Month: June 2008

Shetland independence campaigner Stuart Hill, aka Captain Calamity (see No 784), is going to declare the Shetland island Forwick Holm, independent of the UK and the EU on 21 June 2008.

The details are available on Shetland Action, Mr Hill's retitled website.  He says he is the island's owner and will rename it Forvik (Norse for 'bay of sheep') and make it a Crown dependency like the Isle of Man and the Channel Islands.  He has written to the Queen offering to become the Steward of Forvik, but one wonders of what exactly he will be steward; certainly not revenues, as the following passage from the website makes clear:

“There will be no income tax, VAT, council tax, corporation tax, or any of the other taxes instituted by the British government. The only tax is a contribution by every citizen towards the cost of running the state – the old Nordic scat. This will be initially set at a level of one forvik gulde per year – about £55 sterling at current gold values. Forvik Island will have its own coinage backed by gold, its own stamps, and will register companies in a tax-free environment. Offshore banking and financial services will follow at a later date.”

Sounds good; but can Mr Hill do anything about the weather?  All interested are invited to apply for citizenship at info@udallaw.com. 

The Times Good University Guide 2009, aimed at this year's school-leavers, was published on 18 June 2008.  Its top twenty UK law schools included Aberdeen (6), Dundee (9), Edinburgh (15), Strathclyde (16) and Glasgow (19th equal with Warwick).

It is good work for all the established five LLB schools to get into the top twenty; the main differentiator amongst them appears to be "Graduate Prospects", i.e. entry into employment with the degree.  Aberdeen is at 94%, Dundee 88%, Edinburgh 87%, Strathclyde 81% and Glasgow 82%.  Entrance standards appear to be highest at Edinburgh, Glasgow and Strathclyde (in that order), which is an interesting inversion of the employability statistic.

It has to be admitted, though, that apart from Dundee (up from 13th) all have fallen back on their showing last year, when Aberdeen was 2nd equal, Edinburgh 7th, Strathclyde 10th, and Glasgow 17th. 

The new LLB schools also slipped slightly except for Stirling, up to 70th from 71st.  The other figures are Robert Gordon's (from 35th to 36th), Napier (from 47th equal to 51st), and Glasgow Caledonian (from 56th to 60th).  Abertay wasn't in last year's list but is 86 in the 2009 edition.  So an interesting question may be why the vast majority of Scottish law schools have fallen back in the last year – just the way the Times does its league tables, or something more significant?

The Independent's assessment, published earlier this year, produced a similar outcome to that of the Times, save that Strathclyde was 10th and Edinburgh 11th in its table.  The Guardian, as ever, was different: Edinburgh top (8th in the UK), followed by Aberdeen (13), Strathclyde (14), Glasgow (15), Napier (24), Robert Gordon's (31), Dundee (32) and Glasgow Caledonian (48) (no others listed). 

 Good luck to those trying to decide where to apply.  For those still intererested in duck density as the best measure of university quality (see previously Nos 470, 582), Aberdeen is top of the Scots there too, albeit trailing far behind the UK's leaders, York, Leeds, Nottingham and East Anglia. 

The Creative Scotland Bill, which is designed to amalgamate the Scottish Arts Council and Scottish Screen in a single body to be known as Creative Scotland, became the first ever Executive/Government Bill to fail to pass the Scottish Parliament on 18 June 2008.

Although the Bill's principles were approved at Stage 1, its accompanying financial memorandum was not, and this was fatal to any further progress.

The Creative Scotland Transition Project, which had hopes of growing into a Taskforce once the Bill was through, must be disappointed. 

What, you may ask, will happen to Scottish culture now?  You might equally well ask the counterfactual, what would have happened to Scottish culture if the Bill had passed and gone on successfully through Stages 2 and 3?  Just possibly the question you ask does not affect the answer you get.

We at Scots Law News have referred before to the dangers inherent in ministerial blogging (see the unfortunate tale of Mike Russell MSP's trip to the Western Isles at 669).  Another blogging minister has discovered the dangers.

Tom Harris, the MP for Glasgow South, has a blog at http://tomcharris.wordpress.com/.  Mr Harris is also a UK Transport Minister.  His blog is regularly updated, self-deprecating and very readable (as well as displaying a commendable knowledge and appreciation of Doctor Who – after all how many MPs would interrupt their political blogging to remind readers of the late unlamented Adric?).

So, when Mr Harris blogged a brief piece about listening to an audiobook of Bill Bryson's "The Life and Times of the thunderbolt Kid" he must have thought it was business as usual.  The post – titled "Heaven knows we're miserable now" – comments on modern British society and contrasts life now with life as he was growing up:

"In our own country today, despite the recent credit squeeze, our citizens have never been so wealthy. High-def TVs fly off the shelves at Tesco quicker than they can be imported. Whatever the latest technological innovation, most people can treat themselves to it. Eating out – a rare treat when I was a child in the ’70s – is as commonplace as going shopping. And when we do go shopping, whether for groceries or for clothes, we spend money in quantities that would have made our parents gasp.

"We’re securer than ever, at least in international terms. There’s no equivalent of the Soviet Union threatening to bury is in a nuclear armageddon. The very real threat of terrorism hasn’t notably altered anyone’s patterns of behaviour or travel (which is as it should be). Job security is felt to be less than in the past, it’s true, but the corollary of that is the tremendous real-terms rises in incomes over the years and the consequent improvements in quality of life.

"There are more two-car homes in Britain today than there are homes without a car at all. We live longer, eat healthier (if we choose), have better access to forms of entertainment never imagined a generation ago (satellite TV, DVD, computer games), the majority of us have fast access to the worldwide web, which we use to enable even more spending and for entertainment. Crime is down."

However, he then went on to ask,

"So why is everyone so bloody miserable?

"Are our crippling levels of cynicism and pessimism simply part of the human condition? Were we always like this? Or is a consequence of the “instant gratification society” that, having been instantly gratified, we must resent the society that manipulates our desires in this way?"

Sadly for Mr Harris, it's the question "So why is everyone so bloody miserable?" that has picked up media interest.

The Daily Mail has picked up on the quote (indicating that Mr Harris perhaps did not fully consider his usual self-imposed directive "would I be comfortable if this found its way into, let’s say, The Daily Mail?" ) and reported that Philip Hammond (the Conservative Treasury spokesman not the GP, comedian and occasional Private Eye contributor) has said,

"Tom Harris's breathtaking comments raise Labour's arrogance and complacency to a whole new level. Like his boss, Gordon Brown, he clearly lives on a different planet from ordinary hard-working families  –  who are struggling with soaring living costs, stagnant earnings and falling house prices.  The short answer to Mr Harris's question asking why everyone is so miserable is, "Because we've got Gordon Brown as our Prime Minister"."

Mr Harris has therefore found himself touring media outlets (including Radio Five Live, GMTV (for his sins), and the Today programme), explaining that the story as reported, is not what he'd said.

Jamie McGrigor MSP's Scottish Register of Tartans Bill (see nos 608, 642, 674, and 676) was approved at Stage 1 by the Scottish Parliament on 19th June (without division) and now progresses to Stage 2.

The bill proposes that the register would be maintained by the Keeper of the Records of Scotland – preventing a clean sweep for the Registers of Scotland, which may soon be the home of the Register of Crofts (following the recommendation of the Committee of Inquiry on Crofting) and which at the end of June takes control of the Register of Sites of Special Scientific Interest (under s 22 of the Nature Conservation (Scotland) Act 2004 – following The Nature Conservation (Scotland) Act 2004 (Commencement No. 3) Order 2008 SSI 2008/193. 

Reg 3 (1)(g) of the Register of Sites of Special Scientific Interest Regulations 2008 (SSI 2008/221) provides that the Register must contain the "list of acts or omissions as required by section 3(4)(a)(iii)" of the 2004 Act – which  are the "acts or omissions which appear to [Scottish Natural Heritage] to be likely to damage that natural feature".  It is currently not clear if such acts include the construction of golf courses (on which see 723, 732, 741, and 757).

 

 

When not preserving the integrity of Scots law (see nos 675, and 745)  Scots Law News's favourite sheriff, Sheriff Derek Pyle deals with the usual matters of sheriff court business.

He presided over an early procedural stage in a criminal case in Inverness sheriff court reported in the media on 19th June 2008.  The case involves a care worker facing charges that she had assaulted and abused residents at a nursing home in Inverness.  Among other charges the accused is alleged to have committed a breach of the peace by placing oversized false teeth in one resident's mouth while laughing at him and comparing the resident to a racehorse.

The story is reported by the BBC under the tasteful headline "Care worker denies Red Rum jibe".

The accused has pleaded not guilty and the case proceeds to trial in September.

The Sexual Offences (Scotland) Bill was introduced to the Scottish Parliament on 17th June 2008.

The bill is largely based on the Scottish Law Commission Report on Rape and Other Sexual Offences (Scot Law Com no 207).  The bill defines 'consent' and will replace the common-law crime of rape with a broader statutory offence – which is will encompass male rape.  The bill introduces a number of new statutory offences including provisions dealing with sexual exposure, the 'spiking' of drinks for sexual purposes and coercive sexual conduct, including sexually offensive emails or texts.

 Justice Secretary, Kenny MacAskill, praised the Scottish Law Commission work on the area but noted that reform of the law was not a cure-all for the problem of low conviction rates in the area (a concern regularly expressed in the area and on which see 760, and this post of 17th June, and the concerns underpinning the references to the SLC on the law of evidence following the World's End murder acquittal (703)).

"Of course, reform of rape law will not, on its own, improve low conviction rates. Other on-going work is vital – improving investigation and prosecution of rape and sexual assault, reviewing law of evidence and challenging public attitudes to rape and sexual assault. However this Bill will, together with this other work, contribute to improving the criminal justice system's response to crimes of rape and sexual assault. "

The Scottish government has not accepted all of the Scottish Law Commission's recommendations – rejecting the recommendation to decriminalise all consensual sexual activity between 13-15 year olds; and the recommendation to decriminalise consensual adult sexual violence.

On the former Mr MacAskill said,

 "The Commission made a clear distinction between non-consensual or adult predatory sexual behaviour and consensual sexual activity between older children and we have recognised that distinction. But having considered the proposal to decriminalise sexual intercourse between 13-15 year olds, and the various consultation responses, we have decided against such a change. The law must continue to make clear that society does not encourage sex between children, as it can be a cause for concern for a child's welfare, even where apparently consensual."

Scots Law News notes with sadness the sudden death of Lord Johnston, reported briefly in The Scotsman on 16th June. 

Lord Johnston was a graduate of Cambridge and Edinburgh Universities and was called to the bar in 1967.  He was appointed a QC in 1980 and served as Treasurer and subsequently dean of the faculty of advocates from 1989 until his appointment to the bench in 1994.  He was chairman of the Scottish Division of the Employment Appeal Tribunal from 1996 to 2005, and in recent years had served in the Inner House.

In recent months he sat in the appellate court that heard the Nat Fraser appeal (see 792).  And for regular Scots Law News readers his involvement in the lawburrows case Duff v Strang [2008] HCJAC 4 (see 734) where he delivered the opinion of the court is particularly noteworthy.

It is a truth universally acknowledged that corporate holders of intellectual property rights have a genius for getting IP a good name. 

The latest evidence for this is the story of an Edinburgh couple’s prospective domain name battle with the estate of C S Lewis (represented by US international law firm Baker McKenzie) following their acquisition of the name “narnia.mobi” from Internet registration company Fasthosts (price a mere £70).  The idea was apparently to make an 11th birthday present to their son.  He is an enthusiast for the Narnia books written by the late Lewis (for more on that see here), and the birthday would apparently roughly coincide with the UK release of the film of the second Narnia book, Prince Caspian, taking place on 19 June.  The boy could then use the name as part of his email address.  A little strange, however, that the purchase took place in 2006 – or so it is reported – anticipating a birthday and a film launch to take place in 2008.

After some preliminary exchanges between the couple and Baker McKenzie during May this year, it now appears that the former have been served with a 128-page document narrating the estate’s complaint to the domain name dispute resolution service run by the World Intellectual Property Organisation (WIPO), based in Geneva, and requiring a reply by 23 June.  The complaint is that “The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights” and that its use by others is in bad faith.  It is understood that the couple’s reply is going to be short.  The outcome is awaited with interest.  For sceptical takes on the matter from Edinburgh's pet Technollama and London's IP Kat see here and here.

Suggestions that C S Lewis would not have approved of the way in which his current representatives are handling his creations may, however, fall short of the mark.  His fellow-Inkling and fantasist, J R R Tolkien,  was certainly not one for allowing his copyright to fall into desuetude, as any reader of his published correspondence will soon discern, and there is no reason to think that the prolific and popular Lewis’ attitudes would have been any different. 

 

The Scottish Law Commission has added to its workload with another government inspired project (further to those relating to the World's End case – see no 703, consumer remedies, and damages for wrongful death).  As well as his ongoing work on land registration Professor George Gretton must now oversee the Scottish Law Commission work on level crossings, a joint project with the Law Commission of England and Wales. 

The project was commenced at the suggestion of the Department of Transport and the Commissions intend to publish a joint consultation paper in 2009.

The SLC note that,

 "Level crossings present the largest single risk of catastrophic train accident on Britain’s railways, but the current legal framework is complex and outdated. The aim of this project is to make recommendations to modernise and simplify the legal framework.

"There are over 10,000 crossings in Great Britain. The current law on level crossings is complex, outdated and difficult to access, creating problems for regulators, owners and operators and increasing the safety risk for users. The project will be concerned with examining the legal framework with a view to its modernisation and simplification. The aim is to make recommendations with a view to reforming the framework so that it is more coherent, accessible and up-to-date, allowing for better regulation and reduction of risk."