Edinburgh man who entered wrong flat while naked has conviction quashed by Sheriff Appeal Court

By Mitchell Skilling

It was argued by KWM that the sheriff had erred in convicting him of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 as he had not intended to cause fear and alarm to the occupants of the flat.

The appeal was heard by Sheriff Principal Marysia Lewis along with Appeal Sheriffs Thomas McCartney and Fiona Tait. Macintosh QC appeared for the appellant and Prentice QC for the Crown.

Problems with insomnia

The Crown led evidence from a 44-year-old woman, Mrs B, and her two sons, who had lived in a flat one floor above one occupied by the appellant. They gave evidence that, at around 11pm on 14 September 2019, the appellant entered their flat through the unlocked main door. He appeared to be intoxicated and soaking wet, with blades of cut grass attached to parts of his naked body, and he was cupping his genitals with his hands.

Once inside the flat, the appellant tried to open the door to a bedroom. After Mrs B talked with the appellant, he was ushered out of her flat. He made no attempt to physically resist, remained mostly silent throughout, and did not remain in the flat for longer than a few minutes. The appellant’s evidence was that he had no memory of the incident and that he had long-standing problems with insomnia that he combated with alcohol.

A submission of no case to answer was made on the basis that there was insufficient evidence that the appellant had behaved threateningly or abusively. The sheriff repelled this submission and found the appellant guilty as charged. On appeal, it was submitted that the sheriff had erred in repelling the no case to answer submission as he had failed to properly address two of the three constituent parts of the statutory offence.

It was argued that the sheriff required to explain what about the appellant’s behaviour characterised it as threatening or abusive, with a bland assertion that the behaviour was threatening or abusive being inadequate. Nothing in the prosecution’s evidence supported such a conclusion, and the evidence that the appellant had looked confused and did not know where he really was during the incident prevented the sheriff from being satisfied beyond reasonable doubt that he intended to cause or was reckless as to whether his behaviour would cause fear and alarm.

Absence of explanation

Delivering the opinion of the court, Sheriff Principal Lewis said of the sheriff’s decision to repel the no case to answer submission: “Contrary to the submission on behalf of the appellant we consider that [his] behaviour viewed objectively could properly be characterised as inherently threatening thereby meeting section 38(1)(a)It was not disputed that viewed objectively a naked man entering a private home uninvited late at night would be likely to cause a reasonable person to suffer fear or alarm thereby meeting section 38(1)(b).”

She continued: “Having regard to the evidence of three eye-witnesses as to the behaviour of the appellant, there was a sufficiency of evidence taking the Crown case at its highest to enable the inference to be drawn as to section 38(1)(c), being the mens rea that is required.”

Turning to whether the sheriff was entitled to convict, Sheriff Principal Lewis began: “Invasion of a person’s private home, where they are entitled to expect to feel safe and secure, by a naked and intoxicated male is in our view eloquent of threatening behaviour. It was not disputed that such behaviour would be likely to cause a reasonable person to suffer fear or alarm and indeed there was some evidence of it actually having such an impact on those present.”

However, she went on to say: “There is no finding in fact that the appellant intended by his behaviour to cause fear or alarm. There is no finding in fact that the appellant was reckless as to whether the behaviour would cause fear or alarm. That essential aspect of the tripartite test for an offence in terms of section 38(1) is barely considered within the sheriff’s Note. There is nothing more than a bare assertion in one sentence that the appellant either intended to cause fear or alarm or was reckless as to whether his behaviour would cause fear or alarm.”

Sheriff Principal Lewis concluded: “Intention or recklessness in terms of section 38(1)(c) is an essential component of a section 38(1) offence. The absence of any relevant finding in fact or explanation as to the sheriff’s consideration and conclusions on this aspect of the test within the Stated Case causes us to conclude that this component part of a section 38(1) offence has not been adequately considered based upon the evidence and that a miscarriage of justice therefore arises.”

The appellant’s conviction was therefore quashed.

Boyd Legal acquires clientele of Somerville & Russell following administration

The closure of the firm’s Bridge Street premises resulted in a number of redundancies.

Boyd Legal will continue to provide wills and trusts, estates and executry advice. Estate agency and conveyancing will also be offered but court work and family law services will not continue.

Boyd Legal managing director, Diana Boyd, said: “We have worked closely with Somerville & Russell to ensure there will be a stress-free and efficient transfer of the firm’s private client business and would assure those clients that they are guaranteed a professional service which will meet all of their requirements.

“We understand that for individuals and families engaged in arranging wills and executory matters this can be a challenging and sometimes daunting time, but our team of experienced legal professionals has many years of combined experience of dealing in these issues.

“While there will be no longer a presence in Musselburgh, the important thing is that clients who are transferring over to Boyd Legal will notice no discernible difference in the quality of legal advice and professional and personal support that will be at their disposal.

“We have Somerville & Russell clients’ deeds and wills in safe storage and will be writing to clients to reassure them about continuity of service. For all Musselburgh and East Lothian clients we can offer telephone and online assistance, and home visits where requested.”

Ms Boyd added: “Sadly, the closure of Somerville & Russell illustrates the continued consolidation of the legal sector caused by the effects of the Covid pandemic and economic uncertainty.”

Organisations ask MSPs to refuse legislative consent to UK Nationality and Borders Bill

MSPs have been asked to withhold the consent of the Scottish Parliament to the proposed legislation in a statement signed by over 60 organisations.

They say that, if passed, this bill will disproportionately and severely harm women and girls, children and young people and will criminalise vulnerable people on their arrival to the UK.

Sabir Zazai, chief executive of the Scottish Refugee Council, said: “This simply is not the kind of legislation we want to see here in Scotland. I very much hope that the Scottish Parliament chooses to stand with us too, and say in no uncertain terms that this bill is not welcome here and it is not in our name.

“After today’s debate, the Scottish government must act to ensure that its powers of legislation and policy are used to their very fullest extent to mitigate against the serious harms this bill will cause some of Scotland’s most vulnerable people. This letter sets out a clear five-point plan that we urge the Scottish government to put into action to practically show that this bill will never be in Scotland’s name.”

Jen Ang, director of Just Right Scotland, said: “We – together with so many organisations across Scotland who have joined us today – oppose this anti-survivor, anti-refugee, anti-safety bill. These reforms do not make our system safer or our borders more secure, but rather create cruel and unnecessary barriers for people seeking sanctuary here.

“We are also concerned that the bill seeks to interfere with how we protect and support all survivors of violence in Scotland – in particular, survivors of trafficking, women and children survivors of gender-based violence, and other survivors of complex and long-term trauma. This bill affects us all.”

Vulnerable to suffer as Aberdeen defence solicitors forced to withdraw from duty scheme

Defence lawyers in the city and Aberdeenshire have withdrawn from the duty scheme in protest at the dire state of affairs.

Accused persons are being offered legal assistance from the Public Defence Solicitors Office (PDSO) remotely.

Aberdeen Bar Association president Ian Woodward-Nutt told The Press and Journal: “It’s critical to remember that many people in that position are amongst the most vulnerable in our society.

“Until recently the Legal Aid Board fulfilled their obligation by funding a duty solicitor scheme whereby legal aid was paid to private law firms who would take part in a rota to represent people appearing from custody.”

He said the rates are “so low that not only are they not profitable but many aspects of the system effectively involve solicitors subsidising the criminal justice system from their own pockets”.

There are no PDSO offices in the northeast, meaning all consultations are being undertaken remotely.

“They are attempting the impossible, which is to try act as a duty solicitor remotely,” Mr Woodward-Nutt said.

“When you act as duty solicitor you don’t know what lies ahead of you that day. Typically you would be experiencing people in custody who are experiencing one of the scariest and most anxious periods of their lives.

“Many have significant mental disorders, many require interpreters, and the role of the duty solicitor involves trying to take instructions from them and negotiate various issues with the prosecutor in court.”

A Scottish government spokesperson said: “The Scottish Government has acknowledged the important role of the legal sector throughout the pandemic. We have provided a 5 per cent increase in legal aid fees in 2021, plus a further five per cent increase this year to be delivered shortly.

“In addition, we have provided £9million in additional funding to the profession in the context of the Covid-19 pandemic, as well as establishing a £1m fund to support traineeships.

“This amounts to a £20m investment in legal aid since March 2021 in addition to a three per cent uplift across all legal aid fees in 2019.”

Appointments and promotions at Gibson Kerr

Nadine Martin, who joined the firm in 2021 as a senior associate, has been promoted to legal director, which coincides with her being certified by the Law Society of Scotland as a specialist in trauma-informed practice.

The certification makes her the only solicitor in Scotland to be an accredited specialist in the four disciplines of family law, child law, family mediation and now, trauma-informed practice.  

Karen Wylie has joined as a senior associate. She is accredited by the Law Society of Scotland as a specialist in child law and family law and has many years of experience advising private clients and a number of local authorities.

Solicitor Karen Sutherland, who has been promoted to senior solicitor, has extensive experience in children’s hearings and all aspects of family law. She has previously been a Children’s Panel member and spent four years with the Scottish Children’s Reporter Administration specialising in child welfare matters.

Solicitor Katie Fulton has also joined the firm; she advises clients across all family law matters, including separation, divorce, child contact issues, adoption and pre and post-nuptial agreements.

In addition, Sara Boyle has joined the family law team as a paralegal.

Gibson Kerr Partner and head of family law, Fiona Rasmusen, said: “Karen Wylie and Katie Fulton are both highly regarded lawyers whose specialist knowledge and years of experience will reinforce our credentials as the legal firm who really care about providing families with the best available representation.

“Nadine Martin and Karen Sutherland have already proved their worth to the firm and these promotions are well deserved. We’re also excited at the depth of expertise and skill that Nadine will bring to the Family Law team through her new Trauma Informed Lawyer certification – a highly relevant area in today’s society.” 

Innes Clark: Misclassification of workers will be a costly mistake

Having succeeded in persuading the Supreme Court that he was a worker, the claimant in Smith v Pimlico Plumbers had less success when his claim for holiday pay returned to be decided by the Employment Tribunal. Both the tribunal at first instance and the Employment Appeal Tribunal (EAT) held that the claim for holiday pay had been brought out of time. However, the Court of Appeal has overturned those decisions, holding that the claim is in time and that the claimant is entitled to claim for holiday pay going back through the entirety of his employment with Pimlico Plumbers.

In coming to its judgment the Court of Appeal considered the application of King v Sash Windows – a case in which the Court of Justice of the European Union held that a worker is entitled to be paid on termination for any periods of annual leave that had accrued during the employment but that had not been taken because the worker would not be paid for them. This applies only to the four weeks’ paid holiday entitlement that arises under EU law, not the additional 1.6 weeks legislated for domestically under the Working Time Regulations 1998. The right to the paid leave accumulates when the worker is not given the opportunity to exercise it, crystalising on termination of employment. This type of claim, brought under regulation 14 of the Working Time Regulations 1998 (WTR), is brought in time as long as it is lodged within three months of the date of termination of employment.

The employment tribunal and EAT had been of the view that the principle in King did not apply to workers who had taken the holiday, even though it was unpaid. This meant the claimant had to rely on an unlawful deduction from wages claim instead of WTR regulation 14. The three-month time limit for unlawful deduction from wages claims runs from the date of the last deduction, and not the date of termination. In this case, it meant that the unlawful deductions claim had been made out of time and was therefore dismissed.

The Court of Appeal however was of the view that King should be read as extending to workers who had taken leave but not been paid for it, as well as those who had been discouraged from taking it because it was not paid. Both these categories of worker had been prevented from exercising their right to “paid annual leave”. As this claim only crystallised on termination of employment it was in time, and the claimant did not need to rely on the late unlawful deduction from wages claim.

Although not strictly necessary given this claim succeeded as a WTR claim and not an unlawful deduction of wages claim, the Court of Appeal still went on to consider the case of Bear Scotland Ltd & Others v Fulton. Bear was an EAT case that held that if a series of deductions was broken by a period of three months or more, that broke the series and any deductions made before that break could not be claimed. The Court of Appeal indicated a “strong provisional view” that Bear has been incorrectly decided. It is highly likely that this view will be referred to in future unlawful deduction of wages claims and that Bear will be formally overturned. However, the two-year backstop for claims introduced by the Deduction from Wages (Limitation) Regulations 2014 (which apply to deductions claims but not to regulation 14 WTR claims) will apply.

The financial consequences of this judgment (unless appealed) for businesses that have misclassified workers may be significant. Where workers have been unable to exercise their right to four weeks’ paid holiday (or any part thereof) then their right will accumulate from year to year with no restriction, crystalising on termination of employment. It is not a defence that the employer honestly believed the individual was not legally a worker, and there is also an argument that interest should be applied to the compensation due to the claimant.

The potential cost to businesses who have misclassified workers has just become very high indeed.

Innes Clark is a partner at Morton Fraser

Shoosmiths appointed to residential development expert’s legal and plot sales panels

Work for the residential development expert commenced in January 2022 for three years. The appointment of Shoosmiths will assist Lovell’s housebuilding, affordable living and later living businesses in delivering mixed tenure communities throughout the UK.

The core legal panel bid was led by a senior management team comprised of Mark Elder, Catherine Williams, Melissa Barker and for the Scottish region, Barry McKeown. 

Head of living sector at Shoosmiths, Catherine Williams, said: “Our living sector approach and expertise aligns well with Lovell’s focus on housebuilding, affordable housing and later living across the UK. We provide national expertise that is locally led by talented sector specialists. As a team we are all very proud of this panel appointment and can’t wait to start working with the Lovell team.”

Mr McKeown, added: “We are delighted that Lovell has recognised the strength of our teams in Glasgow and Edinburgh on housebuilder and residential development work, plot sales and specialist planning advice in Scotland and right across the UK.

“Just a few months since opening our new office space in Glasgow and following on from another recent successful tender appointment for a large UK housebuilder, this latest blue-chip client win further underlines our position in Scotland as the go to firm for specialist advice and legal support in the Living Sector.”

The overall Shoosmiths relationship will be led by Shoosmiths partner Mark Elder, who said: “This latest appointment reinforces our reputation as the go-to law firm for residential property developers. We are hugely looking forward to working closely with Lovell and collaborating with them as partners in their continued success in the fast paced and exciting real estate market.”

Women in law panel event tomorrow

Edinburgh University society Future Lawyers: Law Society for Non-Law is hosting the event, which will hear from:

• Winsome Cheung: life sciences transactions lawyer at Covington and Burling LLP in London
• Christine Bell: professor of constitutional law and assistant principal (global justice) at the University of Edinburgh
• Eilis Meagher: commercial litigation and government and internal investigations associate at Finn Dixon & Herling LLP in the US

Click here for more information

Quote of the day

A great industrial nation is controlled by its system of credit. Our system of credit is privately concentrated. 

Woodrow Wilson

And finally… fool’s gold

The supposed scheme emerged after 65 people were arrested, including two police officers.

The chemist recruited to convert the fake coal back into cocaine was identified as “Parkinson”. The traffickers boasted that he was “two steps ahead of everyone else”.

He was paid €35,000 to perform his work at a makeshift lab near Anzio.

“Turning it from black to white is problematic, there are lots of intermediate phases,” an aide to the alleged crime boss Bruno Gallace said in an intercepted conversation.

Scholarships: The Clark Foundation for Legal Education now open for applications

In furtherance of the above, the Foundation’s trustees invite applications for Grants and Scholarships from post-graduate and under-graduate students to assist them with courses of study in Scots law, or comparative legal systems, or the law of the European Community, or foreign languages or business management or to undertake research into Scots Law and /or its relationship with other legal systems or to attend international student competitions and conferences. The trustees will also consider applications from persons practising law in Scotland, whether as solicitors or advocates, those teaching Scots law, those arranging conferences, seminars and lectures, and those involved in research in, and the writing of legal text books or other publications or presentations on Scots law and/or its relationship with other legal systems or the institutions of the European Community. Applications may also be made for Grants to provide facilities and equipment (including computers and other IT, hardware, software or peripheral equipment) for study and research including for the establishment and maintenance of libraries and study centres.

The grant and amount of any award, and the period for which it is to run, is within the discretion of the trustees.

Awards will be made in September 2022 and all applications, which are to be completed on a standard application form available by downloading from the Foundation website (www.clarkfoundation.org.uk) or upon request to the email address noted below, must be submitted in electronic form by no later than 31 March 2022. Please note that the Foundation does not support students studying for LLB/Diploma in Professional Legal Practice other than in exceptional hardship circumstances, which should be explained in the application form (and for 2022/23 such exceptional hardship circumstances may include hardship arising as a result of Covid-19).

Please send your completed application before the stated deadline by email to: clarkfoundation@lindsays.co.uk

Global Language Services Ltd

However good the technology is, it cannot pick up the subtleties of a language, the culture that underpins it, or even the humour that oils many of our conversations.

For this reason there has always been a need for skilled interpreters and translators and probably always will. That’s where Global Language Services Ltd can help you.

Not only do we have the language service talent that you are likely to need, we also have a track record that spans Government, health, justice, commercial and private sector contracts.

So, whatever you want to achieve in a different language, we’re on your side from the word ‘go’.

We go out of our way to help with any translation and interpreting requirements and you can test that simply by picking up the phone and getting in touch. Calls are answered by trained operators with no call centres – just real people determined to help you achieve your language service requirements as quickly as possible.

If you’ve been searching for Professional Translation or reliable Interpreting Services at competitive prices, we like to think that Global will be your long-term partner after your first project with us.

With offices in Glasgow, Edinburgh, Inverness and Aberdeen we are committed to finding local interpreters and translators wherever possible. Our reach, however, goes much further than Scotland and we are happy to take translation projects from across the world.

Call Today on 0141 429 3429 to discuss your Project or email mail@globallanguageservices.co.uk