Scottish Wildlife Legislation: a bunny hop in the right direction?

By Damian Hoggan-Radu, Eilidh Gunn and Samantha Sloan.

Damian, Eilidh and Samantha were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation

Introduction

The United Kingdom’s concern for animal welfare has a long and complex history reflected by the progressively slow evolution of legislation. It has been considered that animal welfare law is based on ‘moral a priori assumptions’, such that animal welfare issues are strongly influenced by context, cultural and social values and a society’s moral understanding of the matter. As public opinion on animal health and welfare develops the issue has been pushed into the limelight of the public domain.

“The Animal and Wildlife (Penalties, Protection and Powers) (Scotland) Act 2020 (“2020 Act”) is an advancement of the protection granted to animals brought about by the increasing concerns raised by animal welfare charities and society in light of the continued occurrence of animal and wildlife offences.”

Before the 2020 Act, a few animal cruelty cases highlighted this growing social and political interest in animal welfare, however, the legal sanctions available to the courts at the time were felt to have been inadequate. The 2020 Act amends a lot of the 2006 Act in relation to fixed penalties, protective measures and taking possession of animals. It also amends various wildlife legislation. The 2020 Act was introduced, with two purposes:

1.       To make provisions for existing animal and wildlife offences, including how these are dealt with, prosecuted or considered in courts; and

2.       To provide authorised persons additional powers to deal with an animal taken into possession on welfare grounds, regardless of whether an offence has taken place.

Wild Animal Welfare

Scotland is known worldwide for its green landscapes and wildlife and wild animals are a key component to enriching this diverse ecosystem. Due to the very nature of wild animals these species have previously been considered as a part of wildlife not under ‘direct’ human control, thus taking away from the fact that they are sentient creatures which should be protected from cruel and inhumane treatment, just as domesticated and captive animals are protected from by law.

For centuries farmers and estate owners have adopted mitigation methods that were justified for wildlife management purposes and the welfare of wild animals was not of principal concern. As a result, wild animal welfare law has fortuitously evolved from conservation and wildlife legislation such as the Wildlife and Countryside Act 1981. Although wild species’ welfare is not comprehensively protected under such statutes, provisions are in place to address wild animal welfare issues. For example, section 9(1) of the 1981 Act makes it an offence to intentionally kill, injure or take any wild animal protected under Schedule 5 of the Act. Additionally, section 11(1)(a) imposes a ban on the use of self-locking snares, and so taking into account animal welfare given the unimaginable suffering that asphyxiation could cause a target or non-target species. Furthermore, section 13(3) of the Wildlife and Natural Environment (Scotland) Act 2011 amends the 1981 Act, imposing a duty on snare operators to inspect it ‘at least once every day at intervals of no more than 24 hours’ to further the protection of wild animal welfare.

New Penalties

The 2020 Act primarily focuses on amending 6 pieces of legislation to increase the penalties applicable to wildlife offences (ss 7-13). The severity of wildlife offences will now be reflected in the severity of the penalties. Fines for particular offences have increased from level 4 or 5 on the standard scale to £40,000 and imprisonment periods have increased from six months to twelve months, or up to five years for the most serious wildlife crimes.

Such penalties aim to create a sentencing deterrent for possible perpetrators of wildlife offences. Whilst this is a possibility - as the Act is not fully enforced it is yet - it to be determined whether this increase in penalties will reduce wildlife crimes in practice. We agree with the Law Society of Scotland that there is an urgent need to introduce sentencing guidelines to evaluate culpability and improve society’s understanding of the disposition of wildlife offences in order for the Act to be effective as a deterrent. It is disheartening to know that sentencing guidelines are unlikely to be created prior to the end of the business period in 2021.

Protection of Species and Licensing

The Beaver and the Hare

The 2020 Act aims to increase protection for wild animals from indiscriminate injury or death. A notable improvement for protection granted to terrestrial animals is the inclusion of mountain hares to the list of protected species under Schedule 5 of the 1981 Act pursuant to section 18(3) of the 2020 Act. This provision has been commended by OneKind as a ‘triumph’ to address the indiscriminate killing of this species which has previously resulted in the death of 26,000 mountain hares a year in Scotland.

“There is no doubt that this protection is a step in the right direction for the welfare of mountain hares by reducing wildlife management mitigation methods to those permitted by licence.

However, a licence to kill is still just as deadly for an animal even if permitted by law.”

This raises the question as to whether a provision allowing a licence to kill can truly be in favour of individual wild animal welfare.

In 2019, beavers received status as a European Protected Species of Animals and are protected by Scottish Law. Shooting such animals is only permitted by a licence granted by NatureScot. However, in this same year it was recorded that a fifth of the beaver population were shot under licence.

The 2020 Act may bring an end to indiscriminate killing of mountain hares, but it is to be determined if this further protection paired with more serious penalties for wildlife offences will ensure that a licence to kill will be conducted with the welfare of the animal in mind. We urge further discussions on introducing further preventive measures to protect wild animals’ welfare.

Seals

The 2020 Act intend to further protect terrestrial animals and other marine life. Section 14(2)(a) of the 2020 Act repeals s110(1)(f) and (g) of the Marine (Scotland) Act 2010 in order to reduce the purposes which would allow for a seal to be killed under licence. This provision removes the justification to protect the health and welfare of farmed fish and the need to prevent serious damage to fisheries or fish farms - in most circumstances seal shooting occurs on fish farms. It was also introduced to satisfy the US Marine Mammal Protection Act requisite that no fish could be imported from Scotland unless the welfare of marine species is protected.

OneKind has voiced concerns that the continuation of licences for the repealed purposes until 31 January 2021 could contribute to an increase in seal shooting over the next few months. This is particularly concerning given the upward trend of seal killings in 2020 compared to last year. Libby Anderson has stated that an aim of OneKind is to ensure that a ban on seal killing becomes ‘permanent, comprehensive and watertight’ in a provision and the 2020 Act does not introduce such a measure.

Farm Animal Welfare

Two recent cases, read in light of the new provisions, can illustrate the improvements under the 2020 Act for farm animals in Scotland.

In the first case, East Lothian Council v Martin ([2015] CSIH 13), the owner of a herd of pigs and a flock of hens left their animals unattended. The local council then took the pigs and hens into their care and sought permission from the court to sell the animals. The owner opposed the order and the case went up to the Court of Session, dragging on for almost a year, while the cost of accommodation to the local council was racking up. Parliament held discussions about striking the right balance between the right to private property and the need to protect animals. The 2020 Act strikes a good balance as they reduce costs by allowing the authorised persons to take action sooner.

The second case, McLeod v Noble (2018 S.L.T. (Sh Ct) 227), a pony was stabled in the living room of the owner for two years, before being removed into the care of a local riding school, at the expense of the local council. This amounted to over £5000. Under the 2020 Act, again, the cost of keeping the animal in temporary accommodation, while waiting for a court decision, would be significantly reduced. What is interesting about this case is the test used by the court to determine if possession of the animal should be given to an authorised person. The possibility that the animal would suffer and inappropriateness of the living conditions, were sufficient to transfer possession. The court acknowledged that the owner cared deeply for the pony and did her best to look after it, however, the welfare of the animal came foremost.

It has been suggested that 2020 Act does not go farm enough in protection of farm animals. In the cattle industry, many farms are adopting the ‘zero graze’ practice, which means that cattle are kept indoors all year around, causing significant health problems for the animals. Chickens face similar problems. Around half of the hens in the UK are kept in ‘enriched cages’, while breeding methods cause painful leg disorders, heart, and lung problems. In the pig industry, farrowing crates inflict pain and are used for approximately 60% of the sows in the UK.

As a priority solution, systemic change is recommended, which can be achieved by either market influence or through legal change. Market influence, in the form of consumer pressure can incentivise farmers to adopt new, more humane practices. However, rather than relying on market influence, change could be achieved through legislation. If we want to prevent the movement of cattle from pastures to year-round indoor grazing, campaigning for legal change, is more likely to be effective than relying on the market influence of consumers.

Considering these structural problems with farming, it is clear there are failings in the 2020 Act. While the UK, as a whole, is doing well at protecting animals in captivity and companion animals, compared to other countries it has been ranked low in relation to the protection of animals used in farming.

Animal’s Used for Testing Welfare

When considering what the 2020 Act does for improving animal welfare it is useful to make a comparison between how we protect the three significant categories of wild, domestic and farm animals but have no such regard for animals used in scientific testing – which is another short falling of the Act.

While animal welfare is a devolved issue, there is no Scottish provision for governing the welfare of animals used for testing. This is devolved, under the Animals in Scientific Procedures Act 1986 and the adoption of the 3Rs principle. The authors believe there is a disparity between the ways in which domestic animals are treated against lab animals.

A case heard in 2015, concerned a man who was charged with two separate offences under the 2006 Act for both negligence and abuse of animals in his care. The accused bred rats and mice to feed to his reptiles and at worst had over 130 rodents at one time. Being kept in poor conditions left many of the animals deformed and paralysed and the rodents had to be euthanised to prevent any further suffering. The Defendant in this case was prosecuted for breeding rodents and keeping them in a way which compromised their welfare. While the 2020 Act provides provision to fine and sentence this sort of animal cruelty, we see similar activities carried out every day in Scottish laboratories where rats and mice are bred and often ending up paralysed and deformed like the animals in the Riddle case.

While scientists and supporters of animal testing may argue that a rat or mouse in a lab does not suffer the way Riddle made those in his care suffer, the statistics show that only 11% of vermin used in scientific testing suffer sub-threshold pain, thus suggesting 89% experienced suffering ranging from moderate to severe to non-recovery. This begs the question, why does the value of an animal change dependent on whether they are a domestic pet or a laboratory animal? As famously stated by Webster in 1994, a rat is a rat whether we define it as vermin or as a pet.

Many may be are under the belief that Scotland is not so much involved in the world of animal testing. However, the author’s found it surprising that Edinburgh University has for many years topped the charts for being the facility to test the most animals per year in the UK: In 2018 averaging testing on 660 animals per day.

Animal testing is more relevant than ever due to the urgent need for a COVID-19 vaccine.

The way in which scientists have dealt with vaccine testing in relation to COVID-19 has broken the significant liner pattern. A traditional full safety vaccine testing package would have included 2 years’ worth of animal testing in order to produce a product safe to test of humans. However, the urgency of the development of a COVID-19 vaccine has led to a number of trials have opted to test on both humans and animals at the same time.

A trial conducted in Oxford bypassed the traditional way of testing on animals entirely and went straight onto human trials. Prioritising human first approaches in the search for a COVID-19 vaccine sets a powerful precedent that will hopefully lead to alternative methods being used over the historically preferred animal testing; An idea that is not radical considering the growing developments in stem cell, silico models and other alternatives.

Final Remarks

Rural Affairs Minister Mairi Gougeon has stated that 'this [Act] is an important milestone in Scotland’s long tradition of protecting our animals and wildlife' and the Scottish SPCA has considered the Act as a 'momentous' decision of the Scottish Parliament to revolutionise animal welfare.  However, one omission from the 2020 Act is the idea of animal sentience e.g. that animals have the ability to feel, perceive or experience subjectively. This is inferred in the 2020 Act but not explicitly outlined. This is surprising considering it was one of the most noticeable omissions from the Animal Welfare Act 2006, for which it was noticeably criticised.

Reform should not stop with the 2020 Act and the failings in the Act should encourage the Scottish government to review the situation again. We look forward to seeing the advancements the Act will hopefully make for animal welfare when it is fully in force.

JAMES H. RUST W.S.

Everyone at the WS Society is deeply saddened by the death of our Clerk, James Rust, on 10 August. Former Deputy Keeper of the Signet Caroline Docherty OBE WS leads a tribute to James on behalf of the Society.

The news of the death of James Rust, the Society’s Clerk, on 10 August, after a short illness, has come as a shock to all of his friends and colleagues within the WS Society. I know that all fellow WS, and others associated with the Society join with me in sending their deepest condolences to Janet, Josephine and Callum, and his wider family.

James’ service to the Society was unique, in that he not only held two important roles, but did so concurrently - as he served as Collector of the WS Dependents’ Annuity Fund from 2004 to 2014 and as Clerk from 2008.

Being close contemporaries, I followed just behind James throughout our careers. From Aberdeen University to training in Edinburgh, achieving partnership, admission as a Writer to the Signet (in James’ case in 1985), membership of one of the Society’s dining clubs – The 1977 Club, to serving as office bearers together, and ultimately as Deputy Keeper and Clerk/Collector at the same time. James was quite literally by my side throughout our deepening association with the Society. He spent his whole professional life with the firm of Morton Fraser, and when I joined as a consultant in 2010 I was delighted that one of the accidental benefits was that James and I became colleagues, and he involved me in the business of many of his clients. In one relationship I was “boss”, in the other he was. It was perfect. As, quite simply, James was a delight to work with, in whatever capacity you encountered him. Over recent weeks I have spoken to clients, partners, junior colleagues, solicitors who encountered him in transactions, fellow office bearers, contacts from other organisations with which James was associated, and they have all said the same things. He was charming, unfailingly courteous, considerate, kind, loyal, supportive, generous and great fun. A true gentleman, in all of the best senses of that word.

In his roles with the WS Society James was often the measured and cautious voice round the table, but when he was satisfied on a matter, he was an enthusiastic and encouraging supporter. His kindness was often displayed when he would take time to mull things over after a difficult meeting. He enjoyed meeting new members, including students, at the admission ceremonies twice a year. In his role as Clerk he was the first to shake their hands to congratulate them as they signed the Roll, and would always take time to chat with everyone in the room, along with their families, after the formalities were completed. He was a stalwart of the annual dinner, always happy to say grace, and host a table of the Society’s guests. It was in this role, though, that he performed one of the functions that I appreciated most. His position on that “top” table meant that when I was speaking I could see him out of the corner of my eye, smiling, and his laugh was always one of the first, and most recognisable, that I heard. He was always one of the first to come over as the evening wound down, and we would enjoy a chat and debrief later in the evening. All of these WS duties, James performed while not only managing his hugely demanding practice as an agricultural law specialist, but while holding numerous other roles – with the Consular Corps in Edinburgh, and as a session clerk for example. No surprise then, that he occasionally arrived in the Commissioners’ Room with seconds to spare, describing himself as “hauden doon” – before quickly getting his papers out of his vintage, well-worn briefcase.

When news of James’ death broke, a socially distanced gathering of his colleagues in the Meadows was immediately organised. There was a desire to spend time that afternoon remembering him and talking about him. And of course, we spoke about his humour, and indeed some of the jokes we made at his expense. He tried to look grumpy, but he always took teasing in good part. Where did he get his very “traditional” sports gear? Was it true that he would accept an invitation to the opening of an envelope? And how could he enjoy salt and vinegar peanuts?

Over recent years Council of the Society and the management group have spent a lot of time in thinking about what it means to be a Writer to the Signet. Excellence in legal practice, an interest in things outside the law, a desire to use one’s talents to help others, especially through charitable organisations, someone who is respected in his community as having integrity and a person who embraces the opportunity to enjoy and learn from the company and society of his fellow lawyers. Oh – and in these modern times, that has all to be done in an “unstuffy” way. A tall order perhaps. But I have just described our dear friend and colleague James Rust. As we had discussions round the table, the perfect example was sitting with us.

We will remember him with the greatest affection and miss him sorely.

Caroline Docherty OBE WS
Former Deputy Keeper of the Signet

I join Caroline in paying tribute to James and I share in the sadness and shock we are all still feeling as we come to terms with losing James as both a friend and colleague. James was so closely associated with the Society and for so long that his absence will be felt keenly for a long time to come. We held him in the highest esteem as unfailingly courteous, good humoured and considered in his approach. Whether undertaking his duties as Clerk at our diets of admission, saying grace at the annual dinner or attending Society meetings, James was a model of calm and composure. He was an immense source of support and counsel to me when I took office as Deputy Keeper. I will never forget his kindness and friendship.

Mandy Laurie WS
Deputy Keeper of the Signet

The whole of the executive at the WS Society was shocked and saddened at the death of James Rust WS. It was typical of James that even in his last days he remained interested in the affairs of the Society. We will remember him as unfailingly courteous, thoughtful and humorous. We regarded him as a stalwart of the Society and we will miss him very much. I was admitted as a WS at the same diet as James and it will be as Clerk, welcoming new WS at admission ceremonies, that I shall always remember him. James was a reassuring and calm presence at Society meetings and a great representative of the Society at the annual dinner and other events in the calendar. Our loss is as nothing compared to James’s family to whom we extend our deepest condolences.

Robert Pirrie WS
Chief Executive, The WS Society

Virtual courts - here to stay?

By Zainab Muzaffar, Katie Yule and Zoe Nugent

Zainab, Katie and Zoe were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation.

Introduction

“We are confident there is room to be proud of Scottish legal traditions whilst embracing the opportunities that new technologies will provide. ”

The question of the viability of virtual courts is a vast topic which is developing on a daily basis and attracts polarising opinion. Our research considered the impact of lockdown on criminal and civil proceedings in Scotland and how other jurisdictions have adjusted to the use of virtual courts. We were delighted to be able to conduct this research in the Signet Library, a 200-year old building steeped in history and legal tradition.

For some, virtual courts are a threat to Scotland’s legal heritage as we potentially move from courtrooms to laptops. We do not share this sentiment.

Civil

The first virtual hearing to be held in Scotland was heard in the Inner House of the Court of Session on 21 April 2020 before three judges, Lord President, Lord Carloway, Lord Menzies and Lord Brodie.  The first virtual hearing in a Sheriff Court was heard before Sheriff Principal Derek Pyle at Inverness Sheriff Court on 12 May 2020.   Following the initial suspension of all but essential business, activity in the courts has gradually started to pick up.  Procedural hearings have been conducted via telephone or video link in the Sheriff Courts and ASPIC.  Debates have been conducted by video link and the first virtual proof in the ASPIC took place at the beginning of August.

The changes to the conduct of civil business in the Scottish Courts has been introduced rapidly in response to the COVID-19 crisis.  In a statement published on 19 June 2020, the Lord President acknowledged the speed at which the changes had been implemented and advocated for the adoption of virtual courts permanently “This is not the time for a defence of tradition.  The cry of “it’s ay been” cannot prevail.  We have to seize the momentum and opportunity to respond to the particular challenge.”  These sentiments have been echoed by other members of the legal profession and there has been some consensus among court practitioners that virtual courts should remain in place going forward.  There has been discussion for several years about introducing more technology to the Scottish Courts system and the feeling among many practitioners is that the opportunity should now be seized.

If virtual courts are to be adopted permanently some consideration must be given to whether they are appropriate for all types of hearings.  Conducting procedural hearings virtually as a default would potentially lead to greater efficiency of solicitor’s time which results in cost savings for the client.  Furthermore, in the commercial courts, procedural hearings have been conducted virtually for a number of years.  In debates, there is no witness examination and the parties only refer to legal authorities and so these could also be conducted virtually going forward.   The implications of conducting proofs remotely are more significant.   Witnesses must be examined and in complex cases there can be hundreds of productions.  Consideration would need to be given to how the technology would be used to refer to productions if virtual proofs were to be made permanent.  Further research and analysis would need to be carried out in order to assess the impact of examining witnesses virtually.

The legal profession has adjusted quickly to working from home and has become used to conducting meetings that would previously have been held in person over Zoom or Microsoft Teams.  Therefore, adopting virtual hearings for procedural matters seems like a natural extension to this new way of working.  From the client’s point of view, it is a way of doing business that is more efficient and that will save money.  If the changes introduced in response to the pandemic are adopted permanently, it is vital that significant investment is made into the IT infrastructure which underpins the court system.  Lawyers have access to the necessary technical equipment, but this is not necessarily the case for other court users.  A lay person appearing as a witness might not have access to a stable internet connection or reliable equipment.  In these situations, the virtual court becomes a barrier to access, and it becomes extremely difficult for them to effectively participate in proceedings.

Criminal - Summary Cases

Virtual summary trials were held in Inverness, and later, in Aberdeen to assess the competence of the proposed new default. Sheriff Principal Pyle published an interim report making recommendations some of which included that the virtual mode should become the default in all summary criminal trials across Scotland by autumn, with the period between now and then being used as time for effective training and engagement. Yet, one cannot help but question if virtual courts are viable considering the time required to properly prepare for online proceedings?

The report has been issued after only three virtual pilots were held. Can we really depend on these findings enough to make this procedure the default especially considering the cases heard were simple in nature, and there are much more complex cases which would need to be heard in court?

Lord Carloway’s warning against the defence of tradition extends to criminal courts. He expressed the view that primary legislation would be required to address some of the technical difficulties, but the use of virtual courts is not an option but a necessity.

However, in the future when this necessity turns into an option again, it seems most practitioners prefer the physical courtroom. Stuart Murray, President of the Aberdeen Bar Association, has expressed the Bar’s opposition to virtual courts stating that the matter is seemingly being driven by Police Scotland as well as Scottish Courts and Tribunal Services. Virtual custodies were introduced due to COVID-19 for persons who may have symptoms but are continuing as the popular choice with at least two custodies per day.

“A survey conducted by the Law Society of Scotland found that 76% of defence agents prefer a personal appearance in court, 30% did not see the complaint or petition before the consultation and 58% still prefer in person client consultation despite the proposal that all future consultations be remote. ”

Yet, there is not enough consideration being given to the needs of those in custody. Invisible medical conditions such as mental health and addictions issues arguably warrant practitioners be granted in-person consultation.

With virtual custodies, the difficulty in interpreting body language increases for the practitioner. The opportunity to consult would be best used in person since ample time should be allowed for discussion of evidence and ensure the client has access to those papers.

Criminal - Solemn Cases

The concept of a virtual criminal jury trial is unsurprisingly the most contentious. As Ronnie Renucci QC states, juries are an ‘integral and indispensable part of our criminal legal system.’ This indispensable facet of the Scottish legal system completely ground to a halt due to the COVID-19 pandemic - a predicament which was avoided during both World Wars. 

Jury trials did not resume until the third week of July. Following the recommendations by Lady Dorrian’s working group, juries were able to attend the High Court in Edinburgh and Glasgow whilst adhering to social distancing requirements. Due to these requirements, a digitally hybrid approach has been taken. In Glasgow, the jury is to be found sitting in the public gallery. They view the accused and witnesses on a screen. In Edinburgh, the jury watches the trial via a video link from a second courtroom. Notwithstanding the teething issues with adapting to cameras and sensitive microphones, Edinburgh and Glasgow practitioners involved in these first trials have provided positive feedback.

This approach is not without access to justice concerns. Socially distanced jury trials means multiple rooms must be used for a single trial and the diversity of the jury pool is potentially impacted by those who need to be excused from jury service due to the COVID-19 pandemic.

The latest announcement on jury trials in Scotland came at the end of our first week of research, that is, in Lord Carloway’s words the ‘bold and imaginative’ plans to use certain cinemas as remote jury centers. This is following a successful mock trial at an Odeon cinema and the affirmative feedback from the two-court model functioning well in Edinburgh.  Any discord so far appears to be light-hearted mocking of the idea of a jury sitting in a cinema rather than any objections in practice.

In order to consider whether virtual hearings could be a viable option in the long-term for jury trials, we have to grapple with core legal principles pertaining to access to justice which underpin the Scottish justice system. It is undeniable there are clear risks with having a jury spectate on a trial unfolding via a screen. We are faced with questions of fairness, ethics, legitimacy, transparency, formality and ensuring we have a process where justice is seen and felt to be done.

It will be interesting when we do know more about the psychology of virtual trials. Will a remote jury be more likely to acquit? If so - would this be due to the screen acting as a barrier to effective engagement with the witnesses and evidence? Or does the screen make things seem less “real” with the gravitas of the courtroom diminished and therefore risking miscarriages of justice?

Perhaps we have to embrace virtual jury trials as the consequences of not doing so are too severe. A backlog of High Court cases pre-dates the COVID-19 pandemic but undoubtedly, it has made it worse. As fascinating as the theoretical discussions in this area can be, each case in the backlog involves real people, their families and livelihoods. People prevented from trauma recovery due to the delay in their cases being heard. This has been raised as particularly devastating for rape case trials. On this issue, the Scottish Government now faces a legal challenge from Rape Crisis Scotland as they call again for judges to replace juries.

As a temporary measure, it seems we cannot avoid a video screen coming between the jury and the trial. Any permanent future of a virtual jury trial needs to be guided by data, but it also requires the Scottish legal profession to be open-minded. We certainly should not be shying away from any digital set-up which makes criminal proceedings more accessible and dignified for all those involved.

England and Wales

In England and Wales, the courts were much quicker of the mark in their adoption of technology to carry on business.  In his statement , The Lord Chief Justice, Lord Burnett acknowledged the vital role that technology would play if the justice system was to avoid grounding to a complete halt.

The response from the legal profession in England has been broadly similar to practitioners in Scotland.  The Civil Justice Council in England carried out a rapid review of the impact of COVID-19 measures on the civil justice system.  The majority of the responses they received were from lawyers.  71.5% of respondents described their experience as positive or very positive but equally concerns were raised about the fairness of virtual hearings particularly in the context of family courts where vulnerable and distressed parents are participating from home with their children and the difficulties for lawyers to provide support to people virtually before, during and after an emotionally complex case.

Discussions about virtual courts have been ongoing for decades on both sides of the border but the coronavirus outbreak has pushed the debate further up the agenda.  Professor Richard Susskind has written extensively on the role of online courts and the digitization of the justice system.  In response to the rapid adoption of virtual courts he has set up Remote Courts Worldwide.  All jurisdictions are at the start of their digital journey and so there are certainly opportunities for shared learning.  In Professor Susskind’s view the shift to online courts has been “an unscheduled and vast experiment” which has so far “worked rather well”.

China

China is a stark example of a country which reformed its judiciary to suit the needs of its legal system. With three successfully running smart courts created in 2017 and 2018, Chinese practitioners use the e-litigation platform online. In a bold action, China also introduced artificial intelligence judges in December 2019 which pass judgement via chat apps. By providing AI Judges to carry out litigation processes, the burden on the human justices is eased. In return, the justices observe the proceedings, only interfering to make the major rulings in each case.

The Supreme People’s Court of China published a white paper detailing that the internet courts had accepted 119,000 cases. 80,000 of these were conducted online throughout the whole process – from start to finish. 98% of the parties accepted first-instance judgements and ceased further appeals.

With the pandemic, all courts in China followed the footsteps of these smart courts and followed litigation processes online in a similar manner. Such practice is definitely not foreign to the Chinese judiciary. Professor Wu Chen commented that “China’s judicial circle tends to embrace any new thing that is useful, including technologies”. He suggested that the UK do the same.

Technology versus Tradition

Technology is a part of all aspects of life in the 21st century and cannot be escaped.  Steps to modernise the Scottish legal system and embrace technology in the courts had been taken prior to the pandemic. Various digital solutions are already in place such as the online service ‘Civil Online’, vulnerable witnesses providing evidence via video link and the use of pre-recorded witness evidence. However, the Scottish legal system was slow to embrace the virtual courts following the lockdown announcement.  This was due to several long-standing issues including poor IT infrastructure, lack of funding and inadequate provision for people who are digitally excluded. 

“If the virtual courts are to be adopted permanently it is vital that these issues are addressed and that their adoption is informed by data, rigorous analysis and the views of all court users.   ”

The delay in embracing new technology is tied into the traditions which bind the Scottish Courts.  The legal profession in Scotland are incredibly proud and protective of the traditions which permeate the Courts, but this is perhaps a hindrance to their progression and development.  The future legal profession in Scotland will be formed of lawyers who have studied the LLB primarily online, who participated in virtual summer schools and internships, who have networked online and who even began their traineeships online.  The courts should, in our view, operate with this in mind.  It is our view that there is space for both tradition and technology in the Scottish legal system.  It should not be a case of one against the other. 

VE DAY 75: SCRAPBOOKS OF WW2 SERVICE

May 8th 2020 marks the 75th anniversary of VE Day - the end of the Second World War in Europe. During the six long years of conflict, the WS Society kept a scrapbook of news about Writers to the Signet in service at home and abroad. James Hamilton introduces this poignant resource.

One morning immediately following the outbreak of the Second World War, the Signet Library’s Librarian Dr. Charles Malcolm led his team of staff upstairs to a display case in the Upper Library. One by one, every staff member wrote their name and job title on the bare wood at the bottom of the case. Someone added the day’s date to the names. It is difficult to connect now with the apprehension and fear for the future that would have accompanied the staff’s actions that day. The absences created by the1914-1918 Great War were still fresh and painful, as were the battle memories of those members who had survived. Although no staff died on active service, all bar one would never work again. Assistant John Robertson, who joined the Library in 1919, had been at Gallipoli and ended his conflict in the war hospital at Southampton stricken with typhoid fever.  

When peace came again in 1945, it was Robertson who volunteered himself to compile the 1939-1945 Active Service Record, which the Signet Library has recently digitized and made available online. The sheer intensity of 1939-1945 meant that not every WS whose exploits were deserving of record made it into the scrapbooks, but the stories of those that do feature paint an extraordinary picture of bravery, tragedy, and selflessness. This is particularly the case in the incident that led to the awarding of the WS Society’s first George Cross to Lieutenant Alexander Hodge, solicitor of Rattray.

Like so many other Writers to the Signet, Hodge had been a member of the volunteer services in the years leading up to the War, his time in the Royal Naval Volunteer Reserve leading to his commission on board HMS Eagle. In August 1940, with the War still in its first year, there was an explosion in Eagle’s bomb-room. Hodge was on the main deck at the time, and immediately volunteered himself downstairs to a chamber “in darkness, full of heat and fumes” with injured and dying men on the floor. Hodge was “able to rescue and send up several badly-injured men” but in doing so realized that there was another, “trapped under two very heavy bombs.” With assistance, he freed this man and did not return to the deck until he was confident no one else in the room was left alive. “He saved all the lives he could though, for all he knew, further fatal explosions might have occurred at any moment.”

Not every exercise of courage could be recorded. An unknown number of Writers to the Signet worked in intelligence, and one, Robert Bertram Laurie WS, is believed to have been engaged with the French Resistance behind enemy lines an entire year before the declared, official date on his call-up papers. Ian Mackenzie WS is recorded merely as having been killed at Roumana in April 1943, but the memoirs of his commanding officer at the Battle of Wadi Akarit, Major Davidson of the Seaforth Highlanders, recalls that when the surviving dozen or so of the Company formed up in a final last-ditch defensive position,  “Ian Mackenzie had disappeared. He was afterwards found well forward. He must have been cut off but had fought to the last. There were three dead Germans lying near him”.

Not every story in the record ends this way. A worried piece in the Evening Dispatch of May 1943 records the disappearance in the Western Desert of Major Patrick Oliphant WS, a well-known cricketer in peacetime and the son himself of a Writer to the Signet. But Oliphant was alive and in the hands of the enemy. His imprisonment at Tunis would last less than a month before British forces overtook and freed the city, and he would fight on. Oliphant was wounded on the beach at Anzio in 1944 and survived the War, ending it an acting Lieutenant-Colonel. He would go on to become Deputy Keeper of the Signet in 1964.

Nor are the scrapbooks solely devoted to the WS Society’s fighting members. In December 1939, Dr. Malcolm pasted in a cheery photograph of one of the Society’s oldest members, William Ketchen WS, wearing an Air Raid Warden uniform and steel helmet in his 80s and beaming at the camera before a wall of sandbags. The photograph was signed with his warm Christmas wishes. In peacetime he had been election agent for Prime Minister Herbert Asquith and Keeper of the Register of Sasines in Register House.

But losses were grievous and went right to the very top of the Society. Deputy Keeper Sir Ernest Wedderburn’s son, also Ernest, was a leading Scottish mountaineer and author of a book on the subject. He had badly weakened his heart in the execution of a daring mountain rescue in the late 1930s, but desperate to play his part he concealed this from recruiters and officers alike, serving in France and North Africa before joining the long brave Scottish slog northwards through Italy (commemorated by the great Hamish Henderson’s song “We Are the D-Day Dodgers”). He was killed in an accident in Aquila late in 1944 and a copy of his book was donated to the Signet Library in his memory.

These are just a few of the stories preserved at the Signet Library which continues as the place of record of the lives and service of Writers to the Signet and others. We are keen to hear receive recollections of lawyers’ service in any form.

Edinburgh’s epidemics of the 19th century

Enlightenment principles and the right of the state to constrain the rights of the individual in the interest of public health were prevalent in the typhoid and cholera epidemics that swept through Edinburgh in the nineteenth century. James Hamilton explores the challenges our ancestors faced.

They didn’t speak of it, so we do not know what the builders of the Edinburgh New Town thought would have become of their city a century later. Abandoning the Old Town was never foreseen or contemplated, and the idea that the 1840s would see their ancestors’ historic wynds and closes broken down, overcrowded and racked by typhoid and cholera would no doubt have horrified them. But they might have hoped that in the face of such adversity the new approaches and thinking of the Scottish Enlightenment could be brought to bear.

Not since the ‘ill years’ of the 1690s had Scotland experienced a health crisis of the kind that would mark the nineteenth century’s middle years, but the first signs of trouble in the Old Town had come earlier, with fever erupting in Edinburgh in 1816 as the last soldiers of the Napoleonic War came back over the hills to home. The response then had been twofold – an architectural one, with William Burn (later the WS Society’s architect) and Thomas Hamilton proposing the building of new access routes to open up the medieval core of the city that would lead in time to the building of Victoria Street and George IV Bridge – and a medical one, with Henry Pulteney Alison (1790–1859), physician, social reformer and philanthropist, opening the New Town Dispensary and introducing new approaches including the quarantining of the sick and the fumigation of fever-stricken properties.

The truth was that restraints remained on the reach of Enlightenment thinking and that there were debates still to be bypassed or won. Echoing the Covid-19 lockdown situation today, the argument over the rights of the state to constrain the rights of the individual to the greater good of society was an Enlightenment one, and core to medical approaches in a time of emergency. It was an argument at the heart of Edinburgh politics, and not truly settled until Sir Henry Littlejohn’s 1865 Report on the Sanitary Condition of Edinburgh.

Also pressing was the debate about the role of the Church of Scotland, which in the early decades of the nineteenth century remained the most viable source of relief for the poor and indigent in the city and country alike. Thomas Chalmers (1780 – 1847), the Edinburgh minister, campaigned for a church-led approach to the problems of poverty and ill health, but such an essentially agrarian approach had ceased to be viable in an age of rampant urbanisation.

Chalmers’ ideas were defeated not so much by debate as by circumstance. Edinburgh had had a terrifying first encounter with cholera in 1832 and was about to have another when the first fever epidemic broke out across the Old Town in the early 1840s. In 1843, the Church of Scotland, the main source of relief in Scotland, was utterly riven by the Disruption, the climax to years of argument over patronage and the right of congregations to choose their own ministers. It would mark the demise of the Kirk as a credible solution for nationwide long-term care for the poor and sick.

The next twenty years would be among the worst in the entire history of the Old Town. Typhus and typhoid became endemic. Because the New Town, with its relatively low density, good communications and its fresh air, was relatively unaffected, the social divisions between the two accelerated. In 1846, the Scottish potato crop failed, leading to an outbreak of scurvy in the potato-dependent Old Town the following year. With the Irish Famine underway, the Old Town’s overcrowding was reaching new heights. Pressure on an already inadequate water supply became acute. Edinburgh had declared herself bankrupt in the early 1830s, and for ten years there had been very little new housing even in the New Town districts. Nor would there be for a long time to come. This was the backdrop to a political argument about the role of the authorities and to a steady enlargement of experience and knowledge in the policing of sanitation and the procedure to be followed in times of epidemic.

But the 1860s saw the return of prosperity to Edinburgh and with it the real breaking of the endemic state of fever in the Old Town. New thoroughfares Cockburn Street and Chambers Street reduced overcrowding and brought new ventures to the Old Town, such as a museum, new businesses, shops, and even hotels.

It was the persistence of Sir Henry Littlejohn (1826-1914) to argue and to persuade, and his determination to back up his proposals with strong empirical research, that would make the greatest difference. His 1865 Report determined policy until the beginning of the First World War, and it was influential both across the United Kingdom and overseas. Littlejohn’s approach succeeded because it followed the Scottish Enlightenment grain, with close analysis of the situation, the driving through administrative reform and improved methods. By the early 1880s, the death rate in Edinburgh had dropped by a third in twenty years.

Littlejohn had learned from Henry Pulteney Alison. Through Littlejohn, the Enlightenment approach extended still further in scope and time, because present in his classes at the University of Edinburgh was a young trainee doctor named Arthur Brock. Two years after Sir Henry Littlejohn’s death, the old hydropathic hospital at Craiglockhart began to fill with shellshocked officers, devastated by their experiences in the Great War battlefields of France. One of those officers was a young poet named Wilfred Owen, and it was Littlejohn’s pupil Arthur Brock that would help him onto the road to recovery.

College Wynd, Edinburgh (Archibald Burns, 1858. Reproduced with kind permission of the National Galleries of Scotland). The birghplace of Sir Walter Scott, College Wynd was typical of the historic but overcrowded and insanitary streets of pre-Littlejohn Edinburgh.

“We will meet again” — Homage to the Signet Library

For over two centuries and through two World Wars the Signet Library has never closed its doors, except for Christmas Day, New Year and other holidays. Robert Pirrie WS, Chief Executive of the WS Society, reflects on the temporary shuttering of this exceptional place in the time of the Covid pandemic.

Being an employee of the WS Society is a huge privilege as well as a great responsibility. There is an acute awareness of all the challenges faced and overcome through the years, the many people, some celebrated and some completely obscure, who have given their time and endeavour to the Society. There is nothing quite like working late at night alone in a monumental 200-year-old building to feel the presence of history. The sounds that the old building makes, the Edinburgh wind whistling through the sash windows, the smell of Brasso and polish, the lights in the Advocates’ Library opposite, the wide quiet space of Parliament Square with the crowds and the pipers long since headed home.

Those of us who work in the building often reflect that the air seems to behave differently in the Signet Library. It appears more at peace with itself, giving the atmosphere a serenity and grace that infuses even the busiest times. The quiet in the Upper Library minutes before the Society’s Annual Dinner, with the team making the last checks before the guests arrive. The ever-changing light in the Lower Library in the still morning moments before Colonnades opens. Bustling activity behind the scenes before a conference. Hundreds of people may pass through the door in a day. Evening events bring more people, staging, lights, flowers, decoration and fine hospitality. Before guests arrive, there might be a violin tuning up or a soprano exercising. Yet, early next morning, walking into the hum of the cleaners’ vacuums, with the party and performance long over, the building reveals again its own gentle yet enduring personality and brings an involuntary smile of recognition. Like the great city of Edinburgh, there is a sense of time and continuity rolling from one day to the next, down through the months and years and decades.

Perhaps there are some common expectations of what a Grade A listed building will represent. Somewhere to be visited once, to take the guided tour and hear its history, learn about the people who lived and worked there, or the family to whom it once belonged, who may perhaps still own it, living in an apartment in one of its private wings. Architectural character of exteriors and interiors is to be expected, examples of fashions, tastes, aesthetics and building techniques worth appreciating. But the Signet Library is so much more. It is a living, breathing, working building and this inheritance bequeaths its beauty with deeper meaning. It is a place where experiences take place, where memories are made. Where the past, the present, and the future reside.

A frequently voiced opinion in these strange times is, “Will we ever go back to office life the way it was before we had even heard of social distancing?” With IT allowing much legal business to carry on from people’s homes and Zoom enabling large meetings and even conferences to take place, it is not an unreasonable question. Working from home, the office bearers and employees of the WS Society continue to hold their regular meetings on Society business, charity and trust administration continues, library and research services are available and CPD planned to go virtual. The expert group working on the proposal for the Society to apply for registered charity status is also meeting online and its work is on schedule. A new Instagram account has increased our online reach beyond Twitter and the website. But there is a huge component of what makes the WS Society so special temporarily removed from the daily lives of so many people, from Writers to the Signet and other lawyers, to researchers, academics and students, to events and restaurant customers, to wedding celebrants, to employees, chefs and waiting staff: the Signet Library and a sense of time, space and life.

All those who know and love the building recognise why the Society and those admitted to the Society cherish this unique and enduring embodiment of its values. Frequently mentioned by those visiting for the first time is the fact that, despite the grandeur of the halls, the towering white columns, the vast spaces, the high ceilings, and the rows and rows of bookcases, the Signet Library is somehow not an intimidating place. This is due not only to the grace of its design, but also to the personalities that imagined it, built it, filled it with books and archives and through the years worked to ensure it would endure with its own unique personality and purpose. Understandably those charged with custodianship of such a building can become almost entirely preoccupied with worry about the costs of repair and caring for such a monumental piece of history. These are not duties the Society would ever overlook. Yet thinking about the library today, it has given the Society so much more than a duty, and in a currency so valuable it can never be repaid. That gift is there on the lustre of the portraits, the brown leather spines of the books, the patina of decades of use and polish, the wear of two centuries of footsteps on the stairs. It is the gift of an idea that seems to hang in the air, that history and learning and law are what made us and what binds us. Thinking about the Signet Library in these unprecedented times, and with the consciousness that it is home of the Society of Writers to Her Majesty’s Signet, it is surely fitting to quote HM The Queen in her recent broadcast to the nation and assure all those who know and love the building: “We will meet again”.