Search

To what extent are accused's backgrounds within the criminal justice system considered during the sentencing process, and if they are, how do judges make sense of them? To better understand this aspect of the sentencing process, this article examines data from interviews with, and observations of, 16 Sheriffs in 14 different Scottish Sheriff Courts. The accused persons' backgrounds were indeed considered during the sentencing process. However, how Sheriffs constructed their role as sentencers seemed to directly affect how they acknowledged and took them into account. [ABSTRACT FROM AUTHOR]

Vicarious liability is the treatment, regardless of fault, of one defender as liable for another defender's wrong. The basic inquiry involves examination of whether (i) the defenders stand in a relationship capable of giving rise to vicarious liability; and (ii) the wrongdoing is relevantly linked to that relationship. Unsatisfactory though the reality and its results may be, the contours of these core components are sculpted as new fact patterns come before the courts, and judges emphasise differently and compromise between various policy goals. The elementary principles are quite well-settled, especially given a relative paucity of case law and literature. But room for refinement remains. We here further analyse issues of interest in Scotland and beyond concerning the basic inquiry, and clarify the unimportance in this context of the distinctiveness of Scots law, before summarising our conclusions. [ABSTRACT FROM AUTHOR]

This article explores the development of Scots lawyers' approaches to justifying delictual liability. It suggests that these reflect the taxonomical relationship between delict and the rest of the law. Four models are posited and discussed: the residual model (delict is the category for wrongful conduct without another taxonomical home); the crime/delict model (criminal law determines what is wrongful and delict handles its private law consequences); the conduct-harm model (wrongfulness is rooted in conduct which foreseeably or intentionally causes harm) and the rights-based model (wrongfulness is grounded on the breach of a right justified elsewhere in private law). [ABSTRACT FROM AUTHOR]

The Defamation and Malicious Publication (Scotland) Act 2021 is, in its way, a major achievement. A codifying statute for a complex area of the law was produced in a relatively short time-frame, and the SLC's objective of modernising and simplifying the law was certainly realised. Yet the Act also demonstrates some of the difficulties of legislating for the law of delict, especially in the Scottish context. [ABSTRACT FROM AUTHOR]

When the new Scottish Parliament was established through the Scotland Act of 1998, various innovative steps were taken to guarantee greater public participation in political processes. One of these measures, the Scottish e-petitioning system, provides a vehicle for interested citizens to petition the parliament directly on matters of public interest. This article examines all the e-petitions submitted since September 2011 in the area of Justice and Law, establishing how petitioners convey their own motivation for taking this step, and how Scottish justice is represented. Analysis of these petitions shows citizens engaging proactively with legal issues, and probes into citizens' conceptualizations of law and justice both in their current reality and as projections of how they could or should be. It also explores the association between legal and national consciousness, and the way in which citizens adopt an increasingly transnational approach to framing legal issues. The petitions thus reveal both active concern to achieve justice in highly specific individual matters, and a more theoretical concern with the specific status of Scottish justice, portrayed as lagging behind the rest of the United Kingdom in various respects. [ABSTRACT FROM AUTHOR]

The article is based on the PhD research of the last wills, preserved in the Scottish archives. The article concentrates on the period immediately following the Reformation of 1560 and into the 17th century. This was a crucial period, when Scottish secular courts took over the jurisdiction over testaments from the pre-Reformation ecclesiastical courts, which was key to the establishment of the rules on authentication and evidential force of writings and especially of the last wills in Scots law. The article looks at these developing rules in the light of the contemporary Continental Ius Commune doctrine, noting both influenced and unique features of the Scottish practice. The method employed is the doctrinal legal historical method. [ABSTRACT FROM AUTHOR]

Previously in this journal the author reviewed Scots law's corporate debt finance rules from a transaction cost perspective. Recent research has identified that use of the Scottish corporate vehicle has significantly dropped for companies listing on the London Stock Exchange, even for those companies with headquarters in Scotland. This article explores whether this could be said to be caused by differences in company law rules between English and Scots law. It identifies that there are low transaction cost differences when it comes to known differences, but that Scots law is at a disadvantage when it comes to implicit differences (for example, the nature of a share) and uncertain company law differences from English law (for example, whether the Duomatic principle, or any other equity-based English company law principle, applies under Scots law). The framework for a market for company law exists intra-UK. As such, it seems possible that the reduction in use of the Scottish form arises because of higher transaction costs when using the Scottish form. This represents a methodological development for company law more generally – an atomisation approach, distilling company law into its component private law aspects. [ABSTRACT FROM AUTHOR]

Scottish limited partnerships (SLPs) have been the focus of much negative attention. Recent developments appear to have slowed the speed of incorporation of new SLPs. However, this article argues that current reforms may not help tackle existing fraudulent SLPs. This does not matter: viewing SLPs as general partnerships with some additional features, arguably fraudulent SLPs have ceased to exist, and offshored SLPs may have lost their separate legal personality. That this has been so far missed can be traced to current organisational theory. This article identifies the implications of reconceptualising the SLP for wider organisational theory and identifies options for state gift thinkers to reformulate their wider claims. Either the claim that separate legal personality derives from the state needs to be diluted to near tautology, or it needs to be limited in geographical extent. [ABSTRACT FROM AUTHOR]

This article presents the life and work of Andrew MacDouall - a Scottish advocate, one of the judges of the Court of Session, who presided under the name of Lord Bankton, and an institutional writer. The author's aim is to present the career of this jurist who combined the excellence of his legal practice with a comparative overview of the legal system of Scotland in the 18th century. The result of this activity is a three-volume legal treatise entitled "Institute of the Laws of Scotland," which was published between 1751 and 1753. Thanks to the merits of his works, Bankton gained recognition in the eyes of the contemporary Scottish legal practice, which gave him a prominent place among the preeminent representatives of Scottish jurisprudence whose opinions were treated as a subsidiary source of law. [ABSTRACT FROM AUTHOR]

Despite the incorporating union of 1707, the pursuit of legislation at Westminster was an overwhelmingly English practice in the eighteenth century, even when Scotland's smaller population is taken into account. Narratives of the making of the post-union state have commonly stressed Scotland's limited incorporation before 1800, and the significance of executive action exercised through military force and orders from central boards for manufactories and agriculture. But if our attention is turned to litigation, a different picture of the British state and Scotland's place within it emerges. Scottish appeals to the house of lords, which was the state's highest civil court, are shown to be a means of bringing in British power to maintain autonomy and privilege at the local, rather than national, level. With much litigation centred on preserving local privileges, the utility of 'nation' as an interpretive framework is questioned. Both British and Scottish governance are shown to be pluralistic, with considerable mixing of privileges and autonomies. During the century, Scots applied for Westminster's power to defend their privileges from infringement by other Scots, whilst also insulating themselves from some of the effects of Westminster legislation. The union was constituted by a shifting and mixed tapestry of laws. [ABSTRACT FROM AUTHOR]

In all jurisdictions which recognise the trust, a third party who receives trust property in breach of trust will be protected from a claim by the trust beneficiary only if in good faith. The sole exception is Scotland. In Scots law, a third party is secure even if they take in bad faith (that is, knowing that the property was transferred in breach of trust). This exceptional protection was created by section 2 of the Trusts (Scotland) Act 1961, a provision which, in its distinctiveness, is of significance to the Scottish law of trusts as well as of major comparative relevance. The purpose of the article is to investigate the origins of the section 2 protection. It begins by introducing the provision before the exceptional degree of protection it confers is placed in external and internal comparative context. With reference to preparatory materials, the article then moves to consider how the basis of section 2 lay in problems with the precise scope of the powers of a trustee in Scots law as well of a closely related institution, the judicial factor. It demonstrates that these problems led to the initiation of a law reform process which, principally by mistake and misunderstanding, resulted in an unsatisfactory solution in the form of section 2. The article then traces the later history of the provision from its inception to the present day, taking account the further attempts at reform which have had varying degrees of success. The article closes with some reflections on section 2 and the process of law reform which was its genesis. [ABSTRACT FROM AUTHOR]

Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 states that it is an offence for any person to hold another person in servitude or slavery. In February 2018, John Miller and Robert McPhee appeared at the High Court in Glasgow, charged on indictment with this offence. In defining both 'servitude' and 'slavery', the court was obliged, per s 4(2) of the 2015 Act, to have due regard to the understanding of these terms which has evolved out of the jurisprudence of Article 4 of the European Convention on Human Rights (ECHR). 'Slavery', then, was said to denote 'the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised'. If, however, the definition of 'slavery' necessarily 'involves rights of ownership', then it follows that any enactment of law specifically proscribing slavery is nugatory. Indeed, in Miller, the court ultimately held that 'there was no evidence upon which they could hold that the complainer had been held in a state of slavery'. This paper consequently asks whether or not in passing s 4(1)(a) of the 2015 Act, Parliament criminalised an impossible action. [ABSTRACT FROM AUTHOR]

This article analyses the separate legal personality of partnerships, drawing on Hansmann and Kraakman's identification of the attributes shared by businesses possessing legal personality. Their work provides a jurisdictionally-neutral standard of comparison applied here to the Scottish partnership which, unusually amongst jurisdictions influenced by the common law tradition, possesses separate legal personality. The historical development of Scottish partnerships is explored, from its origins as a Roman-inspired type of societas, a contract centred on the rights and duties of the partners inter se, towards a modern, business able to contract with third parties in its own name. Scots law supports Hansmann and Kraakman's view that attributes of legal personality are secured by organisational law rather than contract law. Disagreeing with them, however, the author uses the Scottish experience to illustrate that lack of perpetual succession is not, as they argue, a 'mere inconvenience which can easily overcome with contractual workarounds', but rather an essential requirement of a workable partnership with legal personality. [ABSTRACT FROM AUTHOR]

This is the first English language paper seriously to examine the meaning of subsidiarity from the perspective of private law, in which it might be used to understand legal rules, or the interaction of different kinds of claim. Since there are so few relevant sources in English, this article casts a wide net for consensus. It offers six propositions about what it means to designate a rule or relationship (between legal regimes, say) as one of subsidiarity. These are formulated by reference, principally, to thinking about subsidiarity outwith private law; and, secondarily, to (i) miscellaneous literature about subsidiarity, (ii) the general French private law literature about subsidiarity, and (iii) what little can be gleaned from relevant unjust enrichment discourse in English. The state of play in that discourse is summarised, before the choice of Roman Catholic social teaching, European Union law, and European human rights law as settings to examine for their conceptions of subsidiarity is explained, and subsidiarity in each of these contexts is sketched out. Succeeding sections then outline each proposition, and clarify how it may be derived from the sources. The paper concludes by reflecting guardedly on the potential of subsidiarity in private law, as a way to model the interrelation of private law claims and doctrines. [ABSTRACT FROM AUTHOR]

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies. [ABSTRACT FROM AUTHOR]

This article makes the case for reform of divorce law by demonstrating that the current provisions in the Divorce (Scotland) Act 1976 are not compliant with Article 8 ECHR. Scots law's mix of fault and no fault provisions requires the mandatory disclosure of often highly personal and intimate details in order to establish adultery, behaviour, or non-cohabitation. This statutory requirement to disclose private and personal information to the state, to fulfil the test for irretrievable breakdown of the marriage, constitutes an invasion of the spouses' privacy. The article then goes on to show that such invasion cannot be justified as necessary in a democratic society, in terms of Article 8 jurisprudence. Consequently, reform is required to ensure that Scots divorce law is ECHR compliant. The final section sets out a proposal to transform divorce law in Scotland into a no-fault notification procedure, removing the damaging and invasive process currently in force. [ABSTRACT FROM AUTHOR]

This paper offers some reflections on the possible consequences of Brexit for legal education in Scotland. Scotland's small and distinctive legal system is bolstered by devolved legislative powers and characterised by a tradition of openness to external influences. Scotland's legal system and relatedly, its legal education system, will be poorer for Brexit. That said, this paper argues that the features and traditions of the legal system and legal higher education system in Scotland make them well placed (and perhaps better placed than those in the other domestic jurisdictions) to resist such dampening pressures and indeed to embrace EU legacies and other European and international influences. [ABSTRACT FROM AUTHOR]

Violation of sepulchres is a common law crime in Scotland. This crime ensures that interred human corpses are not subject to the ordinary laws of property, but are instead protected under this distinct heading of law. While it now appears settled that a corpse can be stolen prior to interment, it remains unclear if a corpse which was once buried, but has since been lawfully removed from its grave, remains incapable of being stolen, or if it becomes susceptible to theft again when exhumed. This article suggests that the latter occurs in Scots law since a res religiosa – an object not subject to the ordinary rules of property – is created when the body is placed in its grave. This suggestion draws on the connection between the contemporary crime of violation of sepulchres and its Roman ancestor, the crimen violati sepulcri. The article suggests that though the overtly religious overtones of the term ‘res religiosa’ appears to be at odds with an increasingly secularised society, the law surrounding res religiosae functionally explains the absence of ‘property’ in buried bodies, thus providing a logical basis for the proposition that an unburied body may be stolen, but a buried body may not be. [ABSTRACT FROM AUTHOR]

The Treaty of Union 1707 between Scotland and England and the respective implementing legislation in each Kingdom contained provisions which today we might describe as 'opt-outs'. These opt-outs from incorporating Union preserved aspects of the Scottish legal system which, along with the Presbyterian religion and the system of education, helped to ensure that Scottish identity was supported by some of the most powerful aspects of the state. This essay will examine some of the provisions of the Treaty, analyse aspects of the legal system and law that persisted after the Union, comment on the extent to which 310 years of the Union with England influenced that law, reflect on membership of the EU and the harmonization which it brought to the legal system and consider the impact of the Scottish Parliament on that law and legal system. [ABSTRACT FROM AUTHOR]

This article contains a doctrinal analysis of floating charges and trust property in Scots law. It uses the dual patrimony approach of trust law to interpret the floating charge's creation, attachment and enforcement, and thereby demonstrates that it is not possible under the current law to effectively charge property held by a company in trust. The application of the dual patrimony theory provides a broader foundation for explaining the current legal position and helps to integrate the floating charge into wider Scots law. The article also diagnoses issues that would need to be resolved if the law were to be successfully reformed to enable the charging of trust property. It shows that there are some ways in which the current law could facilitate such reform but that, in other respects, more substantial changes would be required. [ABSTRACT FROM AUTHOR]

This paper concentrates on the duties incumbent upon surveyors when preparing a dilapidations survey. It focuses on the differences in approach depending on the purpose of the survey, the duty of care incumbent, and to whom such duties are owed, and provides an update of legal developments in the area. [ABSTRACT FROM AUTHOR]