Month: July 2008

Scottish LibDem leader Nicol Stephen followed Wendy Alexander of Labour, and resigned his post with immediate effect on 2 July 2008.

Mr Stephen, a solicitor by profession, said that he was departing to spend more time with his family, but will continue as MSP for Aberdeen South.  His party will elect a new leader in September.

We had all better keep an eye on Tory leader Annabel Goldie.  Her head, and SNP victory in the pending Glasgow East (Westminster) by-election, where hitherto Labour has reigned unchallenged, are all that's left to make the First Minister's grin as wide as the Cheshire Cat's.

Well-known left-leaning mag the New Statesman gives some coverage in its 2 July issue to the question of an independent Forvik, previously mentioned in Scots Law News here.

Disappointingly, the main point of the NS article seems to be that Mr Alistair Carmichael, LibDem MP for Shetland, is not pleased with Stuart Hill, whom the article also describes as a "pseudo-revolutionary".  Apparently you are only a revolutionary is if you can "make someone give a damn".  Mr Hill fails this test, it seems, because Mr Carmichael's constituents aren't calling him about it.  But evidently the New Statesman has done so; and for some revolutionaries of Scots Law News' acquaintance, getting a mention in the New Statesman would be enough reassurance to be going on with.

Robert Goddard of Aston University draws our attention to a couple of proposals relating to Scotland in the consultation paper issued on 1 July 2008 by the Tripartite Authorities with regard to financial stability and depositor protection. 

The proposals are  as follows:

"1.69 In line with its priority to provide protection to noteholders, the Government intends to legislate to strengthen the arrangements underpinning banknote issuance by commercial banks in Scotland and Northern Ireland. It proposes that commercial banks issuing banknotes will be required to hold assets (Bank of England banknotes and UK coin, and funds in interest-bearing accounts at the Bank of England) to the full value of their notes at all times, and ring-fenced for the benefit of noteholders.

1.70 The Government also intends to bring the law in Scotland relating to the treatment of cheques into line with that in the rest of the UK, by abolishing the funds attached rule in Scots law so far as it relates to cheques, and making any necessary consequential changes to related legislation."

With regard to the latter, Scots Law News recalls a controversy in the 1980s because the "funds attached" rule meant that countermanding a cheque did not prevent the money going out of your account, albeit it went to a suspense account rather than the payee's.  But that seemed to be sorted out, albeit in rather technical and opaque fashion, by section 11 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 which inserted section 75A into the Bills of Exchange Act 1882.  Perhaps that wasn't enough.  Anyway, who pays by cheque nowadays?

By the way, the Tripartite Authorities are the Bank of England, HM Treasury and the Financial Services Authority, all well-known as sturdy upholders of the independence of Scots law.

The High Court of Justiciary found solicitor Aamer Anwar not guilty of contempt of court in a decision announced on 1 July 2008 ([2008] HCJAC 36).

Mr Anwar had been charged with contempt by the trial judge after making a statement on behalf of his client Mohammed Atif Siddique immediately following the latter's conviction for terrorism-related offences in Glasgow High Court in September 2007 (see No 698).  The statement was critical of the way the trial had been conducted.

The Court, constituted by Lords Osborne, Kingarth and Wheatley, provides a summary as well as its full opinion.  The summary says:

"Having considered all of the relevant material in detail the Court has concluded that, while the statements it examined embody angry and petulant criticism of the outcome of the trial process and a range of political comments concerning the position of Muslims in our society, no contempt of court has been committed by the respondent Aamer Anwar.

However we feel both entitled and bound to comment on the conduct of the respondent as an officer of the court, for, as a practitioner in this court, that is what he is. In our opinion, the existence of that duty implies certain obligations upon such solicitors. They have a duty to ensure that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and that their comments are not misleading. Regrettably, we do not think that those standards were met in this case and the court is entitled to expect better of those who practice before it."

Later, the summary notes that the Court heard not only counsel for Mr Anwar but also counsel for Liberty (formerly the National Council for Civil Liberties).  Crown counsel also assisted the court on legal questions, although making no submissions on the merits of the case. 

The summary also has an interesting passage on the nature of contempt of court and its relation to freedom of expression:

"We recognise that it has been said repeatedly that the greatest restraint and discretion should be used by a court in dealing with issues of contempt, lest a process, the purpose of which is to prevent interference with the administration of justice, should degenerate into an oppressive or vindictive abuse of the court's powers. In Johnson v Grant 1923 S.C. 789, it was said of contempt of Court that the offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of the court which is offended, a petty and misleading view of the issues involved, it is the fundamental supremacy of the law which is challenged. In this regard, we discern no difference between the law of Scotland and that of England. In our Opinion, we consider formulations of the nature of contempt of court in English decisions. It is there recognised, a view with which we agree, that it is the inalienable right of everyone to comment fairly and, it may be, critically upon any matter of public importance, including judgments of courts. This right is one of the pillars of individual liberty – freedom of speech, which our Courts have always unfailingly upheld.  

In the Opinion we go on, however, to say that there does exist a limit to the right of freedom of expression, which derives from the fundamental purpose of the law of contempt. Thus language which would be of such an extreme nature that it did indeed challenge or affront the authority of the court, or the supremacy of the law itself, particularly perhaps where the integrity or honesty of a particular judge, or the court generally, was attacked, would be a contempt of court. We consider that that view is wholly consistent with the terms of Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which declares that "Everyone has the right to freedom of expression" and states:

 "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such…restrictions or penalties as are prescribed by law and are necessary in a democratic society…..for maintaining the authority and impartiality of the judiciary."

We believe that the insertion of those particular words in Article 10 were at the insistence of the government of the United Kingdom, which was concerned to ensure that the British law of contempt of court was protected. Thus a balance has to be achieved between, on the one hand, the protection of public discussion of matters of legitimate interest in a democracy, and on the other, the prevention of interference in particular court proceedings or of undermining faith in the judicial process more generally."

The court leaves it to the Law Society of Scotland to consider what if any disciplinary proceedings it might take against Mr Anwar in respect of the statement's failure to meet the standards of accuracy required.