Reviews of Agency (Macgregor); Breach of the Peace (Ferguson)

The Law of Agency in Scotland

Laura J Macgregor


ISBN: 9780414018051

PRICE: £90

The law of agency is not one of the best understood parts of Scots law, yet there are few parts of the commercial world which do not have some of its strands present. Quite rightly, the author begins with a fairly detailed examination of the roots of the modern law. Deriving from Roman law – the concept of mandate – as it did, the law of agency developed very differently under Scots and English law. As with many differences, this had at its base the fact that English law fails to recognise unilateral obligations with an absence of a consideration. Why I know not, but this small root variation has led to the growth of two very different trees.

The main body of the text is divided into two parts: the internal perspective of agency and the external. There is a chapter devoted to the important EU Commercial Agents Regulations. Interestingly, these give no protection to an agent acting for an undisclosed principal. Perhaps it is time the Scottish Law Commission addressed this murky world. In a time where transparency and openness are buzzwords, is there still a place for such a concept? Posing the question why a principal would choose to act in such a way, Ms Macgregor gives the example of a buyer of raw materials who fears that knowledge of his involvement would lead to a price inflation, or who fears that the seller would not otherwise wish to deal with him. Beware a solicitor who acts in that way – serious consequences await, following a recent Law Society of Scotland decision. Put very simply, this area of the law is inconsistent.

In a sense this is to be expected, as most of the cases stem from contract, another legal bouillabaisse. When decisions hang in the balance it is sometimes impossible to resist the notion that the side of the bed from which the judge rose may be an influencing factor. The schools of thought vary between “That is what the parties said and they must have meant it, no matter how ridiculous the outcome”, and “A theme that runs through our law of contract is that the reasonable expectations of honest men must be protected.”

Many of the principles of Scots law which were dinned into me as an undergraduate were sound and well taught. The same cannot be said of the law of agency, perhaps because of the many inconsistencies examined by the author. What is very clear is that she has produced a book of considerable substance. A table of cases running to 22 pages is a tribute to the scholarship which has gone into it. The clear logical format and very detailed index add to its qualities. This is very fine piece of work.

Breach of the Peace

Pamela Ferguson


ISBN: 9781845861490

PRICE: £35.00

Baron Hume considered a breach of the peace to be less than mobbing and rioting but tending to disturb and alarm the neighbourhood: Commentaries on Crimes (1844 ed), i, 439. Benjamin Bell, who revised Hume’s work down to 1844, added, in the Supplemental Notes at p 111, some contemporary cases. These were disturbing a religious ceremony, and the separate case of using threatening language after taking one’s clothes off in a public place, and also that of assembling in large numbers together “for some illegal purpose to the great terror and alarm of the lieges”: HM Advocate v Duncan (1843) 1 Broun 512.

Michael Christie’s study of 1990 set out the then current view of the crime of breach of the peace, and Professor Pamela Ferguson has reviewed subsequent literature and 200 or so additional cases. Moreover, there are now the new added influences of human rights law, the draft Criminal Code, fair labelling and the Naked Rambler. The professor has given full attention to all these factors, which have undoubtedly affected the prosecutorial and judicial approach in some way. There is extensive reference to Scottish parliamentary papers, case law and unreported cases via BBC reports available on the internet.

This book is a very full statement of the law on the crime of breach of the peace that will not be bettered for a long time, and few others will try. As is often the way, however, publication was followed quite quickly by another interesting case: McGuiness v Brown [2013] HCJAC 82. That prosecution may have been regarded by the Crown as a minimalist breach of the peace, but the appellate judges thought it was not even that. The libel was that the accused "approached X causing her to lock herself in a motor vehicle and place her is a state of fear and alarm".

One commentator thought the decision of the Crown to prosecute was based on their misunderstanding the earlier authorities. This, he opined on the basis of his unspecified "recent experience", was not an aberration and prosecutions are often raised inappropriately: “Breach of the Peace” 2013 SCL 651-652. It is certainly true that the libel reads more as an example of bad behaviour rather than criminal actions. However, it is surely not utterly irrelevant that the Crown on appeal referred (para 8) to an earlier assault by the appellant on the complainer. The error of the Crown may have lain in the drafting rather than in the decision to prosecute.

The work by the professor for this modestly priced book will assist anyone with an interest in the crime of breach of the peace. The study is a sustained analysis and, it should be said, is not an uncritical one, and it will be interesting to see what if anything will be made of the professorial comment on the definition adopted by the Crown before a Scottish Parliament committee (pp 113-114). In the meantime, in a society in which a few people are simply unpleasant in attitude and behaviour, it might be worth restating the old rule that not all bad behaviour is necessarily criminal behaviour.

The Author
Tom Johnston, Young & Partners LLP, Dunfermline and Glasgow                                       Dr Robert S Shiels
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