Month: June 2010

Earlier this year we noted the story of the throwing of a microwave oven from a top flat. Naively we suggested,

 "As cases involving the throwing of unusual items from upper flat windows seem to recur on a cyclical basis we await the next prosecution in early 2012."

However, we are very grateful to Greg Gordon, from the University of Aberdeen, who has brought to our attention what appears to be a speeding up of the cycle. On 7th June 2010 the Evening Express reported that Paul Black was found guilty of launching items with disregard to the consequences and to the danger of people below, as well as breach of the peace, and was fined £200.

Mr Black threw a variety of items out of the top flat window including weights and a vacuum cleaner. The vacuum cleaner was reported to be "dangling from the top-floor flat’s window because it was still plugged in".  

The Evening Express reports that the items were thrown out of the window in a "booze-fuelled incident".

If our regular readers are aware of any other prosecutions in relation to items being thrown from upper flat windows please contact us as the usual address.
 

In April 2009 the Scottish government announced a review into sheriff and jury practice and procedure. The review was to

"review the arrangements for sheriff and jury business, including the procedures and practices of the Sheriff Court and the rules of criminal procedure as they apply to solemn business in the Sheriff Court; and to make recommendations for the more efficient and cost-effective operation of sheriff and jury business in promoting the interests of justice and reducing inconvenience and stress to the victims and witnesses involved in cases."

The review followed previous reviews into summary criminal procedure (by Sheriff Principal mcInnes) and High Court of Justiciary procedure (by Lord Bonomy). The review was carried out by Sheriff Principal Bowen – and he submitted his report to Scottish ministers in June 2010.

The report is substantial and contains a number of recommendations.

The main recommendations are found in chapters 6 and 7 of the report and include the following:

• To only cite witnesses to give evidence in a case once it is known the case will proceed to trial – this will result in significant savings, both in reducing inconvenience to witnesses and in the cost of citing witnesses
• To introduce a 'new compulsory business meeting' to bring together the Crown and defence to discuss cases at an early stage of proceedings- this will result in parties being better prepared for court appearances and produce a higher number of pleas of guilty at an early stage in proceedings
• To enhance the current statutory provisions and require the Crown and defence at First Diet to be able to inform the court about their preparation of the case and allow the court to resolve any issues to be addressed at that stage- this will mean that First Diets should work as intended as a clearing house for cases going to trial
• To allow a longer period between the indictment of the case and the first diet – this will allow for outstanding issues to be resolved before First Diet, thereby minimising the need for continued First Diets
• To accommodate these procedural changes, it is proposed that the statutory time limits for commencing trials in sheriff and jury cases be extended for custody cases to 140 days, this is in line with the High Court time limit
• The report also proposes that legal aid provision for sheriff and jury cases should be reviewed so that it supports early resolution of cases, as it does in the High Court and in summary justice.

Additional recommendations include recommending the establishment of a working party to consider the  wider use of TV links between courts and prisons (ch 9);  sheriffs making greater use of existing powers relating to those who do not attend for jury duty without excuse (ch 8); and continuity of sheriffs involved in individual cases.

Launching his report Sheriff Principal Bowen said,

"In carrying out this Review I have sought to identify where there is waste in the system and to come up with proposals to eliminate it. My proposals are designed to create procedures which allow for straightforward cases to be disposed of quickly whilst retaining flexibility to accommodate more complex cases. By introducing a compulsory business meeting and firmer enquiries by sheriffs at First Diet, I anticipate that cases being continued to further court appearances will become the exception, rather than the norm. These changes will off course, require a change in mindset by all parties. I have however been encouraged in my discussions with all those involved in sheriff and jury procedure during the course of this review, of their willingness to contribute views, suggest changes and indicate a willingness to participate in improving this field of criminal business. The reforms to High Court and summary justice over recent years provide good examples of how changes to procedures and practices can lead to criminal business being managed more efficiently . I have no doubt that by increasing the efficiency of sheriff and jury procedures public confidence in the criminal justice system will improve."

The Scottish government has recently consulted on reforms recommended by the Scottish Law Commission.

The consultation on the proposed reform of the law of double jeopardy (based on the Scottish law Commission  Report on Double Jeopardy (Scot Law Com no 218) discussed here) ended on 14th June. Launching the consultation Kenny MacAskill, the justice secretary, said,

"The double jeopardy law was brought in over 800 years ago, but we now live in a very different world and I firmly believe the law needs to be modernised to ensure that it is fit for the 21st century. My own view is that in this day and age, it should not be possible to walk free from court and subsequently boast with impunity about your guilt. If new evidence emerges which shows the original ruling was fundamentally flawed, it should be possible to have a second trial. And trials which are tainted by threats or corruption should be re-run. Prosecutors should not have their hands tied if there is new evidence or if someone admits to carrying out an offence years down the line. I believe any future changes should also be retrospective so that they extend to old cases. There is a clear direction of travel here, a growing consensus that reform is needed and we are minded to legislate at the earliest opportunity. However, with such a complex and important issue, it is absolutely imperative that we take the time to get it right to ensure that any law does not fall short of what is desired. This consultation is therefore an important stage of this journey and will allow us to get the views of those on the front line, as well as those with a general interest."

The government also launched a consultation based on the recommendations in the Scottish Law Commission Report on Conversion of Long leases (Scot Law Com no 204, 2006). That report was part of the substantive property law reform package worked on by the SLC (including abolition of the feudal system, the reform of real burdens, and the the reform of the law of the tenement) and proposed converting leases granted for more than 175 years (the maximum duration of a lease under the Abolition of Feudal Tenure etc (Scotland) Act 2000) with an unexpired duration of at least 100 years to outright ownership (subject to compensation payments). The consultation paper is here and legislation is likely to be introduced in the autumn.

On 19 May 2010 Abdelbaset al-Megrahi became the longest survivor of any of the Scottish prisoners granted compassionate release on the grounds of their terminal illness.

Mr Megrahi was convicted in 2001 of the bombing of Pan-Am Flight 108, which brought the plane down over the Lockerbie area in 1988.  Suffering from prostate cancer, he was released from Greenock prison on compassionate grounds and returned to his Libyan homeland and family amidst much controversy in August 2009.  An issue at the time was whether Mr Megrahi’s condition was such as to meet the general guideline that compassionate release might be granted where a prisoner had three months or less to live.  But the guideline is not a rule, and there have been several cases of released prisoners living well beyond the three-month period.  There are conflicting reports on the current state of Mr Megrahi’s health and prospects of continued survival; he is understood to be engaged in the making of a TV documentary about the Lockerbie case.

Little note seems however to have been taken of the continuing survival of Great Train Robber Ronnie Biggs, also released on compassionate grounds from his English prison in August 2009.

To two lectures on 18 and 20 May 2010, by Professor Joe Thomson and Lord Rodger of Earlsferry respectively, and coincidentally both were talking about research in law.

Professor Thomson appeared in Committee Room 2 of the Scottish Parliament, under the aegis of the Society of Legal Scholars, and attracted a big and stellar crowd.  He discussed the flourishing of legal research in Scots law during his time in academe, highlighted some of his favourite authors, and explained what he thought was good research – things that were clever yet readily understood because they were well-written.   Potential contributors to the Juridical Review, now edited by Professor Thomson, took careful notes.  Nothing already published was mentioned that failed the quality test, but Professor Thomson drew on his experience of being an RAE assessor to hint that too much was now seeing the light of print.  The art of the case note was dying, in his opinion (something not helped, your correspondent thought, by their absence from the Juridical Review, although of course the Edinburgh Law Review remains a bastion in this regard).  Professor Thomson also didn’t seem too keen on people doing PhDs, an Honours degree being quite enough to get you going as a researcher in his view: he noted that his first published pieces were his Edinburgh Honours essays.

Lord Rodger’s lecture, to the second ScoLAR conference of law PhD students held in Lecture Theatre 175 of the Edinburgh Law School Old College, pursued a rather different line, possibly because he took a DPhil at Oxford after his Glasgow LLB (he has often written and spoken about the importance for him of his experience working under the supervision of Professor David Daube).  Lord Rodger’s basic advice was to research what interested you, and not do things that other people told you were more relevant.  He explained that when at Oxford he told P S Atiyah that his research topic was in Roman law, the great man’s response was to suggest he ought instead to work on something more useful such as the book on Accidents, Compensation and the Law which Atiyah himself was turning out at the time.  Central to that was a project for a no-fault compensation scheme replacing the private law of tort, something now as dead as the dodo after a rather disastrous experiment with it in New Zealand; while Roman law and Lord Rodger’s interest in it, like the law of tort (and delict), continue blithely on.

Despite his rejection of a need for usefulness in academic research, Lord Rodger also talked about the relationship between such research in law and the courts.  While there was no obligation of the academic to write for the courts (or indeed for the courts to turn to the academics), those researchers who wanted to influence the judges should think more about what their targets needed, elucidation of areas (including legislation) where there had as yet been no cases.  With the increasing amount of human rights and EU law to be addressed, there was also a need to find a means of accessing and analysing how other jurisdictions were treating the same source material when similar issues came before them.  As Lord Rodger discussed this particular desideratum, your correspondent (who was chairing the lecture) couldn’t help thinking that in the realms of private law the task was one actually already performed by the Draft Common Frame of Reference.  But since Lord Rodger is resolutely hostile to the DCFR, your correspondent decided not to abuse the privilege of the chair by asking the question! 

Both occasions concluded in enjoyable social pleasantries, the food for thought suitably offset by wetting of the palate.

The Supreme Court got some relief from its customary diet of human rights with its first real case on a Scots private law topic, Inveresk plc v Tullis Russell Papermakers Ltd [2010] UKSC 19, issued on 5 May 2010.

The case was about the right of retention in contract.  In June 2005 Inveresk sold to Tullis Russell property rights in the Gemini brand of paper, along with a transfer of customer information and connections.  Part of the price was a royalty, known as the “Additional Consideration”, on sales of the product made by Tullis Russell between November 2005 and November 2006.  A further agreement executed at the same time in June 2005 provided that Inveresk would continue to manufacture, sell and distribute Gemini paper until November 2005 as the product was integrated into Tullis Russell processes.  Inveresk sought payment of the Additional Consideration; Tullis Russell refused that, or retained it, on the basis that Inveresk were in breach of the second agreement by failing to produce goods of the quality needed to maintain the value of the assets during the period of the agreement.  Tullis Russell had raised a separate action for damages for breach of contract In respect of that alleged breach; as the Supreme Court published its judgment, Lord Drummond Young was settling down for the second part of a lengthy proof in that Tullis Russell action.

The key question was therefore whether Tullis could retain payment due under one contract in respect of the creditor’s breach of another contract.  Reversing the Court of Session, the Supreme Court held that such retention is possible where the two contracts are really part of one transaction – which, it was held, was the situation in this case.  Mutuality, or reciprocity, could therefore apply across the contracts: Claddagh Steamship Co Ltd v Steven & Co 1919 SC (HL) 132 applied. 

Lord Hope offers some further general remarks on retention:  the analysis of mutuality should start from the basis that all the obligations in the transaction are mutual unless there is clear indication to the contrary; the breach giving rise to the right to retain should be material, although not necessarily of the materiality needed to justify rescission; and a contract may operate in stages, with mutuality only applying within each stage.

Lord Rodger follows Lord Hope’s analysis but brings out more fully a distinction between a right of retention, arising where a party says goods supplied to it are materially defective, requiring the supplier to prove the goods are conform to contract, and the court allowing a party to retain a payment admittedly due until some unliquidated claim (e.g. to damages) against the other party is resolved, so that, if successful, the now liquidated damages can be set off against the liquid payment due in the other direction.  It is in this latter case, says Lord Rodger, that the court exercises equitable powers of control.  He gives a very full review of the authorities in order to make out this distinction; and from this commentator’s perspective it is a very useful explanation of what had previously been the rather mystifying role of equity in retention.  The general rule is that payment of a liquid debt is not to be postponed simply because the debtor has an illiquid claim against the creditor, but it is subject to equitable exceptions, of which this case provided an example.

Worryingly, Lords Saville, Collins and Clarke all think the result would have been the same under the English law of set-off. 

The Stair Society, Scotland's premier legal history society since its foundation in 1934, has set up a page on Facebook, the world's largest social networking site.

The Society has had a website for several years and has also recently had its main publications series (up to volume 53) reproduced in a Hein Online library.  This will be accessible to members via the Society website in the near future.  Meanwhile, hard copy publications continue to appear – most recently the three-volume Scotland under Jus Commune edited by Gero Dolezalek, formerly Professor of Civil Law at Aberdeen University.

The Facebook page currently has eight fans.  The news that the Stair Society has joined is a major boost for Facebook, which has recently been the subject of public criticism for the perceived inadequacies of its protection of individual privacy.