(129)  Scottish Law Commission at work

The Scottish Law Commission produced two important discussion papers in July 2001.  One (Disc Paper No 115) on the age of criminal responsibility proposes abolition of the rule that a child below the age of 8 has no criminal capacity alongside retention of the exceptional procedure of prosecution of children under 16 with the existing statutory and other protections.  The other (Disc Paper No 114) proposes abolition of the rule in the notorious case of Sharp v Thomson 1997 SC (HL) 66 (for which see K G C Reid, (1997) 1 Edin LR 464).  This will be achieved by improving the flow of information about insolvency processes to the various registers while also ensuring that an acquirer who registers promptly is unaffected by the insolvency of the seller.  The reform is not confined to land (the subject-matter in Sharp) but extends to other registered property such as company shares and certain types of intellectual property as well as to rights other than ownership, such as security rights, leases and other rights constituted by registration.  The discussion papers can be viewed at the Commission website, http://www.scotlawcom.gov.uk.  For recent developments in the courts after Sharp, see G L Gretton, (2001) 5 Edin LR 73.

(128)  War crimes: the Gecas case

A warrant for the arrest of Mr Anton Gecas (84), an Edinburgh resident, was issued on 27 July 2001.  The Lithuanian Government has been seeking the extradition of Mr Gecas to face charges of killing mostly Jewish civilians in Lithuania and Belarus during the Second World War, charges which Mr Gecas denies (see below No 107).  Mr Gecas is currently receiving treatment in an Edinburgh hospital following a stroke in May.

(127)  Child witnesses in child abuse cases

Controversy broke out following the collapse on 25 July 2001 of a trial of six men accused of child sex abuse.  The trial had been running for 15 days.  The two victims had been subjected to cross-examination for extended periods, one spending 25 hours in the witness box.  The trial judge, Lord MacLean, brought the trial to an end after the Crown moved to desert the case. Lord MacLean told the jury it would not be in the best interests of the second child to resume giving evidence after a doctor examined the boy and said that he could be psychologically damaged by continuing.  It appeared that the recommendations of a 1999 report on how children give evidence in trials had not been implemented.  The children’s mother has threatened to sue both the discharged accused and the Scottish Executive, while the accused are concerned that they have no way to establish their innocence of the charges against them.

(125)  Temporary sheriffs and human rights again

On 24 July 2001 the Privy Council ruled in four conjoined test cases that all criminal prosecutions before temporary sheriffs after 20 May 1999 (the date when the Lord Advocate became a member of the Scottish Executive under the Scotland Act 1998, s 44(1)(c) and so subject to the requirements of the European Convention on Human Rights) were invalid unless the accused could be said to have waived their right to a fair trial before an independent and impartial tribunal under Art 6(1) of the Convention.  Failure of the accused in such prosecutions to take the Convention point did not amount to a tacit waiver of the right.  See Millar v Dickson, The Times July 27 2001.  Prosecutions before temporary sheriffs were held to be in breach of Art 6(1) on 11 November 1999 in Starrs v Ruxton 2000 JC 208 (see below, No 70).  It is thought that over 9,000 trials were held before temporary sheriffs between 20 May and 11 November 1999, and 121 appeals had been lodged up to the time of the test cases.