HER MAJESTY’S ADVOCATE against P.B. AND V.W. (http://www.scotcourts.gov.uk/opinions/2013HCJ71.html)

The accused was indicted on three charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 (”the 1971 Act”) and one of contravening section 5(2) of the same statute. The prosecution arose from a surveillance operation which took place on 18 November 2011, as a result of which the accused was detained and his vehicle was searched, purportedly under the provisions of section 23(2) of the 1971 Act. The accused lodged two minutes objecting to the admissibility of certain prosecution evidence.

The first minute was lodged in respect of an unlawful search by the police. The accused submits that it was unlawful, not having been authorised in terms of the Regulation of Investigatory Powers (Scotland) Act 2000. In the alternative, he challenges “the observations that the surveillance officer claims to have made and further submits that the observations could not amount to ‘reasonable grounds’ for his detention and search and the search of (his) vehicle in terms of section 23(2) of the Misuse of Drugs Act 1971″.

In the second minute, the accused narrates that police officers interviewed him three times, during the course of the police investigation. His challenge to the admissibility of certain statements which he made during these interviews is made as he was not given the opportunity to consult with a solicitor or, esto, that he had declined access to a solicitor but that the accused was not in a position to waive his right of access to a solicitor as he had not been properly informed of the legal and evidential consequences of doing so.

Detention and Search

On 18 November 2011 Strathclyde Police were carrying out an authorised court surveillance operation which led them to the now accused. The individual they had under surveillance drove to Glenrothes, spoke with the accused through the window of his van and returned to his vehicle before driving off. The officers believed that the individual which they had under surveillance transferred a package of drugs to the accused and the decision was taken to detain the accused under s. 23(2) of the 1971 Act.  In order not to compromise the integrity of the covert operation, local uniformed officers were to be instructed to affect the detention.

The opinion of Lord Hope in O’Hara v Chief Constable of the Royal Ulster Constabulary (”O’Hara“) 1997 AC 286 was applied: “the question whether (the information received by the constable) provided reasonable grounds for the suspicion depends on the source of his information and its context seen in the light of the whole surrounding circumstances”. Lord Jones held that the difficulty which the crown faces in this case is that, so far as the evidence disclosed, the source of the Fife constables’ information was unknown to them, as was its context. They had no knowledge of any of the surrounding circumstances. It was held, that the message passed to Sergeant Fleming and Constable MacGregor (the detaining officer) informed them only that someone suspected that there may be a controlled drug in the Ford Transit driven by the accused. It gave them no information as to any factual basis for that suspicion. It was no more than the expression of a conclusion which they themselves might have reached, if they had been given sufficient factual information.

Lord Jones found that the detaining officer had acted on no more than “suspicion by itself” and that they had no factual basis for that suspicion, because none had been reported to them. The accused’s detention was held to be unlawful and the evidence of finding diazepam in the Ford Transit van was inadmissible. Since the detention under s.23 of the 1971 Act was held to be inadmissible it followed that the subsequent detention under s.14 of the 1995 Act and search warrant which was applied for as a result of the accused’s initial detention were also unlawful.

It was noted that the reasons for holding that the detention and search were unlawful were entirely avoidable. If Sergeant Fleming was not given any factual information which might have justified her suspicion that there may well be a controlled drug in the Ford Transit van, that could and should have been done. The question for determination would then have been whether or not such factual information constituted reasonable grounds to suspect that the accused was in possession of a controlled drug. If she was given factual information, she could and should have been called to give evidence, in order that any grounds that she may have had were before the court.

Admissibility of the Interviews

Turning to the challenge to fairness of the interviews, the accused was interviewed on 18, 19 and 20 November 2011. The Solicitor Access Recording Form (SARF) was completed prior to the first interview and the accused confirmed that he did not wish to consult with a solicitor. Prior the second interview the accused was advised that the second interview was to summarise with the accused what was said during the first interview. A second SARF was completed prior to the third interview and the accused replied that he did wish to consult with a solicitor at 10:55hrs. However, at 11:45 hrs it was recorded that the accused waived his right to consult with a solicitor.

In evidence the accused testified that he waived his right to a solicitor only because he was concerned about his partner and he wished to have his interviews concluded as quickly as possible in the hope that that might speed his release and return to her. In relation to the third interview the accused chose to waive his right, after initially requesting a solicitor, because he did not wish to wait for his nominated solicitor to arrive and he had no confidence in the duty solicitor as he believed him to be appointed by the police.

Lord Jones held that the statement of the accused that he did not wish to exercise is right to consult with a solicitor was unequivocal. From the recording of this first interview it was clear that he understood what the right was and that he wished to waive it. Throughout the first interview, the accused appeared calm and relaxed and demonstrated no anxiety or desire “to get the interview over with”. Nor did the accused give any indication that the waiver of his right to consult with a solicitor was in order that he might exclude his wife from the enquiries as soon as possible. In these circumstances, it was not possible to accept that his waiver of the right to do so before the first interview was not voluntary, not informed or not unequivocal.

In respect of the third interview the accused’s reason for waiving his right was untenable, given that he had been told, in terms, that “any solicitor contacted will be independent of the police.” In respect of both interviews it was held that the accused waived his right to consult with a solicitor and that such waiver was voluntary, informed and unequivocal. Accordingly, the interviews were fair.

From summer 2013, fees will be introduced in the Employment Tribunals and the Employment Appeal Tribunal for the first time. A claimant or appellant will be required to pay an “issue fee” on submitting their claim or appeal, and a “hearing fee” before the full hearing. The government is working towards an implementation date of the end of July 2013.

There will be two levels of fee payable at each stage depending on the nature of the claim:-

• Level 1 fees, constituting an issue fee of £160 and a hearing fee of £230, will be payable for claims categorised as more straightforward, including unlawful deductions from wages and holiday pay;

• Level two fees, constituting an issue fee of £230 and a hearing fee of £950, will be payable for claims deemed to be more complex, including unfair dismissal, discrimination and whistleblowing complaints.

Higher fees are payable for multiple claims and a fee of £600 will also be payable for judicial medication services.

Claims submitted to the Employment Appeals Tribunal will attract an issue fee of £400 and a hearing fee of £1,200

The Partnerships (Prosecution) (Scotland) Bill [HL] 2012-13 (the “Bill“) passed its third reading in the House of Commons on 22 April 2013 and is currently waiting Royal Assent. This Bill gives effect to the recommendations made by the Scottish Law Commission’s Report on Criminal Liability of Partnerships. The impetus for this report was the High Court of Justiciary’s decision in Balmer v HM Advocate [2008] HCJAC 44.

Levy & McRae successfully challenged the indictment libelled against the Balmers, the former partners of the partnership which owned Rosepark Nursing Home, following the tragic fire at the Home in 2004. The Crown sought to prosecute the owners of the home for alleged breaches of Health and Safety legislation. The High Court dismissed the indictment as incompetent as the partnership which ran the Nursing Home had been dissolved. Therefore, there was no legal entity which could be prosecuted as a partnership in Scotland is a legal entity distinct from the partners (Partnership Act 1890, section 4(2)) which ceases to exist on dissolution.

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Levy & McRae Solicitors has been appointed by the Scottish Police Federation to represent its members throughout Scotland now the new single force, Police Scotland, has come into effect.

Having represented Scottish Police Federation members in Strathclyde for the last 20 years, Levy & McRae will now expand its service to provide assistance to more than 18,500 police officers across the country.

The Scottish Police Federation, which represents every constable, sergeant, inspector, chief inspector, cadet and special constable in Scotland, has been reorganised in response to the amalgamation of the previous eight police forces in Scotland into one force.

Calum Steele, General Secretary of Scottish Police Federation, said, “Levy & McRae has provided our members in Strathclyde with a first class service over many years and they exceptionally well qualified solicitors to take on this Scotland-wide remit. (more…)

I am delighted to announce that Levy & McRae have been appointed by the Scottish Police Federation to represent their members throughout Scotland.

Police Scotland is the name of the new police force for Scotland which comes into effect on 1 April. The full legal name of the organisation, as described in the Police and Fire Reform (Scotland) Act 2012, is the Police Service of Scotland . With the disappearance of the previous eight police forces Scottish police Federation has also reorganised and sees the disappearance of the various branch boards which previously represented members in their individual police forces. (more…)

The Scottish Premier League Ltd v. Lisini Pub Management Co Ltd [2013] CSOH 48

Introduction
This case involved an action raised by the Scottish Premier League Ltd (“SPL”) against Lisini Pub Management Co Ltd (“Lisini”) who broadcasted a number of SPL football matches live on Saturday afternoons within a public house. The SPL, being a member of UEFA, claimed that this was contrary to a rule of UEFA, giving that 14.45 to 17.15 hours on Saturdays were closed periods for transmissions. The SPL also claimed that the broadcasts contravened the Copyright, Designs and Patents Act 1988 as they were received from Poland using a foreign decoder and smart card. (more…)

There was much that was familiar about George Osborne’s fourth Budget. Many of his announcements had already been revealed in his Autumn Statement in December. Back then the economic outlook was bleak; little has changed.

The Chancellor did nevertheless manage to produce some surprises despite the economic constraints. With the 2013
growth forecast halved to just 0.6%, the tax give-aways, such as they were, were balanced by either extra revenue or reduced spending.

The move to a £10,000 personal allowance (from 2014/15) and a single corporation tax rate of 20% (from 2015) were hardly unexpected but were welcome. Thev Chancellor’s stated aim is for the UK to be the best place in Europe to start, finance and grow a business. The initiation of the Patent Box and the exemption of AIM shares from stamp duty illustrate his intention to meet these goals.

The new £2,000 Employment Allowance from 2014 (which will be of most value to small businesses) was not foreseen, but was also welcome. It will be financed by the extra income from NICs that the single-tier pension will bring in from 2016/17 – a year earlier than previously planned.

As usual the Budget contained many anti-avoidance provisions, although this feature may fade with the arrival of the General Anti Abuse Rule.

DOWNLOAD OUR FULL BUDGET REVIEW HERE (pdf, 690kb)

Some Highlights;

• Personal allowance increased to £10,000 in 2014/15 and the higher rate threshold increased by £415 to £41,865.

• A new tax-free childcare scheme, phased in from autumn 2015, to provide
20% of childcare costs up to £6,000 per child per year, for children under
age 12.

• The new single-tier state pension to be introduced from April 2016.

• A £2,000 Employment Allowance for businesses and charities to set against
their employer national insurance contributions from April 2014.

• A single rate of corporation tax of 20% for companies from April 2015.

• Stamp duty to be abolished for shares listed on exchanges such as AIM
from April 2014.

• A limited one year extension of capital gains tax reinvestment relief for
Seed Enterprise Investment Schemes.

• A package of measures to increase the supply of low-deposit mortgages for
credit-worthy households including a government-backed mortgage
guarantee scheme from January 2014.

• A raft of specific anti-avoidance measures alongside the new General Anti Abuse Rule (GAAR).

We hope that this summary proves useful and, if any of the areas discussed seem likely to have an impact on your personal or corporate plans, we would urge you to contact us so that we can help guide you.

Best wishes

Yours sincerely

Levy & McRae

DOWNLOAD OUR FULL BUDGET REVIEW HERE (pdf, 690kb)

A criminal investigation has been launched into the alleged leaking of confidential information regarding the Rangers tax case.

Strathclyde Police confirmed the probe into the incident on Tuesday, which comes months after an investigation was launched into alleged criminality surrounding Craig Whyte’s takeover of Rangers.

During Sir David Murray’s reign at Ibrox, the club used offshore employee benefit trusts (EBTs) to give loans to players and directors, which avoided PAYE and National Insurance contributions.

Last year, Rangers oldco won a First Tier Tax Tribunal against HM Revenue and Customs after it appealed against a £46.2m bill the tax authority had hit it with in April 2010.
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Following a hearing at Inverness Sheriff Court today (Tuesday 29 January) in which a gamekeeper was found not guilty of using an illegal snare to trap mountain hares, David McKie, of Levy and McRae, solicitor for the gamekeeper, David Taylor, issued this statement.

Mr McKie said:

“This was a complex test case which took nearly four years to conclude. The court gave very careful consideration to all of the technical evidence and legal argument involved. Mr Taylor operated in good faith and with regard at all times to the law, to accepted local practice and to animal welfare issues. He is pleased that the court has accepted that he acted lawfully…”

Two modern office buildings located in a prominent riverside position in Greenock have been sold in a deal worth more than £1.2 million.

Holt Court and Victory Court, situated in the town’s Arthur Street, have been bought by Arranglen Limited – the investment vehicle of the Easdale family, owners of Scotland’s largest independent bus operator McGill’s, which is based in the town.

Holt Court, which has a floor area of 10,762 sq ft over three floors plus parking space for approximately 45 cars, was purchased for a sum of £815,000. The building is currently entirely let to Scottish Enterprise until 2019 for rent of £136,600 per annum – a yield of 16.7%.

Victory Court has 7,125 sq ft of floor space across three floors plus approximately 24 car parking spaces. Arranglen purchased this block for £460,000, with Scottish Enterprise also tenants of this block until 2019 on a rent of £86,500 per annum – a yield of 18.8%.

The property was purchased from BNP Paribas Real Estate Receivers via London-based auctioneers Acuitus.

Alastair Goodman, partner of leading Scottish law firm Levy & McRae, handed the acquisition on behalf of Arranglen.

James Easdale, chairman of Arranglen Limited, said: “Despite the challenging conditions of the last few years, Arranglen has continued to invest in property where the right opportunity has presented itself – we feel that Victory and Holt Courts fit this bill.

“The buildings are modern office blocks situated in a great location at the heart of Greenock and we intend to maintain the accommodation and facilities to the highest possible standard.

“Scottish Enterprise’s continuing occupancy was obviously attractive to us, providing both a substantial yield and an excellent tenant to use the accommodation.

“We will continue to look for investment opportunities throughout the west of Scotland and we are delighted that Arranglen was again able to invest in our home town.”

After successfully defending a gamekeeper in Forfar, who was charged with a number of alleged breaches of the Wildlife and Countryside Act, the Crown appealed the acquittal.

The acquittal was secured on the basis that the interview of the gamekeeper in question was unfair. We argued at Trial that he had not been properly advised that he was a suspect nor of the offence that he was suspected of committing.

The Crown appealed that decision, which, if successful, would have led to a fresh prosecution on the same grounds. We successfully argued in the Appeal Court that the acquittal was the correct decision, because the interview under caution of our client was fundamentally unfair.

We argued that there was a combination of traditional common law and fairness and breaches of our client’s Article 6 rights (right to a fair trial) when assessing the overall picture.

The following factors were taken into account when assessing whether or not the interview was fair: -

• Officers not in uniform (one was cop, one was SSPCA)
• Officers failed to tell accused he was a suspect
• Officers failed to explain what offence he was suspected of committing
• They told him that getting a lawyer would take a long time, thus undermining the ‘waiver’ of his legal rights – a Cadder issue weighed into the fairness consideration
• They failed to tell him that he could stop the interview at any time

The impact of the case is significant, not only in reinforcing the importance of police and/or authorities ensuring that they conduct interviews fairly, which involves giving a suspect fair notice of what the purpose of the interview is, but also, because it highlights that, even if there is not a specific “Cadder” argument, that arguable breaches of Article 6 of ECHR can still be taken into account by the court when assessing the overall fairness of a police interview, or an interview carried out by investigating authorities.

For details on the opinion of the court visit http://www.scotcourts.gov.uk/opinions/2012HCJAC166.html

‘Balanced panel’ to consider recommendations of Leveson report

A five-person panel has been appointed to consider the recommendations of the Leveson Report in Scotland.

The expert group, to be chaired by former Solicitor General and Senator of the College of Justice Lord McCluskey, features Scots legal experts and representatives of journalism and those affected by malpractice:

• Lord McCluskey of Church Hill LLD, former Solicitor General for Scotland and Senator of the College of Justice (chair)
• David Sinclair, Director of Communications at Victim Support Scotland, former President of the National Union of Journalists and former assistant editor of The Herald
• Professor Neil Walker FBA, FRSE, Regius Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh
• Peter Watson, Senior Partner of Levy & McRae and Visiting Professor at the School of Law, University of Strathclyde
• Ruth Wishart, independent media production professional, former assistant editor of the Sunday Mail, Scotsman and Sunday Standard

The panel is tasked with considering the findings and certain recommendations made by Lord Justice Leveson – particularly how statutory underpinning of a new independent system of self-regulation of the press could work in Scotland. The terms of reference are set out below.

Panel members are invited to provide advice and recommendations to the Scottish Government within three months.

First Minister Alex Salmond said:

“Press regulation is a devolved responsibility, there have been victims of press malpractice in Scotland and Scotland has its own unique legal system.

“It is therefore unarguable that we in Scotland need to make our own response to the recommendations made by Lord Justice Leveson in his report – particularly on the proposal for statutory underpinning in Scots law of a new, independent self-regulation system for the press.

“This expert panel will offer advice on the most appropriate way to approach such statutory underpinning in Scotland, bearing in mind our legal system, developments elsewhere in the United Kingdom and experience internationally. What happens thereafter will be a matter for the Parliament.
Stressing the range of expertise within the panel, Mr Salmond added:

“What is critically important is that this panel is representative of the broad spectrum of interests that need to be taken into account.

“It is a balanced panel that features experts in Scots law, respected journalists, legal practitioners and someone with a background in supporting those affected by crime and malpractice. This group of experts is independent and non-political and is chaired by a former Court of Session judge.

“I am grateful to each of them for bringing their knowledge, expertise and commitment to this issue and look forward to receiving their recommendations.”

Background
The terms of reference of the expert group are as follows:

To consider the findings and recommendations made in the Part 1 of the Report of the Leveson Inquiry in respect of Press Regulation, and, accepting the main principles on which those recommendations are made, including in particular the need for statutory underpinning of a newly created, genuinely independent and effective system of Self-Regulation, to offer advice and recommendations as to the most appropriate means of achieving such statutory underpinning in Scotland, in the context of —

• the Scottish legal system;
• any other existing provisions in law that relate to publication by the Press in the UK;
• any developments in Press Regulation elsewhere in the United Kingdom arising out of the Leveson Inquiry;
• experience in regulation of the press outside of the United Kingdom, that might inform consideration of the recommendations made and the mechanisms suggested in the Part 1 Report of the Leveson Inquiry,

and to provide such advice and recommendations to the Scottish Government within 3 months.

Lord McCluskey (Chair)
John Herbert McCluskey, Baron McCluskey was Solicitor General for Scotland from 1974 to 1979. During this period he worked on the then Labour government’s proposals for devolution. Lord McCluskey became a member of the Judiciary in 1984 and presided for 16 years as a High Court judge over some of the country’s most famous criminal cases. He retired in 2000. In 2011 he chaired the Independent Review Group examining the relationship of the High Court of Justiciary and the United Kingdom Supreme Court, whose recommendations were accepted both by the Scottish Parliament and the UK Government. Lord McCluskey was for many years chair of the judges for the Bank of Scotland Press Awards and also Vice President of the West of Scotland Press Fund (the Journalists’ Charity).

David Sinclair
David Sinclair has been head of Communications at Victims Support Scotland since 2006, he is a former assistant editor of The Herald, having worked there from 1975 – 2006 and was President of the National Union of Journalists in 1990-91.

Professor Neil Walker
Neil Walker - LLB, PhD, LLD (Honoris Causa) (Uppsala), FBA, FRSE - is Regius Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh His main area of expertise is constitutional theory. He has published extensively on the constitutional dimension of legal order at sub-state, state, supranational and international levels. Previously he taught public law at Edinburgh for ten years (1986-96), was Professor of Legal and Constitutional Theory at the University of Aberdeen (1996-2000), and, most recently, was Professor of European Law at the European University Institute in Florence (2000-8), where he was also the first Dean of Studies (2002-5). In December 2008 Professor Walker was asked by the Scottish Government to conduct an independent review of final appellate jurisdiction in the Scottish legal system.

Peter Watson
Peter is Senior Partner and Head of Litigation at Levy & McRae. Under his leadership, Levy & McRae has built up a worldwide reputation in areas of expertise such as media law, licensing, aviation, international claims, public inquiries, employment law and tax and revenue investigations. He is also a part-time Sheriff and Visiting Professor at the School of Law, University of Strathclyde, and is a former President of the Society of Media Lawyers, Chairman of the Association of Mediators and a Member of the Criminal Rules Council.

Ruth Wishart
Ruth Wishart is a journalist and broadcaster with extensive experience of the Scottish media. She has been a columnist with the Daily Record, columnist and Assistant Editor of the Sunday Mail, columnist and Assistant Editor of the Sunday Standard, and Senior Assistant Editor of the Scotsman. Currently she writes a column for Herald Society, and contributes regularly to The Scotsman. She has also presented radio series for Radio Scotland and Radio 4. With Deborah Orr and Paul Flynn she recently interviewed a range of journalists, the transcripts of which were used for Enquirer, the National Theatre of Scotland’s response to the issues covered in the Leveson Inquiry.

Contact
Annalena Winslow: 0131 244 2954 / 07917 052265

We are delighted to bring to your attention the rankings for Levy & McRae in Chambers UK 2013. To view our firm’s rankings and editorial please Click Here.

The firm has continued to excel in 2012 with some significant results for our clients. In the continuing economic uncertainty, it is important that you have a trusted, skilled and adaptive practitioner in your corner. We look forward to continuing to meet our clients’ objectives in 2013.

DOWNLOAD THE FULL CHAMBERS “A CLIENT’S GUIDE TO THE UK LEGAL PROFESSION: LEVY & MCRAE” HERE. (pdf, 414kb)

ENTRY FROM CHAMBERS UK 2013

THE FIRM: Levy & McRae is one of Scotland’s leading law firms. The firm has a particularly strong reputation for litigation, media and personal injury.

PRINCIPAL AREAS OF WORK

Litigation: Extensive litigation practice including representing British Sky Broadcasting Limited in the enforcement of all copyright and licensing matters arising in Scotland.
Media: One of the largest media law practices in the country providing advice to an extensive range of clients in the print and broadcast media.

Dispute Resolution/Reputation Management: Prominent individuals from the world of business, TV, film, music and sport (more…)

Bus company’s takeover of ‘closest rival’ formally cleared

The Competition Commission have now formally cleared the acquisition of Arriva Scotland West by bus operator McGill’s in March of this year. This followed a provisional ruling in August.
The announcement by the Commission follows an intensive five month review of the impact of the acquisition on bus provision in Renfrewshire following a referral from the Office of Fair Trading to the Competition Commission earlier this year. This represents the most important referral of its kind in Scotland for over a decade.

Today, the Commission formally ruled there to be no detrimental impact on competition as a result of the purchase. This decision follows months of extensive investigations, reports and hearings before the Competition Commission in London.
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Levy & McRae acted successfully on behalf of a legal expenses insurer client who had proceedings raised against them by a policyholder in Banff Sheriff Court.

The insurer was sued after refusing to indemnify the Pursuer’s claim. The Pursuer’s claim was dismissed and it is believed this is the first occasion where he term “coverholder” has been judicially defined in this context. Sheriff Mann’s decision dismissing the Pursuer’s claim was appealed to the Sheriff Principal who refused the appeal. Sheriff Mann’s decision is reported in the 2012 edition of Lloyds’s Law Reports at page 322.

Read the reported decision from Lloyd’s Law Report in this PDF (473kb).