Performative Criminalisation: The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill

Imagining that you have the power to make up criminal offences is a pleasing wee distraction from the relentless misery that is 2020 2021.

Odds are, at some point in your life, you’ve either been asked, “What would you ban if you were in charge?”. Or, you’ve daydreamed about bringing the full might of the state crashing down on petty things that annoy you, like the tyrant you undoubtedly are.

Maybe it’s a phrase you’d criminalise, like “holibobs”, “levelling up” (cheers for ruining RPGs, The Conservative and Unionist Party), or “check out my new podcast”.

Maybe you’d abolish something more tangible, on penalty of Getting The Jail, like those Nationwide adverts with the earnest poetry, or anyone who’s ever referred to themselves as an “influencer”.

Whatever it is, daydreaming about creating new crimes is fun, but it’s also obvious that the vast, vast majority of such new crimes wouldn’t be worth the hassle, for one reason or another (usually due to their egregious breaches of the European Convention on Human Rights, to be fair).

Sadly, it seems that sensible legislating isn’t always compatible with realpolitik. Hence the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill.

As I understand it, the Bill is on the verge of becoming an Act of the Scottish Parliament, thereby becoming law.

UNANIMOUSLY, no less.

What’s in the Bill?

Assaulting a retail worker will soon be a crime. Threatening or abusing a retail worker will soon be a crime, too.

Sound familiar? It should.

Assaulting someone is already a crime.

Threatening or abusing someone is already a crime too.

Retail workers (along with everyone else) are already 100% protected by existing and well-understood laws that protect people by criminalising unjustifiably violent, threatening or abusive behaviour.

Compare s2 of the bill (threatening or abusive behaviour towards a retail worker) to s38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour):

It’s effectively a Ctrl-C, Ctrl-V job, except that the new crime doesn’t appear to provide for a defence of “reasonable in the circumstances”, in the way that s38(2) does.

So what’s the point of these “new” crimes?

It’s not to fill a hole in the existing criminal law of Scotland, since I cannot see how someone who commits an offence in terms of s1 of the bill has not also committed either an assault or a s38 offence, for which they can already be prosecuted.

It’s not to increase maximum penalties available to the courts; s1(3) refers to summary conviction, for which the maximum penalties for assault and s38s are already 12 months’ imprisonment or the statutory maximum fine, so there’s no difference there.

My view is that it is performative criminalisation. In other words, making a show of “standing up for retail workers” by creating a new criminal offence that will rarely see the light of day, but makes for a good headline and a nice addition to the CV for those who Ctrl-C and Ctrl-Ved it into life. It is not good lawmaking.

It is not an excellent law.

David Allen Green wrote about “The Something Must Be Done Act” back in 2013 (when we were all young and carefree), which I would recommend to you. The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill falls squarely into the category of Something Must Be Done.

I don’t want any of the above to come across like I’m sneering at (a) well-intentioned politicians, or (b) retail workers. The last decade has repeatedly underlined that the world needs more well-intentioned politicians. Retail workers do an incredibly difficult job (particularly so these days), for scant reward, and those who abuse or assault them deserve to be prosecuted with the full force of the law. Reports of a rise in violent incidents against retail workers are both shocking and depressing.

I worked in retail for four years. If I were in charge, I’d introduce some sort of National Retail Service, in which everyone who qualifies would be forced to work in retail for at least six months. If you’ve worked in retail, odds are you’ll treat retail workers with empathy (and get that “the customer is always right” bullshit right in the fucking bin by the way).

My point is that it is unlikely that this forthcoming new law will have any practical effect. When it comes to light that there have been relatively few prosecutions & convictions for this new offence, it may even prove to be counterproductive, if retail workers feel let down by either the Scottish Government or COPFS.

I genuinely hope I am wrong, and that retail workers, armed with a raised awareness of a specific criminal offence designed to protect them from unpleasant behaviour, will be more likely to report potential crimes to the police. I’m genuinely glad that workers’ unions feel emboldened by it.

Once such cases reach court, though, COPFS will likely stick with the tried-and-tested charges of assault and s38s in the vast majority of cases. Why wouldn’t they? I can’t see them rushing to tack on the prospective s4 aggravation (“by reason of the retail worker’s enforcing a statutory age restriction”) to s1 charges, for a multitude of reasons.

Defence lawyers and Sheriffs will roll their eyes and get on with the job as usual, in the knowledge that they will not have to adjust much in order to deal with any stray charges under this new law. Same actions, same penalties.

I have neither the time nor the energy to embark on a philosophical where-does-this-leave-us musing on the scope of the criminal law. It would be completely valid to point out that the law already provides for specific offences in relation to assaults on police officers and other emergency service workers, so what’s so bad about retail workers joining the club? While we’re at it, why not create specific criminal offences for assaults on (e.g.) teachers, lawyers, roofers and plumbers?

Maybe it’s not a problem at all. Maybe it’s completely legitimate to create new criminal offences just to make people feel better, as opposed to providing any sort of practical protection for society.

From a legal perspective, I just think it’s a waste of everyone’s time. Time that could be better spent on your new podcast.

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