Monthly Archives: August 2011

Dear (Glasgow) Herald – Bring Back Bruce McKain!

For many years the Herald, or Glasgow Herald as we traditionalists would prefer it still to be, produced excellent coverage of legal issues. Bruce McKain’s by-line on an article was usually a guarantee that there would be good understanding of the issues, and exposition making it clear to the layperson what the issues were.

Even in his court reports, which are normally simply edited highlights of the day’s evidence, his knowledge and experience of the court process meant that the Herald avoided errors other news outlets fell into.

However, in around 2003, Bruce McKain left the Herald and journeyed to the East. He took on the role of Director of Public Affairs at the Faculty of Advocates. The Faculty’s gain was very much the press’ loss. It is probably too much, especially in these days where newspapers have ever-increasing pressure on their margins, and redundancies in the industry are commonplace, to expect that Scotland’s leading quality paper will have a legal correspondent able to replicate what Bruce McKain did, but at least one would hope that there would be a basic understanding of legal matters when journalists report on them.

These thoughts were prompted by an “exclusive” piece in the Herald on 15th August 2011.

Kate Devlin, the Herald’s UK political Correspondent, wrote a piece headed “Tobacco display appeal could spark fresh Supreme Court row”.

She states that “The Scottish Government could face another showdown with the Supreme Court, this time over controversial plans to ban the display of cigarettes in shops.”

The piece refers to the legal challenge by Imperial Tobacco to the Tobacco & Primary Medical Services (Scotland) Act 2010 passed by the Scottish Parliament. Imperial Tobacco are challenging this through the courts, claiming that Holyrood did not have the power to pass such a law.

The case being pursued by them has not yet been determined by the Inner House of the Court of Session, on appeal from the original decision by Lord Bracadale, to uphold the new law.

The article states that Imperial Tobacco has indicated that it could take the case to the UK Supreme Court, if the Inner House finds against it, and this, according to the writer “..would put the court and the Government on another collision course. Scottish ministers have already denounced the court’s judges for a series of decisions they claim have run roughshod over Scots law. The dispute escalated when the court overturned the murder conviction of Nat Fraser on human-rights grounds earlier this year.”

This is wrong on so many levels, and clearly will be of no help to the layperson in seeing the rights and wrongs of the issue.

First of all, the UK Supreme Court is a court, to which all parties, subject to the relevant rues, have access. If Imperial Tobacco lose in Edinburgh, they have the right to seek to appeal further to the UKSC. Prior to the creation of the UKSC, they could have appealed to the House of Lords. It is Imperial Tobacco who are challenging the Scottish Ministers, not the UKSC.

Secondly, this is a civil rather than a criminal matter. The majority of the criticism directed at Lord Hope and the other UKSC related to the Nat Fraser case where the UKSC “interfered”, according to Mr Salmond and others, with the long standing rule that the High Court of Justiciary was the ultimate appeal court in Scottish criminal law.

But, in civil matters, there is no such concern. In future the Scottish Ministers might seek to restrict or eliminate such a right of appeal, but for now no-one disputes that it is perfectly competent to take an appeal to London from Edinburgh in a civil case.

Thirdly, there is no “collision course”. The UKSC is a court. One could equally say that, if the Inner House finds in favour of Imperial Tobacco, it has placed itself on a “collision course” with Mr Salmond’s Executive.In the event that the Inner House was to find in favour of Imperial Tobacco, I am fairly certain that the case would be appealed by the Scottish Executive to the UKSC!

The only way in wich a “collision course” appears is if, in some way, it is seen to be wrong for a court to find against the Scottish Ministers. I cannot imagine that Mr Salmond and his Ministers believe that it is wrong for a court to find against them! If that is their view, then it would be helpful if that were to be made clear.

As I said, I cannot imagine such a piece appearing if Mr McKain was still at the Herald. I am sure that Kate Devlin is an excellent political correspondent, but her grasp, at least in terms of this article, of  legal issues is sadly lacking.

Finally one wonders why the piece appeared now. The Inner House appeal has yet to take place. There is a long way till any appeal to the UKSC is marked. An appeal hearing in London is even further away.

To whose benefit is an exclusive article indicating that the Scottish Executive is continuing its fight against the “foreign” UKSC and its “interference” in the law of Scotland? Sadly, as I have no expertise in politics, I cannot answer that question!


Filed under Civil Law, Courts, Press, Tobacco & Primary Medical Services (Scotland) Act 2010, UK Supreme Court

What Was Omar Sharif Doing at Glasgow Sheriff Court?

Omar Sharif – the most elegant of actors, whether in the desert sands in Lawrence of Arabia, crossing the steppes to the sound of the balalaika in Doctor Zhivago or sitting at the bridge table, laying down another grand slam. Not a person one would normally associate with the Scottish court system.

Imagine the surprise therefore of the Scottish legal profession (or at least those who look at it) on checking the Scotcourts website list of 50 most recent published judgements in the Sheriff Court yesterday – found at

There stands the case of The Scottish Ministers v Omar Sharif  –  a case decided by Sheriff Swanson at Glasgow Sheriff Court!

What could the suave and debonair gentleman have done to upset Mr Salmond and his colleagues? Did he adversely compare the River Clyde to the River Nile? Did he indicate that he saw the seaside resorts of his native Egypt as more alluring than the sands at Ayr? Had he made any comments linking the former President Mubarak with any Scottish politicians? (Not that any comparison of that nature would, in any way, be justified.) The mind boggled!

Perhaps this was, following upon the trip of Brad Pitt to Glasgow, a way of getting more famous actors to visit Scotland?

Would we next see City of Edinburgh Council v Tom Hanks or Glasgow City Council v Scarlett Johansson? Scottish Water v Jack Nicolson? CalMac Ferries v Tom Cruise? The possibilities seemed endless.

Sadly however the sense of wonder and excitement quickly vanished. Glasgow Sheriff Court had not been graced by the presence of the great actor, but instead by his namesake in connection with an action to recover “Proceeds of Crime”. This Mr Sharif was an asylum seeker from Somalia.

It is a sad confession that the legal point decided by Sheriff Swanson is actually more interesting to me than if it had been “Doctor Zhivago” himself at the court!

Put shortly, although Mr Sharif succeeded in his defence of the action raised by the Scottish Ministers, whose agents, the Civil Recovery Unit, decided not to proceed to a final hearing a week before it was due, the Sheriff departed from the normal rule by which he would have been paid his costs by the unsuccessful pursuer.

Sheriff Swanson reviewed matters in light of Regina (Perinpanathan ) v City of Westminster Magistrates’ Court and another [2010]EWCA Civ 40 which raised a similar point in England. She determined that cases of this kind were unlike normal cases and the rule that “expenses follow success” did not apply without an analysis of what the case was about, why the Civil Recovery Unit had pursued the matter, why they had stopped doing so and the whole circumstances of the case.

Here they had had intelligence suggesting that Mr Sharif was a “bad egg” (a rather odd phrase to be used in this context, conjuring up images of Bertie Wooster carrying out undercover surveillance and then filing his report whilst strumming on his banjole). Mr Sharif claimed that the funds he had had seized were legitimate. The Civil Recovery Unit finally accepted that, on legal grounds, the apparent technical offence committed by Mr Sharif did not give grounds for forfeiture and they received corrected information regarding the matter which supported Mr Sharif’s position.

The argument on expenses related to two grounds. Firstly it was argued that the Civil Recovery Unit, by takin till the week prior to the case to decide their position, had acted unreasonably or unfairly. Sheriff Swanson rejected this, stating that “In all the circumstances of this case I am satisfied that Scottish Ministers acted honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of their public duty.”

The second issue regarding expenses related to the Scottish Legal Aid Board and its “clawback” provisions. If a person in receipt of Civil Legal Aid in Scotland “recovers or preserves” property in the case for which Legal Aid has been granted, then if they do not recover enough in court expenses from the other party, subject to some statutory exceptions, their solicitor’s fees are to be paid from the property so “recovered or preserved”.

Here the sum of around £5,000 in cash had been seized. In successfully defending the case, the costs incurred on behalf of Mr Sharif were about half that figure. Without an award of expenses in his favour therefore, the net effect would be that he would get back only half of the funds which the court had officially determined were his legitimately.

Sheriff Swanson looked at the statement by Mr Sharif that he had saved the sum involved from benefits he and his family received as an asylum seeker in the UK. The plan was to have some funds available for his family upon his return to Somalia. It was argued for him that he would be caused financial hardship if the clawback took place.

Sheriff Swanson rejected this, saying “If no award of expenses is made in the Defender’s favour I was advised that SLAB will seek to recover costs from the sum seized. That is a situation in which a public body will be seeking to recover from funds originally made available by another public body. In considering the question of financial hardship to the Defender against that background, I find that the reduction of the sum by the return of money to the public purse does not constitute financial hardship to the Defender in all the circumstances.”

So, all in all, a fair result? Mr Sharif gets back half of his money.Mr Sharif, effectively, pays his own solicitor. There is a saving for the public purse in Scotland and, there is now a detailed analysis of the issues which will undoubtedly continue to arise regarding these cases. The court was told that the Civil Recovery Unit handles over 700 of these cases per year, with 65% or so being from the Strathclyde Police area.

The case now goes back on the electronic bookshelf, and the paparazzi photographers can stand down, until the next famous person makes their appearance at Carlton Place!



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Filed under Civil Law, Courts, General Scots Law Rambling

Tommy Sheridan and the “McNeilage Tape”

One of the issues noticed by legal observers of the trial of Tommy Sheridan for perjury in connection with his successful defamation against the News of the World (NotW) was what Sherlock Holmes would have called “the dogs that didn’t bark”.

These “dogs” were expert reports analysing the so-called “McNeilage Tape”.


George McNeilage

George McNeilage had known Tommy Sheridan since their school days. He was a political colleague and had been best man at Mr Sheridan’s wedding.

However, according to Mr McNeilage in court, he had become sickened by Mr Sheridan’s public denials and diametrically opposed private admissions regarding his personal foibles, and decided to obtain proof of this.

According to Mr McNeilage, he engineered a meeting with Mr Sheridan in the presence of a hidden video camera. The video-tape which Mr McNeilage obtained, he said, as a result of this meeting, was one of many dramatic factors in the case. The Daily Record  referred to the tape as being a “sensation” when it was first introduced into the trial.

Mr McNeilage told the court he had sat tight with the tape, only showing it to one other person, until after Mr Sheridan’s success in his defamation case, and his award of £200,000 damages by the Edinburgh jury.

He felt, he told the court, “physically sick” after the verdict, and even worse after the Daily Record published a front page article based apparently on comments by Mr Sheridan where he referred to certain of his former Scottish Socialist Party colleagues as “scabs”.


Did Mr McNeilage Do Anything Legally Wrong By Selling the Videotape to the NotW?

All this culminated in him contacting the NotW and after various negotiations, which included the Scottish editor of the NotW stripping to his underwear to view the video, to ensure that he was not “wired”, Mr McNeilage handed this evidence over to the NotW in return for a payment of £200,000.

Of course, at the stage when he did so, Mr Sheridan had been successful in his case, and this had been appealed by the NotW. Whilst the judge at the original trial had indicated that he thought that certain witnesses should be investigated as regards possible perjury, Mr Sheridan did not seem, at that stage, to be actively under inquiry.

There was therefore nothing legally wrong with Mr McNeilage contacting the NotW to sell them the tape. It was not, for example, interference with evidence in a criminal investigation, despite various comments to that effect which have been made.


What Did Mr Sheridan Say in Court about the Videotape?

As mentioned in the Daily Record piece above, the tape had recorded a voice which seemed to be that of Mr Sheridan, and there was a fleeting glimpse of a person who might have been him.

As it transpired, in court both prosecution and defence called various witnesses who were asked if they thought the voice on the tape making the damaging admissions was that of Mr Sheridan. The Crown witnesses thought that it was, whilst the defence witnesses thought that it was not. All witnesses, with differing degrees of certainty, gave their opinions about whether the voice was Mr Sheridan’s or not.

Here, legally, matters are complicated by Mr Sheridan’s decision at an early stage to dispense with his QC and to represent himself. Whilst he exercised his right not to go in to the witness box, it is clear that, deliberately or not, Mr Sheridan took the opportunity of examining, cross-examining and re-examining witnesses to, effectively, give his own evidence, without fear of the prosecutor asking him questions.

At different times Mr Sheridan suggested; that a mimic had been employed to impersonate his voice (but his efforts to have Des McLean, a mimic noted for his impressions of Mr Sheridan, admitted as a witness were fruitless);  or that the tape might have been created from “bugged” conversations or phone messages.

Prosecution witnesses, including Mr McNeilage, who were asked about the tape had no doubts of its authenticity.


When Do the Non-Barking Dogs Make Their Appearance?

I will preface my remarks by saying that my speculations are not based on any direct knowledge of these matters but from what I hope is an “educated” guess as to what was happening, and also that no criticism of Mr Sheridan’s legal advisers is intended nor is any implied.

In a High Court case of this nature where there is physical evidence, like a video tape, both parties need determine if the evidence is genuine and whether or not the other party will seek to challenge this.

Scottish procedure requires that the Crown carry out full disclosure of their case to the defence, and in sufficient time prior to trial. The High Court will fix a Preliminary Hearing, and there can be a number of these in any one case, for the judge to ascertain how prepared all parties are for trial.

The Crown must disclose a list of witnesses whom it may call (if a witness is not listed then it is very difficult to have them called to give evidence) and a list of productions and “labels” being the documents and physical evidence in the case.

Therefore the defence would have had knowledge of the McNeilage Tape. This would have been discussed with Mr Sheridan by his QC and instructions given by him as to what was to be done about it.

Where, as must have been the case, Mr Sheridan disputed the tape’s authenticity, it is very hard to see that arrangements would not have been made for the video tape to be analysed, especially as, at the trial, Mr Sheridan drew attention to various “edits” in the recording. These, he suggested, might have been to get rid of any “mistakes” in the bogus confession recorded.


So, Were There Expert Reports or Not, and Why Did the Jury not See Them?

Now, whilst CSI and similar programmes have led us to believe that, from one fibre of material, the full events of a crime can be re-constructed, there is great technical expertise able to determine (a) if a recording is a true recording, or if it is made by “sampling” and (b) whether the voice or voices on the tape are likely to belong to a named individual.

So, in these circumstances, and despite hearing from many witnesses, did the court not hear from any experts?

There have been various theories expounded regarding this, one being that the Crown deliberately left their own expert off the list so as to allow them to question Mr Sheridan’s expert, whilst not leaving their expert open to attack.

That, whilst attractive to the “conspiracy” theorists, does not seem credible to me.

As far as I can surmise, and I quite accept I may be entirely wrong, the situation would have been as follows.

The Crown, in all likelihood, would have had the tape examined by an expert to see if it was genuine or if it appeared to be made of “off cuts”. In addition, the voice of the purported “Mr Sheridan” would have been analysed to see if an opinion could be given to the court about this.


A Short Digression on Expert Witnesses

Expert witnesses are lucky, in that they are the only witnesses who are properly able to tell the court their opinion, rather than simply giving factual evidence. Lay people often seem confused by the fact that two eminent experts can go into court, and give diametrically opposed opinions. I would never suggest that expert witnesses tailor their opinion to suit the side instructing them. That would be a gross dereliction of their duty to the court. The skill (or luck) lies in finding a suitably qualified whose evidence supports one’s thesis. I could, if I was an expert witness on football, for example, tell the court that it was my firmly held opinion that, in four years time, Albion Rovers would win the European Cup. Any number of pundits could explain how crack-pot that theory was, but no-one could prove that it was not my honestly held opinion (I don’t think Albion Rovers will win the European Cup in four years, by the way – give them six!)

As long as I have something, in that example to justify what I say, then I can give evidence, as an expert, which completely contradicts the opposing expert. It is for the judge or jury then to determine which expert’s evidence can be relied upon.


Enter, Stage Left, Peter Cadder

If the Crown expert said (a) that the tape was created from various different snatches of conversation and “knitted” together, or if the Crown expert determined that was not clear if the voice on the tape was that of Mr Sheridan, then the tape would not have been produced or mentioned in court. It would be a matter of grave concern if something like that had happened. In addition, under the rules of disclosure, such evidence would require to be made available to the defence, and if, notwithstanding the expert report or reports, the Crown had sought to introduce it, then the defence would have been easily able to discredit it.

It therefore would appear that the prosecution must have had favourable reports on these matters. Why would they not have introduced them in evidence?

Here we need to thank Mr Cadder.

Peter Cadder was convicted in 2009 of certain offences committed in 2007. However, he had ben interviewed by police without having had legal advice, and he challenged this as breaching his right to a fair trial under the European Convention on Human Rights. The Supreme Court in October 2010 ruled that statements obtained by the police in such circumstances were inadmissible.

How does this bear upon Mr Sheridan? The expert who analysed the tape for the prosecution would have needed a sample of Mr Sheridan’s voice for comparison purposes. Whilst Mr Sheridan has been a man very often heard on the radio and seen on television, to avoid evidential problems, the source material for such a comparison would normally be the accused’s police interview. However, in terms of the Cadder ruling, the evidence of Mr Sheridan’s taped interview with the police was inadmissible.

Now, as mentioned above, Mr Sheridan’s team must have obtained their own report or reports regarding these matters. If the defence experts agreed with the prosecution, then clearly they would not have been put before the court. It is not the job of the defence to assist the prosecution, but equally, if the defence position was that the voice, for example, was not that of Mr Sheridan, then normally expert evidence would be needed to make that case convincing (although the defence have no obligation to convince the jury of anything).

If Mr Sheridan had had favourable expert testimony, he could have agreed for this to be led. Even though the police interview with him was inadmissible as Crown evidence, the accused can have it introduced into evidence himself.

This then opens it up to the prosecution to refer to it. The genie is out of the lamp at that stage.


So, What Happened?

There are therefore, I think, two possibilities more likely than any others. Either the defence experts had little or no doubt about the provenance of the videotape, in which case leading their evidence would only bolster the prosecution, and in which case there would have been no incentive for the defence to permit the taped interview to be played or notwithstanding whatever the defence experts might have said, the tape contained admissions by Mr Sheridan which were damaging to his defence.

There were a number of prosecutions affected by the Cadder decision, being cases where police interviews with admissions by the accused had taken place prior to the Supreme Court decision, and in many the cases were dropped. The Crown felt that they had enough evidence (as it turned out they had) to convict Mr Sheridan without expert testimony regarding the video-tape.

I imagine that, at one of the Preliminary Hearings, the court had dealt with the question of admissibility of the videotape, and that the Court, as is normal in thees circumstances, had imposed reporting restrictions. During the course of the case there were at least four separate orders made by the court under section 4(2) of the Contempt of Court Act 1981 restricting or prohibiting reporting. Perry Mason, Petrocelli and the rest of the American lawyers whose fictional cases appeared on TV, it is not permitted, except in the most extreme circumstances, for a High Court case to be de-railed by a “last-minute” surprise witness. Therefore, if the court had ruled out the Crown expert reports as inadmissible, the defence would not have been allowed to try to “sneak in” their own expert. If they had, thus waiving the right to object to the police interview being admissible, the judge would have allowed the Crown experts to testify. In all likelihood however, he would have refused to allow the defence expert evidence before the court unless the expert was on the defence witness list and it had been made clear he might be called.

The likelihood therefore that there were expert reports, but that these were not for playing before the jury meant that all parties had to tread carefully. I recall a case some years ago (not one in which I was involved, but one which happened to be on in the court in which I was at the time) where an accused had been convicted of a serious assault. Despite the fact that he apparently had a number of previous convictions, these had not been libelled by the prosecution against him. This meant that the judge could not take the previous convictions into account in passing sentence. The defence lawyer, treading carefully, told the court that his client appeared “with no previous convictions libelled against him” which is different from saying that he had none, or that he was a first offender, both of which would have been untrue. I am sure the judge noted this formulation but as he did not have the convictions before him, he could do nothing about taking them into consideration.

Here too, in the Sheridan trial, both sides had to step carefully round the issues, and, from all I have read, they seemed to do so very well, although I suspect there might have been times when there was some legal argument about precise references to the video and whether or not it was genuine.

It has also been suggested that each side planned to seek to discredit the other’s expert on this point and so an accord was reached whereby neither side introduced expert testimony. I fail to see the sense in that. If I was a defence lawyer with an expert witness challenging a substantial part of the Crown case, I would want his evidence before the jury, even if the Crown had an expert to rubbish mine. It all goes towards showing there is a reasonable doubt regarding guilt.

If my expert did not really support my argument however and especially if introducing him would have permitted the jury to hear damning confessions from my client, then I would want the expert and his report as far from court as possible.

(Again, as an aside, I should say that the making of admissions at interview is not always conclusive, and there have been various cases where the court has decided that, for example, there has been “interrogation” of  witnesses, which is treated by the law as unfair and renders the content of the interview inadmissible against the accused.)



As the trial continued, message boards and blogs dealing with the case were filled with discussions. There was rampant speculation about the video-tape and the expert evidence to deal with it. The supporters and enemies of Mr Sheridan drew up their battle lines, each side trying to explain why, by that stage, the expert evidence had failed to appear.

As we know, it never did.

If Mr Sheridan is ultimately successful in his appeal (and as of now there is no live appeal) there remains the possibility of a re-trial. In such an event his advisers would again have to consider very carefully whether the expert evidence is worth leading.

In addition, the NotW stilll has its appeal against Mr Sheridan’s damages award to be determined. There is a possibility too that this case could result in a re-trial. As this is not a criminal case, it may well be that the concerns about admissability of the expert reports disappear and, as a result, the full tape of Mr Sheridan might be heard by the High Court jury.





Filed under Courts, Criminal Law, Human Rights

Do the Dead Have Human Rights?

The Firm Magazine reported this week  that Grampian Fire and Rescue Service (GFRS)has refused to release incident reports to the next of kin of a man killed in a vehicle fire because doing so would breach the dead man’s “continued right to privacy.”

The article quoted Peter Murray, Assistant Chief Fire Officer as saying: “to disclose the information contained within the Grampian Fire and Rescue Service and into the public domain would breach that right” (being the right under Article 8 of the European Convention on Human Rights (ECHR) to respect for private and family life).

The GFRS is also reported as saying that “disclosure of an incident report would be likely to have a significantly disruptive effect on the way in which Grampian Fire and Rescue Service conducts its business.”

The details of the request and the subsequent actions of the GFRS can be seen in the article, but I thought I could offer some thoughts on the principle invoked.

Traditionally in Scots Law the dead have no rights, their property rights, for example, passing on death in accordance with the law of succession, or under valid will. This is a reason why wills for married couples usually include a “common calamity” clause dealing with the tragedy of both being killed in the same incident. If not for such a clause, a determination as to which one dies first could make a substantial difference to where the deceaseds’ estates end up.

Indeed, in Stair’s Institutions, (1st edition) at page 600, the learned writer refers to the Law of the Death-bed, whereby changes of wills or dispositions of property made on the death-bed were treated as invalid. In Stair’s view, some of a person’s rights were taken away even prior to death.

The reason stated for this, and we must remember that this was written in 1681, was “for the quiet and security of dying persons against the importunity of husbands, wives, children and other relations; and particularly against the importunity of Romish priests”. The latter were accused of persuading those on their death bed to give their assets to the Church, in return for promises of graces in Heaven, to the deprivation of their families. It must be remembered that in 1681, the Roman Catholic Church was rather unpopular, to say the least, in Scotland!

Beyond doubt however, the dead had no rights in Scots Law.

It is well known that the dead cannot be defamed in law. While de mortuis nihil nisi bonum is a fair maxim to live by, in a legal sense it can be ignored with impunity. Speaking ill of the dead has no legal consequences, at least as far as the dead are concerned.

The ECHR, and especially its direct incorporation into Scots Law by the Scotland Act, have greatly expanded debate about “human rights”.

For example, it is now clear that you don’t need to be a live person, but can be a “live” limited company, and have “human” rights. The insurance companies who challenged the Damages (Asbestos-related Conditions) (Scotland) Act 2009 as being in breach of their “human” rights were not prevented from doing so just because they were not flesh and blood. The judgment in the case of AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents)  is awaited eagerly (on the basis I will get a blog post out of it). That case, clearly shows that insurance companies, for example, have “human rights”.

It is interesting that the GFRS make reference to Article 8. It runs as follows:-

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

While there is a variety of jurisprudence regarding the start of “human rights” in connection with unborn children, I am not aware of case law regarding the end of human rights.

The European Court has refused to set down an absolute determination of the position as to when human rights commence and therefore it is not a surprise that there is no authority for the continuation of such rights after death.

Adam Rosenblatt wrote an excellent essay, published in Human Rights Quarterly 32 (2010) 922–951 looking at the question of human rights for the dead. The essay looks at this in the context of forensic examinations of bodies exhumed from mass graves. I would commend the whole piece to readers. It is thoughtful and thought-provoking.

Mr Rosenblatt comments that “The rights of the dead and our duties to them do figure prominently in religious, philosophical, and literary texts, from the various Egyptian books of the dead to Sophocles’ Antigone to Kant’s Metaphysics of Morals.” Whilst his focus is upon the rights of the dead body as opposed to the person, there is relevance in his study to the question posed above. He quotes the philosopher Thomas Nagel as giving the opposite of his task “When a man dies we are left with his corpse, and while a corpse can suffer the kind of mishap that may occur to an article of furniture, it is not a suitable object for pity. The man, however, is.”

Mr Rosenblatt refers to the concepts of agency and dignity as being fundamental to the consideration of “human rights” and emphasises that the Universal Declaration of Human Rights is founded very much on these pillars. He explains the concept far better than I can, but by way of shorthand, “agency “ refers to the person actually doing. Is there “participation” by the dead in any meaningful way?

As regards “dignity” at first sight this seems a straight forward concept, and one where it could more easily be thought that there can be an extension of existing rights to cover the dead. However, the concept of “dignity” is not easily measurable nor immediately visible. The Universal Declaration of Human Rights refers to all members of the “human family” as having inherent dignity. Does a dead person retain their status as a member of the human family on death, and where is the “inherent” dignity seated?

He considers the historian and activist Antoon De Baets whose theory is that the living have responsibilities to the dead, rather than the dead having rights. That analysis seems very attractive, especially as it does not require us to consider that the apparent change in the law as viewed by GFRS  has been innovated without the consideration of Parliament. No-one in the Scotland Act debates was discussing the rights of the dead, yet if the GFRS position is accepted, then a huge new strata of rights had been created, pulled figuratively out of a European hat!

Mr Rosenblatt concludes slightly differently, noting that “The dead are often treated with respect and consideration, but they do not have inherent dignity. Thus … they cannot have human rights in the universal, inalienable sense that forms the moral core of every major human rights declaration and instrument.” Philosophically he views it as very hard to justify the dead having human rights.

If GFRS is correct in its stance, does this remain the case till the end of time, or is there a point when the rights expire? After all, confidential Government documents are released after 30 years, in most cases, and census details after 100 years. Do GFRS see this right as never-ending?

In any event, who is to vindicate the rights of the dead man, should it be thought that these rights exist and have been breached? If a person dies whilst party to a court action, then their executor can continue to pursue or defend the case in their capacity as executor. However, the deceased person is outwith the reach of the courts at that stage. Would the GFRS position require a fundamental review of the procedure used in such cases?

It would be interesting if GFRS would be willing to explain the basis for its ground breaking extension of human rights to dead people! However, I suspect that they will say that it would be a breach of the deceased’s human rights to release their legal advice on the question!


Filed under General Scots Law Rambling, Human Rights

Tommy Sheridan’s Appeal – What Happened and Where Now?


News broke last week, courtesy of Paul Hutcheon in the Herald that Tommy Sheridan’s appeal against his conviction for perjury had failed.


Was the News of the Failure of the Appeal Leaked?


Initially, there was a flurry of concern on Twitter suggesting that the news had leaked from the court in some way, as it was reported prior to Aamer Anwar, Sheridan’s solicitor, receiving official notification. However, it transpires that it was good, old-fashioned journalism. As Mr Hutcheon   tweeted on 4th August in response to a question as to how he had known to ring the court that day “I called them (the High Court) every 2/3 days after Aamer gave me a quote that he wd appeal to the second sift”.


What Happened to the Appeal?


To be permitted to have an appeal hearing, an appellant needs his appeal to “pass the sift” i.e. be granted leave, either by one judge (the first sift) or if failing at the first hurdle, by a panel of two or three judges (the second sift).

The rules for appeals in solemn case (i.e. cases heard by a jury) are dealt with in Part VIII of the Criminal Procedure (Scotland) Act 1995, as amended.

The appeal process is intended to be quick, with notice of appeal being lodged within two weeks of the conclusion of the case. Then the appellant must lodge, within a further 8 weeks, a written note of appeal “containing a full statement of all the grounds of appeal“.

In Mr Sheridan’s case, as we now know, he failed at both hurdles.  It has been reported that the judge who refused leave at the first stage was Lord Wheatley and last week Lords Hardie and Emslie and Lady Paton finally refused Mr Sheridan leave to appeal.

Following on the failure to pass the first sift, and prior to the decision of the second sift, the commentator, Lallands Peat Worrier, offered some interesting and valuable thoughts regarding the appeal process in this case  including reference to the challenges a “fresh evidence” appeal at a later date might face.


Why Did the Appeal Fail?


There has been speculation about what the grounds of appeal might have been. For example there was press attention given following the verdict to potential new witnesses whose evidence, it was reported, was going to be important in an appeal.

However, according to Mr Hutcheon’s article “Following the conviction, Sheridan’s solicitor Aamer Anwar sought leave to appeal on the grounds that pre-trial publicity denied his client a fair trial.

If that is correct, then there was little chance that the appeal would succeed and I will be putting up a separate post regarding recent “pre trial publicity” appeals.  It may well be that other grounds of appeal were argued but, as far as I am aware, this is the only one which has been publicised.

As is not surprising, “prejudicial” adverse pre-trial publicity is raised in many high profile cases. However, the success rate, either for appeals against conviction, or in asking the court to prevent trial in advance, is very low, if not non-existent.

In general however, the courts have taken the consistent line that a jury can always be carefully directed only to consider the evidence led in court in the course of the trial, and to disregard extraneous material. As such pursuit of an appeal based on nothing other that adverse pre-trial publicity seems a forlorn hope.


What Can Mr Sheridan Do Now?


Mr Anwar issued a statement indicating that the fight would continue  He stated that he had asked the High Court to suspend the appeal process pending the Strathclyde Police investigation into matters including the testimony of certain witnesses at the trial.

This request was refused by the High Court.  From time to time the Court gets annoyed about the way cases can drag on through the appeal process. In Gordon v HMA [2009] HCJAC 52, for example,   Lord Carloway  commented on the growing number of cases where there were delays, and he noted that “The procedure is not concerned with considering the prospects, remote or likely, of an appellant seeking to amend his grounds of appeal in the fullness of time.

On that basis, and until Mr Anwar can produce something concrete for the court, the appeal was going to be dealt with as it stood.

Mr Anwar indicated that, “We will consider if there are grounds for an appeal to the Supreme Court or whether to take the matter to the Scottish Criminal Case Review Commission on the basis of new evidence which may emerge as a result of the police inquiries.”

If Mr Anwar wants to appeal to the UK Supreme Court (UKSC) he will first need to ask the High Court for leave to appeal.

The High Court is the court of last resort in relation to Scottish criminal law, with the only exception being the jurisdiction of the UKSC which extends only to a consideration of a devolution issue which has been determined by two or more judges of the High Court: para 13 of Schedule 6 to the Scotland Act 1998.

The UKSC can therefore only deal with a case where a “devolution issue” has been raised. Under the Scotland Act, all ministers of the Scottish Executive must act in accordance with the European Convention of Human Rights (ECHR). It is illegal to act contrary to the ECHR. As head of the prosecution service in Scotland the Lord Advocate is obliged to act in accordance with the ECHR. Where it is alleged that the prosecution have failed to do so, by acting in a way which infringes the accused’s ECHR rights, then such a minute is lodged.

I have not seen coverage in the press indicating that such a minute has been lodged in this case, although one might expect that there would have been in respect of the pre-trial publicity point prior to the trial. If so, and it was rejected, then the UKSC can be asked to review the handling of the devolution minute.

If one has not been lodged, then there is nothing to be considered by the UKSC.

If the High Court refuses to grant leave to appeal, the appellant can ask the UKSC directly for “special leave” to appeal.

In the recent case of Fraser v HMA [2011] UKSC 24  the UKSC granted special leave on the basis that the refusal of the High Court to receive a devolution minute was itself a decision regarding a devolution minute and that the UKSC considered that there was a “strongly arguable” case that the High Court had got it wrong.

Based on what has been considered above, then it seems very unlikely that the UKSC would grant special leave, let alone grant an appeal.


The second route outlined by Mr Anwar is the Scottish Criminal Cases Review Commission. At any time after the normal appeal process is exhausted, a person who has been convicted can apply to the SCCRC if they consider that they have been the victim of a miscarriage of justice. The SCCRC will investigate the case and determine if they think there is an arguable case. If so, they can refer the case back to the High Court. Effectively this gives the appellant a second appeal, and if the SCCRC refer a case, it is treated as having passed through the sift process.

Therefore, if the ongoing police inquiry into the aftermath of the Sheridan case produces concrete evidence which can get past the hurdles for “new evidence” cases as mentioned by Lallands Peat Worrier and which casts substantial doubt upon the conviction, then there might still be a case for the High Court to consider. That however involves a great leap in speculating about what, if anything, the investigation uncovers and how relevant that might be to the guilty verdict.




Despite the fact that the case of HMA v Sheridan has, for now, formally concluded, I think it is highly likely that we will still be reading and hearing about it for years to come, as long as Mr Sheridan has the stomach for the fight, as I am sure he has.

And it could be said that the disposal of the case now actually works better fro him than if he had been permitted an appeal hearing.

An appeal hearing would have brought the matter back to the public’s attention, and especially if Mr Sheridan represented himself, then the case would probably have lasted some days. The High Court might well have passed adverse comment upon his conduct of the trial. That is not intended as a slight to him, but instead simply a reflection that, when in the dock in the High Court, it is usually advisable to have a Queen’s Counsel of great experience representing you.

Whilst, from all I have read of it, his final jury speech would have been a tour de force from a political platform, it wasn’t the right tone or content for a jury speech in the High Court.

For all his oratorical skill, a lot more than that is needed, especially when trying to keep a grip on a case running for almost three months.

Instead, Mr Sheridan, once he is released from serving his sentence, can say that he has been denied the opportunity to clear his name, whilst those he might perceive as “the guilty men” remain free.

I’m not qualified to say if this will help him politically, but it would be consistent with his political philosophy. He’d remain the underdog, fighting against the system and big business, and penalised, he might claim, for doing so.

And bearing in mind where the reputation of the News of the World now stands, who is to say he might not yet be able to make a comeback, in the same way that the former Labour leader in Glasgow, Pat Lally, kept doing, so as to gain the title “Lazarus?”



Filed under Courts, Criminal Appeals, Criminal Law, News Of The World, Press