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11th February 2022
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High Court rejects appeal against decision that right to prosecute ex-teacher had been renounced by Lord Advocate

By Mitchell Skilling

High Court rejects appeal against decision that right to prosecute ex-teacher had been renounced by Lord Advocate

Lady Dorrian

The High Court of Justiciary has refused a Crown appeal against a sheriff’s decision that an indictment against a former teacher accused of lewd, indecent, and libidinous practices against pupils should be deserted.

It was pled by the respondent, Paul Cooney, that the Lord Advocate, through the Procurator Fiscal Depute at Kilmarnock, had renounced the right to prosecute him by letter dated 21 December 1992. The Crown sought to convene a bench of seven judges to reconsider the decision in Thom v HM Advocate (1976) in order to allow for the prosecution to continue.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lord Matthews. The Solicitor General, Ruth Charteris QC, and Ewing QC appeared for the Crown, and Jackson QC for the respondent.

No criminal proceedings

The respondent was indicted at Ayr Sheriff Court in 2020 on a charge relating to acts, including unlawful sexual intercourse, said to have been committed against one pupil on various occasions between 1 August 1977 and 2 April 1980. The respondent lodged a plea in bar of trial relying on a letter dated 21 December 1992 sent to his solicitor in 1992.

It was agreed that the complainer had made a complaint to the Education Authority concerning the respondent’s conduct in 1991 or 1992. After he was interviewed by the police, the respondent instructed a solicitor who wrote to the Crown. A reply was received that stated: “No criminal proceedings are being taken against Mr Cooney in connection with this matter.” Internal disciplinary proceedings were later initiated against the respondent by the Education Authority.

In 2016, the complainer contacted police to seek information on the outcome of any investigation into her report. The police were unable to find any record of the complaint and detained the respondent in December 2017. He was later arrested in October 2019 and charged with an offence contrary to the Sexual Offences (Scotland) Act 1976.

It was submitted for the Crown that the case of Thom v HMA, which was authority for the proposition that a statement by the Lord Advocate could constitute a binding renunciation of the right to prosecute, was wrongly decided. That view was inconsistent with the institutional writers and with the general principle that the Lord Advocate’s power was not subject to the control of the courts.

The Solicitor General argued further that Thom was no longer good law, having regard to the public interest in the suppression and prosecution of crime and greater recognition of the rights of complainers, including ECHR rights. Separatim, the current case was distinguishable from Thom on its facts and ought to lead to a different result.

Isolated instance

Delivering the opinion of the court, Lady Dorrian said of the Lord Advocate’s powers: “The notion that the Lord Advocate should be held to a clear and unequivocal statement that she will not prosecute a named individual for a particular criminal offence is a corollary of the absolute power of decision making in this area which vests in the Lord Advocate, and which prevents the court from making inquiry into, or interfering with, the exercise of her discretion on such matters.”

She continued: “If she were able to renege on a decision of the kind in question, subject only to consideration of issues of whether to allow the prosecution to proceed would constitute oppression, examination of that issue, given the customary, and indeed constitutional, reticence of the courts to examine the substantive exercise of the Lord Advocate ‘s discretion, would be significantly one-sided.”

Addressing whether Thom remained good law, Lady Dorrian noted: “It is not possible on the information available to us to reach a properly reasoned view that there have been failures which meet the test for operational deficiencies to constitute a breach of Convention rights. In any event, had we concluded otherwise, it does not follow that an isolated instance such as this should require the law to be restated and a larger court convened to reconsider Thom.”

She went on to say: “It was open to the Crown to qualify any decision not to prosecute with the addition of a simple caveat – ‘at this time’ or ‘on present information’ – to preserve a position. It chose not to do so. That other systems deal with the same issue in a different way is not a reason for the court to consider changing the law. Regard must be had to the context in which the law operates, and in this case the particular and special role of the Lord Advocate as prosecutor in the public interest.”

On whether Thom could be distinguished, Lady Dorrian concluded: “As we have observed, Thom is not based on notions of oppression, but on the concept of renunciation of the right to prosecute. Another distinguished bench in X v Sweeney (1982) confirmed the decision in Thom, and did so under reference to Hume. For the reasons already given, we do not consider that Thom can be said to have been wrongly decided.”

The appeal was therefore refused.

Sir John Major on the need for the rule of law

Sir John Major on the need for the rule of law

Sir John Major

Predictably, and sadly, sections of the media (including the BBC) sought to trivialise this week’s speech by former Prime Minister John Major, given at the Institute for Government, which they presented as a personal vendetta. Sir John’s important warning on the assault upon the rule of law by the UK’s populist government and its mendacious leader went largely unreported. We reprint that extract from his speech below.

Our way of life is built around the maintenance of law. The public expects our government to work within the law and the accepted rules of public life.

It was unprecedented when this government broke the law by proroguing Parliament, to avoid debates on Brexit that might not have gone as they wished.

I had promised, in a BBC interview, that if the government attempted to muzzle Parliament I would challenge their action in court.

So I did — though not as swiftly as the civil rights campaigner, Gina Miller. Lawyers presented our cases separately but they were, in essence, identical.

Both our challenges were upheld unanimously by the Supreme Court, who ruled that the government’s actions were unlawful.

“It was,” the court said, “impossible to conclude there was any reason, let alone a good reason” for proroguing Parliament for five weeks in the run up to Brexit.

The prime minister said he “disagreed” with the court, and the then Leader of the House accused the Supreme Court judges of “a constitutional coup”.

The government accepted the verdict, but in bad faith. It did not apologise – nor mend its ways.

It went on to introduce legislation, giving the government the power to break international law, albeit – as one minister conceded – “in a limited but specific way”. Fortunately, the issue fell away, but it was a proposal that should never have been put forward.

It cut overseas aid — which parliament had set at 0.7 per cent of GDP — without the prior approval of parliament (although this was obtained retrospectively).

And this is the government that fought a referendum to “protect the sovereignty of Parliament” and the sanctity of domestic law.

All of this is against the backdrop of the prime minister being investigated for several apparent breaches of the ministerial code.

He chose to ignore critical reports on his ministers; rejected advice from his independent adviser on ministerial standards – who resigned; and attempted – but failed – to overturn a unanimous standards select committee report that condemned the behaviour of a parliamentary colleague and friend.

It may be possible to find excuses for each of these lapses — and others — but all of them, taken together, tell a different tale.

The prime minister and our present government not only challenge the law, but also seem to believe that they — and they alone — need not obey the rules, traditions, conventions — call them what you will — of public life.

The charge that there is one law for the government, and one for everyone else is politically deadly — and it has struck home.

Our democracy requires that the truth and the law should be respected and obeyed — above all, by the government. But, sometimes, it seems that — even if it is obeyed — it is not always respected.

When a leading tabloid labelled judges “enemies of the people” the justice secretary did not leap to their defence. Other cabinet ministers publicly disparaged “leftie lawyers”, “activist lawyers”, and attacked judges for “exceeding their authority”.

Public denunciation of judges and lawyers gives credence to the belief that the government wishes to usher in a compliant judiciary.

It should back off.

The late Lord Bingham, one of our greatest judges, once remarked that there “are countries where the judges always agree with the government — but they are not countries in which any of us would like to live”. That was true then — and is true today.

There have also been attempted assaults on civil rights — not all of them successful. The government briefed, but rowed back from, a serious attack on judicial review: but the intent was there and may return.

It proposed legislation to allow the police to “stop and search” anyone at a protest meeting “without any cause for suspicion”.

It attempted to legislate to allow the police to impose conditions on protest marches likely to be “noisy”. These are not the only examples.

Apart from being unworkable, such proposals would have alienated the public from the police. I recall anti-poll tax marches, anti-war marches and anti-Brexit marches which attracted huge numbers — and were certainly noisy. Would these have been banned?

The intent of these protestors was not to prevent the public from going about their normal lives. These protestors were the public, expressing deeply-felt opposition to government policy.

But — although they may be uncomfortable for any government — protest marches are a safety valve for free speech. Democracy should treat them with care.

The government was lucky that the House of Lords rejected these proposals, but there is no certainty they will not return in another bill.

Such a denial of civil rights is wrong in principle, and in practice.

If the power of the state grows, and the protections of the law diminish, then the liberties of the individual fall.

The Mother of Parliaments should not permit this.

Legal attempt mounted to deprive EHRC of A rating following trans rights row

Legal attempt mounted to deprive EHRC of A rating following trans rights row

Jolyon Maugham

The Equality and Human Rights Commission (EHRC) is facing a legal attempt to deprive it of its status as an independent group following its advice on transgender rights.

LGBT charities want the United Nations to demote the EHRC because it called for a pause on proposed reforms to the Gender Recognition Act in Scotland.

Under the changes, people would be more easily able to legally change sex.

The EHRC, however, has raised concerns about how the move could affect single-sex services, despite having previously endorsed it.

LGBT charity Stonewall, which is being backed by the Good Law Project, has made a submission to the Global Alliance of National Human Rights Institutions, which calls for the EHRC to lose its A rating.

This would prevent it from making representation to the UN Human Rights Council.

The EHRC said, however, that its decisions are made impartially and are “based on evidence in the UK and internationally”.

“All appointments to our non-executive and executive roles are made through a fair, open and transparent recruitment process.

“The way the commission is governed and commissioners appointed is set out in the Equality Act, and has not changed since the commission was established.”

Jolyon Maugham, of The Good Law Project, said: “The EHRC is subject to a level of oversight and micro-management from the department which is just not consistent with being a UN Human Rights Institution.”

Lord Carnwath warns HRA reforms could cause uncertainty

Lord Carnwath warns HRA reforms could cause uncertainty

Lord Carnwath

Amending human rights laws to give priority to domestic law could result in uncertainty, former Supreme Court justice Lord Carnwath has said.

An independent review of the Human Rights Act recommended subordinating Strasbourg case law to UK law.

The review, led by Sir Peter Gross, states: “By giving prior consideration to national law but continuing to take proper account of ECtHR [European Court of Human Rights] case law, it is designed to promote greater consistency in the application of section 2 by UK Courts and greater domestic political and public ownership of human rights, while giving full effect to the principle of subsidiarity and maintaining the beneficial equilibrium reached between UK Courts and the ECtHR.”

But Lord Carnwath of Notting Hill, who sat on the Supreme Court bench for eight years, told the Commons Justice Select Committee this week that he disagreed. 

He said: “They seem to be saying it would improve our feeling that the thing belongs to us if there was some sort of provision that says ‘Start off by looking at British law/common law, and then only if that’s not adequate go on to the convention’.”

“If the convention is going to give you rights, and you bring yourself within those rights, you should be able to rely on them. I don’t see why you should be looking around for some other common law equivalent.”

On the question of how the government’s proposals could alter the British courts’ approach to Strasbourg case law, he said: “I can’t predict, I’m afraid. Happily, I’m no longer there. If I was there, I would be very confused.

“We would go through a period where we would have hopeful advocates appearing in front of us, citing cases from all over the place. My own feeling is, one would eventually settle down and say, as these cases may go to Strasbourg, we’ve obviously got to keep in mind what they’re saying. I find it difficult to see how it’s meant to operate. I certainly think it’s not going to increase certainty, which is what the government seems to be saying.”

Aberdeen house prices dip but outlook for 2022 is optimistic

Aberdeen house prices dip but outlook for 2022 is optimistic

Joni Esson

Residential property sales in Aberdeen and surrounding towns dipped in the final quarter of 2021, underlining concerns around potential interest rate and cost of living increases, according to a north east legal expert.

Figures released by the Aberdeen Solicitors Property Centre (ASPC) showed property prices in Aberdeen city fell by an average of 1.5 per cent compared to the previous quarter, while prices in Stonehaven and Ellon suffered a drop of 2.8 per cent and four per cent respectively.

The average price of a flat in Aberdeen fell from £129,970 to £127,889, semi-detached properties decreased from £192,173 to £189,253, while the largest fall was in the detached homes market, down from £324,212 to £317,653.

Joni Esson, managing director of legal, property and financial services specialist, Esson & Aberdein, said that while the figures were disappointing, her firm had been encouraged by a positive start to 2022. 

She said: “Despite being noted as a generally quieter time in the northeast market, we are seeing very encouraging levels of activity in both the sale and purchase markets as well as our mortgage offering, with many looking to secure fixed rate products in anticipation of rate rises.

“The Q4 report echoes concerns that many of us share regarding interest rate volatility and the prospect of inflation rising to levels not seen for the best part of 20 years, not to mention the longer-term impact of the coronavirus pandemic.

“The fortunes of Aberdeen and Aberdeenshire has long been tied to the price of Brent crude oil and that still holds true today. While the transition from hydrocarbons to carbon net zero is underway, it remains to be seen how the energy industry will evolve and what impact that will have on the property market in the longer term.”

The Aberdeen Housing Market Report, compiled by the University of Aberdeen Business School, found that 1,482 residential properties were transacted in the final quarter of 2021, down 14.6 per cent compared to the previous quarter and down 6.8 per cent year-on-year.

The biggest decrease in transactional activity was in the detached homes category – down 26.6 per cent compared to the previous quarter and down 20.6 per cent compared to the same quarter in 2020. 

In Ellon and Stonehaven, sales prices decreased across all three categories and despite its attractive seaside location and excellent transport links the largest price fall was in Stonehaven detached properties, down almost £14,000 from £322,705 to £308,763.

However, Inverurie flats increase in price by an average of £1,400 compared to the previous quarter, while detached properties slightly increased in value to an average of £299,404. 

Ms Esson added: “Inverurie is an example of an area which is on the up and becoming more desirable, with a lot of investment and development. The report shows that the annual house price change in Aberdeen has been 1.7 per cent which is encouraging and based on interest levels and inquiries we have received in the first weeks of 2022 we are confident that positivity will be reflected in transactions completed in Q1 of 2022.”

England: Call for ban on barristers’ wigs

England: Call for ban on barristers' wigs

A black QC has called for wigs to be banned from court following an incident in which another barrister was told he must wear one or face disciplinary action.

Leslie Thomas QC said wigs were “fashioned for caucasian hair” and look “ridiculous” on black barristers.

His comment came after Michael Etienne was told he risked being in contempt if he failed to wear his wig in court. Mr Etienne wrote to the Bar Council to clarify the consequences of not wearing a wig.

He tweeted their response, which “included: ‘contempt of court’, ‘wasted costs’ and various potential breaches of code of conduct. Unless the insistence was discriminatory.”

Mr Thomas dismissed the justifications for keeping wigs as “nonsense”.

“Wigs are 17th century male fashion,” he told The Times. “To have them in the 21st century is nonsense.”

Mr Etienne said that the Bar Council “doesn’t make the rules but it is supposed to be the representative body. So, we might hope it takes proactive steps to address this issue in the interests of its black members”.

Sam Mercer, head of equality at the Bar Council, said the professional body was “absolutely” prepared to “take soundings” on the issue.

Legal protection for health boards to remain

Legal protection for health boards to remain

John Swinney

Protection for health boards from potential liability of hundreds of millions of pounds will remain in place after legislation was unanimously passed at Holyrood this week.

The Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill will ensure health boards continue to have a choice, rather than be under a duty, to provide compensation to anyone asked to self-isolate due to Covid.

The existing support for those isolating to prevent further transmission of the virus will remain available through the self-isolation support grant and associated support services.

The bill extends a modification, made by the UK Coronavirus Act 2020, to the Public Health etc. (Scotland) Act 2008, until October.

The Scottish government said the move avoids a potential liability for health boards of £320 million a year.

Deputy First Minister John Swinney said: “This requirement was intended to apply to small scale outbreaks such as E.coli, where a small number of households may have to isolate for a short period of time and lose out on income as a result. It was never intended to apply in a global pandemic.

“Existing support for self-isolation, which includes the Self-Isolation Support Grant – a £500 payment for those earning less than the real living wage - will ensure households can isolate, where necessary, to stop transmission of coronavirus.

“This bill protects Health Boards from significant financial and administrative burdens, to the tune of around £320 million, at a time when they are rightly focused on providing essential care and navigating out of the pandemic.

“That is not a burden that health boards can afford. This bill enables the current arrangements to remain in place, with regard to COVID-19, whilst ensuring that the focus remains on the provision of essential care.”

England: Criminal barristers call out Raab over legal aid ‘lies’

England: Criminal barristers call out Raab over legal aid 'lies'

Dominic Raab

The Criminal Bar Association (CBA) in England and Wales has accused justice secretary Dominic Raab of lies against the backdrop of a looming crisis in the criminal courts.

In an article for The Times yesterday, Mr Raab claimed that the CBA is “demanding that I ignore the public law principles that apply to our approach to reform” and that criminal legal aid reform cannot be rushed.

The CBA responded in a Twitter thread: “We have not asked the government to infringe any public law principles. This is a lie.”

The representative body for the criminal bar said it had merely “asked for a response to a report MoJ commissioned, and have had since the end of November” – which Mr Raab has said he will not deliver until the end of March.

“We have been patient, and engaged, for nearly four years,” the CBA said. “Any suggestion to the contrary is a lie.”

Mr Raab also claimed that his government had “boosted” the pay of criminal law practitioners by £74 million over the past four years, “the highest increase in two decades”.

The CBA said: “Pay has not been boosted. This is a lie. There has been a real terms reduction for 25 years.”

Finally, the CBA rejected Mr Raab’s claim that it was proposing “strike action”. It said: “We are not proposing strike action. This is a lie. We propose withdrawing labour on cases ‘returned to us’ when counsel is no longer available due to work commitments, i.e where our hardworking and outstanding value for the taxpayer props up a system which only functions with us.”

SYLA: G2 legal NQ roadshows – March 2022

SYLA: G2 legal NQ roadshows – March 2022

The Scottish Young Lawyers’ Association has partnered with G2 Legal to deliver the 2022 NQ career talks.

Each event will feature presentations from solicitors working across a range of legal sectors, an overview of the current market, and tips on application and interview preparation.

The events will run in Glasgow (1 March), Edinburgh (2 March) and Aberdeen (3 March). Attendees will hear from G2 Legal, partners from Addleshaw Goddard and guest speakers, Neil Hay in Edinburgh and Matthew McGovern in Glasgow.

Register:

Glasgow - https://www.eventbrite.co.uk/e/nq-career-talk-glasgow-tickets-255094142447

Edinburgh - https://www.eventbrite.co.uk/e/nq-career-talk-edinburgh-tickets-254710805877

Aberdeen - https://www.eventbrite.co.uk/e/nq-career-talk-aberdeen-tickets-255096379137

Rights watch

Rights watch

A round-up of human rights stories from around the world.

Beijing Winter Olympics open under shadow of human rights criticism | The Independent

Several western nations have criticised China’s rights record while protests are unfolding worldwide.

Ethiopia accused of ‘serious’ human rights abuses in Tigray in landmark case | The Guardian

Ethiopia has committed a wide range of human rights violations in its war against Tigrayan rebel forces, including mass killings, sexual violence and military targeting of civilians, according to a landmark legal complaint submitted to Africa’s top human rights body.

Turkish lawyers resign from Ankara Bar Association’s Human Rights Centre claiming censorship of reports | Ahval

Six members of the Ankara Bar Association’s Human Rights Centre have resigned after the body failed to publish a report on alleged police torture in the capital.

Sri Lanka frees rights lawyer detained for two years | Daily Times

A Sri Lankan court on Monday ordered the release of a lawyer arrested over his alleged ties to the 2019 Easter Sunday bombings and held for nearly two years on charges rights groups say lacked evidence.

Ex-BofA lawyer jailed in Hong Kong over police assault allegations | FT

A former Bank of America lawyer in Hong Kong has been sent back to prison for assaulting a plainclothes police officer during pro-democracy protests two years ago, in a case that analysts said highlighted the legal risks for foreigners working in the city.

Guatemala Mayan community argues before human rights court | The Independent

Lawyers for an Indigenous community in eastern Guatemala have made arguments before the Inter-American Court of Human Rights in a case that could have far-reaching implications for Indigenous communities throughout the Americas.

El Salvador woman punished under strict abortion law freed after 10 years | The Guardian

El Salvador has released another woman imprisoned for aggravated homicide who after suffering an obstetric emergency was accused of aborting her pregnancy in a country where abortion under any circumstances is banned.

Sudan’s military rulers step up crackdown, arrest activists | ABC News

Scores of activists and pro-democracy protesters are in jail in Sudan for opposing a military takeover in October.

In first, Russia sides with ‘Gulag children’ in legal fight for housing – lawyer | The Moscow Times

A Russian court has for the first time sided with the descendant of a Stalin-era Gulag prisoner in his long-running battle for housing, a human rights lawyer said Monday.

Quote of the day

To abolish a well-established rule of law because it is a bad rule, is the business of the legislature.

Stephen, J., ‘Reg. v. Coney and others’ (1882), 15 Cox, C. C. 59.

And finally… souper trooper

A right-wing US politician with a penchant for conspiracy theories has been widely mocked after appearing to confuse the Nazi Gestapo with “gazpacho” – a chilled Mexican soup.

Marjorie Taylor Greene, who has faced social media bans for promoting antisemitic conspiracy theories, excoriated “Nancy Pelosi’s gazpacho police” in a TV interview.

She claimed Pelosi, the Democrat who serves as Speaker of the House of Representatives, has these apparent vegetable voyeurs “spying on members of Congress”.

The embarrassing mix-up drew a comment from the “Soup Nazi” himself – Larry Thomas, who became famous as a touchy soup chef in a classic episode of TV sitcom Seinfeld.

“How in the world can a grown person, who grew up in the 20th century, not know what the word Gestapo is?” he asked. “They say ‘You can’t write this shit.’ It’s beyond you can’t write this shit.”

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