Thu, 28 Dec 2011 11:56:13

Readers of Scots Law News with Christmas book tokens burning holes in their wallets could do no better than repair to a good bookshop or (if possible) Amazon and get themselves a copy of the autobiography of Sheriff Irvine Smith QC, Law, Life and Laughter: A Personal Verdict, published earlier this year.The dust jacket carries characteristic portraits of the author, standing outside the portico-ed exterior of (your correspondent thinks) the former Justiciary buildings in Glasgow, within which he began to make his name as an advocate in the late 1950s.  When your correspondent was an Edinburgh law student back in the mid-1970s, he made an outing to the Glasgow sheriff court (then in the County Buildings in Wilson Street) to see in action the by now formidable judge whose scintillating prose and wit had incomparably brightened up the study of criminal law and procedure, notably in the great case of Heron v Diack and Newlands 1973 SLT (Sh Ct) 27 (the coffins and the corpse that would not sink in the waters of the Firth of Clyde).  Our lecturer had also regaled his class with tales of Irvine Smith’s judicious put-downs of the bar and Glasgow’s criminal classes (one of which is retold here at pp 166-167), so it was clear that a train journey would likely be worth the slight drain on the student wallet.  The experience did not disappoint: in the chaotic conditions seething behind the classical facade of the court building, Sheriff Smith was indeed presiding over a cramped court-room in which the almost equally famous Len Murray was appearing on behalf of the accused.  The interaction of these two quick wits (and friends) was something both to hear and behold, if now impossible to recapture in detail or in words.  Even the accused seemed almost to enjoy the show.Neither does the dip into this book disappoint.  The most vivid chapters are those about life on the bench in Glasgow sheriff court, where Irvine sat from 1963 to 1983, and the five capital murder trials in which he acted for the accused before beginning his time as a judge.  It is not all crime: there is a chapter on the (unreported) civil claim that arose from the Ibrox Disaster of 1971, and part of another on the controversial verbal injury case, Steele v The Scottish Daily Record and Sunday Mail Ltd, reported at 1970 SLT 53.  Scarcely less interesting, although for quite different reasons, are the chapters on Irvine’s early life as the late and only child of a working class family from Falkirk, but one with many aunts and a formidable maternal grandmother through whom the boy’s horizons were extended to both the Gorbals and rural Ayrshire.  There were to be further sharp contrasts when he went on, first to Glasgow University, and then to the Faculty of Advocates in Edinburgh.  All of this is described in rich detail which is, however, never overdone or rendered in the “tall tales from the courts” fashion which mars too many lawyers’ autobiographical efforts.  What we get is reflective both on the self of the author and the times and places in which he has lived.  Along the way we gain insight into what shaped the inimitable Irvine: the sonorous and eloquent voice, the lover of Burns, food and wine, and what combined these qualities to make one of Scotland’s greatest after-dinner speakers.  There is plenty of observation about the characters he has met along the way: the fishing, sailing and cormorant-eating Free Church minister from St Kilda; Barney Noon, Glasgow conman, alcoholic and poet; and “Lui”, the Italian prisoner-of-war who became a labourer paid only in kind on a farm near Falkirk and never went back to Italy, are only three of the colourful figures to each of whom the book devotes a number of pages.Another facet of Irvine’s contribution has been his engagement with the study of the history of Scots law.  He has been a prominent member of the Stair Society (ultimately its Vice-President and first honorary member) and a con[...]

Wed, 20 Dec 2011 12:31:21

A press release from 10 Downing Street on 20 December 2012 confirmed that Lord Reed has been appointed as a Justice of the UK Supreme Court to take the place of the late Lord Rodger of Earlsferry as one of the Scots law judges.  At the same time Lord Justice Carnwath of the English Court of Appeal was also appointed to the Court, to succeed Lord Brown when he retires in April 2012.

The UK Supreme Court's own press release reads as follows:

The appointment of Lord Reed and Lord Justice Carnwath CVO as new Justices of the Supreme Court has today been welcomed by Lord Phillips, President of the Court.

Lord Phillips said:

“The independent selection commission were faced with a very strong field of candidates who applied following open advertisement of the vacancies.  Lord Reed brings depth of experience in Scots law and practice, as well as insights into the work of the European Court of Human Rights.  Lord Justice Carnwath’s range of experience as a senior judge is complemented by his Chairmanship of the Law Commission, his work reforming the tribunals system and his service as the first Senior President of Tribunals.  As I near the end of my time as President of this court, it is encouraging to be welcoming colleagues of such high calibre and I am only sorry I will not have longer to work alongside them.”

The two appointments follow the death of Lord Rodger in June 2011 and the forthcoming retirement of Lord Brown in April 2012.

The appointments were made by Her Majesty The Queen at the advice of the Prime Minister and Lord Chancellor, following the recommendation of an independent selection commission. The commission consulted across each of the Supreme Court’s three UK jurisdictions before making their recommendations.

Lord Reed said:

“I am honoured by my appointment as a member of a court which has a world-wide reputation and influence, and whose decisions affect all parts of the United Kingdom. I am conscious of the responsibility which that entails.”

Lord Justice Carnwath said:

“It is a great honour to be selected for the Supreme Court. I see it also as recognition of the central importance in the justice system of the tribunals judiciary, whom I have been privileged to lead as Senior President for the last seven years.”

The 10 Downing Street announcement includes biographies of the two appointees.

Meantime in The Times newspaper of the same date the redoubtable Lord McCluskey fires off a few rounds in the direction of the Supreme Court, the cause of his ire being what he sees as the Court's supine attitude to the rulings of the European Court of Human Rights in Scots law matters, contrasting with the more robust defence of English law when it is in the dock at Strasbourg.  Lord Reed may consider himself duly warned. 

Fri, 15 Dec 2011 07:14:18

Scots Law News has learned with sadness of the death on 13 December 2011 of the distinguished legal academic Tony Weir of Trinity College, Cambridge.  Tony was a Scot, born in 1936 and brought up and schooled in Edinburgh.  He made a major contribution to English law (especially the law of tort) and to comparative law. Tony Weir had been a Fellow of Trinity since 1962.  At the time of his death he was an Emeritus Reader in Law.  He was probably best-known to law students through his Casebook on Tort, first published in 1967 and subsequently in nine further editions, the last appearing in 2004.  This was rather more than a collection of extracts from leading decisions and became famous for its mordantly witty comments on the situations with which the law had to deal and on the ways in which the judges saw fit to carry out their task and justify their decisions.  As one of your correspondent’s colleagues remarked in recent days, Tony Weir showed that the study of tort law could be fun; but he had serious points to make as well.  One of the epics which your correspondent will long remember is an Edinburgh debate in the David Hume Institute about the “compensation culture”, where, under the urbane chairmanship of Lord Mackay of Clashfern, Tony went head-to-head with Frank Maguire of Thompsons.  Wit and scepticism on one side collided in verbal violence with passion and belief on the other, and the chair only just about kept the peace; yet dinner afterwards was a marvellous occasion where each combatant accepted the other’s virtues while maintaining his own position, despite provocations from mischievous others present.  The death of the two protagonists within months of each other is irony indeed.Tony was the acknowledged master of the case note in academic journals (above all, the Cambridge Law Journal): terse offerings of sharp legal insight along with the ever-present dry humour which in combination none could rival.  An example can be found at (2002) 6 Edinburgh Law Review 244, but many others are cited in Nick McBride’s provisional bibliography below.  By all accounts coming out of Cambridge in recent days, he was a wonderful teacher and a devoted supervisor of his students, for whom his pastoral care was also profound.  The one occasion on which your correspondent heard a Weir lecture was both deeply instructive and extremely entertaining.  It inaugurated a series on environmental law in Edinburgh and was an assessment of the then recent House of Lords decision, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264.  The lecturer’s assault on the idea that liability for water pollution should be strict left an audience of largely green persuasion first unbelieving at what they were hearing, then deeply shocked, and finally, and rather guiltily, highly amused even if still un-persuaded.  But at least a brilliant performance had made them think again about their assumptions.  Sadly the lecture was never published, so far as your correspondent is aware; but something of its flavour can be picked up from two case notes in the Cambridge Law Journal at the time of the Cambridge Water case [see (1993) vol 52, 17; (1994) vol 53, 216]. In the world of academic legal research, however, Tony Weir’s international and considerable fame was as a comparative lawyer.  There were perhaps not quite so many articles as case notes, but a number of the former remain well-known decades after their first publication, as for example the classic four-parter in the Tulane Law Review, “Delict and Torts: A Study in Parallel”, co-authored with Pierre Catala and published between 1962 and 1965.  Sir Basil Markesinis, no mean comparatist himself, describes this mighty paper as “one of the most stimulating pieces on foreign law and comparative methodology ever to be written.”  Perhaps, however, Tony’s greatest contri[...]

Sun, 26 Nov 2011 09:28:48

To the sombre magnificence of St Giles in Edinburgh on the cold wet evening of Friday 26 November 2011 for a memorial service in honour of Lord Rodger of Earlsferry; then on to a dinner in the opulent splendour of the Signet Library.  Both events attended by a legal galaxy from not only the United Kingdom but also continental Europe.  The fine formal tributes at each part of the event moved their hearers in different ways, and left your correspondent with a deeper understanding of the threads of rich friendships running through Alan's multi-faceted career.  The Ciceronian line on the cover of the order of service was indeed apt: "non nobis solum nati sumus ortusque nostri partem patria vindicat, partem amici."The service, conducted by the Very Rev Gilleasbuig Macmillan, Minister of St Giles, took a strongly traditional Christian approach, with the choir and organ of St Giles in fine form, the congregation rendering Psalm 100 and two hymns ("O God, our help in ages past"; and "For all the saints", the latter Alan's favourite, as we were told at the funeral), and two scriptural readings by Lord Cullen of Whitekirk (Proverbs 4: 1-9 ["Listen, my sons, to a father's instruction, consider attentively how to gain understanding"]) and Lord Mackay of Clashfern (Epistle to the Romans 8: 31-39 ["If God is on our side, who is against us?"]).The eulogies came from Colin Mackay, TV and radio broadcaster, and friend of Alan from earliest schooldays as well as at Glasgow University, and Sir David Edward, friend and colleague from the time Alan entered the Faculty of Advocates in 1972.  Both drew not only on their personal recollections but also on what is obviously a rich resource in Alan's letters to his family.  From Colin we learned of the links between Alan's father and "King John" MacCormick, leading Scottish nationalist and of course father of another sadly departed friend in the law.  We were also entertained by an image of Kelvinside Academy pupils in 1953 being made by one of their teachers to scratch out the second "I" of "Elizabeth II" on their Coronation commemoration pencil-cases.  Who knows what effect this had on Alan's views about Scottish nationalism?  At any rate, later on as a student on Gilmorehill, as well as honing debating skills at the University Union, he formed with others the Glasgow University Royalist League (GURL) which invited membership from a host of obscure European royals - with what success we were not told.  In a fine and thoughtful speech which we may hope to see in print as the Royal Society of Edinburgh memoir of its subject, David Edward rightly emphasised Alan's interest in the practical solutions to problems as one of the keys to understanding his motivations in life, and also his lack of interest in the generalisations he saw as coming from legal philosophy and sociology.  On this problem-solving basis David explained Alan's decision to leave academic life in Oxford and go to the Scottish Bar in 1972: he had solved a big problem in Roman law and did not see fulfilment in exploring new, lesser problems from the Roman law chair that might otherwise have been his.  Your correspondent wondered a bit about this, since Alan went on solving Roman law problems all his life long.  The fact of the matter is that the chairs of Roman law that might have interested Alan (Oxford, Glasgow, Cambridge, Edinburgh, Aberdeen, UCL) were in 1972 all occupied by men who are (with one exception - Tony Thomas, who died early, in 1981) still alive today, albeit each for some time retired (i.e. Honore, Gordon, Stein, Watson, MacCormack); so the prospects for advancement in the subject forty years ago were not obviously good, no matter how able the candidate.  Also, Alan's great mentor David Daube (who in general should perhaps have [...]

Thu, 12 Oct 2011 10:22:16

The UK Supreme Court has unanimously upheld the validity of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 against the challenge to it made by insurance companies.  The judgments are very important discussions, not only about the Scottish Parliament's legislative competence but also about its subjection to judicial review.

The Court's press release reads as follows (references in square brackets are to paragraphs in the judgment; the Rothwell case is Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29, the decision that pleural plaques did not constitute an actionable harm which the 2009 Act seeks to reverse):

JUDGMENT
The Supreme Court dismisses the appeal and allows the cross-appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed.

REASONS FOR THE JUDGMENT
The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of Article 1 Protocol 1 of the ECHR [28], [112-114]. Therefore in order for the 2009 Act to comply with Article 1 Protocol 1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued.  In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] – [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employer’s negligence [37]. Second, the appellants’ obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament.

Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness.  The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] – [52], [148] and [153].

As to whether the third to tenth respondents are entitled to be parties, the test of “standing”, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are “directly affected” by the appellants’ challenge to the 2009 Act [63] – [64] and [175].

 

Thu, 24 Aug 2011 08:03:56

As the Gaddafi regime in Libya was finally toppled in August 2011, so inevitably speculation also began about the implications for Abdelbaset al-Megrahi, the convicted Lockerbie bomber, the second anniversary of whose compassionate release from Greenock prison by the Scottish Government came and went as the insurgents reached Tripoli.

Megrahi had been filmed a couple of weeks before attending a pro-Gaddafi rally in Tripoli, apparently in a wheelchair, and it was also reported that he remained in regular contact with East Renfrewshire Council social workers (one of the conditions of his release).

The concatenation of events led to voices being raised, not only about a possible recall to prison in Scotland, but also, in the USA and especially on Fox News and the like, of capturing Megrahi and putting him on trial in America.  Presumably that might be less difficult in present conditions in Libya than finding and killing Osama bin Laden in Pakistan was earlier this year.

Scots Law News does wonder what legality might have to say about a US trial for Megrahi, given that he has already been convicted of the crime in question and neither the Scottish or the UK governments have for a moment suggested that the conviction has been over-turned.  Presumably the co-operation of the Crown Office would be needed as well to enable US prosecutors to get hold of the material evidence that would be needed for a trial with any pretensions to being one under the rule of law.

Finally there is the interesting question of whether in the ruins of the Gaddafi regime there will be found any further evidence about the plan to bring down Pan-Am 108.  The Crown Office has indicated that it continues to investigate the possible involvement of others beyond Megrahi.  Scots Law News rather suspects that the Gaddafi regime did not prioritise archiving its records, if indeed it kept very many, so that mystery is likely to remain - unfortunately meaning lots of room for speculation and more debate.  Some of it may be reduced, however, if the Scottish Government's planned Bill to enable publication of the Scottish Criminal Cases Review Commission report raising questions about the Megrahi conviction succeeds in passing the Scottish Parliament.

Fri, 07 Jul 2011 12:02:10

As the storm over the phone-hacking methods of the News of the World intensified to the point where the newspaper's owners decided to close it on 7 July 2011, the Crown Office earlier the same day issued the following statement, which it appears most straightforward to give verbatim:

"CROWN OFFICE STATEMENT:  HM ADVOCATE V TOMMY SHERIDAN

FOR PUBLICATION OR BROADCAST

In light of emerging developments regarding the News of the World the Crown has requested Strathclyde Police to enquire into the evidence given by certain witnesses in the trial of Tommy Sheridan.

Strathclyde Police have been asked to make a preliminary assessment and to report to the Area Procurator Fiscal at Glasgow for consideration of any further action."

The Crown Office issued a further statement on 8 July:

ALLEGED TELEPHONE HACKING IN SCOTLAND

In light of further emerging developments regarding the News of the World the Crown has asked Strathclyde Police to consider and assess specific claims of phone hacking and breaches of data protection in Scotland.

Strathclyde Police will review available information and will liaise with the Metropolitan Police in relation to any Scottish dimension to their current investigations and will thereafter report their findings to the Area Procurator Fiscal at Glasgow.
 

All this may in due course raise an interesting legal question about the effect on the validity of a conviction, if any of the prosecution evidence in the case is found to have been perjured.

Tue, 27 Jun 2011 07:39:28

Sad news of the death of Lord Rodger of Earlsferry on 26 June 2011.  He had been ill with the effects of a brain tumour since the early spring.Alan Rodger was the greatest Scots lawyer of his generation as well as a highly distinguished scholar with an academic publications record that any full-time professor would have been proud of. And he was a highly stimulating and entertaining social companion.  He would have mocked the cliche, but he has been taken from us while still at the height of his remarkable powers.The bare facts of Alan's glitteringly varied career can be simply told.  He was born and educated in Glasgow (Kelvinside Academy, Glasgow University) before moving to take a DPhil in Roman Law at Oxford under the supervision of Professor David Daube (previously of Aberdeen).  Daube became the most significant intellectual influence on Alan's thinking about and approach to law in general.  The DPhil thesis, published in 1972 as Owners and Neighbours in Roman Law, led first to a Junior Research Fellowship at Balliol and then to a Fellowship at New College, Oxford from 1970, during which time he began to publish on Scots as well as Roman law.  One of his articles then was cited in argument in a Scottish court but dismissed by the judge as written by one who had no right of appearance before him (Mercantile Credit v Townsley 1971 SLT (Sh Ct) 37 at 39).  Perhaps in answer, in 1974 Alan was called to the Scottish Bar, becoming as soon as 1976 Clerk of Faculty (a position he held for three years).  He was appointed QC and an Advocate Depute in 1985, and then became successively Solicitor General for Scotland in 1989 and Lord Advocate in 1992 under the then Conservative Government.  Amidst all this his academic achievements led to his election as a Fellow of the British Academy in 1991 and as a Fellow of the Royal Society of Edinburgh in 1992.  He ascended the Scottish bench in 1995 and in 1996 succeeded Lord Hope of Craighead as Lord President and Lord Justice General.  In 2001 he joined Lord Hope as one of the two Scottish judges in the House of Lords; and when that court was transformed into the UK Supreme Court in October 2009 the two became the first Scottish Justices in that institution.  Although he never lost touch with the Scottish university law schools (for example, he was an Honorary Professor at Glasgow, and received honorary degrees from Edinburgh and Aberdeen as well as Glasgow again), he loved Oxford, becoming for example the university's High Steward in 2008 and Visitor of Balliol (in succession to the late Lord Bingham) in late 2010 as well as helping out with the teaching of Roman law in the university after the death of the Regius Professor of Civil Law, Peter Birks, in 2004. As a judge Alan was in the forefront in what has turned out to be the greatest challenge ever to face the courts, not only in Scotland but also in the United Kingdom as a whole: the impact of the Human Rights Act 1998 coupled with, in this jurisdiction, the Scotland Act of the same year.  While some of his analyses and conclusions may be challenged by others on legal and (for Alan, irrelevantly) political grounds, there can be no doubt of the rigour and vigour which he with others brought to what turned out to be an enormous and far-reaching task.  The Cadder case was perhaps his last major contribution in this area, and a very typical one for those looking for an example of his judicial style.  But the contribution was not limited to this field, however central it seems.  There were path-breaking judgments in pure criminal law, as in the Galbraith case on diminished responsibility.  And in private law he ranged widely, perhaps especially when he was Lord President; but even in the House of Lords and the Supreme Court th[...]

Mon, 05 Jun 2011 22:04:11

The Scottish Government's Expert Group to consider the jurisdiction of the UK Supreme Court in criminal matters will consist of Lord McCluskey, Sir Gerald Gordon QC, Sheriff Charles Stoddart and Professor Neil Walker.

It is of course a distinguished group but, Scots Law News feels bound to add, not one in the first flush of youth, and also one entirely masculine.  Others will feel worried by an excessive quotient of Edinburgh Law School associations, but that is something on which your editor cannot possibly comment.  What difference any of this will make to their advice is anyone's guess.

Wed, 31 May 2011 21:17:54

Following a fevered few days of public debate since the Nat Fraser decision by the UK Supreme Court, the new Scottish Cabinet has announced after its meeting on 31 May 2011 the creation of an expert group to look into the question of the Court's jurisdiction in Scottish criminal cases.

The names of the experts are awaited with interest.

Wed, 31 May 2011 19:56:14

The BBC reports on 31 May 2011 that Anne Muir has been given three years' probation following her earlier conviction for illegal file-sharing.

Wed, 10 May 2011 17:47:14

The Crown Office and Procurator Fiscal Service (COPFS) has issued a press release announcing that Anne Muir (58) has become the first person in Scotland to be convicted for illegally sharing music files online.

Ms Muir, from Ayr, apparently pleaded guilty at Ayr Sheriff Court in April 2011 to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988, admitting to having distributed £54,000 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application.  Her arrest and charge followed an initial investigation by BPI (British Recorded Music Industry) and IFPI (International Federation for the Phonographic Industry).  Police officers subsequently obtained a search warrant for her home in Ayr and seized evidence including computer equipment.

Unfortunately, in commenting on the conviction, District Procurator Fiscal for Ayr, Mirian Watson, succumbed to the music industry's favoured but legally unsound analogy in cases of this kind when she said that "Illegally flouting copyright laws is tantamount to theft and not only deprives legitimate companies and artists of earnings, but also undermines the music industry as a whole."  

Sat, 29 Apr 2011 16:26:34

Early February 2011 saw fresh light thrown on the UK Government’s negotiations with Libya in the years before the Scottish Government decided on compassionate grounds to release from Greenock Prison the only man ever convicted of the 1988 Lockerbie bombing, Abdelbaset al Megrahi.  It became clear that the UK Government had done as much as it could to promote Megrahi’s release; but there was no evidence that the Scottish Government decision had resulted from UK Government pressure.The major insight was provided by a report from UK Cabinet Secretary Sir Gus O’Donnell published on 7 February, who at the Prime Minister’s order had conducted an inquiry into the previous Government’s negotiations with Libya between 2004 and 2009.  Better relations with Libya had been sought to promote British commercial interests in the country, in particular those of BP.  By 2008 it was clear that the release of Megrahi was a sine qua non for the Libyans, and from then on the UK Government did all it could to facilitate an appeal by Libya to the Scottish Government under either the UK-Libya Prisoner Transfer Agreement or the compassionate release legislation.  But there was no evidence that the UK Government had put pressure on the Scottish Government to agree to any release.  O’Donnell’s inquiry had however investigated only UK government papers and not the records of the Scottish Government.  There was also a release of Scottish Government papers which led to a small row in some parts of the media as to whether or not the Scottish Government had attempted to strike a bargain with the UK Government in which Megrahi would be released in return for some legislative measures for Scotland.  Whether or not there was such an attempt, Megrahi was released and there were no known concessions to the Scottish Government from Whitehall or Westminster then or afterwards.  Scots Law News suspects that there were some interesting intra-governmental conversations but doubts very much whether the Scottish Government would have thrown away anything it regarded as a bargaining card.Interesting if less significant light came from a Wikileak release of a US diplomatic cable showing that more than a year before Megrahi’s release, in 2008, the UK was briefing the US on various ways in which the release might take place under either the PTA or the compassionate release legislation.  Again therefore it was clear that the release when it came did not hit the US Government as a bolt from the blue.None of this changes the Scots Law News view, expressed just after the release, that doing so was indeed a political decision, but not for the reasons claimed by the political opponents of the Scottish Government.  Scottish Labour’s attempts to pin moral blame for the decision entirely on their SNP opponents look clumsy and naive indeed given what was, even at the time, the perfectly obvious interest of their London big brothers in having UK-Libya relations improved by Megrahi’s return to his homeland.Meantime on 25 January the Scottish Parliament Public Petitions Committee more or less gave up on its attempt to get the Scottish Government to hold an inquiry into all aspects of the Lockerbie case but sent more questions, to the Scottish Criminal Cases Review Commission, the Lord Advocate and the Cabinet Secretary for Justice, producing an interesting set of replies shortly afterwards.  The SCCRC indicated its view that it could reopen a case in which, like Megrahi’s, an appeal had been abandoned; the Lord Advocate confirmed that the Crown Office has never held the view that Megrahi acted alone and that investigations of[...]

Sat, 04 Mar 2011 08:34:52

It's almost two years since Scots Law News signed up to Twitter.  Having successfully avoided making any embarrassing tweets, we are now trying out Facebook with a Scots Law News page there too.

If we are honest, our principal aim in setting up the page is to store material that we might use when, as over the last month, your correspondents are too busy with other things to do much if any blawging.  So if you look at the page now, you'll find that we are tracking such matters as Mr Megrahi, human rights and their manifold implications for the Scottish legal system and curious cases in the Court of Session, as well as some beavers running amok on Tayside and the future of Stornoway black pudding.  We hope to blog on all these shortly.

We would welcome thoughts on the Facebook page and how it might interact most effectively with the blawg and the Twitter feed.

 

Fri, 27 Jan 2011 10:19:26

Tommy Sheridan, convicted of perjury in December 2010, was on 26 January 2011 sentenced to three years' imprisonment by trial judge Lord Bracadale at the High Court of Justiciary in Glasgow.

The best account of what transpired in court is to be found on James Doleman's Sheridan Trial blog.  It appears that Mr Sheridan's 40-minute plea in mitigation (full text here) was a much better performance than his five-hour closing speech to the jury back in December.  There is an intriguing reference to the jury's majority verdict being the "narrowest" possible, i.e. 8-6 as there were only 14 jurors; but no confirmation of that from elsewhere.  (Nor, may it be noted, any sign of action against the juror who posted her support for Mr Sheridan's innocence on Facebook.)

The sentence is a little longer than Scots Law News had anticipated, but much shorter than the five years widely predicted in the media.  It means that, provided he behaves in prison, Mr Sheridan should be back in circulation around the middle of 2012.  In the meantime, an appeal against his conviction has been confirmed.  With stories about News of the World phone hacking gaining momentum and former editor Andy Coulson having to resign as the Prime Minister's Director of Communications as a result, so the prospects brightened of a further civil action against the newspaper by Mr Sheridan as a possible victim of their intrusive practices.

The BBC is very proud of the fact that its reporter Raymond Buchanan became the first journalist to tweet live from a Scottish courtroom, Lord Bracadale having granted permission for this to happen; but makes no reference to the James Doleman blog, rightly praised in the Scottish Review as the only serious attempt to report what was actually going on in the Sheridan trial as it happened.

UPDATE

The BBC reports a statement by Gail Sheridan that she will not be standing as a Solidarity candidate in the forthcoming Scottish Parliamentary election.  The Herald speculates that Tommy Sheridan will spend only a year in prison and will thereafter spend six months in an electronic tag on home curfew.

Fri, 20 Jan 2011 20:15:59

2011 has made a promising Scots Law News start.Our final post of 2010 anticipated continuing interest from activities around Mr Tommy Sheridan, and as noted further below, we have not been disappointed.  But the best of all the new year stories was that of Nurse Poltis and the Red Cross, reported here and here by the BBC.  Scots Law News wonders if this wasn't a missed opportunity to educate the children of Glasgow and around in a positive way about the vital significance of the famous symbol, and doubts whether its meaning in the fields of war would in any way be diluted by its use in a pantomime, even one in Glasgow.  The relevant law is in section 6 of the Geneva Conventions Act 1957.The most striking of the many stories about Mr Sheridan bore out another of our valedictory comments on 2010, namely the increasing ubiquity of the social network site Facebook wherever it perhaps ought not to be.  This time it was the post of one of the Sheridan trial jurors on Mr Sheridan's Facebook page, declaring her (and her husband's) support for our hero's innocence, and her disgust at her fellow jurors (the majority, obviously) who thought otherwise.  Details here per The Daily Record and here per The Herald.  It seems clear that the juror's conduct is a criminal offence under section 8 of the Contempt of Court Act 1981 since it broke the confidentiality of the jury's proceedings. (Note also section 9 on the use of recording devices in court, BTW).  The matter may fall to be dealt with by Lord Bracadale at the same time as he declares Mr Sheridan's sentence on 26 January.Next in the interest list was the news that Mrs Sheridan will be a candidate in the forthcoming Scottish Parliamentary election, standing of course for the Solidarity Party founded by her husband after his acrimonious departure from the Scottish Socialist Party.  This appeared to upset that other well-dressed socialist, George Galloway, who is also standing in the same election for the Respect Party; he fears a fatal split in the vote for the militant left.  He may be right - if we can put it that way.There was also talk of further civil actions: by Mr Sheridan against the News of the World for infringement of privacy, and by Mrs Sheridan against the police for the manner in which their interrogation of her was carried out (in particular the removal of her rosary).  The actio iniuriarum, the place of which has been so much debated in recent years (see Whitty and Zimmermann (eds), Rights of Personality in Scots Law, Dundee University Press 2009; Elspeth Reid, Personality, Confidentiality and Privacy in Scots Law (SULI, W Green 2010), may yet get itself into court.  But the threats to sue have beennot much more than that so far, nor is it clear in which court they might be made good.  Could Mr Sheridan take a leaf from J K Rowling's book on successful litigation and head south?Personality rights, and their limits, were also to the fore in our final new year's tale, the Scottish Government's consultation on whether the law of defamation should be extended to offer protection to the reputation of the dead against false stories about them published posthumously.  The paper has a nice snappy title: "Death of a Good Name".  The consultation, published on 11 January 2011, can be read here; answers to be in by 4 April if you want to have a say.  [...]

Fri, 30 Dec 2010 11:11:41

Another year over and a new one just begun.  War isn't over but Scots Law News hopes that all its readers have some fun in 2011.Looking through our posts for 2010, we are most struck by the advances of social media into what might once have been thought no-fly zones.  The Scottish judiciary now have their own website, and the Stair Society - not to mention Stair himself - are on Facebook.  The Scottish blawgosphere is flourishing, as a glance at our sidebar will confirm.  So far as we know, however, while solicitors, advocates and of course Scots Law News have their own Twitter accounts, no Scottish judge has yet dared to tweet, whether on or off the bench.  But jurors may well be doing so (see Jennie Law on this here), and the Scottish Law Commission has just pointed out, as part of an argument that an accused's previous convictions should be before the court from the outset of a trial, that jurors are searching for such information on the Internet as a case proceeds, with concomitant risks that the information they get is wrong, incomplete or misleading (Discussion Paper No 145 on Similar Fact Evidence and the Moorov Doctrine, paras 7.74-7.79).  In England the Lord Chief Justice issued on 20 December an interim practice guideline on the use of mobile communication devices by anyone in court, noting that photography and sound recording are generally not allowed, but saying that nevertheless "the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice".  We already have our own example illustrating this in Scotland with James Doleman's blogging coverage from the courtroom of The Sheridan Trial: for his comments on the experience see especially here.This time last year Scots Law News ventured into the realms of prophecy, and reviewed in the light of what actually happened, we think we did not too badly.  True, we failed to predict the eventual outcome of the UK General Election while Captain Calamity and Sergeant Eros disappointed us with their failure to do anything noteworthy in 2010.  But otherwise we feel emboldened to look again into our crystal ball.  We confidently expect to remain interested in the health and well-being of Mr Megrahi, and we will also keep tabs on the Naked Rambler while not expecting much from him before the build-up to next Christmas.  We will replace the Captain and the Sergeant with Mr Sheridan, news of whom may be expected also to fill the gap left by the enforced absence from the public stage of Mr Gough.  A Scotland Bill is before the Westminster Parliament and may be on the statute book by the time a new Scottish Parliament is elected in May.  We suspect that there will still be a minority Scottish Government after that election but beyond that our crystal ball goes a little grey.  In the meantime we can expect at least an Inner House ruling or two on the legislative competence of the Scottish Parliament (pleural plaques and, maybe, cigarette sales); perhaps even offerings on the same subject-matter from the Supreme Court.But perhaps the biggest thing likely to happen is the transformation of the basics of criminal law evidence and procedure, or at least the beginning of a transformation set in motion some years ago by the World's End trial outcome and accelerated by the Supreme Court decision in Cadder.  After the World's End case the Scottish L[...]

Thu, 29 Dec 2010 20:39:22

As 2010 comes to an end, with tales of Mr Megrahi's imminent demise apparently somewhat exaggerated, time for an update on the rush of other stories on the subject that became public during December 2010.(1) Despite a "deadline" of 10 December, no response so far from the Scottish Government to the Scottish Parliament Public Petitions Committee on the legal authority for the statement that the Government has no power or authority to hold an inquiry into the Megrahi conviction.(2) But an announcement was made on 9 December by the Scottish Criminal Cases Review Commission that not all the parties whose material submitted directly or indirectly had led the Commission to refer the Megrahi conviction back to the Court of Criminal Appeal as a possible miscarriage of justice had consented to its disclosure.  This meant that, in terms of the SCCRC (Permitted Disclosure of Information) Order 2009 (which came into force on 1 February 2010), none of the information could be disclosed.  The Herald's story back in June 2010 was thus confirmed.(3) The "whistleblowing" disclosures of the Wikileaks website about US international diplomatic activity reached the Megrahi affair on 8 December.  These confirmed what already seemed pretty obvious to those who have followed this business over the last few years, viz that the continued detention of Megrahi seriously threatened UK government and commercial interests in Libya, especially if he were to die in prison.  They also seemed to show that Libyan blandishments to the Scottish Government had been rejected.  Lallands Peat Worrier helpfully pulls the material together.  Interesting to note comments in the pre-release material that life expectancy of three months was not "codified" in Scottish compassionate release law and that Megrahi's life expectancy could be anything up to five years. (4) The 22nd anniversary of the fall of PanAm 108 to the earth around Lockerbie on 21 December 1988 was marked by the publication of the report on the Megrahi release by four members of the US Senate Foreign Relations Committee.  This concludes - unsurprisingly, in view of the previous publicity from the Senators - that the Scottish Government succumbed to strong political and commercial pressure from UK interests for Megrahi's release and that the prognosis of Megrahi's life expectancy was not medically justified.  The Scottish Government naturally rejected these conclusions.  The report does not appear on the Foreign Relations Committee website.  It appears to be the work of the four Senators alone, and not to carry the imprimatur of the Committee.We seem little further forward, and increasingly unlikely to get anywhere beyond where we were in late August and early September 2009, immediately after the Justice Secretary ordered the release of Mr Megrahi.  Perhaps 2011 will none the less surprise your correspondent. [...]

Fri, 23 Dec 2010 15:53:52

Tommy Sheridan was found guilty of perjury at the High Court in Glasgow on 23 December 2010.The jury verdict (a majority one) came at the end of a trial which had begun on 4 October.  Although the trial was to a considerable extent a reprise of the evidence led in the great 2006 defamation case, there was new stuff, above all perhaps a video made secretly by Mr Sheridan's one-time best man, in which allegedly the accused admitted the truth of the allegations about his visits to the now notorious Manchester swingers club known as Cupids.  Mr Sheridan's tactical approach to his case also bore similarities to 2006, especially dismissal of his advocates a few days into the trial and his thereafter taking on the burden of his own defence.  Where perhaps difference was crucial, however, was his five-hour closing speech to the jury.  In 2006 his speech of just 90 minutes, contrasting with the six hours from counsel for the News of the World, was thought to have been an important, perhaps decisive, factor in that famous victory.The Crown's approach in prosecution raised doubts in some minds: the gradual paring down of the allegations of perjury from eighteen to six (five of which were eventually upheld by the jury); and, fairly late on, the complete dropping of charges against Gail Sheridan as "no longer in the public interest".  But the Glasgow jury, or a majority of them, was convinced beyond reasonable doubt, as an Edinburgh jury was not on the civil balance of probabilities, that Mr Sheridan had lied in his response to the allegations published by the News of the World in 2003: for example, in denying a visit to Cupids; admissions of that visit made to the Scottish Socialist Party executive committee and, separately, to two SSP members; and an extra-marital sexual relationship.  It can be taken that the jury majority also did not believe that this was all part of a war between Mr Sheridan and the Murdoch press in which the sacrifice of truth was justified or justifiable.  There were some entertaining insights into the ways of the red-top press, however: notably Bob Bird (Scottish editor of the News of the World) stripping to his underpants to get to see the video confession.  The care and attention lavished on the decision to buy and publicise the video by the then chief editor of the News of the World (Andrew Coulson) must also have renewed confidence back in 10 Downing Street that the Prime Minister's decision earlier this year to appoint the same Mr Coulson as his Director of Communications was indeed a masterstroke.Over festive season discussions of the case, what Scots Law News has heard most often questioned is why Tommy Sheridan should be "singled out" for prosecution for perjury, which, it is suggested, must be going on in the courts every day.  And why anyway should we care about whether or not a politician is lying about his sex-life, which has nothing to do with his politics?  Your correspondent thinks however that the justifications for the pursuit of the case are simple.  First, it was Mr Sheridan who put the truth of allegations about his sex-life at issue in the claim of defamation, presumably because he thought that unchallenged these allegations would damage him politically (for insight about that possible damage see former SSP member Alan McCombes' note in the Sunday Herald for 26 December, apparently not available online).More important, the difference between Mr Sheridan and ordinary cases of witness[...]

Tue, 13 Dec 2010 14:28:12

The Scottish Legal Aid Board was reported on 10 December 2010 to have refused to fund a test case on the enforceability of bank charges for unauthorised overdrafts under the Consumer Credit Act 1974, sections 140A-140D.

The case is brought by Jennifer Sharp who seeks to reclaim charges amounting to £750.  The Board's ground of refusal is based on a cost-benefit analysis: the expenses of the action far outweigh the amount which she is claiming.  There was insufficient evidence that the case would affect large numbers of other people.  Following the decision last summer noted previously here, the bank charges cases are having to be brought under ordinary rather than small claims procedure, where the individual's liability for the expenses of the action is heavily restricted.

Ms Sharp is being advised by Mike Dailly of the Govan Law Centre, who says that he is considering a Court of Session review of the Board's decision.  The Board has however indicated that its decision may be reconsidered if evidence of the potential impact of the case is forthcoming.  Some differences of view about what has been going on are apparent from the respective organisations' websites.

Earlier, in October 2010, the UK Government had indicated (see further here) that, after considering the responses to a call for evidence on the matter, it would not be pressing for reform of the Unfair Contract Terms Directive in order effectively to reverse the Supreme Court bank charges decision, OFT v Abbey National [2010] 1 AC 696 (in which the court held that in its present form the Directive could not be used to review the fairness of the charges).

Sun, 11 Dec 2010 17:49:36

While after the resignation of Scottish Transport Minister Stewart Stevenson on 11 December 2010 there can be no doubt of the possible political liabilities flowing from not dealing properly with the consequences of lots of falling snow, there is perhaps some room for discussion of individuals' legal liabilities to those injured by falls of snow from the roofs of their buildings, or by falling on uncleared pavements in front of the buildings.When snow deposits itself in great quantities on the roofs of buildings (and indeed atop hedges and walls, as your correspondent has seen in Edinburgh over the last two weeks), and then slides off on to unfortunate passing pedestrians on the pavements outside, have such persons a claim against the owner of the buildings (or the hedges or the walls) in respect of any injury suffered thereby?  The question seemed live to those within the Scottish Law Commission last week when a great wadge of snow crashed to the pavement opposite from the roof of the National Library's Causewayside building; and there was too the unfortunate case reported by the BBC of the Berwickshire schoolgirl severely injured by snow and ice falling on her from the roof of a farm building on 3 December.The Occupiers Liability (Scotland) Act 1960 makes occupiers liable only to those who enter their property, not to those on the streets outside.  There is common law on that latter situation, however, and the debate, not fully resolved by the First Division in McDyer v Celtic Football Club 2000 SC 379, is whether liability is fault-based or, under the Scots law version of the Roman actio de positis vel suspensis, strict.  The latter remains possible largely because the law is so stated in Bankton's Institute, at Book I, chapter 4, paras 31-32, where he says:31. The second improper delinquency is, when any thing is thrown over or poured out, from windows of houses, into the streets, highways, or other common passage, whereby damage is done to those that pass by, the master of the family is liable to repair it, as if it had been done by himself, because he ought to have prevented such damage: indeed, by the civil law double damage was due to the person aggrieved, but that cannot take place with us, the private party having no more than redress of damage, in the case of real delinquencies, except where it is otherwise specially provided by statute. 32. A THIRD is, where there is any thing hung up or placed above common passages, which may, by the fall, do damage to persons passing by; the person that did it, or suffers it to be done, is liable to a definite penalty by the civil law; and no doubt by our law, upon a regular complaint, he will be compelled to take it down; but no penalty can be due with us without an express statute, which we have not in this case: however, if it is not removed, when the party concerned is required by lawful authority, at the instance of persons in the neighbourhood, he may afterwards be punished.Bankton doesn't quite have snowfalls in mind when he is talking about things thrown over or poured out or hung up or suspended, obviously.  Scots Law News suspects that the Romans didn't think too much about snow either; but nonetheless, as the court emphasises in McDyer, the Roman law received in Scotland is adapted to Scottish circumstances, and, whatever Bankton's weather experiences may have been in the balmy age of enlightenment, in this country now snow is a pretty regular occurrence[...]

Sun, 11 Dec 2010 16:29:26

After a prolonged debate since its introduction by Margo MacDonald MSP in January 2010, the End of Life Assistance (Scotland) Bill was rejected by the Scottish Parliament on 1 December 2010.

The Bill's explanatory memorandum summarised it thus:

4. The Bill is concerned with providing persons with a choice at the end of life. It is about ensuring that persons who meet the Bill’s eligibility conditions and who find their lives ntolerable can have the dignified death they desire.
5. The Bill details those persons eligible to apply and specifies the criteria to be met.
6. The Bill includes detailed requirements designed to ensure that vulnerable people are not coerced into seeking an assisted death.
7. The Bill enables eligible persons to receive assistance to bring about the end of their life.  The Bill provides a detailed process with systematic checks and safeguards applying to both those assisting the person and the person making the request. If these processes are followed then the person will be able to receive an assisted death and those who have assisted will not have committed a criminal offence or a delict.  

The Special Committee which had been set up to consider the Bill recommended in a report that the Bill be not proceeded with; and the Parliament duly so decided after a debate, by a majority of 85 to 16 with two abstentions.

Margo MacDonald has indicated that if re-elected at the Scottish Parliamentary elections in May 2011 she will bring another version of the Bill back before the Scottish Parliament.

Sun, 11 Dec 2010 16:25:20

The Scotland Bill, implementing (some of) the recommendations of the Calman Report (see previously here), received its first reading in the House of Commons at Westminster on 30 November 2010.

The most significant parts of the Bill are probably those dealing with the tax powers over and above those which the Scottish Government has mysteriously lost since 2007 through not keeping up payments to HMRC (see here for the mystery, which ensures that whichever government is next elected in Scotland will have no tax-raising power until 2013-2014).  These parts of the new Bill (clauses 24-31) seem likely to hog media attention as it progresses through Westminster.

For Scots Law News, the greatest interest lies in the loss of devolved control over corporate insolvency matters (clause 12), and in the absence of any provision to make charities law a reserved matter (contrary to Calman recommendations which still seem slightly puzzling to this observer).

One is also relieved to note that the Scottish Parliament is to lose its power to legislate in relation to Antarctica (clause 14).  One imagines that they talk of little else at Holyrood, especially when the snow begins to fall.  For some entertaining suggestions as how the Scottish Parliament should use its hitherto unsuspected competence in these matters in the few days left to it to do so, see Absolvitor here.  Lallands Peat Worrier claims to have uncovered the truth behind the provision: Bill Aitken MSP had a plan to mark his swansong in the Parliament with a Bill for the benefit of the Antarctica penguins but now Whitehall has headed him off.

 

Sun, 11 Dec 2010 16:20:46

The Naked Rambler got a total of 15 months and 26 days' jail for his latest episodes of nudity after picking up further breach of the peace and contempt convictions in Perth Sheriff Court on 24 November 2010.

Sheriff Robert McCreadie found that not only was the Rambler's brief naked departure from Perth prison on 29 October (noted here) a breach of the peace, but also his refusal to dress for his trial was contempt.

For those who have not spotted it already, our headline comes courtesy of Lord Byron - see here for more.

Sun, 11 Dec 2010 16:03:37

Having shoogled the criminal lawyers in Cadder, the Supreme Court shook up the orderly world of conveyancing and repossession from defaulting debtors with its judgment in Royal Bank of Scotland v Wilson [2010] UKSC 50, issued on 24 November 2010.RBS v Wilson was a case about how the creditor in a standard security might eject the defaulting debtor from the property over which the debt was secured.  The relevant legislation stated that the debtor's default had to be preceded by "formal requisition"; the creditor bank argued that a certificate of default lodged in court under section 24(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 met this requirement.  This was practice established over the last forty years, even although section 19(1) of the 1970 Act said that the creditor intending to exercise the power to eject "shall serve a notice calling-up the security in conformity with Form A of Schedule 6 of this Act" (with which the certificate of default under section 24(2) did not comply).  Practice allowing the certificate of default procedure to be enough was based upon the writings of the late Jack Halliday, sometime Professor of Conveyancing at Glasgow University and "architect" (although not draftsman) of the 1970 Act.  Halliday had written that the creditor in our situation "may" serve a calling up notice, which was an "additional" remedy (see para 47 of the Supreme Court judgment, per Lord Rodger).  But, said Lord Rodger (as a Glasgow graduate), "in the end even a word from Professor Halliday would have to yield to the words of Parliament" (para 49).  "Shall" here was an imperative word; and properly understood, Professor Halliday had not said anything different.  Only a calling-up notice would do before the debtors could be ejected; this was an important piece of debtor protection.  Lord Hope (an Edinburgh graduate) is more dismissive of Professor Halliday's reading (see para 68) and says, "The answer to the problem is to be found in the words of the statute, to which all too frequently insufficient attention appears to have been given" (para 72).Scots Law News recalls wise words from the Wilson Lecture given by Professor Eric Clive as the Scottish Parliament began its life as a legislature in 1999: “‘Shall’ is an imprecise word with several shades of meaning. When it states a result brought about by the Act itself, it is better replaced by ‘is’. …. The New Zealand Law Commission has recommended the use of the present tense and indicative mood whenever possible, and the replacement of ’shall’ by ‘must’ where a duty or prohibition is intended. … I would like to see the routine use of the word ’shall’ banned from Acts of the Scottish Parliament.” (Edinburgh Law Review vol 3 (1999) at p 143)Professor Clive attacked the famous opening provision of the Scotland Act 1998 – “There shall be a Scottish Parliament.”  “But what,” asks Professor Clive, “does ’shall’ mean in that sentence?”  RBS v Wilson, where in the end everything turned on whether "shall" meant "may" or "must", confirms the Clive line, I fear.  See here for further comment fr[...]

Sun, 11 Dec 2010 15:44:46

Quite apart from their specific interest as a major decision shaking the Scottish criminal justice system to its roots, the Supreme Court judgments in Cadder v HMA [2010] UKSC 43 contain numerous points worth attention from a more general point of view.First, the United Kingdom made no attempt to intervene in the preceding Salduz case in 2008, despite its (one would have thought) fairly obvious implications for the Scottish legal system.  Were relevant eyes not on this particular ball at the time?Second, when should a United Kingdom court regard itself as bound to follow a decision of the European Court of Human Rights?  The answer seems to be that at any rate an unanimous decision of the Court's Grand Chamber (such as Salduz) should be followed; perhaps then the decision of a split Chamber is not binding.  And certainly there is precedent, cited at para 45 of Lord Hope's judgment, that decisions of Sections of the Court which are based on misunderstandings or lack full consideration of law in the United Kingdom need not be applied.  But in any event the Court itself had consistently applied Salduz and a number of ECHR member states which had not previously afforded a right to legal representation at police interviews of suspects were now changing their laws in the light of this jurisprudence.  This suggested that the decision was not one upon which the Court could be persuaded to go back.Third, both Lords Hope and Rodger go into the history of the rule in Scotland denying suspects in police custody the right to legal representation.  Introduced in its current form by statute in 1980, the legislation followed recommendations in the Report of the Thomson Committee on Criminal Procedure in Scotland (1975).  The Report said how -"... criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights.  [The solution] must recognise the realities of the situation, and take account of those police practices which are accepted as fair by the public including criminals although they may be technically illegal or at least of doubtful legality.  (para 2.03) ...  We recommend that a solicitor should not be permitted to intervene in police investigations before charge.  The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor."Thus, given that the basis of Salduz was primarily a concern to protect the suspect against self-incrimination, the Scottish rule, being explicitly based upon the proposition that the accused must be given every chance to incriminate himself, could not possibly stand, whatever the other safeguards (such as corroboration) that might exist in the system.Fourth, prospective over-ruling.  As is well-known, the courts in the United Kingdom declare the law as it has always been, not change it.  In effect, their decisions have retrospective effect.  The fear in Cadder was that the decision of the Supreme Court would have the effect of invalidating every conviction achieved through the use of evidence from police interviews of suspects without a lawyer present on the suspect's behalf.  Further, while the Scotland Act 1998 gives the courts power to [...]

Sun, 11 Dec 2010 15:39:08

Angus Stewart QC was elevated to the Court of Session and High Court bench on 5 November 2010, and has taken the judicial title Lord Stewart.  His career is summarised here on the Judiciary of Scotland website.

Not mentioned on the Judiciary website, however, is Lord Stewart's contribution to legal history, as editor of two of the four volumes of the Faculty of Advocates Minute Book published by the Stair Society (vols 46 and 53 in the Society's series).  Both volumes, which together cover the momentous period 1751-1798, are distinguished by the editor's well-researched and elegantly written introductions.  They appeared in 1999 and 2008 respectively (the latter being co-edited with Dr David Parratt). 

Lord Stewart also contributed two articles to the Stair Society's fourth Miscellany volume (vol 49 in the Society's series, published in 2002).  The first provides the essential introduction to the Session Papers, a key source in particular for eighteenth-century Scots law, and the second illustrates the use to which the source may be put under the title "Sir Walter Scott and the tenants of Invernenty".

Moving away from legal history to the joys of medical negligence, Lord Stewart's article "‘Damages for the Birth of a Child" (1995) 40 JLSS 298 was influential in the famous decision of the House of Lords, MacFarlane v Tayside Health Board 2000 SC (HL) 1.

It is clear that in Lord Stewart we have yet another Scottish scholar judge, and Scots Law News looks forward to a distinguished tenure on the bench, while also hoping that there may yet be further contributions on legal history from his able pen (or word processor). 

Thu, 03 Nov 2010 07:34:20

Our thanks to fellow blogger Lallands Peat Worrier who has drawn our attention to the splendid public indecency case decided on 1 November 2010 by the Court of Criminal Appeal, holding that the Eastern Necropolis, Dundee, was not "public" in the sense required for the commission of the offence by the performance of fellatio within the graveyard's bounds.

Lallands Peat Worrier, to whom we must refer readers for all details, presents the story in Burnsian mode, recalling Tam O'Shanter's misadventures with Cutty Sark at Alloway Kirk on Hallowe'en.  Scots Law News was rather reminded of the metaphysical poet Andrew Marvell addressing his coy mistress, whence our headline.  For those who don't know Marvell, the next line of his chat-up poem - and indeed the whole poem - can be consulted here.  Clearly starting from a sound proposition, his metaphysics led him to a mistaken conclusion.  Perhaps he had never visited Dundee?

Wed, 02 Nov 2010 18:11:33

Scots Law News learns from unimpeachable sources (STV and the Scottish Sun) that Naked Rambler Steve Gough was released from Perth Prison on Friday 29 October 2010 but, being as ever without apparel, he was then rearrested at the prison gates.

A brief (and of course naked) appearance from custody in Perth Sheriff Court on Monday 1 November, charged with breach of the peace, led to his being remanded in custody once more.

The pantomime season approaches. 

Wed, 26 Oct 2010 12:52:24

The long and much-anticipated decision of the UK Supreme Court in Cadder v HM Advocate was published on 26 October 2010 ([2010] UKSC 43).  As expected, the seven-judge court decides that the human rights of a person detained by the police without immediate access to a lawyer are thereby infringed; but the major hassle that might have occurred were the decision to have been fully retrospective is avoided by holding the judgment not applicable to already closed cases.The UK Supreme Court press release reads as follows:BACKGROUND The question in this appeal is whether a person who has been detained by the police in Scotland on suspicion of having committed an offence has the right of access to a lawyer prior to being interviewed.Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”). The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present.During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted. In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.JUDGMENTThe Supreme Court unanimously grants leave to appeal and then goes on to allow t[...]

Sat, 08 Oct 2010 10:53:30

This is the title of an e-Petition submitted to the Scottish Parliament on 8 October 2010. 

The petition called on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

The Scottish Parliament's Public Petitions Committee discussed the petition on 9 November 2010, and agreed to write to the Scottish Government asking what legal authority supported the statement that holding any inquiry into the case was beyond its power and authority, and in particular the inability of any inquiry to compel witnesses.  The petitioners, who gave oral evidence to the Committee, argued that there was no legislation restricting the Scottish Government's holding an inquiry, and that legislation existed under which witnesses could indeed be compelled to come before the inquiry.  The Scottish Government was aked to reply by 10 December 2010.

Fri, 07 Oct 2010 20:36:22

The Legal Services (Scotland) Bill completed its parliamentary passage on 6 October 2010, including the controversial provision that will allow non-lawyer ownership of Scottish law firms to the extent of 49%.

While the Bill still has to pass the procedures required under the Scotland Act 1998 before it becomes law, its failure to do so seems most unlikely to this observer, although the possibility of challenge in the courts remains.

There remain questions, however, about whether Tesco, or even Waitrose (currently planning expansion in Scotland), are really interested in buying into the provison of legal advice to consumers in Scotland.  No sign yet of bids from the supermarkets or, even worse, the unchastened banks. 

Much more plausible are the rumours reaching the ears of Scots Law News that smaller Scottish firms are planning networks and link-ups, possibly even more, with which to respond to the new business environment in which they now find themselves. 

That seems a more rational response, and one much more likely to succeed, than battles to the death in the last ditch of an "independent" legal profession.  In the end it is what you can do for your clients that determines your business future.

See here and here for previous stages of the debate.

Sat, 01 Oct 2010 19:35:54

The Lord Advocate, Elish Angiolini QC, announced on 1 October 2010 that she would stand down from her post after the next Scottish Parliament elections, which will be held in May 2011.

Ms Angiolini's career as the first woman and solicitor to be, first, Solicitor General for Scotland and then Lord Advocate, has been tracked here, here and here in Scots Law News.  It is one of the most remarkable careers in modern Scots law - and it doesn't seem likely that it is over yet.  A career prosecutor who reached the very top of that particular tree and who has only just turned 50 will surely have further plans.

We can also enjoyably speculate about who her successor will be.  Will any change in the political colour of the next Scottish administration have an impact on the appointment, or will there be a promotion from within the Crown Office?  It will be recalled that Ms Angiolini was appointed to high office under the pre-2007 Lab-Lib Dem coalition but continued on in office as Lord Advocate when the SNP took power - a departure from past convention.  Our money is on an internal promotion, but we are notorious for our inability to foresee the future.

Sat, 01 Oct 2010 19:35:19

Lord Bracadale's opinion in Imperial Tobacco Ltd Petitioners [2010] CSOH 134 (issued on 30 September 2010) upholds the validity of the Scottish Parliament's legislation prohibiting the display of tobacco products at point of sale and the use of vending machines to sell tobacco products.  Along the way he makes a number of striking remarks on the correct approach to the review of Acts of the Scottish Parliament.Most significant is Lord Bracadale's recognition of the Scotland Act 1998 as a "constitutional statute", the interpretation of which is to be generous and purposive, bearing in mind the constitutional values which the statute was meant to embody.  "The court," says Lord Bracadale, "should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable" (para 3).  In construing the scope of reservations of matters from the devolved competence of the Scottish Parliament, "it seems to me to follow from the approach of listing individual reserved matters that each of them should be given a narrow reading; otherwise the specific nature of the approach would not have been necessary" (para 18).  In order to determine whether or not sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 (summarised in the opening paragraph above) fell foul of the reservation of "the sale and supply of goods to consumers" in Schedule 5 section C7(a) of the Scotland Act, it was legitimate to examine the travaux preparatoire of the 2010 Act, including reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied the Bill and statements by Ministers during the relevant proceedings in the Scottish Parliament.  "That review of the background materials, the surrounding documents and the parliamentary debates," Lord Bracadale concluded, "points very strongly towards identifying the purpose of sections 1 and 9 of the 2010 Act as being to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter" (para 48).  He went on to reject a further argument that the provisions in question were beyond legislative competence as modifying a rule of Scots criminal law as it applied to reserved matters or as special to a reserved matter, there being no rule of Scots criminal law being "modified" by the 2010 Act.  Finally, Lord Bracadale turned to an argument that the 2010 Act modified Article VI of the 1707 Acts of Union and was thus contrary to Schedule 1 para 4(2) of the Scotland Act, which prohibits such modification of Article VI so far as it relates to freedom of trade.   Article VI reads:"That all parts of the United Kingdom forever from and after the Union shall have the same allowances, encouragements and drawbacks and be under the same prohibitions, restrictions and regulations of trade and lyable to the same customs and duties on import[...]

Sat, 01 Oct 2010 19:18:25

As seemed possible at the time of our last post on this subject back in August, the group of US Senators pursuing an inquiry into the Megrahi release sent representatives to Scotland in pursuit of evidence in late September 2010.  Whatever light the trip may have cast, there was certainly little sweetness in its immediate aftermath.

The representatives met Scottish Government officials on 16 September and also the Labour Party spokesperson Richard Baker MSP.  The officials' initial claim that their meeting had been "amicable" and a "helpful exchange" seemed to be contradicted later when the lead US Senator, Robert Menendez, was reported as saying that the initial prognosis that Megrahi had three months to live was made, not by a cancer specialist, but by the prison GP.  There were also claims of evidence that Megrahi had started chemotherapy in July 2009 (i.e. pre-release) that was not merely palliative but designed to prolong his life, thus exposing as a "lie" the Scottish Government position that his illness had become untreatable.  The representative reportedly said that "they (the officials) contradicted themselves repeatedly and made illogical statements/conclusions that were almost laughable if the circumstances weren't so serious." 

The Scottish Government response was pointed:

"The senator's staffer has got both these issues entirely wrong, and the senate committee is misinformed.

As has been stated many times, and was said several times at the meeting between Scottish Government officials and the staffer earlier this month, the advice to the justice secretary came from Dr Andrew Fraser, director of health and care of the Scottish Prison Service, and the prognosis was his.

It was Dr Fraser's responsibility to prepare the medical report for Mr MacAskill, and Dr Fraser who concluded that his clinical assessment was that a three-month prognosis was a reasonable estimate, drawing on the work of a range of specialists and other Scottish health service professionals involved in Megrahi's care from when he was first diagnosed with cancer in 2008."

 

 

Sat, 01 Oct 2010 19:17:07

The Daily Telegraph and the BBC published on 24 September 2010 leaked UK government lists of public bodies to be abolished or under review in the expected round of huge public expenditure cuts to be made in the autumn, the UK Supreme Court and the English Law Commission being amongst the group still up for review.

The lists appear to have been originated in mid to late August this year, so were already a month or so out-of-date by the time of their publication.  Scots Law News suspects that outright abolition is not on the cards for either body, but that both may be expected to do at least as much with less in future.

Your correspondent noted also the presence on the list of bodies under review of the Advisory Panel on Public Sector Information (APPSI), on which he has been Scottish Representative since 2005.  He is beginning to wonder if his membership of public bodies and aspirations to public service are good ideas, at least for the bodies concerned: so far, the Intellectual Property Advisory Committee and the Scottish Records Advisory Council are the ones to have bitten the dust.

 

 

Sat, 01 Oct 2010 19:16:19

Change in the Scottish judiciary following the re-establishment of the Scottish Courts Service under the headship of the Lord President was confirmed by the launch of their website on 20 September 2010.

The site is clearly informed by at least two things: the need for transparency in the age of freedom of information, and a desire to correct, as far as possible, public misperceptions of the judiciary and in particular the rationales and policies which underlie sentencing in criminal cases.

Scots Law News shares a general sense that this website is a Good Thing and a mark of progress in relations between the Scottish legal system and the rest of the world outside.  The test will be how well and regularly the site is maintained.  As the Scottish Courts website now illustrates all too well, a good start is good only for a very short time, and you have to move with your audience as it grows both more demanding and more sophisticated in the art of the possible.  But resources, ever more significant in the era of public austerity now upon us, will decide all in the end.

 

Sat, 01 Oct 2010 19:13:52

The death on 11 September 2010 of Lord Bingham of Cornhill, former Senior Law Lord and one of the architects of the still new UK Supreme Court, has been noted elsewhere in Edinburgh Law School's blawgs, but Scots Law News would wish to add a word or two of appreciation of a great judge and a fine man.

Your correspondent met Lord Bingham only twice but will always remember the first time in particular.  It was a dinner in a plush Westminster venue in the late 1990s at which the gathering, having fed and wined, was to discuss the future of the European Union.  Lord Bingham said little; but your correspondent foolishly allowed himself to be provoked into angry speech by the anti-European tone of many of the rather too self-satisfied and Anglo-centric other contributors around the table. 

That rant having had no discernible effect on the mood of the meeting, a post-prandial and despondent stroll in the direction of the St James' underground was interrupted by the sound of running feet behind; and there was Lord Bingham, empathetic and conversational while  properly avoiding anything European or difficult about the experience we had just shared.  We did however share the Tube to somewhere in west London, where his Lordship left me to continue my progress to a hotel by Heathrow from which I was due to depart for Edinburgh in the early morning.  A human moment for which your correspondent remains grateful; and one that to judge from obituaries here, here, and here was typical of the man.

 

 

Sat, 01 Oct 2010 19:11:05

Lord Woolman may have set a new record for the number of times the F-word has appeared in a civil case judgment in his opinion in McCormack v Hamilton Academical Football Club [2010] CSOH 124, issued on 1 September 2010.

Mr McCormack had been sacked for gross misconduct as assistant manager of the football club after a mere two months in post.  His claim was for wrongful dismissal.  One of the major aspects of the alleged misconduct was Mr McCormack's swearing and in particular his regular use of the F-word in public and in the relative privacy of the dressing-room.  Narrating the evidence, Lord Woolman finds himself forced to use the word also, no less than six times.  There were also a number of other incidents in which Mr McCormack's speech and conduct showed himself not inclined to tone it down a bit when in the presence of a member of the opposite gender (the club physiotherapist was female).

Nonetheless Lord Woolman comes to the conclusion that Mr McCormack was indeed wrongfully dismissed and puts the case out By Order for assessment of the damages to be awarded.  There is however no elaboration on the meaning and significance of the F-word and its derivatives such as we find in the English passing off and cybersquatting case French Connection Ltd v Sutton [2000] ETMR 341 (the case also responsible for your correspondent's only use of the F-word in print: see Contemporary Intellectual Property: Law and Policy chapter 17).

 

Sat, 01 Oct 2010 19:08:31

Brian Scott (45) and Ross Blaikie (31) were duly convicted in Jedburgh Sheriff Court on 10 September 2010 of fishing the Liddle Water near Newcastleton without a licence to do so having been previously obtained from the Environment Agency.  In the light of the information produced by our earlier post on the subject, this was not a surprising outcome.

But the result was nonetheless interesting, as Sheriff Kevin Drummond chose only to admonish Mr Scott and gave Mr Blaikie an absolute discharge - letting them both "off the hook", as The Scotsman put it in the fullest account of proceedings seen by Scots Law News.  mr Scott was admonished only because he had a previous conviction for poaching in 2001.

The report makes clear that there is a background of local contention.  The Environment Agency, it will be recalled, is in general a body with authority only in England but has powers over the fisheries in the River Esk system because that river flows through both England and Scotland.  The Liddle Water is part of the Esk system but actually defines the Anglo-Scottish border at the point where the two men were fishing.  It appears that in the past the Environment Agency had not made a practice of demanding licences for fishing on the Scottish side of the line but had begun to change its practice in about 2005.  This has been the subject of protest, and in effect the case of Messrs Scott and Blaikie was to test and highlight the position - in which it certainly succeeded.

Sheriff Drummond seems to have pointed the way to a compromise which might take the heat out of the situation, the Environment Agency's power to waive its licensing fees where they had adverse economic impacts in a rural area.  The hint seems to have been taken: on 21 September the BBC reported that the Environment Agency was "currently exploring the possibility of issuing a general licence with the fisheries' interests on the Scottish part of the Esk."

Sat, 01 Oct 2010 19:06:00

Our thanks to Mr James Duff, who has brought to our attention a judgment of Sheriff George Jamieson dated 5 August 2010, sitting in Dumfries, and holding Mr Duff's action of lawburrows against the Chief Constable of Dumfries and Galloway (in which the former represented himself) to be irrelevant when it was based upon claims of defamation made by the pursuer against the defender.

The case follows on from earlier decisions, one of which is noted here in Scots Law News.  But Sheriff Jamieson's decision is not based upon a view that lawburrows can only be taken out against threats of physical violence.  He concludes, following the opinion he had already expressed in footnote 73 of chapter 5 in his learned work on Summary Applications and Suspensions, that Stair, applying a liberal interpretive approach to the Lawburrows Act 1581, was to the opposite effect, and that Erskine's contrary view was based only on the fact that there was no direct authority or practice on the point.  Stair's position, also supported by Professor Walker in his Civil Remedies (1974), gains further weight from the much wider modern understanding of "assault" as going beyond the merely physical invasion of another person.  Sheriff Jamieson rejects an argument that when the opinions of two institutional writers conflict the court is bound by neither, preferring an approach of taking the view more consistent with modern understandings of social need.  While previous case law on lawburrows did not go so far, neither did it reject or even consider the possibility.

Sheriff Jamieson dismisses Mr Duff's action, however, on the basis that his pleadings referred only to possibly defamatory statements made by police officers some time in the past, with no grounds shown for apprehension that such statements would recur in the future.  He also upheld arguments about the limited nature of the Chief Constable's vicarious liability for the actions of his officers, and rejected human rights arguments that Mr Duff's actions should at least go to proof. 

Sheriff Jamieson's long and interesting note has not yet appeared on the Scottish Courts website.  It is to be hoped that it will soon do so.

Tue, 30 Aug 2010 13:11:30

Scots Law News is always interested by Anglo-Scottish cross-border issues (see previously here and here), but was especially fascinated by the latest episode concerning fishings on the River Esk, reported by the BBC on 29 August 2010.

The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border.  The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout.

This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk).  Their defence will be to challenge the legitimacy of the Agency's regulations.  The case begins before Sheriff Kevin Drummond on 10 September.  We will be watching eagerly for further news.

The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries.  See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35:  Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings);  Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).

Mon, 22 Aug 2010 13:37:49

Only with the greatest hesitancy does Scots Law News enter into the discussion of Lord Mackay of Clashfern's support for the Scottish Bible Society's leaflet on "The Bible in Scots Law" and its statement that the Bible is a "foundational source book for Scotland's legal system".The text of the leaflet has been helpfully made available on the Internet by our blogging colleague, the Lallands Peat Worrier.  From a historical point of view, there can be no doubt that the Bible has played a role in the shaping of Western law in general, in particular canon law, and that from there it has gone on to be influential in the development of other legal systems, including Scots law.  The pamphlet is right to say that the "institutional writers [were] informed by Roman and biblical law for civil law and by biblical law for criminal law".  Who can forget Lord Cooper's famous characterisation of Scots law as expounded by Stair? - "an original amalgam of Roman Law, Feudal Law  and native customary law, systematised by resort to the law of nature and the Bible, and illuminated by many flashes of ideal metaphysic."Yet there are some puzzles about the pamphlet.  It gives a long list of scriptural citations to illustrate themes of relevance to justice in 21st-century Scotland (exhaustively and critically analysed, incidentally, by the Lallands Peat Worrier), but there is a heavy preponderance of Old Testament over New.  Nor is there any mention of surely the most famous of all modern judicial references to the Bible (of which your correspondent was reminded by reading Elspeth Reid's account of the case in the recently published Scots Law Tales), the church-going Lord Atkin's deployment of the Parable of the Good Samaritan (Luke 10:29-37 and, note, New Testament) as a prelude to his definition of the duty of care in negligence in Donoghue v Stevenson.Perhaps, however, this omission is because Lord Atkin was careful to avoid a literal reading of the command to love his neighbour in determining the legal test he sought to formulate.  He could well see the difficulties which even such a seemingly attractive proposition might make if transformed into a legal rule.  And surely this is the right approach: to see in the Bible a potential sources of principles for the governance of human relations which has undoubtedly had (and probably continues to have, directly or indirectly) considerable influence in our society, but one that goes alongside many others, probably increasingly so in our multi-cultural and sceptical world, and must be treated with circumspection, critical thought and awareness that much of its content is informed by the ideas and values of times completely different from our own.  [...]

Mon, 22 Aug 2010 12:56:44

Scots Law News hasn't made a practice of carrying book reviews, and this post isn't intended to start one; but two books that recently crossed your correspondent's desk were sufficiently out of the ordinary run to seem to call for comment.One is a biography of Lord Justice Clerk Macdonald (1836-1919), whom we had cause to note in 2008 when his S1 car number plate - the first such plate in Edinburgh - was sold at auction for nearly £400,000.  The biography, simply entitled Sir John Macdonald Lord Kingsburgh (ISBN 978-0-9566149-0-2), is written by the subject's great-grandson, Norman Macdonald, who is a retired WS.  The book retails for an extremely modest £7.99.  It tells a fascinating tale in a clear straightforward way, and with frequent quotation, not only from its subject's own fascinating memoir, Life Jottings of an Old Edinburgh Citizen (1915), but from his many other writings and political speeches.  Macdonald was no jurist, except perhaps in criminal law, but he was otherwise a polymath with a special interest in technology who, had he lived today, would undoubtedly be an enthusiastic blogger and social networker if not a hacker.  He was also a Tory Lord Advocate at the time of the Highland land troubles of the 1880s, and a number of chapters are devoted to his involvement in resolute defence of the status quo of landownership in the Highlands and support of emigration as the solution to the problem of crofters and the landless poor.  Yet his own Highland background left him with some sympathy for the plight of these groups, and led to a refusal of support for some of the extremes to which the local forces of law and order went in order to suppress their insurrectionary behaviour.  Another interesting dimension which could perhaps have received more attention is his leading position in the Catholic Apostolic Church, an Irvingite sect of which Macdonald's father was a founding member of the Edinburgh branch.  Our Macdonald became first an Archdeacon then an Archangel in the church, the Edinburgh base of which was the church in the Broughton area now known as the Mansfield Traquair Centre.  The famous Phoebe Traquair murals inside the church were put there under Macdonald's close supervision.  It was from the Mansfield church that Macdonald's massive funeral procession began in 1919, before his interment at St Cuthbert's churchyard at the West End; there is a picture in the book (among a number of other illustrations) showing the procession setting off.  But, as Norman Macdonald says, his ancestor wrote nothing about his faith, and so we can only speculate as to how it affected his life and actions - for example, the horror of the death penalty which was so striking in a Tory Lord Advocate and judge of the Victorian era.One other fascinating detail in this l[...]

Thu, 28 Jul 2010 10:01:52

The US Senate hearings on the release of convicted Lockerbie bomber Abdelbaset al-Megrahi from Greenock Prison in August 2009, due to be held on 29 July 2010, have been "postponed" as a result of inability to compel the attendance of any of the witnesses originally called.

The declining witnesses included Scottish Justice Secretary Kenny MacAskill, Dr Andrew Fraser of the Scottish Prisons Health Service, Tony Hayward (Chief Executive of BP and Edinburgh University geology graduate) and Jack Straw (UK Foreign Secretary at the time of the UK-Libya "deal in the desert" in 2007).  Perhaps surprisingly the British Prime Minister (Tony Blair) who actually signed the Libya deal was not called.

Perhaps (a big perhaps) the US Senators may now proceed through  less public channels if they seriously want to talk any of those mentioned in the previous paragraph.  They might also care to read the already extensive material publicly available and focus their questions a bit more sharply.  There are questions to be asked and answered.

Postscript: It now appears from media reports that members of the US Senate committee wish to visit Britain in September and speak then to the reluctant witnesses.  This still doesn't seem to be the right approach, save perhaps for the audience back home; why should the witnesses speak to the Senators here any more than they would in the USA?  A little less public posturing and finger-pointing, and something useful might still emerge.  But somehow we doubt it.  (2 August 2010)

Thu, 21 Jul 2010 06:33:21

David Cameron, the British Prime Minister, and Barack Obama, the US President, are in "violent agreement" that last year's compassionate release of the convicted Lockerbie bomber by the Scottish Justice Secretary was a mistake.

The curious phrase - did Cameron and Obama perhaps have an arm wrestle in which neither was able to gain the advantage, or something even more serious? - was uttered by the Prime Minister during a joint press conference with the President after their summit meeting in Washington DC on 20 July 2010.

Mr Cameron has apparently committed to a review of UK Government papers relating to the UK-Libya deal in 2007 (for which BP admittedly lobbied) to be carried out by the UK Cabinet Secretary, while President Obama will not press for the full inquiry sought by four US Senators and Secretary of State Hillary Clinton.   But since Mr Cameron apparently knows already that the Megrahi release was not BP's fault, the review seems most unlikely to offer new insights into the whole matter.

The conjunction of BP's unpopularity in the USA after the Deepwater Horizon oilspill, Cameron's Washington visit, the approach of mid-term elections to the US Senate in November while Obama's approval ratings slump, and of course Megrahi's continued survival, has led to this early revival of the story (Scots Law News had thought it would probably hot up nearer the anniversary of the release).  The projected inquiry on 29 July by the US Senate Foreign Relations Committee should now keep it going a while longer.

Words from the Scottish play come irresistibly to mind:

It is a tale told by an idiot, full of sound and fury, signifying nothing.

 

Sat, 16 Jul 2010 17:08:11

The prospect of wheelie bins in the World Heritage site of Edinburgh's New Town has reared its ugly head once again, according to a report in The Herald for 16 July 2010.

Long-time readers of Scots Law News will recall that back in 2003 New Town residents led by members of the Court of Session judiciary residing in Heriot Row fought off an attempt by Edinburgh City Council to install wheelies in their elegant Georgian streets, preferring to continue to put out their rubbish on the pavements in the black poly bags the Council had hitherto provided for the purpose.  The joy with which the success of this resistance was greeted by New Town seagulls, foxes and rats was somewhat tempered by the cunning ploy which the humans used to deny them their plastic-coated repasts, viz hanging the black poly bags on the Georgian railings protecting New Town basements from the sudden arrival of careless passers-by, there to await the arrival of the presumably co-operative bin-men for collection.

Now, after seven long years of reflection, the Council has returned to the attack, proposing corrals of wheelie bins at locations to be determined after determination of how far the residents will be prepared to walk carrying their black bags for disposal.  One guesses that street corners will be the likeliest locations of the corrals.  The judges are reported to be mustering the forces of resistance once more, however.  But Scots Law News thought the most significant quote in the Herald piece came from the Cockburn Association, sworn upholder of the architectural integrity of the New Town: "“The fact the council are being sensitive and are trying to address everyone’s concerns is very positive.”  Sounds suspiciously compliant ...

 

Sat, 16 Jul 2010 15:11:59

For the first time Scotland will be represented as a separate jurisdiction at the quadriennial International Congress of Comparative Law, taking place in Washington from 25 July-1 August 2010.

Hitherto Scotland has been entirely subsumed within the United Kingdom submissions to the conference, but now a group of reporters has been assembled to cover separately topics which could be reported on from a Scottish perspective.  This results from an initiative of Professor David Carey Miller (Aberdeen Law School) and the relatively newly formed Scottish Association for Comparative Law.  There will still be a UK submission on a number of topics (as can be seen from the Congress programme) but, for the moment at least, nothing on English law.

The list of Scots law reporters and topics is as follows:

1A. Legal culture and legal transplants; Esin Örücü

IB. Religion and the secular state; Frank Lyall

ID. The role of practice in legal education; Elaine Tyre 

IIA. Catastrophic damages – liability and insurance; Gordon Cameron

IIB. Recent private international law codifications; Janeen Carruthers

IIC. Cost and fee allocation rules; Greg Gordon 
        Class actions; Sarah Bleichner

IID. Climate change and the law; Colin Reid

IVC. Are human rights universal and binding?; Jim Murdoch

VB. The exclusionary rule; Fiona Leverick

 

Fri, 15 Jul 2010 12:23:22

The Herald for 15 July 2010 reports a decision by Sheriff Andrew Cubie of Glasgow to remit to the court's ordinary roll a small claims action by a bank customer in respect of what she says were six years' worth of unwarranted charges made by her bank (Santander), on the ground that the legal issues raised were too complex for determination in small claims procedure. The effect of the decision is to expose the pursuer to the risk of unlimited expenses unless she is eligible for legal aid, whereas in small claims the maximum expenses liability is stated as follows in the official guidance on the Scottish Courts website -If the value of the claim is £200 or less, and the case has been defended, there will normally be no award of expenses. In this situation, any court fees paid will not be recoverable.If the value of the claim is between £200 and £1500, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is £150.If the value of the claim is between £1500 and £3000, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is 10% of the value of the claim. Even the successful legally aided in ordinary actions have to make a contribution to their own expenses which, if it exceeds the sum being sued for, renders the action pointless. Scots Law News has no information on what may be the pursuer's grounds of challenge to the fairness of the bank charges, although presumably the avenue of attack provided by the Unfair Terms in Consumer Contracts Regulations 1999 has been closed off by last winter's Supreme Court decision in Abbey National v Office of Fair Trading [2009] UKSC 6.  Sheriff Cubie's judgment is not yet available on the Scottish Courts website, nor is there any immediate comment from the Govan Law Centre which is representing the pursuer.  The Centre's website does however contain a good deal of material about its continuing campaign on the bank charges issue.  The Herald quotes Mike Dailly of the Govan Law Centre as saying, "The [banks'] strategy is clearly designed to deliver a death blow to consumers' claims."Meantime Scots Law News is reminded of the failure of Ian Hamilton QC to persuade a sheriff in Oban that his claim against Royal Bank of Scotland for fraud or negligence was simple enough to be a small claim, noted previously here.PS Further thoughts on this subject on Gavin Ward's Scots Law Blog here, drawing on personal experience (!), but also highlighting some pertinent comments about the small claims procedure in the Gill Review of Civil Justice. [...]

Fri, 15 Jul 2010 12:00:02

BP's difficulties in the USA following the Deepwater Horizon oil spill disaster in the Gulf of Mexico have led to a revival of American questions about the release of Abdelbaset Al Megrahi, the convicted Lockerbie bomber.

The Herald for 15 July 2010 reports that US Secretary of State Hillary Clinton has agreed to look into the concerns raised by four Democrat Senators that Megrahi's release from Greenock Prison in August 2009 was part of a deal between the UK and Libya to facilitate BP oil exploration in Libya.  It is the case that BP's position in Libya was arranged in 2007 and that part of the arrangement was a prisoner transfer agreement between the UK and Libya in which Megrahi's name appeared as a potential transferee.  One of the agitated Senators is quoted as saying:

"If it walks like a duck and quacks like a duck, then it just might be a corrupt deal between BP, the British Government and Libya."

The Senator's logic is not immediately apparent from this quotation.  The concerns he and his colleagues express seem anyway to ignore the facts that (1) Megrahi was released, not under the prisoner transfer agreement, but the rules of Scots law on compassionate release of sick prisoners; and (2) the release was made by the Scottish Government, which was not a party to the 2007 UK-Libya deal and indeed objected to it at the time.

There is also American concern about Megrahi's survival, now far longer than the three months which is the rule of thumb life expectancy for prisoners compassionately released on the basis that they are terminally ill.  However the Herald for 14 July carried a fairly detailed story saying that Megrahi was now receiving only palliative care for his cancer, chemotherapy having been given up, and that he might be carried off if he caught so much as a cold.

Postscript 17/7/10: there will be a Senate hearing on the issues on 29 July.