Dorothy Bain QC

Brown (Appellant) v Scottish Ministers & Others 2016 CSIH 59 (Judicial Review & Human Rights Law)

Senior Counsel for the appellant in an application for Judicial Review before the UK Supreme Court ( June 2017, awaiting judgment) concerning whether the implied ancillary duty in Article 5 ECHR to facilitate rehabilitation and release applies to recalled extended sentence prisoners.

Holman Fenwick Willan LLP & Duff & Phelps Ltd –v- HMA 2017 HCJAC 38 (Criminal Law and Human Rights Law)

Senior Counsel for the London based international law firm of HFW and their clients Duff & Phelps in which a successful legal challenge, based on both the common law and the ECHR, was brought to the grant and enforcement of a search warrant at HFW’s London offices relative to the criminal inquiry surrounding the takeover of Rangers FC. The Court of Criminal Appeal suspended the search warrant on the grounds of oppression and at a subsequent hearing awarded expenses relative to the procedure and the appointment of commissioners against the Crown. The success of this application was material to the subsequent and related rulings in the Administrative Court in London.

WF v Scottish Ministers 2016 SLT 359 (Judicial Review and Human Rights Law)

Senior Counsel for the petitioner complainer (WF) in criminal proceedings in which a successful petition for judicial review was granted reducing a decision of the Scottish Ministers to refuse her application for legal aid to be represented at a hearing of a petition of the accused for recovery of her medical records. The court held that a haver and any person whose ECHR art.8 rights might be infringed by an order for recovery of medical records and other sensitive documents had to have the application for recovery intimated to them and had to be given the opportunity to be heard in opposition to the application. This decision resulted in a change in the practice of the criminal courts in Scotland and the introduction of new legislation relative to the grant of legal aid.

HMA v SMM Glasgow High Court, Lord Burns 30 March 2017 (Criminal law & Media law)

Senior Counsel for an individual accused of serious and violent crime where the High Court granted anonymity orders and made directions in terms of the Contempt of Court Act 1981, which prevented any publication of the circumstances of the offence or the accused’s identity.

Equality & Human Rights Commission v Forrest (Unreported – Inverness Sh Ct 2017) (Equality Law)

Senior Counsel for the Equality & Human Rights Commission in the first interdict proceedings raised in Scotland against the owner of a B & B guesthouse advertising their services in contravention of the Equality Act 2010.

Stewart, Convy, McQuade & Sweeney v Payne & Clarke 2017 SLT 159 (Criminal Law)

Leading Senior Counsel for the bereaved families in which they sought authority from the Court of Criminal Appeal to proceed with private prosecutions against two blackout drivers.

Robertson v Council of the Law Society of Scotland 2016 SLT 103 (Professional Regulatory)

Senior Counsel for the appellant in his successful appeal to the Inner House of the Court of Session to reduce the restriction of his practising certificate and the penalties imposed on him following a disciplinary hearing before the Council of the Law Society of Scotland.

Fatal Accident Inquiry, Glasgow Sheriff Court 2014 
Senior Counsel for the bereaved families in the Fatal Accident Inquiry into the deaths of the young Glasgow accountancy students, Laura Stewart and Mhairi Convy, where their deaths were caused by a blackout driver who had a long medical history of such and failed to disclose his condition to the DVLA.

Fatal Accident Inquiry, Glasgow Sheriff Court 2015
Senior Counsel for the bereaved family of Jacqueline Morton in the high profile and complex Fatal Accident Inquiry that became known as the “Bin Lorry Inquiry”.

Fatal Accident Inquiry, Glasgow Sheriff Court 2017 (Awaiting determination)
Senior Counsel for the bereaved family of Ciaran Williamson who died in a fatal accident at Craigton Cemetery, Glasgow.

2016

O’Neil v UK ECHR Application No 14541/15 July 2016 (Human Rights Law)

Senior Counsel for the UK in relation to the application before the ECHR relative to the “second aspect” of Article 6(2) of the ECHR.

WF v Scottish Ministers Court of Session [2016] CSOH 27; 2016 S.L.T. 359; 2016 S.C.L.R. 694; 2016 G.W.D. 6-123 (Judicial Review & Human Rights Law)

Senior Counsel for the petitioner complainer (WF) in criminal proceedings in which a successful petition for judicial review was granted reducing a decision of the Scottish Ministers to refuse her application for legal aid to be represented at a hearing of a petition of the accused for recovery of her medical records.

Robertson v Council of the Law Society of Scotland 2016 SLT 103 (Professional Regulatory)

Senior Counsel for the appellant in his successful appeal to the Inner House of the Court of Session to reduce the restriction of his practising certificate and the penalties imposed on him following a disciplinary hearing before the Council of the Law Society of Scotland.

2015

Reid v Scottish Ministers [2015] CSOH 84; 2015 G.W.D. 21-357 (Judicial Review & Human Rights Law)

Senior Counsel for the petitioner in a Judicial review concerning prisoners, prisoners’ rights and rehabilitation.

Brown v Parole Board for Scotland Court of Session [2015] CSIH 59; 2016 S.C. 19; 2015 S.L.T. 568 (Judicial Review & Human Rights Law)

Senior Counsel for the petitioner in a Judicial Review relating to recalled extended sentence prisoners.

2014

McNeil v Easton 2014 CSOH (Unreported) Lord Bannatyne (Personal Injury)

Senior Counsel for the pursuer, a professional singer was severely burned in a house fire in which the Court awarded substantial damages for severely disfiguring injuries and loss of professional earnings.

Smith v Greater Glasgow Health Board 2014 SLT 137 (Personal Injury)

Senior Counsel for the pursuer where Lord Jones upheld a successful argument relative to the rules of civil procedure governing Chapter 43 procedure.

Lauchlan v HMA 2014 HCJAC 22 (Criminal and Human Rights Law)

Senior Counsel for the Crown successfully opposing an appeal based on the use of expert evidence and the use of evidence relating to extra territorial criminal actions by the accused.

Duncan v The Scottish Ministers 2014 SLT 531 (Judicial Review & Human Rights Law)

Senior Counsel for the petitioner in the first successful challenge in the United Kingdom to the manner in which the dentition of a prisoner was managed by the Government. The court held that the Government had breached the prisoner’s rights under Article 5 of the ECHR. The Scottish Ministers subsequently abandoned their appeal and made payment of damages to the petitioner.

O’Neil v UK ECHR Application No 41516/10 , Judgment 28/6/2016, ECHR 226 (2016) ( Human Rights Law)

Senior Counsel for the UK in relation to appeal to the ECHR relative to delay in trial and appeal procedure.

2013

McGee & Ors v RJK Building Services 2013 CSOH 10 (Personal Injury)

Senior Counsel for the family of the late Peter McGee. The first judicial award made in a fatal case following on the appeal decision in Hamilton v Ferguson Transport (Spean Bridge) Ltd. The pursuers won this case and succeeded in receiving awards significantly higher than previous single judge decisions. This decision has substantially increased the levels of awards now being paid by insurers in settlement of fatal cases.

Donald v Ayrshire & Arran Health Board & Ors 2013 CSOH 23 (Clinical Negligence)

Senior Counsel for the GP Practice, relating to a failure by the GP to detect symptoms of pulmonary embolism.

Tortolano v Ogilvie [2013] CSIH 10 (Personal Injury)

Senior Counsel for the pursuer in this catastrophic injury case, the pursuer reclaimed against the Lord Ordinary’s refusal to permit averments relative to the appropriate rate of return on investment, in the course of the pursuer’s action of damages against his employers. The excluded averments were directed towards establishing facts which demonstrated that the appropriate rate ought to be below that prescribed by the Scottish Ministers having regard to the true return on current investment.

David Hynds v David Reekie & Sons Ltd [2013] CSOH 92 (Personal Injury)

Senior Counsel for the pursuer where the court made a substantial award of damages; the pursuer had sustained an unusual low velocity high torque crushing injury to his upper body and trunk and post-traumatic stress disorder following an accident in the workplace.

HMA v McCrossan 2013 SCL 820 (Criminal Law & Human Rights Law) Senior Counsel for the Crown, successfully opposing a defence challenge to the compatibility of the new Legal Aid Regulations under the European Convention of Human Rights.

2012

Lauchlan v HMA [2012] HCJAC 20, Lauchlan & O’Neill v HMA [2013] UKSC 36, [2013] HRLR 25 (Human Rights Law)

Leading Senior Counsel for the Crown in the Court of Criminal Appeal and in the appeal before the Supreme Court of the United Kingdom in relation to issues of delay and apparent bias.

Hannigan v Lanarkshire Acute Hospitals NHS 2012 CSOH 152 (Clinical Negligence)

Senior Counsel for the pursuer in this clinical negligence case relating to the surgical course adopted by a consultant gynaecologist, supervising a registrar in gynaecology, during a total abdominal hysterectomy.

Toal (Sean) v HMA 2012 HCJAC 123 ( Criminal Law)

Senior Counsel for the Crown in a high profile and complex murder appeal.

2011

Shahid (Imran) v HMA 2011 HCJAC 37; 2012 SCL 5; GWD 28-614 (Criminal Law)

Crown Counsel for the Crown in the high profile and complex fresh evidence appeal against a conviction for abduction and murder of the Glasgow teenager Kriss Donald.

Parracho (Paulo) v HMA [2011] HCJAC ; 2011 SLT 600 (Criminal Law) Crown Counsel in this five bench murder conviction appeal.

HMA v Ineta Dzinguviene 2011 Livingston High Court, Temp Judge Beckett

Crown Counsel in the successful prosecution of the accused for the murder of her new born infant; crucial to the proof the Crown case was the leading of complex expert medical and forensic evidence.

2010

HMA v Weir Group, December (Regulatory Crime)

Senior Counsel for the Crown in which, after extensive direction and preparation of this complex and high profile case, Weir plead guilty to breaching orders imposing sanctions on Iraq. At sentence, Weir were fined £3 million and agreed to pay a record confiscation order of £14 million. The prosecution was described as a landmark prosecution and was the first time the Proceeds of Crime Legislation had been used to punish a company for operations overseas.

HMA v Lauchlan [2010] SLT 1198 , Lauchlan v HMA 2010 SCCR 347, HMA v Lauchlan [2010] HCJ 3, O’Neill v HMA [2009] HCJAC 90 2010 SCCR 357 (Criminal Law) Senior Counsel for the Crown in the murder trial of convicted paedophiles Lauchlan & O’Nell for the murder of Allison McGarrigle 13 years after she disappeared and in circumstances where her body has never been recovered (High Court before Lord Pentland). The pre-trial procedure raised extensive novel and complex legal issues.

2009

HMA v Neil Strachan, James Rennie & 6 others, 2009[2010] HCJAC 70, [2010] HCJAC 69, [2011] HCJAC 3, 2011 S.C.L 347 (Criminal Law)

Senior Counsel for the Crown in this nine week trial which resulted in the successful prosecution of the largest ring of paedophiles in the UK being convicted of more than fifty charges, ranging from abusing infants from three months old to conspiracy to abuse children, and holding more than 125,000 images of children being sexually abused and subjected to degrading acts. This was the first time that conspiracy charges had been used in the field of the prosecution of child sexual abuse. The case relied almost exclusively on the leading of expert evidence including detailed evidence relating to the forensic analysis of computers, psychological and medical evidence and, for the first time in the UK, the leading of expert evidence from American specialists in relation to the digital fingerprinting of digital images and cameras.

HMA v Christopher Miller 2009 Glasgow High Court, Temporary Judge Beckett (Criminal Law) The successful prosecution of Christopher Miller for the racially aggravated murder of an Indian Naval Officer, Kunal Mohanty. The case attracted significant publicity nationally and internationally due to the unprovoked and brutal nature of the attack.

HMA v Munro & Sons (Highland) Ltd 2009 SCCR 26 ( Regulatory Crime) Senior Counsel for the Crown in the first case taken by the Crown on appeal before the Court of Appeal to challenge the levels of fine imposed on corporate entities where they were found in breach of Health & Safety legislation.

2008

Touati (Alexander) v HMA 2008 SLT 241 (Criminal Law)

Senior Counsel for the Crown in a murder appeal against conviction in a complex and high profile murder case.

Balmer v HMA 2008 SCCR 763 (Regulatory Crime)

Senior Counsel for the Crown when the Court of Appeal first considered the competency of prosecuting a dissolved partnership for breach of Health & Safety legislation.

2007

HMA v Peter Tobin (Criminal Law)

Counsel for the Crown in relation to the murder of Polish Student Angelika Kluk. This was the first trial in Scotland of Peter Tobin, now one of Scotland’s most renowned serial killers. Tobin was convicted unanimously after a lengthy and complex trial at the High Court in Edinburgh before Lord Menzies.

HMA v Giovanni Mola 2007 SCCR (Criminal Law & Media Law) Counsel for the Crown in the first successful prosecution in Scotland for culpable and reckless conduct which resulted in the accused infecting the complainer with both the HIV and Hepatitis C viruses; the case is significant because it was the first time a court in Scotland pronounced orders under Section 11 of the Contempt of Court Act 1982 for an unlimited period of time.

McGovern v HMA 2007 SCCR 765 (Criminal Law & Regulatory Crime) Counsel for the Crown before the Court of Criminal Appeal, the first time the Court of Appeal considered what amounted to special circumstances and minimum sentences in relation to the Firearm Legislation.