Aberdeen Student Law Review With thanks to our sponsors Stronachs LLP July 2011 Volume 2 www.abdn.ac.uk/law/aslr THE EDITORIAL BOARD 2010 - 2011 Managing Editor Leanne Bain Editors Alice Cannon Ross Douglas Emma Fraser Stuart Lee Bruce Mangeon Fairweather Charlotte Taylor Ryan T. Whelan Jennifer White FOREWORD BY THE HON . LORD WOOLMAN SENATOR OF THE COLLEGE OF JUSTICE Has the ASLR already reached its second volume? I am delighted that the brio of those involved in launching the project has been sustained. That is evident from the table of contents for the new volume. The topics range across legal history, oil and gas law and the law of evidence. In my view, volume two confirms that the ASLR is continuing to make a significant contribution to legal learning in Scotland. Stephen Woolman July 2011 INTRODUCTION TO VOLUME TWO In 1987 Professor Erwin N Griswold, former Dean of Harvard Law School, gave an insight into the history of the Harvard Law Review, the oldest student-led law review in the world. He acknowledged: Some people are concerned that a major legal periodical in the United States is edited and managed by students. It is an unusual situation, but it started that way, and it developed mightily from its own strength.1 I firmly believe in the strength of the student law review, and it is this belief that has shaped the endeavours of the editorial team during the past year The second year of a professional publication can be as difficult as the first, and this year has certainly not been without challenge. My thanks must be extended to all those who have made this publication possible. In particular, I would like to thank Stronachs LLP for their generous sponsorship of volumes two and three of the review. I am delighted that they share my belief in the Aberdeen Student Law Review, its success thus far and its future potential. In the present economic climate it is hugely encouraging to have the assurance of financial support that will ensure the continuity of the review for both this year and next. In addition, the staff of the Aberdeen Law School must be thanked for all their assistance throughout the year. The administrative team in the law office were always happy to help, and Sarah Duncan provided invaluable advice. Thanks, as always, to our anonymous peer reviewers who were extremely obliging with their responses and helped inform many decisions. On a personal note I would like to thank Dominic Scullion, the review’s founder, for sharing his advice and experience in the light of many problems, and Ryan Whelan for all of his assistance, both professional and personal, in the run up to an impending deadline. Of course, this publication would never have been possible without the contributions of the editorial board; I thank them for their patience, their hard-work and their faith in the review. Finally, I am extremely grateful to Professor Margaret Ross for allowing us the opportunity to pursue this project, and being willing to support in every way possible. I am delighted to introduce you to the second edition of the Aberdeen Student Law Review. I hope you find it to be an interesting and enjoyable read. Leanne Bain Managing Editor July 2011 1 Griswold, ‘The Harvard Law Review - Glimpses of Its History as Seen by an Aficionado’, in Harvard Law Review: Centennial Album (1987). Contents Honorary Contributions Casus Omissus Inaugural Lecture with Gary Allan QC 11 Foreword by Professor Margaret Ross Articles Raising Lazarus: Why Spuilzie Should Be John Townsend 22 Resurrected Intestacy in Scotland: The Laughing Heir Kirsten L. Anderson 52 Analysis Evidentiary Barriers to Conviction in Cases Michael C. Wutz 76 of Domestic Violence: A Comparative Analysis of Scottish and German Criminal Procedure The Prince of Wales and The Duke of Cambridge: Dominic Scullion 99 A Constitutional Analysis The Oil and Gas Taxation Regime: A ‘Smash and Peter Ripley 110 Grab’ Approach? Case Comments Bocardo SA v Star Energy UK Onshore Ltd Calum Stacey 124 Professional Update Take Ownership: The Aberdeen Law Project 2011 Ryan T. Whelan 135 Book Reviews Nuclear Law: The Law Applying to Nuclear 139 Installations and Radioactive Substances in its Historic Context by Stephen Tromans QC Personality, Confidentiality and Privacy in 142 Scots Law by Elspeth Reid Guidelines for Contributors 145 Aberdeen Student Law Review Casus Omissus: The Aberdeen Law Project Inaugural Lecture Foreword This year it has been a privilege and delight to continue to support the work of the Aberdeen Law Project and to watch it develop under the leadership of Ryan Whelan and his team. In March 2011 we were very proud to host the first Annual General Meeting of the Project Board, and to view, through a full day of activities, the range of work being undertaken by the clinic in the presence of distinguished alumni who are members of the Board. The article that follows is the text of the inaugural lecture for the project given by Gary Allan QC. As well as being elegant and erudite, it provides excellent evidence of the importance of pro bono work and the support for the project that exists within our alumni and the legal professional community. Professor Margaret Ross Head of School of Law 11 Casus Omissus: Inaugural Lecture Casus Omissus: The Aberdeen Law Project Inaugural Lecture 07 March 2011 ∗ GARY ALLAN QC It is a truly wonderful honour and privilege for me to be given an opportunity to address you in the Casus Omissus Inaugural Lecture. The establishment of the Aberdeen Law Project is a success story, and in the present times there are precious few of those to enjoy. So let us not hold back in celebrating today. The project has taken the efforts of many to achieve its success but it is plain that the driving force behind it and the mainstay of its institution has been Ryan Whelan. I have little doubt that without his vision and energy and determination this project would have withered on the vine. In reality however, he has invested so much energy and enthusiasm that he has fired the imaginations of the most important people in any such venture- the students themselves. That he has, along the way persuaded others more established in the legal world to become involved is a testament to his powers of persuasion as well as his wisdom in creating a solid and experienced base from which to launch the Aberdeen Law Project's work. ~ Lawyers get a bad name. There is no doubt about it. It has always been that way. It is still the case. Indeed my own son, when he went to school for the first day with his friend Tom was acutely conscious of that. The teacher was going round the class asking each child what his father did for a living. Tom said his father was an accountant, but when my son was asked, Tom was astonished to hear him tell the teacher that his father played the piano in a house of sin. ‘But your father is a lawyer’ whispered Tom. ‘I know’ replied my son, ‘but how could I admit to something like that!!!’ The famous American General Ulysses S Grant was a very shabby dresser and of very unprepossessing appearance. One dark wintry night he arrived at a tavern in Galena, in the state of Illinois. The circuit court was in session in the town and a group of lawyers was huddled around the blazing fire. One of them noticed Grant ∗ Queen’s Counsel, Compass Chambers; Management Board, The Aberdeen Law Project; Alumnus, School of Law, University of Aberdeen. 12 Aberdeen Student Law Review and said jokingly, ‘Here's a stranger, gentlemen, and by the looks of him, I'd say he's travelled through hell to get here!’ ‘I have indeed’, replied Grant good naturedly. The other lawyers chuckled and the one who had spoken first said ‘And how did you find things down there?’ ‘Much the same as here’ replied Grant with a smile. ‘The Lawyers are all closest to the fire’. The earliest people who could be described as ‘lawyers’ were probably the orators of ancient Athens. However, Athenian orators faced serious structural difficulties. First, there was a rule that individuals were supposed to plead their own cases, which was soon circumvented by the increasing tendency of individuals to ask a ‘friend’ for assistance. Right from the start therefore, lawyers operated under a cloak of dishonesty and disingenuity. However, around the middle of the fourth century, the Athenians almost, but not completely disposed of the pretence. Second, a more serious obstacle, which the Athenian orators never completely overcame, was the rule that no one could take a fee to plead the cause of another person. This law was widely disregarded in practice, but was never actually abolished, which meant that orators could never present themselves officially as legal professionals or experts. They had to uphold the legal fiction that they were merely ordinary citizens generously helping out a friend for free, and thus they could never organise into a real profession—with professional associations and titles and all the other pomp and circumstance—like their modern counterparts. The whole business of being a lawyer and charging a fee created for lawyers a reputation for shady dealings and money grabbing which has haunted them ever since. If one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome. A law enacted in 204BC barred Roman advocates from taking fees for their efforts, but the law was widely ignored.