Month: January 1999

On 23 February 2001 Stephen Kelly was found guilty in the High Court of Justiciary at Glasgow of culpable and reckless behaviour in having unprotected sexual intercourse with Anne Craig in the knowledge that he had been diagnosed as HIV-positive six months earlier and after telling her that he had tested negatively for the virus.  Ms Craig is now also HIV-positive.  Kelly had become HIV-positive as a result of “dirty” heroin needle-sharing with other prisoners while serving a sentence at Glenochil Prison.  He has been sentenced to a further five years’ imprisonment.

On 22 February 2001, Deputy First Minister Jim Wallace and Environment Minister Sam Galbraith published for public consultation a draft Land Reform Bill. The Bill contains: (1) a new right of access to land, including water, for recreation and passage, subject to compliance with the Scottish Outdoor Access Code; (2) provisions for the establishment of local access forums to manage access locally; (3) limitations on the right of access on grounds of health and safety, security, privacy and land management; (4) a community right to buy land, under which properly constituted and representative community bodies will be able to register an interest in land with which they can demonstrate a connection, so that if the landowner decides to sell or transfer, the community body will get a chance to buy the land, provided that it has majority community support for the purchase and plans for the land that are compatible with its sustainable development, to demonstrate that purchase would be in the public interest and pay a fair price.  There will also be (5) a crofting community right to buy, under which crofting communities can buy the land at any time, not just when it comes up for sale.  A source of support for communities wishing to buy and develop land will come from the Scottish Land Fund, established by the New Opportunities Fund on 26 February 2001. The text of the Bill (available at http://www.scotland.gov.uk/consultations/landreform/lrdb-11.asp) is noteworthy for its clear and straightforward drafting style.

On 5 February 2001 the Privy Council held, in HM Advocate v McIntosh 2001 GWD 6-206, The Times 8 Feb 2001, that the assumptions which, unless shown to be incorrect, a court is entitled to make that property of or expenditure by a person convicted of a drug trafficking offence were the proceeds of drug trafficking and thus liable to confiscation under the Proceeds of Crime (Scotland) Act 1995, are not incompatible with the presumption of innocence under Article 6(2) of the European Convention of Human Rights.  The contrary decision of the High Court of Justiciary (2000 SLT 1280, below, no 89) was over-turned.

On 31 January 2001 the Scottish court based at Camp Zeist in the Netherlands delivered its verdict in the trial of the two Libyans accused of planting the bomb which exploded on and destroyed PanAm flight 103 over Lockerbie on 21 December 1988, killing 270 passengers, crew and persons on the ground.  Abdel Basset al-Megrahi was found guilty of murder, but Al-amin Khalifa Fhimah was held not guilty.  The verdicts of the three judges were unanimous in each case. Al-Megrahi has been sentenced to twenty years’ imprisonment. It is understood that there will be an appeal.

It was reported in The Scotsman (24 Jan 2001) that Sheriff Brian Murphy, sitting at Jedburgh, has granted an interim interdict to David and Jean Warwick ordering H M Love & Co, sheriff officers, not to execute a summary warrant against the couple in respect of a £900 bill for business rates claimed by Scottish Borders Council.  The Warwicks argue that under Article 6 of the European Convention on Human Rights they are entitled to a full court hearing before the diligence can be performed.  Under local government legislation, local authorities may apply to a sheriff certifying that rates remain unpaid after a demand for payment has been made,and the sheriff may then grant a summary warrant authorising recovery of the amount due by a poinding and sale, an arrestment and forthcoming or an earnings arrestment.  In a poinding under this procedure, no charge is necessary, there is no report back to the sheriff on the poinding and sale and there is no need to apply to the sheriff for a warrant of sale (see Wilson on Debt, para 19.7).

On 23 January 2001 Ronnie Coulter was found guilty of contempt of court as a result of his “contemptuous and arrogant” conduct while giving evidence at the trial of Andrew Coulter (Ronnie’s nephew) and David Montgomery for the murder of Surjit Singh Chhokar in November 2001 (see No 88 below).  He was held to have given varying and incomplete accounts about the whereabouts of the murder weapon and his conversations with the two accused.  He will be sentenced on 2 February.

On 13 December 2000 Hamilton Sheriff Court upheld the claim of four East Kilbride women to a share in the proceeds of a winning National Lottery ticket (worth nearly £400,000) purchased by a work colleague.  The basis of the claim was that the five women had formed a syndicate using the same numbers each week.  The defender, who had originally denied to her colleagues that she had purchased a ticket in the week in question, stated that she had dissolved the syndicate four days before the purchase of the ticket because the other members were in arrears with their contributions.  She had continued to use the syndicate numbers only because she feared that someone else would win with them.  Following the win, the defender gave up her job and moved to Morecambe in Lancashire, where she and her husband bought a house.  It would appear that the syndicate agreement is not a sponsio ludicra because “as a general rule, contracts which can be viewed as collateral, or incidental, to a betting or wagering contract are not to be regarded as sponsiones ludicrae” (Stair Memorial Encyclopaedia, vol 15, para 768), and “in a joint adventure a person may sue the other gambler for an appropriate share of the winnings” (McBryde, Contract, para 25.22).