Month: October 2008

In August 2008 we reported that the owner of Charlie the cockerel, Kenneth “Ozzie” Williamson  had admitted breach of the court order put in place in 2007 to regulate Charlie’s early morning greeting to the residents of Selkirk.  At the subsequent hearing on sentencing Mr Williamson was fined £70.

However, during the hearing Mr Williamson’s solicitor advised the court that all was not well with Charlie

“The cockerel is making less and less noise. He is not keeping in the best of health. He is certainly not making as much noise as in his younger years.”

Aware of this news Scots Law News anxiously turned to our regular copy of the Selkirk Weekend Advertiser where Mr Williamson exclusively revealed that Charlie was unlikely to see out the winter.  He also confirmed that when Charlie joins the choir invisibule he will not be stuffed.

“I won't be able to take him to a taxidermist when he pops his clogs because he would be in a bedraggled state and he wouldn't be able to do him like he used to be – or if he did it would cost a lot of money.  He will have to be buried with honour instead.”

Resisting the urge to mount a campaign to meet the taxidermy costs instead we can now bring you a little light relief in the form of an on-line game – although we advise that Scots Law News does not endorse throwing pillows at cockerels.
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We have earlier noted that the economic slowdown and its impact on the Scottish housing market may not be the best time to introduce the new single survey and home reports.  The problem of timing is exacerbated when the market has responded to one of the motivations underlying the introduction of the single survey, namely concerns about unsuccessful purchasers incurring expenditure on multiple surveys, through the introduction of offers subject to survey.

Against the difficult economic background and the legal profession is mobilising against the single survey in particular.  The Scottish Law Agents Society – particularly through its conveyancing committee, convened by Ken Swinton, from the University of Abertay, with the regular media presence of Ian C Ferguson, of Messrs Mitchells Roberton, Glasgow – has been particularly vociferous in its criticisms of the proposals.  The SLAS published a leaflet on the home report scheme – – “The truth about home reports” and has raised numerous issues about the implementation of the scheme.  Summary of a number of the SLAS criticisms here, but a search of the SLAS news pages reveals numerous other stories. 

The SLAS tabled at a motion calling for the suspension of home reports at a special general meeting of the Law Society of Scotland on 26th September 2008.  The motion was carried by an astonishingly large margin of 2,052 to 52. 

Responding to the vote Ken Swinton said,

“This is dynamite.  With this massive vote against Home Reports, lawyers have sent a firm message to the Scottish Government that they are unwelcome in the present financial environment. Solicitors believe Home Reports will destroy the already-fragile Scottish property market at a time when, according to an assessment by Lloyds TSB earlier this week, the Scottish economy is “grinding to a halt”. Solicitors have approved the anti-Single Survey stance that The Law Society of Scotland has taken throughout discussions on the scheme.  Furthermore, they have urged the Law Society to keep fighting against Home Reports in the hope that they can be delayed from 1 December, 2008. Our own Society will also keep fighting in the knowledge that our members and, indeed, non-members, are fully behind us and approve of us taking the lead on this”.  There is anger that solicitors, the professionals whose job it is to advise clients with regard to the type of survey that should be instructed and accepted, have been ignored.”

Despite the vote Home Reports remain scheduled to be introduced on 1st December 2008.

On 18th September 2008 the Scottish Government published a consultation paper on modernising the jury system. 

Responses are invited on a range of proposals including :

• Allowing 65 to 70 year olds to sit on trial juries (mirroring the usual age of retirement for judges – a point made at paragraph 3.3 of the consultation paper); and 
• To reduce the jury service exemption period from 5 to 2 years for those called to attend court as potential jurors but are not subsequently balloted to serve on a trial jury.

Other topics are raised for response, including a proposal to remove the occupation related exemptions which currently excuses as of right members of the legal profession and those working in legal services from jury membership.  The equivalent restriction was removed in England and Wales following the Review of the Criminal Courts of England and Wales, by Auld, LJ in October 2001, has already seen judges as jurors in some cases in reality (and in TV drama).

One of the more controversial topics raised is a proposal to reduce the size of juries in criminal cases from 15.  This is raised partly on grounds of cost (para 7.4) and based on examination of jury size in other systems (albeit in inquisitorial rather than adversarial systems).  The consultation paper acknowledges that proposals to reduce the size of the jury would open up the question of whether a simple majority for conviction would remain appropriate.

Views are invited on these and other topics and the consultation period runs until 11th December.

 

Sixteenth-century Scottish legal writing is cited in the decision of the European Court of Justice on Case 37/00 Weber v Universal Ogden Services Ltd [2002] E.C.R. I-2013; [2002] QB 1189.

The case is about the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.  Advocate General Francis Jacobs wrote, at paragraph 4 of his opinion:

“The principles of the Convention are not new. Already in the 16th century, Sir James Balfour of Pittendreich wrote in his Practicks:

"Na man may be Judge in ony cause, bot gif defendar be within his jurisdiction, be resson of his dwelling place within the same, or in respect of contract of obligation made thair; or be resson of tresspas committit within the boundis thairof, or in respect of the thing that is askit and clamit, quhilk is and lyis within his jurisdictioun; because the persewar sould follow the defendar's jurisdictioun, and persew him befoir his awin competent Judge" ("Of jugeis", chapter 15, p 284 in the printed editions).”

Our thanks to Professor Gerry Maher for drawing this remarkable reference to our belated attention.  Sir James Balfour ranks amongst the dodgier characters of Scottish legal history, as described in Sheriff Peter McNeill’s notable introduction to the Stair Society’s two-volume reprint of the Practicks; but it is evident that he was a pretty good lawyer, and his definition of the basic principles of jurisdiction does indeed stand the test of time extremely well.  Now it, and Balfour himself, are guaranteed places amongst European as well as Scottish authorities.

 

Turning twenty-one is one of the big events in life.  When you can apply for that provisional licence to drive large passenger vehicles; or your flight navigator licence.  And if the proposals of the Scottish Government were to be supported it would be the point at which you could purchase alcohol from an off-licence.  See here, at para 83.

The SNP Government has expressed concern about the position of alcohol in society (see here for the Justice Secretary’s position on alcohol as a possible mitigating factor in criminal cases).  And earlier in the year it issued a discussion paper on Changing Scotland’s relationship with alcohol.  As well as raising the age at which someone could purchase alcohol at an off-licence from 18 to 21, the discussion paper makes various other proposals.  Central to the strategy would be an introduction of various measures in the off sales industry restricting the power to offer promotions on alcohol (para 49), and minimum retail pricing for alcohol (para 55).

The proposals (particularly those in relation to raising the minimum age for off licence purchases) have been controversial and were debated in the Scottish Parliament on 2nd October 2008 in a Conservative party motion  providing that

“That the Parliament rejects the Scottish Government's proposals to raise the age limit for purchasing alcohol from off-licences and supermarkets from 18 to 21.”

and was passed by 72 votes to 47.  All opposition parties voted against the government.

At the SNP conference in mid-October the SNP youth wing sought to criticise the SNP policy on the issue, but the party voted by 190 to 131 to support the policy.

Given the parliamentary arithmetic it seems likely that if the policy is pursued by the Government, any vote will be lost. 

 

Earlier in the year Scots Law News reported on the book launch for the new edition of Ian Hamilton QC’s Stone of Destiny  and noted the premiere of the film at the Edinburgh International Film Festival.  The film was on general release across Scotland in October and Mr Hamilton offered some elegiac thoughts on the film and the story in his blog on 15th October 2008:

He wrote,

“For me the feast has finished and the lamps have expired. A book I wrote has lasted sixty years and it has been made into a film. In a touching scene in the film, taken from real life, my father says he is proud of me. My real father would have been proud too. He loved books. Now I can turn my back on what I have done.”

He had been interviewed in The Guardian the previous day and said of this,

“Among other things they quoted accurately what I feel about the whole matter:-

“Hamilton is dismayed, however, by the continued fascination with the raid. He volunteered with the RAF during the war, where 55,000 young men died in bomber command alone. “I did something for my country, as they did – and I am remembered and they are forgotten? This was an ancient wrong that had to be righted, I was just the person who did it.”

That is my true feeling. I will be glad of a closure.”

Lest anyone is concerned that Mr Hamilton will be lost to Scottish public life he ends his blog post,

“I set out to wake up my country. Now Scotland is awake and fit to take on all comers. We are alive again. I do not claim it was because of me. I claim only to have been one of the early fighters.

Now I am like a child wondering what skills I have and what to do with them. When Robert Bontine Cunninghame Graham wrote his great essay on SUCCESS he knew that success brought its own desolation.

I am an accomplished public speaker. Maybe I’ll take that up.

Does anyone know where I can find an agent?”

Any takers?  Scots Law News can confirm the quality of Mr Hamilton's public speaking, having sampled it also at the Bute House launch on 9 September of the republication of the late John MacCormick's classic memoir of Scottish nationalism (first published 1955), The Flag in the Wind.

The Justice Committee of the Scottish Parliament published its report on the Damages (Asbestos-related Conditions) (Scotland) Bill on 13 October 2008, signalling its approval of the principles of the Bill, but raising questions about its financial implications. 

On the legal issues surrounding the Bill (see previously here and here), the report acknowledges that the decision of the House of Lords in Johnston v NEI International Combustion Ltd [2007] UKHL 39 was legally impeccable, but points out that damages had been awarded to victims of pleural plaques for 20 years before that case, and continues: 

“The Committee takes the view that people with pleural plaques have a specific physical manifestation of asbestos exposure.  The Committee is of the view that this signifies that their risk of developing mesothelioma is many times greater than that of the general population.  Furthermore, the Committee considers that the resultant effect on the lifestyle and sense of wellbeing of those diagnosed with pleural plaques is substantial and adverse.  Mesothelioma and other asbestos-related diseases are widely recognised in Scotland, particularly in certain communities, as a common consequence of established asbestos exposure.  The Committee is not persuaded by the suggestion that the anxiety felt by those diagnosed with pleural plaques can be allayed by appropriate medical explanations.”

The Committee also considers the argument, advanced in evidence before it by Dr Martin Hogg of the Edinburgh Law School (Official Report, 2 Sept 2008, col 1065 ff), that the Bill is inconsistent with the general principles of the law of delict.  That view is accepted, but “the Committee does not accept that the Bill will overturn or undermine this law generally as the Bill is expressly restricted to asbestos related conditions.”  The Committee also rejects the argument that a dedicated compensation fund would represent a better approach to the problem.  Courts seem to be the preferred vehicle because in this arena those who negligently exposed people to asbestos can be seen as being “punished” (see para 57 of the report). 

The Bill will have its Stage 1 in the Scottish Parliament in November and may yet reach the statute book before the end of the calendar year.  For a critical discussion of its content, see Dr Hogg’s excellent article, “Asbestos related conditions and the idea of damage in the law of delict” 2008 SLT (News) 207-212 (available also on Westlaw). 

On 13 October 2008 Richard Keen QC, the Dean of the Faculty of Advocates, announced the prospective admission to membership of the Faculty of Elish Angiolini QC, the Lord Advocate and Frank Mulholland QC, the Solicitor General.

It is understood that the admission ceremony will take place on 7 November.  A spokesperson for the Crown Office and Procurator Fiscal Service said:  "Mrs Angiolini and Mr Mulholland are honoured to have been invited to apply to join the Faculty of Advocates, which is highly respected for its central role in delivering independent legal services in Scotland.” 

There had been no announcement of the Dean’s invitation on the Faculty of Advocates website as at 21 October 2008, although there is the autumn edition of a Faculty newsletter, which includes a courtroom photograph – indeed, a judicial eye-view – of a calling ceremony in the court of Lord Mackay of Drumadoon. 

The Sunday Herald for 12 October 2008 revealed the hitherto unsuspected truth that the Scottish higher judiciary is mainly “male, white, middle class, privately educated, Edinburgh resident and New Club member”.  

These sensational revelations were the product of intense investigative journalism, which also succeeded in eliciting a call from the Equality and Human Rights Commission for “a truly representative judiciary”.  The Commission spokesperson added, for good measure:

“How many disabled people, people from the lesbian, gay, bisexual, and transgender community or from different race or faith groups sit on the bench? What are the barriers that prevent these groups from progressing in our legal system?” 

One is bound to ask how much the spokesperson knows about our judges in order to be so sure that the groups mentioned are wholly absent from the bench. 

The Sunday Herald article also leaves completely unclear what if any problems this unrepresentative judiciary has created for Scottish society, apart from a brief reference to a later over-ruled judgement of Lord Abernethy in a rape case (see Nos 103, 145, 167).  Surely one must agree with Lord McCluskey’s general point (if not his way of expressing it), when he is quoted as saying "If I am going to be in hospital for an operation on my brain, I don't want the surgeon to be picked by reason of diversity. I don't want a one-eyed woman from Jamaica.”  Lord Rodger said much the same thing, a tad more elegantly, in his contribution to the August Journal of the Law Society of Scotland.  It also occurred to Scots Law News to wonder whether, given the significance of Scottish newspaper editors in the body politic, their ranks were in any way representative of Scottish society as a whole. 

The article has one fair point in so far as the much-criticised Judicial Appointments Board for Scotland has not yet brought about any perceptible change in the composition of the higher judiciary.  This presumably also reflects who is applying for the jobs in the first place; one suspects that only one reservoir of potential talent is flowing through the relevant channels.  But The Sunday Herald’s “story” will at least make a little more interesting who emerges from the Board’s current deliberations over the replacements for the late Lords Macfadyen and Johnston as well as the retiring Lord MacEwan.  The paper gives three names of possible candidates all of whom are current QCs – Gordon Jackson, Paul Cullen and Valerie Stacey – and throws Sheriff Ian Peebles into the ring as well.

Tracey Ormsby is a former police constable from Glasgow.  In August 2001 she was placed on patrol at Govanhill Baths and her life was changed.  The outcome is Ormsby v Chief Constable Strathclyde Police [2008] CSOH 143, a decision of Lord Malcolm issued 10 October 2008.

In August 2001 the natives of Govanhill were restless as earlier in the year Glasgow City Council had elected to close the baths.  This caused particular difficulties in community relations as the baths had provided a weekly session for Asian women in the area – and there was no intention to provide replacement facilities.  Local residents objected to the council plans, and occupied the baths.  The council obtained a court order seeking the eviction of the locals and 36 police officers were asked to attend when sheriff officers went to the baths to enforce this order.  On attendance the 36 officers discovered two protestors in deckchairs, but within a short time more protestors had arrived and blockaded the baths.  Eggs and missiles (a variety of implements and materials including human waste) were thrown at the officers, but shields body armour and CS gas were not issued to the officers, and there was a general no arrest policy implemented throughout a lengthy day of protests.  The police officers attempted to prevent protestors (and others who had arrived to join the protest, including protestors from Faslane) gaining access to the building to allow the council contractors to board up the baths.  Ms Ormsby was injured by a pineapple striking her sternum and subsequently sued her employers in negligence.  She sought £1.5 million, according to newspaper reports. Counsel for Ms Ormsby argued that in policing this disturbance senior officers were negligent in exposing unprotected officers to the risk of injury.  Although Lord Malcolm had sympathy with the predicament of senior police officers and the decisions to be made

“I am very conscious that society expects much of the police, in particular to fight crime and to deal with a wide variety of difficulties and problems on a daily basis. Each force has to work within a budget and often its resources will be inadequate for the task. As has been emphasised on more than one occasion the court should guard against the danger of legal claims and challenges every time an officer is injured. However, after giving due account to these compelling considerations, and having regard to the hopefully unusually extreme nature of the situation outside the Baths that evening, I have come to the conclusion that a duty of reasonable care was owed to the pursuer and other officers, and that it was breached by the decisions taken by the officer in charge given the way in which officers were deployed and continued to be deployed over a lengthy period that evening once the risk of serious injury to them became apparent. I wish to stress that this decision is based on the particular, perhaps unique facts of this case. I would be disturbed if it led to any change in the willingness of the police to put the public interest before their own safety, something which was so clearly demonstrated that evening by the courage and fortitude of the pursuer and her colleagues.” (para 29)

On this issue of police liability in negligence the decision is noteworthy.  However, the tale of Ms Ormsby’s injuries occupies the bulk of the decision.

Ms Ormsby claimed for damages resulting form her injury, as well as claiming for damages caused by a subsequent psychological injury.  She argued she was suffering post-traumatic stress disorder, depression, and agoraphobia – as a result of her experience facing the protestors.  However, evidence of changes in her behaviour ran counter to the suggestions of the defender that Ms Ormsby was a liar who had told her then boyfriend “Ker-ching” when she found out she was diagnosed with PTSD.

Additionally, it was argued by the defender that Mr Ormsby had attempted to persuade her then boyfriend to lie for her.  He was married and alleged that Ms Ormsby had threatened to send certain photographs to his wife if he did not give evidence in her favour.  A number of text messages sent by Mr Ormsby were used as evidence to support this.

In reaching his decision on the nature of the injuries suffered by Ms Ormsby Lord Malcolm was particularly critical of the pursuer,

“The overall picture is clouded and complicated by the pursuer's willingness to be untruthful and conceal material facts in order to further her interests. She has consistently misled the various medical experts who have assessed her. This devalues the weight and quality of their conclusions.” (para 95);

“I consider that at best for the pursuer there is a very considerable degree of exaggeration in her account of her disabilities. Her robust, combative and feisty performance in cross-examination was wholly different from her account and from her presentation in examination in chief. I cannot reconcile the person I saw in cross-examination with the fearful and fragile person described in some of the medical reports”.  (para 96)

and

“I am unable to accept the evidence of the pursuer on the key issues as credible and reliable. The burden of proof is upon the pursuer. I am left in very considerable doubt as to the true extent of any disabilities from which she may be suffering at present, and thus also as to her prospects in the future.” (at para 97)

Lord Malcolm therefore rejected the claim for psychological injuries and assessed compensation as being £3,000 solatium for the physical consequences of her pineapple-related injury.