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NOTES ON GRAEME NAPIER’S DECISION
It is a normal requirement when the court’s jurisdiction is challenged for the person bringing the case to prove the court’s jurisdiction. To expect the defendant to prove why that is not the case before he has heard the pursuer’s argument is ludicrous. Mr. Napier, in spite of my protests, insisted that I should lead. One of his first actions was to send me to the police cells when I refused to enter the dock. Such a reaction was unjustified when he had not yet heard any proof of his jurisdiction. It was also contrary to Section 204 of the Civil Procedure
(Scotland) Act 1995.
According to Lord Diplock, speaking in the House of Lords:
- "The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there
being no usurpation by any other person of the function of the court to decide it according to law. Conduct which is calculated to prejudice any of these requirements or to undermine public confidence that they will be observed is contempt of court" (My emphasis). (Lord Diplock in Att-Gen v. Times Newspapers Ltd. [1974] A.C. 273, HL).
Notes:
- 1. My argument covers the legal position. At the time of the pawning, all rights emanated from the land. I am concerned with what actually happened, not what Mr. Napier would have liked to happen.
- 2. The only land in Shetland is Udal land. For a feudal title to be granted, a charter must come from the Crown. The Crown can only grant what it actually owns and it has never owned land in Shetland. All feudal charters in Shetland are invalid because the Crown has never had ownership. The concept of ‘feudalisation’, so beloved of historians, is a nonsense in legal terms.
- 3. The description of a ‘crackpot theory’ is made by a non-legal expert and is not backed by any facts or evidence. It is of no legal significance.
- 4. “Scots courts having held sway in Scotland for over 500 years”. Presumably he means Shetland.
- 5. An unwarranted personal remark by Mr. Napier.
- 6. Mr. Napier indulges in irrelevant supposition.
- 7. This is the document on which the Crown relies for its whole case. This is the only evidence offered to show that Shetland is part of Scotland. The rest of the Crown’s argument rests on this supposition. The document itself is inadmissible as evidence, having been written by a historian with no legal expertise or qualification. It does not even pretend to be conclusive, as its subtitle ‘A contribution to the debate’ reveals.
- 8. My argument contains a complete rebuttal of the document, but Mr. Napier makes a weak attempt to dismiss a single point in an attempt to discredit the whole.
- 9. Unless Shetland is part of Scotland, the development of Scots law is a matter of supreme indifference to Shetland and yet Mr. Napier accepts this as valid part of the Crown’s argument.
- 10. If it did not form part of the Crown’s argument, Mr. Napier is acting ultra vires - beyond his powers - in introducing evidence of his own.
- 11. Once again Mr. Napier introduces his own evidence to bolster the Crown’s case. He is practising law from the bench.
- 12. Yet again Mr. Napier introduces his own evidence. My research has been on subjects relevant to the question of when and how Shetland allegedly became part of Scotland. In that context the development of custom in Scotland is irrelevant. Instead of quoting irrelevant passages from the Stair Encyclopaedia, he would do better to stick to some of the many passages that have some bearing on the matter in hand. Paragraph 316, for instance shows the degree of doubt about what is supposed to be an established fact:
“The juridical basis of the Crown’s claim to ownership of the seabed remains unclear. Does it lie in the Crown’s right of feudal superior, or does it vest in an attribute of sovereignty unrelated to feudalism? Given that, as discussed earlier, it has been judicially accepted that the Crown was never the feudal superior of Orkney and Shetland, the question must be of considerable importance there, as it would be impossible to argue consistently that the Crown should enjoy in the Northern Isles these patrimonial rights which arise out of its position in Scotland as feudal superior.”
13. Again, Mr. Napier is uncritical in his acceptance of the Crown’s argument. He does not make it clear how Scottish statutes can have effect if Shetland is not part of Scotland. The Crown’s point is irrelevant.
- 14. The Crown has offered no proof that Shetland is part of Scotland. In the absence of such proof, the court can have no jurisdiction. Mr. Napier makes a baseless claim.
- 15. International agreements based on a presumption that Shetland is part of Scotland carry no weight.
- 16. I do not concede this point at all – see previous note.
- 17. Yet again, Mr. Napier produces his own evidence.
- 18. Since, until now we have only had the word of historians to go by, romantic delusion is what Mr. Napier relies upon in making this statement. We are now looking at matters of fact and solid proof, neither of which feature in the Crown’s evidence.
- 19. No matter how many people accept the position, it does not bring legitimacy to an illegal situation. Something cannot be built on nothing. Without giving any reason, Mr. Napier asserts there is “no substance to my contention”. Any reasonable reader will apply that description to the Crown’s argument rather than mine.
- 20. I have shown that the Norse udal law remained in use for a considerable time after the pawning. At no time was there any valid mechanism to change to Scottish law. The authorities he quotes rebut his assertion that Scottish courts have held sway ‘since the late 15th century’:
In Lord Advocate v. Balfour: Lord Johnson states: “nothing has occurred since 1468 which amounts to a general acceptance in Orkney (or Shetland) of the Scots Feudal System” (my parenthesis). This in 1907 accepts that Scottish law has no place in Shetland.
Shetland Salmon Farmers Case: Decided on feudal principles not applicable in Shetland.
Lord Advocate v. University of Aberdeen: Described as ‘legal imperialism’ by David Sellars (Stair Encyclopaedia of The Laws of Scotland, para 320, p.232).
Smith v. Lerwick Harbour: “I consider that the udal tenure, with its incidents, prevails over the whole of Shetland, except where it is displaced by arrangement with the Crown” I am not aware of anywhere in Shetland where such an arrangement has been made.
All of the authorities Mr. Napier quotes indicate admission by the courts that Scottish law does not apply in Shetland. Once the Shetland courts were displaced by Scottish incomers, and faced with the choice of Scottish courts or no courts, the Shetland people took the only viable option and used what was available to them.
- 21. There is nothing whatsoever in the quote from The Shetland Report that constitutes a legal argument, only the usual presumptions.
- 22. Mr. Napier gives absolutely no authority for his assertion.
- 23. It is fundamental in Scottish and other law that the party bringing the case must show that the court has jurisdiction. However, at the jurisdiction hearing I was required, against my protests, to present my argument first. Mr. Napier, by giving exhaustive attention to the detail of one particular authority, evades the need to justify his action.
- 24. It may be safe to say that ‘the matter seems to be settled in international law’. It only ‘seems to be settled’ if you are unaware of the facts I have presented.
- 25. The population of Shetland has been so thoroughly beaten into submission over the centuries that it has been unable, through dread of the consequences, to disagree with the forces of the incoming Scots. According to Vattel, this is a reason for not accepting the doctrine of prescription, or long and unchallenged occupation.
- 26. Ironic that Mr. Napier chooses to quote one of the most graphic accounts of the oppression of the Shetland people. Even the men he refers to were soon brought back into line.
- 27. In the Udal system, all power came from the land, so it is natural that I should consider the question in those terms, rather than from an idealised theoretical viewpoint, or a historian’s subjective interpretation. The job of the court is to hear the facts and make a decision on the basis of those facts.
It not being politically possible for him to admit otherwise, Mr. Napier was obliged to step outside the law by introducing his own evidence to bolster the Crown’s weak argument and to find all possible ways to dismiss the facts and evidence supporting the challenge to jurisdiction.
He heard absolutely no proof or evidence that Shetland is part of Scotland and yet was brazen enough to claim he had jurisdiction.
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