Avoiding time limits in criminal appeals

The decision in Kelly v HMA [2010] HCJAC 20 is not of itself of much import, but there are interesting comments from the Court of Criminal Appeal on the process whereby individuals are applying ot the Scottish Criminal Cases Review Commission, having previously failed to meet statutory time limits for appeals, or to apply for extensions to those limits.

The court notes at paras [14] and [15],

"We would only add that this case appears to give rise to questions similar to those raised by the court in Hunt v Aitken 2008 SCCR 919 following a referral by the Commission. In that case an appeal by way of stated case was deemed abandoned by reason of the appellant's failure to comply with certain statutory requirements, and an application by him to the court for further time within which to comply was refused. Notwithstanding this the Commission referred the matter to the court, which heard an appeal presented by way of bill of suspension. Reflecting on its statutory discretion to allow further time, the court observed that the "court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal", and further that the interests of justice were "not well served by an approach which too readily excuses failures to comply with the statutory requirements." The court went on to say:

"(5) Against that background, the question of interest to the court was whether, in a case where the statutory requirements had not been complied with and the court had refused to allow further time, those statutory provisions could be circumvented, and effectively set at nought, by means of an application to the Commission and the subsequent referral to the court, or whether (and if so, how) the appellant's failure to comply with those statutory provisions should be taken into account: for example, by the Commission (in the exercise of its discretion to refer under Section 194B, or its consideration under Section 194C of whether a miscarriage of justice might have occurred, or of whether it was in the interest of justice that a reference should be made), or by the court (in its consideration of whether there had been a miscarriage of justice)."

[15] There are a number of obvious differences in the present case, perhaps the most significant of which is that at no stage did the appellant seek to appeal against his sentence or seek an extension of time within which to do so. But the effect of the referral by the Commission is that this court is bound to consider the appeal regardless of what it might have done if an application for an extension of time had been made, and by virtue of the Act of Adjournal (Criminal Procedure) Rules 1996 (Rule 19B.1(3)) leave to appeal is treated as having been granted without the need for any sifting exercise. Although in terms of Section 194B(1) of the Criminal Procedure (Scotland) Act 1995 it is, of course, competent for the Commission to refer a case even where there has been no appeal, the court understands that the Commission not infrequently requires applicants to apply for leave to appeal late before any application is considered. For whatever reason this was not done in the present case. It is, we consider, unfortunate, against the background of Hunt v Aitken, that it is not made clear in the Statement why this was not done, or whether any assessment was made of whether there was good reason for the appellant not appealing timeously or seeking an extension of time, and if so whether considerations of that kind played any part in the decision to refer, in particular the decision that it was, in the view of the Commission, in the interests of justice to do so. Although the fact that an appellant has failed to observe a statutory time bar, or failed to seek an appropriate extension, does not of itself necessarily mean that there has not been a miscarriage of justice, or that it is not in the interests of justice for the matter to be referred to the court, it ought, on the face of it, to be a relevant (perhaps highly relevant) factor, at least in relation to the latter consideration. As in Hunt v Aitken, however, there is a need to proceed with expedition in this case and the court was not favoured with submissions on these questions, which in an appropriate case would benefit from full discussion."



Criminal law in the Supreme Court

The judgments in the first two Scottish criminal cases decided by the Supreme Court were delivered in February.

Allison v HMA [2010] UKSC 6 was an appeal where the Crown had not (at the time of the trial) disclosed to the appellant and his legal team that a police interviewee (where the interview was introduced as evidence after his death) had a number of previous convictions and outstanding charges. The information was disclosed during the appeal to the Court of Criminal Appeal and the appellant argued that the failure to dislcose had deprived him of his right to a fair hearing under Article 6 of the European Convention on Human Rights. After a procedural problem (where the appellant had not raised the devolution issue in the appropriate way and leave to appeal was denied by the High Court) the Privy Council had granted leave to appeal and the procedural issues were not considered further before the Supreme Court.

In its decision the High Court had stated,

"We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases. While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty. If a case is outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence."

Lord Rodger who delivered the leading judgment dealt with this in strong terms.

"Previous generations of Scots lawyers and judges do not appear to have experienced the same “insuperable difficulty” as the appeal court." (para [8])

"The Privy Council’s decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that – just as in everyday life – judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. To judge from the passage quoted in para 7 above, the appeal court seem to have thought that this was an unprincipled and incoherent innovation. It is noteworthy that they did not refer to any authority. In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witness’s credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years." (para [10])

The Crown did not support the view of the Court of Criminal Appeal, and the only issue to be resolved was then whether the failure to disclose had made a significant difference to the decision. It was held that there had been no significant difference and consequently no miscarriage of justice. The appeal was dismissed.

McInnes v HMA [2010] UKSC 7 also involved the duty of disclosure. The appellant was convicted before the Crown generally made police statements available to the defence. His appeal was based on the non-disclosure of witness statements following an identification parade. The High Court had held that there was no miscarriage of justice. For the appellant it had been submitted that the proper question was not whether disclosure of the police statements would have made a difference to the outcome of the trial but whether it might have made a difference:  [2008] HCJAC 53, 2009 JC 6, para 15. The appeal court rejected this argument asking whether there was a real risk of prejudice: para 20. The case was appealed.

Within the judgment Lord Hope comments on the general scope of the appellate jurisdiction of the Supreme Court. He notes,

"Devolution issues as defined in para 1 of Schedule 6 to the Scotland Act 1998 mean questions about the legislative competence of the Scottish Parliament and the exercise or non-exercise of functions by members of the Scottish Executive. They do not extend to things that are done or not done by the courts. As I said in Robertson v Higson [2006] UKPC D2, 2006 SC(PC) 22, para 5, however, it can be taken to be well settled that it is open to the Supreme Court to determine under para 13 of Schedule 6 to the Scotland Act 1998 not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue: see also Mills v HM Advocate [2002] UKPC D2, 2003 SC (PC) 1, para 34. The question of remedy forms part of the devolution issue. So too does the test that is to be applied in determining whether the appellant is entitled to that remedy.

"In some cases these questions will give rise to no special features of Scots criminal law or practice. In others, as in this case, the reverse will be true. That does not mean that it is not open to this Court to determine the question. But we must be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland, and that when we are dealing with questions of this kind it is the law of Scotland that must be applied: see Montgomery v HM Advocate [2000] UKPC D2, 2001 SC (PC) 1, pp 12, 13; Robertson v Higson, paras 5, 6. In Spiers v Ruddy [2007] UKPC D2, 2009 SC (PC) 1, para 16 Lord Bingham of Cornhill referred to the need for reticence, given the Board’s restricted role in deciding devolution issues. It is not for this Court to comment on the test that is applied in fresh evidence appeals which do not raise a devolution issue. Its task is to identify the test where the complaint is of nondisclosure in violation of the article 6(1) right to a fair trial." (paras [4] and [5])

 The leading judgment of Lord Hope considers the test for the consequences of non-disclosure and concludes that,

"The question which lies at the heart of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence." (para [24])

The cases are considered in two blog posts on the UKSC blog by Aidan O'Neill QC. He comments on the substance of the decision and on the constitutional importance. In this latter post Mr O'Neill suggests that "that there are few if any criminal cases in Scotland in respect of which the London based court may claim jurisdiction and pronounce a remedy, whether affirming, modifying or overturning the decision of the Scottish criminal appeal court, whether on an accused’s appeal or that of the Crown." and concludes

"The intellectual calibre and experience in the criminal law of Scotland of the two Scottish Justices (Lord Hope and Lord Rodger) who currently sit on the UK Supreme Court is unrivalled.  But what has now been crafted is an institutional change which opens up Scottish criminal law and procedure to external scrutiny by non-Scots who will form the majority in most appeal to London.  This will inevitably lead to pressure for greater harmonization as between Scotland and the rest of the United Kingdom.   It is not self-evident that this should be a matter for any great regret."

Scottish Law Commission: 2009 Annual Report

The 2009 annual report of the Scottish Law Commission was published earlier this month. In the foreword to the last annual report SLC chairman, Lord Drummond Young, had raised concerns about the failure to implement SLC reports. He notes in his foreword this year a number of very positive developments within the devolved government and parliament including meetings with the Justice Secretary and minister for Parliamentary business, a meeting with the convener of the Justice Committee.

Lord Drummond Young welcomes these developments,

"Procedures are under consideration to increase the capacity of Parliament to deal with Scottish Law Commission Bills. At the same time the Scottish Government has announced its intention to engage in a process of formal consultation on our Reports on Succession, Damages for Psychiatric Injury, Damages for Wrongful Death, and Limitation. On the criminal side, our Report on Rape and Other Sexual Offences has been implemented in the Sexual Offences (Scotland) Act 2009. Finally, in the Criminal Justice and Licensing (Scotland) Bill that is presently proceeding through the Scottish Parliament three of our reports are included; these are the Reports on Insanity and Diminished Responsibility, Age of Criminal Responsibility and Crown Appeals. In addition, the Cabinet Secretary for Justice has agreed that it would be useful if, following the publication of our reports, the Government were to issue a statement of its position on our recommendations. This is excellent progress, and I look forward to seeing practical results from these changes."

Lord Drummond Young has, though, strong words for the UK government and its engagement with law reform projects with a bearing on Scots law.

"Unfortunately the desire shown by the Scottish Government to promote the reform of Scots law is not replicated at a United Kingdom level. In 2003, together with the Law Commission for England and Wales, we published a Report on Partnership Law. In Scotland there is an almost universal view that major reform of this area of the law is plainly necessary; the law is based on a statute 120 years old, and has failed to keep uptodate with modern commercial developments. The Report met with opposition from one section of the English legal profession, however, and the reaction of the Department of Trade and Industry (now the Department for Business, Innovation and Skills) was to decide that nothing should be done to implement the Report. This is not satisfactory so far as Scotland is concerned. In 2009 the Commission published a Report on Unincorporated Associations, another area of the law that is in serious need of reform. We have not yet had any reaction from the United Kingdom Government. If the devolution settlement is to work properly, however, it is vital that United Kingdom Departments should take their responsibilities to Scotland seriously.

"In view of the attitude of the Department of Trade and Industry to the reform of Scottish partnership law, I note with some concern a recommendation of the Calman Commission that the UK Insolvency Service (part of DBIS) should be made responsible for laying down rules to be applied by insolvency practitioners in Scotland as well as England and Wales; in effect this means the rereservation of certain parts of insolvency law. It is not clear precisely what is meant by this recommendation, but if it means that all legislation bearing on insolvency is to be reserved toWestminster, under the control of DBIS, the result would, I fear, be that the sensible reform of Scottish commercial law becomes impossible."

It is to be hoped that the UK government – when out of pre-election purdah – takes Lord Drummond Young's views on board. While the Scottish courts and practitioners are responding to modern commercial developments through changes in our systems of civil procedure and in practice, such changes will ill-serve clients if our commercial law ossifies.

On Lord Drummond Young's final point I am reminded of a hustings meeting prior to the devolution referendum where among the speakers was Nigel Griffiths (soon to stand down as an MP). At that point Mr Griffiths was the minister with responsibility for corporate insolvency, and I asked a question about insolvency and the devolution settlement. I was not reassured by a reply from the minister responsible indicating that there were no particularly Scottish aspects of insolvency law.

Scottish Law Commission: Eighth Programme of Law Reform

The eighth programme of Law reform from the Scottish law Commission was published earlier this year.

The Eighth Programme includes some  ongoing work from the seventh programme as well as identifying a number of new projects. The SLC began work on the programme at the beginning of this year and will work on the programme until the end of 2014. The programme was prepared following extensive consultation with the legal profession and other interested bodies (and for the first time a webpage inviting suggestions from the public). The SLC notes that "Two of the new projects reflect suggestions made by consultees, and the scope of two projects being carried forward has also been changed significantly following comments by consultees."

Four projects are carried forward from the previous programme:

  • Security over corporeal and incorporeal moveable property; assignation of incorporeal moveable property (this is much broader in scope than the original project which planed to look only at incorporeal property)
  • Trusts
  • Judicial factors
  • Homicide

In addition six new projects are identified:

  • Criminal liability of partnerships
  • Law of contract in light of the Draft Common Frame of Reference
  • Adults with incapacity
  • Compulsory purchase
  • Heritable securities
  • Prescription and corporeal moveable property

In addition to its work under the Programme the Commission will continue to deal with requests for advice received from the Scottish Government and UK government departments (including the consideration of Similar fact evidence and the Moorov doctrine – an aspect of the World's End reference).

Additionally, the SLC will co-operate with the Law Commission for England and Wales. Current work is progressing on the law of insurance; and level crossings.

JUSTICE report on devolution and human rights

In early February JUSTICE, the all party law reform organisation, published a report on "Devolution and Human Rights". The report considers political aspirations (particularly from the COnservative party) to repeal the Human Rights Act 1998, replacing the incorporation of the European Convention on Human Rights with what some refer to as a homegrown Bill of Rights. Such suggestions excite newspapers – primarily tabloids who give their standard Pavlovian responses (usually involving assertions about burglars having too many rights, while complaining about householders not being able to kill them (or at the very least violently assault them) without some form of legal consequence).

The dog that – up until now – hasn't barked in these considerations is how this will impact on the devolution settlements where the powers of the Scottish Parliament and the Scottish government have to be exercised in accordance with the ECHR. JUSTICE predicts that "it would be extremely difficult, and probably impossible, for Westminster to legislate for a bill of rights without the approval of the Scottish Parliament and the Northern Irish Assembly."

Roger Smith, Director of JUSTICE, said:

"Repeal or substantial amendment of the Human Rights Act will require changes to the devolution settlements for Scotland, Wales and Northern Ireland. This is likely to prove a legal and political nightmare.

"The devolution settlement is incredibly complex. The consent of the devolved Parliaments – certainly practically and probably constitutionally – will also be required. This is not a project in which Westminster can go it alone. Any attempt to introduce a UK-wide Bill of Rights would need to be a joint enterprise of all four parts of the UK."

A collection of articles and blog post considering the report are gathered at the UKSC blog here (with thanks to Professor MacQueen for this link).

Scottish Government publishes consultation on independence referendum

The Scottish Government published a consultation paper on its proposed Referendum (Scotland) Bill on 25 February 2010.  Under the Bill, the Scottish people will be asked to vote on whether Scotland should become an independent nation or if the Scottish Parliament should have wider powers than at present.

Whatever the outcome of the consultation, it seems unlikely that any subsequent Bill will pass the Scottish Parliament, because the three main opposition parties are unanimous in their opposition.  Only the Green Party supports the SNP Government's wish to hold the referendum.

The heart of the proposal is summarised thus in the consultation paper:

The Scottish Government plans to introduce the Bill in 2010 and will be seeking the agreement of the Scottish Parliament that the referendum should be held as soon as possible.  The Scottish Government believes that Scotland’s future interests would be best served by it assuming all of the responsibilities and rights of a normal European state.  Independence would give the Scottish Parliament and Government full responsibility for those matters currently reserved to the United Kingdom Parliament and Government, including key economic and political powers and the right of representation for Scotland in the European Union.  Other aspects of an independent Scotland would remain the same.  Her Majesty The Queen would remain as Head of State and the social union with the remainder of the UK would be maintained, with the nations continuing to co-operate on a range of matters.

However, the Scottish Government acknowledges that there is also support for extending the powers of the Scottish Parliament in more limited ways. The draft Bill would provide the people of Scotland with the opportunity to vote on two questions:

• the first about an extension of the powers and responsibilities of the Scottish Parliament, short of independence;
• the second about whether the Scottish Parliament should also have its powers extended to enable independence to be achieved.

The Scottish Government invites views on two possible options for the first question, one of which would be included on the referendum ballot paper. The first option, full devolution (sometimes called “devolution max”), would give the Scottish Parliament and Government responsibility for almost all domestic matters and most revenues and public spending in Scotland. The UK Parliament and Government would continue to have responsibility for defence, foreign affairs, financial regulation, monetary policy and the currency.

The second option for the first question would involve a more limited extension of devolution based on the financial recommendations made by the Commission on Scottish Devolution (the “Calman Commission”) in June 2009. The Scottish Parliament would have the following additional responsibilities:

• responsibility to set a Scottish rate of Income Tax, which could vary by up to 10p in the pound from the rate in the rest of the UK;
• power to set the rates of Stamp Duty Land Tax and other minor taxes, and to introduce new taxes in Scotland with the agreement of the UK Parliament; and
• limited power to borrow money.

The Scottish Government believes that these Calman Commission proposals for financial devolution are seriously flawed and fall far short of the fiscal responsibilities which the Scottish Parliament requires. It believes that they also fall short of what would normally be seen as requiring a referendum. Indeed, those parties who took part in the Calman Commission have made clear their view that a referendum on these proposals is not necessary. However, the Income Tax proposal goes further than the tax-varying power which resulted from the vote in the second question in the 1997 Scottish devolution referendum. Therefore the Scottish Government can see that there is an argument for including the Calman financial recommendations within a multi-option referendum and that approach is put forward here for consideration.

[The consultation] also considers possible voting methods for a multi-option referendum. The method proposed – two questions with yes/no answers – is simple, provides a definitive result and is the same as that used in the 1997 referendum on Scottish devolution. A “yes” result for either question would be on the basis of a simple majority (more than 50%) of votes cast.

The referendum will be advisory, in that it will have no legislative effect. However, the Scottish Government would expect the UK and Scottish Parliaments and the respective Governments to listen to the views of the Scottish people and act on them.

First Scottish decision in the Supreme Court

Grays Timber Products v HMRC [2010] UKSC 4 – a tax case – was the first Scottish decision in the Supreme Court with speeches issued in early February from a bench comprising Lord Hope, Lord Rodger, Lord Walker, Lord Brown, and Lord Kerr. As with other Supreme Court decisions the decision was accompanied by a very helpful press release summarising the facts, and the reasons for the decision.

This press release summarises the facts as follows,

"The Appellant (‘Timber Products’) is a wholly-owned subsidiary of Gray’s Group Ltd (‘Gray’s Group’). It appointed Mr Alexander Gibson (‘G’) as its managing director. G became party to a subscription and shareholders’ agreement (‘the subscription agreement’) under which he paid £50,000 to take up 6% of the shares in Gray’s Group. These shares were ‘employment related securities’ for the purposes of Chapter 3D of the Income Tax (Earnings and Pensions) Act 2003 (‘ITEPA’). When all the shares in Gray’s Group were later acquired by a purchaser (‘P’), G was entitled under the terms of the subscription agreement to a disproportionately large amount of the price paid – just over £1.4m rather than the £0.4m that would have been the normal value of his 6%. The Revenue determined that the £1m difference (‘the £1 million’) between these two figures was employment income under the provisions of ITEPA. This meant that it was subject to income tax and national insurance contribution rather than capital gains tax. The Appellant’s appeals to the Special Commissioner and to the Court of Session against this determination were dismissed."

The appeal was dismissed with a leading judgment from Lord Walker, substantive judgment from Lord Hope, and the other judges agreeing with both judgments.

The summary of the judgment explains the grounds for the decision,

"The main controversy in the appeal was whether, under the test laid out in s. 446X of ITEPA, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal [2]. If so, then the excess (less the costs associated with completing the transaction) would be treated as employment income [2]. ITEPA 2003 had adopted the definition of ‘market value’ set out in capital gains tax legislation [22]. This required consideration of what a hypothetical purchaser would pay to acquire the rights attached to the shares [49]. Two questions emerged: (1) whether G’s shares were to be valued simply as shares whose rights were set out in Gray’s Group’s articles of association, or whether his special rights under the subscription agreement were to be taken into account as if they were set out in the articles and (2) if the latter, what effect those special rights had on the valuation exercise [25].

"The first question could be divided into two parts: (a) whether the special rights should be taken as attaching to the shares as a matter of company law and (b) whether Part 7 of ITEPA, which also dealt with other financial instruments, should be taken as consistently requiring such special rights to be taken into account in the assessment of market value [26].

"On (a), shareholders’ mutual obligations were normally set out in the company’s articles of association, and Gray’s Group’s articles said nothing about special rights attaching to G’s shares on their disposal [27]. A clause in the subscription agreement did state that the agreement’s provisions should prevail over the articles, but there was a previous House of Lords case which suggested that such a provision would have no effect [31]. That case had not been cited in argument before the court, and might require further legal submissions, but was not decisive owing to the conclusions reached on other points [32].

"On (b), elsewhere in Part 7 of ITEPA, in relation to other financial instruments, similar special rights did affect the market value of the asset in question [33]. The principle that tax is to be charged only by clear words was less potent than it had been, but was still relevant to interpreting tax laws. There was real doubt as to whether Parliament, in Part 7 of ITEPA, had enacted a scheme which drew a coherent distinction between the treatment of rights attaching to shares and those attaching to other financial nstruments [37].

"The appeal was dismissed on the second question. When P purchased Gray’s Group td, it was not concerned with the division of the sale price between the vendors, except in so far as that might have adverse tax consequences for Timber Products [38]. Whether it was right to say that G’s special rights did in some sense attach to the shares or not, those rights had no value to the hypothetical purchaser [40, 49]. They were rights personal to G [51] and were  extinguished by the payment which G received [50]. The valuation did not have to take account of the actual sale of G’s shares at a special price enhanced for reasons relating to G’s special position as managing director [43]."


The finality of High Court appeals and the nobile officium

In late January there was a petition to the nobile officium by William Beck, Nat Fraser, Luke Mitchell, Colin Murphy, and Alexander Gallagher ( [2010] HCJAC 8) challenging the finality of the disposal of their cases.

Beck, who had been convicted of assault, argued that the hearing of his appeal in 1982 was at common law unfair, with particular regard to the circumstance that he did not then have the benefit of legal aid; Fraser – a convicted murderer – that he was denied a fair hearing, or the appearance of a fair hearing, as the court decided the appeal without reference to the Human Rights Act 1998; Murphy – a convicted murderer – that although the ground of appeal advanced on his behalf made no reference to the trial judge's direction on provocation, there was an arguable ground in that respect which ought to have been specified by the judges who considered his note of appeal and he was therefore denied a fair hearing; and Gallagher – who had been convicted or murder and subsequently had his conviction quashed – who objected that he had not had a fair hearing in relation to the Crown's motion for a retrial.

A bench of five judges (the Lord Justice General, Lord Kingarth, Lord Eassie, Lord Reed, and Lady Dorrian)heard the case and in an opinion delivered by the Lord Justice General gave useful guidance on the role of the nobile officium – indicating that it cannot be used to challenge the finality of a decision unless there were exceptional circumstances such as where the High Court on appeal has exceeded its powers – for example as in Hoekstra v HMA 2000 SCCR 367 where a judge was disqualified from sitting the interlocutor pronounced could be set aside; or as in Beattie, Petitioner 1992 SCCR 812, per Lord Justice General Hope at p 816 where the High Court had not acted in accordance with the relevant legislation.

The argument presented by the petitioners was that where a decision of the High Court on appeal had not been made in compliance with the European Convention on Human Rights it was unlawful, and accordingly open for review applying section 6 of the Human Rights Act 1998. However, the court of 5 judges points out that remedies under the Human Rights ACt may only be brought in the civil courts.

On whether the legislation on the finality of the decision from the High Court needs to comply with the Convention the court of five judges states at para [33] that,

"It can be acknowledged that an interlocutor which is incompetently pronounced (as in Hoekstra v HM Advocate (No.2)) is open to challenge under the nobile officium. In that case, where the circumstances were extraordinary and unforeseen, the vice went to the root of the court's jurisdiction. But the proposition that the finality of an interlocutor is dependent on it being compliant with Convention rights is more difficult. Mr Shead [counsel for the petitioners] acknowledged that a decision of the High Court in its appellate capacity which turned on the consideration and determination of a Convention issue would not be amenable to the exercise of the nobile officium – albeit it was asserted, or even if it was plain, that a "wrong view" had been taken. Something extraordinary and unforeseen in the nature, at least, of a more fundamental basic vice involving non-compliance with the Convention, – for example, fundamental non-compliance procedurally with the right under Article 6 to a fair hearing of the appeal – would, on any view, be required. This may have been the basis on which the court granted relief in the case of Niall Macdonald, 17 July 2008, unreported, in which no Opinion was issued. The same may be true of Doherty, Petitioner 2004 SCCR 63, where again no Opinions were issued but the court's interlocutor (at pages 74-5) records that the effect of the interlocutor in question (which was held to be ultra vires) was inevitably to deprive the petitioner of his right under Article 6. In McSorley, Petitioner 2005 SCCR 508 no argument was presented on the matter of competency.

[34] Section 3 of the Human Rights Act 1998 is concerned with interpretation, albeit at times radical interpretation. Mr Shead did not formulate how the terms of section 124(2) might be modified to make them Convention-compliant. Any modification would require to "go with the grain of the legislation" (Ghaidan v Godin-Mendoza, per Lord Rodger of Earlsferry at para 121 and per Lord Nicholls at para 33)."

Although the court did not require to express a view because on the facts each of the cases failed to satisfy the requirements that there be a "procedural vice".

The petitions were therefore dismissed as incompetent.


J J (Hamish) Gow 1918-23 February 2009

Ross Macdonald of Dundee Law School has alerted Scots Law News to an announcement of the death a year ago of J J Gow, one of the leading figures of the post-war Scottish legal renaissance.

As the announcement makes clear, James John Gow (always known as Hamish) began his law studies at Aberdeen in 1938 before commencing military service the following year.  He spent five years of the Second World War as a prisoner of war in a Japanese camp, before returning to Aberdeen to complete his BL in 1946.  He then began a PhD under the supervision of the then Professor of Scots Law at Aberdeen, T M Taylor, who subsequently became Principal of the University in 1947.  The thesis, entitled "The introduction of the theory of justice in Scots law", was completed in 1952 and contains a detailed discussion of the influence of Grotius on Stair.  Gow was appointed to an Aberdeen lectureship in 1951, under T B Smith who had succeeded Taylor in the Scots Law Chair in 1947.  But Gow did not continue long in this position and in 1954 he was appointed to an academic post in Tasmania.  So far as Scots Law News is aware, he never held any further academic post in Scotland.  By 1964, when his magnum opus The Mercantile and Industrial Law of Scotland was published, he was a Professor of Law in McGill University in Quebec.  And the death announcement explains, he was eventually appointed a judge of the County Court in Vancouver, whence he was promoted to the Supreme Court of British Columbia.  When he left the bench at the statutory age of 75, he went back into practice for another ten years.

During the 1950s and early 1960s Gow wrote prolifically, critically and often entertainingly about Scots private and commercial law.  He celebrated the qualities of Scots common law but lambasted the courts and practitioners who from the nineteenth century on had allowed, indeed strongly supported, an uncritical anglicisation of that common law.  His articles could be mind-bendingly difficult – see for example his three parter on error in contract (see (1952) 1 ICLQ 472; (1953) 65 JR 221; (1954) 66 JR 253) and his blast of the trumpet on constitution and proof of voluntary obligations (1961 JR 1, 119, 124) – but he could also produce marvellous titles – e.g. "Humpty Dumpty and the Whole Court" 1961 SLT (News) 105.  He could be quixotic, for example in his argument that, because the Sale of Goods Act was so bad, "the task of the Scots courts is … to seek to bring the statutory provisions into harmony with the principles of our common law" (Mercantile Law, p.76).  But, he added in an important caveat, the common law had to be developed to meet the needs of the community.  The introduction to Mercantile Law perhaps best sums up his approach:

Law, as Stair more than fully recognised, is a means of social control, one of the most important. … In this exceedingly complex society of ours what the lawyer dare not be without is a knowledge of the economic, political, and social facts of his civilisation.  He needs this knowledge not as a dilettante, not even as a matter of personal cultivation, important though that may be, but as a matter of professional competence. … [T]he inability of successive generations of Scots lawyers to master their contemporary social facts and hazard intelligent conjecture of future facts has done much to impair the efficiency of our legal system.

It is a sadness that this was in essence Gow's valediction to the Scottish legal system.  He did attempt a return in 1972 when he applied for the new Lord President Reid Chair in Law at Edinburgh University; but perhaps the enthusiasm and passion for law which is mentioned in his death announcement cost him dear.  The successful candidate for the Chair, the late W A (Bill) Wilson, used to tell the story of how, shortly after the appointment had been announced, he found himself in a social group with the University Principal, Sir Michael Swann, at the bar of the Staff Club in Chambers Street.  Swann told the company in entertaining style about how a few weeks before a candidate for a Law chair had talked himself out of the job during interview, so that the appointment committee had felt compelled to appoint the other candidate, whose name the Principal could not now recall.  It was at this point that Bill stepped forward from the ranks and, catching the Principal's eye, silently pointed towards himself.  Swann apparently was not in the least embarrassed, although he left the University shortly afterwards to head up the BBC instead.


Delineating catchment areas

In mid January Lord Uist decided Bowie v East Renfrewshire Council [2010] CSOH 6 on the delimitation of the catchment area boundaries for admission to St Ninian's High School in Giffnock.

The petitioner's family lives in Parkholm Gardens, Parklands Meadow, Glasgow and his daughter attends St Angela's Primary School in Glasgow City Council area. However, while most children attending St Angela's Primary School could attend St Ninian's High School the council argued that children living in residential developments built after a certain date could not do so. The council therefore proposed not a geographical boundary, but a limitation based on named streets. However, there was a map delimiting a boundary and while there was a consultation on the school catchment area by incorrectly delimiting the area the council consultation was flawed.

Lord Uist held (at para [26]),

"It seems to me that ERC have sought to give a far-fetched and strained meaning to that term by contending that it denotes a list of streets.  The existing streets within a delineated area at a certain point in time may certainly be specified (as they have been in this case) in order to elucidate or clarify the streets then existing in the area, but that does not convert the list of streets into the delineated area itself.  I refer in this connection to the statement made by GCC in response to the recent consultation process on St Ninian’s.  I would have thought that the meaning of “delineated area” was self-evident.  A delineated area is one thing: a list of streets is quite another thing.  The correct connotation of the word “delineated” was, I think, well expressed by Wells J in the Southern Centre of Theosophy case [an Australian case relied on by the petitioner, reported at (1979) 21 SASR 399] when he said that the core of the meaning of the word was to trace the outline of something on a map or plan. "

By reaching this decision Lord Uist therefore additionally held that the consultation was unlawful as the residents within the delineated area should be involved in the consultation.

The council confirmed earlier this month that it is not appealing the decision.


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