Category: Scotland

Innes v Hay, Clerk Register, and The King’s Advocate: SCS 1 Mar 1584

Lands being disponed to a man in liferent, and his bastard in fee, and failing of heirs-male of the bastard, to a third party; the Lords reduced a gift of bastardy made by the King to another; and found that the law, Quod bastardus nota potest habere haeredem, nisi de corpore suo legittime procreatum, is to be understood only of the legal heir, not of heirs of provision.

[1584] Mor 1344
Bailii

Scotland

Updated: 28 December 2021; Ref: scu.544242

Bruce v Smith: SCS 24 Jan 1577

An instrument of intimation of an assignation was rejected, because it neither bore the clause, de cujus procuratoris mandato mihi liquide constabat; nor, (which would have supplied it,) was there any procuratory extant, tho, at the distance of 25 or 26 years.

[1577] Mor 845
Bailii

Scotland

Updated: 28 December 2021; Ref: scu.544208

Polley v West Lothian Council and The Accountant In Bankruptcy: SCS 6 Mar 2015

Second Division, Inner House – The pursuer seeks reduction of an award of sequestration granted against her at Hamilton Sheriff Court on 22 March 2010, together with reduction of the underlying charge for payment dated 17 December 2009 and the preceding 5 summary warrants granted by the sheriff at Linlithgow relating to council tax in each year from 2004 to 2008. The pursuer accepts that exceptional circumstances are required to justify the remedy sought. The issue for determination in the case generally is whether the pursuer has made out a relevant case to that effect on record.

Lord Carloway LJC
[2015] ScotCS CSIH – 19
Bailii

Scotland, Rating

Updated: 28 December 2021; Ref: scu.544201

Bryson v Somervill: SCS 17 Nov 1565

Anent the action pursued by Janet Bryson against Janet Somervill, and William Sharer, her son, for a spulzie committed by umquhil David Sharer, her husband, and herself, and their son being in company with them; it was alleged for the said William, That in time of the said spulzie committed by his father and mother, he was within the age of twelve years, and but alleged to be in company with his said father; and so not being doli capax, et in patria potestate, non potuit contrahere obligationem.-It was alleged by the said pursuer, that the said William was past ten years, and therefore might be called for the said spulzie, because he was doli capax, quia in proxima erat pubertati et malitia potuit supplere aetatem; neither the woman nor he could be excused, by the man being father to the boy, and husband, quia omnes in pari delicto parem paenam sustineant, et cum hisce actio ex maleficio orietur, omnes tenebat.-It was alleged by the said William, because the said pursuer alleged him to be of ten years and not fourteen, therefore he should be assoilzied: Whilk allegeance of the said pursuer was repelled; and the allegeance of the said defender admitted; and the said defender assoilzied frae the spulzie, for the causes foresaid.-It was alleged by the said Janet Somervill, That she should be assoilzied frae the said spulzie, because it was alleged in the pursuer’s libel, that umquhil David Sharer her husband, and she in company with him, committed the said spulzie; so on noways should she be called after his decease, she neither being called after as heir, or executrix to him, but allenarly upon her own deed, done in company with her own husband in his time, he being her principal head: Which allegeance of the said Janet, defender, was admitted, and she affoilzied frae the said spulzie. The like was practiced before, in my Lady Crawfurd’s case, who being pursued for the spulzie of, was absolved, because her husband was there; and my Lady Ratie, pursued by ane Bruce, was absolved for the samen reason. See Husband and Wife.

[1565] Mor 1703
Bailii

Scotland, Crime, Family

Updated: 28 December 2021; Ref: scu.544216

Beggs v The Scottish Information Commissioner: SCS 3 Mar 2015

The claimant had requested information about the Scottish Prison Service. He now complained after an order which said that the remaining undisclosed information was readily available from alternate sources.

Lord Carloway LJC
[2015] ScotCS CSIH – 17
Bailii
Freedom of Information (Scotland) Act 2002 1

Scotland, Information

Updated: 28 December 2021; Ref: scu.544198

John Melvill of Carnebie, v Agnes Strang: SCS 12 Mar 1539

There is ane difference betwix the decrete of arbiteris and the sentence or dome of a judge; for ane ordinar judge may put his decrete to executioun, and punish the partie disobedient thairto; but ane arbiter may not punish the partie that is contumax and disobedient to his deliverance, but gif he have special power gevin to him be the parties thairanent; in the compromit. And, therefore, ane sentence and decrete-arbitral beand gevin aganis ony partie, he aucht and sould fulfill and obey the samin, and has na place to persew for reduction thairof, gif he, beand of perfeit age, was sworn, and oblist in the compromit to stand at the decrete-arbitral to be gevin betwix him and his partie, be the arbiteris chosin betwix thame: And sicklike the parties are oblist to obey the decrete, and not reclame thairfra, gif in the compromit it was expresslie contenit, that quhat decrete sould be gevin betwix him and his partie, thay renunce all manner of appellatioun or reclamatioun thairfra, etiamsi sequatur laesio enormis, vel in maxima quantitate. Because the effect of arbitrie is, that the sentence thairof sall stand, and be obeyit, quhidder the samin is justlie gevin or not, swa that it be not gevin expresslie aganis the law, or be fraud or deceipt done and committit be ony of the arbiteris; for ilk arbiter sould be void of all fraud and guyle.

[1539] Mor 623
Bailii

Scotland

Updated: 28 December 2021; Ref: scu.543978

Comptroller v Lord Semple: SCS 15 Feb 1555

Lands being comprised by any person, if he from whom they are comprised happen to be forfeited, before the compriser take sasine upon his comprising, the land will fall under forfeiture, notwithstanding of the comprising. So, if he from whom the lands are comprised, happen to die before the compriser be seased in them, the defunct’s heir may be served and retoured heir to him of the same lands: And howbiet the compriser would cast in his comprising before the inquest, yet it would not stop the service of the brieve and retour, without he produce a sasine upon his comprising.

[1555] Mor 212
Bailii

Scotland, Land

Updated: 28 December 2021; Ref: scu.543990

The Lady Fleming v Lord Fleming: SCS 5 Apr 1555

Gif an decrete-arbitral is difficile and obscure, in sic sort that it may not be cleirlie understuid, the samin sould be interprit by the jugeis arbiteris, gevaris thairof: And thairfoir, gif execution thairof be fought be ony partie before ane juge, he sould remit the interpretatioun thairof to the jugeis arbiteris, gevaris of the samin.

[1555] Mor 624
Bailii

Scotland, Contract

Updated: 28 December 2021; Ref: scu.543991

David Thomsonr v William Chirnside: SCS 1 Mar 1558

All assignatiouns and resignatiouns maid be ony man to his sone, or to ony uther persoun, of landis, gudis, cornis, cattell, or utheris, are of nane avail be way of exceptioun, gif the maker thairof remane still in possessioun of the samin guidis or landis, or of the maist part thairof, likeas he did before the making of the samin quia donans et retinens nihil agit.

[1558] Mor 827
Bailii

Scotland, Contract

Updated: 28 December 2021; Ref: scu.543992

David M’Gill v Johne Laurestoun: SCS 4 Jul 1558

Gif ony man be maid assignay to ony actioun, assedatioun, or reversioun, and he agains quhome the samin is maid, befoir ony intimatioun thairof lauchfullie maid unto him, compone, transact, or agrie with the maker thairof, touching the contentis of the samin, and obtene his discharge, richt, or titil thairanent, he may not be callit or perseuit be the said assignay, be vertue of his assignation; but jure praeventionis is stoppit and secludit thairfra.

[1558] Mor 843
Bailii

Scotland, Contract

Updated: 28 December 2021; Ref: scu.543993

Barbara Logan v Roger Wod: SCS 26 Mar 1561

The husband has just action and cause of seeking partising and divorcement, gif his wise committis adulterie, be committing the use of her body, to ony other man, induring the time of the marriage. Bot the husband may not part with his wife, or seek to be divorcit fra hir, be ressoun of adulterie committed be hir, gif he in likewise, hes given the use of his bodie to ony uther in adulterie, and ester the committing thereof, na wayis was reconcilit to his wife thereanent.

[1561] Mor 339
Bailii

Scotland, Family

Updated: 28 December 2021; Ref: scu.543997

Janet Auchinlech v James Stewart: SCS 18 Dec 1540

Quhen ony man and his wife are simpliciter partit and divorcit be the authority of the Judge Ordinar, for adulterie, or ony other trespass committed be the man, the hail tocher-gude, and all that was ressavit be the man fra the woman, by vertue of the matrimonie contractit betwix thame, aucht to be restorit to the woman, with the prosseits thairof, ester the giving of the sentence of divorce betwix thame.

[1540] Mor 339
Bailii

Scotland, Family

Updated: 28 December 2021; Ref: scu.543981

Alexander Paterson v David Chieslaw: SCS 29 Mar 1561

Ane decrete-arbitral gevin be the maist part, or be the half of the arbiteris, with the oversman, is sufficient and valzieable. Albeit the arbiteris gevaris thairof, be thay quha wer chosin for the ane part allenarlie, and the arbiteris electit for the uther part, wer not present at the geving of the said decrete; for it is sufficient, gif they wer present at the time of the compromit, and acceptit the samin on thame.

[1561] Mor 654
Bailii

Scotland, Litigation Practice

Updated: 28 December 2021; Ref: scu.543995

Janet Logan v Elizabeth Campbell and William Wallace: SCS 21 Jul 1534

It is ordained, that where any lands happen to fall in ward to the King, or any baron of the realm, spiritual or temporal, or lands given in conjunct fee or liferent, as well as to burgh as to land, that the sheriff of the shire or bailies shall take surety of the person or persons, that gets or has such wards, that they shall not waste or destroy their biggings, orchards, woods, stanks, parks, meadows, or dovecots, but that they hold them in such kind as they are in the time that they receive the same; they taking their reasonable sustentation, or using, in needful things, without destruction or wasting thereof. ‘And an reasonable living to be given to the sustentation of the air, after the quantitie of the heritage, gif the said air has na blanche ferme, nor feu ferme land, to susteine him on, alsweil of the ward lands, that fallis to our Soveraine Lordis hands, as onie uther barronne, spiritual or temporal.

[1534] Mor 386
Bailii

Scotland

Updated: 28 December 2021; Ref: scu.543977

AB v CD: SCS 27 Feb 2015

‘AB seeks production and reduction of: (i) a decree in absence, which was pronounced against him in the sheriff court at Stirling on 10 June 2010 and extracted on 25 June 2010, whereby the court granted decree in favour of CD for payment to him by AB, in the sum of andpound;150,000, together with interest and expenses; and (ii) a subsequent charge for payment’

Lord Jones
[2015] ScotCS CSOH – 24
Bailii

Scotland

Updated: 28 December 2021; Ref: scu.543657

Sir James Gray, Baronet v James Duke of Hamilton, Charles Earl of Selkirk, and Captain Alexander Gavin: HL 10 Mar 1709

An assignment of a bond, (both being executed in England and in the English form) intimated by letter only, is preferable to a posterior arrestment.
The judgment, finding that the law of Scotland should regulate this case, is reversed.
The Court having refused to allow holograph letters to be equivalent to an intimation – judgment also reversed.

[1709] UKHL Robertson – 1, (1709) Robertson 1
Bailii
Scotland

Contract

Updated: 28 December 2021; Ref: scu.553449

Rose Muirhead, The Widow of James Muirhead The Younger, of Bradisholm, Deceased v James Muirhead of Bradisholm: HL 14 Mar 1709

Donatio non presumitur. A disposition by a father to his son, (followed by a sasine, which was not registered) made to preserve the estate from penalties of a test act, might be warrantably cancelled.
Qualified oath. – An oath received, though objected to as containing qualities.

[1709] UKHL Robertson – 4, (1709) Robertson 4
Bailii
Scotland

Land

Updated: 28 December 2021; Ref: scu.553448

James Greenshields, Clerk v The Lord Provost and Magistrates of The City of Edinburgh: HL 1 Mar 1711

An appeal competent, though objection made that it implicated the sentence of a presbytery.
Proceedings against an episcopal minister, before the Toleration Act, 10 Ann. c. 7. who had been imprisoned for exercising his function, reversed on appeal.

[1711] UKHL Robertson – 12, (1711) Robertson 12
Bailii
Scotland

Ecclesiastical

Updated: 28 December 2021; Ref: scu.553453

Sir Andrew Kennedy, Baronet v Sir Alexander Cuming, Baronet: HL 19 Apr 1711

The office of conservator, held by a grant under the great seal to a father and his son jointly, being upon complaint of the father’s malversations granted to a third person, without previous sentence; this new grant was void.
Certain malversations alleged against the conservator not relevant to infer deprivation.
The malversations of a conservator being found proved per singulares testes, the judgment is reversed.

[1711] UKHL Robertson – 19, (1711) Robertson 19
Bailii
Scotland

Trusts

Updated: 28 December 2021; Ref: scu.553455

Adam Cockburn of Ormiston, One of The Senators of The Court of Justice, and Dame Ann His Wife v John Hamilton of Bangour, A Minor, By His Curators: HL 28 Mar 1712

Lis finita – After extracting a decreet, with a reservation therein of several point, the objection of Lis finita and that these points were not contained in the original summons, is sustained by the Court, but reversed upon appeal.
Funeral expences. – In a question between the heir and the assignee of the executrix of a Lord Justice Clerk, 250 l., being modified, as sufficient for funeral expences, the judgment is reversed.
Prescription. – Furnishing to the funeral did not form such a continuation of accounts as to bar the triennial prescription of accounts incurred before the death of the deceased.
Subject Confirmation. – The Court having refused to allow to the assignee of an executrix in a question with an heir served cum beneficio, the expences of an action before them relative to the right of confirmation between the executrix and the father of the heir served cum beneficio, the judgment is reversed.

[1712] UKHL Robertson – 32, (1712) Robertson 32
Bailii
Scotland

Wills and Probate

Updated: 28 December 2021; Ref: scu.553456

James Durham of Largo v Robert Lundine, Watson, Lundine and Lundine: HL 20 Mar 1711

An appeal competent, from a decreet in 1698, and interlocutor in 1708, though objection made that a decreet in 1707, confirming that in 1698, was not appealed from.
Prorogations of tacks of teinds, where an augmentation of stipend was small, reduced from fix 19 years to one 19 years.

[1711] UKHL Robertson – 16, (1711) Robertson 16
Bailii
Scotland

Rating

Updated: 28 December 2021; Ref: scu.553452

Simpson and Scottish Ministers: SIC 11 Feb 2015

SIC Single Chamber Parliament – On 23 June 2014, Mr Simpson asked the Scottish Ministers (the Ministers) for information relating to the decision to have a single chamber parliament in the event of independence.
The Ministers failed to respond to the initial request and stated that they held no relevant information following a review. Mr Simpson remained dissatisfied and applied to the Commissioner for a decision.
The Commissioner investigated and found that the Ministers had properly responded to Mr Simpson’s request for information in accordance with Part 1 of FOISA.

[2015] ScotIC 021 – 2015
Bailii

Scotland, Information

Updated: 28 December 2021; Ref: scu.543114

Carbiner and Lothian Health Board: SIC 11 Feb 2015

SIC Information regarding an investigation
On 2 December 2013, Mr Carbiner, through his solicitors, asked Lothian Health Board (NHS Lothian) for information relating to any investigation into infection control at a dental practice in North Berwick.
NHS Lothian provided Mr Carbiner with some information, whilst withholding other information.
Following an investigation, during which information further information was disclosed, the Commissioner found that NHS Lothian was entitled to withhold the remaining information as personal data, disclosure of which would breach the data protection principles.

[2015] ScotIC 020 – 2015
Bailii

Scotland, Information

Updated: 28 December 2021; Ref: scu.543113

Liddle and Pickaquoy Centre Trust: SIC 3 Feb 2015

SIC Freedom of information requests: failure to respond within statutory timescales
On 7 September 2014, Mr Liddle asked Pickaquoy Centre Trust (the Trust) for information about its management of Freedom of Information requests. This decision finds that the Trust failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA). The decision also finds that the Trust failed to comply with Mr Liddle’s requirement for review within the timescale set down by FOISA.
As a review response has now been issued, the Commissioner does not require any further action on the part of the Trust.

[2015] ScotIC 015 – 2015
Bailii
Freedom of Information (Scotland) Act 2002

Scotland, Information

Updated: 28 December 2021; Ref: scu.543112

Mackinnon and Education Scotland: SIC 10 Feb 2015

SIC HMIE report of Glendinning Terrace Primary School, 2008
On 6 November 2013, Mr MacKinnon asked Education Scotland for information from the report of the inspection of Glendinning Terrace Primary School carried out in 2008 by Her Majesty’s Inspectorate of Education (HMIE). Education Scotland withheld the information, claiming that disclosure would prejudice the effective conduct of public affairs.
Following a review, which confirmed this decision, Mr MacKinnon remained dissatisfied and applied to the Commissioner for a decision. The Commissioner found that Education Scotland had wrongly withheld the information covered by Mr MacKinnon’s request. She required Education Scotland to give Mr MacKinnon the information which had been wrongly withheld.

[2015] ScotIC 017 – 2015
Bailii

Scotland, Information

Updated: 28 December 2021; Ref: scu.543116

Goodfellow Environmental Maintenance Ltd and Perth and Kinross Council: SIC 11 Feb 2015

SIC Road maintenance contract
On 19 March 2014, Goodfellow Environmental Maintenance Ltd. (Goodfellow Ltd.) asked Perth and Kinross Council (the Council) to respond to a 12-part request concerning a road maintenance contract. The Council responded to the request for review. It disclosed some information, withheld other information and stated that it did not hold the remaining information.
The Commissioner investigated the application and found that the Council had:
(i) correctly disclosed the information that it held which was not exempt from disclosure.
(ii) correctly withheld some information that was exempt from disclosure
(iii) failed to let the applicant know when some information covered by the request was likely to be finalised, and
(iv) failed to comply with the statutory timescale for response.

[2015] ScotIC 019 – 2015
Bailii

Scotland, Information

Updated: 28 December 2021; Ref: scu.543111

King v Highland Health Board: SIC 3 Dec 2014

SIC Audit trail of a complaint: failure to respond within statutory timescales – On 10 March 2014, Mr King asked Highland Health Board (NHS Highland) for information about the audit trail of a complaint regarding the care and treatment of a specified person. This decision finds that NHS Highland failed to respond to Mr King’s requirement for review within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA).
The Commissioner has ordered NHS Highland to comply with the requirement for review.

[2014] ScotIC 251 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542665

Minogue v Chief Constable of The Police Service of Scotland: SIC 4 Dec 2014

SIC Property recovered by the Police – On 30 May 2014, Mr Minogue asked the Chief Constable of the Police Service of Scotland (Police Scotland) for copies of all correspondence held relating to the recovery of a gold wreath. Police Scotland withheld the information on the basis that it was held for the purposes of civil proceedings brought by or on behalf of the authority.
Following an investigation the Commissioner accepted that Police Scotland was entitled to withhold the information requested by Mr Minogue.

[2014] ScotIC 250 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542671

Irvine v North Lanarkshire Council: SIC 9 Dec 2014

SIC Report on job evaluation scheme – On 20 June 2014, Mr Irvine asked North Lanarkshire Council (the Council) for a copy of a report to the Council’s Corporate Management Team (CMT) concerning the Council’s job evaluation scheme.
The Council withheld the information on the basis that it was exempt from disclosure in terms of sections 30(c) and 38 of FOISA. It also told the Commissioner that it did not hold some of the information sought by Mr Irvine.
The Commissioner accepted that the Council did not hold some of the information, but noted it had failed to tell Mr Irvine that this was the case. The Commissioner accepted that the Council was entitled to withhold the personal data of employees under the exemption in section 38(1)(b) of FOISA. The Commissioner found that the Council was not entitled to withhold the remainder of the information under the exemption in section 30(c) of FOISA and required it to disclose this information to Mr Irvine.

[2014] ScotIC 253 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542667

Unison v Edinburgh Leisure: SIC 12 Dec 2014

SIC Job evaluation information – On 9 April 2014, Unison asked Edinburgh Leisure for job evaluation information. Edinburgh Leisure provided some information to Unison, but withheld other information on the basis that it was either commercially sensitive or confidential.
Following an investigation, the Commissioner accepted Edinburgh Leisure’s decision to withhold information as commercially sensitive, but could not uphold its application of the exemption relating to confidentiality to benchmarking data. The Commissioner also found that part of Unison’s request was invalid because it did not adequately describe the information Unison wanted

[2014] ScotIC 254 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542677

Shetland Line (1984) Ltd v Transport Scotland: SIC 11 Nov 2014

SIC Tender Evaluation – Northern Isles Ferry Services – On 17 October 2013, Shetland Line (1984) Limited (SLL), through its solicitors, asked Transport Scotland for analysis and assessment information relating to the tenders for the Northern Isles Ferry Services (NIFS) contract. Transport Scotland provided information, redacted in terms of FOISA on the basis that various exemptions applied.
Following investigation, during which further information was disclosed, the Commissioner found that Transport Scotland was entitled to withhold the remaining information, on the basis that its disclosure would be likely to prejudice substantially the effective conduct of public affairs.

[2014] ScotIC 234 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542663

Gourtsoyannis v Transport for Edinburgh Limited: SIC 15 Dec 2014

SIC Passenger numbers and income for Edinburgh Trams – On 7 July 2014, Mr Gourtsoyannis asked Transport for Edinburgh Limited (TFE) for information on passenger numbers and income for the first month of operation of the Edinburgh tram service.
TFE withheld the information under the exemption in section 33(1)(b) of FOISA because it considered disclosure would cause substantial prejudice to its commercial interests.
The Commissioner investigated and found that TFE was entitled to withhold the information under the exemption in section 33(1)(b) of FOISA.

[2014] ScotIC 256 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542670

Shetland Islands Council v Highlands and Islands Airports Limited: SIC 12 Dec 2014

SIC Board minutes – On 4 February 2014, Shetland Islands Council (the Council) asked Highlands and Islands Airports Limited (HIAL) for its Board minutes since 1 January 2002.
HIAL provided the Council with a copy of the minutes subject to redaction. On review, HIAL indicated that it considered the Council’s request to be invalid.
The Commissioner investigated and found that the request in question was valid. Consequently, she required HIAL to review its handling of the request and notify the Council of the outcome.

[2014] ScotIC 255 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542676

Howarth v Scottish Ministers: SIC 19 Dec 2014

Legal advice – sex offenders and housing applications – On 11 June 2014, Mr Howarth asked the Scottish Ministers (the Ministers) for legal advice relating to a recommendation about sex offenders applying for social rented housing.
The Ministers responded by withholding the information under section 36(1) of FOISA (as information subject to legal professional privilege). The Commissioner investigated and found that the Ministers were entitled to withhold the information under this exemption.

[2014] ScotIC 262 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542666

Simpson v Glasgow City Council: SIC 21 Nov 2014

Audit of handling of planning application – On 4 June 2013, Ms Simpson asked Glasgow City Council (the Council) for documentation generated by the Council’s Audit and Inspection Team in relation to a particular complaint.
The Council refused to provide the information, on the basis that disclosure would substantially prejudice the effective conduct of public affairs. The Commissioner investigated and found that the Council had properly responded to Ms Simpson’s request for information.

[2014] ScotIC 244 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542660

Shetland Line (1984) Ltd v Scottish Ministers (2): SIC 21 Nov 2014

SIC Northern Isles Ferry Services contract: failure to respond within statutory timescales – On 16 October 2014, Shetland Line (1984) Limited (SLL) asked the Scottish Ministers (the Ministers) for information about bid proposals and other information relating to the Northern Isles Ferry Services contract. This decision finds that the Ministers failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA). The decision also finds that the Ministers failed to comply with SLL’s requirement for review within the timescale set down by FOISA.

[2014] ScotIC 245 – 2014
Bailii

Scotland, Information

Updated: 27 December 2021; Ref: scu.542662

McDonald v Her Majesty’s Advocate: PC 16 Oct 2008

(The High Court of Justiciary Scotland) The defendant sought to appeal against his convictions for murder and and assault. The HCJ in Scotland had refused to receive a devolution minute.
Held: The refusal was itself sufficient to give the Board of the Council jurisdiction to hear the appeal. That decision was one for the Board. On the merits the appeal was dismissed. The Judicial Committee accepted that if there had been a failure of disclosure at trial, the duty on appeal was to make available what should have been provided at trial as well as material relevant to existing grounds of appeal. However, it roundly rejected the contention that at the appellate stage there arose a duty on the prosecution to re-perform the entire disclosure exercise, so that the appellant could see whether anything might emerge which could be used to devise some additional ground of appeal.
Lord Rodger said: ‘Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage. By then, the real issues in contention between the parties will have been focused at the trial. In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence).’

Lord Hope of Craighead, Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury
[2008] UKPC 46, 2008 SCCR 954, 2008 GWD 35-527, 2008 SCL 1378, [2009] HRLR 3
Bailii, Times
Scotland Act 1998
Scotland
Cited by:
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Allison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Cited – Nunn, Regina (on The Application of) v Chief Constable of Suffolk Constabulary and Another SC 18-Jun-2014
Limits to Duty To Investigate
The claimant had been convicted of a murder. He continued to protest his innocence, and now sought judicial review of the respondent’s decision not to act upon his requests for further investigations which might prove his innocence.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice, Constitutional

Updated: 25 December 2021; Ref: scu.277529