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Lord Advocate issues ‘same sex’ marriage opposition guidance to prosecutors

Prosecutors in Scotland have today been issued with guidance by the Lord Advocate, Frank Mulholland QC, on the prosecution of anyone who opposes same sex marriage in Scotland.

The action follows the publication today of the Marriage and Civil Partnership Bill by the Scottish Government.

The Lord Advocate was fulfilling a commitment he gave prior to the launch of the consultation on the Bill to publish guidance to prosecutors in relation to the circumstances in which opposition to same sex marriage could amount to a breach of criminal law.

The Lord Advocate said:

“Criticism of same sex marriage or sexual orientation is not in itself an offence and people have the right to express their own opinions particularly during the passage of the bill through the Scottish Parliament. Legitimate comment is part of the democratic process. The prosecution service recognises that freedom and also the sensitivity of the issues and the strength of opinion surrounding same sex marriage.

“I have therefore decided to publish brief guidelines for the Crown Office and Procurator Fiscal Service to ensure a consistency of approach by prosecutors across Scotland in deciding whether it is in the public interest to prosecute a case where comments are made either in opposition to or in support of same sex marriage which might be viewed as highly offensive; that a measured and proportionate approach is taken in such cases to ensure that people are able to express legitimate comment without fear of prosecution; and to make it clear that when comments are made in relation to same sex marriage that incite hatred or violence that the rights and freedoms of victims are protected.”

The full text of the Lord Advocate’s Guidelines follows:


Criticism of same sex marriage or homosexuality is not in itself an offence nor is the expression of religious views or the display of religious symbols. The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union state that all people are guaranteed the right to freedom of thought, conscience and religion along with the freedom of expression. These freedoms include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. It is important that those wishing to debate the issue of same sex marriage are able to express views and opinions which may be disagreed with and which may cause concern.

Crown Office and the Procurator Fiscal’s Service recognise the sensitivity of the issues and the strength of opinion surrounding same sex marriage. COPFS will consider any incident reported to it involving criticism of or support for same sex marriage on its facts and circumstances. Views expressed or comments made in relation to same sex marriage in ways which do not incite hatred or violence towards a particular person or group of people and which do not cause or intend to cause public disorder will not be the subject of criminal prosecution.

In considering whether a prosecution is appropriate, consideration will be given to the facts of the case, the context in which any statements are made or actions taken and wider issues in relation to public safety, the protection of public order and the protection of the rights and freedoms of any victims. Any decision to take proceedings in relation to cases of this nature will be approved by Crown Counsel.