A twentieth anniversary

On 21 December 2008 it was twenty years since PanAm Flight 103 from London to New York fell to earth at Lockerbie, killing 259 passengers and crew as well as 11 people on the ground.

Scots Law News has chosen not to report in detail and as they happen the intensifying twists and turns of the legal proceedings during the run-up to the twentieth anniversary.  In part this has been because we prefer to discuss the overall picture once it is reasonably clear, and as yet the outcome of the reference to the High Court by the Scottish Criminal Cases Review Commission remains deeply uncertain.  Although the Court of Criminal Appeal ruled on 15 October 2008 that all the issues raised by Abdelbaset al-Megrahi in his appeal would be considered, no final decision has yet been taken on the claim of public interest immunity from disclosure of certain documents apparently relevant to the appeal.  Scots Law News understands from the BBC News website and other sources that the Court has appointed a “special defender” to review the documents in question and report on which, if any, of them should be released; but that process has yet to be completed so far as we know.  Then there is the further complication that Megrahi is suffering from prostate cancer said to be terminal, although Scots Law News is not aware of any authoritative statement about his life expectancy.  An attempt to procure his release from Greenock Prison on compassionate grounds was rejected by the Court on 14 November, and there the matter rests for the moment. 

The debate about the Lockerbie proceedings has, sadly, been deeply polarised for many years.  All the protagonists have in common is a passionate belief in justice: one side for the 270 whose lives were taken suddenly and with violence in 1988, the other for a man who may just possibly be serving a prison sentence for a crime he did not commit.  Both things should be intolerable in a decent society, and we can be certain that this is also the genuine belief of all those who have taken part in the court proceedings on this matter over the last decade.  At the very least, therefore, let the extreme improbability that the bombing of PanAm Flight 103 was the work of one man working alone be admitted on all sides.  Perhaps then we will see in 2009 some final resolution of this terrible affair that will allow us all to think that, although the heavens fell, justice was served so far as humans could do it. 


The new snakes and ladders: RAE 2008 and the Scottish law schools

Academic lawyers in Scotland have a new party game this Christmas as they try to work out law school research league tables from the results of the Research Assessment Exercise, published on 18 December 2008.

The exercise, under which each unit of assessment (UoA) submitted to a panel of other academics what it believed to be its best research outputs in the period 2002-2007, leads to a Research Quality Profile for the unit, indicating how many of its staff were submitted, and the percentage of the work submitted that fell into each of five classifications as follows:

4* – world-leading; 3* – internationally excellent; 2* – recognised internationally; 1* – recognised nationally; U/C – unclassified.  With staff numbers factored in, this can be averaged to produce a grade point average (GPA) for each UoA. 

The Scottish law school results look like this, arranged alphabetically (apologies for the wobbly columns, induced by lack of a table function in the processor rather than by over-consumption of Christmas cheer by the setter):

UoA             Staff       4*   3*   2*   1*   U/C    GPA
Aberdeen    35.70     5    30   45   20      0      2.20
Abertay        3.00      0    20   60   20      0      2.00
Dundee       27.00     5    45   50    0       0      2.55
Edinburgh   48.74   30    25   35   10      0      2.75
Glasgow      37.95   15    40   35   10     0      2.60
Glas Cal         4.50     0    15   30   45   10      1.50
Napier           6.00     0      5   20   55    20     1.10
RGU               9.60     0      5   50   35    10     1.50
Stirling           7.00     5    35   30   30     0      2.15
Strathclyde  20.50   20   40   25   15     0      2.65
UWS              2.50     0      0   15   75   10      1.05

So who has the best claim to be top research dog this time round?  Does it matter most how much world-leading research you have, or do you combine that with international excellence?  How much is that to be offset by the percentages in the lower grades?  How do you factor in the number of staff and outputs submitted?  Does the grade point average weighted as it is for numbers of staff and outputs bring all the relevant factors into play most effectively?   

For Scots Law News the most impressive performance is Stirling’s: a unit which did not exist when the last RAE was conducted in 2001 but which in 70% of the research it submitted from seven staff at the end of 2007 is already performing at a level of international quality. 

Why does any of it matter apart from bragging rights?  Answer: public funding for the next few years will depend on the outcomes.  But none of it has anything to do with the quality of the teaching.

Two to tango but this wasn’t Strictly the situation here …

The West Lothian Courier for 18 December 2008 reports a decision of Linlithgow Sheriff Court clearing two accused of brothel-keeping because where the services of only one prostitute were available there was no brothel. 

The two accused were a man and a woman charged with managing or assisting in the management of a brothel in Bathgate.  The female admitted being a prostitute, but the male accused claimed to be only a live-in cleaner at the flat where the brothel was allegedly located.  Sheriff Donald Muirhead acquitted the male, saying “In order to constitute a brothel it is necessary to have more than one prostitute operating at any one time. I am satisfied that there is not enough evidence here that there was more than one prostitute operating and accordingly the charge cannot fall within the statute.” 

Scots Law News confesses to puzzlement.  The Stair Memorial Encyclopaedia Reissue on Criminal Law rightly says at para 311 that section 11 of the Criminal Law (Consolidation) (Scotland) Act 1995 (the relevant statutory provision) contains no definition of a brothel, and the author has to go back to Hume’s Commentaries (I, 468-469): “an open and notorious house of lewdness, for the reception of loose and dissolute visitors”.  No mention of two or more prostitutes there; but perhaps we need to read further?

Naked Rambler update

Stephen Gough, the Naked Rambler, managed to get his by now usual Christmas in jail thanks to a 12-month sentence for breach of the peace handed down in Glasgow Sheriff Court on 17 December 2008. 

The conviction was the result of Gough’s conduct after he had been cleared in the same court on 13 November on another charge of breach of the peace (see further below).  Gough had then insisted on leaving the courtroom and walking through the building in a state of undress.  This led to his arrest there and then and the further court appearance on 17 December.

The November case, heard before Sheriff Margaret Gimblett (for whom see here and here), had been about an unclad departure from what is now Gough’s main residence at Barlinnie Prison at the conclusion of his last sentence.  Apparently the police had arrested the nude pedestrian a matter of yards outside the prison gates.  Sheriff Gimblett held there was no evidence that any member of the public had had the chance to be put in a state of fear and alarm by Gough’s nakedness and found there was accordingly no case to answer on the breach of the peace charge.

The continuation of the seemingly pointless saga of momentary public nudity, arrest, trial and imprisonment has led to some debate about how best to deal with the situation.  Scots Law News is of the view that the time has come for closure, and wonders whether an ASBO or lawburrows or fines might not have more useful effects than prison.  Anyway, there may be issues about Gough’s physical health: the Scottish Sun reported on 14 October that he had been made to wear socks in prison on medical advice, since his feet must be kept warm to deal with a circulation problem.  The Sun speculated lewdly about the possibility of effects on other parts of Gough’s anatomy.  Whatever, keeping Gough warm inside for what will be the fifth of the last six Christmases does not seem to be the way to dissuade him from his chosen path.   Indeed, he may be looking to notch up as many convictions as the Lochee shoplifter reported on Scots Law News in November, and start getting judicial sentencing discounts. 

Pension overpayments, unjustified enrichment and change of position?

Some long-standing unjustified enrichment amongst public sector pensioners including members of the judiciary came to light on 15 December 2008.  

The Government admitted following questions raised by LibDem MP Vince Cable during the Queen’s Speech debate that about 5% of public sector pensioners (around 95,000 of them, including former armed service and NHS workers as well as judges, teachers and civil servants), had been overpaid on their pensions, in some cases apparently since 1978.  The mistake arose as a result of “incorrect indexation”.  Chancellor Alastair Darling indicated that the Government would be taking no direct action to recover the overpayments but would instead make adjustments to what the pensioners involved would be receiving from April 2009.  The Scottish Government declared, however, that the pensions of former council, fire and police staff, over which it has devolved authority, would not be adjusted in this way, pointing out further that the UK Treasury was refusing to do likewise for the retired armed services personnel, judicial staff and civil servants, for which it was responsible.  No doubt more will be heard about this in the new year; but Scots Law News wonders whether the Treasury will factor into its adjustments the “change of position” defence which both the Scots law of unjustified enrichment and the English law of restitution would bring to bear in case like this.  In the simple terms of a basic textbook on the subject:

A party who has spent, consumed or otherwise disposed of an enrichment, and is, therefore, no longer enriched, may be able to escape liability to restore or pay for it, in whole or in part.  The approach to be taken is outlined by Lord Kyllachy in Credit Lyonnais v George Stevenson & Co Ltd (1901) 9 SLT 93 at 95: "The defenders, in order to establish such a defence, would require to show (1) that they had reasonable grounds for believing that the money was; and (2) that having that reasonable belief, they acted upon it so as to alter their position in such manner as to make repetition unjust. (MacQueen, Unjustified Enrichment Law Basics (2004), p.46)

There should also be defences of prescription, given that in many of the cases more than five years will have elapsed since any obligation to restore the enrichment became enforceable (Prescription and Limitation (Scotland) Act 1973 Sch 1 para 1(b); NV Devos Gebroeder v Sunderland Sportswear Ltd 1990 SC 291; McCafferty v McCafferty 2000 SCLR 256). 

Review of final appellate jurisdiction

The Scottish Government has appointed Professor Neil Walker of the Edinburgh Law School to undertake a review of final appellate jurisdiction in Scotland, it was announced on 15 December 2008.  .

Professor Walker has been asked to report back by 1 November 2009.  The review covers both criminal cases (in which final appellate jurisdiction rests with the High Court of Justiciary in Edinburgh) and civil ones (where final jurisdiction rests with the House of Lords).  But from October 2009, under the Constitutional Reform Act 2005, the Law Lords will become the UK Supreme Court, hearing final appeals not only in Scottish civil cases but also in the devolution cases currently heard by the Judicial Committee of the Privy Council.  Professor Walker is also asked to review the implications of the jurisdiction for the Scottish legal system, perhaps having in mind the higher judiciary's comments to the Calman Commission on this subject.  Any change to devolution cases would however need legislation in the UK Parliament.

Justice Secretary Kenny MacAskill said:

The establishment of a UK Supreme Court is an important constitutional reform, introduced by the Parliament at Westminster. It is entirely appropriate that the implications of these changes for the distinctive Scottish legal system are considered in full, in Scotland, and at this time.  Changes to strengthen judicial independence have also been introduced recently by the Scottish Parliament, and it is important to ensure that such significant constitutional changes are compatible with each other and do not compromise the Scottish legal system's distinctiveness or its full fitness for purpose.

The relationship between this review and the Gill Review of Civil Justice, expected to report in early spring 2009, is not clear.

Eversheds setting up in Scotland

Legalweek.com reported on 11 December 2008 that London law firm Eversheds is set to open an office in Edinburgh in 2009.

The report adds that the firm is in the process of leasing office space and seeking regulatory clearance from the Law Society of Scotland.  It links the move with the arrival in Eversheds of two former partners of Scottish law firm McGrigors, Colin Gray and Colin McKay, but is uncertain whether more lawyers will be hired in Scotland or whether instead there will be relocations of existing staff.  Eversheds chief executive David Gray is quoted as saying: “We are still in the process of shaping the office. We have quite a lot of relationships in Scotland and we know there is an opportunity for us at the moment.”

Cautionary tale of English serial litigant in Scotland

Ewing v Times Newspapers Ltd [2008] CSOH 169, a decision of Lord Brodie issued on 11 December 2008, is worthy of note, not only as a case about an English party litigant somewhat at sea with Scots law and procedure, but also as a tacit acknowledgement that Scots law recognises a civil right to privacy.  

Mr Ewing raised a Court of Session action against Times Newspapers seeking damages, declarator and interdict in respect of their publication, in the Scottish edition of the Sunday Times and online, of an article entitled “Heritage fakers hold builders to ransom”, in which he was described as a “professional nimby”.  He claimed on the basis of defamation, contravention of the provisions of the Data Protection Act 1998, breach of confidence and privacy, and harassment in breach of the Protection from Harassment Act 1997.  Lord Brodie notes that “The pursuer's Summons contained eleven conclusions, fourteen articles of condescendence, nine pleas-in-law related to jurisdiction and a further twenty four pleas-in-law related to other matters. Following adjustment, there are now seventy articles of condescendence and thirty nine pleas-in-law” (para 12).  Although counsel for the defenders challenges the relevancy of several of Mr Ewing’s claims, there is no suggestion that Scots law does not recognise breach of privacy as a wrong.  But Lord Brodie concludes that so far as concerns the privacy claim the pursuer’s action was unlikely to succeed because in the circumstances averred he could have had no reasonable expectation of privacy (para 28).  In other words, it fails on substantive grounds rather than because the right to privacy is unknown to Scots law.  In the end, the action is allowed to go forward only on the defamation issue. 

The main point of the decision, however, is whether Mr Ewing should be required to provide caution before being allowed to proceed in this way.  This was because he is a serial litigant in England, who had been held to be a vexatious litigant in that jurisdiction, and because he had made essentially the same claims about the article in question in an English action, Ewing v News International Ltd and Others [2008] EWCH 1390, which had been struck out by Coulson J on the basis that there was no real prospect of success and the action was an abuse of the process of the court.  There were also concerns about the pursuer’s impecuniosity.  Lord Brodie granted an order that the pursuer provide caution of £50,000, holding that this was an exceptional case such that the order did not constitute a denial of the Article 6 ECHR right to access to a court.  

Takeover of HBOS survives competition challenge

Acting under Scots law and jurisdiction, the Competition Appeal Tribunal ruled on 10 December 2008 that the Government’s decision not to refer the takeover of HBOS by Lloyds TSB was a lawful one

The takeover was rushed through after the credit crunch threatened to overwhelm HBOS completely in September and October 2008.  Despite concerns expressed by the Office of Fair Trading that the merger would create a huge concentration in the personal account and mortgage market, the Government decided not to refer it to the Competition Commission.  In addition there was the concern that both of the banks also received massive injections of public money early in October, effectively nationalising them (and the Royal Bank of Scotland, which also received public money at the same time). 

The Merger Action Group (MAG), which consisted of HBOS customers, shareholders and businessmen challenged the legality of the Government’s decision to bypass the Competition Commission, but announced after publication of the Tribunal decision and the Tribunal’s refusal of leave to appeal to the Court of Session, that it would be taking the matter no further.

The challenge was mainly based on certain statements attributed to the Prime Minister and the Chancellor of the Exchequer which had allegedly fettered the exercise of the Secretary of State’s discretion to refer the Merger to the Competition Commission.  The Tribunal held that while it was clear that the Government was in favour of the merger and had committed itself to making legislative changes to enable the Secretary of State to intervene in respect of the merger, the applicants had not shown that the Secretary of State had failed to exercise his discretion independently. The Tribunal held that the unchallenged evidence of the Secretary of State clearly showed that he had met officials to discuss the advice and submissions received and, having satisfied himself that all the evidence and options had been fully examined, he reached his decision. The Tribunal also referred to a statement by the Secretary of State to the House of Lords. The statement indicated that the Secretary of State would ensure that he received all available advice and views before reaching his decision and that he had an “open mind” to both competition and public interest considerations. 

HBOS shareholders voted to approve the takeover on 12 December, bringing to an end any sort of independent existence for what had once been the proud Bank of Scotland, founded in 1695.  It seems certain that one result will be the closure of HBOS branches and the loss of large numbers of banking sector jobs in Scotland, as well of course as the end of any head office functions that HBOS may have retained in the country.  About the only news of any comfort coming out of all this was the appointment of Susan Rice as chief executive of the newly merged bank in its Scottish territory.  She has an excellent track record in her post at the head of the Lloyds TSB operation in Scotland.

A postscript: Scots Law News began to wonder whether something was rotten in the state of HBOS when in 2007, without prior warning, its Visa credit cards from the bank became Mastercards.  On 21 October 2008 our distinguished banking correspondent, Professor Kenneth Reid CBE (Robert Peston, eat your heart out), wrote to us as follows: "The Bank of Scotland is in the process of switiching all its credit card holders from Visa to Mastercard. I have just received my new Mastercard, together with a Credit Card Agreement. Cluase 17.5 states that "Nobody other than we or you can enforce any part of this agreement, under the Contracts (Rights of Third Parties) Act 1999. The very next provision – cl 17.6 – then adds, reassuringly: "This agreement is governed by Scottish law".  For those benighted readers who don't quite get the point, let us refer you to MacQueen & Thomson, Contract Law in Scotland (2nd edition, 2007), paras 2.69-2.83, especially at para 2.75.

Exercising time bar discretion in childhood abuse claims

Despite a seemingly contrary decision of the House of Lords, the soon-to-retire Lord McEwan has exercised the discretion conferred by the Prescription and Limitation (Scotland) Act 1973 to allow a woman to continue to sue her alleged abuser as a child, even though the case is otherwise time barred.

In A v N [2008] CSOH 165, published on 5 December 2008, , the pursuer alleges that the abuse began when she was seven years old and continued for 22 years until, in 1997, she complained to the police.  Her abuser was then convicted criminally, but acquitted on appeal in 2003.  The pursuer was not then advised about the possibility of civil action and she was anyway in no fit state to make such a claim.  (A criminal injuries compensation claim was made, however.)  The three-year limitation period under the 1973 Act had long since expired before she raised her action in the Court of Session in 2004.  Lord McEwan reviews the authorities on the exercise of the discretion and in particular distinguishes the House of Lords case (Bowden v Poor Sisters of Nazareth [2008] UKHL 32) as being one brought against an institution on long ago facts rather than one directly against a still living individual defender.  He concludes (at para 26):

It seems to me that the mischief behind the legislation is really the need to prevent stale claims where a defender or insurer is taken by surprise and there is either no hope of evidence in rebuttal being recovered or leaving the defender a task of proving a negative. I think unfortunately this has led to a very legalistic attitude to the legislation especially when a date has been missed by a short time. Most of the early cases dealt with relatively simple reparation where the medical facts were well known and easy to understand. I very much doubt if the discussions and work which led to sections 17 and 19A [of the 1973 Act] had in contemplation the kind of case now posed involving blanking out of abuse, recovered memory and the other symptoms described here and in some of the other cases. I have an uneasy feeling that the legislation and the strict way the Courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system.


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