Talk:Lawburrows

A fact from Lawburrows appeared on Wikipedia's Main Page in the Did you know column on 17 October 2005. The text of the entry was as follows:

Did you know... that in Scots law the civil action known as lawburrows—in use since 1429 and intended to prevent violence—is a simple, bond-based alternative to interdicts or court orders?

A record of the entry may be seen at Wikipedia:Recent additions/2005/October.

Wikipedia

Untitled

The author of this page is NOT a qualified lawyer. Edits are very welcome indeed. Lawburrows falls between, or, rather, spans Scots civil and criminal law. It is rarely used, probably because people usually run to the police with their problems and hence to the Procurator Fiscal and the criminal courts. Often the police are unable to pursue complaints because witnesses are unwilling to expose themselves to possible recrimination by the accused. Lawburrows gets round this for the reasons explained and should be more widely know and considered as a cheap and speedy alternative. There may be problems that have not been exposed here. fenton 19:38, 13 October 2005 (UTC)

For reference purpose, here's the old "conclusion" paragraph which I removed:

People in fear of violence from others known to them might well ask for legal advice on the value of lawburrows to deter such threats. The use of such an obscure act and the unusual nature of its penalties would ensure fairly wide publicity and lawburrows might again serve its purpose "...to prevent such delinquences and terrify evil doers..."

Several very important things missing from the article:

that conclusion ¶ above seems to suggest that Lawburrows is defunct or at least dormant today. If this is so, it should be stated explicitly along with an indication of the last time it was used.
Is there no expiry whatever? You can just put my money in perpetual limbo? Also, if you've brought one against me, can I bring a lawburrows action against you too?
Let's say a court grants me my lawburrows against you, and you put up the surety. Then I allege that you've broken the peace and let the procurator fiscal know. Is the ensuing action by the crown and me to claim the forfeit just like a regular suit for damages (except of course that the size of the penalty is predetermined)? Does the burden of proof remain with me (the plaintiff)?
Obviously, the article should not (as it does at present) assume good faith on the part of the persuer. Fairness and "due process" (to borrow a US term) objections on the part of the persued should be added to the article.
The direct quotations need to be explicitly sourced.

I hope all these points are helpful. Doops | talk 02:15, 17 October 2005 (UTC)[reply]

I have now made the changes and hope they ar OK. Meantime i await the account of a debate on this. Sorry I missed this valuable note until now. No - lawburrows is not defunct and you were correct to remove the paragraph that suggested that it might be. The Sheriff has absolute discretion to apply or not to apply, an expiry date. The defendant may appeal. The hypotheticals you instance - yes - each can bring an action and it's up to the Sheriff to make awards as he pleases, againt one or both. The whole action is a civil one and the Procurator is not involved. That applies to the claim to the bond too - this being argued in the civil court. If, in addition, damages are claimed or a criminal offence is alleged, these are separate actions and have nothing to do with lawburrows The 'due process' is as in any other civil action. I shall try to get exact refs to the quotes and find out how to quote Acts in wiki. Pressed for time at present. Thanks very much indeed for raising these important points - I hope I have answered them sufficiently? I have also removed 'advantages' as it might be seen as partial and unwiki or whatever. Once again thanks for your constructive crits. Fenton Robb 12:04, 20 October 2005 (UTC)[reply]

If the defender does any harm of the kind specified in the initial writ, the pursuer may (with the consent of the Procurator Fiscal) raise an action for "contravention of lawburrows" asking that the money, or bond, be forfeited and divided equally between the Crown and himself. It looks like the procuator is involved? Doops | talk 18:17, 20 October 2005 (UTC)[reply]

Not really - his consent is needed simply because he might like to initiate a criminal action before the the forfeit is executed. Its the pursuer who raises the (civil) action for contravention of lawburrows; the Procurator's remit is confined to criminal prosecutions and, having been alerted by the pursuer to the situation, might like to look at the possibility of bringing a criminal charge - perhaps for a breach of the peach etc. As I understand it, he may delay, but not stop, the lawburrows action. Of course I may well be wrong. I have come across another recent paper on the topc, but it has not come to hand yet. When it does, maybe this will be clarified. Please can we leave the text as it is until then? Thanks again. Fenton Robb 18:41, 20 October 2005 (UTC)[reply]

Sorry, I wasn't criticizing the text; I was just trying to explain why I had jumped to that conclusion. Now here's an important question: on average, how many persuits of lawburrows are made a year nowdays? Doops | talk 19:17, 20 October 2005 (UTC)[reply]

Good question - I asked Edinburgh Uni last week but they could not tell me. I am not in the legal loop but shall pursue this further next week. I was surprised to see lawburrows mentioned on a Communirty web site. Maybe people are thinking it a bit better than the awful ASBO The criminal courts are so underfunded that lawyers are talking of working to rule and slowing things down even further. Thank you for your interest and help. Fenton Robb 20:40, 20 October 2005 (UTC)[reply]

Thanks to Google I found the Sheriff Court statistics - In the four years 1999 - 2002 ther were 25 instances of actions for lawburrows. Curiously, seventeen were in 2001. I found these figures surprisingly large considering the narrow hurt, fear of violence, this remedy addresses. Of course we cannot compare these figures with any others because all the other remedies e.g. indictment etc. cover such a wide range of issues.

I note that several solicitors are now advertising that they offer advice on lawburrows.

When I have a moment I shall craft a line for the page. Changes now made - I hope to have more to contribute on this in a week or two Best wishes Fenton Robb 23:44, 20 October 2005 (UTC)[reply]

W J Stewart has been helpful in providing the paper now included in the references. Other minor changes have been made - deleting " ... " where specific references cannot be attributed with confidence. The assertions remain in order to retain the flavour of the account. Fenton Robb 22:27, 3 November 2005 (UTC)[reply]

Summary for clarity

One of the paragraphs specifically states how remarkable lawburrows is for its "simplicity", then follows up with a multi-paragraph, purple legal definition of the lawburrows procedure. I have tried several times to work out who pays what to whom and under what conditions but just end up in knots.

Can someone please do something?! I would write a summary myself but, as I say, I can't understand what the idea is supposed to be. How about a short numbered-list style explanation of a "typical" lawburrows procedure, omitting sub-clauses, exemptions and so on for the full explanation (that is, the condensed and full explanations should both be there). 88.107.116.205 08:15, 19 December 2005 (UTC)[reply]

I have tried to outline the idea as you requested. When I said 'simple' I meant that this is summsry and civil, with no jury and a low standard of proof, there is the certainty of a very early hearing, unlike most criminal actions, neither the police nor the Procurator Fical are involved, the public interest is no consideration and witnesses may not be required. No solicitors or advocates need be employed.

Please let me know if its not yet clear enough. Apologies for not responding to your note earlier.

Fenton Robb 22:21, 22 March 2006 (UTC)[reply]