Month: February 1999

On 30 March 2001 the High Court of Justiciary issued its ruling in Lord Advocate’s Reference No 1 of 2000.  This concerned the 1999 decision of Sheriff Gimblett of Greenock that persons charged with malicious mischief against a barge, moored in Loch Goil and used in connection with the Trident nuclear programme, could be acquitted on the grounds that Trident was illegal in international law (see Nos 68 and 85 below). The sheriff’s ruling was overturned, the court saying that the deployment of Trident missiles as a nuclear deterrent was not illegal as a matter of international law.  (Compare the comment by S C Neff in (2000) 4 Edin LR 74.)  The opinion is also notable for its discussion of the criminal law defences of necessity and justification following the case of Moss v Howdle 1997 SCCR 215 (analysed by M Christie, (1997) 1 Edin LR 479). The opinion can be read on the Scottish courts website, http://www.scotcourts.gov.uk.

Controversy surrounded the trial of Edward Watt on a charge of rape in the High Court of Justiciary at Aberdeen (reported in The Scotsman, 24 March 2001). The prosecution had alleged that the complainer was unwilling to have intercourse. However, a motion of no case to answer was granted because there was insufficient evidence that her will had been forcefully overcome. Lord Abernethy ruled that the charge of rape required evidence of force or the threat of force: “to have sexual intercourse with a woman without her consent in itself is not rape”.  For further discussion of the role of force in the actus reus of rape, see V Tadros, “No consent: a historical critique of the actus reus of rape” (1999) 3 EdinLR 317.

The Scottish Executive published its draft Freedom of Information Bill on 1 March 2001 (available athttp://www.scotland.gov.uk/consultations/government/dfib-08.asp). This followed the issue in November 1999 of An Open Scotland, a consultation document on freedom of information. The Bill provides for a statutory right of access to information held by public authorities in Scotland;  a harm test of “substantial prejudice” to be applied before information can be withheld; a requirement to consider the public interest in disclosure; and the appointment of of an independent Scottish Information Commissioner with strong powers to promote and enforce the legislation. Once enacted, this legislation will operate alongside a statute of the UK Parliament, the Freedom of Information Act 2000, which will deal with non-devolved areas.

On 15 March 2001 Lord MacLean in the Outer House of the Court of Session upheld Mr Charlie McKeller’s petition against Aberdeen City Council seeking the removal of the communal rubbish bins (‘wheelie bins’) which the Council had placed outside his home in Wallfield Crescent, Aberdeen.  It was not necessary for Mr McKeller to invoke the European Convention on Human Rights, however.  The Council argued that the placing of the bins was justified as a traffic-calming measure under the Roads (Traffic Calming) Regulations 1994, and also as receptacles for road refuse under the Roads (Scotland) Act 1984, since ‘road refuse’ could include the contents of domestic refuse bags once scattered by seagulls.  The court held that neither measure provided a basis for the use of wheelie bins.

The Minister of Justice, Jim Wallace, outlined his plans for a Judicial Appointments Board in a speech at Strathclyde Law School on 14 March 2001.  The Board will be independent, contain a balance of lay and legally qualified members and be chaired by “a senior non-legal figure”.  All appointments to the Court of Session and shrieval benches will be advertised.  The Board will advise the First Minister of its preferred candidate together with a short list of other approved candidates in order of preference.  The First Minister will, as required by the Scotland Act 1998, consult the Lord President before making his recommendation to the Queen.  Initially the Board will be set up on an administrative basis but in due course it will be put on a statutory footing.