Month: May 2010

We at Scots Law News were deeply saddened to learn of the death on 24 May 2010 of Bill Stewart of Stirling Law School.

Bill Stewart gained his LLB at Glasgow University, graduating in 1979.  Having qualified as a solicitor, he was appointed to a lectureship at Strathclyde Law School in 1986, and quickly established a reputation by way of his many publications, especially on the law of delict and sports law.  He also practised sports law, notably in connection with football and skiing.  Sports law was not the only area in which his publications were pioneering; Bill also wrote the first book on the Scots law of unjustified enrichment (The Law of Restitution in Scotland: Being Mainly a Study of the Personal Obligation to Rederess Unjust Enrichment), published in 1992.  For many years he was the Scottish correspondent of the Restitution Law Review , keeping its readers informed annually about decisions in the Scottish courts and publications on the subject.  He went back into practice with MacMillans in Glasgow in the mid-1990s and became a partner in that firm, giving that up only a few years ago to help Stirling Law School launch itself as an institution accredited by the Law Society of Scotland to deliver a professionally qualifying LLB degree.  As the Stirling website says, "Bill was the warmest and most charismatic of individuals, adored by colleagues and students alike, and will be desperately missed. Our thoughts are with his family."

 

Borders correspondent William Windram has drawn our attention to the death on 7 May 2010 of one of the early stars of Scots Law News, Sheriff James Paterson, who sat in the sheriff courts of the Borders area for 37 years altogether, between 1963 and his retirement in 2000.

Back in 1998 Sheriff Paterson was the man before whom the trial of the Beef Warrior – a Lauder hotelier who served beef on the bone to his guests in defiance of the Beef Bone Regulations 1997 – began and seemingly ended when the sheriff dismissed the case on the grounds that the regulations in question (introduced to combat the spread of mad cow disease) were null and void, being "irrational and manifestly absurd".  This apparently led to Clarissa Dickson-Wright declaring Sheriff Paterson her "new hero".  Not so the Court of Criminal Appeal, however, which upheld the procurator fiscal's appeal in the case and instructed Sheriff Paterson to proceed to trial.  The case was however subsequently dropped when the Beef Bone Regulations were repealed.

Our correspondent thinks Sheriff Paterson may also have been the sheriff in the initial breach of the peace case which led on to the sex equality case about the Hawick Common Riding in 1997.  We cannot confirm this from our coverage of the story, although the sheriff who dealt with the actual sex discrimination case at first instance was Brian Reid, with the late Sheriff Principal Gordon Nicholson determining the appeal.

Earlier in his career Sheriff Paterson also took part in a case which, had we been around at the time, would undoubtedly have received the attention of Scots Law News.  This was the case of the Eyemouth prawns in 1973.  A 16-year old girl was charged with cruelty to animals by cooking live prawns on a hotplate at the fish processing plant in Eyemouth harbour where she worked.  Media interest and speculation abounded as the trial before Sheriff Paterson approached: were prawns animals and did they feel pain, or were their contortions on the hotplate simply a natural reflex action when taken from their usual environment?  Alas, before these interesting issues could be  aired in court, the prosection took fright and the case was dropped. 

When Sheriff Paterson left the bench in 2000, he was apparently the longest-serving judge then in Britain.

Full obituaries of Sheriff Paterson, who was of course an Edinburgh law graduate, in The Selkirk Advertiser, The Scotsman, and The Herald.

A PS from Matt Jackson, advocate: "Sheriff Paterson was known , affectionately, by those who appeared before him as the Great Purple People Eater!" (added 10 June 2010)

The UK General Election on 6 May 2010 led ultimately to the formation of an unlikely Tory/Lib-Dem coalition government, a still almost Tory-free Scotland, a Lib Dem Secretary of State for Scotland, and the return to the political front line (as Advocate General for Scotland) of Jim Wallace, last heard of going back to practice in Parliament House.

If a hung Parliament was widely anticipated even before the election campaign began, not so the eventual governmental configuration and the resulting prospects of constitutional change.  In fact, some of the constitutional changes expected from a Tory government – notably the replacement of the Human Rights Act with a so-called UK Bill of Rights – became a little less likely, and even if it does eventually happen, it will surely be a rather different thing from what readers of the tabloid press have been expecting.

The coalition government's agreement, published on 20 May 2010, contains little of specifically Scottish interest.  The most obviously significant commitment is to implement the Calman recommendations to extend the powers of the Scottish Parliament, and also to look at the West Lothian Question (why should Scottish MPs be able to vote on England-only matters when their English counterparts are generally excluded from the same issues in Scotland?).  But change to the Barnett formula, which determines how much money the devolved administrations have to spend, and which is loved in Scotland and hated in Wales, will apparently await the "stabilisation of the public finances" – which looks like being a long way off. 

There will however surely be earlier implications for Scotland in the decisions to get rid of home information packs in England and Wales, extend the scope of the UK Freedom of Information Act, review libel laws to improve protection for freedom of speech, take measures to end 'unfair' bank charges and ban the sale of alcohol at below cost price, as well as to grant a free vote on the repeal of the Hunting Act, seek foreign recognition of civil partnerships, and give anonymity to defendants in rape cases.  The new Prime Minister's "respectful" visit to Scotland on 14 May also seemed to bear fruit for the First Minister, whose claim to accumulated and future revenues from the Fossil Fuel Levy in Scotland, always rejected by the previous Labour Government, has been met with a commitment to a review expected to grant Mr Salmond's wishes, and so give him some £185 million to play with, perhaps before the next Scottish election in May 2011.

Whatever happens in Westminster in the future, it would be unwise now to extrapolate from the results of this election what is going to happen in that Scottish election a year from now.  It seems pretty clear that the results in Scotland were for the most part the product of a desire to avoid a Tory government in the UK – and in some sense that may have been achieved.  But in the Scottish Parliamentary elections there is no danger (for the moment) of a Tory or Tory-dominated administration.  Whether the Scottish Lib Dems will lose or gain from their participation in the Westminster coalition is a moot point; but it will surely make it difficult if not impossible for them to form a coalition with Scottish Labour.  Which raises a host of interesting possibilities about who may be governing us Scots, and with what powers after Calman implementation, a year from now.  Remember that once Calman is enacted there will be new tax-raising and borrowing powers in Scotland, with which, perhaps, some of the effects of Westminster-driven cuts might be offset.  Will the SNP's years of minority government inspire others to try to do likewise?  With which other parties might whichever is the biggest party try to cut a deal if it did not fancy minority government?  And if the Westminster coalition lasts and has any success at a UK level, will that have an effect on the corresponding Scottish parties in the run-up to May 2011?

And finally there is, quite apart from the West Lothian question,  the question of the Scottish MPs at Westminster.  How long will Gordon Brown remain there?  Will he fancy a stint as First Minister at Holyrood once he realises how little he can do for his Kirkcaldy constituents from Westminster?  How will ex-Scottish Labour Ministers Cathy Jamieson and Margaret Curran fare as MPs?  Will they make the Opposition front bench?  Will they hang on to their MSP jobs, just in case?  Much to look out for and perhaps occasionally enjoy, even as the public expenditure cuts begin to bite more deeply. 

The seven-week trial of the five men charged with conspiring to extort £4.25 million for the safe return of a stolen Leonardo painting to its owner, the Duke of Buccleuch, ended on 21 April 2010 with verdicts of not proven in respect of three of the accused and not guilty for the other two (both Scottish solicitors).

The painting was stolen from the Duke's Drumlanrig Castle in 2003, and was recovered when the five accused were arrested at a Glasgow solicitors office in 2007.  The actual thieves have never been arrested or identified.  On 7 May 2010 the Crown Office announced the dropping of further charges of conspiracy to extort in relation to the safe return of the painting, brought against three different men, all from the Glasgow area.  The amount alleged to have been involved in this case was £5 million.

The first case appeared to show that the Scottish solicitors had become involved with the other three (all from England, one a solicitor) in advising them whether they would be able to claim the reward offered by the Duke of Buccleuch for the return of the painting (presumably involving a return to such classics as Carlill v Carbolic Smokeball Co [1893] 1 QB 256 and Petrie v Earl of Airlie (1834) 13 S 68).  After the case against them had ended, the three indicated that they now wanted to claim the reward, having been instrumental in returning the painting to its owner.  It appeared that the claim was unlikely to be accepted by the Buccleuch family, given that the information about the painting's whereabouts had not been submitted to the police. 

Perhaps, therefore, we may yet have a case in the Court of Session and a clarification of the vexed question of whether the offer of a reward is merely that – an offer, requiring acceptance to the offeror before it becomes a contract and so binding – or a unilateral promise subject to suspensive conditions which must be fulfilled before the reward can be claimed (see MacQueen & Thomson, Contract Law in Scotland, para 2.61).

Meanwhile, the painting, known as The Madonna of the Yarnwinder, hangs on loan in the National Gallery of Scotland, smiling as enigmatically as the Mona Lisa and hiding the vexed question of whether it really is by Leonardo or is merely a copy – raising potentially another classic contract law problem for the Buccleuchs (see further MacQueen & Thomson, Contract Law in Scotland, para 4.45). 

The Review of Rights of Audience in the Supreme Courts in Scotland, chaired by banker Ben Thomson, was published on 17 March 2010.

The conclusions of the report remain much as they were when published in draft form in January (see here): that is, in the words of the executive summary, "standard qualifications, codes of conduct, monitoring and complaints procedures, whilst maintaining separate business models."  The summary also makes the following interesting comment on possible links to the Gill Review:

In coming up with these recommendations, we have been mindful of the publication during our review, of the Report of the Scottish Civil Courts Review. Its recommendations are equally far reaching. We have also not constrained our thoughts on appropriate recommendations by our perception of the likely cost or availability of funding to support our recommendations. The Civil Courts Review may, if implemented, release time and resource that may be able to be made available to implement our recommendations. A consultation on the combined effect of that review and our recommendations would make considerable sense.

Our review is not recommending that the branches of the legal profession are fused. On the contrary, we recommend that they are not fused. Competition is to be welcomed, and we consider that the separate branches each provide a valuable service to litigants and potential litigants in Scotland. However, there must be value in achieving a common level of qualification and standards, and we have heard no reason why standards and quality would go anywhere other than up as a result of our recommendations.

One wonders whether in the current climate ignoring costs and funding sources means that all this is going to be a non-starter.  We shall see.

Justice was done once again in Perth Sheriff Court as a sheriff first banned an engaged couple from talking with each other prior to their marriage, then lifted the ban to allow them to make plans, not only for their nuptials, but also for the fiancee's upcoming 50th birthday.

Sheriff Lindsay Foulis had originally granted the male accused (55) bail on a charge of breach of the peace on 6 March 2010 after the couple had had a noisy row in December 2009 while discussing their wedding arrangements.  A bail condition was that the accused not speak to his fiancee until August, and he left Perth for Glasgow to help him fulfil this.  The wedding was however scheduled for June, and the couple found it impossible to make their plans for the big day through intermediaries; the position being further complicated by the bride-to-be's desire to celebrate her half-century appropriately with her man.

Sheriff Foulis lifted the bail condition on 30 March after representations from the fiancee and the accused's solicitor, with the procurator fiscal presenting no objections.  Perhaps inappropriately the couple made no comment as they left the court together.  Scots Law News wishes them well in their celebrations. 

By popular request, Scots Law News is pleased to draw attention to the opening passages of Lord Rodger's recent judgment in the Supreme Court case Guardian News and Media Ltd's Application [2010] UKSC 1:

"1. “Your first term docket reads like alphabet soup.” With these provocative words counsel for a number of newspapers and magazines highlighted the issue which confronts the Court in this application. In all the
cases down for hearing in the first month of the Supreme Court’s existence at least one of the parties was referred to by an initial or initials. Thanks to the relevant Practice Note, the same goes for the very last case heard by the House of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7; [2009] 3 WLR 1253) and the very first judgment handed down by the Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1; [2009] 1 WLR 2353). See Practice Note (Court of Appeal: Asylum and
Immigration Cases) [2006] 1 WLR 2461. Indeed, so deeply ingrained has the habit of anonymisation become that the judgment of the Court of Appeal in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 was published under that name, and came on appeal to the Supreme Court under the same name, even though Maurice Kay LJ had begun his judgment by saying that anonymity was unnecessary. At the hearing of the appeal that assessment proved to be correct. See Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48.

2. These are simply examples of what is now a widespread phenomenon. For instance, on a rough calculation, in 8 out of the 58 appeals decided by the House of Lords in 2007 at least one of the parties appeared under an initial; the same applied in 15 out of 74 cases in 2008. Admittedly, cases reaching the
House of Lords and the Supreme Court are not necessarily typical of those going through the court system as a whole, but the general impression is that the practice of referring to parties by initials has increased at all levels in recent years. Even assuming that the use of initials was justified in many cases, the present appeals show that an order (“anonymity order”) may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it. This happens despite Sir Christopher Staughton’s warning, in Ex p P, The Times 31 March 1998, that “when both sides agreed
that information should be kept from the public, that was when the court had to be most vigilant.” Lord Woolf MR quoted the warning with approval in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E. The application challenging the anonymity orders in these appeals provides an opportunity for reviewing the position."

In the end the Supreme Court lifted the anonymity orders in the case before it, ruling that the public interest in disclosure was decisive in finding the appropriate balance between Articles 8 and 10 ECHR in cases of this kind.