Miners' strike 1984 to 1985 pardon: consultation

Background

In 1984 there were approximately 15,000 Scottish miners^[3]. Over the course of the Strike (March 1984 to March 1985), there were an estimated 1,350 arrests in Scotland linked to the Strike^[4]. There were approximately 470 court cases held in Scotland, of which 85% led to a conviction^[5]. Evidence suggests that there were around 200 dismissals in Scotland - with an estimated 40% of those who were dismissed being reinstated^[6].

The 1984/85 miners' strike was a bitter and divisive dispute. In commissioning an independent review into the policing of the Strike, the Scottish Government aimed to provide an opportunity to share experiences of the Strike, as a way of bringing reconciliation between police officers who were upholding the law in difficult circumstances which they had never encountered before - and miners who were protecting jobs, their way of life and their communities. The expectation in commissioning the review was that the process and outcome would help to bring a degree of closure to those affected by the Strike.

The report adopted a conciliatory approach, highlighting the similarities of those who were on the picket lines from the different perspectives - for example, the report draws out that many of those affected were young men with young families; that they shared similar experiences, such as scenes of violence when miners or police officers from outwith the local area were present at picket lines.

The report recognised that although the constitutional, legal and cultural landscapes have changed since the Strike, the strength of feeling at the time of the Strike continues to be felt in the former mining communities today. The independent review panel noted that they had received a number of allegations of unfair dismissal, wrongful arrest and miscarriage of justice. The report also noted that many miners still felt burdened by the loss of their jobs or good name and believed that they had been punished in an excessive manner by the State and the justice system as a whole. With that, the report took the view that it was impossible to separate out the impact of the policing of the Strike from other key influences such as the role of the National Coal Board (NCB) and the criminal justice system.

In adopting a truth and reconciliation approach, the report made a single recommendation, that "subject to establishing suitable criteria, the Scottish Government should introduce legislation to pardon men convicted for matters related to the Strike". The recommendation is framed with a view to promoting reconciliation and inclusion

The Pardon

In accepting the recommendation, the Scottish Government noted that the pardon is intended to:

• Acknowledge the disproportionate impact arising from miners being prosecuted and convicted during the Strike - such as the loss of their job.
• Recognise the exceptional circumstances that gave rise to the former miners suffering hardship and the loss of their good name through their participation in the Strike.

The proposed pardon for miners is based on the provisions of the Armed Forces Act 2006 ("the 2006 Act") which provided a mass pardon to 306 British Empire soldiers executed for certain offences (including desertion and cowardice) during World War 1 - recognising them as victims of the war. The 2006 Act did not expunge the convictions or sentences of the servicemen affected - nor did it create any new rights, entitlements or liabilities. The 2006 Act provided for a collective pardon which did not cast doubt on court processes or procedures. The effect of the pardon was to recognise that execution was not a fate that the individual deserved, but resulted from the particular discipline and penalties considered to be necessary at the time for the successful prosecution of the war.

In bringing forward the legislation, the intention of the UK Government was to remove the particular dishonour that execution brought to the individuals and their families. In the case of the miners, the pardon is intended to remove the stigma of a conviction for miners who suffered disproportionate consequences for taking part in the Strike. There are parallels here - for example, the lack of surviving court and police records. While an existing route is available to miners to seek to quash a conviction through working with the Scottish Criminal Cases Review Commission, the lack of surviving records means that few, if any, miners would now be able to pursue that remedy.

Given that the Strike took place 35 years ago, a number of ex-miners will have passed away in the intervening years, and it is important that they are also included in the collective pardon, to bring comfort to their families, friends and communities. The pardon will therefore apply both to living people and posthumously.

Because this would be a collective pardon, there would be no need for individuals to apply for a pardon. The pardon will be granted automatically if the qualifying criteria are met. That is why it is important that careful consideration is given to the qualifying criteria, and why we are consulting on this.

The report from the independent review suggested that the criteria could specify the range of qualifying offences; consider previous and subsequent offending history; take account of whether the conviction led to a fine or to imprisonment. We now need to consider those criteria and explore whether any additional criteria should also apply.

It should be noted that the pardon will apply to all miners who were convicted in Scottish courts, irrespective of their residence (then or subsequently). Therefore, it is possible that miners from outwith Scotland could also be pardoned if they meet the qualifying criteria.

The Criteria

The criteria proposed by the independent review panel were as follows:

• No previous convictions
• No subsequent convictions
• Convicted in Scotland for Breach of the Peace or Breach of Bail
• Case resulted in a fine

Based on the evidence available, the report believed that the vast majority of miners who were convicted for matters relating to the Strike would be able to satisfy all of these criteria. But it should be noted that using these criteria will mean that those who were imprisoned rather than fined would not qualify for a pardon. Also, miners who were convicted of other crimes, either before or after the Strike, would not be pardoned for convictions relating to the Strike.

The Scottish Government may choose to agree with some or all of the criteria proposed in the report - or indeed may add more criteria. That is why we are seeking a range of views to help inform our position on the criteria.

Definitions

To help you to form your views, explanations are set out below of some of the key terms used in relation to the criteria suggested by the independent review group.

Pardon:

As can be seen from the 2006 Act example, pardons can be used as a means of "dealing with the past". In the present circumstances, a pardon will be a symbolic acknowledgement of the disproportionate impact, such as job loss, that some miners suffered as a result of being convicted of certain low grade offences relating to the Strike. The pardon is intended to symbolically lift the burden of such convictions but does not affect any conviction or sentence or give rise to any right, entitlement or liability.

Breach of the Peace:

At the time of the Strike, any conduct which caused, or was capable of causing, mere embarrassment, upset or annoyance to another person was usually sufficient to merit a Breach of the Peace conviction. It should be noted that Breach of the Peace is a common law offence which means that it has been developed through the Scottish courts, with the ambit of the offence evolving over time. Therefore, the current ambit of the offence differs from how the courts interpreted it the time of the Strike.

Since the leading case of Smith v Donnelly^[7] in 2001, the offence is framed in terms of conduct severe enough to cause alarm to any reasonable person or threaten disturbance to a community; conduct which is a mere annoyance or irritation will not be a breach of the peace. Conduct will be alarming and disturbing if it would cause a reasonable person to fear that the peace of the immediate neighbourhood would be broken if that conduct were allowed to continue or be repeated. For example, fighting or challenging someone to fight in the street; shouting; swearing; and disorderly conduct.

It is the conviction for Breach of the Peace as it was interpreted by the courts at the time of the Strike which would be relevant for the purposes of the pardon.

Breach of Bail:

Where an accused who has been granted bail fails to appear for any court diet or fails to comply with any condition imposed on bail (e.g. not to interfere with witnesses or to stay away from a specified place) the accused is in breach of bail and commits an offence.