Month: January 2009

Just as Scottish banks look set to disappear into history, an old issue about their notes’ lack of status as legal tender in the United Kingdom has resurfaced at Westminster. 

The Shadow Scottish Secretary David Mundell, MP for the Borders constituency of Dumfries-shire Clydesdale and Tweeddale, proposes to bring a Private Members Bill at Westminster, the gist of which would be to compel acceptance of Scottish bank notes as payment throughout the United Kingdom without seeking to give them the status of legal tender.  The BBC reports that he was moved to do this by constituents concerned that their notes were often not accepted in England, and also by the anxieties of English visitors to his constituency that Scottish notes acquired during their stay would not be usable upon return to their native heath. 

As a footnote, we may observe that the takeover of HBOS (which included Bank of Scotland) by Lloyds TSB to become part of what will now be known as Lloyds Banking Group was finally approved in the Court of Session by Lord Glennie on 12 January 2009, with the UK Government owning just over 43% of the group’s shares.  A petition had been lodged by shareholders questioning the Scheme of Arrangement under which the merger was to go ahead.  The Group began trading as such on 19 January.  The Royal Bank of Scotland announced on the same day that it would post a new record annual loss for a British company when its 2008 figures were completed, the sum of between £20 and 30 billion easily worsting the previous record of £15 billion set by Vodafone in 2006.  The UK Government took its shareholding in RBS to nearly 70% to keep it afloat as the share price immediately dropped 67% to just over 11 pence.  Ouch, ouch, ouch – especially for Mr Ian Hamilton QC and all those other trusting (and possibly patriotic too) souls who took up the RBS rights issue at £2 a share in spring 2008.   

No such bad news yet about the Clydesdale, the third Scottish bank to issue its own banknotes. 

 

The Aberdeen Press and Journal reported on 17 January 2009 that Ian Hamilton QC, famous snatcher of the Stone of Destiny in 1950 and now at the age of 83 also an active member of the blogosphere, is suing the Royal Bank of Scotland in a small claims action in the Oban Sheriff Court.  His action is based on fraud and, in the alternative, negligence.

It appears that Mr Hamilton took up the RBS rights issue in spring 2008, buying 640 shares at just under £2 a share.  The shares are worth 35 pence as Mr Hamilton raises his action, with little prospect of the trend being reversed in the near or even distant future.  Mr Hamilton claims that the directors of RBS either knew that the bank was technically insolvent as they made the rights issue, or that it was negligence if they did not know.  Scots Law News thinks he may have a point. 

Some additional thoughts on the application of the criminal law to the situation may be found on Mr Hamilton’s blog, A Drunk Man Looks at the Thistle.  Scots Law News would certainly share the view that the issues here are at least as serious as those of the Sheridans, although perhaps not quite on the same scale as Sergeant Eros and the Naked Rambler.

On 16 January 2008 charges of police officer impersonation and breach of the peace against Stuart Kennedy, aka Sergeant Eros, in relation to an incident at the Tiger Tiger nightclub in Aberdeen in November 2007 were dropped by the procurator fiscal and the case not called at Aberdeen Sheriff Court.

The struggle between student Mr Kennedy (25), who dresses in police uniform as part of a stripogram act, and Grampian Police has been regularly covered in these pages, and the details will not be rehearsed here again.  There are still, Scots Law News thinks, at least a couple of other charges pending, so the story is not over yet.

But the media and the blogosphere got into a bit of a tizzy about the whole affair after The Scotsman newspaper published on 19 January the revelation that so far £170,000 of public money had been spent by Grampian Police in the pursuit of Mr Kennedy, with 22 court appearances to date and no convictions.  Daily Mail columnist Richard Littlejohn talked of “an outrageous abuse of police resources” and also alleged that “cops are subsidising their wages with part-time jobs, including throwing underwear parties … [O]ther officers … have a sideline knocking out lacy thongs and nipple tassels.”  The Mail also provided us with a sexy photograph of the great man.  The Independent dubbed Mr Kennedy’s act “the peeling policeman”, possibly missing an opportunity to talk as well about Peelers (see here for explanation if you don’t get it).  Coverage as well in The Daily Dust and Nerja News, via which the story even got to Spain.  For comment in the blogosphere see The Police Box, Fatmammy.com, Kansascity.com, and Dvorak Uncensored (photo here too). 

Alan Donnelly, local councillor for Torry and Ferryhill and a member of Grampian Police Board, said, “As far as I can see, they are hounding the guy when they should be combating crime on the streets of Aberdeen.  I don’t think it is in the public interest to be chasing around after students making a few bob on the weekends.”   But Colin Menzies, Assistant Chief Constable of Grampian, defended his force’s actions, saying “I am extremely disappointed that the force and our officers have come in for such criticism when I believe they have acted proportionately and with the greater interests of the community we serve at heart throughout.” 

The Scotsman article also helpfully summarises the content of Mr Kennedy’s act – “an initial five-minute introductory "police" routine, followed by a 20-minute striptease during which he is able to preserve his modesty thanks to a carefully positioned police hat” – notes that he charges £115 per show, and has several other routines – all this doubtless courtesy of publicist Caroline Weintz, who also gets a name check in the article.   Could she have anything to do with the international flurry of interest in all this, wonders Scots Law News? There's certainly a lot of other detail in the rest of the coverage mentioned above about Mr Kennedy which hasn't been available before, such as his training as a dancer. 

It will be recalled from a previous post that Mr Kennedy is moving to a career in shipping.  Suggestions of a name for a sailor stripogam act welcome, just in case the recession cuts off the avenue provided by the sea.  Captain Hook?  Hello Sailor?  Popeye?  The possibilities seem endless.

Our recent entry on the latest travails of the Naked Rambler prompted correspondence set out below.

Dear Mr MacQueen

I am a free-lance journalist reporting on naturist issues. I have been following your reports in Scots Law News on the case of the Naked Rambler. It would seem to me, that rather than advocating ASBO’s, lawburrows, or fines, it might exercise your students’ minds a little more if you set them the task of considering whether Mr Gough has indeed ever broken any laws. I’m sure I don’t need to remind you that in 2001, in the High Court of Justiciary, Lord Coulsfield held that breach of the peace required “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” and that “mere annoyance or irritation were insufficient”. Over the years, I have attended a number of Mr Gough’s trials, where he has arrived naked, and I’ve only ever seen general amusement, never alarm and disturbance. When Mr Gough first started his more-or-less continuous term of imprisonment, which will extend to nearly three years by the time of his next scheduled release, shadow justice minister Bill Aitken told me that he did not consider that a naked man walking down Prince’s Street would be committing the
offence. To date, two sheriffs have also judged that being released into the prison car park, taking half-a-dozen steps, and immediately being re-arrrested is not sufficient to sustain a charge of breach of the peace. I would ask you to put aside your obvious bias about Mr Gough’s behaviour, with which, incidentally, I do not personally agree, and consider instead whether a beach of the peace, as defined in Scots Law, has ever actually occurred.

Yours sincerely

Bob Janes

Dear Bob (if I may)

Thanks for your email below, and for your interest in Scots Law News.  The case on breach of the peace that you mention I covered here.  I think I've touched on the breach of the peace point several times in the course of covering Steve Gough's problems, e.g. here, here, here, and here.  The point really is that it is for the judge (generally speaking the Rambler's cases have been summary and not solemn prosecutions with a jury) to decide whether the accused's conduct is alarming or not; some in the Rambler cases have decided not but the great majority have held that it is, each no doubt taking account of the overall circumstances.

What concerns me in my latest entry is that the whole thing is now caught in a vicious circle which is doing nobody any good, whether Steve Gough, the police, the courts or the prison system.  Something needs to be done to break out of the loop, and I don't think it's going to be by way of saying that public nudity is not breach of the peace.  It's also been authoritatively ruled that appearing naked in court is contempt of court, and only the legislature can change that.  So it seems to me that we have to examine the alternatives to imprisonment.  I don't know whether any of them are possible for cases like this, but I would like to hear some debate about it.  Out of jail, Steve Gough and his supporters could then lobby the legislature to change the law, and maybe something might even happen to help their cause along.  But at the moment it's going precisely nowhere, and maybe even losing some of the support it has.

I don't think this is bias, just looking for some movement out of an impasse.

Cheers

Hector

Dear Hector

Thank you for your comprehensive reply. I had read your previous reports, and the relevant court judgements, and, with respect, I believe that in most of Mr Gough’s cases there has been no breach of the peace, simply institutional bias against public nudity. In the absence of evidence of alarm, a sheriff can surely only judge the issue on his subjective view of nudity and the public’s response to it. I only recall one instance of evidence of alarm being given to a court. That was in October 2006, when two officers sent to Saughton, specifically for the purpose of arresting the Naked Rambler, told the court that they were alarmed and distressed to see him naked. I would have hoped that Scots police were made of sterner stuff.

But the offence also requires a serious disturbance to the community.  Mr Gough’s release into the prison car park at 7.00am, straight into the arms of waiting police officers, could hardly have brought the lieges to the point of riot. Although I have not personally witnessed the public’s response in Scotland, I have seen BBC footage of Mr Gough receiving no small acclaim in the towns and villages through which he has passed. I could perhaps point out that on his last walk he caused no disturbance this side of the border, and no charges were made against him. He mostly attracts general merriment. Perhaps the Scots police could allow him to walk a little further, and thereby cause genuine alarm to reasonable people, and a serious disturbance to the peace of the community. They could then make out their case to the better satisfaction of those of us concerned with the rule of law, rather than knee-jerk reactions to what is unusual in society.

Contempt of court is historically concerned with impairing the administration of justice. As Mr Gough has now been convicted on numerous occasions, and served nearly three years in prison, it seems to many of us that the administration of justice, or at least the Scots version, has not been too severely impaired. Those that give his position unqualified support are actually quite few in number: but the number questioning the position and partiality of Scots Law is growing, and surely ought to give cause for
concern.

I do agree that there has to be a better way out of this. In October 2007, I collaborated with Mr Gough’s solicitor and the authorities on a plan that would have seen him leave prison naked, get into a police car naked, and be driven naked to a naturist magazine’s office in Yorkshire. Unfortunately, he discovered that he was a free man and could not be forcibly repatriated, and got out of the car, only to be re-arrested. An alternative would be to transfer him to a prison in England to serve his sentence closer to his friends and relatives. On release, the police here would be unlikely to arrest him. We can cope with it. His supporters might then have a chance to convince him that Scotland, like the past, is a foreign country: they do things differently there. And he might just as well campaign in Teheran. I can’t guarantee that he won’t be back, of course.Whilst I personally find much of Mr Gough’s behaviour to be boorish and ill-conceived, I do obviously seek to convince you to take a more robust stance on the substantive issues.

And also, let me put it to you as an academic lawyer. Surely, the only right we have, in a civilised society, to impose our will against that of Mr Gough is to prevent harm to others. Here’s a challenge: can you, or any of your faculty, show to me that Mr Gough is in some way harming others, and in a way proscribed by law? If not, then, over himself, over his own body and mind, Mr Gough must remain sovereign. As, indeed, he seems determined to do. He merely seeks not to wear clothes, if he so chooses. A right enjoyed by every dog in the street.

You may use any part of this correspondence to stimulate debate.

best wishes

Bob

Any answers on an email to the editor!

Two Scots lawyers were among the names in the New Year Honours list published on 31 December 2008.

Andrew Cubie WS, already a CBE, was knighted for public services in Scotland, while Professor Alan Paterson of Strathclyde University Law School received an OBE for services to legal education and to law.

Our congratulations to both.

No time for Christmas festivities at the Times, clearly, as it published an important judgment of the Privy Council on Boxing Day 2008. 

In Burns v HM Advocate, Advocate General for Scotland intervening [2008] UKPC 63 the issue was one of delay incompatible with the right to a fair trial within a reasonable time under Article 6(1) ECHR.  The accused, who lived in Scotland, had been arrested and interviewed in February 2003 by police officers in England.  They had told him there was sufficient evidence to charge him with child pornography offences in either England or Scotland.  He eventually appeared on petition in the latter jurisdiction in December 2004 and was indicted to stand trial there.  The Privy Council held that the reasonable time began to run from the date of the interview in England rather than from the notification of charges in Scotland, overturning the earlier decision of the High Court of Justiciary and Sheriff Mitchell in Glasgow Sheriff Court.  There was no decision on whether the delay in the case was unreasonable,

Giving the judgment of the Judicial Committee, Lord Rodger of Earlsferry said that the case was a good example of the public interest requirement that authorities on either side of the border should cooperate as much as possible, with the minimum formality, in the investigation and prosecution of crime.  It would be highly artificial to treat the actions of the prosecuting authorities in Scotland as if they were divorced from earlier events and particularly the actions of the officers from the unit in England. 

The case is also notable for the appearance on the Committee panel of Lady Cosgrove, who gives a concurring judgment emphasising the significance to be attached to substance over form in the determination of reasonable time under Article 6(1) ECHR.  Since Lord Hope of Craighead was also on the panel, this meant that three of the five judges were Scottish, a further indication of the extent to which since devolution the Privy Council has become a third-tier court in the Scottish criminal justice system.

The first case on cohabitants’ succession rights under the Family Law (Scotland) Act 2006 ended in the failure of the claim in a judgement noted in Scottish Legal News on 24 December 2008. 

James Savage applied to Falkirk Sheriff Court for assets worth £186,000 that formed the estate of his late cohabitant Graham Voysey, who died in April 2007.  The couple had lived together from October 2004 until Mr Voysey’s death, in homes owned by Mr Voysey.  They did not enter a civil partnership, however.  Mr Savage’s application was opposed by Mr Voysey’s half-sister Sandra Purches.  Mr Savage and Ms Purches each received a lump sum of £124,840 from Mr Voysey’s occupational pension, and the former was also entitled to an annual pension payment, the value of which was £298,900. 

The sheriff’s judgement is not yet available on the Scottish Courts website, so comment cannot be offered here.  The earlier succession case of Tatiana Chebotarava v Dorje Khandro, decided in Stirling Sheriff Court on 28 March 2008,and noted here in Scots Law News, failed on grounds of lack of jurisdiction rather than on the merits of the claim.

News of the decision does however enable Scots Law News to note a previously overlooked decision on cohabitants’ rights under the Family Law (Scotland) Act, CM v STS [2008] CSOH 125, a decision of Lord Matthews issued on 2 September 2008.  This was a case about claims where a cohabitation relationship breaks down rather than being ended by the death of one of the parties.  After a 361-paragraph opinion, Lord Matthews awarded the female pursuer a total of £14,460.31, made up of a capital sum of £1,460.31 (rather than the £50,000 claimed), and £13,000 (rather than the £20,000 claimed) payable in monthly instalments of £400 in respect of the costs of bringing up the couple’s two children. 

Altogether, therefore, the courts do not so far appear to be taking an over-generous approach to the new rights of cohabitants. 

Scottish Legal News reported on 23 December 2008 that the Court of Session had struck down as illegal and unenforceable contracts between Newcastle-based English lawyer Stefan Cross and clients for whom he worked on equal pay cases in Scotland.

The opinion, if one has been issued, is not yet available on the Scottish Courts website, so the full story is not completely clear.  But it seems that Mr Cross specialises in equal pay cases against local authorities and charges clients 10% of whatever settlement he obtains for them, plus VAT.  The contract with clients also contains clauses covering the eventuality of clients changing their lawyer or otherwise terminating the contract, with charges of £500 for each period of six months during which Mr Cross acted for them, payment of his costs in the event of the case being won, and 10% of the compensation eventually achieved.  All this certainly smacks of the illegal pactum de quota litis and the unenforceable penalty clause, but in the absence of a published opinion it is not yet possible to say what the legal significance of the case may be.  Conditional fees of the type apparently used by Mr Cross are legal under certain conditions in England, but the position is of course different in Scotland, where it is lawful to agree that the lawyer gets paid only if the case is won (the speculative action) but not to fix a percentage of the client’s winnings as the amount of the fee.  It has been legal since 1990 for the lawyer and client to agree a percentage increase in the former’s fee in the event of success in the action (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 s. 36). 

The case in question was one where Mr Cross had begun to act for an Edinburgh City Council employee who had subsequently discovered that her trade union (Unison) was already dealing with her claim along with many others.  As a result, the employee terminated her contract with Mr Cross, who then claimed from her on the basis of the clauses in the contract described above.   It also seems that Mr Cross has acted for many other clients in Scotland.