Thursday, July 31, 2008


It is with enormous pleasure that I take this opportunity to congratulate our colleague and LRS member Ian Taggart on having his publication cited in a House of Lords decision (Doherty (Fc) and Others V Birmingham City Council, [2008] UKHL 57, at para. 31).
The decision concerns Gypsies/ Travellers and their rights under Article 8 European Convention on Human Rights.
Ian's Article 'One Scotland Many Cultures?' was published in the SCOLAG Legal Journal, March 2008, pp. 66/ 67. It is part of his extensive research into Travellers' rights in Scotland. His previous survey 'Moving on - again?', compiled in summer 2007 as part of his thesis, is available on the Aberdeenshire Council website. Ian's research related to the Council's community planning processes.

Very well done, Ian!

PS: Subsequent to our blog entry, the Scottish Legal News also reported the citation of Ian's SCOLAG article. For their news item, please click here.

Tuesday, July 29, 2008

Feminism and Murder

Today's edition of The Times leads with an interesting piece about criminal defences in murder trials. It is being proposed that the partial defence of provocation should be reframed by repealing the defence of sudden passion and introducing a partial defence for defendants who have been victimised.

In a 2004 report the Law Commission framed the issue as follows:

We think that the defence as it presently operates is in some respects too broad and in other respects too narrow. We think that it is too broad in that it can apply to conduct by the victim which is blameless or trivial. It is too narrow in that it provides no defence to a person who is subjected to serious actual or threatened violence, who acts in genuine fear for his or her safety (but not under sudden and immediate loss of self-control) and who is not entitled to the full defence of selfdefence (either because the danger is insufficiently imminent or their response is judged to have been excessive). We are satisfied from consultees’ responses that this is a real and not merely an academic problem, particularly in cases of defendants who have been victims of long-term abuse.

Harriet Harman, Labour Deputy Leader and the Minister for Women, frames the issue rather more starkly in terms of feminist discourse. She observes that the traditional defences allow men to be partially excused for all manner of domestic gripes:
We want to abolish the culture of excuses that allows a man who has killed his wife to say, ‘I killed her but it’s not my fault because she was having an affair or she provoked me in some way, by nagging or whatever’.
In contrast, women who are subjected to domestic abuse and commit homicide after a 'slow burn' cannot presently avail themselves of the partial defence of provocation.

Judging from some of the comments on The Times' piece, it seems like some men believe that the law will go a step too far and reverse the situation in favour of women. One reader asks 'So, a man using physical violence is a defense, but a woman using physcological abuse no longer is?' Quite frankly, I think that he misses the point - the proposed reform will distinguish between situations where one's life and limb are constantly under threat, and situations where one merely feels morally wronged. Nevertheless, it seems like Ms Harman has her work cut out if she is to convince some people with feminist arguments.

Friday, July 18, 2008

Smoking in the Internal Market

This blog has gone through a rather lengthy hiatus, for which we apologise to the dedicated handful that check back regularly. Unfortunately our contributors’ busy schedules have not allowed regular blogging. That being said, a slightly contradictory statement from the EU’s Tax Commissioner inspired a quick break from my work.

The Commission has proposed an increase in excise duty on cigarettes in order to reflect inflation and combat consumption (more on the story at the EUObserver), as commendable an initiative as any. The Commissioner stated that "Substantial differences in tax and price levels of tobacco products lead to considerable cross-border shopping and intra-community smuggling...These differences undermined the budgetary and health objectives of the Member States and resulted in a distortion of the functioning of the Internal Market".

The contradiction, small as it is, lies in the Commissioner’s reference to the ‘functioning of the internal market’. Certainly tax competition does distort a level playing field; the spectacle of German, French and Belgian smokers pouring into Luxembourg to stock up is notorious. However, it seems that the goal of equivalent taxation is not the establishment of an internal market in which competition is not distorted, but the attainment of equivalence that will discourage cross-border shopping for tobacco products. With the proposed duty of at least 63%, it seems that there would be little room for significant cross-border retail competition, thus making the internal market largely irrelevant. As such, the Commission’s proposal seems to have little to do with efficient competition and everything to do with fiscal and health policies.