252 / 736
1,000
fullt-ime persons. At present
the
two
Societies collaborate informally in a most valuable
way. Is some more formal link, some sharing of
the burden of, for instance, the Public Relations
work, desirable?
A simple change easily effected would be the
appointment by the Secretary of State for Scot
land of two significant laymen to the Disciplinary
Committee. No possible harm could come from
such appointments and the public's faith in the
discipline of the profession would be restored.
No paper on
the Future of
the Profession
would be complete without some discussion of the
relationship of Scots and English Law. This may
become more of a political
issue. There is no
doubt that to have a separate legal system without
a separate legislature has proved ineffective. Pos
sibly Scotland will one day have its own legislative
assembly, in which case Scots Law may remain
alive and flourish. Without such a separate legis
lature it seems that the more important statutes
will be United Kingdom ones, such as the Com
panies Acts, Finance Acts, and thus most of the
modern Law will be common to both countries.
It is a difficult period in history to forecast the
trend of relations between Scotland and England,
but the writer's mind is clear that the benefits of
scale which we have referred to earlier in this
paper apply just as much to the administration of
Law on a U.K. basis as they do to the adminis
tration of Legal Partnerships within a city or a
major town.
A paper on the Future of the Profession must
be controversial. No one will agree with everything
that is written in this paper. Certain lawyers will
agree with nothing in it. The writer doesn't agree
with everything in
it. But it is written as the
basis for a discussion and it may help to point to
some of the trends which are going to affect all
who practise the Law in Scotland. To be aware of
the trends is important, but to adapt practice in
anticipation of the trends is more important. That
the profession should accept
the challenge of
change and vigorously adapt itself for the future
would surely of
itself encourage some greater
degree of public confidence
in
the Law and
lawyers.
This article
is printed by kind permission of
the author and the Law Society of Scotland.
CRIMINAL JUSTICE BILL 1967
The following memorandum has been
sub
mitted to the Council by a sub-committee of the
Council appointed to consider the provisions of
the Criminal Justice Bill 1967. The members of
the sub-committee are Gerald F. Goldberg, Rory
O'Connor and Bruce St. J. Blake.
Termination of Distinction between Felony and
Misdemeanour
The Criminal Justice Bill (Section 5) proposes
to terminate all distinctions between Felony and
Misdemeanour.
The Memorandum, which accompanied
the
Bill, notes that some of the distinctions between
felonies and misdemeanours arose from the For
feiture Act, 1870 which included forfeiture of
"any pension or superannuation allowance pay
able from public funds to which" a person con
victed was entitled. Nevertheless, the principle of
a consequential forfeiture, as a deterrent, is writ
ten
(Section
54—Disqualification
for Grants)
into the Bill and, in certain cases (Section 57
persons "eligible for or in receipt of a pension,
superannuation allowance, lump sum or gratuity
payable out of Public monies") who are con
victed of an offence which involved fraud or dis
honesty and resulted in
loss of Public monies
"may, at the discretion of the appropriate autho
rity suffer deduction, not exceeding the loss of
the Public monies involved". The Bill seems to
recognise the conflict between the well-intentioned
effect of Section 5 and the retrograde consequent
"disqualification" clauses of Section 54 and 57
by giving a discretion to the Court, in the first
instance and to "the appropriate authority" in
the other. The Court may suspend the application
o Section 54 if the Defendant enters into recog
nisances as to his future behaviour and, also, by
excluding from the purview of the Section certain
clearly defined payments under the Health Acts,
Mental Treatment Acts, Public Assistance, Pen
sions for Services, Monies payable for education
or vocational training. We recognise the right of
An Dail to create new offences; but on the ques
tion of punishment we do not accept the prin
ciple that, in addition to its being deterrent and
reformative it should, also, be retributive. We,
therefore, regard all Sections of the Bill which
seek, by way of retribution, to add to any other
penalties which the Court may impose, as being
contrary to the principles of modern penology and
as being likely to bring about grave injustices
against individuals and, indeed, to impose an im
possible task on Judges.
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There can be no objection to the provisions of
108