No jail for Eros, but the Rambler gets a year

Police stripogram Stuart Kennedy managed to avoid jail on 16 July 2009 following his earlier conviction for impersonating a policeman, while on the same day Naked Rambler Steve Gough received a sentence of one year for breach of the peace plus four months for contempt of court.

At Peterhead Sheriff Court, Kennedy, professionally known as Sergeant Eros, was fined £400, ordered to carry out 200 hours community service and placed on a year's probation.  At Perth Sheriff Court, Gough refused to appear clothed for his trial (the contempt).  The trial proceeded with the accused surrounded by screens to shield him from the public gaze, and he was duly convicted.

The BBC gives a verbatim report of exchanges between Gough and presiding Sheriff Richard MacFarlane rather more coherent than those Gough had last week with Sheriff Fletcher: it seems that Gough was offered the opportunity to go free on bail if he would do so clothed, but this was refused, with a preference for martyrdom being expressed.

Book your seats: Sheridan show back for another successful run

Another show starring Tommy and Gail Sheridan previewed in the theatre of the High Court of Justiciary in Edinburgh on 13 July 2009, promising entertainment in 2010 exceeding anything likely to be found on this year's Festival Fringe – or next year's.

The Sheridans pleaded Not Guilty to charges of perjury in connection with the great defamation case of 2006.  Trial will begin in January 2010.  Apparently the Crown proposes to call over 180 witnesses, so the case looks likely to last even longer than the five weeks of the defamation case. 

Can't wait.

The Marco Polo and the bug: breach of contract, frustration, restitution and damages?

The outbreak of the norovirus affecting some 400 passengers on the cruise ship Marco Polo, and eventually forcing the cruise's abandonment after a few days berthed at Invergordon, Easter Ross (6-9 July 2009), raised some interesting questions about the relevant contractual entitlements, albeit that the ship's owners, Transocean Tours of Bremen, eventually offered passengers a full refund plus some other goodies in compensation.

Presumably the non-completion of the cruise was a breach of contract by the shipowners unless it could be argued that the contract was frustrated by events effectively beyond their control.  That in turn might raise questions about failure to maintain the ship as bug-free as another breach of contract.  Those passengers who left the ship at Invergordon to make their own way home were presumably rescinding the contract on grounds of material breach by the shipowners; and rescission can carry with it an entitlement to restitution, as indeed the shipowners went on to tender.  But one of the unanswered questions in cases like this, at least so far as Scots law is concerned, is whether any credit should be given for that part of the contract which has been performed, i.e. in this case, the cruise as far as Invergordon.  Frustration of contract can also give rise to claims of restitution on the basis of the condictio causa data causa non secuta (or, more obscurely – see the writer's forthcoming Unjustified Enrichment Law Basics 2nd edition – the condictio ob causam finitam).  The passengers might also have a claim for damages for breach of contract, with their loss being primarily the disappointment of the cruise's non-completion.  Of course, much would turn on what the express terms of the contract said, but exclusions or limitations of liability would probably be subject to the controls of the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999.

width=103It is all rather disturbingly similar to a problem composed by the writer many years ago for an electronic tutorial programme called Scots Law Courseware, accessible here.  There, however, the cruise ship sank on the rocks of Barra Head (pictured) rather than being laid low by the norovirus.  It begins to sound like one of these "Would you rather" jokes.  Happy holidays – but contract law is on your side.

Naked rambling in Perth Sheriff Court

Steve Gough the Naked (and this time he was) Rambler pleaded Not Guilty to a charge of breach of the peace when he appeared in Perth Sheriff Court on 2 July 2009 ahead of a trial set down for the 16th.  But there was some verbal rambling during his appearance (this time without, it seems, the benefit of any professional advice).

The Perthshire Advertiser for 3 July, having told us that Gough had been allowed to appear without clothes after the court had been closed to the public, gives us the following exchange between Sheriff Michael Fletcher and Gough:

Sheriff Fletcher: "The trial will take place here on July 16.  You will not be allowed to attend without covering yourself.  Do you understand that?"

Steve Gough: "I do.  It seems to be different every time."

Sheriff Fletcher: "I have just told you what it will be this time."

Steve Gough: "That's news to me."

It also appears that Gough will represent himself at the trial, and that the prosecution's main evidence will be that of two police witnesses.  Here we go again, it seems.

Lockerbie update

The long drawn out saga of both the Megrahi appeal and his possible transfer to Libya under an inter-governmental agreement continues, with little sign of a conclusion in sight – indeed with possible conclusions delayed.

As Justice Secretary Kenny Macaskill met and spoke with Libyan government representatives, UK relatives of some of those who died in the bombing of PanAm Flight 108 over Lockerbie in 1988, and the US Attorney General, as well as apparently preparing to meet with Megrahi himself, it was announced on 7 July 2009 that the judgment in the latest stage of Megrahi's appeal against conviction, previously expected in July, would not be published before mid-September.  This was because one of the judges in the case, Lord Wheatley, had had to undergo heart surgery and would not be fully fit until the early autumn.  The Lord Justice General indicated that the judges had done significant work on the case prior to Lord Wheatley's admission to hospital, but "complex and difficult issues" still awaited resolution.  The concerns over the apparently deteriorating state of Megrahi's own health (he has prostate cancer) were recognised in Lord Hamilton's remarks but "regrettably the court is unable to accommodate that".  Megrahi's counsel, Maggie Scott QC, was quoted as saying, "There is a very real risk my client will die before this case is adjudicated."

Sheriff Davidson vindicated

Regular readers will recall our February post narrating the decision of Dundee sheriff Richard Davidson to jail for three months a mother who was refusing to comply with his court orders to allow the father of her child access to the child.  Now the Second Division of the Court of Session has upheld the sentence.

The case went forward as a petition to the nobile officium, "the only competent procedure by which a sentence imposed for contempt of court in civil proceedings in the sheriff court can be reviewed" (Lord Justice Clerk Gill, para 2).  Lord Gill's is the only detailed opinion, and narrates the history of the case before Sheriff Davidson.  He concludes that the mother "has tried [Sheriff Davidson's] patience beyond endurance" (para 44), "contumaciously obstructed the progress of the sheriff court action … defied the orders of the sheriff … absented herself from hearings with no proper excuse … caused numerous continuations [and] … disregarded the consistent advice of a succession of solicitors" (para 41).  Lord Gill goes on:

"I can see no reason why we should recall this sentence.  If we did, we would encourage the petitioner in the view that it is for her to decide which orders of the court she will obey.  We would also undermine the authority of the sheriff and deprive the respondent of his rights.  In effect, therefore, we would perpetrate an injustice at our own hand." (para 46)

It also seems that when the jail sentence was first imposed, the mother was put in Corntonvale Prison but a petition for interim liberation was granted on her giving an undertaking to comply with the court orders.  But once out she did not honour the undertaking.  She also failed to appear initially at the hearings appointed for the petition to the nobile officium; and once she did appear, on 12 May, she appeared to faint and was taken to Edinburgh Royal Infirmary for treatment.  The clerk of court made clear to her that she should maintain contact and return to court if discharged from the hospital.  This she failed to do.  Finally, at a hearing on 15 May, she asked for four weeks' continuation to obtain legal representation; this the court refused and proceeded with the hearing, with the result already described. 

Just for good measure, Lord Gill goes on to find that the failure to honour the undertaking given when interim liberation was granted was also a contempt of court, probably meriting a severe sentence.  But, concludes the Lord Justice Clerk, "I think that we should give the petitioner the opportunity to reflect on the gravity of her conduct and to desist from it.  I therefore propose that we should defer sentence … for six months."