Annual Report 2007 [2008] SLC 211 (Report) (February 2008)

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

In November we received a new reference from the
Scottish Government on a range of aspects of
criminal law and procedure; initially we are
considering possible Crown rights of appeal against
judicial rulings that can end a solemn case without a
jury verdict and certain aspects of the rule against
double jeopardy. References from Government form
an important aspect of our work, and we are always
anxious to deal with them expeditiously.

During 2008 we will continue to make progress with
our existing projects. We envisage publication of
reports on our projects on Crown appeals and
damages for wrongful death. We will also start to
develop proposals for our Eighth Programme, which
will operate from 2010 onwards.

We are pleased that the Scottish Government has
stated that it will implement our Report (published
in 2006) on Interest on Debt and Damages. It is
nevertheless a matter of some concern that a
significant number of our other reports since
devolution remain to be implemented. During the
year we have had useful discussions with the
Cabinet Secretary for Justice, and we very much
hope that these will lead to the further
implementation of our reports.

Finally, our success during the year is due to the
dedication, ability and hard work of all of the staff
of the Commission and my fellow Commissioners,
and I would like to pay tribute to them.

It gives me much pleasure to present the
Commission's Annual Report for the year 2007.

Four reports were published during the year, dealing
with the variation and termination of trusts,
limitation and prescribed claims, the implications of
the case of Sharp v Thomson, and rape and other
sexual offences. The Scottish Government has
indicated that during 2008 it will introduce a Bill to
implement the Report on Rape and Other Sexual
Offences, and we very much welcome the prompt
implementation of our reports in this way.

During 2007 we also published discussion papers
dealing with succession and damages for wrongful
death and, jointly with the English Commission, a
consultation paper concerning aspects of insurance
contract law. We have also begun work on two new
projects, on unincorporated associations and
consumer remedies, the latter being a joint project
with the English Commission. Work has also
continued on the very major project dealing with
land registration.

THE HON LORD DRUMMOND YOUNG

Chairman

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Publications 2007

Annual Report 2006

Scot Law Com No 205

Report on Variation and Termination of Trusts

Scot Law Com No 206

Insurance Contract Law: Misrepresentation, Non-Disclosure and
Breach of Warranty by the Insured – A Joint Consultation Paper

DP No 134

Discussion Paper on Damages for Wrongful Death

DP No 135

Discussion Paper on Succession

DP No 136

Report on Personal Injury Actions: Limitation and Prescribed Claims

Scot Law Com No 207

Report on Sharp v Thomson

Scot Law Com No 208

Report on Rape and Other Sexual Offences

Scot Law Com No 209

20 March 2007
30 March 2007
17 July 2007

1 August 2007
16 August 2007
5 December 2007
12 December 2007
19 December 2007

In addition two papers on insurance law, which are not included in our numbered series, were published
jointly with the Law Commission: Issues Paper 3: Intermediaries and Pre-Contract Information, published
in March 2007 and Issues Paper 4: Insurable Interest, published in January 2008.

Copies of all these publications are available on our website www.scotlawcom.gov.uk

Law reform projects

Seventh Programme of Law Reform

Our Seventh Programme of Law Reform, published
in February 2005, outlines the main projects on
which we will be working up to the end of 2009. It
incorporates ongoing work from our last programme
of law reform and outlines projects on which we are
currently working including those on property law,
succession, trusts, unincorporated associations, and
assignation of, and security over, incorporeal
moveable property. The programme also includes a
criminal law project on the law on provocation, self-
defence, coercion, and necessity.

The programme was prepared after extensive
consultation with the legal profession, a wide range
of other interested bodies and with the public into
areas of law they thought were in need of reform.
The consultation process was extremely helpful and
indeed two projects on which we are working – the
law of succession and on unincorporated
associations - were included in the programme as a
result of suggestions made to us.

During 2008 we will start preparations for our
Eighth Programme which will set out our
programme of work from 2010 to 2014. We expect
to start the consultation process on a draft
programme towards the end of 2008, with a general
public consultation in the first half of 2009.

References from Ministers

While projects under our Seventh Programme form
the core of our law reform work, we also undertake
work in response to references from Ministers.
These projects are an important part of our work
and are usually prompted by concern about specific
areas of law which may need reform. Topics referred
to us are usually on legal issues which need fairly
urgent review. For that reason, we generally aim to
complete work on references within a shorter
timescale than our programme work.

New projects

In November 2007 we received a new reference on
criminal law from the Scottish Ministers inviting us
to consider the law relating to -

• judicial rulings that can bring a solemn case to
an end without the verdict of a jury and rights of
appeal against such;

• the principle of double jeopardy and whether
there should be exceptions to it;

• admissibility of evidence of bad character or of
previous convictions, and of similar fact evidence;
and

. the Moorov doctrine.

This is a substantial reference. For that reason we
have decided that work should be divided into
separate projects. We have started work on the first
two parts of the reference and will turn to the
remaining parts of the reference once those projects
have been completed.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Recently we received a reference to undertake a
joint project with the Law Commission in London,
on consumer remedies. The project will be looking
at ways of simplifying the remedies available to
consumers, for example when they purchase faulty
goods.

Implementation of our reports

In recent years we have been pleased to assist the
Scottish Government in connection with the
passage of several Bills in the Scottish Parliament
which implemented our recommendations for
reform on a number of topics, particularly property
law. We regard this work as an important part of
our role and one which we hope to continue in the
future.

We hope to assist the Scottish Government during
2008 with implementation of recommendations in
our Report on Rape and Other Sexual Offences,
once the public consultation exercise has been
completed.

Further information about implementation of

our reports can be found on the Publications

page of our website

www.scotlawcom.gov.uk

Projects under our Seventh
Programme

Land registration

Work is progressing on our report and draft Bill,
both of which are likely to be lengthy. The project
is a medium-term one under our Seventh
Programme and as such is due for completion by
the end of 2009 at latest. We hope to complete
this project by the end of 2008 or in the first half
of 2009.

Trusts

Project Team

Professor George Gretton, Commissioner
John Dods, Project Manager
Ross Sanderson, Legal Assistant
John Glover, Registers of Scotland

Project Team

Professor Joe Thomson, Commissioner
Colin Tyre QC, Commissioner
David Nichols, Project Manager
Lyndsey Foggarty, Legal Assistant

The modern system of land registration was
introduced by the Land Registration (Scotland) Act
1979. The new system has brought with it many
benefits. But experience has disclosed certain
shortcomings in the legislation, and it became
apparent some years ago that a review would be
desirable. The project is aimed at enhancing the
technical functionality of the system, improving the
fit between registration law and general property
law, removing certain practical difficulties arising
from the current legislation, bringing clarity to
matters that are obscure under that legislation, and
overhauling existing property statutes to make them
e-compatible. Registers of Scotland have provided,
and are continuing to provide, extensive support for
the project and we are most grateful to them for
that support.

The issues involved are complex and for that reason
we published three separate discussion papers on
different aspects of reform. The first discussion
paper - on Void and Voidable Titles - examined the
legal policy issues underlying land registration, while
the Discussion Paper on Registration, Rectification
and Indemnity considered the provisions of the
1979 Act. The third discussion paper - on
Miscellaneous Issues - dealt with topics such as
descriptions and boundaries, servitudes, overriding
interests, and decision-making by the Keeper of the
Registers of Scotland.

Trust law is a long-term project which is likely to be
carried forward into our next programme of law
reform. It is a substantial project and for that
reason we are working on it in two main stages,
dealing with trusts and trustees.

We have published five discussion papers so far,
covering a range of topics:

• Breach of Trust

• Apportionment of Trust Receipts and Outgoings

• Trustees and Trust Administration

• Variation and Termination of Trusts

• The Nature and Constitution of Trusts

The first of our Reports – on Variation and
Termination of Trusts – was published in March
2007. Our recommendations address some of the
difficulties that arise when private trusts are varied
or terminated and seek to simplify the
reorganisation of charities, public trusts and
endowments.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

As regards private trusts, at present the beneficiaries if
all of full age and capacity may agree to vary the
trust, terminate it or resettle the trust property in
another trust. As there was no support from
consultees for change, the Report recommends that
the present position be given statutory authority and
the draft Bill annexed to the Report sets out new
statutory provisions. We also recommend that parents
or guardians should continue not to be permitted to
agree to a variation or termination on behalf of a
child who is a beneficiary under a trust, because of
the likelihood of there being a conflict of interest.

Section 1 of the Trusts (Scotland) Act 1961 allows
the court to approve on behalf of underage, unborn
or incapable beneficiaries a variation or termination
of a private trust. The Report recommends a number
of changes to improve the way this section works in
practice by giving the court the following additional
powers:

• power to exonerate trustees from liability where
an interest of negligible value which has been cut
out by the variation unexpectedly emerges;

• power to approve a variation which would
prejudice an unborn beneficiary if there is no
reasonable likelihood of such a beneficiary being
born;

• power to approve a variation on behalf of an
untraceable beneficiary;

• power to take non-economic considerations into
account in assessing whether there is prejudice to
an underage, incapable or unborn beneficiary.

In the public trust field there are different regimes
for reorganising endowments, charities and non-
charity public trusts. We recommend that the
criteria for reorganisation should be simplified,
should be the same for all, and that the Office of the
Scottish Charity Regulator (which approves
reorganisations of charities) should also deal with
reorganisations of public trusts and endowments.

We are now considering liability of trustees to third
parties with a view to publishing a discussion paper
on this topic early in 2008.

Succession

Project Team

Professor Joe Thomson, Commissioner
David Nichols, Project Manager
Maria Theodossiou, Legal Assistant

We decided to undertake a further review of the law
of succession following suggestions made to us
during consultation on a draft of our Seventh
Programme. Our earlier Report on Succession,
published in 1990, dealt with a wide range of issues
but has not been implemented.

The current project is re-examining succession law
to ensure that it reflects current social attitudes and
deals with the types of relationship which have
become fairly common in Scotland in recent years.

We published a Discussion Paper in August 2007.
The two main parts of the Discussion Paper consider
the rights of surviving spouses, civil partners,
cohabitants, children and stepchildren on intestacy;
and whether these relatives should be protected
against disinheritance and how such protection is
best achieved.

In relation to the law of intestacy, we propose that
where there are no surviving issue, the surviving
spouse or civil partner should be entitled to the
whole estate. Where there are also surviving issue,
we propose that the surviving spouse or civil partner
should continue to have a measure of priority as at
present and should be entitled to the deceased's
whole estate up to £300,000 with half of any excess
being shared equally with the issue.

Following concerns expressed by members of our
advisory group, the Discussion Paper also considers

whether executors-dative appointed by the court in
intestate estates should continue to be required to
find caution.

In cases of testate succession we propose a rule-
based scheme of protection for surviving spouses or
civil partners whereby the survivor would be entitled
to 25% of what he or she would have received had
the deceased died intestate under our new intestacy
proposals. We propose extending to testate estates
the recently enacted court-based protection scheme
in section 29 of the Family Law (Scotland) Act 2006
for people whose cohabitating partners died
intestate. We also favour a court-based scheme for
dependent children to whom the deceased owed an
obligation of aliment. We tend to think that there
should be no protection for adult children, but if
they are to be protected then we put forward a rule-
based scheme with the entitlement being 25% of
what the child would have received on intestacy.

The Discussion Paper also considers whether
provisions should be introduced in order to prevent
a person evading before death the proposed
protections against disinheritance by way of lifetime
gifts, the prescription of disinheritance claims, and
private international law matters.

The consultation period ended in December. We are
now considering the responses with a view to
completing our report around the end of 2008.

David Nichols, Maria Theodossiou and Professor Joe Thomson

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Assignation of and security over
incorporeal moveable property

Project Team

Professor George Gretton, Commissioner
John Dods, Project Manager
Ross Sanderson, Legal Assistant

This project was suggested to us by the Law Society
of Scotland and a number of other consultees during
consultation on items for inclusion in our current
programme of law reform. It is a substantial long-
term project which we intend to carry forward into
our next programme of law reform, starting in 2010.
The resources available to the project will continue
to be limited until the land registration project has
been completed.

During the year we studied developments in this
area in a number of European countries. We also
embarked on a series of pre-consultation meetings.
Those we met included representatives of the
Insolvency Practitioners Association, HM Revenue &
Customs, the Royal Bank of Scotland, CBI Scotland,
and solicitors' firms with clients who are involved in
such transactions. During 2008 we intend to hold
further pre-consultation meetings.

Unincorporated associations

Judicial factors

Our Seventh Programme includes a project to
review the law relating to judicial factors. The
legislation on this topic has been in existence for
over a hundred years and requires to be updated to
suit modern needs.

We have completed our research for a discussion
paper, which we had hoped to publish during 2007.
However, we have not been able to complete the
discussion paper as we have had to give priority to
completing our project on rape and other sexual
offences. Furthermore, as we now need to devote
resources to the new reference on criminal law, we
have decided to suspend work on this project
meantime.

Provocation, self-defence, coercion,
and necessity

We included in our current programme a project to
review the defences of provocation, self-defence,
coercion and necessity, as a follow-up to our earlier
Report on Insanity and Diminished Responsibility,
published in 2004. The decision to undertake the
project arose in part from the case of Drury v HM
Advocate 2001 SCCR 583, in which the court
commented that the law of provocation should be
reformed and restated in statutory form. We
decided to extend the scope of the project to
include self-defence, coercion and necessity as those
topics are also in need of review.

We had planned to start work on this project once
we had completed our review of the law of rape and
other sexual offences. As we have been asked by
Scottish Ministers to give priority to the new
criminal law reference, which we received in
November 2007, we have deferred work on this
project for the time being, although we intend to
consult on whether the project should be carried
forward into our next programme of law reform, due
to start in 2010.

Project Team

Colin Tyre QC, Commissioner
Gillian Swanson, Project Manager
Lyndsey Foggarty, Legal Assistant

Unincorporated associations exist for a wide variety
of purposes and in a wide range of sizes and
structures. At one end of the scale they may be
substantial organisations with property, employees
and contractual commitments. At the other end,
they may be informal groupings of individuals
joining together for temporary and specific purposes.

In Scots law, such associations are not recognised as
having a separate legal personality. It is this absence
of personality which can create difficulties especially
in connection with entering into contracts, owning
property and dealing with claims by or against the
association and its members. The project will look
at ways of removing the current difficulties, possibly
by giving some form of legal status to
unincorporated associations.

The subject matter of this project is reserved under
the Scotland Act 1998 and any recommendations
which we may make will fall to be implemented by
the United Kingdom Parliament. For that reason we
intend to keep in close touch with the Department
for Business, Enterprise and Regulatory Reform as
regards progress with our work.

We have completed our initial research and have
recently discussed a short preliminary paper with
several interested parties. We aim to publish a
discussion paper in the second half of 2008.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

References from Scottish
Ministers

Rape and other sexual offences

We recommend that the crime of rape should
continue to be tried only in the High Court and that
there should be a maximum sentence of life
imprisonment for rape, sexual assault and certain
acts of sexual coercion.

For the first time in Scots law, the meaning of
consent, which lies at the heart of the new offences,
is to be made clear. It is defined as 'free agreement'
and we set out a list of situations in which there is
no consent, such as when a person is incapable
through intoxication, or is threatened with violence,
or is deceived about the purpose of the sexual
activity.

One of the main aims of our recommendations is to
ensure that there is no distinction between male
and female victims or between male and female
perpetrators. Many of the current offences are
framed in a way which does not respect this
principle. As part of this aim we recommend the
repeal of offences based on sexual orientation as we
see no general justification for consenting conduct
being criminal.

Another principle which we have sought to promote
is that of sexual autonomy. This means that non-
consenting sexual conduct should be criminal, as it
represents an invasion of the victim's sexual
autonomy, while consenting sexual conduct should
not be criminal unless there are powerful reasons for
creating an offence.

A further principle which we have adopted in the
Report – the 'protective principle' – is that some
people should be protected from all sexual activity,
such as young children, while more limited
protection should cover those who may be able to
consent to sexual activity but who should be
protected in view of their relative immaturity or
vulnerability.

Project Team

Professor Gerry Maher QC, Commissioner
Charles Garland, Project Manager
Cara Jardine, Legal Assistant

We completed work on this project in December
when our wide ranging Report on Rape and Other
Sexual Offences was published. The Report marks
an important stage in the first ever systematic
review of Scots law on sexual offences.

We were asked by Scottish Ministers to review this
area of law following two widely-reported High
Court cases in 2004 and concern among
professionals involved in this area of law as well as
the general public that the law was unclear.

The Report recommends an extension to the
definition of rape aimed at protecting both male
and female victims. It also recommends the
creation of the new offence of sexual assault which
would cover sexual touching or other forms of
sexual contact without the victim's consent. In
addition sexual coercion would be made a crime.
This means that it would be an offence to make a
person watch or participate in a sexual activity
without the person's consent. It would also cover
the sending of sexual e-mails and other
communications without the recipient's consent, if
the sender acts out of sexual gratification or an
intention to humiliate or distress the recipient.

In our Discussion Paper, published in January 2006,
we sought views on whether the existing rules of
corroboration should be relaxed or removed in
respect of sexual offences. The vast majority of
consultees were opposed to removing corroboration
in cases involving sexual offences. In view of this
response we have concluded that if the rules on
corroboration need to be reviewed they should be
considered as part of a general review of
corroboration as it applies throughout the criminal
law. For that reason the Report makes no
recommendations as regards corroboration in
relation to sexual offences.

On publication of the Report the Scottish
Government announced a public consultation on
our recommendations with a view to introducing a
Bill in the Scottish Parliament in 2008.

Crown appeals

At present there are two types of ruling which
directly lead to an acquittal - a ruling on a
submission of no case to answer under the Criminal
Procedure (Scotland) Act 1995 - and a ruling
following what is called a "common law submission"
which follows the conclusion of evidence. A judge
may also make rulings on other matters such as the
admissibility of essential pieces of evidence which,
while not formally amounting to an acquittal,
undermine the prosecution case to the extent that
an acquittal becomes inevitable.

Although the issues involved in the project arose in
some recent criminal decisions, the project will
consider the issues in the broad context of the
criminal law generally.

We started initial research for the project towards
the end of 2007. We also established a small group
comprising members of the Judiciary to assist us
and had our first meeting with them in December.

We aim to consult on our proposals in the spring
with a view to reporting with recommendations for
reform in the summer of 2008.

Project Team

The Hon Lord Drummond Young, Commissioner
Alastair Smith, Project Manager
Cara Jardine, Legal Assistant

This topic is the first part of the new reference on
criminal law, received from Scottish Ministers in
November.

This part of the reference relates to judicial rulings
that can bring a case under solemn criminal
procedure to an end without the merits of the case
being considered by a jury, and Crown rights of
appeal against such rulings.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Double jeopardy

Personal injury actions: limitation and
prescribed claims

Project Team

Professor Gerry Maher QC, Commissioner
Alastair Smith, Project Manager
Nicola McGowan, Legal Assistant

Project Team

The Hon Lord Drummond Young, Commissioner
Susan Sutherland, Project Manager
Maria Theodossiou, Legal Assistant

This topic forms the second part of the recent
reference from Scottish Ministers on criminal justice
topics.

In general terms the principle of double jeopardy is
that a person may not be tried more than once for
the same offence. Similar reviews have been
undertaken in other jurisdictions which we will be
examining as part of our work.

The project will examine the operation of the
principle of double jeopardy in existing Scots law.
We will also review the rationales underlying the
principle of double jeopardy and consider whether
grounds may exist for making any exceptions
to it.

We have started initial research and a study of
comparative law with a view to preparing a
discussion paper.

This project was completed in December with the
publication of our Report on Personal Injury Actions:
Limitation and Prescribed Claims.

The Report is in response to two references by the
Scottish Ministers in September 2004 and August
2005. The first reference related to the provisions of
the Prescription and Limitation (Scotland) Act 1973
which set out the rules of limitation in personal
injury actions. The second reference, which
concerned prescribed claims, arose from concerns by
survivors of alleged institutional child abuse that
they could not bring claims for damages because
their right of action had been extinguished as a
result of the law of prescription.

As regards the limitation rules, the Report
recommends a five-year limitation period for
personal injury actions in place of the current three-
year limit. The longer period is aimed at assisting
claimants and their advisers, particularly in cases
involving claims for occupational diseases, where
gathering evidence to bring a claim for damages can
be very time consuming and difficult. The Report
recommends changes to the statutory knowledge
test so that it focuses on the key question of the
seriousness of the pursuer's injuries.

In connection with the judicial discretion to allow
time-barred actions to proceed where the court
thinks it is appropriate, we recommend the
introduction of a statutory list of factors which the
court may take into account when exercising its
discretion.

As regards the second reference, while we have
sympathy with alleged victims of institutional child
abuse and others whose claims have been
extinguished by prescription we recommend that
such claims should not be revived, for a number of
reasons which we outline in the Report.

The Report includes a draft Bill which if
implemented would give effect to our
recommendations for amendments to the 1973 Act.

Sharp v Thomson

• to ensure that floating charges cannot attach to
the property without the attachment having
been publicly registered - the "no attachment
without registration" principle.

The Report also recommends the abolition of an
antiquated rule which allows the liquidator of an
insolvent corporate seller to out-manoeuvre a buyer
by means of an immediate "completion of title".

Two proposals in our earlier Discussion Paper are not
included in the recommendations. One of the
proposals related to the doctrine of the "purchaser's
beneficial interest", but following the House of Lords
decision in Burnett's Trustee v Grainger 2004 SC (HL)
19, there is no longer any need for legislation on
that issue.

The other proposal has already been implemented in
section 17 of the Bankruptcy and Diligence etc.
(Scotland) Act 2007, which enhances a buyer's
protection against the insolvency of an individual
non-corporate seller.

Project Team

Professor George Gretton, Commissioner
John Dods, Project Manager
Ross Sanderson, Legal Assistant

We completed work on this project in December
with the publication of our Report, which makes
recommendations to Scottish Ministers arising out
of the case of Sharp v Thomson 1997 SC (HL) 66.

At present someone buying property can, in certain
circumstances, lose the property if a corporate seller
becomes insolvent before the purchaser registers
title to it. While the current law is satisfactory at
protecting someone who purchases property against
the risk that an individual seller might become
insolvent, it is less satisfactory in the case of a
corporate seller.

With the aim of reducing the risk where a company
sells property, the Report recommends that the rules
be tightened -

• to ensure that buyers can readily find out
whether winding-up proceedings against a
corporate seller have been initiated.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Damages for wrongful death

Our Discussion Paper, published in August,
considered the issues for reform in each of these
cases. It also invited views on the reform of the
relatives' right to claim damages, on whether or not
awards under section 1(4) of the Damages
(Scotland) Act 1976 should be retained and, if so,
what changes should be made to how they operate
in practice.

Following consultation on our proposals, we are
working on our report and draft Bill which will be
published in the summer of 2008.

Project Team

Professor Joe Thomson, Commissioner
Susan Sutherland, Project Manager
Janet Hall, Legal Assistant

When the Bill which became the Rights of Relatives
to Damages (Scotland) Act 2007 was being debated
in the Scottish Parliament, Scottish Ministers
concluded that some aspects of the law of damages
for wrongful death merited further examination. As
a consequence in September 2006 we were invited
to undertake a review of the law and in particular
the provisions of the Damages (Scotland) Act 1976.

When a person is injured as a result of the wrongful
actions of another, the injured party is usually
entitled to some form of compensation for loss
suffered, whether the loss is patrimonial (financial)
or non-patrimonial (non-monetary such as the loss
of expectation of life). Where the injured person
dies as a result of the injuries, three possibilities
arise:

. the victim may have raised proceedings and
claimed compensation from the responsible
person before death;

• the victim may die before proceedings have been
completed; and

•

the victim may die before raising proceedings.

Joint projects with the Law
Commission

parties. The law says one thing, the FSA rules
require another and the FOS reaches decisions
based on a third.

Insurance contract law

The Commissions' proposals distinguish between
business and consumer policyholders. For
consumers, they largely reflect the FSA rules and
FOS guidelines. A clear distinction is made between
those who act deliberately or recklessly, those who
act carelessly and those who act reasonably. Similar
suggestions are made for business policyholders
although for them the proposals would operate as a
default regime.

We aim to publish a further consultation paper
around spring 2009. In that connection, we have
recently published an Issues Paper on Insurable
Interest. We will also be looking at damages for late
payment, fraud and post-contractual good faith.

Consumer remedies

Project Team

Colin Tyre QC, Commissioner
Gillian Swanson, Project Manager
Janet Hall, Trainee Solicitor

We are assisting the Law Commission with this
project which they are carrying out under their
Ninth Programme of Law Reform.

Insurance law is criticised as being outmoded and, in
some cases, unfair to policy holders. This project
aims to modernise the law and make it fairer.

Following a series of Issues Papers (a means of
sharing initial thinking with interested parties), our
joint Consultation Paper on Insurance Contract Law:
Misrepresentation, Non-Disclosure and Breach of
Warranty by the Insured was published in July 2007.
The consultation period ended in November. The
response has been excellent and we are most
grateful to all those who have taken the time to let
us have their views.

The proposals largely focus on misrepresentation
and non-disclosure and explore the issues around
what happens when claimants make mistakes in
application forms or when they fail to mention facts
which the insurer would regard as relevant.

The industry, aware that the Marine Insurance Act
1906 is outdated and inappropriate to a modern
consumer market, has compensated with codes of
practice. Regulation by the Financial Services
Authority (FSA) and the dispute resolution service
provided by the Financial Ombudsman Service
(FOS) have also mitigated the harsh effects of the
law. Whilst well intentioned, this is confusing for all

Project Team

The Hon Lord Drummond Young, Commissioner
Gillian Swanson, Project Manager
Maria Theodossiou, Legal Assistant

The Department for Business, Enterprise and
Regulatory Reform has asked us to look at
simplifying the remedies which are available to
consumers when they purchase goods which do not
conform to contract because, for example, they are
faulty. We have also been asked to look at remedies
relating to the supply of goods. This is a joint
project with the Law Commission for England and
Wales.

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

This area of law is unnecessarily complex due to an
overlap of domestic and EU remedies. One result of
this complexity is that consumers, sales staff and
trained consumer advisers find the law difficult to
understand.

The EU Commission is currently carrying out a
general review of consumer directives, including the
Consumer Sales Directive which was implemented in
the UK in 2002. As part of this project, the
Department has asked us to advise it on any issues
which appear to be of relevance to that review.
Our aim will be to recommend appropriate remedies
which make this area of the law easier for all users
to understand and use. We plan to publish a joint
consultation paper in the second half of 2008.

Progress on our law reform projects

Projects under our Seventh Programme



Land registration	Discussion Papers on - • Land Registration: Void and Voidable Titles (No 125) published February 2004 • Land Registration: Registration, Rectification and Indemnity (No 128) published August 2005 • Land Registration: Miscellaneous Issues (No 130) published December 2005	Working on report and draft Bill
Trusts	Discussion Papers on – • Breach of Trust (No 123) published September 2003 • Apportionment of Trust Receipts and Outgoings (No 124) published September 2003 • Trustees and Trust Administration (No 126) published December 2004 • Variation and Termination of Trusts (No 129) published December 2005 • The Nature and the Constitution of Trusts (No 133) published October 2006 Report on – • Variation and Termination of Trusts (Scot Law Com No 206) published March 2007	Working on Discussion Paper on Liability of Trustees to Third Parties
Succession	Discussion Paper on Succession (No 136) published August 2007	Working on report and draft Bill
Judicial factors		Work suspended
Assignation of, and security over, incorporeal moveable property		Undertaking research for discussion paper
Unincorporated associations		Undertaking research for discussion paper
Provocation, self- defence, coercion, and necessity		Project not yet started

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007


References from Ministers

Rape and other sexual offences	Discussion Paper on Rape and Other Sexual Offences (No 131) published January 2006 Report on Rape and Other Sexual Offences (Scot Law Com No 209) published December 2007	Project completed
Crown appeals		Working on discussion paper
Double jeopardy		Undertaking research for discussion paper
Evidential questions		Project not yet started
Personal injury actions: limitation and prescribed claims	Discussion Paper on Personal Injury Actions: Limitation and Prescribed Claims (No 132) published February 2006 Report on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No 207) published December 2007	Project completed
*Sharp v Thomson*	Discussion Paper on Sharp v Thomson (No 114) published July 2001 Report on Sharp v Thomson (Scot Law Com No 208) published December 2007	Project completed
Damages for wrongful death	Discussion Paper on Damages for Wrongful Death (No 135) published August 2007	Working on report and draft Bill

Joint projects with the Law Commission



Insurance contract law	Consultation Paper on Insurance Contract Law: Misrepresentation, Non-Disclosure and Breach of Warranty by the Insured (No 134) published July 2007	Analysing comments and working on second consultation paper
Consumer remedies		Undertaking research for joint consultation paper

Consolidation and statute law repeals

Consolidation

Statute law repeals

Project Team

The Hon Lord Drummond Young, Commissioner
Susan Sutherland, Project Manager
Cara Jardine, Legal Assistant

One of our statutory functions is to undertake work
on consolidation of legislation. Consolidation
involves bringing together a number of statutes in
an area of law into a single Act, with the aim of
modernising the language and simplifying the
provisions. Most of our consolidation work is
undertaken jointly with the Law Commission and
involves assisting in preparing a draft consolidation
Bill.

We are assisting the Law Commission with work on
a Bill to consolidate the legislation relating to
representation of the people. Work is progressing on
this substantial consolidation with the aim of
producing an up to date Act on this area of electoral
law. The Bill will reflect legislative changes in recent
years, including those introduced by the Electoral
Administration Act 2006.

Another of our statutory functions is to make
recommendations for the repeal of obsolete or
otherwise unnecessary legislation. Along with
consolidation, this work plays an important part in
keeping legislation up to date and making it easier
for people to use legislation.

We undertake work on statute law repeals jointly
with the Law Commission, undertaking consultation
with appropriate bodies in relation to repeals that
relate to Scotland.

Work has recently been completed on the
Eighteenth Statute Law (Repeals) Report and draft
Bill, which was published at the end of January
2008. The Bill covers a wide range of subjects
including legislation relating to police, criminal law
and town and country planning. The repeal
candidates were developed through research by the
Law Commission and consultation with appropriate
bodies, including where appropriate bodies in
Scotland.

Susan Sutherland

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Promoting law reform

An important part of our work involves promoting
law reform. Throughout the year we worked closely
with the Law Commission on our joint projects and
on matters of law reform generally. We provided
comments on the Law Commission's provisional
topics for inclusion in its tenth programme of law
reform, which is due to start in April 2008. Some of
the topics identified would be carried out jointly by
the two Commissions.

In July the Chairman, Professor Maher and the Chief
Executive attended a joint meeting of the Law
Commissions for Northern Ireland, England and
Wales, Ireland and Scotland, in Dublin.

In September our Chief Executive represented the
Commission at the second biennial conference in
Nairobi on "Encouraging International Cooperation
on Law Reform". The conference was held in
conjunction with the Commonwealth Law
Conference on "Governance, Globalisation and the
Commonwealth".

We also promote our work and an interest in law
reform by attendance at law reform conferences and
seminars.

Commissioners and Chief Executive with three of the English Law
Commissioners and Chief Executive during a joint meeting in
Edinburgh in May 2007.

We maintained our close working relationship with
the Scottish Government and were pleased to
welcome the Cabinet Secretary for Justice, Mr Kenny
MacAskill who visited us in November.

During the year we participated in a number of
international and other events aimed at fostering
links between law reform agencies and encouraging
an interest in law reform work.

Law reform publications planned for 2008

Discussion Papers

• Liabilities of trustees to third parties

• Unincorporated associations

• Crown appeals

• Consumer remedies (jointly with the Law Commission)

Reports

• Crown appeals

• Damages for wrongful death

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Commissioners and staff

Commissioners and staff
Commissioners

The Hon Lord James Drummond Young, Chairman
Professor George Gretton
Professor Gerry Maher QC
Professor Joe Thomson
Colin Tyre QC

Legal assistants

Lyndsey Foggarty
Cara Jardine
Nicola McGowan
Ross Sanderson
Maria Theodossiou

Chief executive

Michael Lugton

Librarian

Nick Brotchie

Parliamentary counsel

Gregor Clark CB

Office manager

Lesley Young

Project managers

John Dods
Charles Garland
David Nichols
Alastair Smith
Susan Sutherland
Gillian Swanson

Personal secretaries

Joan Melville
Heather Ryan

Administrative and typing
services staff

Jackie Palkowski
Iain Ritchie
Calum Robertson
Gordon Speirs

Trainee solicitor

Janet Hall

Project advisory groups

We thank the members of our advisory groups
for their assistance with our law reform projects
in 2007

Rape and other sexual offences

Sandy Brindley, Rape Crisis Scotland

James Chalmers, University of Edinburgh

Brian Dempsey, Outright Scotland

Iain Fleming Solicitor

Janette de Haan, Glasgow Women's Support Project

Tim Hopkins, Equality Network

Louise Johnson, Scottish Women's Aid

Frances McMenamin QC

Stephanie Whitehead, Brook

Damages for wrongful death

Professor Douglas Brodie, University of Edinburgh

Laura Dunlop QC

Roderick Dunlop Advocate

Gilles Graham Solicitor

Maria Maguire QC

Harvey McGregor QC

Thomas Marshall Solicitor

Land registration

Professor Stewart Brymer Solicitor
Professor Roderick Paisley, University of Aberdeen
Professor Kenneth Reid, University of Edinburgh
Professor Robert Rennie, University of Glasgow

Personal injury actions

Robert Carr Solicitor

David Johnston QC

Ranald Macdonald, Scottish Health Service Central

Legal Office

Robert Milligan Advocate

Fiona Moore Solicitor

Trusts

Alan Barr Solicitor, University of Edinburgh

Graham Burnside Solicitor

Robert Chill Solicitor

Andrew Dalgleish Solicitor

Frank Fletcher Solicitor

Alexander McDonald Solicitor

Christopher McGill Society of Trust and Estate

Practitioners (Scotland)

Simon A Mackintosh Solicitor

James McNeill QC

Allan Nicolson Consultant Solicitor

Professor Kenneth Norrie, University of Strathclyde

Scott Rae Solicitor

Alister Sutherland Consultant Solicitor

Succession

Alan Barr Solicitor, University of Edinburgh

John Kerrigan Solicitor

Ross Macdonald, University of Dundee

Christopher McGill, Society of Trust and Estate

Practitioners (Scotland)

Iain Maclean Advocate

Professor Michael Meston, University of Aberdeen

Malcolm Strang Steel Solicitor

Eilidh Scobbie Solicitor

Scott Rae Solicitor

Gordon Wyllie Solicitor

Insurance law

Sarah P L Wolffe Advocate

Professor Angelo Forte, University of Aberdeen

SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

Running costs

The Commission receives its funding from the Scottish Government. Our running costs for 2007 were offset
by payment received from Skills for Justice and the Royal Commission on the Ancient and Historic Monuments
of Scotland for use of part of our office accommodation.

Salaries - Commissioners
(including national insurance contributions,
superannuation payments and pensions to
former Commissioners)

Salaries - Chief Executive and legal staff
(including national insurance contributions,
superannuation payments and consultants'
fees and expenses)

Salaries - administrative staff

(including national insurance contributions

and superannuation payments)

Accommodation

(including maintenance, rates and utilities)

Printing and publishing

(including costs of books and library purchases,
binding, machinery maintenance, photocopying,
reprographic services and stationery)

Telephone and postage

Travel and subsistence

Miscellaneous

(including training, office services and hospitality)

Total

£000 £000

585.5

£000 £000

542.0

564.5

570.1

176.5 1326.5

171.8 1283.9

49.8

60.3

91.6

94.8


	10.1	12.2
	7.9	12.6
	23.8	21.1
	£1509.7	£1484.9

Scottish Law Commission

promoting law reform

Our law reform work involves-

Research into the existing Scots law and review of comparative law

Analysis of problems with the current law

Development of policies for reform

Consultation on proposed reforms

Consideration of consultation responses

Review of policy in the light of consultation

Publication of a report to Ministers with recommendations for reform, including in most cases
a draft Bill to implement the recommendations. Implementation of the recommendations in our
reports requiring legislation is taken forward in the Scottish Parliament or in some cases in the UK
Parliament at Westminster

For more information about the Commission please contact:

Michael Lugton, Chief Executive

Scottish Law Commission

140 Causewayside Edinburgh EH9 1PR

Tel: 0131 668 2131

Fax: 0131 662 4900

E-mail: [email protected]

FOI enquiries: [email protected]

This report is available on our website.
It may also be purchased from TSO Scotland Bookshop.

This publication (excluding the Scottish Law Commission logo) may be re-used free of charge in any format or medium
for research for non-commercial purposes, private study or for internal circulation within an organisation. This is subject
to it being re-used accurately and not used in a misleading context. The material must be acknowledged as Crown
copyright and the title of the publication specified.

For any other use of this material please apply for a Click-Use Licence from the Office of Public Sector Information (OPSI)
website: www.opsi.gov.uk/click-use/index.htm.

Printed in the UK for The Stationery Office Limited

On behalf of the Queen's Printer for Scotland

C3 02/08





Scottish Law Commission promoting law reform

		Established under the Law Commissions Act 1965

	Our function To recommend reforms to improve, simplify and update the law of Scotland Our role To play a leading role in developing the law for the people of Scotland so that it is just, principled, responsive and easy to understand

annual report I 2007



SCOTTISH LAW COMMISSION ANNUAL REPORT 2007



Scottish Law Commission promoting law reform

Annual Report 2007

To: Mr Kenny MacAskill MSP, Cabinet Secretary for Justice We are pleased to submit to the Scottish Ministers our Annual Report for the year to 31 December 2007.

	*&v^* JAMES DRUMMOND YOUNG, Chairman

		GEORGE GRETTON

		GERARD MAHER
		JOSEPH M THOMSON
		COLIN TYRE

Michael Lugton, Chief Executive 6 February 2008 Laid before the Scottish Parliament by the Scottish Ministers under section 3(3) of the Law Commissions Act 1965

February 2008

SG/2008/16 EDINBURGH: The Stationery Office £13.90

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You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Annual Report 2007 [2008] SLC 211 (Report) (February 2008) URL: http://www.bailii.org/scot/other/SLC/Report/2008/211.html Cite as: [2008] SLC 211 (Report)





	Professor George Gretton, Professor Gerry Maher, Colin Tyre (seated), Michael Lugton, Lord Drummond Young and Professor Joe Thomson

	978 0 10888 217 3



	Contents Chairman's foreword 5 Publications 2007 7 Law reform projects 8 Consolidation and statute law repeals 24 Promoting law reform 25 Law reform publications planned for 2008 26 Commissioners and staff 27 Project advisory groups 28 Running costs 29



	SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

	Chairman's foreword

		In November we received a new reference from the Scottish Government on a range of aspects of criminal law and procedure; initially we are considering possible Crown rights of appeal against judicial rulings that can end a solemn case without a jury verdict and certain aspects of the rule against double jeopardy. References from Government form an important aspect of our work, and we are always anxious to deal with them expeditiously. During 2008 we will continue to make progress with our existing projects. We envisage publication of reports on our projects on Crown appeals and damages for wrongful death. We will also start to develop proposals for our Eighth Programme, which will operate from 2010 onwards. We are pleased that the Scottish Government has stated that it will implement our Report (published in 2006) on Interest on Debt and Damages. It is nevertheless a matter of some concern that a significant number of our other reports since devolution remain to be implemented. During the year we have had useful discussions with the Cabinet Secretary for Justice, and we very much hope that these will lead to the further implementation of our reports. Finally, our success during the year is due to the dedication, ability and hard work of all of the staff of the Commission and my fellow Commissioners, and I would like to pay tribute to them.
	It gives me much pleasure to present the Commission's Annual Report for the year 2007. Four reports were published during the year, dealing with the variation and termination of trusts, limitation and prescribed claims, the implications of the case of Sharp v Thomson, and rape and other sexual offences. The Scottish Government has indicated that during 2008 it will introduce a Bill to implement the Report on Rape and Other Sexual Offences, and we very much welcome the prompt implementation of our reports in this way. During 2007 we also published discussion papers dealing with succession and damages for wrongful death and, jointly with the English Commission, a consultation paper concerning aspects of insurance contract law. We have also begun work on two new projects, on unincorporated associations and consumer remedies, the latter being a joint project with the English Commission. Work has also continued on the very major project dealing with land registration.

		THE HON LORD DRUMMOND YOUNG Chairman

	5



	SCOTTISH LAW COMMISSION ANNUAL REPORT 2007

	Publications 2007



	Annual Report 2006 Scot Law Com No 205 Report on Variation and Termination of Trusts Scot Law Com No 206 Insurance Contract Law: Misrepresentation, Non-Disclosure and Breach of Warranty by the Insured – A Joint Consultation Paper DP No 134 Discussion Paper on Damages for Wrongful Death DP No 135 Discussion Paper on Succession DP No 136 Report on Personal Injury Actions: Limitation and Prescribed Claims Scot Law Com No 207 Report on Sharp v Thomson Scot Law Com No 208 Report on Rape and Other Sexual Offences Scot Law Com No 209	20 March 2007 30 March 2007 17 July 2007 1 August 2007 16 August 2007 5 December 2007 12 December 2007 19 December 2007

	In addition two papers on insurance law, which are not included in our numbered series, were published jointly with the Law Commission: Issues Paper 3: Intermediaries and Pre-Contract Information, published in March 2007 and Issues Paper 4: Insurable Interest, published in January 2008.

	Copies of all these publications are available on our website www.scotlawcom.gov.uk

	7



	Law reform projects

	Seventh Programme of Law Reform Our Seventh Programme of Law Reform, published in February 2005, outlines the main projects on which we will be working up to the end of 2009. It incorporates ongoing work from our last programme of law reform and outlines projects on which we are currently working including those on property law, succession, trusts, unincorporated associations, and assignation of, and security over, incorporeal moveable property. The programme also includes a criminal law project on the law on provocation, self- defence, coercion, and necessity. The programme was prepared after extensive consultation with the legal profession, a wide range of other interested bodies and with the public into areas of law they thought were in need of reform. The consultation process was extremely helpful and indeed two projects on which we are working – the law of succession and on unincorporated associations - were included in the programme as a result of suggestions made to us. During 2008 we will start preparations for our Eighth Programme which will set out our programme of work from 2010 to 2014. We expect to start the consultation process on a draft programme towards the end of 2008, with a general public consultation in the first half of 2009.	References from Ministers While projects under our Seventh Programme form the core of our law reform work, we also undertake work in response to references from Ministers. These projects are an important part of our work and are usually prompted by concern about specific areas of law which may need reform. Topics referred to us are usually on legal issues which need fairly urgent review. For that reason, we generally aim to complete work on references within a shorter timescale than our programme work. New projects In November 2007 we received a new reference on criminal law from the Scottish Ministers inviting us to consider the law relating to - • judicial rulings that can bring a solemn case to an end without the verdict of a jury and rights of appeal against such; • the principle of double jeopardy and whether there should be exceptions to it; • admissibility of evidence of bad character or of previous convictions, and of similar fact evidence; and . the Moorov doctrine. This is a substantial reference. For that reason we have decided that work should be divided into separate projects. We have started work on the first two parts of the reference and will turn to the remaining parts of the reference once those projects have been completed.



Unincorporated associations		Judicial factors Our Seventh Programme includes a project to review the law relating to judicial factors. The legislation on this topic has been in existence for over a hundred years and requires to be updated to suit modern needs. We have completed our research for a discussion paper, which we had hoped to publish during 2007. However, we have not been able to complete the discussion paper as we have had to give priority to completing our project on rape and other sexual offences. Furthermore, as we now need to devote resources to the new reference on criminal law, we have decided to suspend work on this project meantime. Provocation, self-defence, coercion, and necessity We included in our current programme a project to review the defences of provocation, self-defence, coercion and necessity, as a follow-up to our earlier Report on Insanity and Diminished Responsibility, published in 2004. The decision to undertake the project arose in part from the case of Drury v HM Advocate 2001 SCCR 583, in which the court commented that the law of provocation should be reformed and restated in statutory form. We decided to extend the scope of the project to include self-defence, coercion and necessity as those topics are also in need of review. We had planned to start work on this project once we had completed our review of the law of rape and other sexual offences. As we have been asked by Scottish Ministers to give priority to the new criminal law reference, which we received in November 2007, we have deferred work on this project for the time being, although we intend to consult on whether the project should be carried forward into our next programme of law reform, due to start in 2010.
	Project Team
Colin Tyre QC, Commissioner Gillian Swanson, Project Manager Lyndsey Foggarty, Legal Assistant
Unincorporated associations exist for a wide variety of purposes and in a wide range of sizes and structures. At one end of the scale they may be substantial organisations with property, employees and contractual commitments. At the other end, they may be informal groupings of individuals joining together for temporary and specific purposes. In Scots law, such associations are not recognised as having a separate legal personality. It is this absence of personality which can create difficulties especially in connection with entering into contracts, owning property and dealing with claims by or against the association and its members. The project will look at ways of removing the current difficulties, possibly by giving some form of legal status to unincorporated associations. The subject matter of this project is reserved under the Scotland Act 1998 and any recommendations which we may make will fall to be implemented by the United Kingdom Parliament. For that reason we intend to keep in close touch with the Department for Business, Enterprise and Regulatory Reform as regards progress with our work. We have completed our initial research and have recently discussed a short preliminary paper with several interested parties. We aim to publish a discussion paper in the second half of 2008.

14



	Project advisory groups

	We thank the members of our advisory groups for their assistance with our law reform projects in 2007 Rape and other sexual offences Sandy Brindley, Rape Crisis Scotland James Chalmers, University of Edinburgh Brian Dempsey, Outright Scotland Iain Fleming Solicitor Janette de Haan, Glasgow Women's Support Project Tim Hopkins, Equality Network Louise Johnson, Scottish Women's Aid Frances McMenamin QC Stephanie Whitehead, Brook Damages for wrongful death Professor Douglas Brodie, University of Edinburgh Laura Dunlop QC Roderick Dunlop Advocate Gilles Graham Solicitor Maria Maguire QC Harvey McGregor QC Thomas Marshall Solicitor Land registration Professor Stewart Brymer Solicitor Professor Roderick Paisley, University of Aberdeen Professor Kenneth Reid, University of Edinburgh Professor Robert Rennie, University of Glasgow Personal injury actions Robert Carr Solicitor David Johnston QC Ranald Macdonald, Scottish Health Service Central Legal Office Robert Milligan Advocate Fiona Moore Solicitor	Trusts Alan Barr Solicitor, University of Edinburgh Graham Burnside Solicitor Robert Chill Solicitor Andrew Dalgleish Solicitor Frank Fletcher Solicitor Alexander McDonald Solicitor Christopher McGill Society of Trust and Estate Practitioners (Scotland) Simon A Mackintosh Solicitor James McNeill QC Allan Nicolson Consultant Solicitor Professor Kenneth Norrie, University of Strathclyde Scott Rae Solicitor Alister Sutherland Consultant Solicitor Succession Alan Barr Solicitor, University of Edinburgh John Kerrigan Solicitor Ross Macdonald, University of Dundee Christopher McGill, Society of Trust and Estate Practitioners (Scotland) Iain Maclean Advocate Professor Michael Meston, University of Aberdeen Malcolm Strang Steel Solicitor Eilidh Scobbie Solicitor Scott Rae Solicitor Gordon Wyllie Solicitor Insurance law Sarah P L Wolffe Advocate Professor Angelo Forte, University of Aberdeen

	28

Scottish Law Commission (Reports)