Month: January 2009

Being in comparative studies mode at the moment, Scots Law News has learned that Scotland is not the only country to criminalise nude pedestrianism. 

Thanks to Der Spiegel Online  and The Guardian for 29 January 2009, we can inform our readers that the canton of Appenzell Innerrhoden, Switzerland, is in the process of passing a law to make naked rambling a criminal offence.  Apparently the area has gained a reputation via the Internet as an ideal venue for the pastime.  When last autumn local police arrested a boots-only hiker passing through the area, they had to let him go because there was no law against what he was doing.  (Swiss law, it should be pointed out, is code-based and doesn’t have anything like these handy catch-all common law offences such as breach of the peace: they believe that legislators should make law, not judges.) 

Der Spiegel notes however that naked ramblers should not despair that the world is against them:

Those preferring to trek in the buff get a more welcome reception elsewhere in the German-speaking world. In the central German Harz mountain range, two villages put themselves on the map last year by advocating special routes through their forested slopes as an ideal stomping ground for naked hikers.  And the practice of "FKK" (which stands for "free body culture") is a serious pursuit in Germany. … Since reunification, German FKK fans of all ages sunbathe in the nude as well as partaking in naked sports ranging from canoeing to horseriding.

Before everyone rushes to Germany at once, casting their apparel as soon as they cross the frontier, note that The Guardian says that FKK hitherto has been confined to designated beaches.

Another image of Stephen Gough available on the Spiegel site, incidentally.

 

On 23rd January 2009 long-standing editors of the Juridical Review Professors Gerry Maher and Kenny Miller resigned with immediate effect.

In a statement issued to members of the editorial board, which comprises a representative from each University teaching law in Scotland, they wrote,

“Over the last few years there has been a change in direction in the management and production side of the journal. This has caused us to reflect on our position and we have reached the conclusion that we can no longer continue as Editors.”

This is the heading with which English judge Ward LJ opens his judgment in Greenland Bank Ltd v American Express Bank Ltd [2009] EWCA Civ 14.  

Ward LJ continues as follows:

This is the kind of litigation that could feed the public's worst perception of lawyers and the law. Jonathan Swift, author of Gulliver's Travels, once described lawyers as:  "? a society of men ? bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white …" and then he added maliciously: "? according as they are paid".  That calumny against the profession could perhaps be voiced in this case by a cynical observer of this litigation. Here Westmont Power (Bangladesh) Ltd ("Westmont") brought an action against American Express Bank Limited ("Amex") in Bangladesh for a declaration, in effect, that a guarantee given by Amex had not expired. Amex resisted vigorously and claimed the return of the guarantee from the beneficiary. Amex lost. Now, in a complete volte-face, Amex have successfully contended before Evans-Lombe J. in a claim brought against it here by Greenland Bank Ltd (in liquidation) ("Greenland") that they could have been wrong in that defence and that there is a real prospect that the Bangladesh court did decide the matter correctly against it. That is Amex's defence here notwithstanding the fact that back in Dhaka Amex still stoutly maintain their appeal against that decision on grounds that it is riddled with error. Riding two horses at the same time is always difficult enough: riding them when they are charging in opposite directions is an altogether remarkable feat, so let me begin by praising the skills of counsel for Amex, Mr David Wolfson, who with customary courtesy, cogency, and not a little charm, managed to stay in the saddle notwithstanding some hostile fire from at least this incredulous member of the court. He escapes all Swift's opprobrium. How did he manage it?"

Nothing to do with Scotland, but as our roving reporter David Vaver put it, "irresistible".

The Crown Office announced on 27 January 2009 that indictments had been served on Thomas Sheridan and Gail Sheridan in connection with the perjury investigation which began after the conclusion of the civil case Thomas Sheridan v News of the World.  

The indictment contains one charge of perjury, and one charge of attempted subornation of perjury, against Thomas Sheridan (44); and one charge of perjury against Gail Sheridan (44). 

A preliminary hearing is now scheduled for 26 February at the High Court in Edinburgh.

The service of the indictment was confirmed at a news conference held by the accused couple's solicitor, Aamer Anwar.  No comment on how this will affect the erstwhile Celebrity Big Brother contestant's law studies at Strathclyde.  (For those who don't know, by the way, the Big Brother contest was won by Ulrika Jonsson, once a weather forecaster.  Despite the surname, Ulrika is a girl.)

The Scotsman for 26 January 2009 ran stories here and here, saying that Richard Keen QC, Dean of the Faculty of Advocates, was lobbying government to remove restrictions on class actions in Scots law to allow claims to be brought against Royal Bank of Scotland by those of its shareholders who have suffered major losses following last year’s RBS rights issue.

Scots Law News reported previously here the small claims action raised by Ian Hamilton QC against RBS for alleged fraud and negligence in the rights issue.  In small claims actions the liability of the pursuer for expenses is restricted to £200, but one of Mr Hamilton’s concerns is that if the sheriff at Oban decides the case is too complex to be suitable for small claims procedure, it will then be remitted elsewhere, at which point the liability for expenses becomes unlimited.  Similar concerns are likely to daunt other small investors who might otherwise take action as well.  But in a class action the liability is spread around those who join it as pursuers, and the risk is considerably lessened.

Scots Law News recalls consultations on class actions in Scots law back in the 1980s, but these never went anywhere.  Class actions are of course common in other jurisdictions, especially the USA; and it seems to be thought that such actions are already in contemplation in the US, not just against RBS but against some of the other financial institutions who handled their customers’ money so successfully in the last couple of years.

Canadian correspondents Mark Macneill and David Vaver report that the Canadian Glen Breton whisky case, first noted on Scots Law News here,  was reversed by the Canadian Federal Court of Appeal on 22 January 2009.

The litigation, initiated by the Scotch Whisky Association, is about whether the Glenora Distillery in Nova Scotia can market its product as “Glen Breton”.  The latest decision means that it can, and that in Canada at any rate the word “Glen” does not connote that the whisky must come from Scotland and therefore infringe on the exclusive rights of Scotch whisky distillers. 

Lauchie MacLean, president of Glenora Distillers International Ltd, says that he thinks Robert Burns, whose 250th birthday falls on 25 January 2009 and initiates the Year of Homecoming in Scotland, is watching over Glenora’s change of fortune, and promised to ensure that all those taking a dram to mark the anniversary locally did so with a Glen Breton.  Glenora Distillers is based in Glenville, next to the community of Glenora Falls in Nova Scotia.

Professor Vaver comments that “the decision appealed from, by a judge whose experience was in admiralty, thus more in rum than whisk(e)y, was dubious, and I'm glad an appeal court has borne that out.”  Mr Macneill notes that the SWA could still appeal to the Supreme Court of Canada, so that the case isn’t necessarily over just yet.  But, he goes on, “either way the case is a real glass raiser.  Buaidh no bas (To conquer or die!).”

Law student and co-leader of Solidarity, Tommy Sheridan, took an impromptu break from his law degree to appear in Channel 4's Celebrity Big Brother. 

In an interview with Davina McCall on his departure from the Big Brother house Mr Sheridan admitted that his appearance would help to pay his fees for his degree.  However, Mr Sheridan's devotion to the degree did not extend to attending his examinations.  Midway through his time in Big Brother the Daily Record reported that Mr Sheridan had confided in Terry Christian, former presenter of The Word, that appearing in Big Brother had conflicted with his studies as he had missed mid-term exams and would have resits.

During his time in the Big Brother house Mr Sheridan dressed as a pepperpot while ice skating with La Toya Jackson (who was dressed as a salt cellar); was dressed in lycra while being electrocuted every time rapper Coolio, La Toya Jackson, and film star Verne Troyer failed to answer questions on British culture; and discussed the possibility of producing and presenting televised Scrabble.

Despite his non-attendance at examinations Mr Sheridan has his first client (aside from himself).  Rodger Winsborough was reported by the Sunday Mail to have hired Mr Sheridan to represent him in an employment tribunal.  Mr Winsborough was sacked from his job working at an open cast mine after testing positive for cannabis.   He  argues that he failed the drug test following unwittingly eating a hash cake n a stag trip to Amsterdam.  He said,

"Tommy was shocked by the way I have been treated after 10 years with an unblemished record."

The tribunal hearing is on 29th January.

 

Regular readers will be familiar with the tale of Charlie the cockerel and his early morning greeting to the people of Selkirk which led to his owner Kenneth “Ozzie” Williamson receiving a court order attempting to regulate Charlie's waking hours.  When last we heard of Charlie signs were not good.  Mr Williamson's solicitor said, "He is not keeping in the best of health. He is certainly not making as much noise as in his younger years." As we perused our regular copies of the Selkirk Weekend Advertiser at the end of last year we feared that Charlie was an ex-cockerel.

A photograph of sculptor Angie Hunter – surrounded by some sculptures of penguins – was accompanied by the caption that she

"would be delighted to craft a memorial to Charlie."

However, the proposed memorial was somewhat premature for Charlie is not yet dead.  Instead the media publicity stemmed from a proposal of the vice-chairman of Selkirk community council, Dr Lindsay Neil.  He proposed that Charlie should be immortalised in bronze.  He said,

"He has already unwittingly put Selkirk on the map and, by the publicity he has generated, he has attracted widespread interest in our town. For that reason alone, he deserves some sort of permanent recognition."

Dr Neil's suggestion that a lifesize statue of Charlie in a cage be erected at Selkirk's historic Toll gateway met with a mixed reception from locals.

Mr William Galbraith embodied the conflict,

"It’s a silly idea. I think it’s gone too far and more has been made of the whole thing because Ozzie is such a character. On the other hand, he has drawn a lot of attention, so maybe it would be a good idea to remember him somehow."

And Adrienne Kay noted that,

"He doesn’t compare to other figures like Sir Walter Scott or Fletcher, but he is a renowned character around here. "

However, it appears that the proposal will not go forward.  At Selkirk community council on 12th January former Scottish Borders councillor Gordon Edgar voiced his objections.

"This has put Selkirk in a bad light around the world … At first I thought it was a joke … it has ridiculed the town and made it famous for all the wrong reasons."

Although it appears that it is the potential costs, rather than the objections, that has put the brakes on the proposals.

"The truth, to allay the fears of those who really believe a little bronze statue of a cockerel would inspire perpetual ridicule of Selkirk, is that it will cost a great deal to have one made, so it is unlikely to happen."

But given Charlie's notoriety is there any prospect of a memorial when the grim reaper makes his call at the chicken run?  We take some solace in Dr Neil's final word on the matter,

"Perhaps the best we can hope for now with regard to Charlie is a brass plaque."

 

Our thanks to Ross Anderson for drawing the attention of Scots Law News to a nice little story with pictures on the BBC Cumbria website, about where England ends and Scotland begins in the Debatable Lands of the western marches.  

The tale centres on 300-acre Riddings Farm on the banks of the River Liddle near Longtown, hard on the Anglo-Scottish border.  While the great bulk of the farm is in England, a couple of acres are in Scotland, having been shifted to the south of the river only in 1861, when the latter was diverted by the railway engineers constructing the Waverley Line.  The shift of the course of the river didn’t of course change where the border was.  So farm-owner Ian Ellithorn had to retain Scottish solicitors to see to the transfer of title to his little bit of Scotland as well as English ones to deal with the rest of the property.  Scottish fishing rules also apply on both sides of the relevant stretch of the Liddle as it now runs, apparently preventing Mr Ellithorn from relaxing with rod and line on Sundays.

Mr Ellithorn says he is honoured by his ownership of such an interesting piece of land, despite the expense and hassle it has caused him.  Just wait until independence, sir!

Scots Law News is aware of a similar little bit of Scottish ground in the east march, south of the River Tweed between Coldstream and Cornhill, and to the right of the bridge as you head towards the latter settlement.  We would be glad to learn of any other wee plots that are forever Scots law bridgeheads in England. 

The Scottish Law Commission published a Discussion Paper on Double Jeopardy on 21 January 2009.  

The Justice Secretary asked the Commission to look at the double jeopardy rule after the collapse of the World’s End murders trial in November 2007 (see here). 

The rule against double jeopardy prevents a person from being tried twice for the same crime.  As a consequence, it is not possible to retry a person who has been acquitted of a crime, even if new evidence emerges in relation to the case or if it appears that the original trial was "tainted" in some way, such as by intimidation or bribery of jurors or witnesses. 

The Commission invites comment on whether it is desirable for any exceptions to the rule against double jeopardy to be introduced and, if so, how these should operate.

Patrick Layden, QC, the lead Commissioner on the project, said:

"The rule that prevents a person from being tried twice for the same offence has been recognised in Scotland and across the world as a fundamental protection for the citizen against the state; but we should look at it carefully to see whether modern conditions justify exceptions to it."

As well as considering possible exceptions to the rule against double jeopardy, the Discussion Paper seeks comment upon a proposal to restate the rule against double jeopardy in statute.

Comments on the Discussion Paper are requested by 17 April 2009.