Editorial: Not long for ‘not proven’

By Kapil Summan, editor

A faction of Scots law exceptionalists keep telling us that ‘not proven’ is the logical verdict, seemingly failing to understand that their preferred proven/not proven system is a synonym of guilty/not guilty, given that both entail the same moral consequences.

The idea that moral culpability would not attach to ‘proven’ or ‘not proven’ when they are in the contemplation of a jury debating a charge of murder or rape indicates the kind of wishful thinking to which people who want practice to fit theory and not theory to fit practice are frequently prone.

In contrast, some academics ignore disconfirming evidence about the third verdict’s effects and avail themselves of the fact there is no cost to doing so because the debate is too esoteric for the vast majority of the Scottish public to follow or care about.

Desiring a particular outcome is not wrong, but it would be better if they dispensed with the pretence of neutral rational inquiry and admitted that they were lobbyists for the system envisaged by their ideology.

My own view is that the third verdict should be abolished and that a qualified jury majority should be introduced to bring the phoney war on ‘not proven’ to an end so that we can brace ourselves for the impending real one – against juries themselves.

Indyref2: Advocate General for Scotland lodges papers with Supreme Court

The UK government is expected to argue that the test for whether legislation is within Holyrood’s competence requires it to be first passed. Nevertheless the UK government believes such legislation would be ultra vires of the Scottish Parliament’s powers as set out in the Scotland Act.

A UK government spokesperson said: “We have been clear that now is not the time to be discussing another independence referendum, when people across Scotland want both their governments to be working together on the issues that matter to them and their families.

“However, following the Lord Advocate’s referral of the Scottish government’s draft Scottish Independence Referendum Bill, the UK government has … lodged its initial response with the Supreme Court.

“The papers confirm that the Advocate General for Scotland will become a formal party to the case, and ask the court to consider whether it should accept the Lord Advocate’s referral.”

A spokesperson for First Minister Nicola Sturgeon said in response: “People in Scotland have voted for a Parliament with a clear majority in favour of independence and with a mandate for an independence referendum. The Scottish government fully intends to offer the Scottish people the choice of independence and has set out how it will do so.

“The UK government’s repeated attempts to block democracy – which now seem to extend to an unwillingness to even make a substantive argument before the Supreme Court – serve only to demonstrate how little confidence it has in its case for the union.

“However, whether the reference is accepted, how long it takes to determine and what judgment is arrived at are all matters for the Court to determine. The reference is now before the Supreme Court, and the Court should be allowed to fulfil its function.”

Judges support abolition of ‘not proven’

In their response to the consultation on the future of the third verdict, the judges said it was inconsistent with the presumption of innocence and the purpose of the trial process.

Because there is no functional difference in law between ‘not proven’ and ‘not guilty’, it has no purpose, they said.

The document adds: “The view of the current judges, by a majority of two to one, is that the rule requiring corroboration ought to be abolished.

“A principal concern is the extent to which the requirement for corroboration acts as a barrier to accessing justice, particularly in the cases of many women and child victims of both sexual abuse and domestic abuse.

“The large increase in the number of sexual offences cases reported has served to bring this effect into sharp focus.

“A prosecution cannot be brought in the absence of corroboration and, if a prosecution is brought on the basis of a second source of evidence which falls away, it cannot reach the stage of consideration by a jury.”

Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said of the consultation responses: “It is striking that such a fundamental change as abolishing Scotland’s long-standing three verdicts has provoked such a wide range of views and some deep concerns from those with the greatest understanding of our justice system. It underlines the care which the Scottish government will need to take if it is going to move forward with removing the not proven verdict.

“However, at a time when we have a huge backlog in court cases and a crisis in legal aid which risks leaving the most vulnerable in our society without the legal help they need, there is a serious question over whether changing Scotland’s verdicts system is a priority for ministers to be focusing on.”

Commercial rent disputes projected to reach new low in Scotland

The independent commercial property consultancy obtained figures from the Royal Institution of Chartered Surveyors (RICS) which show there were only 22 applications for third-party arbitration between the start of 2022 and the end of May. This suggests there could be fewer than 55 by the end of the year.

By comparison, there were 64 applications for third-party determination in 2021 and 2020 saw 69. The figures represent a substantial drop from the number of cases pre-pandemic: in 2019 there were 92 cases, 123 in 2018, and 169 in 2017. More than 290 cases went to independent assessment in 2016 – the peak of the last decade – while there were 155 in 2015, 125 in 2014, and 2013 saw 147 cases.

Of the 155 disputed cases since January 2020, 46 (30 per cent) were in Edinburgh and 39 (25 per cent) occurred in Glasgow. Aberdeen has seen just nine commercial rent disputes referred to third-party determination since the pandemic began.

Offices represented around one-quarter of the cases requiring arbitration, while prime and secondary retail also accounted for another quarter.

Independent experts or arbitrators are appointed to cases where commercial tenants and landlords cannot agree on a new rental deal at a fixed-term review date. Typically, these are conducted every five years, depending on the terms of an occupier’s lease.

Andrew Hill, lease advisory partner at Knight Frank Scotland, said: “There has been a significant drop in the number of rent disputes having to be referred to third-party determination during the pandemic, which has continued into 2022 as both landlords and tenants have been cautious about submitting review applications.

“A mixture of factors have been at play, but the two most prominent are that many people are still to fully return to workplaces and demand in the property market – particularly in Edinburgh and Glasgow – has remained resilient while supply continues to be constrained. The flight to quality space has been one of the main trends of the pandemic, and there are few options available to occupiers considering a move.

“There will also be an element of landlords and occupiers working together during a very challenging time to strike agreements that met both their needs. For example, we saw more landlords agreeing rent-free periods or deferring rent payments in exchange for lease extensions during 2020 and 2021.

“With interest rates rising and inflation at multi-decade highs, whether we begin to see disputes rise again will likely be heavily influenced by the health of the economy. However, like it was during the heights of the pandemic, it will be very important for landlords and occupiers to communicate and collaborate as much as possible.”

New guidance on child welfare hearings in the sheriff courts

For all family actions commencing after 13 July 2022, the interlocutor will direct that the first child welfare hearing will call in person. Should a party wish to participate in the first hearing by electronic means, they will be required to give notice to the sheriff clerk no later than five working days prior to the hearing.

Further child welfare hearings will be conducted in person unless otherwise directed by the sheriff. However, parties will be able to make representations at the first child welfare hearing, should they feel further hearings should not be heard in-person.

The mode for any further child welfare hearings where actions commenced before 13 July 2022, will be discussed with all parties.

This is the second guidance which will apply to all sheriffdoms, in order to achieve consistency of approach. It follows the housing guidance which was published on Monday. They will both take affect from today.

McArthur sets out three key requirements for custodial death investigations

An independent report published last year concluded that there needs to be an independent inquiry into every death in custody and warned that at present the fatal accident inquiry (FAI) system has “a lack of family engagement at every step of the journey”.

The report called for investigations into deaths in custody to begin almost immediately after a death and be completed “within a matter of months”. In comparison, the FAI process currently used has significant delays before investigating a death.

Earlier this year, Scottish Liberal Democrat analysis revealed that the average time for a FAI to be completed was three years, with some inquiries remaining outstanding after almost a decade.

In his letter, Mr McArthur underlined the need to learn lessons from the failure of the current FAI system and called on Justice Secretary Keith Brown to implement three key components in the new system:

• A deadline for the commencement of reviews into custodial deaths
• A guarantee to families that they will receive necessary support when navigating legal proceedings
• A guarantee that these reforms will come into effect by the start of next year

Mr McArthur said: “Families are facing long waits to discover what happened to loved ones who perished in tragic circumstances.

“I remain deeply concerned about the current state of the Fatal Accident Inquiry system presently tasked with examining deaths in custody, and am sceptical about the claim that ‘real progress’ is being made in improving this process.

“Scottish Liberal Democrat research revealing that some inquiries are remaining outstanding after almost a decade and independent reports suggesting that the FAI system ‘works to normalise suffering and death in prison’ indicate that there is an ongoing need for urgent reform.

“The government needs to commit to a deadline for kicking off an investigation into a death in custody. It also needs to ensure that legal aid will be provided for families and next of kin when investigations into custodial deaths take place.”

New temporary judges appointed

• Sheriff Alasdair MacFadyen
• Sheriff Andrew Miller
• Sheriff Susan Craig
• Sheriff Tony Kelly

The Lord Advocate, Dorothy Bain QC, warned MSPs in November last year that the backlog of cases was an “enormous problem” that would take “multiple years” to clear.

It was reported last week that the remote jury centres used during the pandemic to allow cases to continue cost taxpayers more than £26 million. The Odeon chain has made the sum over the last two years while Vue made almost £2m from the Scottish Courts and Tribunals Service.

Michael McLean qualifies as a solicitor advocate

A Law Society-accredited specialist in personal injury law, he joined the firm in May 2016.

He graduated from the University of Glasgow in 2005 before undertaking the diploma in legal practice at the University of Aberdeen in 2007. After finishing his studies, he moved to Edinburgh to undertake his legal traineeship at a well-known personal injury firm, where he remained for eight years before joining Jones Whyte.

Mr McLean has gained a wide experience of civil court practice and procedure in both the Sheriff Court and Court of Session. He has a particular interest in acting for clients in claims for damages arising either from personal injuries, property damage, or following a breach of contract.

Greg Whyte, managing partner, said: “Congratulations to Michael for taking the next step in his career by qualifying as a Solicitor Advocate. We are all proud of him for achieving this qualification. Michael, along with Deborah Carmichael in our dispute resolution team, can now represent our clients at the higher courts across Scotland and the UK.

“It is hugely rewarding and incredibly important to see our team continuing to develop and progress. As a relatively young firm, we place great emphasis on giving our team’s real accountability along with continued training and development, equipping us to succeed and win for our clients.

“Trust and good communication are vital when taking a case to court. Unlike barristers and advocates, solicitor advocates do more than just the court-related work. They run the case from start to finish meaning they know the case inside out – carrying out all the necessary investigations, getting involved in all the details and preparing all the paperwork – therefore it is a huge asset to our clients to have solicitor advocates like Michael and Deborah on board.”

Pinsent Masons elects Andrew Masraf as senior partner

During his 28 years at the firm, Mr Masraf has held a number of leadership roles including global head of corporate and, more recently global head of the firm’s transactional services group.

He is a private equity specialist with particular experience in advising management teams and has led on a number of major transactions within the infrastructure sector.

He said: “Pinsent Masons is an entrepreneurial and energetic business that has made significant strides under Richard’s leadership.

“We have a mindset that consistently seeks to deliver new solutions and develop different ways of working as our clients and markets evolve. This, combined with the culture that we have cultivated as a purpose-led business, means Pinsent Masons is an organisation that never stands still. I’m excited to be taking on the Senior Partner role and motivated about what we, as a business, can achieve together.”

In accordance with firm policy, Mr Foley steps down following eight years in the role, having served the second of a maximum two terms.

He commented: “Re-orienting our strategy around our purpose has helped us to deliver the best for our clients and our people, and created a business that we are proud of and a business that positively impacts the communities we serve.

“We’ve come a long way in eight years, and I’m excited for what the future holds for Pinsent Masons. My sincere congratulations to Andrew, he will make an excellent senior partner and the firm simply couldn’t be in better hands.”

Lily Braunholtz: UK government confirms future regulation of Buy-Now Pay-Later

Klarna reporting UK customer data to credit reference agencies

On 1 June, Klarna, one of the largest BNPL providers, began reporting its customer data to credit reference agencies in the UK for the popular short-term credit products such as Pay in 3 instalments and Pay in 30 days.

Klarna has started sharing its 16 million customers’ data, allowing this debt and repayment information to form part of a customer’s credit score. However, this data will only affect customers’ credit scores from 2023.

This change may have come as a surprise to customers and there is a possibility that some will switch to use other BNPL providers to avoid these debts affecting their credit score. However, as the chief executive of Klarna has stated, it offers an easy and accessible way for customers to improve their credit score without having to get an interest-bearing product, such as a credit card.

UK government confirms regulation of BNPL

Just a few weeks after this reporting came into effect, on 20 June the government published its response to its consultation on the regulation of BNPL and short-term interest-free credit (STIFC) products. The response follows the consultation held in late 2021 and the Woolard Review which looked into potential consumer detriment associated with these types of short-term credit products. The government response confirmed what many expected – BNPL will in future fall within the scope of financial services regulation.

In particular, the response confirmed the government’s intention to:

• Amend the scope of regulation to include BNPL products, as well as currently exempt STIFC products when they are provided by third-party lenders.
• Regulate STIFC products provided directly by merchants where it is offered online or at a distance. However, the government is calling for further stakeholder engagement to fully understand the scale of this type of lending.
• Tailor the application of the Consumer Credit Act 1974 to these products, and elements of lending practice most linked to potential consumer detriment.

In line with the 2021 consultation paper, the government’s response emphasises that the scope of regulation should be proportionate, so that it targets the products with the potential for consumer detriment but does not frustrate the provision of key financial services. Therefore, certain exemptions will be allowed for particular agreements where there is a low risk of consumer detriment, and regulation would adversely hinder regular business activity. These exemptions are likely to apply to invoicing, interest-free agreements which finance contracts of insurance, charge cards, trade credit and employer/employee lending.

Given the widespread use of BNPL products and growing concerns about the associated debt, the government’s plans for future regulation have been welcomed. With the cost of living continuing to rise, it is likely that the use of these products will continue to expand. More companies are including BNPL options as part of their service, with Apple being one of the recent companies announcing, ‘Apple Buy Later’, which will soon allow users to spread the cost of a purchase into four payments over six weeks. It is hoped the proposed regulatory oversight will help protect consumers suffering financial detriment with the introduction of affordability checks, stricter advertisement rules and the right for consumers to complain to the Financial Ombudsman Service.

What next?

Although the government response has been published, there is still a long way to go before these changes come into effect. A consultation on draft legislation will be undertaken towards the end of this year, with secondary legislation to follow by mid-2023. The FCA will then consult on how it will regulate the sector.

Lily Braunholtz is a trainee at Morton Fraser

Burges Salmon advises Cytomos Limited on £1.6m funding from trio of investors

The fundraising was led by existing investor Archangels with participation from Scottish Enterprise and Old College Capital.

The funds will be used to help Cytomos enhance its technology which can be licensed for the benefit of diagnostics and cell therapy companies in the life sciences space. CDS is a full-stack, single-cell resolution analysis technology, spanning integrated sensors through to machine learning enhanced algorithms.

The technology aims to enable non-specialist users to perform quantitative and qualitative cytometry without requirement for typical cell labelling reagents, delivering results faster, simplifying the logistics of testing and reducing costs.

The Burges Salmon team advising on the deal was led by senior associate Katie Carter, alongside solicitor Victoria MacAulay and partner Danny Lee, all from the firm’s corporate finance team.

Nicola Broughton, non-executive director at Cytomos, said: “Thanks to the team at Burges Salmon, Cytomos was able to navigate acquiring the growth capital required to advance the development of its novel process analytical technology platform to the next phase of prototype evaluation. This is an important milestone in the journey to deliver the company’s mission to enable the development and manufacture of life saving biologic therapies.”

Ms Carter added: “This latest transaction for Cytomos is a significant and strategic move offering a clear path for expansion for Cytomos and its entire team. Scotland’s life sciences sector is globally renowned and it gave me great personal satisfaction to help achieve such a significant milestone.”

Clyde & Co raises over £7,000 for charity

Across May, June and July this year, the team sought to make a real difference to the lives of young people living in Edinburgh, the Lothians, Fife and Falkirk. Eighteen members of the team completed the ‘5K a Day’ challenge every day in May, exploring both their local neighbourhoods and further afield and generating £401 in the process. All funds raised stay local – with an emphasis on alleviating poverty, supporting disability assistance and improving quality of life.

The team also took part once again in the Cateran Yomp in June – a gruelling 7,000 foot and 54 mile climb in the foothills of the Cairngorm Mountains which lasted nearly an entire day. Their efforts raised £5,125 for ABF The Soldiers’ charity, including a £1,600 contribution from Clyde & Co.

The team also conquered Tough Mudder Scotland 2022, a 15km muddy obstacle course at Drumlanrig Castle in Dumfriesshire. Their efforts mean the fundraising target of £2,000 for Place2Be, a UK children’s mental health charity, is within touching distance.

Overall, the team have so far raised over £7,000 across the three events.

Vikki Melville, managing partner for Clyde & Co in Scotland, said: “I’m very proud of the efforts of the teams in their charitable endeavours, which I know have been undertaken following several dedicated weeks of training and preparation. As a law firm it’s also hugely important that we give back and contribute to our local communities and these events are great examples of our local support.”

Quote of the day

Dogma is intended for, and suited to, the great mass of the human race; and as such it can contain merely allegorical truth that it nevertheless has to pass off as truth sensu proprio [in the proper sense].

Schopenhauer

And finally… sitting duck

Dmitry Ugay, 44, was arrested after giving a talk about the philosophy of yoga at a festival in St Petersburg, The Independent reports.

The part-time yoga teacher, who also works as a computer programmer, was accused of spreading religious ideas in breach of regulations under the new “Yarovaya law”.

Mr Ugay told local media: “I did not name a single religious organisation in my speech, nor did I use a single religious book, and did not name a single religious figure apart from Christ and Buddha.”

Alexander Verkhovsky, head of the Moscow-based Sova Centre which monitors the exploitation of anti-terror measures, added: “What was he calling people to join? Yoga is in no way a religious group.”