Tag Archives: Law

Selling the on-line method…

…or why I’m very happy my dad has finally adopted a smart phone.


It’s been an exciting time in the Cruikshank house-hold. My dad, after years of holding-out, my dad has finally adopted a smartphone. I say ‘adopted’ since it’s my wee brother’s old one. A hand-me-up if you will. I didn’t think it would last. It’s much larger than the Nokia he had before, and he’s never been a fan of touch-screens (he doesn’t like the fingerprints). But just tonight, he was snapping pictures and texting sending them off. He even downloaded the BBC News app after I told him it ‘bing’s when there’s a major news story. He is now, after all but kicking and screaming, firmly pro-phone (on condition only 6 people in the world know his number). He’s even doing mobile banking! Such advancements.

I’m not a lawyer yet, but already I’m getting the impression that the legal profession, particularly Scottish Conveyancers, are very much like my dad in the Nokia days. It just doesn’t see the point of it changing a system which appears to be working perfectly well. There have been a few I’ve noticed or been told in the last few months that seem to make this clear. I’m prepared to admit that someone my age has never known a time without a computer in the classroom, but I am not intrinsic “anti-paper” – I am consistently the only person in the lecture theatre taking notes on a non-prefixed pad. I just don’t get the hesitance to go on-line, particularly in the world of property conveyancing, where there is so much repetition and computer systems would help smooth the process for both solicitors and clients.

Take, for example, the ill-fated to ARTL, the on-line method for land registration. I can already hear the conveyancers wince. To me this idea seems brilliant! Who needs forms and forms of stuff that have to be written, printed and posted – why not just do it on-line? Yet, uptake on ARTL was dismal. Only 13 of 32 Local Authorities took it up, Lenders had been hesitant to fully participate; Solicitors even more so. A few of the tutors have said that ARTL was slow, clumsy and cumbersome, so was doomed from the start. ARTL will be put out of its misery later this year, and will be shut down. My issue with that is that the paper system, to me, seems just as slow clumsy and cumbersome, possibly even more so. In what other system would Form 1 not be followed by a Form 2, but instead be accompanied by a Form 4 and then lead to a Form 10. MADNESS I TELL YOU!!! All these forms, of course, asking for similar information, relying on all previous information being correctly processed in the first place. If there were major problems in the system (and I don’t doubt for a second there were), investment in the system is the way to go, not just tossing it to the side. The real issue, I think, is that a majority of the profession just didn’t want to use the system in the first place, and so found the reason not to. It’ll be interesting to see how the new on-line system of  Land Registration is received later this year.

It’s not just registration that the Land Registration (Scotland) Act 2012 will be changing. It will introduce the possibility of conducting missives on-line. Instead of waiting for letters to be posted and received, on-line missives allows terms to be delivered there and then. Not only does this allow us to do away with fax machines (which are terrible inventions whose existence is unjustifiable in the 21st century), but if can solve all the recent questions over “what counts as delivery” most prominently raised in Park, Petitioner [2009] CSOH 122. If the profession has a chance to do business on-line, I can see no reason whatsoever why we shouldn’t take it. Even from a client service perspective, reducing waiting time and worries included in buying and selling houses must be a good thing. I fear, however, given the reception ARTL received, that up-take will be slower that hoped, and that the DX posties don’t have to be quaking in their boots quite yet.
I don’t mean to pick on conveyancers (in fact I’ve really enjoyed the subject so far), but it seems to be the best example of the legal hesitance to move away from what we know. It was only last week that I found out that Scottish conveyancers still use cheques as the go-to means for paying client costs. CHEQUES! I have had an adult bank account for 5 years and in that time sent exactly one cheque, and even then that was because internet banking was just not an option. My tutor justified them saying that it allows full control over the buying and selling process. So, for example, someone doesn’t want to have money ‘leave’ their account to buy a new house before they’ve had the money come in from selling their old one. By using cheques you can ask the other solicitor to hold of cashing until funds are available.  But with internet banking (which is incredibly secure now-a-days) you’re still able to carefully regulate when money leaves the firm’s client account and you don’t have to rely on the other solicitor’s secretary to remember not to cash the cheque yet. My tutor also said that with on-line transfers you never know exactly when money will leave the account: it might be instant, within minutes or take until the end of the business day. That’s true, and a fair point to make…but cheques can take up to 3 days to clear! I’d rather know what’s happening to the hour, and not the day. Plus, and I can’t stress this enough…cheques are on their last legs.  Sure, their 2018 death-date has been postponed due to public outcry (and I can take a guess as to the demographics of the outcriers) – but it is surely only a matter of time before they are done away with completely. My tutor mentioned that the English solicitors laugh at us for still using cheques…and I couldn’t help but think to myself “Rightly so”. But hey, we’ve been using cheques for years and there are few problems with the system, so why change?

I think that’s the nub of the problem. The way things have always been done is that missives were sent by post (and kinda by fax), were concluded in the same way, title was registered when you sent away the forms to the keeper and all the fees and prices were sorted when cheques were handed over to the other side. This system works, of course it does, and lots of people are happy enough to keep it that way. My dad was quite happy with his little Nokia, but now he realises that, while it took years of encouragement and repetition, his new phone with all its bells and whistles (quite literally) is so much better than he had thought. The Scottish legal profession has to realise soon that the Nokia system just isn’t going to cut it in the 21st century.

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When is Assault not Assault…

…or why Neil Lennon and a Mr. Wilson from Edinburgh were major players in my personal legal journey.


I was amused last week when I read an article about New Hampshire’s State Legislature. I like New Hampshire (NH), and I’m fully prepared to admit that this is 100% due to it being President Bartlett’s home state. But over the last few years, NH examined and looked at what it considers the role of the jury in the state’s criminal trials…and being completely honest – I’m not sure I like it.

In 2012, NH’s Statehouse passed 519:23-a which allowed the sitting judge to permit defence counsel to remind the jury of their ability (and right) to “nullify the law”. There are far better explanations of what ‘Jury Nullification’ means than I could ever provide here, but put simply, it is the ability for a jury to say “Yeah, he’s technically guilty, but we don’t care.” Now it wants to change the law and require judges to inform the jury about its right to nullify the law in any given case. In the American context, where “We the People” is the basis of the law, the idea that the citizenry can disapply a law it feels is unjust seems acceptable and consistent – but is it necessarily the best idea to let juries know?
The American Jury process as it is at the moment is something I can’t quite rationalise. I find the US understanding of voir dire rather quaint and amusing, that lawyers can participate in choosing the jury. It’s something I can’t help but feel leaves (and has left) the whole system open to abuse. So, the idea that juries could go “We know he did it, but he seems alright”, seems the kind of thing that could only happen in America…right?

Scotland’s criminal justice system is infamous the world over for having 3 possible verdicts; Guilty, Not Guilty and Not Proven. But, it’s the second of the three, not the last, that can most accurately described as the “bastard verdict”. The role of the jury is to decide whether the crown has established the facts it intends to, i.e has the case against the accused been proven beyond a reasonable doubt? The jury, therefore, had to decide whether the case was ‘Proven’ or ‘Not Proven’ and it was only in the late 1700’s the idea of the jury deciding guilt came into the equation at all.
In 1782, a man was accused of murdering the Earl of Strathmore, and the facts were damning. Both men had been drinking and, to use the euphemism, one thing led to another which led to another which led to the Earl of Strathmore having a sword driven through his stomach…as happens. The man was charged with murder, but the jury has some sympathy with him. He had just buried a family member, the Earl had not been behaving appropriately all day, and just before the incident, had shoved the man into a ditch who was now covered in mud. So while there was no doubt that the man had killed the Earl, the jury didn’t think he had the guilt needed to fit the crime – he was “not guilty”. They knew he was technically guilty of murder…but they decided not to punish him. They nullified the law.
Since then, ‘not guilty’ replaced ‘not proven’ as the go-to innocence verdict , with ‘guilty’ wiping out ‘proven’ completely. So, a little act of ancient jury nullification has completely shaped the modern criminal justice system in Scotland. And yet, I question whether Americans should be told of this same ancient power. Why? Blame football.

In May 2011, Celtic played Hearts away in the SPL. The final score was 0-3, but the match was interesting in other ways. During the course of the game, a fan (Mr. Wilson)  jumped out of the stands and ran towards then-manager Neil Lennon and jumped on him. Essentially he committed assault. Live. During a televised football match. It was even caught on video…or was it? At his trial in Edinburgh Sheriff Court, the jury found the charge of “assault aggravated by religious prejudice” to be ‘not proven’.  The jury were aware of the fact they could delete the “aggravated by religious prejudice” part if that’s what was holding them back (they deleted it from his ‘Breach of the Peace’ charge of which they found him guilty), and considering Wilson had previously stated he would admit a clean ‘assault’ charge, this would have been sensible. But they decided not to – they let him off with it…or they didn’t, because they decided that he didn’t do it. The jury, essentially, nullified the ‘right’ verdict (he typed cautiously).
You can argue why the jury did what it did [At the time there was a blog post by someone who said it was done to “punish the crown”. if I can find it I will link it here.], but the fact remains that they did it. The evidence all pointed one way, but they veered the other, as was and is their right.

So what would the effect be if juries didn’t just have this right, but were made aware of it before every single criminal trial? The piece which initially piqued my interest states that where mock-trials have been held to test what may happen, juries told of their right to nullify tend to do so more readily and easily than those not told – and usually for more ‘socially acceptable’ accused/defendants. Given the tendency of the public to instantly vilify people accused of certain crimes (such as Chris Jeffries), while refusing to believe that certain others could ever commit one, it could be argued that establishing jury nullification as a central part of a criminal justice system might present a challenge to its fairness and equality.
I have an odd relationship with juries, despite having never sat on one (and I do really want to before I am permanently barred when I become a trainee next year (hopefully)). It seems completely sensible: you should be judged by people who are like you, not some judge who is (let’s face it) probably some old, white guy. But, like most things in law, its when you get down to exploring the details of the plans that the seemingly great ideas pose a range of issues you’d never have thought of. If the jury must be independent of “the system” then protecting that independence means that sometimes you have to accept they will make the ‘wrong’ (but never technically incorrect) choice…and I don’t know how I feel about that. I think compulsory notice of jury nullification chimes well with the independence idea, but I can’t help but wonder whether is positive for the criminal justice system as a whole. Just now, I think not.

Why Start Now…

…or why a perfectly innocent question from an Glasgow Lawyer made me think.


I’m coming to the end of my 3rd week of my Diploma at Glasgow University, having graduated with my LL.B here in July.  A more natural point to start a blog would have been 3 weeks ago. I could have – possibly should have – started writing this blog during my undergraduate degree…but I didn’t.

Why not?
Time, I think, is an issue. Contrary to popular opinion, being a student is hard work – even more so a law student. Throw in my studying abroad (yet another potential blogging-entry-point missed) and the fear drilled into you about the exacting requirements of your ever looming dissertation, blogging seems an unnecessary burden on your time.

Over and above that, there is the constant worry that  you might say something you really shouldn’t. My first day of Law School included the standard “Be careful on-line” warning, and it struck with me. I don’t have a particularly short temper, nor would I make a claim I didn’t think I could prove. I do sometimes struggle to find the right word and so use a less than appropriate alternative (e.g I recently told my friend she was “loose”, when I was looking for the word “rascally”), which might be taken the wrong way by someone who didn’t know about my unfortunate vocabularial lacuna. The constant warnings from my mum that what’s on-line is on-line forever, didn’t help matters. She has a good point, and the media like to remind us or the perils of teenagers (and not so teenage-ers) being too keen to share what they really shouldn’t.
But, I have a twitter that I use a lot. I don’t hide my political stances and can’t imagine doing so. Even during the Independence Referendum (or #IndyRef) I was pretty forward about the fact that I was voting, supporting and campaigning for No. I get into debates, chats and jokes with others – so how would that be different to blogging? I write short political and legal (but not personal) pieces every now and then…so why not blog?

Why Start Now?
Simply, you can thank lawyer Brian Inkster for getting me to start. Preparing a Lecture, he asked for blogs written by Law students, and after saying I wrote as part of a bigger site, he asked me a simple question “What is stopping you creating your own site?” I gave him the answer above: too much work, too risky, public image. For the first time, I didn’t feel that was good enough. I have the time to do it now; I know the rules of the game; and (as I’m sure I’ll be told in Mr. Inkster’s lecture next week) it can improve your reputation when done right.
So, I’ve decided to try it out and see if it suits me, or if my outbursts are best contained in 140-character chunks. If my previous tweets are anything to go by, this will turn out to be  40% Law; 40% Politics; 10% Law AND Politics; and most of the rest Doctor Who. I do aim, though, to be at least a little bit interesting and thoughtful.

So let’s see if I can manage that…