Month: January 2010

Scots Law News has learned with delight that it has been nominated along with 141 other contenders for the prestigious Scotblogs Award 2010.  Please vote here for us before 8 pm on Friday 27 January 2010 if you would like to hear our acceptance speech, tears, thanks and all, at the award dinner (we hope).

We would like to thank whichever enthusiast has put our name up for this award.  We really appreciate your appreciation.  We also appreciate the organisers' instructions to the electrorate:

"You can vote for as many blogs as you like, but I suggest that you stick to a moderate amount. Perhaps 10 or 20 blogs would be about right."

Our suggestion is that only one blog should be voted for, but that you vote for it as often as you like.

Scotland's sheriff courts also opened 2010 with a bang, dealing firmly with long-time customer the Naked Rambler and ruling authoritatively that the perry concoction known as Lambrini is not a sparkling wine.

The more interesting case, decided by Scots Law News' old university chum Sheriff George Way at Dundee Sheriff Court, is the Lanbrini one.  A Dundee wedding venue (Mains Castle) served Lambrini at a wedding reception where sparkling wine had been ordered for toasts to the bride and groom at £3.60 per glass.  The Lambrini had been purchased from a cash-and-carry at £1.35 per bottle, each bottle yielding six glasses (22.5p per glass for the (surely few) arithmetically challenged amongst our readers).  The bottles carried a label describing the contents as a "slightly sparkling perry" and as having an alcohol content of 7.5% by volume.  Sheriff Way, a wine buff of many years' standing, declared in an authoritative ruling that Lambrini was "frankly an inferior product" and awarded the bride's father (who of course was the funder of the whole show) £324 damages for brach of contract, plus £50 for the general disappointment caused. 

Scots Law News has not seen the judgement, and wonders whether the £50 was only for the father's disappointment, or whether bride and groom, and perhaps other members of the party, were recognised as having a claim by way of the jus quaesitum tertio.  If so, was £50 enough?

The Naked Rambler case was simply a repeat of a now well-worn (is that the right adjective?) story.  The Rambler finished his last jail sentence on 17 December 2009, left Perth prison en deshabille, was arrested by waiting representatives of Tayside Police and appeared (still naked) in Perth Sheriff Court on 11 January 2010, charged with breach of the peace.  Sheriff Lindsay Foulis (another old university mate) remanded our hero in custody, an offer of bail if he would dress and go home to Hampshire having been declined.  Sheriff Foulis pointed out that there was every chance of the Rambler spending the rest of his life behind bars if the refusal to be clad continued.  And there the matter rests.

Two important judicial review decisions to get 2010 off to an impressive start in the Court of Session: one on Donald Trump's plans for a golf course in Aberdeenshire, the other upholding the Scottish Parliament's pleural plaques legislation.

In the Trump case, Forbes v Aberdeenshire Council and Trump International Golf Links 2010 CSOH 1, Lady Smith refused interim interdict to 85-year-old Mary Buchan Forbes who lives in a mobile home called "Paradise" on the Balmedie estate where the Trump Organisation has gained permission to construct a golf course and leisure development amidst controversy noted previously here in Scots Law News.  Mrs Forbes wants to challenge the grant of planning permission in a judicial review and sought interim interdict to prevent the works beginning in the meantime.  In a lengthy and learned opinion Lady Smith expresses doubts on whether Mrs Forbes has title and interest to sue, a prima facie case, and a case that has any strength on the merits; she also finds that the balance of convenience is in favour of the Trump Organisation.  Given that work on the development is apparently already well under way, this may well be the end of this particular story, at least so far as legal process is concerned.

The pleural plaques case, Axa General Insurance Ltd 2010 CSOH 2, is 249 paragraphs long, divided into eight chapters and helpfully provided with a table of contents by the judge Lord Emslie.  For the background see here previously in Scots Law News.  The Damages (Asbestos-related Conditions) (Scotland) Act 2009 survives the challenge.  Paragraph 249 of Lord Emslie's opinion really says it all: "In the result, the petitioners succeed on the issues of their own locus standi (chapter II above) and the competency of their common law challenge (chapter IV). However, they fail on all other issues, namely the locus standi of the third to tenth respondents (chapter III) and the merits of their various challenges to the 2009 Act based on article 6 of the Convention (chapter V), article 1 of the First Protocol (chapter VI) and common law "irrationality" (chapter VII). The petition must therefore be dismissed."  One suspects, however, that this story will not end here, and that a Division and then the UK Supreme Court will in due course be invited to give their views on this matter as well. 

On 7 January 2010 the Crown Office issued a "STATEMENT ON LOCKERBIE TIMER FRAGMENT CLAIMS", responding to a BBC Newsnight item the previous evening (which, ironically, could not be seen in Scotland because the item was shown after the show split from its UK to its Scottish version at 11 a.m.

The statement reads as follows:

"On 6 January 2010, the BBC’s Newsnight reported claims regarding the timer fragment (PT 35), which formed part of the case against the convicted Lockerbie bomber, Abdelbaset Ali Mohmed al-Megrahi.

The report included an interview with a consultant, Dr John Wyatt, who suggested that it was unlikely that the timer fragment survived the mid-air explosion over Lockerbie.

The trial court accepted evidence that the PT 35 fragment was part of the timer which had detonated the explosion on Pan Am Flight 103.

A Crown Office spokesperson said:

"The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. Mr Megrahi remains convicted of the worst terrorist atrocity in UK history.

Dr John Wyatt has never examined the timer fragment (PT 35) or the piece of clothing from which it was extracted by forensic experts, later identified as part of a shirt sold to a Libyan man in Malta two weeks before the bombing. Crown Office has not seen any report of Dr Wyatt’s findings, nor were we approached by the BBC for any comment. Had the BBC asked the Crown for a comment, it would have been possible to identify the errors in the report, including the inaccurate description of the piece of clothing as containing a label which said “Made in Malta”.

The steps taken by the police to identify the origin of the fragment were described in evidence to the trial court at Camp Zeist and conclusive forensic evidence proved that the fragment was part of the timer in the Improvised Explosive Device (IED), a Toshiba radio cassette recorder, at the time of the explosion which destroyed Pan Am 103.

It was reported in the programme that tests carried out by Dr Wyatt suggest that the fragment was unlikely to have survived the mid-air explosion and that the radio used in his tests “totally disintegrated” and “went into tiny, tiny bits”.

In fact, extensive explosives tests were carried out in the United States in 1989, some time before the fragment PT35 was extracted by the forensic experts,  as part of the Lockerbie investigation. The purpose of these tests was:

o to estimate the amount and location of the explosives used on PA103;

o to establish the extent of damage to the improvised explosive device (“IED”), the adjacent suitcases and their contents; and

o to ascertain what parts of the IED and its contents it was possible to recover and identify.

After a number of test explosions a detailed search was made and circuit board fragments, radio cassette casing and parts, fragments of instruction manual, the suitcase and clothing were all recovered in a condition which was consistent with the debris recovered in relation to the Lockerbie disaster.

The forensic evidence placed before the court included:

*Evidence about the appearance of the fragment;

*The fact that when it was recovered, it was embedded within a fragment of a blast damaged grey Slalom brand shirt, which had been found in Newcastleton, Roxburghshire on 13 January 1989 and which in the opinion of the scientists, had been packed within the suitcase housing the IED (the “primary suitcase”);   This piece of shirt did not, contrary to the claims made in the BBC programme, contain a label saying “Made in Malta”.

*Also embedded within that same clothing fragment were pieces of a Toshiba RT-SF 16 radio cassette recorder owner’s manual. Separately, another fragment of the owner’s manual was found on 22 December 1988 in Morpeth, Northumberland;

*The fragments of the owner's manual recovered from the grey Slalom shirt by the forensic scientists were found to have come from parts of the same page of the same manual, close to one another"."

The BBC programme is available on the iPlayer here – thanks to Scott Wortley for the link.

 

Scots Law News being of the view that the first decade of the twenty-first century does not end until 31 December 2010, a retrospective on the so-called 'Noughties' has been ruled out and with it a retrospective, or even an end-of-year quiz, on 2009 (especially this long after Hogmanay).  Instead, let's look forward into Twenty-Ten.

One event that appears certain to interest us in the next twelve months is the well-being or otherwise of Mr Megrahi of Tripoli, along with the question of whether there will be any further public inquiry into the events of December 1988 over Lockerbie.  It seems that at least some of the material that caused the Scottish Criminal Cases Review Commission to refer the Megrahi case back to the courts will be put in the public domain, but whether this will make governments or other possible holders of inquiries feel the need to hold expensive further public investigations must be doubtful.

The fate of the Calman Commission proposals and the Scottish Parliament Bill for a referendum on independence are not necessarily inter-twined but neither looks likely to be on the statute book by the end of 2010.  The Queen's Speech at Westminster on 18 November 2009 carefully avoided commitment to legislation: "In Scotland, my Government will take forward proposals in the Final Report of the Commission on Scottish Devolution."  One does not imagine that a Tory Government after May 2010 (which still seems to this non-expert the likeliest outcome of the inevitable UK General Election) will be any more enthusiastic – and quite possibly it will be even less so.  We are more confident in predicting that this time next year we will be taking a keener interest in the outcome of the Scottish Parliament election due in May 2011.  But who knows for sure?  Perhaps the SNP Government will fall during this coming year, if the opposition parties feel brave enough to force a vote of no confidence, and then we will be in uncharted waters for the Scottish Parliament anyway.

A legal question of some importance which seems sure to be ventilated further in 2010 is the decision of a seven-judge High Court that the human rights of a person detained and interviewed by the police in connection with an offence were not infringed by the absence of his solicitor at the interview (MacLean v HM Advocate 2009 HCJAC 97).  Since the European Court of Human Rights has held in Salduz v Turkey (Application No. 36391/02, 27 November 2008) that the presence of a lawyer at such interviews is essential to avoid infringement of Article 6 ECHR (fair trial), the decision of the Scottish court may surprise some; and the Supreme Court could well be asked for its views on the matter.  Since, as in the MacLean case itself, confessions elicited at such interviews are often a key component in prosecution cases, the matter is of considerable practical as well as theoretical importance.  It should be said that safeguards are in place for the detained person under the current law, since the interviews must be videoed and taped, and the record thus created made available in court.  So in the end it may be a nicer question than at first appears.

On a lighter note, we were pleased to note from the Aberdeen Evening Express in December 2009 that Sergeant Eros proposes to appeal against his June 2009 conviction for impersonating a policeman, noted here in Scots Law News.  No doubt he and other regulars such as the Naked Rambler and Captain Calamity will continue their excellent work in international promotion of the Scottish legal system and, in the Captain's case, increasing recognition that its mixed character is not confined to the hybridisation of the Civil Law and Common Law traditions.  The latest information Scots Law News has on the Forvik situation is the Shetlopedia article on the subject, here; it appears from this that the ownership of the island is now hotly disputed, never mind its status as a 'micronation'.  The Shetlopedia article also claims that the Forvik.net website is a spoof produced by opponents of Captain Calamity, opposed to his own Forvik.com; but it is quite entertaining and includes an alleged aerial view of the islet, so we commend it to our readers.

Finally, Scots Law News looks forward confidently to an ever-increasing readership in 2010, no matter how late we are with the latest news.  Others may be more regular and certainly more current, and we enjoyed the "Latest Scots Law News" feature on the Scotland against Crooked Lawyers website, the last item on which when we looked at it on 4 January 2010 was dated 11 August 2009; but what we think we have is always the last word on the subject.  A Guid New Year to ane and a'.

Property law correspondent Kenneth Reid has taken time out from editing the Edinburgh Law Review to draw our attention to Public Petition PE1297 now before the Scottish Parliament, which asserts the existence of a form of land tenure in the Scottish Highlands hitherto un-noticed in the standard works on property law in Scotland.

The petition is brought by Ranald Alasdair MacDonald of Keppoch, chief of his clan, and calls on the Scottish Parliament to urge the Scottish Government to investigate Scottish land ownership and tenure under the ‘Duthchas/Duthchaich’ or ‘native title’ system of land tenure.  The petition doesn't go into the details of the tenure but analogises it with udal tenure in Orkney and Shetland, mainly however to argue that as the Abolition of Feudal Tenure etc (Scotland) Act 2000 left udal law unaffected, so also should Ur Dutchas be preserved.  The petition also compares the claim with the 'native titles' one which have been litigated elsewhere in the world, notably in Australia in the Mabo v Queensland case in 1992.

MacDonald of Keppoch's ultimate aim is the recovery of his clan territory which, he says, was stolen or usurped from the indigenous peoples of the clan.  He has sought advice from leading conveyancer Professor Robert Rennie of Glasgow Law School as well as the Lord Lyon (a notable historian of Celtic law).  More detail about the claim is available at the clan website, macdonaldofkeppoch.org.

Our thanks to Elspeth Reid for alerting us to a sheriff's difficulties with some apparent psychobabble in a social work report for Paisley Sheriff Court, as reported by the BBC.

A background report on Robert Hynd, who had pleaded guilty to charges of assault and shoplifting, declared that he had "moved from pre-contemplation to being on the cusp of the contemplative and active stages of the change process."  Only on the cusp, though, as Mr Hynd had failed to appear to be sentenced.

A baffled Sheriff Ruth Anderson was unable to gain assistance on the significance of all this from defence agent Charlie McCusker and deferred her decision, presumably so that she could continue the contemplative stage of the sentencing process.