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Justice still on the Menu for Cafe Owner even in the dark days of war
2nd June 2010
Simon Di Rollo QC writes on the ability of the legal system to give a fair hearing even at a time of national emergency.
On 10 June 1940, with France on the brink of defeat and with rather shoddy timing, Mussolini declared war on the British Empire. For the Scots – Italian community it was a dark time. The response of H.M. Government – influenced partly by recent experiences of fifth columnists in Norway and the Low Countries and partly whipped up by the popular press - was a command by Churchill to “Collar the lot!” In due course this meant that males who had been born in Italy (enemy aliens) would be interned and their families required to reside at least twenty miles from urban areas. Those born in Scotland were also liable to be locked up at the whim of the Home Secretary under the Defence (General) Regulations 1939 which provided that “if he had reasonable cause to believe any person to be of hostile associations...he may make an order against that person directing that he be detained”. The House of Lords later held that there could be no judicial review of the reasonableness of any belief on the part of the Secretary of State. Tragically, many of those taken into custody were to perish on 2 July 1940 while being transported to Canada when the S.S. Arandora Star was torpedoed by a German U-boat.
In hindsight this official response was rather pointless. In the Scots – Italian community, loyalties were familial or at most regional rather than national. The unification of Italy was within living memory. To most, Italy remained a geographical expression rather than a national cause. The only danger they posed to the indigenous population came from the saturated fats to be found in the fish and chips, ice cream and confectionary sold in the cafes and shops throughout the land.
Before the official response could be put into effect there was a more immediate threat to the Scots- Italian community. On the night of Mussolini’s declaration there were violent attacks against some cafes and shops. Such public disorder was brief, relatively isolated and no doubt criminally motivated. Be that as it may, the law reports disclose that cafe proprietors in Leith, Renfrew and Greenock woke up to smashed windows, damaged or destroyed machinery and stolen or ruined goods.
One such proprietor was Alberto Pasquale Pompa . His cafe (now “Vittoria’s”) at Brunswick Street, Leith was badly damaged. He consulted his lawyers who sought compensation under section 10 of the Riotous Assemblies (Scotland) Act 1822) for the loss caused by the rioters. The clear right to recover was subject to a strict time limit – the claim had to be brought within one calendar month of the riot. Regrettably, the lawyers followed usual practice in claims against the City and brought the claim against “The Lord Provost, Magistrates and Councillors of the City and Royal Burgh of Edinburgh”. A closer reading of the section would have revealed that the action required to be taken against the Town Clerk. The error was spotted, but only after the action was raised and the time limit had expired. The Sheriff refused to allow an amendment to substitute the Town Clerk for the Magistrates. The case was appealed to the Inner House. Fortunately for Mr. Pompa, his appeal came before Lord Justice Clerk Cooper. In a judgement that sets out the principles for changes to pleadings after time limits have expired he permitted Mr Pompa’s action to be continued against the Town Clerk reasoning that the right defender – in effect the City of Edinburgh – had been convened all along and it was permissible to allow amendment so that the action could proceed against the correct representative of that defender. The dicta in his masterly opinion has been referred to and followed on countless occasions ever since.
It is interesting to note that the decision in Mr Pompa’s case was issued on 18 November 1941 - before Pearl Harbour and before the turn of the tide. It is reassuring that, although not without blemish, the legal system in general seems to have functioned during a period of genuine national emergency. Seventy years later, Mr Pompa’s successor could perhaps also pray in aid Article 1 of Protocol 1 of the European Convention on Human Rights (Protection of Property) although he could just as easily still rely on section 10 of the 1822 Act as it remains in force. It must be doubtful whether his counter-part in Fascist Italy, Nazi Germany or for that matter Stalinist Russia would have succeeded.
SIMON DI ROLLO QC
(This Article appeared in the Law Section of the Scotsman newspaper on 31st May 2010.)
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