Month: May 2008

Welcome to Scots Law News in its new blog format!

Scots Law News has its origins in the days before the blog was invented, almost before the Internet was invented, in fact.  But the idea of a running commentary on items of interest around Scots law was obviously one just waiting for blog technology to come along.  Scots Law News is very grateful to Nick Dyson, Edinburgh Law School computing support officer, for undertaking the conversion of all 800 of the preceding entries, and at the same time ensuring the retention of our URL for the benefit of our faithful readers.  Being a blog should enable us to interact a little more openly with our readers, and we look forward to comments and contributions.

The relaunch provides an opportunity also to welcome Scott Wortley of the Edinburgh Law School to the editorial team.  He has in fact held this position since late 2007, and it is good to be able to acknowledge his sterling contributions in their proper place on our masthead.

 

The Gretna FC administrator declared the 40 remaining staff at the club redundant on 19 May 2008 (see previously Nos 772, 781). The curtain was not quite closed for the club, however, as a possible white knight, Glasgow businessman Paul Davis, emerged, albeit holding talks with the Scottish Football League about whether the side would be allowed to continue in the First Division of the league, to which it had been duly relegated at season’s end a few days before. The team’s Scottish Premier League swansong was a 1-0 victory over another troubled side, Hearts, on 13 May, some sort of revenge for defeat by the men in maroon after a penalty shootout in the 2006 Scottish Cup Final.

More than three years since his original conviction for murdering his girl friend Jodi Jones (see No 425), Luke Mitchell’s appeal was refused by the Court of Criminal Appeal on 16 May 2008. Like the Nat Fraser case ten days earlier (see No 792), the decision of the court was recorded by TV cameras and can be viewed on the BBC News website. The appeal was refused despite the court’s severe criticism of the “deplorable” way in which the police conducted interviews with Mitchell, the judges finding that there was nevertheless sufficient evidence to justify the conviction. A spokesperson for the police was reported as saying that the criticisms were receiving consideration, but that “this was a grave crime and our thoughts are with the [Jones] family at this time.” So were those of the Solicitor General Frank Mulholland QC, who commented in the now usual Crown Office press release formula that "The decision of the appeal court will be a comfort to Jodi's family that justice has been done. Our thoughts remain with Jodi's family at this time."

Scots Law News notes with pleasure the official launch of the digital, online version of the Records of the Parliaments of Scotland to 1707 on 15 May 2008, at the appropriate venue of the Scottish Parliament. The project has been run from the University of St Andrews since 1997, when it gained its initial funding from Tory Secretary of State for Scotland Michael Forsyth, who hoped that with this initiative alongside the earlier return of the Stone of Destiny (see No 2) Scottish national feeling would abate, his party would once more be returned to power in a pending general election, and any question of devolution or even independence could be safely put back in the cupboard of political ideas whose time had been and gone. A master stroke, evidently. Meantime the Labour-dominated Westminster Commons Scottish Affairs Committee helped keep the union on tenterhooks by reporting that control of Scottish elections should not be handed over to the Scottish Government and Parliament despite the fiasco of the Scotland Office-run Scottish elections in May 2007 (see Nos 644, 692 and 708). Scotland Office reactions still awaited.

Our thanks to Bernard Boase for drawing our attention to the Aberdeen Evening Express for 13 May 2008, which reports the clearing of Angus Plumb (56), who had been arrested in September 2007 after being found running through Irvine Place, Aberdeen at 3 a.m. in an unclad state. The charge against Mr Plumb was public indecency, but Sheriff Colin Harris held that for the offence to be made out a member of the public had to be offended. While the arresting policeman had given evidence that he had been offended, the learned sheriff discounted this on the basis that at the time he had done nothing to cover up Mr Plumb’s nakedness during the arrest process. Mr Tom Cruickshank for the defence, who should perhaps be brought to the attention of the Naked Rambler, clearly persuaded the court with his remarks as follows: “What is publicly indecent about being naked? We come into the world naked and we leave it naked. What’s indecent about it?” Scots Law News admires the rhetoric but wonders a bit about leaving the world naked as a general rule – it is surely contingent rather than as certain as our state on arrival.

Be that as it may, “public indecency” is of course the offence that was essentially created in Scots law by the significant decision of the High Court in Webster v Dominick 2003 SCCR 525, separating “lewd and libidinous conduct” from the previous “shameless indecency” (see Nos 243, 269 and 272). From the account of the law in the Criminal Law Reissue (paras 452-454) of the Stair Memorial Encyclopaedia, it seems that offended witnesses of the indecency are indeed of the essence of the offence. The discussion notes that therefore naked performances in theatres, strip clubs and the like are not instances of the offence, because the audience is there by consent. This has a particular Aberdeen resonance bearing in mind the recent case of Stuart Kennedy, the stripogram from the city who started out his act dressed in police uniform, and was found not guilty of various offences not including public indecency or, for that matter, breach of the peace (see No 788). It was further reported in this connection that Grampian Police had re-arrested Mr Kennedy in the early hours of 18 May and charged him again, this time with breach of the peace. On this occasion he was wearing camouflage gear, a flak jacket and a beret, but it is not clear whether his mode of attire had anything to do with his arrest. Scots Law News awaits further developments with interest, and notes, as the Naked Rambler knows (we think) to his cost, that in breach of the peace the test of whether the lieges were or were not alarmed is an objective one, not dependent (even in liberal, fun-loving Aberdeen) upon there actually being folk alarmed at the time (see No 357).

Mr Boase further draws our readers’ attention to a clash between his own naturist ambitions and the police in, of all places, Dorset (see http://commentisfree.guardian.co.uk/bernard_boase/2007/11/why_the_dressing-down_officers.html).

The Scotsman for 12 May 2008 reported on renewed linguistic problems in Scotland’s courts (see previously No 187), this time involving the Mendip Media Group (based in Dorset) which in 2006 won from Scottish Courts Administration the contract for transcription of proceedings in the criminal courts. It seems there have been problems with place names (Barlinnie becoming, rather splendidly, “Barrel Annie”), technical terms (“libelled” = “liable”) and even relatively ordinary words (e.g. “fanciful”, a word in constant use in criminal jurisprudence, rendered as “fanciable” – this, however, surely forgiveable in the context). Donald Findlay QC was, we believe, correctly transcribed by the Scotsman’s reporter as saying that the quality of the transcriptions was “bloody awful”. Mendip defended itself by reference to the “atrocious” quality of court recording systems and said it had hired transcribers based in Scotland to do the work; but if their instructions were given in best Dorset tones, perhaps the transcribers were in trouble before they ever began work. Scottish Courts Administration were however quoted as admitting problems with the recording systems, while maintaining that quality issues about the transcriptions were also being taken up with Mendip.

“Lede” = language (see Dictionary of the Scots Language http://www.dsl.ac.uk/dsl/, ‘lede’ No 3)

Since Scots Law News noted the first instance decision in the English case of Murray v Express Newspapers plc (since the locus delicti was a street in Edinburgh's Morningside – see No 667), it is here recorded for the sake of completeness that the Court of Appeal reversed on 7 May 2008 ([2008] EWCA Civ 446, http://www.bailii.org/ew/cases/EWCA/Civ/2008/446.html).  The case arose from the publication of covertly taken photographs of well-known children's author J K Rowling walking with her family in the aforesaid Morningside street, but was brought in the name of the family's youngest member, David, 18 months old at the time of the photography.  The court held that David's privacy rights had been infringed.  The judgments are a further important contribution to the rapid development of English jurisprudence on the subject of privacy; meantime in Scotland we still await the coming of any judicial decisions at all on the matter apart from X v BBC 2005 SLT 796, although intrepid privacy correspondent Elspeth Reid advises that the case of Ferris v Scottish Daily Record, which is thought to involve privacy issues, is wending its procedural way through the Outer House Rolls and was put out to order by Lord Uist on 23 April.

The Scottish Law Commission published its Discussion Paper No 138 on Liability of Trustees to Third Parties on 7 May 2008.  Not the most exciting subject in the world but even a quick look at the Commission’s news release (http://www.scotlawcom.gov.uk/downloads/nrs/nr_dp138.pdf) may get the trusts buffs going, with distinctions being drawn between the personal patrimonies of trustees and the trust patrimony.  Does one detect here the hand of Commissioner Gretton, appointed to Causewayside a year or so ago?

Scottish Labour Party leader Wendy Alexander MSP seemed to undermine the Calman Commission which she had so recently helped to set up (see No 791) when during an appearance on the BBC Scotland Politics Show on 4 May 2008 she called for an early referendum on the Scottish independence question, using the immortal phrase, “Bring it on”.  It is, however, SNP Government policy to hold the referendum in 2010, while Scottish Labour (and the other opposition parties) have been against any referendum at all, reflected in the exclusion of independence from the Calman remit.  Ms Alexander’s new approach failed to gain the enthusiastic (or indeed any) support from Prime Minister Gordon Brown who on 7 May said that she hadn’t been calling for a referendum but rather pointing up the hypocrisy of the SNP position on the subject.  Ms Alexander however continued to insist that she was calling for an early referendum.  Let’s hope that Calman can do his work for the Unionist case in time, or at least before both Alexander and Brown have departed the leadership scene.

Scots Law News has not previously given coverage to the Arlene Fraser murder case, in which her husband Nat was convicted of the crime in 2003 although his wife’s body had never been found since she went missing from home in 1998. On 6 May 2008 the Court of Criminal Appeal rejected Nat Fraser’s appeal against his conviction.

From a legal system point of view the case is remarkable because TV cameras were present in court to hear the judges (Lord Justice Clerk Gill and Lords Osborne and Johnston) read out summaries of their judgements (the result can be viewed here. The appeal was also of interest on substantive grounds. Evidence was given at the trial that Arlene’s rings were not found in her house immediately after she disappeared, but a week later were discovered in the bathroom, just after Nat had paid a visit to the house. The prosecution based its approach on the view that Arlene had been wearing the rings when abducted and killed and that Nat removed them from her body before disposing of it, and then brought the rings back to the house. The advocate depute described the rings as the “cornerstone” of the prosecution case, while the trial judge directed the jury that they could not convict unless they accepted that Nat had replaced the rings in Arlene’s house. After conviction, it emerged that police officers had seen jewellery in the bathroom before the official search for it began, but that this had not been known to the advocate depute, and had not been disclosed to the defence. It was argued that since this evidence had not been before the jury, and because the prosecution and the judge had laid such emphasis on the absence of evidence of this kind in the case against Nat Fraser, there had been a miscarriage of justice. The Court held, however, that the argument was misconceived. The trial judge had been guilty of a misdirection in making the ring evidence so critical for a conviction. There had, said the Court, been ample circumstantial evidence to justify a finding of guilt against Nat Fraser, while the misdirection had favoured rather than disadvantaged the defence. For the same reasons, the argument about non-disclosure failed.

The Crown Office marked the result in its now customary populist fashion by issuing a press release and quoting Solicitor General Frank Mulholland QC as saying:

"I am pleased that the Appeal Court has today upheld Nat Fraser's conviction for the murder of his wife Arlene. This was an appalling crime and the decision of the Appeal Court will be a small comfort to Arlene's family that justice has been done. Our thoughts remain with Arlene's family at this time."