David Brand, Lord Brand
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David William Robert Brand, Lord Brand (21 October 1923 – 14 April 1996) was a British lawyer and judge. He had a conservative outlook on life, and as a judge he had a reputation for both speedy decisions and severe sentences. His university education was interrupted by service in the
British Army The British Army is the principal Army, land warfare force of the United Kingdom. the British Army comprises 73,847 regular full-time personnel, 4,127 Brigade of Gurkhas, Gurkhas, 25,742 Army Reserve (United Kingdom), volunteer reserve perso ...
during
World War II World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
. He then became an advocate, and after a career as a prosecutor, he was a
sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland, the , which is common ...
in southern Scotland from 1968 to 1970. He was Solicitor-General for Scotland from 1970 to 1972, and then served from 1972 to 1989 as a
Senator of the College of Justice The senators of the College of Justice in Scotland are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court ...
. In 1994, he was briefly an appellate judge in
Botswana Botswana, officially the Republic of Botswana, is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory part of the Kalahari Desert. It is bordered by South Africa to the sou ...
.


Early life

Brand was born in
Edinburgh Edinburgh is the capital city of Scotland and one of its 32 Council areas of Scotland, council areas. The city is located in southeast Scotland and is bounded to the north by the Firth of Forth and to the south by the Pentland Hills. Edinburgh ...
on 21 October 1923, to a
Catholic The Catholic Church (), also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.27 to 1.41 billion baptized Catholics Catholic Church by country, worldwid ...
family from
Aberdeenshire Aberdeenshire (; ) is one of the 32 Subdivisions of Scotland#council areas of Scotland, council areas of Scotland. It takes its name from the Shires of Scotland, historic county of Aberdeenshire (historic), Aberdeenshire, which had substantial ...
. His father was a
sheriff-substitute In the Courts of Scotland, sheriff-substitute was the historical name for the judges who sit in the local sheriff courts under the direction of the sheriffs principal; from 1971 the sheriffs substitute were renamed simply as sheriff. When researc ...
and
writer to the Signet The Society of Writers to His Majesty's Signet is a private society of Scottish solicitors, dating back to 1594 and part of the College of Justice. Writers to the Signet originally had special privileges in relation to the drawing up of documen ...
, who became Sheriff of Dumfries and Galloway and moved the family to
Dumfries Dumfries ( ; ; from ) is a market town and former royal burgh in Dumfries and Galloway, Scotland, near the mouth of the River Nith on the Solway Firth, from the Anglo-Scottish border. Dumfries is the county town of the Counties of Scotland, ...
, where Brand was raised. His father died when he was nine years old, but with financial assistance from an uncle he was educated at
Stonyhurst College Stonyhurst College or Stonyhurst is a co-educational Catholic Public school (United Kingdom), public school providing education for boarding school, boarding and day school, day pupils, adhering to the Society of Jesus, Jesuit tradition. It is ...
near Clitheroe in
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, before entering the
University of Edinburgh The University of Edinburgh (, ; abbreviated as ''Edin.'' in Post-nominal letters, post-nominals) is a Public university, public research university based in Edinburgh, Scotland. Founded by the City of Edinburgh Council, town council under th ...
aged 16.


World War II

In 1942, Brand interrupted his studies to join the army. He was commissioned into the 11th battalion of the
Argyll and Sutherland Highlanders The Argyll and Sutherland Highlanders (Princess Louise's) is a light infantry company (military unit), company (designated as Balaklava Company, 5th Battalion, Royal Regiment of Scotland) and was a line infantry regiment of the British Army tha ...
, and in 1944 volunteered for transfer to the
King's African Rifles The King's African Rifles (KAR) was a British Colonial Auxiliary Forces regiment raised from Britain's East African colonies in 1902. It primarily carried out internal security duties within these colonies along with military service elsewher ...
. He fought with his regiment in the
Burma Campaign The Burma campaign was a series of battles fought in the British colony of British rule in Burma, Burma as part of the South-East Asian theatre of World War II. It primarily involved forces of the Allies of World War II, Allies (mainly from ...
, ending the war with the rank of
captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader or highest rank officer of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police depa ...
. Long after the war, a former sergeant in the Argylls said of the young officer: "See, yon Brand. He was a very brave lad. Mind you he was clumsy too. Ought to have got an MC." Brand's experiences in Burma were a formative influence on his approach to criminal justice. Later in life, he told his then Member of Parliament (MP)
Tam Dalyell Sir Thomas Dalyell, 11th Baronet ( ; 9 August 1932 – 26 January 2017), known as Tam Dalyell, was a Scottish politician who served as Member of Parliament (MP) for Linlithgow (formerly West Lothian) from 1962 to 2005. A member of the Labour ...
how:


Career

After the war, Brand finished his studies at the University of Edinburgh. Encouraged by Sir Ernest Wedderburn, a solicitor and former Law Professor at Edinburgh who had befriended him after his father's death, Brand was admitted as an advocate in 1948.


Prosecutor and Sheriff

In 1951 Brand became Junior Counsel to the
Scottish Education Department The Scottish Government Education Directorates were a group of the civil service The civil service is a collective term for a sector of government composed mainly of career civil service personnel hired rather than elected, whose institutional t ...
. Two years later, in 1953, he was appointed as an
advocate depute The Crown Office and Procurator Fiscal Service () is the independent public prosecutor, prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Charles III of the United Kingd ...
(i.e. a junior prosecutor) in the
sheriff court A sheriff court () is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to , and with the jurisdiction to hear any criminal case except treason, murder, and ra ...
s. In 1955, he took on the same role in the
Circuit Court Circuit courts are court systems in several common law jurisdictions. It may refer to: * Courts that literally sit 'on circuit', i.e., judges move around a region or country to different towns or cities where they will hear cases; * Courts that s ...
in Glasgow. In his memoirs, Brand reflected on the role of the advocate-depute: Brand
took silk A King's Counsel ( post-nominal initials KC) is a senior lawyer appointed by the monarch (or their viceregal representative) of some Commonwealth realms as a "Counsel learned in the law". When the reigning monarch is a woman, the title is Qu ...
in 1959, aged 36. From 1959 to 1970 he served as chairman of the Medical Appeal Tribunal, where his humane approach contrasted with his severity in criminal matters. He was promoted to Senior Advocate-Depute in 1964, and to his first judicial post in 1968, as Sheriff of Dumfries and Galloway – an office previously held by his father. In 1970, he added the post of Sheriff of Roxburgh, Berwick and Selkirk. He described his years as a
sheriff principal In Scotland a sheriff principal (''pl''. sheriffs principal) () is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the ...
as the most enjoyable of his career.


Solicitor General for Scotland

After only two years as a sheriff, Brand was appointed in June 1970 as
Solicitor General for Scotland His Majesty's Solicitor General for Scotland () is one of the Law Officers of the Crown, and the deputy of the Lord Advocate, whose duty is to advise the Scottish Government on Scots Law. They are also responsible for the Crown Office and P ...
in the newly elected
Conservative Conservatism is a cultural, social, and political philosophy and ideology that seeks to promote and preserve traditional institutions, customs, and values. The central tenets of conservatism may vary in relation to the culture and civiliza ...
government of
Edward Heath Sir Edward Richard George Heath (9 July 1916 – 17 July 2005) was a British politician who served as Prime Minister of the United Kingdom from 1970 to 1974 and Leader of the Conservative Party (UK), Leader of the Conservative Party from 1965 ...
. The successors to his two shrievalties were appointed in July. Both men – Peter Maxwell in Dumfries and Henry Keith in Roxburgh – later became Senators of the College of Justice. The more senior Scottish law officer,
Lord Advocate His Majesty's Advocate, known as the Lord Advocate (), is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolution, devolved powers of the Scottish P ...
Norman Wylie, was an MP, so they divided their duties accordingly. Wylie did most of the London-based work, while Brand stayed in Edinburgh to run the Crown Office. Brand led some high-profile prosecutions, such as the trial of Donald Forbes for a murder committed after his release from imprisonment for a previous murder. He also led the evidence at the
fatal accident inquiries A fatal accident inquiry (FAI) is a Scottish judicial process which investigates and determines the circumstances of some deaths occurring in Scotland. Until 2009, they did not apply to any deaths occurring in other jurisdictions, when the Corone ...
into three disasters which occurred in 1971: the Ibrox disaster, the
Clarkston explosion The Clarkston explosion was a disaster that occurred on 21 October 1971 in a row of shops on the main street of Clarkston, East Renfrewshire, Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kin ...
, and the death in a blizzard on Cairn Gorm of five school pupils and an instructor.


Court of Session

In November 1972, Brand was as appointed as a
Senator of the College of Justice The senators of the College of Justice in Scotland are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court ...
, replacing Lord Mackenzie Stuart who had been appointed to the
European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...
. He was installed in office on 9 November, with the judicial title Lord Brand. At a ceremony in the
Court of Session The Court of Session is the highest national court of Scotland in relation to Civil law (common law), civil cases. The court was established in 1532 to take on the judicial functions of the royal council. Its jurisdiction overlapped with othe ...
attended by 16 judges, the
oath of allegiance An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to a monarch or a country. In modern republics, oaths are sworn to the country in general, or to the country's constitution. For ...
was administered by Lord Emslie. In criminal cases, Brand admired the English judge Lord Devlin and the Scottish judge Lord Carmont. In 1992, he credited Carmont's imposition of severe sentences on members of the 1930s Glasgow razor gangs for ending the gangs' violence. Brand himself earned a reputation for harsh sentencing. Tam Dalyell described him as "the latter-day
Judge Jeffreys George Jeffreys, 1st Baron Jeffreys (15 May 1645 – 18 April 1689), also known as "the Hanging Judge", was a Welsh judge. He became notable during the reign of King James II, rising to the position of Lord Chancellor (and serving as L ...
of the Scottish legal system", after George Jeffreys, the notorious 17th-century
hanging judge "Hanging judge" is a colloquial phrase for a judge who has gained notoriety for handing down punishment by sentencing convicted persons to death by hanging, or otherwise imposing unusually harsh sentences. Hanging judges are officers of the court w ...
. The appellate judge Lord Stott referred to "another of Brand's victims"., cited in Brand's obituary in ''
The Times ''The Times'' is a British Newspaper#Daily, daily Newspaper#National, national newspaper based in London. It began in 1785 under the title ''The Daily Universal Register'', adopting its modern name on 1 January 1788. ''The Times'' and its si ...
''
However, after the passage of the Community Service by Offenders (Scotland) Act 1978 Brand was the first High Court judge in Scotland to impose a community service order instead of a prison sentence. Promoted to the
Inner House The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is th ...
in 1984, Brand worked under the Lord President Lord Emslie. He admired Emslie so much that he later wrote that he had never dissented from any of Emslie's judgments, and never "had cause to do so". Brand's judgments with Emslie included a March 1989 ruling in the
Scottish Court of Criminal Appeal The High Court of Justiciary () is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff C ...
case of ''S. v. H.M. Advocate'', a crucial test case on
marital rape Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and doesn't always involve physical violence. Marital rape is considered a form of dome ...
. Brand and Emslie, sitting with Lord Allanbridge upheld a High Court ruling by Lord Mayfield that a man should stand trial for the alleged rape of his wife. They acknowledged that Hale's 17th-century view that a "husband cannot be guilty of a rape committed by himself upon his lawful wife" persisted in England, but noted that
David Hume David Hume (; born David Home; – 25 August 1776) was a Scottish philosopher, historian, economist, and essayist who was best known for his highly influential system of empiricism, philosophical scepticism and metaphysical naturalism. Beg ...
's assertion of the principle in his 1797 work ''Commentaries on the Laws of Scotland respecting crimes'' appeared to have been borrowed from Hale. They doubted that it had ever formed parts of
Scots Law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
, and ruled that if it had ever been a part, it no longer applied. The marital rape exemption in English law was abolished two years later, in the 1991
Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
judgment on ''R. v. R''. In October of that year, sitting with
Lord Justice General Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
Lord Hope and
Lord Ross The title of Lord Ross was a Lordship of Parliament in the Peerage of Scotland. It was created in 1499 for Sir John Ross, of Halkhead. The second Lord died at the Battle of Flodden. The 12th Lord was appointed Lord Lieutenant of Renfrew in 17 ...
, he heard an appeal against Lord McCluskey's postponement of sentencing of a convicted rapist to hear the views of the victim. The judge overturned McCluskey's decision, ruling that it would be "invidious ... to expose the complainer to any risk of public pressure by passing any comment on matters that lie outside her expertise". More prosaically, in the May 1992 case of ''Commissioners of Customs and Excise v United Biscuits (UK) Ltd''
992 Year 992 ( CMXCII) was a leap year starting on Friday of the Julian calendar. Events By place Worldwide * Winter – A superflare from the sun causes an Aurora Borealis, with visibility as far south as Germany and Korea. Euro ...
STC 325
Brand with Lord Murray and Lord Allanbridge zero-rated the
Value-Added Tax A value-added tax (VAT or goods and services tax (GST), general consumption tax (GCT)) is a consumption tax that is levied on the value added at each stage of a product's production and distribution. VAT is similar to, and is often compared wi ...
(VAT) on
biscuits A biscuit is a Flour, flour-based baked food item. Biscuits are typically hard, flat, and Unleavened bread, unleavened. They are usually sweet and may be made with sugar, chocolate, icing (food), icing, jam, ginger, or cinnamon. They can also ...
supplied in a
tin box A tin box is a tinplate container. Tinplate metal is primarily steel with a very thin tin coating. Tin-free steel is also used. In some cultures, these boxes or cans are referred to as "tin boxes" or sometimes even "tins". Many “tin boxes” ...
. The judges ruled that the tin was not an incidental part of the sale; rather, it was integral to the biscuits as it was a container in which they were packaged.


Retirement

Brand retired from the Court in 1989, aged 66, but worked intermittently as a temporary judge until shortly before his death. In 1994 he was appointed as a judge of the
Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
in Botswana, due to his knowledge of the relevant languages. However, the intense heat led him to resign from the court after one session. On 15 February 1996, ''
The Times ''The Times'' is a British Newspaper#Daily, daily Newspaper#National, national newspaper based in London. It began in 1785 under the title ''The Daily Universal Register'', adopting its modern name on 1 January 1788. ''The Times'' and its si ...
'' of London published a brief letter from Brand opposing
Scottish devolution Scottish devolution is the process of the UK Parliament granting powers (excluding powers over reserved matters) to the devolved Scottish Parliament. Prior to the advent of devolution, some had argued for a Scottish Parliament within the United ...
. His reason was that "One Ulster is enough". His memoir ''An Advocate's Tale'' was published in 1996.


Personal life

In 1948, Brand married Josephine Devlin. They had four daughters. Josephine died in 1968. In 1969, Brand married again to Veronica (Vera) Lynch (née Russell), a widow who had been a bridesmaid at his first wedding.


Death

Brand died in
North Berwick North Berwick (; ) is a seaside resort, seaside town and former royal burgh in East Lothian, Scotland. It is situated on the south shore of the Firth of Forth, approximately east-northeast of Edinburgh. North Berwick became a fashionable holi ...
on 14 April 1996, leaving his widow Vera, 4 daughters and five grandchildren. Vera died on 4 December 2013.


Works

*


References

{{DEFAULTSORT:Brand, David 1923 births 1996 deaths Scottish people of Irish descent People educated at Stonyhurst College British Army personnel of World War II Argyll and Sutherland Highlanders officers King's African Rifles officers Alumni of the University of Edinburgh Members of the Faculty of Advocates Scottish sheriffs Scottish King's Counsel 20th-century King's Counsel Solicitors general for Scotland Senators of the College of Justice People from Dumfries British judges on the courts of Botswana British expatriates in Botswana Lawyers from Edinburgh Scottish Roman Catholics