On 13 December 2000 Sheriff David Smith of Kilmarnock granted interdict against Mr David Rowlands of Irvine at the behest of 50 other residents in the cul-de-sac where he lives, ordering him not to switch on 8,500 Christmas lights, several singing Santas, figurines including Mary and Joseph, the Three Wise Men, a giant plastic candy cane, a talking tree, reindeer and elves in and around his house and garden before Epiphany/Twelfth Night (6 January 2001). In previous years the display was much visited by members of the public in their cars and by foot, and Mr Rowlands took substantial collections for charity (in particular Yorkhill Sick Childrens Hospital, Glasgow) at the site. In 1999 the neighbours had obtained a court order allowing Mr Rowlands to switch on his display in the afternoons only. According to press reports, Sheriff Smith wrote in his judgment this year: “The defender’s conduct amounts to nuisance. The evidence of the pursuers was that each of them had chosen to buy a house there because of the quietness, seclusion and freedom of traffic and its associated noise. It is clear the scheme is meant to be traffic free but the witnesses unanimously estimated the number of cars at peak periods at between 60 and 80 per hour. Some of the pursuers suffered damage to their grass by people driving over it. It is a reasonable inference that these people were coming to see the defender’s display” (Scotsman, 14 Dec 2000). Mr Rowlands has indicated that he intends to appeal and to invoke the European Convention on Human Rights.
On 11 December 2000 an Extra Division of the Court of Session affirmed in Souster v BBC 2000 GWD 40-1490 2001 SLT 265 that, although there was only one British nationality, Scots, English, Welsh and Irish people did have distinct “national origins” and that therefore the Race Relations Act 1976 could apply if a person suffered discrimination on the grounds of such origins. Souster, an Englishman, claimed that he was not re-appointed as the presenter of BBC Scotland’s Rugby Special programme because of his origins and that the job went instead to a Scot, Jill Douglas from Hawick. Souster’s claim will now be heard by an employment tribunal.
(90) Forgive us our debts as we forgive our debtors: bye-bye poindings and warrant sales – from 31 December 2002
The Abolition of Poindings and Warrant Sales Bill, introduced in the Scottish Parliament by the Scottish Socialist MSP, Tommy Sheridan (see No 72), was passed on 6 December 2000. Following an amendment proposed by the Scottish Executive, the abolition will come into force on 31 December 2002. Mr Sheridan subsequently spent the week before Christmas in prison for non-payment of a fine incurred as a result of his participation in an anti-nuclear protest at the Trident submarine base at Faslane. Meanwhile the Scottish Executive and the Scottish Law Commission are contemplating the problem of how to compel the payment of debts in Scotland from 1 January 2003. See the Scottish Law Commission’s Report on Poinding and Warrant Sale (Scot Law Com No 1777: April 2000).
The Human Rights Act 1998 came into force throughout the United Kingdom on 2 October 2000. Meantime, a number of major decisions on Convention rights and devolution issues in Scotland under the Scotland Act 1998 were issued in the second half of 2000. The system of planning inquiries was thrown into uncertainty by the decision in County Properties Ltd v The Scottish Ministers 2000 SLT 965 that the appointment by the Scottish Ministers of the reporter chairing such inquiries meant that they could not be independent and impartial tribunals within art 6(1) of the European Convention on Human Rights (see also the parallel decision of the High Court in R on the application of Holding & Barnes plc v Secretary of State for the Environment, Transport and the Region in England (Tuckey LJ and Harrison J), reported in The Times, 14 Dec 2000 and see Times Law Reports, 24 Jan 2001). In McIntosh Petitioner 2000 SLT 1280, the High Court of Justiciary held that confiscation orders against convicted drug traffickers under the Proceeds of Crime (Scotland) Act 1995 contravened Article 6(2) of the European Convention on Human Rights (but cf the contrary decision of the Court of Appeal in England, Times, 28 Dec 2000). In Lafarge Redland Aggregates Ltd v The Scottish Ministers 2000 SLT 1361 Lord Hardie held that the failure of, first, The Scottish Office, and then the Scottish Executive, to issue a decision on the fate of an application to develop a “superquarry” at Lingerbay on the Isle of Harris where the planning application had been made in 1991, an inquiry had closed in 1995, and the consequent report had been submitted in 1999, was a breach of Article 6(1) (fair and public hearing within a reasonable time). In Hoekstra v HM Advocate 2001 SLT 28, the first decision of the Privy Council on these matters, it was held that the Scotland Act did not give the Judicial Committee a general power to review interlocutors of the High Court of Justiciary; the jurisdiction existed only if there was a devolution issue under the Act. For the earlier history of Hoekstra, see below, no 78. In Montgomery and Coulter v HM Advocate 2001 SLT 37, a case arising out of the second Chhokar murder trial (see No 88 below) , the Privy Council held that the test for whether the right to a fair trial under art 6 was infringed by prejudicial pre-trial publicity was similar to that to be applied in a claim of oppression at common law (for which see Stuurman v HM Advocate 1980 JC 111; X v Sweeney 1982 JC 70), save that the art 6 right could not be balanced against the public interest in the detection and suppression of crime. Finally, in Brown v Stott 2001 SLT 59 the Privy Council held that the acts of the Lord Advocate as a prosecutor were capable of giving rise to a devolution issue, and over-ruled the High Court of Justiciary in holding that there was no breach of the right to a fair trial under art 6 in the provisions of the Road Traffic Act 1988 enabling a prosecutor to rely on a defender’s compulsorily obtained admission, in a case where she was charged with driving with excess alcohol in her blood, that she had been the driver of the car in question. The court recognised the need for a fair balance between the general interest of the community and the personal rights of the individual. It was also reported in the press that, at the behest of parents citing art 8 of the Convention (respect for private and family life), Perth and Kinross Council had ordered its schools not to allow filming or photography at their Christmas shows (Times 15 Dec 2000); and that Mr Duncan McKeller of Aberdeen was suing his City Council for acting in a way incompatible with his peaceful enjoyment of his possessions (art 1 of the First Protocol to the Convention), by installing communal rubbish bins (“wheelie bins”) on the street where he lives (Times, Scotsman 14 Dec 2000).
The First Minister, Donald Dewar, died on 11 October 2000, following a brain haemorrhage. He was 63, and had returned to work only the previous August following a triple heart-bypass operation in April. Mr Dewar was an LLB of Glasgow University and a solicitor who had been a partner in the firm of Ross Harper & Murphy. Jim Wallace took over once more as Acting First Minister. Under s 46 of the Scotland Act 1998 the Scottish Parliament must nominate one of its members for appointment as First Minister within 28 days of the office becoming vacant otherwise than in consequence of a resignation. The appointment is made by the Queen (s 45). Henry McLeish was elected as First Minister by the Scottish Parliament on 26 October 2000 and, having received the Royal Warrant from the Queen, was sworn in at the Court of Session the following day. In the ensuing Cabinewt reshuffle, Jim Wallace remained Deputy First Minister and Minister of Jusdtice, while the Law Officers were also unchanged.