Month: June 2008

Further to the Lord Advocate's comments on Scottish rape law (no 760) and the proposed introduction of a Rape and Sexual Offences Bill (further to the Scottish Law Commission report on the subject – no 718) the Scottish government has established an expert advisory group on sexual crime comprising representatives from Crown Office and Procurator Fiscal offices, Rape Crisis Scotland, and the Association of Chief Police Officers in Scotland.  The group is intended to scrutinise policy and practice in the prosecution of sexual offences to address concerns that conviction rates for rape and sexual offences are too low.

 In the launch of the group Andrew McIntyre, Head of Victim Policy at the Crown Office, said,

"There is no doubt that this is one of the most challenging areas of crime to prosecute. Analysis of the Criminal Proceedings Statistics published last week by the Scottish Government shows that the widely reported conviction rate figure of 3.9 per cent, which is obtained by comparing reports to the police with convictions at court, is down to 2.9 per cent for 2006-07.  This figure does require to be treated with caution as incidents reported to the police in one year can result in a conviction at court in another year; and it includes cases where the police have insufficient evidence to report to the Fiscal, and cases where the Fiscal has insufficient evidence in law to bring a prosecution. However it is a widely reported and recognised indicator of the difficulties in obtaining a conviction in the crime of rape.  The same statistics do show that, where we were able to bring a prosecution for rape before the court, 41% of accused people were convicted."

 

Representatives of the pressure group Scotland Against Crooked Lawyers are a familiar sight to those in and around Edinburgh.  Their presence outside the Scottish Parliament offices – prior to the move to Holyrood – acted as a useful indicator to those travelling by LRT bus that it was time to get off for the courts.  The group stood at the Scottish parliamentary election attaining 322 votes in Lothian region, some 139 votes ahead of the Enterprise Party but 545 votes behind Adam Lyals Witchery Tour party (which incidentally also outperformed UKIP).  The SNP topped the regional list with 76,019 votes – amounting to some 26.5% of the vote.  Scotland Against Crooked Lawyers had 0.1% of the vote – and consequently lost their deposit.  There were 9,084 spoiled votes in Lothian region, and a regional turnout of 287,039 valid votes.

 For the perseverant Scotland Against Crooked Lawyers that was not the end of the story.  They raised a sheriff court action against the City of Edinburgh Council.  Their plea was simple, relying on the well-known problems in the running of the election (see entries 692, and 708)

"the defenders ran the election on behalf of the Scotland Office. That the pursuer paid the defender £500 deposit on the 2nd April 2007 for himself and John Lovie to stand in the Lothian Region. That the pursuer was never informed that the procedure for the 2007 election had been altered and entirely different from the 2003 election. That the pursuer only became aware of the changes and the advise (sic) given to the defender on the day of the election and after the election it was made known that the defender had been advised not to run the reginal (sic) and the constituency votes on the same ballot paper. If the pursuer had been made aware of the changes he would not have paid the deposit. That as a result of the changes made thousands of ballot papers were made void and putting the pursuer at a disadvantage in the election. The circumstances are exceptional and the pursuer has contacted the defender requesting his deposit returned, the defender has refused, making this action necessary"

The case was heard by Sheriff Lothian who dismissed the small claims action.   Scotland Against Crooked Lawyers appealed.  The case has been decided by Sheriff Principal Bowen on 29th May 2008 (at http://www.scotcourts.gov.uk/opinions/SA264807.html )

He noted that the case was based on two grounds,

"The first is that the election was, in [their] words, a fiasco because of the large number of spoiled papers arising from a lack of clarity in the instructions as to how to vote. This, [they] maintained, constituted in effect an unsatisfactory service provided by the defenders for which his organisation was entitled to reimbursement. Second, [they] would maintain that because of the large number of spoiled ballot papers it was impossible for the defenders to say that the party he represents failed to secure one twentieth of the vote, that being the statutory justification for forfeiture of the deposit (see Rule 67(7)) of the Scottish Parliament (Elections etc) Order 2007 (SI 2007 No 937). "

 The appeal is dealt with briefly by the sheriff principal at para (7),

 "Whilst I have a degree of sympathy for Mr Burns and the organisation he represents in having taken part in an election which was well recognised as having a number of unsatisfactory aspects, I am nevertheless in no doubt that this action is wholly misconceived. Until such time as the pursuers successfully challenge the election return, the result stands. That result did not, it would appear, produce a figure which showed that the pursuers had obtained one twentieth of the requisite vote and in consequence by operation of law their deposit was forfeited. It is to no avail to suggest that the spoiled ballot papers might have contained sufficient votes to put the pursuers into a more favourable position. So long as the election return stands the spoiled papers are invalid and do not count. The election result itself could only be challenged by virtue of a petition to the Court of Session in terms of section 120 of the Representation of the People Act 1983. In consequence the present action might be viewed as a side door attempt to challenge the election result which the law does not permit. Equally the concept of applying rules applicable to the satisfactory supply of goods and services is wholly inapplicable to the present circumstances. The defenders carried out their statutory function of conducting the election and produced a result which stands as a matter of law. They were not providing "a service"."

The proposed increases in civil court fees, referred to in our recent entry, have generated some controversy.  The Scotsman of 9th June reports much consternation about the increases.

 The Scottish Courts Service have proposed the increase in fees in order to make the civil justice system more cost efficient.  SCS notes that the proposed fees will see sheriff court fees increase on average by 31% and Court of Session fees by 49%.  The fee increases will not apply to those on civil legal aid.

 The Scotsman publishes some examples of the proposed increases to fees and notes that the issuing of an initial writ in the sheriff court increasing from £57 to £75; a simplified divorce will increase from £70 to £90; and a proof in a personal injury case from £230 to £500.

The increases have provoked criticism from both branches of legal practitioner.  Richard Keen QC, dean of the faculty of advocates, has said

 "This is going to hit hardest some of the most vulnerable in society, such as people who suffer family breakdowns and women who need protection from violent partners."

And Elizabeth Welsh, the vice president of the Family Law Association stated that

"With civil legal aid being so hard to access, these court fee increases are just another barrier to accessing justice. People are already struggling to be able to afford to go to court.  There is a principle at stake here. Saying the court users should pay for the costs of running the courts fails to recognise that access to justice is a broader social issue. It's in the interest of everyone in society that people who, for instance, suffer domestic abuse, are not barred from going to court because of prohibitively high fees."

The examination season has meant that some government announcements made in recent weeks have escaped our regular round-up.  Some of the more important from a legal perspective are gathered here.

In 2006 the former Scottish government had issued a consultation paper on whether the rule that spouses could refuse to give evidence against each other should be repealed.  On 5th May Justice Secretary Kenny MacAskill announced that this rule would be repealed.  He stated,

"For too long, spouses have been able to escape justice thanks to laws that mean their other half does not have to give evidence against them. This is not acceptable and has resulted in the past in people marrying their partners prior to trial for example on a charge of abusing their children just to avoid having to give evidence against them. That is why the Scottish Government will act to close this loophole. Changing the law will boost protection for children and prevent couples covering up for each other.  It is the duty and responsibility of every citizen to protect our children and prevent crime. It is entirely unreasonable that where a child is assaulted or a crime committed justice is thwarted due to a marriage. That loophole needs to be closed for justice to be served. Marriage is an important institution and should not be a means of avoiding answering awkward questions in court."

We noted earlier in the year that the Judiciary and Courts (Scotland) Bill was making its way through Parliament (and Stage 2 begins before the Justice committee of the Scottish Parliament on 10th June 2008).  In the Stage 1 report of the Justice committee concern was expressed,

 "about firstly the considerable administrative and organisational burdens to be placed on this and any future Lord President and secondly its reservations about moving direct authority for the Scottish Court Service away from Scottish Ministers"

moving the Committee to seek

"independent quantifiable evidence about the impact that the Bill’s proposals could have on judicial time, as the Committee is concerned that the impact could be to detract from the judicial role."

The government responded to this request during the Stage 1 debate on the bill and appointed Douglas Osler – a former CHief Inspector of Education in Scotland,

"To reach an independent view on the extent to which new functions proposed for the judiciary in the Judiciary and Courts (Scotland) Bill will require the commitment of additional judicial time to administrative tasks, and to quantify that commitment of additional judicial time."

The review was due to be completed before the commencement of Stage 2 of the bill before the Justice Committee.

 And on 6th June the Scottish Courts Service laid Fees Orders that would see some increases to court fees.  The orders are: The Court of Session etc. Fees Amendment Order 2008; The High Court of Justiciary Fees Amendment Order 2008; The Sheriff Court Fees Amendment Order 2008; and The Adults with Incapacity (Public Guardian's Fees) (Scotland) Amendment Regulations 2008.

 

During the past two weeks two unfortunate utterances from the Scottish Government have been noted by the Scots Law News team.

On 21st May Richard Lochhead, the fishing secretary, was on Newsnight Scotland being questioned on the Scottish government's fishing policy.  When questioned by Gordon Brewer on the legality of one aspect of the policy Mr Lochhead surprised Brewer by stating,

"I'm a Scottish minister.  I don't do things that are legal."

This slip was subsequently corrected as was the press release issued to journalists in the name of Jim Mather, Enterprise Minister, on 5th June.  In response to a question from Scottish Conservative leader Annabel Goldie on the number of drug finds in Scottish prisons over the past five years the response stated simply,

"Blah."

Entering the spirit of things a spokesman for the Conservatives replied,

 "D'oh."

The Scottish Legal News service was launched on 5 June 2008.  Details here from an email received from organizer Baktosch Gillan:

"Scottish Legal News is a new, free, daily service … a joint venture between Scottish News Agency and the Scottish Legal Action Group.

Scottish Legal News will provide the legal community in Scotland with a free daily digest of news, events and jobs. It will carry vital daily intelligence for lawyers in all spheres of legal activity.

It will cover civil and criminal law, commercial, conveyancing, and Crown issues (including announcements from the Scottish Court Service, the Lord Advocate, the Solicitor General, ACPOS, as well as PF and Judicial
appointments, announcements, etc.)

The daily email newsletter will be supported by a website ScottishLegal.com, which will host sections on IT, CPD, the Universities and a Bookshop service by Avizandum.

To register for your free edition of Scottish Legal News, simply email:
newsdesk@scottishnews.com. Also, email your press releases to: newsdesk@scottishnews.com."

Good luck to the newcomer!

Perhaps inevitably, the life of Gretna FC drew to a peaceful close on 3 June 2008.

The Scottish Football League had earlier decided that in the light of uncertainty about the club’s ability to fulfil its fixtures next season that it should drop down to the league’s Division Three.  This effectively meant the end of the interest of possible white knight, Glasgow businessman Paul Davis, and therefore the end of Gretna.  The administrator concluded that the club could not continue as a business and took the decision to resign from the SFL before it was expelled.  It seems unlikely that politicians (or anyone else) will be using the club’s story as a metaphor for improbable rises and success stories any more. 

Sic transit gloria mundi.

 

Ladies Smith, Dorrian and Paton formed the first all-female Division of the Inner House of the Court of Session on 29 May 2008, in the trade mark/passing off case of Wise Property Care Ltd (t/a White Preservation) v White Thomson Preservation. 

The opinion of their Ladyships is awaited with interest.  In the meantime, James Chalmers provides us with material for reflection in this historical footnote:

“I have a photocopy from a journal called “Women in Council” in 1968 reprinting an Edinburgh Evening News account of the first ever "all-female" court in Scotland, in the sense of a sheriff court sitting where the sheriff-substitute (Isabel Sinclair QC), fiscal depute (Margaret Kernohan) and sheriff clerk depute (Jaye Telfer) were all women.”

As James says, we have come a long way over the last 40 years in Scotland, haven’t we?

The House of Lords held on 21 May 2008 that actions of damages in respect of child abuse at a children's home called Nazareth House, Cardonald in Glasgow, carried out in the 1960s and 1970s, were excluded by the limitation provisions of the Prescription and Limitation (Scotland) Act 1973 (Bowden v Poor Sisters of Nazareth; Whitton v Poor Sisters of Nazareth [2008] UKHL 32).

The limitation period in personal injuries actions is three years under the 1973 Act, but the court has a discretion to extend the period “if it seems to it equitable to do so”.  The Lord Ordinary had decided that the discretion should not be exercised in these cases and this had been upheld in the Inner House; the House of Lords unanimously affirmed that it was not this court’s function to review the exercise of discretion any further.  No attempt to invoke the Human Rights Act in this case, following earlier failures of arguments about interpreting the 1973 Act to give effect to Convention rights (see K v Gilmartin’s Exx 2004 SC 784; B v Murray 2007 SLT 605; also previously No 718). 

Note also paragraph 4 of Lord Hope's speech:

"The appellants have drawn attention to the fact that on 1 December 2004 the then First Minister, Jack McConnell, made a public apology for what had happened in these institutions to the Scottish Parliament. It must be stressed, however, that this was a purely political initiative. It has no legal significance whatsoever. The homes were not institutions for the running of which either he or anyone else in the Scottish Executive was responsible. Indeed the First Minister was careful to say that it was not his purpose to cut across the work of the courts. He acknowledged that it was for the courts to establish, in accordance with the law, where responsibility lay and what was to happen as a result. Moreover he did not mention the fundamental problem which was already facing the claimants in all these cases. This is the defenders’ contention that due to the delay in raising proceedings they are all time barred."

The decision of Lord Glennie to revoke a patent in the case of Arrow Generics Ltd, Petitioners [2006] CSOH 146, reported in Scots Law News No 598, was reversed by the First Division on 20 May 2008. 

Arrow Generics v Akzo NB [2008] CSIH 31 did not involve any renewal of the interesting previous discussion about whether there was a Queen Elizabeth I before there was a Queen Elizabeth II.  Instead the judges of the First Division review and apply the authorities on “purposive construction” of patent claims, novelty, and obviousness, and decide that the Lord Ordinary took the wrong approach to these matters.  There is however some criticism of the failure of the patentee’s advisers to lead appropriate evidence which would have allowed the Lord Ordinary to do better.   For further comment see the IP-Kat blog for 24 May 2008.