Scots Law Research Articles

The Law of Finding Lost Movable Property in England, Germany and Scotland

Abstract The law of finding lost movable property is not only a practically significant but also doctrinally fascinating topic, which has, however, only rarely been treated comparatively. Therefore, the article analyses to what extent a common core exists between a civil law (Germany), mixed (Scotland) and common law (England) legal system and whether the three jurisdictions achieve the purposes of the law of finding. In light of the scarcity of legal literature, the article is the first detailed treatment of the subject in Scots law. It does not only demonstrate that the common core between all three jurisdictions is remarkably small but also that German and Scots law are notably similar, while English law generally takes the opposite legal approach, indicating that Scots law is more related to civil than common law in this field. Moreover, in contrast to both Germany and Scotland, England does, because of the disadvantageous legal position of the finder, not accomplish the purposes of the law of finding; that is, neither (primarily) restoring possession of lost property to its owner nor (secondarily) freeing the finder from the burden of safekeeping found property for the owner. Consequently, legislative reform of English law is indicated.

A comparative analysis of municipal pre-emption rights across Europe

Abstract The Netherlands faces significant spatial challenges, prompting the Dutch government to consider broadening municipal pre-emption rights that provide the municipality with a right of first refusal. This article contains a comparative analysis of pre-emption rights in the Netherlands, Germany, Scotland, Flanders, and France, focusing on key principles such as material conditions, legal effect and procedure. The findings show that the Dutch system is efficient with strong safeguards for both beneficiaries and property owners. Insights from Scottish law suggest potential benefits for registering pre-emption rights on land with a continuing agricultural function. This article concludes with some general principles of European pre-emption rights, emphasizing their role in facilitating specific spatial developments rather than preserving status quo.

From Edinburgh to Rome via The Hague: The International Appeal of the Trusts and Succession (Scotland) Act 2024

Abstract The Scottish legal system is independent of the English one. Two relevant differences are that the system of property rights in Scotland is based on Roman law, and equity is not a separate source of Scots law. Nonetheless, trusts have been known in Scotland since at least the 16th century. The Trusts and Succession (Scotland) Act 2024, which received Royal Assent last January, is an up-to-date piece of legislation that brings Scotland to the forefront of modern trust legislation. Many solutions that have been devised in leading offshore trust jurisdictions (non-charitable purpose trusts, protectors, etc.) are now fully regulated under Scots law.

Two unsuccessful bites at the legal parenthood cherry – really in the child’s best interests?

ABSTRACT This case review considers Theis J’s judgment in Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20, in which she refused a step-parent adoption order but made several other orders in relation to contact and the exercise of parental responsibility between the three adults involved. I posit that while the judgment probably represents the best possible outcome all round – especially the best interests of the child at its heart – it does not reflect the lived reality of most surrogacy agreements entered into in this country, or the experiences of those involved. It does, however, indicate that proposed reforms as recommended by the Law Commission of England and Wales and the Scottish Law Commission in 2023 would be welcome, especially as the intention behind them is precisely to protect against breakdowns in surrogacy arrangements such as sadly happened in this case.

The origins and work of the Scottish Law Commission, and the problem of the codification of Scottish private law

The subject covered in the paper is the origins, structure and workings of the Scottish Law Commission created, along with its English counterpart, under the Law Commissions Act of 1965. The author of the article outlines the course of conceptual and legislative work to constitute the new commission, the extent of its relationship with and dependence on public authorities, as well as the key differences between the legal position of the two commissions, symbolically highlighted by the English commission’s gaining a stronger mandate under the 2009 Law Commission Act. The final part of the paper is devoted to an attempt to assess the achievements of the Commission to date, the reasons for the failure of the premise of the grand codification endeavour, and the successes that the Commission claim in terms of reforming specific institutions and branches of law.

Scots Law, 16- and 17-Year-Olds, and the UNCRC: Balancing Autonomy and Protection

Scots Law, 16- and 17-Year-Olds, and the UNCRC: Balancing Autonomy and Protection

The Verity House Agreement

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.

Refining Vicarious Liability

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.

Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals

The Scottish Law Commission has recently confirmed in its Eleventh Programme of Reform, published in May 2023, the continuation of its medium-term project to examine the law of homicide. This includes a review of sexual infidelity killings and provocation as a partial defence to murder, or otherwise. It embraces a critique of whether and, if so, how any necessary proposals for modernising the law in this sensitive and important area should be made. A Discussion Paper has previously been published for examination. Against this backdrop, we analyse whether sexual infidelity ought to be retained in extant Scots law, as one of only two relationally relevant qualifying triggers. In November 2023, the Law Commission in England and Wales announced its forthcoming review of domestic homicide given contemporary understandings of the impact of domestic abuse. We provide novel insights into Anglo-Scottish law to seek to recalibrate the understanding of coercive/controlling behaviour in the contextualisation of sexual infidelity killings. Our review highlights the ways in which allegations of (actual or perceived) sexual infidelity may be symptomatic of coercive control through consideration of recent case law, and via the lens of Monckton-Smith's eight stages to femicide. A risk assessment is utilised to demonstrate the extent to which victims of coercive controlling behaviour have their capacity for action delimited, and how this should inform deliberations in cases where the coercively controlled individual kills in response. A novel and original new template is promulgated for provocation reform predicated de novo on qualifying triggers of domestic abuse and gross breach of trust and with a part-justificatory – part excusatory standardisation. It is suggested that a new nomenclature and typology is required as extant Scottish law on provocation is out of step with contemporary social mores, and the law in England and Wales does not adequately address contextual factors, such as, ethnicity, culture, religion, sexuality, disability, and migrant status, which impact on a domestic abuse victim's capacity for action. It is further propounded that a social entrapment lens, drawing on initiatives crystallised from New Zealand and Australian academician perspectives, ought to be enacted as part of urgently needed effective remedial legislation.

Admissibility of Illegally Obtained Evidence in the Criminal Proceedings:

This study examines the position of Scottish criminal law and judiciary in evaluating illegally obtained evidence. It reveals that the Scottish judiciary has so far failed to develop a theoretical framework to guide the judges in exercising their discretion for either accepting or excluding evidence if obtained illegally. The study also concludes in this regard that the Scottish jurisprudence may well be characterized as contradictory, ambiguous, and incoherency for several reasons, the most of which is the absence of a rationale on which the court can rely in accepting or excluding evidence obtained illegally, and the reluctance to concede a discretion to the trial judge in this regard. Accordingly, this study calls for adopting an approach represented in preserving the "moral legitimacy of the criminal justice system" and the "respect of the integrity of the process" to achieve harmony and coherence in jurisprudence.

Legislation Related to School Shootings in Great Britain

Introduction: school shootings remain a highly relevant topic for investigation because the social environment and interpersonal relationships play a leading role in the formation of aggressive intentions of perpetrators. The purpose of this study is to provide an overview of British legislation related to school shootings. Historically, the law of homicide in the United Kingdom has had a number of distinguishing marks. Structurally, the Scots law of homicide resembles the law of England and Wales because the offences of murder and culpable homicide in Scotland closely resemble the offences of murder and manslaughter in England and Wales. Methods: empirical methods of comparison; specific scientific methods: legal dogmatic method and method of legal norm interpretation. Results: the paper describes the law of homicide in England and Wales, including the common law, the relevant sections of British legislation and the proposals of the Law Commission for the creation of a new Homicide Act with a three‐tier structure of general homicide. This overview also encompasses the punishment regime for murder by the Criminal Justice Act 2003 and Sentencing Act 2020. The law of England and Wales is compared with the law of Scotland, especially its crimes of homicide, sentencing guidelines and juvenile justice. Also, the article deals with rules concerning gun ownership. The 1996 Dunblane school shooting in the United Kingdom played a critical role in this issue as it sparked a campaign to change gun laws, which resulted in British lawmakers banning private possession of handguns.

Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the Aftermath of Lockerbie

Universal jurisdiction is a principle of international law that maintains the right to try an accused for serious crimes that are globally recognised. The offences are defined in international customary law and include the breach of the jus cogens norms. The liability for breach of the Suppression of Unlawful Acts Against the Safety of Civil Aviation (‘Montreal Convention’) was invoked in the case of suspects from Libyan Arab Jamahiriya in the Lockerbie air disaster. The United Kingdom and the United States made a separate request to the UN Security Council to take certain provisional measures against Libya, calculated to coerce or compel it to surrender the accused individuals to any jurisdiction outside Libya. The judgment led to a miscarriage of justice as the accused were tried under Scottish law and the issue is whether a ‘third alternative’ could be added to the traditional aut dedere aut judicare principle – aut transferere. The argument here is that in order for the principle to be sustained there should be recognition of the principle of universal jurisdiction and the ambit of the Suppression Conventions should be extended so that a trial can be conducted in the domestic courts of a foreign defendant.

The role of non-genetic parents in a surrogate-born child's identity: an argument for removal of the genetic link requirement.

For the court to grant a parental order recognising intended parents as legal parents of a surrogate-born child, the gametes of at least one of the intended parents must have been used to create the embryo, under section 54(1)(b) and section 54A(1)(b) Human Fertilisation and Embryology Act 2008. In the Law Commission and Scottish Law Commission's consultation paper, there was a provisional proposal to remove the genetic link requirement in cases of medical necessity. However, this proposal was not included in the Law Commissions' Final Report, instead recommending the retention of the requirement for a genetic link in almost all circumstances. This article contends that the Law Commissions' recommendation should be reconsidered in light of the child's right to identity. By reviewing how identity has been used by the courts when determining whether to grant a parental order, as well as a developing interpretation of Article 8 of the United Nations Convention on the Rights of the Child and European Convention on Human Rights, it can be asserted that the identity of surrogate-born children necessitates recognition of the relationship between the child and intended parent(s), irrespective of a genetic link. On this basis, it is argued that there should be the possibility for intended parents to establish legal parenthood following surrogacy without the requirement for a genetic link.

The Two Forms of Legal Time: Pierre Legendre’s “La Durée Poignardée”: Remarques sur la Structure et le Temps

AbstractIn his Leçons VII (Le désir politique de dieu) Pierre Legendre applies the idea or expression of ‘instituting time’ (‘instituer le temps’), that is, working with time as a malleable material, but at the same time conceptualising time as dogmatic time, especially in the interpretation of law. As an example of this concept he refers to the English Common Law, a ‘style’ of ‘governing by solving cases’. This text will analyse the notion of two times of law—inaugural/mythological and historical—and how it applies to Common Law judgments, as well as to Institutional Writers that are characteristic of Scots Law in particular.

Coercion or Consent? Women, Property and Legal Authority in Early Modern Scotland

During the early modern period women's ownership of property was significantly constrained by the marital relationship. Scots law stipulated that much of a woman's property passed to her husband on marriage and that her ability to sell, control or dispose of much property without her husband's consent was severely restricted. Yet, despite such strict legal rules, jurists were aware that a married woman could be placed in a difficult position if her husband abused his position, with legal procedures introduced to mitigate a husband's extensive property powers. As a result, a husband could not sell land his wife brought to the marriage, or any land they held jointly, without her consent, indicated by her signature or mark on the deed and her declaration in a private examination that she acted under her own free will and not under coercion or pressure from her husband. This article interrogates the legal requirement of the wife's consent in Scots law from two conflicting positions: first, as a restraint on the husband's administrative powers in that she was entitled to openly challenge a mortgage or sale; and second, as an endorsement of the husband's superior position in that she was most likely unable to publicly challenge her husband's patriarchal authority during his lifetime. In doing so, it argues that women's legal authority in early modern Scotland was complex and, at times, contradictory, and that this legal ambiguity entitled the courts to make decisions that routinely looked beyond fixed rules when women's property rights and patriarchal rules overlapped.

‘Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow

Abstract This article explores the relationship between the Scots law of bills of exchange, debt enforcement procedures, and credit in the eighteenth century. Compared to England, Scots law’s procedures for recovering debts on obligations were faster, cheaper, and more efficient. These legal provisions are under-appreciated in the current literature on bills of exchange. Scots law’s superiority meant that the provision of medium-value credit in urban economies often occurred through written obligations. Using a new archival data set of nearly 300 bills of exchange from Glasgow, this article demonstrates how Glaswegians used those instruments. It finds that elements of the law of obligations traditionally stressed in the literature, namely negotiability, do little to explain the use of credit instruments in Glasgow. Instead, it was Scots law’s quick recovery procedures that account for their patterns of use. The data shows that inland bills did not commonly pass from hand to hand but instead were held as proofs of debt that could quickly be enforced. The advantage of Scots law in this area did not go unnoticed by contemporaries, and unsuccessful attempts at legal reform in the Victorian era sought to introduce the Scottish rules to the English system. This article joins a growing literature in turning scholarly focus away from the negotiable properties of bills, and shows the importance of expedited enforcement procedures for understanding the Scots credit system. It suggests that paying closer attention to procedural law and differences between jurisdictions can advance research agendas on the relationship between law and economic development.

The use of vicarious liability in environmental law to enhance the legal conservation status of birds of prey

Vicarious liability has been introduced in Scottish environmental law to strengthen the fight against wildlife crime, in particular against birds of prey. Accordingly, landowners can now incur liability for wildlife crime perpetrated by the landowners' employees. Conservation organisations have lauded this development, and this raises the question of whether a similar application of vicarious liability in South African environmental law could enhance the legal conservation status of birds of prey. Vicarious liability is well established in the South African law of delict but is controversial in the context of criminal law. South African environmental law already makes provision for a form of vicarious liability, inter alia also against wildlife crime, but this liability is not strict like the traditional form of vicarious liability known in the law of delict and can accordingly only be referred to as vicarious liability in a wider sense. Unlike traditional strict vicarious liability, which is regarded as undesirable in criminal law by the courts and authors, the wider form of vicarious liability in environmental law may well pass constitutional muster. Nonetheless, the direct liability of a landowner, based on a statutory legal duty to prevent the perpetration of wildlife crime by its employees, would arguably be a more satisfactory solution.

Reforming Medical Manslaughter, the Scottish Way?

In responding to the Williams Review into gross negligence manslaughter in a medical setting, the Medical Protection Society called for English law to adopt the approach currently relied upon in Scotland. This article provides an overview of culpable homicide, before considering how any novel offence based on Scots law could be introduced in England and Wales. The benefits of culpable homicide over gross negligence manslaughter are addressed, with consideration of whether existing medical cases would attract punishment under any novel offence. It is argued that notwithstanding the higher threshold of culpability required by culpable homicide, Scots law cannot be considered a panacea. Rather, due to the detrimental impact that any novel crime would have on the existing structure of involuntary manslaughter, efforts to adopt the law north of the border within England and Wales should be avoided.

‘Fit for Purpose in Today's Society?’: Reflecting on Provocation Pleas in Modern Scotland

Provocation has been the subject of long-term, international scrutiny and is currently under consideration by the Scottish Law Commission as part of their review of homicide and defences to murder. This article reflects on how provocation is used in practice in Scottish courts and considers two aspects of potential reform in particular: where the basis of the plea is infidelity and where the plea is used in the context of someone killing an abuser. It is recognised that reform of the plea now appears inevitable (and required) but this article cautions against complete abolition or expansion of the plea. The discussion is informed by critical feminist analysis of both reported and unreported cases and seeks to better illuminate how the plea is currently operating in practice.

"Adapt or Perish": The uncertain fate of childhood contributory negligence in Scotland

The field of Delict (Tort) is a noteworthy exception to widespread, evolving child rights-based norms across Scottish Law, for there has been little change in the treatment of children in Delict in Scotland in over a century. This article argues that childhood contributory negligence, in its current form, cannot survive imminent, and full, statutory incorporation of the CRC in Scotland. The framework and operation of the law governing childhood contributory negligence is critically reviewed, drawing on Scottish, and relevant UK-wide, case law. Widespread inconsistencies in judicial reasoning about children in contributory negligence determinations are highlighted. Thereafter, consideration is given to what CRC compliance might involve in the field of Delict. Two core rights, article 3 (best interests) and article 6 (child's right to life, survival and development), are then discussed with reference to new Scottish Criminal Sentencing guideline requiring courts to consider the evolving capacity of young people up until the age of 25 years. The article concludes with a call for conceptual and practical reform so that the largely punitive regime of childhood contributory negligence in Scotland must now - in the words of H.G. Wells - either "adapt or perish".