the nineteenth and twentieth centuries.

After the Union of the Parliaments in 1707 the House of Lords had become the final court of appeal for Scottish civil cases. This fact alone led to the importation of much English law into Scotland, especially as the doctrine of judicial precedent came to be more strictly applied as part of Scots law.

Considerable dissatisfaction has been expressed by many Scots lawyers with the power which the House of Lords, composed mainly, and sometimes entirely, of judges trained in the Anglo-American school of legal thought, and how that was exerted over the development of the law in Scotland. Readers might like to note that English law is primarily driven by the Anglo-American model. This model is alien to Scotland whose roots of existence extended from Roman and Canonical laws.

Judgements of the Court of Session in Scotland had often been reversed by the House of Lords. There have been, in many cases, displays and confessions of ignorance of Scots law on the part of the English judges. The principles and terms of English law have sometimes wrongly been assumed to be the exact equivalents of those of Scots law.

In the modern period there has been a great increase in the volume of statutory law, which includes, as well as Acts of Parliament, all those detailed rules and regulations made by government departments, local authorities, and other bodies in accordance with powers conferred on them by Parliament. The "common law", that part of the law which is not statutory and which consists of principles and rules developed over the years by decisions of the courts, is now a much smaller part of the whole of Scots law than it was in 1800. Legislative Acts passed by the Westminster Government over the centuries has diluted very much the substance and origins of the law in Scotland. The establishment of Scotland's parliament prior to the millennium, firstly by Donald Dewar, and succeeded by others - has to some extent curbed that dilution from rotting Scots law into almost oblivion. For decades, history clearly shows that the Westminster parliament had attempted in making Scotland a mere region or extension of England.

The Blog Author's support for Scotland's First Minister - Mr Alex Salmond - is well documented throughout this site but, I strongly believe, that the SNP will be able to deliver the long-term objectives it has set-out to do, by making possible the legislative framework for an independent Scotland. In my view it cannot come soon enough. I strongly recommend readers to obtain the Scottish Government's draft proposals for a Referendum, as well as thinking over the details put by our First Minister in the consultative document entailed, 'A National Conversation'. The document is a starting point and inspiration for that conversation, which will be had over the coming weeks and months. It explores areas in which Scotland could take on further responsibilities - such as employment, national finances, or legislation on public safety. The concept of independence is central to the paper.

Parliament is as much about law-making as it is in looking after its citizens. The need for a stronger and more effectual legislative body is, in the view of Nationalists, a pressing argument. Scotland is a country and deserves to be brought back via restitution, particularly as far as the law in concerned is Scotland. The parliament in Edinburgh, in its current form, is not adequate enough. It needs the additional powers, those many areas 'reserved' by Westminster, in securing a better and more prosperous future for Scotland. The SNP are right in seeking that mandate.

Scotland is culturally different and could favourably export with our European neighbours, as an independent nation. At present, British foreign policy dictates what Scotland can and cannot do. This is not in Scotland's best interests. I challenge anyone to suggest otherwise.

Reform of the law is made necessary because of how society changes. Ignorance can tend to be blind to this as people adapt without thinking to a rapidly changing society. But, this doesn't necessarily mean it is favourable or even acceptable to a country that has become use to changes by stealth. A country that is different means it should be afforded autonomy without the fear of interference from elsewhere.

I do not apologise for being a Nationalist, I seek the best outcome for Scotland. I abhor all political measures purported in the name of free markets and strongly refute the repulsive assertions made by Conservatism whether that be the abolition of death taxes or the operation of a free market economy as advocated by Cronies of Thatcherism. Equally, I detest educational policies that do not push hard enough on English language and Mathematics, whether that be in England or elsewhere.

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© Copyright MarkDowe 2007: all rights protected

Ideology & Politics:

PART 1:

As a nationalist, I believe that the core of nationalism as an ideology is reducible to four propositions. Nationalists tend to believe in a given set of principles, namely:

. That the world is 'naturally' divided into nations;

. Each nation has its own unique character resulting from its history and culture including, especially, its language;

. Each nation should be independent or, at least, should possess a large measure of autonomy; only in running its own affairs can it achieve self-realisation, and

. The first loyalty, the primary allegiance of the individual, is to the nation-state.

The Scottish Nationalist Party (SNP) is the political party that governs Scotland. Before Mr. Salmond was elected as First Minister, recently, even so-called respectable people tried calling the bluff of those opposed to a tired union. There attempts back-fired, as now they swallow-hard at the laughable contempt they had for those opposed to the present political settlement. Why do we not hear much from those people now? What do I feel when I see someones back: that someone who was adamant that the continuity of the union was as good as when it was forced upon the will of Scotland by those who had governmental influence and wealth prior to 1707?

The course of Scotland will change further. I have no-doubt about that, and the sooner the better. However, this is a topic that is focused around the concept of 'ideology', nationalism is only just one small part of a larger jigsaw in the overall context of things.

An ideology is basically a belief-system which serves as a guide to action. The importance of ideologies in politics is that they shape political behaviour. They do this by providing pictures of the world which shows how it has come to be as it is; how it is likely to change; what changes are desirable and undesirable, how the former can be facilitated and the latter controlled. Ideologies appeal to people as members of particular social groups - governing, business, ethnic, racial, national, religious - as classes, and as sexes. Ideologies aim, intrinsically, to extend such groupings by, for example, building up morale. It is interesting to note that empirical evidence suggests that in extending such groups this may also include 'sympathisers' - those who are able to add - but, who are not actually 'members'.

The word 'extend' - being used here - I believe, calls for further explanation. It is obviously not possible for a socialist to increase the actual numbers of the working class, for a Scottish Nationalist to make the population of Scotland greater than it is or for a feminist to augment the number of women in society. What each ideologist can, and does, strive to do is to enlist more workers, Scots and women to their respective causes. A shift in individual perspectives on the world and to effect a more intense identification with a specific category of people are prerequisites for extending an ideological belief system further than the current parameters. To an extent, the Scottish Nationalist Party has slowly used these underlying principles to great effect. More needs to be done, however, in rolling out those aspects that are having a significant and involuntary bearing and influence on Scotland such as the continuing influence of the English legislature on Scotland. Scotland is a separate country, not a mere extension or region of England. Scotland has its own unique legal, educational and religious establishments.

The core of a political ideology, then, is its commitment to some political ideal, be it national independence or resurgence, the social ownership of the means of production or the equality of the sexes.

"Ideology is any set of ideas about human nature, society and history which can gain the commitment of significant numbers of individuals for or against political change." (Dowe, July 2007)

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PART 2:

I believe that ideologies make politics more than a struggle for power and material benefits. I suggest to you that ideologies are called upon in providing legitimacy both for forms of varying government and for economic systems. Inherent within any form of government or economic structure belies an ideology that will ultimately attempt to endorse the existing social and political systems and, pertinently, set goals that may yet be achieved. This might not necessarily imply that ideological beliefs leads directly to political action or discourse.

No straight line can be drawn between beliefs and action, the relationship between what we believe and what we do often being indirect, and usually subtle. Can Marx be held responsible either for the Bolshevik Revolution (1917) or for the French Revolution set-out by Rousseau?

The intention of ideology is to persuade. It was the ideologue in Marx who was speaking when he said that whereas in the past philosophers had sought to understand the world, the point was to change it. Academic disciplines - history, for example, or philosophy or physics - aims at understanding which is very much distinct from an ideologue that persuades change.

Ideology aims to convince that this or that course of action is the right one; and it is, of course, true that we expect people to act upon their convictions. Ideology need not act as a powerful influence upon political behaviour, but in practice it often does so. Do people, for instance, wish to do anything regarding a freer and more tolerant society, in today's climate of fear and anxiety? If they do, ideologies kick-start that process.

Interestingly, the forms taken by ideologies vary from country to country and from century to century. In the former USSR, for instance, the official ideology is the Marxist-Leninism model. The writings of Marx and Lenin are regarded as sacred texts and were continually used as justifications in either setting or changing policies. Throughout Africa and Asia, nationalism has been the predominant ideology since 1945 - to rally peoples against the occupying power in anti-colonial liberation wars, to integrate disparate tribal elements in post-independence regimes and - often allied to some variant of Socialism - to mobilise the new country behind a drive to modernisation. In the West, liberal values are generally all pervasive and deeply rooted advocating and supporting individualism, with its associated ideas and practices - freedom of conscience, speech and association, legal and political equality, the rights of private property, toleration, and the separation of State and civil society.

Ideologies may change their function over time. The same ideology appearing as revolutionary to one generation may appear later for conservative purposes in the future. Liberalism was certainly a revolutionary ideology in the late eighteenth century: as encapsulated in such slogans like, 'the rights of man' and 'liberty, equality, fraternity', it expressed the demands of the American and French Revolutionaries. By the mid-nineteenth century, it had become the dominant ideology in Britain - the so called 'ideology of age' - but, was itself under attack from Socialists, the new enemies on the left.

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PART 3:

Ideology is also closely related to those versions of the past which mould social and political behaviour - namely, myth and tradition. The link between ideology and myth can be simply illustrated by reference again to socialism, nationalism and feminism. Each of these ideologies seeks to mobilise and spur to action the particular groups to which it appeals (respectively, the working class, the nation and women) and accordingly, allocates each a specific role; respectively, to fight the capitalist, imperialist and male oppressor.

Looking at history is an important factor because, invariably, roles are often presented in an ideal light, an idealisation which, extending into the past, can involve a highly selective version of history? Past moments of ‘heroic’ activity by a group in question can receive especial stress: for example, the mass action in the streets of Paris in 1789 which overthrew the French old regime, Petrograd in 1917 which broke the tsarist autocracy (by Socialists); past battles (not always victorious) and charismatic leaders (by nationalists), and historical campaigns like the one for political equality led by the Suffragettes (by feminists). The point here is not that the episodes referred to are not true; they often do contain a great deal of truth. The point is rather the ideological intention of such exercises: there is no attempt to be critical, to depict the protagonists on the ‘right’ side in such struggles with all their failings, ‘warts and all’; only to persuade. They appeal to the romantic in all of us, our liking for the heroic, our desire to be identified with a group in the achievement of a good cause, our sociability.

Ideology can make use of another selective version of a particular past – a political tradition. The concept of political tradition refers to those modes of political behaviour, a mixture of values and practices, which have come to be widely-accepted in a society. In Britain, for instance, the political tradition includes a respect for parliament as an institution, a belief in free speech, tolerance of what in many other countries would be regarded as a very secretive system of government, and a repugnance for violent behaviour and behaviour which is outside the law. Part of the answer lies in how political parties have used an ideology in shaping how the party befits society. The proposal for proportional representation (already activated in Scotland) has had to contend with not only the opposition of the party in government which is content with the electoral system by which it has gained power but also with the general public belief that the existing system ‘works’, a belief which the governing party itself, acting ideologically, seeks to mobilise.

The leading ideologies of the modern world include conservatism, nationalism, fascism, liberalism and socialism. For interests of this article I will be focussing attention towards nationalism. For example, what is nationalisms concept of human nature? What are its leading tenets or articles of faith? What about social class, nation, progress, history, participation, power and authority? At the beginning of this article I suggested to you that the core of nationalism as an ideology was reducible to four propositions.

Conservatives may, as of right, be deemed strongly patriotic, potentially nationalistic in their outlook. Conservative perspective on the world is demonstrated, normally, by the very high political priority they accord to the preservation of the integrity of the 'nation'
against internal separatist pressures and external threats. Distaste for behaviour which divides rather than binds together the nation, including that which exacerbates class hatred as well as ethnic disintegration; a pride in the nation's historical achievements - political, literary, scientific, military; and a permanent preoccupation with matters of national security and defence, which may well include shame for policy episodes when the country's external posture was weak, such as appeasement. It might sound familiar to you, and I hope it does because trait theory in any individual is easy to detect - and yet, many attempt to hide from it. All the aspects I mentioned are of an ideology which sees the 'nation' as the primary historical and political unit. Conservatives will attempt to unify in religion, where no base actually exists, for example. In Scotland, 'conservatism' has been stripped virtually clean and yet, it is there, underlying, hoping and anticipating a move towards a more unified Britain, as in the historical sense. Those days are gone. Move forward.

Ladies and gentlemen, as is perhaps immediately apparent, the central concept of nationalistic ideology is the idea of the 'nation'. Its basic political doctrine flows from this idea: that each 'nation' should form itself into a State. It has proved to be a doctrine of striking potency in the modern world.

For the emergence of nationalism as an ideology, the era of the French Revolution (1789-1815) was decisive. During those years a number of ideas fused in creating that modern doctrine.

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© Copyright Mark Dowe 2007: all rights protected

‘Expert systems’ architecture:

Introduction:

In recent years, the systems design process has been witness to a tremendous leap within advanced system design and, in the next few years, certain professionals will be introduced to the enormous potential that ‘artificial intelligence’ (AI) in business can offer. This will be particularly true, as projects under development come to fruition.

One of the greatest limitations of current information processing systems is that their scope has been restricted to the fast and accurate processing of numeric and text data. Broadly speaking, this processing has involved numeric and algebraic functions on numbers, or various forms of insertion, deletion and retrieval of text. This process is controlled largely, by operating system memories and by programs working on the numeric and text data. The accountant added debits and credits to arrive at balances, the scientist performed statistical tests on survey data, or the office administrator inserted or deleted files in cabinets.

The doctor having a knowledge of diseases, comes to a diagnoses of an illness by reasoning from information given by the patient's symptoms and then prescribes medication on the basis of known characteristics of available drugs together with the patient's history. The solicitor advises the client on the likely outcome of litigation based on the facts of the particular case, an expert understanding of the law and a knowledge of the way courts work and interpret this law in practice. The accountant looks at various characteristics of a company's performance and makes a judgement as to the likely state of health of that company. All of these tasks involve some of the features for which computerised systems traditionally have been noted - performing text and numeric processing quickly and efficiently - but, the distinctive feature largely absent from a totally effective system has been 'reasoning'.

Ladies and gentlemen, reasoning is the movement from details of a particular case and knowledge of the general subject area surrounding that case to the derivation of conclusions. Moreover, the primary function of 'expert systems' will be to incorporate this reasoning by applying general rules in a knowledge base to aspects of a particular case under consideration. Such systems, by definition, will be of importance to a whole array of professions including medicine, law, accountancy and science.

In commencing this article, it would perhaps be relevant in defining exactly what an expert system is. The short answer is that it is certainly a computerised system that performs the role of an expert or carries out a task that requires expertise (Dowe, July 2007). In order to understand what an expert system is, then, it is worth paying some attention to the role of an expert and the nature, generally, of expertise. Ascertaining what types of experts and expertise there are in business and what benefits will accrue to an organisation when it develops such a system, are, equally, valid follow-on questions. If we are to design and implement such 'artificially designed intelligence' systems, then we need to understand fully how an expert in human form has traditionally operated. We must try to understand his mindset - in given situations - to develop a system that accommodates his or her needs.

I have an Irish dentist. She is very capable at what she does and very thorough and methodical in her approach. She is also a highly trained professional that utilises and accesses various forms of information, at times, through her databases. Without going into the finite details of what dentists can and do record you will perhaps appreciate the degree to which AI systems could help such practitioners. The analogy could easily be applied to doctors, medical consultants and scientists from varying branches.

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Part 1:

AI systems (Artificial Intelligence) are systems that, to a large degree, eliminate ignorance. The basic premise underpinning such designs is that it removes the need for operator, human or clerical error. Artificial intelligence and how such systems are driven is based purely on a body of knowledge, at source, within a particular subject area. Legally, such systems could, by definition, be held-out to be contracting in their own right. This point is perhaps worth considering a little further.

AI should base its access facilities on a high level of security, particularly on who and who cannot gain access to AI. The premise underpinning AI is that information has been fed from authoritative sources and, as such, an outcome driven by an autonomous AI server should be deemed professionally correct and competent. If, at some stage, the system creates errors in driving out that information for advice purposes, that is later found to be wrong or even negligent then, I believe, a liability and obligation exists on an organisation as to why such outcomes were delivered in an incorrect manner.

To deliver AI, in a given situation, is not by any means an easy task but one, if correctly implemented, will have an enormous benefit on reducing costs in the long-run and on a company' or organisations efficiency and productivity. It will likely reduce wastage such as excess manning by delivering information at a touch of a button that previously, would have taken many hours, in given situations, to compile and disseminate. Business efficiency, ladies and gentlemen, is about how organisations gain a competitive edge, not by remaining stale and out-of-date. Although this may very well sound condescending, the chief purpose of any business is to deliver its objectives quickly and effectively, in reducing costs. The only real way that this can be improved, beyond current standards, is by introducing, through a high level skill base, the 'reasoning' frameworks that are, in many institutions, clearly absent. This not only applies to many small type organisations who could benefit hugely from AI, but is equally apparently absent within large UK organisations such as the NHS. How good could AI be for the NHS?

I was first introduced to AI by an Irish gentlemen whose pulse ticked business. Irish businessmen have a clear philosophy of creating effective systems that are in accordance with the objectives of their companies. This is not particularly true with how so many companies in the UK wish to progress. Why this is the case is a little baffling suffice to say that British short-termism around the world is often acknowledged as its main downfall. Cultural diversities in many Irish companies also aids the process of business development: notably within the field of logistics, IT and electronics. AI is as much about integrating diversities and professional competencies as it is to do with the overall delivery of such systems.

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Part 2:

Organisations have experts and specialists in many areas. A business organisation will probably have general expertise in such areas as tax, accounts, marketing, production and personnel as well as specific expertise in the narrow area of its activity – for example, the design, production and retail of motor cars. As well as ‘high level’ expertise there will also be ‘low level’ expertise. An example of this might be the knowledge possessed by a clerk of the way that an organisation stores its records with cross-referencing and the handling of exceptions. In general terms however, the author of this site believes that a major step towards AI, is the necessity in today’s era of creating, as far as is possible, a paperless driven system. Added bureaucracy, by definition of acquiring effective streamlining, cannot aid expert systems. Anything that slows or retards the information flow is a bottleneck, unwanted by experts acquiring information from such systems.

Expert systems will require, at some early stage, an appraisal and justification of the costs to be incurred in such systems if the benefits envisaged to the organisation are to be realised at some future date. Expert systems and related architecture does, in broad terms, offer an array of benefits to the organisation. For example, the implementation of such systems could become a cost-effective consultancy system in aiding or even replacing the existing expertise within the organisation. Being computer based, expert systems perform consistently unlike ‘human experts’ who themselves may have ‘off days’. Such infrastructures are also likely to create a standard or benchmark against which human experts can be compared. An archive of special skills that the organisation currently possesses and on which it is dependent for its continued successful functioning: experts may leave or retire from that organisation.

Ladies and gentlemen, any area of expertise should involve the analysis of a complex set of conditions, and the application of these to a specifiable area of knowledge which is amenable to computerised representation. This might not be so easy, as expert systems tend to remove the necessity in applying an element of general knowledge or common sense. Invariably, any system that is robust – even the most technically driven systems – will, at some stage, create an element of conjecture. However, the differential between expert systems and systems that many organisations currently have, is not the same. Expert systems are designed and implemented so as producing outcomes in line with AI. The basic parameters, for instance, will be so markedly different, that future predictions and outcomes will, as a result, differ from how current organisational systems function. Expert systems represent such a paradigm shift in systems philosophy that the onus on such systems implementation in the future will, unquestionably, bring human experts more closer to the systems implementation process. This, for the blog author, is an incredibly exciting time for future systems development because the opinions of many senior professionals from an array of professions will be sought. The conceptual notion of any expert system is to deliver and aid the process for those who ultimately sanction and authorise decisions.

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Part 3:

Because of the way that parameters are built into expert systems, such systems should be able to cope and handle uncertain or incomplete information. It may also be able to learn, that is, modify its knowledge base or inference engine.

Expert systems have been gradually developing and are currently being developed for a wide variety of areas of expertise in business. For example, systems which provide advice to employers on the dismissal of employees. Other notable developments worthy of mention include systems which aid auditors in providing an effective and complete audit of a company's accounts or quick and effective assessments of a company's health from various perspectives such as government agencies, the trade creditor, and the financier of loans.

Ladies and gentlemen, the creation of an expert system, particularly from an accounting perspective, can only evolve once an effective and fully tested management information system (MIS) has been installed and can, equally, be relied upon, as a 'decision support system'. Failure in any one of these parts would, without question, render any expert system unreliable. In essence, an expert system seeks to move into a different league but the prerequisites, fundamentally, are linked to company systems that have maintained a competitive edge in terms of economies of scale and how certain levels and types of information can be used for a variety of purposes.

In building an expert system we must look at those individuals who can compliment the construction phase with certain skills. This involves the creation of advanced databases because at the heart of such systems lies the inference engine built on domain specific facts within the knowledge base. Here, we are not talking about basic database operations but more complex matrix's that can act and serve in proliferating information more widely within the system. An expert system seeks to replicate the human expert in whatever area that might be. This means removing inadequacies, or anything that stifles productivity. Expert systems do not take prisoners.

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© Copyright MarkDowe, 2007: all rights protected

Freedom of Information (Scotland)

Introduction:

The aim of this article, expected to be fairly lengthy, is to provide guidance relating to the rights afforded under the Freedom of Information (Scotland) Act 2002. In addition, and in relating FOI to environmental concerns, Environmental Information (Scotland) Regulations 2004 also exist. Provisions under the Act and the 2004 Regulations allow individuals legal rights of access to see information from Scottish public authorities or institutions that allocate certain types of services to them.

In essence, all one has to do is to merely ask for the information. No explanation is required as to why you want that information or what you may want such information for. Scottish public authorities are under a legal obligation and duty in now responding to all information requests they receive. The information and/or replies must be received within 20 working days.

It is important to highlight that certain types of information can still be kept back. However, if this is the case you should be given those reasons in writing. If you are unhappy or dissatisfied with the reasons given, an individual has the right of appeal to the Independent Scottish Information Commissioner. In the event of the Commissioner finding that the public authority should provide you with that information, he can use his enforcement powers to make sure that information is received.

Freedom of Information laws are a common feature within many areas of the world including the US, Canada, Australia, New Zealand and Ireland.

Fundamentally, Freedom of Information is essential if the authorities are to be held to be openly accountable to the public they serve.

Guidance notes and information provided under Freedom of Information, and posted to this site, will be in accordance with the Law of Scotland.

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Part 1:

On the 1 January 2005, individuals acquired new legal rights that entitles an individual to see information from Scottish public authorities.

An individual may want to exercise his or her rights in a number of ways such as why decisions affecting local services were made (such as in cutting back some services at your local hospital, or by enjoining primary schools) or, as to how public authorities decide who gets priority on waiting lists for services such as health and housing. The rights under the Act are wide and far reaching. Freedom of Information (FOI) also allows an individual to find out more definitively about the nature of contracts, under which a private company is 'providing a service' for a public authority, such as services provided under PFI/PPP. This might mean establishing, for example, charges involved or the conditions being applied for that private company to provide the services they are under contract to provide. Freedom of Information holds public authorities to openly account for their decisions.

It will not always be the case in having to make special requests under the Act. Public authorities in Scotland readily make available information through their advertising and publication schemes. Such schemes are designed in making it easier for an individual to find information that has been published by a local authority without having to make a request under FOI. Anomalies can, and do arise - such as why the standards across public authorities in Scotland vary so much? Again, where you are dissatisfied with any reasons given as to why certain types of information is being withheld in certain circumstances, the point of redress is through the Independent Commissioner in Scotland. No legal person or any other body with judicial powers has the right in preventing you from receiving the information you are reasonably seeking. If you do find this to be the case I would recommend you take up matters either with the Law Society in Scotland or by writing to your local court. If you do take this route, make sure you keep together all previous communications lodged. Remember too, that the law states that public authorities are legally obliged to provide information requests within 20-days. This is a prescriptive time period under the law and must be observed. It is advisable, in the first instance, to use proper protocol of address and contact. Due processes are an active part when, for example, an individual has been denied certain types of information, legally. Freedom of Information is a legislative Act of law and thus opens-up issues of interpretation. Being laughed at, denounced or manipulated will not work either. If you find this to be the case keep a full written record of such occurrences and report it through the appropriate channels, immediately.

An individual can request to see any kind of recorded information from a Scottish public authority, however antiquated that information is. This includes information recorded on paper, computer files including e-mails, video and archived records held on microfiche. During the course of this article I will appropriately detail to which organisations and institutions are deemed 'Scottish public authorities'.

Ladies and gentlemen, the remit underpinning Freedom of Information is certainly very wide. My approach here is in detailing, quite specifically, practical examples of the types of information that individuals have a legal right to see. In addition, the writer would advise readers and viewers to this site, that individuals have the right to see and inspect information held about oneself under the Data Protection Act 1998. It will be the intention of the blog author by detailing, within an appendix to this article, certain authoritative sources on where and how individuals can access such personal information.

As with all Acts of Parliament certain exemptions will, invariably, be found within the Freedom of Information legislation. Access, for instance, to some information will undoubtedly be limited. However, as described, the process of legal redress should always be considered as a counter-measure if an individual deems such reasons given as being unreasonable or unjustifiably withheld. The Commissioner in Scotland has a wide range of powers to enforce individual rights under the Act. An individual is perfectly within his or her rights by pursuing to a satisfactory conclusion any impending referral applications.

Ladies and gentlemen, I do not like errors, convoluted or ambiguous replies or, for that matter, broken and poorly written use of the English language. Neither do I accept inexcusable ignorance and incompetence from some people who by definition are deemed professionally competent and fit for purpose.

A request under FOI for details in showing whether public authority policies are working well has become one of the most commonest requests since the Act came into force. Community policing, for instance, can be examined in how effective police forces are, throughout Scotland, in combating crime. For example, if any complaints had been made previously - what actions were taken as a result of those complaints? Similarly, information can also reveal whether a 'contract-for-service' is providing value for money. For instance, what standards were agreed upon with agencies contracted to supply hospital catering or hygiene services? Is the taxpayer receiving value for money?

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Part 2:

Environmental information:

The Freedom of Information (Scotland) Act does not directly apply to environmental information and concerns. Any request made under FOI, for environmental information, will therefore be rejected. However, the Environmental Information (Scotland) Regulations 2004 does give similar rights. It is important in applying relevant legislature when wishing to pursue an application for environmental information. As readers might suspect, the author of this site has made repeated claims for certain types of information held by certain local authorities throughout Scotland.

Typically, examples of requests under the provisions include trials that have or are being conducted on genetically modified crops, the location and reasons as to why so many mobile masts are erected throughout Scotland and the plans for either downgrading or upgrading landfill sites. This is not an exhaustive list but merely examples of information that can become available on request.

The main benefit of the Environmental Information (Scotland) Regulations 2004 is that the stipulations under the guidelines apply to a wider range of organisations than FOI permits. Administrative procedures for acquiring information for environmental purposes is a different process to that of requests made under FOI. The regulations are extremely broad in context, but the law does stipulate, similarly, that information is provided ... "as soon as possible". In many cases, this has been provided within the 20-day rule. If an individual or organisation has made a complex request involving large amounts of material, the organisation holding such information is allowed up to a period of 40-days in providing that information. If this is to be the case, the organisation should provide written details within 20-days to let you know of the longer time period needed in collating that information.

In due course, the author of this site will be making a request for information from a well known housing association, within the area of my own domicile. I expect full cooperation as in accordance with the conditions laid down under the 2004 Regulations.

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Part 3:

People living in Scotland also have a general right to information held by UK public authorities under separate UK laws. These 'public authorities' include government departments and related agencies for matters NOT devolved under the Devolution (Scotland) settlement. Areas include having access to information concerning UK foreign policy, UK defence and national security and a right exists for access to information relating to the economic and monetary system in the United Kingdom.

Ladies and gentlemen, never be put off asking for information just because you may be unsure whether your rights of access are from a Scottish public authority or from within a UK public authority context. The fundamental principle underpinning Freedom of Information laws is that you have a general right to receive the information you ask for. When making such requests the public authority concerned - whether it is based in Scotland or elsewhere throughout the UK - has a legal duty in assisting that individual to receive the level of information they are seeking. If you are advised to the contrary it is an offence at law and matters then, if arising, should be promptly reported. Freedom of Information is an Act of Parliament, not an embellishment for secrecy or improper disclosure. Moreover, the type of information an individual is seeking must be answered.

In most cases, the rights to information throughout other parts of the UK are quite similar to those afforded by the Freedom of Information (Scotland) Act. There are some differences such as the way that fees and charges are levied in providing information under FOI requests. Most requests however, should be dealt with free of charge. Where a levy is applied it will likely be a small charge. Where agricultural infringements have occurred, for instance, information becoming available under FOI is important in preventing any such practices from continuing and, by giving adequate public exposure in connection with such activities. Any charges incurred will, in the long run, have a far more beneficial outcome than the small and marginal costs incurred. Consider, for example, the interests of public health.

When pursuing information under FOI you may wish also to submit your own evidence - perhaps in the form of exhibits and photographic displays - that will, as a matter of process, help an individual receive the additional information they are seeking. The law requires, as previously stated, that a request for information under FOI must be received within 20-days, for more complex cases within a 40-day time period. Where information received is deemed unsatisfactory an individual has a right of redress to the Independent Commissioner in Scotland.

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Part 4:

Making a Request for information:

Whether you are resident within Scotland, or anywhere else in the world, an individual may request information held by a Scottish public authority.

The request must be in writing or ... "any other form that can be kept for future use, such as electronic mail, fax, audio or video tape".

You do not have to say you are exercising your rights under FOI or give any reasons for asking. If you are challanged to do so the circumstances surrounding such probing should be reported.

If you do not provide enough detail to allow the authority to identify the information you are seeking, or if your request is unclear or ambigious in some way, the public authority is perfectly entitled to ask you to either be more specific or by asking you to supply more details in terms of your request. The wording of such requests should, as far as is possible, be made with the correct use of written English language. Likewise, the replies you receive should, similarly, be reciprocated on similar terms. If it isn't, and the public authority concerned is unwilling to clarify details to your satisfaction then an individual should seek assistance from the Independent Commissioner in Scotland. Public authorities do not make the law, they administer many parts of it.

If you are not sure exactly what information you want the public authority concerned should help you describe the information you are looking for more clearly and in more detail. In general terms, and from my own experiences, public authority staffs do help by describing some of the different kinds of information available, which, invariably, can help. If the authority does not have the information you have asked for, you should request, in writing, that such details are outwith the scope of that particular authority. In some circumstances, staff may be able to direct you to another authority which could provide the information. However, improper and incomplete disclosures should not be accepted. If you suspect this to be the case, with good cause, matters should be referred to the Commissioner.

When requesting information under FOI it will certainly help if the applicant has done some thorough research before an application or referral is made. Some of the requests will, unquestionably, require a thorough understanding of what the implications of certain actions entail. This is particularly true within the field of environmental science in relation to the many changing laws and stricter codes of practice. Freedom of information allows for the improvement of practices locally, as well as nationally. What you say, or provide, particularly under the referral process, will likely be used by the Commissioner in the future. Because of this an individual should approach requests in a methodical and fastidious manner. It is important to bear in mind that any encroachments made could, very well, be referenced by the internal authorities. Do not remain ignorant on this point.

The authorities do have a duty to help you if you have difficulty making your request such as when an individual may find it hard to write an accurate description of the information they are seeking. If an individual has a disability, for example, staff can help by taking a note of your request over the telephone and then sending the note to you for confirmation, with a stamped addressed return envelope. Moreover, and more usefully, public authority staffs could also offer to tape-record your request over the telephone or over the counter, or suggest that you tape your request and send it in. In the writers opinion, this is an excellent approach to matters. Such recordings are held to be similarly binding as is with written lodgements.

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Part 5:

Exempted information under the Freedom of Information (Scotland) Act:

Ladies and gentlemen, as previously written, an individual has a general right to see and inspect all recorded information held by Scottish public authorities. In certain circumstances, however, information may be held from the applicant seeking such information because it is simply deemed 'exempt' from inclusion within the FOI (Scotland) Act.

If the authority you apply to decides to withhold information from an individual, it must justify why it thinks the information is exempt from your general right to receive it. An individual should never be put off applying just because you might perceive that information being exempt. Even if the information falls within one of the exemptions in the Act, the public authority concerned may still be willing to let you have all or a segment of it.

As would be expected, some categories of information are completely excluded from your rights of access, such as documents prepared for court cases. In most instances however, Scottish courts are open to the public including High Court trials that may appear within an individuals Sheriffdom, from time to time. Attending a High Court trial, even when listening to proceedings from within the public gallery, can be an enlightening experience. Understanding the legal infrastructures and how justice is dispensed is as much your right as it is mine. It is also important, I believe, in seeing how courts and officials - such as the defence and prosecution - and how the Judge will instruct in certain circumstances. It is not uncommon, in my experience, to share conversation with some very senior counsel outside the remit of the court chamber and within the corridors of the main court house. This is particularly true when one has shown a close interest within a long running trial. I have known trials when the defence and prosecution have been submitting their closing statements and the Judge has ordered the doors of the court to be shut. Again, even in these situations, the right to listen and be present in those circumstances was apparently my democratic right.

Information held by public authorities in Scotland is certainly categorised. Information may be exempt where the authority can prove there would be a real and significant chance of either damaging that public authority or harm could come to other people if that information were made public. Where the public authority deems this to be the case it will call this "substantial prejudice" in its corrospondance with you. This may include information which is deemed by the public authority to be commercially valuable or information that is confidential. However, your rights of redress to the Independent Commissioner in Scotland - for reasons which you might deem as being unreasonably withheld - should always be remembered. The Commissioner in Scotland will act for an individual where those rights have been unreasonably violated and where information has been withheld without just cause.

Ladies and gentlemen, exemptions under the Act are not simply cut and dry. For example, when deciding to provide information that may be covered by one of these exemptions, the authority must consider whether it would be in the "public interest" for that particular information to be made public. This means, quite simply, that if the benefit to the public is going to be greater than the harm to the authority or other people affected, the authority *must* release the information.

Freedom of Information is an Act of Parliament that previously received Royal Assent. Where you may have a point of 'interpretation' on any legal matter arising throughout that Act or within the 2004 Environmental Regulations, and you deem any information being unreasonably withheld, again, your right exists to challange such a decision directly with the Commissioner. Where you are advised otherwise, should be promptly reported.

In deciding whether it is in the 'public interest' to provide information, authorities should NOT take into account various considerations. These include the possibility of embarrassment to officials, any possible loss in the confidence of the authority, the seniority of the people involved or any risk that an individual may misinterpret the information if it came to hand. The purpose of Freedom of Information is, in no way, related to such safeguards.

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Part 6:

Fees Notice:

This is a notice that shows and indicates the estimated fee and how it has been calculated. A fees notice should also highlight how you can complain about the fee and how to appeal against it.

In deducing the fee, the authority is entitled to charge for various components of work they have undertaken in compiling the reports and information. This can include the level of staff time to find, research and gather the information and public authorities are authorised to charge up to £15 per hour for such time. In addition, charges can also be levied for photocopying or by making available the information in a differing format.

Charges must be reasonable. If an authority normally charges say, 10 pence a page for photocopying, charging any more than that would not be reasonable. If it provides the information on a compact disc, a flash drive or any other medium of your choosing, it can only charge the individual the cost of buying that device.

Specifically, an authority is not permitted to charge an individual for staff time or any other associated costs when deciding if it has the information or if the authority wishes to claim the information is restricted in terms of being exempted. Public authorities are not makers of the law but administer it according to their interpretation. Where an individual may differ on grounds of interpretation you should take your concerns to the Commissioner in Scotland.

A public authority cannot increase the fee if the actual cost turns out to be in excess of the estimation given in the fees notice. If the cost turns out to be less than was originally estimated, the authority should consider refunding any overpayment you have made.

The public authority will require payment, if a fee is set, before it will provide the information an individual is seeking. The public authority is under no obligation in sending you the information - if a fee has been set - and you decide not to pay it. Fees, where applicable, should be paid within 3-months of the date on the fees notice otherwise the authority is not legally obliged in dealing with the request previously made.

Freedom of Information is a powerful piece of legislation that allows applicants wide ranging access to information that was not previously available. For instance, are people who they say they are? Are people and organisations really doing what they publicly state as being fundamental to their core objectives? Anecdotal evidence is highlighting, that this is not necessarily the case.

Utilise Freedom of Information in the spirit by which it was devised.

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Part 7:




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© Copyright MarkDowe, 2007: all rights protected