Man convicted of statutory domestic abuse offence loses appeal against conviction and sentence

By Mitchell Skilling

CA was convicted of contraventions of section 1 of the Domestic Abuse (Scotland) Act 2018 and section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He challenged the first charge, for which he was sentenced to 3 years’ imprisonment, on the basis that the jury was misdirected on corroboration and the sentence imposed was excessive. The appellant was admonished in respect of the 2010 Act charge. 

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lady Wise. Paterson, solicitor advocate, appeared for the appellant and the Solicitor General, Charteris QC for the Crown. 

Separate allegations 

The charge under the 2018 Act narrated a series of different types of abusive behaviour which, taken together, were alleged to form a course of abusive behaviour under the Act. In his direction to the jury, the trial judge gave general directions on corroboration, which were supplemented by additional directions. In these directions, the judge told the jury that each incident of allegedly abusive behaviour within the overall course did not need to be proved by corroborative evidence. 

The trial judge went on to tell the jury that what was crucial was that the course of behaviour was corroborated by evidence coming from at least two independent sources, thus requiring corroboration of at least two incidents forming the alleged course of behaviour. Provided that was the case, then whether the jury could convict of other uncorroborated elements of the charge depended on whether it was satisfied that those uncorroborated events or elements were part of the same course of abusive behaviour. 

It was the appellant’s case that the subheadings of the charge each amounted to separate allegations of criminality which each required to be corroborated before a conviction could be recorded. The effect of the trial judge’s direction was that an individual could be convicted of uncorroborated acts of criminality so long as the libel asserted a course of conduct. Whilst it was recognised that the purpose of the Act was to allow prosecution of matters which might not be considered to be criminal at all, or at least might be difficult to prosecute, it was submitted that it could not have been the intention to abolish a need for corroboration for individual acts which were of a criminal nature. 

For the Crown it was submitted that the rationale of Finlay v HM Advocate (2020), which considered the course of conduct issue in respect of section 38 of the 2010 Act, could be equally applied to section 1 of the 2018 Act, and the trial judge had given his directions correctly. The appellant argued that the case could be distinguished from the present appeal. 

Core element of the offence 

Lady Dorrian, delivering the opinion of the court, began: “The cases relied upon by the appellant confirm that in general corroboration is required to prove what may properly be regarded as separate crimes, including different episodes of assault, even where these have been libelled as part of one composite charge. This does not apply where the components are correctly to be regarded as simply component parts of a single offence of assault, where they are ‘all of a piece’.” 

Addressing the 2018 Act, she said: “The Act specifically creates a new offence which, in the words of the Lord Justice General, constitutes ‘a separate crime known as a course of conduct’. It is the course of behaviour which is the core of the offence, and it is thus the course of behaviour – in other words proof of behaviour ‘on at least’ two occasions - which must be established by corroborated evidence.” 

She went on to say: “Once there is corroborative evidence of this kind it is open to the jury to determine that other incidents equally form part of the course of conduct, even though spoken to by only one witness. Where the commission of a course of conduct is the core element of an offence, it is the proof of a course of conduct which constitutes the relevant essential element of the offence.” 

Turning to the arguments on Finlay, Lady Dorrian said: “All this was correctly recognised in Finlay v HMA, a case which dealt with an offence of threatening and abusive behaviour under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, which provides (section 38(3)(b)(ii)) that the behaviour may be constituted by a course of conduct. [Its] reasoning applies with equal, in fact greater, force to an offence under section 1 of the 2018 Act.” 

She concluded: “As to the appeal against sentence, the grounds of appeal accept that a custodial sentence was merited but assert that a sentence of three years imprisonment was excessive, the appellant having no previous convictions. We disagree. The behaviour persisted over a period of six months, and included repeated and serious acts of violence, to injury, permanent disfigurement and the danger of life, all in the context of emotionally abusive and controlling behaviour. The sentence cannot be described as excessive.” 

The appeal against sentence was therefore refused. 

Morton Fraser profits grow 40 per cent in record year

The record results allowed the firm to deliver a staff bonus pool of over £600,000, which is 50 per cent higher than the previous year and 30 per cent higher than 2019/20. The firm pays bonuses to all staff, not just fee-earners.

The firm has also invested more than £1 million in a new, central Glasgow hub designed for hybrid, collaborative working as part of a post-Covid modernisation programme.

The new hub aims to break old stereotypes associated with working at law firms, offering lots of collaborative co-working spaces, standing desks and informal booths.

“Morton Fraser’s people have no set boundaries for working in the office and are encouraged to balance their wellbeing with their work responsibilities in a way that allows them to be their best,” the firm said.

Chris Harte, chief executive of Morton Fraser LLP, said: “The pandemic reset everybody’s view of work-life balance. We have responded to that by investing heavily in a place that aids collaboration and mental wellbeing while still providing the facilities needed for the rigours of legal work.

“People should enjoy coming to the office and we have worked hard to make it a place people want to, rather than have to, be. This is a great example of putting our people first, ensuring they have the flexibility and resources they need to flourish.”

Key to Morton Fraser’s growth in the last 12 months has been a substantial increase in its transactional services. Both its corporate and real estate teams saw growth of over 30 per cent. Morton Fraser’s private client practice has also now grown by 50 per cent since 2018.

Mr Harte said: “Most in the service sector will have experienced a post-Covid bounce back. What matters is how you respond to that improvement. For us, the main priority is our people, which is why we have modernised the way we work, so we can give people flexibility to make positive choices.”

Morton Fraser has also hired two Ukrainian lawyers through the Interlaw network, offering them both employment and training in Scotland.

“We take our social responsibilities very seriously and felt it was important to respond to the call for help when it came,” Mr Harte said. “I know many Scottish firms have tried to support Ukrainian lawyers. It is heartening to see the sector come together to offer some hope to those in desperate circumstances.”

Vialex welcomes Steven Dunn as legal director

Mr Dunn has over 25 years’ experience in pensions, and was previously with Anderson Strathern where he was head of pensions and senior associate for immigration law.

He will work with Vialex’s senior legal director, Scott Moncur, who joined earlier this year as head of financial services and sustainable development, to spearhead the continued expansion of the firm’s legal services advisory work in the financial services sector.

Keith Anderson, CEO at Vialex, said: “We are delighted to welcome Steven to Vialex. Our financial services practice is developing at pace, and Steven adds a further string to our bow with his extensive experience in pensions.

“Also his experience in immigration law plugs a gap in our offering, and will allow us to better support corporates in all sectors looking to bring in talented and highly skilled people to their organisations. We see a real opportunity in that area and Steven’s expertise will help us deliver on that.”

Edinburgh academic assisting Canadian inquiry into mass shooting

The Mass Casualty Commission is an independent, public inquiry established to examine the causes, context and circumstances of a mass casualty in rural Nova Scotia in April 2020, in which 23 people died.

The Commission will be providing recommendations in a range of related areas, including the responses and organisation of policing in rural and remote areas.

Dr Souhami is a leading scholar in rural and remote policing and police/community relationships and was appointed as consultant to the Commission in 2021.

She has provided an expert report on rural and remote policing, and has participated in the public proceedings intended to inform the Commission’s decision-making.

Andrew Foyle: The clock is ticking for financial services firms to plan for the FCA’s new consumer duty

In the UK, the clock is ticking for financial services firms, regulated by the Financial Conduct Authority (FCA), to plan for the new Consumer Duty. Around 8% of the Scottish workforce is employed in the financial services sector, which according to Government figures continues to grow faster than the wider economy in Scotland and represents £8.8 billion of Scottish GDP. It’s therefore of vital importance that FCA regulated firms in Scotland know what is expected of them in relation to the Consumer Duty and are prepared for the changes which will come into force in 2023.

Before outlining precisely what the Consumer Duty is, let’s take a step back to understand what has led the FCA to overhaul the standards it expects of firms to uphold towards consumers.

Background

For well over two decades the FCA and its predecessor – the Financial Services Authority - has included the requirement to “Treat Customers Fairly” in its Principles for Businesses. There is also an obligation to pay due regard to the information needs of its customers. Those core requirements, set out in in Principle 6 and 7, have steadily been supplemented by specific rules and guidance. However, for several years the FCA has been of the view that the existing rules and guidance are insufficient to protect consumers.

Consequently, in 2021 and 2022 the FCA has consulted extensively on a proposal to replace Principles 6 and 7 with higher expectations as to the standard of care owed by firms to their retail customers. The result is the new Consumer Duty, the final iteration of which was published in July 2022. Comprised of a new policy statement, detailed new rules and specific non-handbook guidance, it sets out the FCA’s aims and objectives and the expectations it has of firms.

It is, by some measure, the most significant intervention by the FCA in the retail financial services sector for many years.

The Consumer Duty explained

Under the Consumer Duty, firms must proactively act to deliver good outcomes for retail customers.

The Consumer Duty comprises of:

• a new Consumer Principle (Principle 12) to replace Principles 6 and 7
• Overarching “cross cutting rules” and
• Four Outcomes

Principle 12

The new Principle is expressed in simple terms:

a firm must act to deliver good outcomes for retail customers

Overarching cross-cutting rules

There are three rules which inform and support the four outcomes:

1. firms must act in good faith towards retail customers;
2. firms must avoid causing foreseeable harm to retail customers; and
3. firms must enable and support retail customers to pursue their financial objectives.

The Four Outcomes

The fours outcomes applicable to the Consumer Duty are

1. Products and services – products and services must be fit for purpose and designed to meet the needs, characteristics and objectives of consumers in the identified market
2. Price and value – firms must consider whether products and services represent fair value
3. Consumer understanding – communication to customers must be such that they are able to make informed decisions
4. Consumer support - firms are expected to provide support that meets the needs of customers

The FCA’s expectation is that the Consumer Duty will be embedded in the distribution chain and will apply at all levels of the customer journey – including product design, distribution, promotion, outcomes and complaints. Significantly, in many firms, especially those who have limited or no consumer facing role, this will require a significant cultural change. A firm will need to demonstrate that the requirements have been embedded within the organisation and form part of the firm’s culture. In this regard, the non-handbook guidance in relation to the Consumer Duty sets out an expectation that firms will appoint an independent non-executive Director to act as a Consumer Duty champion.

Senior managers and certification regime

Notably, under its new rules, the FCA will expect senior managers in firms to be accountable for customer outcomes. Indeed, in the latest rules the FCA has introduced a new conduct rule that requires conduct staff to act to deliver good outcomes for retail customers.

Timeline

There is a great deal for firms to consider and clearly the timescale for implementation is tight!

• End of October 2022 - firms are expected to have an implementation plan in place approved by the board. The FCA has made clear that firm’s can expect to be asked to provide details of their plan and be challenged on its contents.
• End of July 2023 - the Consumer Duty will apply to existing and new products and services
• End of July 2024 – the Consumer Duty will apply to closed products and services which are no longer being sold or renewed after July 2023 but where the new standards will still have application

Time for firms to take positive action

Time is of the essence given the end of October deadline and firms need to start taking action now.

Notably, at Shoosmiths we have assembled a dedicated team of specialists who have been busy assisting clients to navigate the issues that will arise in implementing the consumer duty.

In essence, firms will need to consider the following key actions:

• a governance framework to identify who is responsible and accountable for delivery of the Consumer Duty within the business.
• Identify relevant products and services
• Identify relevant procedures (e.g. complaints processes)
• Undertake a gap analysis to identify areas where changes need to be made to products, services and/or processes
• Finalise and obtaining sign off on the implementation plan by the end of October 2022
• Create a compliant culture – appointing a Consumer Duty Champion, providing training on the requirements of the Consumer Duty, looking at performance and appraisal programmes, incentive schemes etc.
• Amend processes and procedures to ensure compliance with the Consumer Duty
• Identifying products and services that may need amendment or to be withdrawn

In light of the scope of these requirements, it’s likely that when implementing the Consumer Duty, firms will need, initially at least, to take a risk-based approach and aim to prioritise the areas that will have the greatest impact on consumer outcomes.

Failure to comply

If it becomes apparent that a firm will be unable to comply with the deadlines, or if compliance will require the withdrawal or restriction of products and services either permanently or temporarily, early engagement with the FCA will be vital.

A failure to comply with the new Consumer Duty may result in action being taken against the firm. In this regard, the FCA has a range of supervisory and enforcement powers which include (but is not limited to) a requirement to remediate, the imposition of financial penalties on the firm and individuals and restrictions on permissions to undertake certain types of business.

Although the new Consumer Duty broadly accords with the outcomes of the FCA’s consultation process, compliance within the stipulated timescales will be a significant challenge for many firms. The clock is ticking for all firms to comply and now is the time for decisive action by those businesses which have yet to take any significant steps to assess the work that will need to be undertaken.

• Andrew Foyle, Daren Allen, and Jonathon Crook are partners at Shoosmiths.

Historical event to explore George IV’s famous visit to Edinburgh

Part of a series of events marking 200 years of the Signet Library, the talk is titled Identity, Imagination and George IV in Edinburgh and will depart from traditional accounts of the visit.

Mr Pirrie, a historian and lawyer who is completing a PhD at King’s College London, will be joined for the event by KCL’s Professor Arthur Burns, academic director of the Georgian Papers Programme, and Professor Paul Readman, both of KCL’s history department.

The event is free but tickets are limited and must be reserved on Eventbrite.

Review calls on Edinburgh to publicly acknowledge and apologise for role in slavery

The findings and recommendations of the review, commissioned in 2020 and led by Sir Geoff Palmer OBE, will be considered by city councillors next Tuesday.

The council’s policy and sustainability committee will be updated on the background and milestones of the work undertaken by the group and consider the ten recommendations and proposed outline action plan for implementation.

The review has recommended that statues, monuments, buildings and street names associated with slavery and colonialism in Edinburgh are retained, but re-presented in accordance with a new, dedicated interpretation strategy which explains the nature and consequences of that involvement.

Universities and research bodies have been encouraged to fund, develop and publish studies into the many under-researched aspects of Edinburgh’s connections with slavery and colonialism, prioritising the objectives of the new interpretation strategy.

Other recommendations include:

• City-wide observance of the annual, UNESCO-designated International Day for the Remembrance of the Slave Trade and its Abolition every August 23 is introduced and resourced.
• Teaching and learning materials are developed and delivered to fill the gap in respect of Scotland’s and Edinburgh’s role in slavery and colonialism
• Friendship agreements are initiated with cities in countries most impacted by Edinburgh’s historic involvement with slavery and colonialism.
• A significant public artwork is commissioned acknowledging Edinburgh’s links with slavery and colonialism. This initiates the development of a city-wide strategy for public art that fairly represents the diversity of the city and its histories, and capitalises on the creative potential of a multi-cultural city.
• A positive programme of cultural commissions is established, empowering and resourcing emerging Black and Minority Ethnic creatives in Edinburgh to participate in and shape existing festivals, arts and heritage programmes.
• The Council endorses the work of the Empire, Slavery and Scotland’s Museums steering group (ESSM) established by the Scottish Government, and commits to exploring how the capital can contribute to the creation of a dedicated space addressing Scotland’s role in this history.
• An independent legacy stakeholder group is established, supported by the Council, to ensure approved recommendations are actioned, resourced and monitored, and progress is reported annually

Council leader Cammy Day said: “We commissioned this independent review because we felt it was an important and useful starting point for a wide-ranging public discussion about the modern-day impact of this legacy, and to acknowledge that race-based discrimination has deep roots in our capital. It still shapes the life experiences of black and minority ethnic residents today, and that is unacceptable.

“Racism must be talked about, and action to end it must be supported if it is to be stamped out and we are to be the inclusive and welcoming city that the vast majority of its residents wants and expects it to be.

“Thanks to the work of the group we have 10 recommendations to consider that reflect the opinions and preferences of our residents about this subject. I would like to thank the group and chair Sir Geoff Palmer for their time and commitment to undertaking this review. I look forward to the discussion next week and consideration of how the recommendations can be taken forward.”

Sir Geoff said: “On behalf of the review group, I would like to thank The City of Edinburgh Council for its innovative decision to commission an independent review of the City’s links with Slavery and Colonialism. It was a great honour to chair these groups.

“Having spent over 50 years in scientific research I am delighted that the recommendations of this review are based on sound methodology and that this project has attracted positive attention from different parts of the world. In general, the recommendations indicate that the racism and discrimination that exist in our society can be changed for the better using education and public engagement.”

If approved the action plan will be taken forward. Whilst some will be implemented quickly, proposals for how medium and long-term recommendations will be brought back to committee once they have been further developed.

And finally… getting ugly

An inquiry into the maths textbook, published nearly a decade ago, was launched after the illustrations were widely mocked on Chinese social media earlier this year.

A months-long government inquiry has concluded that the illustrations “properly reflect the sunny image of China’s children”, The Guardian reports.

Education authorities said 27 people had “neglected their duties and responsibilities” and have been “dealt with accordingly”, though no further details have been given.

The illustrators, designers and their studios will also no longer be allowed to work on textbooks again.

Hamilton Mullan celebrates five years and expand their training programme

Specialising in judicial expenses, executry and private client feeing, HMLA continue to expand their training programme and are currently recruiting for a further Trainee Law Accountant for their organisation based in Stirling.

HMLA continue with their bespoke training plan which includes blended methods of training from On The Job; through to all the theory and practise required to become a competent Law Accountant. In addition to this, the Law Accountants also complete the SOLAS qualification to assist them with a better understanding of other areas of the legal system. They have number of Law Accountants who have successfully completed their training and now play an important role within the organisation. There is now an opportunity to recruit a new trainee.

David Hamilton – Director, explained that the company place a particular focus on technology which lends increased value and flexibility to their clients. For example, they have developed their own Case Management system which provides high quality management information to their client base on topics such as ‘number of lapsed days, settlement periods, settlement amounts, percentage recoveries and a whole range of further statistics geared to assist instructing solicitors. From his days working in-house for two large Glasgow practices David is aware that the provision of high-quality relevant management data in addition to producing Judicial and Client Accounts adds an important extra dimension to the service on offer. The Hamilton Mullan Team look forward to welcoming a new colleague very soon.

Hamilton Mullan Law Accountants

Legal Software Automation - Become a more effective Law Firm

At first, we weren’t sure if this was the lawyer suggesting that innovation, automation, etc, didn’t really matter to them. We were slightly concerned the conversation was heading towards an early exit. However, as the chat continued, they clarified that what they meant was that they were excited by legal tech innovation and wanted to use automation as much as possible, but their primary goal was to ensure that the legal work they were doing was being done in the most effective way possible. They knew they had great people but that automating some of the more time-consuming, repetitive processes could take their business to another level.

We are still working with that law firm today creating better, bespoke, task orientated, workflow style automation for each of their legal departments, using CaseLoad. Through legal software automation, we are empowering their team of solicitors to create self-serve and self-help tools for their legal services and their clients. The goal we set out was simple – free lawyers and their support teams to focus on the high-value tasks where they can uniquely add value as experts such as; simply practicing law, engaging in conversation with their clients and providing strategic advice. In short… we are using software to streamline, improve productivity, increase efficiency and be effective!

Read more about how Denovo can help automate your Law Firms daily manual tasks – Legal Software Automation