Monthly Archives: June 2013

High Court Confirms Draconian Nature of Offensive Behaviour Act re “Boys of the Old Brigade”

Today the High Court of Justiciary allowed an appeal by the Procurator Fiscal in Dingwall against the decision of a Sheriff to hold that there was no case to answer in relation to a charge under Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The decision by the court, which was made up of Lady Paton, Lord Brodie and Lord Philip in the case against Joseph Cairns, which can be read in full here, makes clear the full extent of the Offensive Behaviour Act, and confirms that, effectively, if the police give evidence that a particular song or chant is likely to be considered offensive by a reasonable person, then an offence is committed, whether or not there is anyone there who was, or indeed could have been, offended.

Whilst this decision is a correct interpretation of the legislation, and therefore the Court cannot be faulted for its reasoning, I think it shows the draconian extent of the legislation, and the scope for abuse of it which there could be, in the hands of unscrupulous prosecutors or police. It also shows the inconsistencies in the legislation and in deciding in what circumstances an offence can, and cannot, be committed.

In addition, it clearly, as far as I can see, runs into conflict with the rights to free expression which are enshrined in the European Convention on Human Rights. Continue reading

286 Comments

Filed under Criminal Law, Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

Andy Coulson, Private Court Appearances and Contempt of Court Orders

The news broke yesterday that Andy Coulson, former bigwig at the News of the World, and latterly Director of Communications for the Prime Minister, had appeared in private at Glasgow Sheriff Court last Thursday on a charge of perjury. He made no plea or declaration and was released on bail.

Why Was His Case Dealt With In Private?

Before anyone suggests that Mr Coulson was receiving privileged treatment by having his case dealt with in private, that is in fact the required procedure for the first appearance on petition in a serious criminal case. These are always dealt with “in private”. That can mean in Sheriff’s chambers, or in a closed court, where only the Fiscal, defence agent and accused are present (along with the Sheriff and court and security staff).

The reports indicated that Mr Coulson was represented by the Dean of the Faculty of Advocates, Richard Keen QC. It is unusual to wheel out the “big guns” so early in a case like this, but sometimes “visitors” from England fail to appreciate that solicitors deal with such appearances every single day. So Mr Coulson is likely to have incurred a substantial cost for Mr Keen’s appearance (and even if he applied for and was granted Legal Aid – and there is no indication he did – the public purse would not be paying for Mr Keen’s undoubtedly excellent services). Continue reading

297 Comments

Filed under Contempt of Court, Courts, Tommy Sheridan

Some Helpful Advice For Anyone Going To Court – by Me at the Clarity Law Blog

My new post giving some sensible and practical advice for anyone due to attend court is now up at the Clarity Law Scotland website.

Mobile phones, suitable clothing and the exercise of restraint when receiving bad news are all touched upon.

To read the piece, click on the logo below.

Enjoy!

clarity-law-logo

 

 

 

1,698 Comments

Filed under Alleged Humour, Courts, Me at Clarity Law

Warrant Granted For Craig Whyte’s Arrest! Why and What Happens Next?

Craig Whyte is not a very popular man with quite a lot of people. Regularly on the Internet you can read comments from people looking forward to him going to jail (for something or other) or for even worse things happening to him.

So there was some cause for celebration when news broke yesterday afternoon that a warrant had been granted for Mr Whyte’s arrest.

However this is nothing to do with any alleged offence on his part, but rather with his failure to appear at court as a prosecution witness in the trial of two people, former housekeepers for Mr Whyte, alleged to have stolen property from Mr Whyte’s Highland Castle. Continue reading

113 Comments

Filed under Contempt of Court, Criminal Law

How Did “Private Eye” Get Hold of Papers about Craig Whyte’s Ban? It Went to Court and Asked for Them!

In which I praise Private Eye for its news-gathering activities; comment on the failure of other news organisations to do the same; compliment the English courts for its open-ness; and contrast this with the prevailing mood in the Scottish courts regarding “Open Justice”.

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I was skimming the marvellous BAILII website, looking for interesting legal cases. As I did so, I came across one which was decided on 30th May 2012 by Mr Justice Morgan in the High Court in London. The case is titled Pressdram Limited v Craig Whyte and David Anderson. Pressdram Limited is of course the owner and publisher of Private Eye.

What happened here was that Private Eye engaged in good, honest journalism.

They wanted to see papers which related to the disqualification procedures taken against Mr Whyte and Mr Anderson under the Company Directors Disqualification Act 1986.  These original proceedings were filed on 20th October 1998 and resulted in an order being made by Mr Registrar Simmonds on 13th June 2000.  That order was a seven year disqualification for Mr Whyte.

Morgan J took account of guidance on “Open Justice” regarding “availability of documents to non-parties”. He also considered a very recent decision of the Court of Appeal – R (on the application of the Guardian News and Media Limited) v City of Westminster Magistrates’ Court & The Government of the United States of America and Article 19. In that case, which related to extradition, there had been, as Morgan J, in the Pressdram case, said, “a difference of view between the Divisional Court, which withheld the order sought by The Guardian newspaper and the Court of Appeal as to whether the Court had power to permit a newspaper to inspect certain documents and obtain copies of them, in relation to the extradition proceedings.” Continue reading

324 Comments

Filed under Courts, Press