Brian Scott (45) and Ross Blaikie (31) were duly convicted in Jedburgh Sheriff Court on 10 September 2010 of fishing the Liddle Water near Newcastleton without a licence to do so having been previously obtained from the Environment Agency. In the light of the information produced by our earlier post on the subject, this was not a surprising outcome.
But the result was nonetheless interesting, as Sheriff Kevin Drummond chose only to admonish Mr Scott and gave Mr Blaikie an absolute discharge – letting them both "off the hook", as The Scotsman put it in the fullest account of proceedings seen by Scots Law News. mr Scott was admonished only because he had a previous conviction for poaching in 2001.
The report makes clear that there is a background of local contention. The Environment Agency, it will be recalled, is in general a body with authority only in England but has powers over the fisheries in the River Esk system because that river flows through both England and Scotland. The Liddle Water is part of the Esk system but actually defines the Anglo-Scottish border at the point where the two men were fishing. It appears that in the past the Environment Agency had not made a practice of demanding licences for fishing on the Scottish side of the line but had begun to change its practice in about 2005. This has been the subject of protest, and in effect the case of Messrs Scott and Blaikie was to test and highlight the position – in which it certainly succeeded.
Sheriff Drummond seems to have pointed the way to a compromise which might take the heat out of the situation, the Environment Agency's power to waive its licensing fees where they had adverse economic impacts in a rural area. The hint seems to have been taken: on 21 September the BBC reported that the Environment Agency was "currently exploring the possibility of issuing a general licence with the fisheries' interests on the Scottish part of the Esk."
Our thanks to Mr James Duff, who has brought to our attention a judgment of Sheriff George Jamieson dated 5 August 2010, sitting in Dumfries, and holding Mr Duff's action of lawburrows against the Chief Constable of Dumfries and Galloway (in which the former represented himself) to be irrelevant when it was based upon claims of defamation made by the pursuer against the defender.
The case follows on from earlier decisions, one of which is noted here in Scots Law News. But Sheriff Jamieson's decision is not based upon a view that lawburrows can only be taken out against threats of physical violence. He concludes, following the opinion he had already expressed in footnote 73 of chapter 5 in his learned work on Summary Applications and Suspensions, that Stair, applying a liberal interpretive approach to the Lawburrows Act 1581, was to the opposite effect, and that Erskine's contrary view was based only on the fact that there was no direct authority or practice on the point. Stair's position, also supported by Professor Walker in his Civil Remedies (1974), gains further weight from the much wider modern understanding of "assault" as going beyond the merely physical invasion of another person. Sheriff Jamieson rejects an argument that when the opinions of two institutional writers conflict the court is bound by neither, preferring an approach of taking the view more consistent with modern understandings of social need. While previous case law on lawburrows did not go so far, neither did it reject or even consider the possibility.
Sheriff Jamieson dismisses Mr Duff's action, however, on the basis that his pleadings referred only to possibly defamatory statements made by police officers some time in the past, with no grounds shown for apprehension that such statements would recur in the future. He also upheld arguments about the limited nature of the Chief Constable's vicarious liability for the actions of his officers, and rejected human rights arguments that Mr Duff's actions should at least go to proof.
Sheriff Jamieson's long and interesting note has not yet appeared on the Scottish Courts website. It is to be hoped that it will soon do so.