Month: November 2009

The Scots law of treasure trove sprang back to public attention on 4 November 2009 with the news that an amateur treasure hunter's find of prehistoric gold jewellery in a field somewhere near Blair Drummond in Stirlingshire was now in the custody of the Treasure Trove Unit, with the finder expected to benefit from a substantial reward of at least a six-figure sum.

But Scots Law News understands that the treasure trove system is under some pressure at present.  In the past it has always been taken to be superior to the English system, both in having a much wider definition of "treasure" not limited to precious metals and in the inducement it offers finders to report their findings to the treasure trove authorities through the prospect of reward even for non-precious finds.  But it appears that the rate of reporting finds in Scotland has fallen well behind that in England, where the system in force since 1997, the Portable Antiquities Scheme, seems to have been very successful.  Wikipedia summarises matters thus:

Finders of objects that are not treasure or treasure trove are encouraged to voluntarily report them under the Portable Antiquities Scheme to finds liaison officers at county councils and local museums. Under the scheme, which started in September 1997, the officers examine finds and provide finders with information on them. They also record the finds, their functions, dates, materials and locations, and place this information into a database which can be analysed. The information on the findspots may be used to organize further research on the areas.

The point is that despite the absence of a finder's reward for non-precious material in England the system for reporting finds is working much better from a general archaeological point of view.   And it works with "treasure" as defined in England as well: the recent discovery of an Anglo-Saxon gold hoard in Staffordshire was apparently first reported to the authorities under the Portable Antiquities Scheme.  So another cherished and ancient piece of Scots law looks to be under challenge and in need of review. 

Scots Law News' favourite sheriff court continues to provide a rich seam of material for the benefit of our readers.

The Herald for 5 November 2009 reports that a 22-year old man was convicted of breach of the peace in Perth Sheriff Court after challenging a lamp-post to a fight while he (the accused) was in a state of intoxication.  While not quite on the same level as some of our previous stories about men's relationships with inanimate objects – see here and here – this is certainly an impressive performance.  It is reported that the man shouted at the lamp-post to "come and have a go".  It surprised Scots Law News that apparently he didn't add "if you think you're hard enough".  The lamp-post is not reported to have made any complaint, but the man did also challenge first passers-by and then intervening policemen before his arrest.  He was sentenced to 80 hours community service.

Earlier, on 29 October, The Daily Express reported how Sheriff Robert McCreadie had sentenced an accused who had pleaded guilty to the charges against him to 80 days inside, but without first hearing the Crown on what had actually happened.  It appears that this was not the first such occurrence, and that in the previous instance the convicted man had actually spent a few hours in prison before being released as a result of the flaw in procedure.  In the latest case, the accused was still in court when the slip-up was spotted, so the sheriff was able to hear the Crown and then re-decide on his sentence.

The report on fatal accident inquiries written by Lord Cullen of Whitekirk was published on 3 November 2009.

Amongst the recommendations made in the report, the following caught the eye of Scots Law News:

"10.1 An FAI should, where possible, not be held in a sheriff courtroom but elsewhere in other appropriate premises; and, where it is unavoidable that the FAI should be held in a courtroom, care should be taken to select one which, along with its ancillary facilities, such as waiting rooms, has the least connection with criminal proceedings. I also recommend that in FAIs sheriffs and practitioners dispense with the wearing of wigs and gowns, and that sheriffs discourage the hostile questioning of witnesses save where it is essential for ascertaining the true circumstances of the death (paragraph 3.13). …

10.3 The Judicial Studies Committee should include the law and practice of FAIs in their seminars, and sheriffs should be encouraged to take advantage of attending them (paragraph 3.18).

10.4 It should continue to be mandatory that an FAI should be held into work-related deaths (paragraph 4.7).

10.5 The legislation in regard to "lawful custody" [i.e. sudden deaths of prisoners] (i) should be updated so as to refer to the Prisons (Scotland) Act 1989; and omit reference to borstal institutions; and (ii) should be extended to cover the death of a child while being kept in "secure accommodation"; and the death of any person who is under arrest, or subject to detention by, a police officer at the time of death (paragraph 4.14).

10.6 The category of cases in which an FAI is mandatory should include the death of any person who is subject at the time of death to compulsory detention by a public authority within the meaning of section 6 of the Human Rights Act (paragraph 4.20).

10.7 The category should also include the case of the death of a child who at the time of death was being maintained in a "residential establishment" (including secure accommodation) for the purposes of the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968 (paragraph 4.27). …

10.9 The Lord Advocate should be enabled to apply for a single FAI into multiple deaths in more than one sheriffdom; to direct which procurator fiscal will lead the investigation of the deaths, and in which sheriffdom the FAI is to be held (paragraph 4.35).

10.10 There should be an extension to the Act to make provision for the Lord Advocate to have a power to apply for an FAI into the deaths of persons normally resident in Scotland where the body is repatriated to Scotland, excluding cases for which provision is to be made in the Coroners and Justice Bill. The power of the procurator fiscal to investigate such deaths should be clarified, if necessary by legislation (paragraph 4.43). [The exclusion here would cover the deaths of Scottish soldiers on service overseas, for which see here.]

10.11 Where the Lord Advocate decides not to apply for an FAI, written reasons for the decision should be provided to relatives of the deceased when requested by them (paragraph 5.11).

10.12 There should be a central FAI team, led by an Advocate depute or a senior prosecutor, for ensuring that the knowledge, skills and experience of procurators fiscal for FAI work are adequate; for overseeing the training of procurators fiscal in such work; and for the setting of performance standards (paragraph 3.44).

10.13 The central FAI team should also have the responsibility for overseeing progress from the outset in all cases for which an FAI is mandatory or is likely to be recommended for exercise of the Lord Advocate's discretion. The main functions of the team should be to (i) track cases and record their history, with details such as the dates of death, the report to the procurator fiscal, any report by a specialist agency, any prosecution, the completion of investigation, and any report to Crown Office; (ii) ensure that the investigation and preparation by the procurator fiscal of each case is supported by adequate resources (including advice, staff and expertise), supplementing them where appropriate; (iii) give guidance to the procurator fiscal in the light of previous FAIs, including as to the choice of expert witnesses; and (iv) ensure that preparation proceeds as expeditiously as possible (paragraph 6.15). …

10.23 In regard to legal aid, relatives of the deceased should not have to justify the reasonableness of the granting of legal aid for their representation at the FAI and the Scottish Ministers should consider increasing the limit for legal aid in FAIs and the extent to which legal aid is available within that limit. Legal aid should, as a matter of course, be granted in any case where the participation of the relatives is necessary in order to comply with article 2 of the ECHR (paragraph 6.46).

10.24 The recognised participants who have the right to appear and adduce evidence at an FAI should be extended to include civil partners and cohabitants (paragraph 3.50). …

10.26 There should be a comprehensive self-contained set of rules for FAIs (paragraph 7.22). …

10.31 Subject to such redaction as may be appropriate, the Scottish Courts website should contain all determinations; and that the website should be fully searchable (paragraph 8.21).

10.32 When a recommendation is made by a sheriff, the entity or body to whom it is directed should be under a duty to make a written response to an appropriate department of the Scottish Government within a period set by the sheriff, stating whether and to what extent it has implemented, or intends to implement, the recommendation, or, if not, for what reason or reasons. Where implementation is stated as intended, there should be a further duty thereafter to confirm its implementation (paragraph 8.25).

10.33 The Scottish Government webpage should be revived and upgraded. It should show, under reference to the sheriff's determination, the text of the recommendation, to whom it was directed and its reasons, with a link to the full text of the determination on the Scottish Courts website. It should also show the text and date of the response or responses. The relevant department should also be responsible for publishing an annual report of the recommendations and the responses to them. The report should also be laid before the Scottish Parliament and the United Kingdom Parliament (paragraph 8.26).

10.34 When issuing the determination the sheriff should have power to direct to whom a copy of the determination should be sent for the dissemination of the lessons of the FAI (paragraph 8.28)."