Hard cases

MONDAY and lawyers have a chance to review the judgement of the High Court of Appeal refusing private prosecutions of two drivers involved in fatal accidents, one being the driver of the bin lorry that killed six and injured 15 in Glasgow city centre just before Christmas 2014. The Lord Justice Clerk, Lady Dorrian’s judgement reads like any other, matter-of-fact, weighing the legal arguments and reaching a reasoned conclusion. It will hardly satisfy grieving relatives seeking a finding of personal culpability for their grievous loss. The court passed no comment on the speed with which the Lord Advocate renounced prosecution, nor on whether all the background facts were known at that time. It’s easy for legal commentators like Andrew Tickell in The Times to pronounce that ‘outrage and sympathy must not sway justice’. Commenting on the old adage, ‘Hard make bad law’, American jurist Arthur Corbin wrote in 1923 that when legal precedent would lead to a decision contrary to 'the settled convictions of the community’, the court can distinguish the case and reverse the adage to become ‘Hard cases make good law’. The bin lorry tragedy was a ‘hard case’ alright. 

SEASONAL GOODWILL is not much in evidence between the Law Society of Scotland and the Scottish Legal Complaints Commission with the news that the former has commenced litigation against the latter for, allegedly, unlawfully reviewing 200 complaints against solicitors and classifying some of them as service complaints, thus putting them beyond the jurisdiction of the Law Society. SLCC took this action following the opinion of Lord Malcolm in a Court of Session ruling that the same ground of complaint against a solicitor must be classified as either service (to be investigated by the SLCC) or conduct (to be investigated by the Law Society) but not both. This struck at SLCC’s previous practice of classifying some grounds of complaint as ‘hybrid’, i.e., meaning both bodies would investigate the same complaint and, possibly, reach different conclusions. The public must be baffled by the whole business which does nothing to improve the reputation of lawyers for obscuring and complicating issues. In mirror image press releases, both sides in the dispute claim to be acting in the public interest and to have offered the other a ‘collaborative’ approach to the problem. Perhaps the two warring overseers should heed Abraham Lincoln’s advice: ‘Discourage litigation. Never stir up litigation’. 

WALTER'S FINAL week in the Signet library before Christmas, and with huge crowds in the Royal Mile and Princes Street Christmas market in full swing, he is ready to head home for Christmas. He certainly seemed happy to see the rave reviews that Colonnades’ Christmas menu has been receiving from Tripadvisor contributors, although he is as shy as ever about appearing in front of guests.

THURSDAY was the final swearing in ceremony of 2016 at the Court of Session with Frank Mulholland QC, former Lord Advocate, being appointed a Senator of the College of Justice. Caroline Docherty, Alistair Morris, Mandy Laurie and Robert Pirrie, all Writers to the Signet, represented WS as members of the College of Justice.

LA COUR DE JUSTICE de la République is a special court in France set up to judge cases against government ministers and public ministers. It is made up of four judges and 12 politicians from the French houses of parliament – so much for the separation of powers! The court convened this week for only the fifth time to hear the case of negligence against Christine Lagarde, former French finance minister and corporate lawyer and current head of the IMF. Lagarde is accused of negligence in approving a payment of a 400 million euros to settle a lengthy legal battle to compensate French tycoon Bernard Tapie (one time actor, singer, TV host and owner of Marseilles football club, once convicted and jailed for match fixing and tax fraud). The payment was to settle years of litigation and arbitration to compensate Tapie, France’s answer to Donald Trump, for the enforced sale of his then shares in Adidas when he was appointed as a government minister in 1992. Lagarde was then serving as finance minister in president Nikolas Sarkozy’s government. Sarkozy is known to have been friends with Tapie since the 1980s. Lagarde is accused of negligently waving the payment through against the advice of officials and, in theory, could face a year in jail. Lagarde strenuously denies the charges. 

JUDGING FROM the TV schedules, nothing quite says “Christmas TV” like a good murder mystery. Granchester, Maigret and Agatha Christie’s Witness for the Prosecution represent the flagship programmes of the terrestrial broadcasters on Christmas Eve, Christmas Day and Boxing Day. Buried deep in the Storyville collection on BBC iPlayer is documentary Death on the Staircase, a real-life puzzler just as intriguing and gripping as these fictional counterparts. The eight part series follows the murder trial of wealthy American author Michael Petersen, accused in 2001 of the murder of his second wife Kathleen Petersen, after she was found dead at the bottom of the stairs in their North Carolina home. The case is back in the news this year; the reason for this can’t be disclosed here due to risk of spoilers. Every bit as binge-worthy as Netflix’s Making a Murderer it also features a fascinating insight into the work of defence attorney David Rudolf. The scene where he loses the plot with a slightly useless IT assistant whilst rehearsing his opening arguments in court is an unexpected piece of comedy gold, albeit one most hard-working lawyers will relate to.

SCOTTISH LAWYERS will recall from second year law school criminal law and procedure the High Court Appeal case Manuel v Lord Advocate as an authority on corroboration and ‘special knowledgeconfessions. In Plain Sight, ITV’s drama about the case continued this week, with Martin Compston as Peter Manuel, Scotland’s most notorious serial killer, and Douglass Henshall as police detective William Muncie, the man who finally brought him to justice. The series charts the string of murders Manuel committed in Lanarkshire in the 40’s and 50’s, and Muncie’s efforts to convict him. This week’s episode depicts just how close Scottish police came to a terrible miscarriage of justice in one of the murder cases. Manuel, when eventually arrested, delighted in defending himself in court. The Scottish justice system has seldom experienced anything like it.

— “Writer”

Writer's Week is not intended to represent the views of the WS Society or its members.