Ian Hamilton QC

By Ian Hamilton

Fergus Ewing thinks his anti-prostitute law has done away with prostitution. But has it? I could take him for a drive round Edinburgh and prove its total failure. The trouble is we might be arrested for kerb-crawling. At eighty-three I could plead my lack of hormones. Fergus might not be so lucky.

Having cleaned our cities of paid sex Fergus and the Government now turn their eye to a greater evil. They are out to get Peeping Toms. Fergus wants the last hope of small boys for practical tuition to be made a crime. Those found guilty get five years inside and their name on the Sex Offenders Register. Soon it will be as long as the voters roll.

In case you think I’m joking here is a report from the Scotsman of the deliberations of the Purity Committee of our Puritan Government.

The committee went into detail over the behaviour of Peeping Toms and flashers including considering making it an offence to bore holes in walls for voyeuristic purposes.”

Banish a thought of Faslane! Think not of the curse of drugs! Forget the knife crime rife in our cities! Breathe not the word ‘ INDEPENDENCE ‘! Fergus has his eye on higher things. He has his eye on a hole in the wall.
 
Make no mistake he is a government minister on government business, dirty-minded government business. Away from the hole in the wall they have sent him striding through the sexual woods looking for things to forbid. He is the man for the job. They make him do it even if it makes his pubic hair curl in distaste. He was educated at that sink of pubertal rectitude Loretto School. A Loretto boy tempted by sexual fantasy takes a cold bath. It’s better than baptism but it doesn’t work. Better to learn by DIY like the rest of us. Fergus has put down so many amendments to the Sexual Offences (Scotland) Bill that I have lost count. They are government amendments. They are all on the web. I think they amount to 89. None of this legislation is necessary. It was all covered by common law. Here are some examples.

Fergus is an expert on Surgical Constructed Genitals:-

(In section 1, page 1, line 19, leave out <an artificial> and insert <a surgically constructed>)

The mind boggles. Tell us more, Fergus.

Then there is Voyeurism.

Voyeurism
(1) A person (“A”) commits an offence, to be known as the offence of voyeurism, if A does
any of the things mentioned in subsections (2) to (5).
(2) The first thing is that A—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents,
for a purpose mentioned in subsection (6) observes B doing a private act.
(3) The second thing is that A—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents,
operates equipment with the intention of enabling A or another person (“C”), for a
purpose mentioned in subsection (7), to observe B doing a private act.
(4) The third thing is that A—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents,
records B doing a private act with the intention that A or another person (“C”), for a
purpose mentioned in subsection (7), will look at an image of B doing the act.
(5) The fourth thing is that A—
(a) installs equipment, or
(b) constructs or adapts a structure or part of a structure with the intention of enabling
A or another person to do an act referred to in subsection (2), (3) or (4).
(6) The purposes referred to in subsection (2) are—
(a) obtaining sexual gratification,
(b) humiliating, distressing or alarming B.
(7) The purposes referred to in subsections (3) and (4) are—
(a) obtaining sexual gratification (whether for A or C),
(b) humiliating, distressing or alarming B.>

Fergus Ewing
22 After section 7, insert—
<Interpretation of section (Voyeurism)
(1) For the purposes of section (Voyeurism), a person is doing a private act if the person is
in a place which in the circumstances would reasonably be expected to provide privacy,
and—
(a) the person’s genitals, buttocks or breasts are exposed or covered only with
Underwear.

As if we didn’t know! Why does he think we ran away?

This Bill makes a fool of Fergus and the Government. It is full of ‘new offences’ which have been known since time began. It doesn’t stop with ‘Voyeurism ‘. In the case of rape does Fergus think he can do better on a definition of ‘penetration’ than the wisdom of the ages? His definition is not for a family blog like this. The common law never attempted to define everything that could happen between a man and a woman and was all the stronger for the omission.

I take issue with the comprehensive nature of this Bill. It contains more of a moral code than a criminal one and the law is not there to enforce anyone’s moral code, not even the Government’s whom Fergus represents.

It might save a lot of legislative time if Fiona Hyslop were to promulgate a Sex Education for Government Ministers (Scotland) Bill.

It would at least give them something wholesome to think about.

But think of the scope it would give Fergus to put forward government amendments. 

No. Better not. Leave the kiddies to their play. 

Footnote

This article is not to be read as an attack on Fergus Ewing or on his encyclopaedic knowledge of all things sexual and forbidden. Rather is it a reminder that the SNP is a revolutionary party. Its aim is the break up of the United Kingdom. This is something that England can’t afford, doesn’t want and will do everything to stop.

There is an easier way. That is to go along with England, to go along with devolution, to make the best of things and to occupy ourselves with passing needless little laws to keep the Parliament occupied. The Sexual Offences Act is a needless little law.

Mercifully Alex Salmond, Nicola Sturgeon, Alex Neil and a whole lot of other ministers have never forgotten the revolutionary roots of our party.

I have written the above piece for the others. Lest they forget. They are the John Baliols of our party and of our government.

John Baliol was known as the empty shirt. If the shirt fits, Fergus. Don’t wear it.

Take it off.

These words below are obtuse. Put simply this Act of the Scottish Parliament introduced FREE LEGAL AID into the law of Scotland.

FIVE HUNDRED AND EIGHTY-FOUR YEARS ON WHAT HAVE WE LEFT?

Also touching the bills of complaint which may be determined by the parliament for various causes belonging to the common profit of the realm, it is ordained that the bills of complaint be executed and  determined by judges and officers of the country to whom they pertain by law,either justice,chamberlain, baillies or burghs or sheriffs, or spiritual judges if it pertains to them. To which judges, all and sundry, the king shall straightly give command, and commands them as much within regalities as outside them, under all pain and charge that may follow after, that they do full law and justice both to poor and to rich, without fraud or favour. And if there is any poor creature who, for lack of cunning or expenses, is not of power or cannot follow his cause , the king, for the love of God, shall ordain that the judge  before whom the cause shall be determined purvey and cause a loyal and wise man to be employed to be an advocate for such folk, to follow such a loyal, true poor creature’s cause. And if such causes be obtained, the wrongdoer shall  make reparation both to the harmed party and of the costs of the advocate and the labour. And if the judge refuses to do the law evenly, as is said before, the party making the plea shall have resource to the king, who shall so rigorously punish such judges that it shall be an example to all the other judges.
 

All we have in 2009 is the small claims court. Only in it can any poor creature for lack of cunning or expenses bring Sir Fred Goodwin to account.

FOR THE LOVE OF GOD AND FOR SCOTLAND’S TRADITION OF EQUALITY WILL NO ONE RAISE A SMALL CLAIMS ACTION AGAINST SIR FRED GOODWIN?

READ ON.

Sheriff Pender said my case should go to the Ordinary Court. There the costs are the size of Goliath. It left me without my sling. I had nothing to hurl my pebble with. I had to withdraw.

I have only withdrawn a little way. 

I have been talking to legal friends. They think Sheriff Pender was wrong. They think the public interest is so great that the case should be kept in the Small Claims Court. There the costs cannot exceed £200. In that court all are equal.

The weapon against Goliath lies to hand. It is a small pebble. The pebble’s name is a small claims action.

Go to your sheriff court. Pay £60. The sheriff clerk is bound by law to show you how to fill in the form. He will give you a booklet. I give further instructions below. It is the DIY court.

When that pebble is thrown Sir Fred Goodwin and the Royal Bank of Scotland will have to come into court to explain. They will have to explain how they lost the poor people’s money.

The small claims court is the only battlefield.

YOU against GOLIATH

DAVID against GOLIATH

REMEMBER WHO WON THAT FIGHT.

I and many others have been disappointed at the Sheriff’s decision not to allow Ian’s case against RBS to be heard in the small claims court.
 
I am forced to wonder why RBS didn’t just send a suitable representative, perhaps a member of their board, to take the stand and unequivocally say that they were solvent at the time of the rights issue.
 
Instead they fell back on the technical argument that the case was too complex to be heard in the small claims court knowing that Ian could not proceed in any other.
 
Of course it is a complicated matter to run any business as large as RBS but the directors and senior executives have a duty to sift and weigh that complexity at least to the extent of knowing at any given time whether they are solvent or not.
 
I have some sympathy with the Sheriff. He stepped into a spotlight I am sure he would have wished to avoid. Precedent was cited by the RBS lawyer and no doubt he weighed that. Was that situation truly analogous with this one?
 
But the law must not proceed by precedent alone otherwise we had better sack all the sheriffs and lawyers, for any household computer could sift the law libraries for precedent more efficiently than any person. The law must evolve in human and not merely technical terms and match our changing experience and I am led to believe that the current banking crisis is unprecedented.
 
He must have been concerned, this sheriff, for the implications of any decision he took. If he had ruled his court competent to hear the case there may well have been a proliferation of such cases. Worse still Ian may have won his case and established a precedent. This may have cost the taxpayer who now own most of RBS the full £12 billion raised although presumably only a proportion of this was raised in the UK.
 
In weighing these considerations I wonder if his mind dwelt even briefly on justice. I wonder if he thought for a moment of all these small shareholders who had lost their life savings. I wonder if he imagined the consequences for a world where the heads of big business can act without regard for their shareholders or customers or their effect on the economy or the environment.
 
Perhaps he thought it is not the place of the courts to intervene in this commercial crisis. Perhaps he thought this is best left to government, but government as we know has stood by and let this happen. It worries me when courts allow justice to take second place to commerce. It worries me when big businesses are so big that they are beyond the control of individual governments. It worries me when our systems cannot evolve quickly enough to keep pace with the rate of change.
 
In coming to the decision he did Sheriff Pender has diminished our faith in our system of Government and of Law. Any system of Government that cannot stand the scrutiny of the ordinary man fails us all. Any system that cannot evolve as a result of this interaction becomes a tottering edifice.
 
Justice as the central pillar of any State must not only be done but it must be seen to be done. Exactly what this means varies from State to State for there are subtle but deep rooted cultural differences in our values. High minded internationalist notions of harmonisation of legislation and regulation will be a very long time coming. In the meantime we must put our own house in order.
 
If mechanisms do not exist whereby ordinary people can interact with the system and help this process then we lose one of the most important of the checks and balances within our system. If effective justice is not available locally then we deprive ourselves of the ability to put our house in order. Houses which are not kept in good order soon fall down.
Mike MacKenzie is prospective Westminster SNP candidate for the next election.

Christine Graham MSP, an SNP backbencher has also raised the matter. I append a paragraph from the Sunday Times of 8th March. This action has been taken only because of pressure by an SNP back bencher. Are we the only people who care about this terrible tragedy which has left so many ordinary people in destitution?

“The Financial Services Authority is also investigating a series of allegations that RBS was less than transparent in raising money from investors. Following a complaint from Christine Grahame, the nationalist MSP, police have called in the regulatory body to examine whether RBS misled prospective shareholders about the health of the bank when it issued two share offers last year. Information provided with the offers indicated the bank was solvent when it was heading for collapse. If the watchdog finds the bank acted inappropriately, the government would have a stronger legal case to take back some of Goodwin’s pension.”
 

The Financial Services Authority is the body set up by Gordon Brown to see that banks deal squarely with their customers.

Am I being cynical in observing that they are being asked to investigate if they have done their own job properly?
 

Ten days ago judgement was given against me in Oban small claims court by Sheriff Pender. I have no quarrel with Sheriff Pender. That was his thoughtful view. He may be wrong.

HIS JUDGEMENT IS NOT BINDING ON ANY OTHER SHERIFF.

THERE ARE OVER FIFTY SHERIFF COURTS IN SCOTLAND.

In most of them there are several sheriffs. Another sheriff may take the view that the matter is of such public importance that the case should go ahead and evidence be led. THERE IS NO APPEAL AGAINST SUCH A DECISION. The bank’s directors would then have to come to court to explain their actions.

If you lost money in the rights issue go to the sheriff court. The sheriff clerk will give you guidance on the procedure. It costs £60 to raise the action. You fill in a form. The sheriff clerk then notifies the defender. The defender is bound to answer or admit liability. The bank won’t admit liability.

Raise it against The Royal Bank of Scotland (Group) plc giving the address of the local branch of the bank near the sheriff court you choose.

In Edinburgh you may wish to raise it against Sir Frederick Goodwin. A telephone call to a national newspaper will give you his address.

On the form provided give the reason for your action. This is simply that they (he) were negligent in preparing the prospectus for the share rights issue in April 2008 in that they did not take into account the losses they acquired along with AMB AMRO. Say also that as a result of relying on their statements you acquired x shares and have lost £x. Keep this to £2000 or under. Even if you lose your case the most you can be made to pay is £200.

This is a simple procedure. It is designed for DIY. If you want a solicitor he will only charge you a hundred or two pounds.

The sheriff clerk will tell you when to go to court.

At court simply read the words from your claim and ask for a proof. If a proof is allowed you will have plenty of helpers. 

Outside the small claims court the banks are more powerful than the government. Inside it all are equal. Gordon Brown has said he is angry with the Royal Bank of Scotland’s directors. Gordon Brown has done nothing.

You can.

Folks will say this is David against Goliath. Remember who won that fight.
 
Good government falters only when we falter. Sir Frederick gets away with his £700,000 a year. Let him have it. He can still be called to account for how he ran a great bank into the ground. Out of his £700,000 a year and the rest of his millions he can make some personal restitution to those small people he has let down. He can be bankrupted. One successful small debt claim is all that is needed. The rest will follow. 

Sir Frederick has apologised. Sir Tom McKillop has apologised. Saying sorry is not enough.

What I have said about the RBS applies also to HBOS.

Do not be afraid. If they could have silenced me they would have done so.

If they cannot silence me they cannot silence you.

I accuse Sir Frederick Goodwin. I accuse Sir Tom McKillop. I accuse the non-executive directors. I accuse them of negligently bringing down a great bank.

I accuse.

I accuse.

I accuse.