While the House of Lords in its legislative capacity decided on 13 July 2004 that the office of Lord Chancellor should not be abolished under the Constitutional Reform Bill, it did not reach issues about the proposed Supreme Court (see No 365 for latest thinking in this area). The House did accept an amended clause on the need to protect judicial independence, extending it to Scotland, but adding a further sub-clause saying Subsection (1) does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose. So that’s clear then.
SCOTTISH LAW COMMISSION REFORMING THE LAW
The Scottish Law Commission issued its report Insanity and Diminished Responsibility (Scot Law Com No 195) early in July 2004. The report recommends that the criminal common law defence of insanity be replaced by a statutory defence that an accused lacked criminal responsibility by reason of mental disorder the presence of which at the relevant time meant that the accused was unable to appreciate the wrongfulness of the conduct in question. The existence of the mental disorder would normally be a matter for expert psychiatric evidence. The condition of psychopathic personality disorder should however be excluded from the defence. The plea of diminished responsibility should be enacted in statute substantially as stated in Galbraith v HM Advocate (see No 124), applying in cases of homicide only, to reduce the conviction to one of culpable homicide rather than murder; it should include mental abnormality based on a personality disorder. The common law plea of insanity in bar of trial should be replaced with a statutory plea of unfitness for trial.
The Commission is also consulting on the content of its Seventh Programme of Law Reform, the provisional list of topics being land registration, trusts, judicial factors, provocation, self-defence, coercion and necessity in criminal law; assignation of, and security over, incorporeal moveables. Other possible topics suggested are succession, unincorporated associations, and illegal contracts (including sponsiones ludicrae).
The plan to buy the Cuillins for the nation in order to enable the Chief of MacLeod to finance the renovation of the ancestral seat at Dunvegan Castle in Skye (see No 233) appeared to run into trouble in early July 2004. Highlands and Islands Enterprise announced that the repair bill at Dunvegan was likely to be of the order of £19 million, and that this was beyond the means of the various funding bodies. Other options were under consideration.
The Sunday Mail for 4 July 2004 reported that Alexander Elliot was suing his former counsel Gordon Jackson QC for £500,000 damages as compensation for negligence in handling Elliot’s defence to a charge of raping his two young daughters. Elliot was initially convicted but his appeal (reported as E v HM Advocate 2002 SLT 715) was successful, its main grounds having been the inadequacy of his defence, and that it had not been conducted in accordance with his express wishes. The case appears to be the first of its kind in Scotland since the House of Lords in Arthur J S Hall & Co v Simons  3 WLR 543 removed barristers’ (and by implication advocates’) immunity from suit for the way in which they conduct cases in court. It is worth noting that one of the issues possibly still in doubt after the Hall case is the liability of advocates in criminal cases. Gordon Jackson is also well known as a Labour MSP and as a leading legal aid lawyer.