Sheriff Appeal Court refuses sentence appeal by man who drove lorry to Stonehaven while drunk

By Mitchell Skilling

Timothy Humphreys was disqualified from driving for 3 years and 7 months and sentenced to 6 months’ cumulo imprisonment after pleading guilty to two offences of driving a lorry while under the influence of alcohol. He challenged the imprisonment sentence on the basis that alternatives to custody ought to have been considered given the gravity of the offence. 

The appeal was heard by Sheriff Principal Mhairi Stephen QC and Appeal Sheriff Thomas McCartney. The appellant was represented by Shand, advocate, and the respondent by Edwards QC. 

Drinking at the wheel 

On 21 November 2021 at approximately 6:15pm, the appellant drove a HGV for 20 miles northbound on the A90 from Stracathro to Stonehaven. The appellant indicated to the author of the Criminal Justice Social Work Report prepared in advance of sentencing that he had been drinking at the wheel. While on the A90, the appellant allowed his lorry to drift from lane to lane in a haphazard fashion, which was observed by a driver behind him who followed him to Stonehaven, at which time the police had been alerted. 

The appellant was found by the police to have 98 micrograms of alcohol per 100ml of breath, 76mg over the legal limit. He had previously admitted to an analogous drink driving offence in 2010 that resulted in him being disqualified from driving for 16 months, and his record also contained convictions from both England and Scotland including burglary, threatening and abusive behaviour, and other road traffic offences. At the time of the offences in the charges, the appellant had been on bail in relation to pending charges under the Sexual Offences (Scotland) Act 2009. 

No challenge was made in respect of the appellant’s disqualification from driving. However, the appellant challenged the custodial sentence of 9 months’ imprisonment, reduced to 6 months by his guilty plea. Counsel for the appellant argued that the sentencing sheriff had failed to correctly follow the procedure in section 204 of the Criminal Procedure (Scotland) Act 1995.  

It was submitted that the sheriff had failed to fulfil his obligations under section 204(3A) and (3B) and state in clear and informative terms why no disposal other than a custodial sentence was appropriate. The gravity of the offence was such that a sufficiently tough community-based disposal would have met the sentencing objectives. 

High degree of negligence

Sheriff Principal Stephen, in an ex tempore decision, observed: “Clearly the appellant’s decision to drive an articulated heavy goods vehicle whilst under the influence of alcohol to a very significant degree is eloquent of a high degree of negligence and culpability. The appellant showed a reckless disregard for the actual and potential danger of driving an HGV whilst intoxicated. In doing so he had imperilled the safety of other road users.” 

She continued: “The fact that there was no accident or collision does not diminish the danger which the appellant posed to other motorists and their passengers on a busy trunk road. The absence of any accident was fortuitous and may explain why this matter is on summary complaint.” 

Addressing the sentencing sheriff’s reasoning, Sheriff Principal Stephen said: “The submission was made that the sheriff erred in failing to indicate specifically why the statutory presumption or requirement not to impose short custodial sentence was not observed or followed in this case. However, as the sheriff correctly observes, the existence of such a requirement does not mean that is it never appropriate to impose a custodial sentence of 12 months or less. Rather it means that such a sentence requires to be justified on the facts and circumstances of the case.” 

She went on to say: “We are satisfied that the sheriff had regard to section 204 in its entirety; is aware of the requirements of section 204 (3A) and of the constraints on a short sentence if imprisonment is to be imposed. In many cases the reason is plain. In this case the sheriff made it clear that the gravity of the offending required a custodial term. If the reason for imposing a short custodial term was not minuted nor specifically and separately addressed it was hiding in plain sight. The reason is identical – the gravity of the offending.” 

Sheriff Principal Stephen concluded: “In these circumstances we do not consider that the sheriff erred. Nor do we consider that a failure to minute the reasons, although suboptimal, vitiates the sentence. Nonetheless, it is important that when the clerk in a summary criminal court minutes a custodial disposal brief reasons must be given for a sentence of 12 months or less (and indeed for a first prison sentence). Section 204(3A) certainly does not prohibit a court from imposing a custodial sentence on summary complaint even where there is no aggravation libelled.” 

The appeal against sentence was therefore refused.

Davidson Chalmers Stewart promotes Steven McAllister to partner

Mr McAllister joined the firm in 2019, having previously worked with major commercial terms and as legal counsel at Renewable Energy Systems (RES), the world’s largest independent renewable energy company.

During his two years within DCS’s renewable energy practice, he has further developed his commercial experience advising developers, landowners and investors across a range of areas including onshore wind, solar PV and battery storage.

The firm said his in-house experience, like that of fellow partner Nicola Scott, who joined DCS last year having previously worked as legal counsel at SSE, brings additional insights and unique value to the team.

Meanwhile, the firm announced that renewable energy lawyers Alex Irwin and Chala McKenna had been promoted to associate level. Ms McKenna is an environmental law specialist who formerly held an in-house role at SEPA.

Andrew Chalmers, managing partner at Davidson Chalmers Stewart, said: “We’re delighted to welcome Steven as our newest partner and announce his appointment as the head of the renewable energy team. Since joining the firm he has been a huge asset to our team where he’s brought a valuable perspective from his former role as an in-house legal counsel.

“I’m also pleased to announce the associate level promotions of Alex Irwin and Chala McKenna, two further rising stars within the firm whose energy, knowledge and commitment is benefiting our clients.”

Mr McAllister added: “I’m delighted to be heading up the firm’s highly respected renewable energy team. This is an exciting time for the renewable energy industry, especially within Scotland, where there are immense opportunities for growth as we look to further reduce carbon emissions and increase energy generation utilising the country’s wealth of natural resources.”

Law Society raises trainee recommended pay by five to six per cent

The new recommended rates from 1 June 2022 will be £20,500 for first-year trainees (up £1,000 or 5.1 per cent) and £23,750 for second-year trainees (up £1,250 or 5.6 per cent).

Recommended pay has previously remained frozen for the past two years, in response to the economic impact of the Covid-19 pandemic.

The recommended rate remains discretionary, with employers able to set their own rates of pay provided they do not pay less than the Living Wage as set by the Living Wage Foundation.

Law Society of Scotland president Ken Dalling said: “We have carefully considered the needs of trainees and employers in coming to this determination, and believe these rates strike the right balance to ensure the legal profession continues to thrive now and into the future.

“We understand that many businesses in the legal sector continue to face intense cost and other pressures, none more so than those working in legal aid. But we have also been mindful of the squeeze that inflationary pressures are having, particularly for those on more modest salaries, and of the fact that recommended rates have remained frozen in recent years.

“Trainees are integral to the profession and we have to ensure they are paid fairly for their work whilst balancing that against the pressures on many training units. It is also important to note these rates remain our recommendation only and training units have some room for discretion.

“Law graduates today have more career choices than ever before, so we must not ignore the increased competition the sector faces. It is critical that the solicitor profession continues to attract high calibre individuals, both through pay and other factors.”

Thorntons lawyer urges employer caution over ‘summer hours’

Chris Phillips made the comments after it emerged that Big Four accountancy firm PwC would offer staff shorter work hours on a Friday during the summer months of June, July and August.

“The idea of shortening or flexing hours for staff over the summer is great in principle and, as long as it’s appropriate for that particular organisation and managed carefully, it can be a real win-win, helping employers to retain valued staff and letting colleagues feel more valued,” Mr Phillips said.

“They may also end up being more productive overall when they are at work despite working slightly fewer hours. They will feel more rested and that they have achieved a better work-life balance.

“These can be key considerations in what is a tough labour market for employers with staff in so many areas and sectors in short supply and more susceptible to having their heads turned by what they perceive as a more understanding employer. But care needs to be taken in devising and managing your approach as an employer.”

He continued: “First, you need to make sure that it is going to be right for your business and the clients or users for whom a service needs to be provided. It won’t be practical for every organisation and also won’t be suitable for every category of worker either.

“Second, if you do choose to introduce a policy you need to be clear what the parameters will be. That will include making clear that it is a temporary, non-contractual arrangement and subject always to business needs. Having a written policy setting out the key points makes sense and helps to avoid misunderstanding. It also minimises the risk of abuse and provides a stronger basis for managing any issues that do arise.

“Any policy needs to be implemented fairly and consistently too so its use is seen as beneficial rather than becoming a source of resentment. It also makes sense to trial it first and review any feedback carefully to identify and resolve any issues early on. Keeping any policy under regular review is always a good idea as circumstances can change.”

Mr Phillips is a member of the Employment Lawyers Association, the Scottish Discrimination Lawyers Association and has been accredited by the Law Society of Scotland as an employment law specialist since 2005. He is also an external examiner in employment law for the University of Dundee and chairman of Fife College Foundation.

Addleshaw Goddard launches AG Elevate accelerator programme

AG Elevate is a fast-track 10-month programme designed to advance tech businesses in all sectors of the economy through legal challenges that arise as they grow. It has supported more than 30 tech entrepreneurs since it launched in 2017.

Having recently opened in Luxembourg and Ireland, taking AG to 17 international offices, the firm is again extending AG Elevate to all of the markets that it operates in. Previous AG Elevate cohorts have included Scottish businesses BlackArrow Financial Solutions, Trojan Energy, Amiqus, Trace and OBR.

Designed, developed and delivered by AG’s expert lawyers, the flexible programme helps businesses tackle the variety of legal and other challenges they may face when scaling up by providing access to legal advice, legal and business mentors and networks across the globe.

Elvan Hussein, partner and co-programme lead at Addleshaw Goddard, said: “We have emerged from the pandemic into a different environment, with tech integrated in all aspects of our lives and this continues to both offer opportunities for high growth and the chance for tech businesses to play a huge part in rebuilding and growing our economies wherever they are based.

“AG Elevate is tried and tested and we understand what matters most to these businesses, and what challenges they will inevitably face. Our mentors have the specialist sector knowledge to bring tangible added value to the relationships with their Elevate members, beyond their undoubted legal expertise and we can’t wait to meet our new cohort.”

To qualify for consideration for a place on the programme, businesses need to have existing plans for high-growth and have received external funding.

Up to one-third of places on the AG Elevate programme will be ring-fenced for allocation to businesses with a proposition which has a strong focus on sustainability. Over the 10-month programme the chosen businesses will have access to legal mentors, legal advice and industry networks to help them elevate and grow their business.

The package of support includes:

• An assigned legal mentor who will meet with you every month to identify legal challenges you are facing
• 25 hours of free legal advice on any specialist areas, being legal advice on funding, payments, financial regulation and technology
• Access to AG’s legal seminars and networking events
• Access to AG’s legal updates and other publications
• Access to regular insight sessions hosted in collaboration with business mentors in our AG network
• All other legal advice offered by AG will be provided at 30% discount
• Access to AG Elevate’s ‘knowledge hub’ which links members of the cohort with each other and alumni as well as a depository for self-service legal precedents

David Anderson, partner and co-programme lead at Addleshaw Goddard, added: “Our teams are embedded in the ecosystem of the high-growth technology sector and regularly advise businesses and their founders on their strategic objectives.

“We also understand where technology investors and acquirers are coming from, and this combined experience allows our mentors to help the cohort meet their commercial goals. There is a huge appetite for innovation and disruption across all sectors and we look forward to seeing what the fifth AG Elevate cohort can achieve.”

The programme is open for applications now via the website. Applications will close at the end of May 2022.

Suzanne Knowles: Challenging times ahead for UK businesses and their directors

The current outlook

New data from the Office of National Statistics, published on 5 May 2022, has highlighted the scale of some of the challenges UK businesses are facing. Unsurprisingly, rising energy prices and the increasing cost of other goods and services remain a key concern across a range of sectors. In particular, the data shows:

• Almost a fifth of businesses reported that their turnover decreased in March 2022, compared with the previous month.

• Nearly half of businesses reported an increase in the price of materials, goods or services bought in March 2022, with this proportion rising to 65 per cent for the construction sector and 77 per cent of businesses in the accommodation and food service industry. Around a third of businesses also reported their production and/or suppliers had been affected by recent increases in energy prices.

• Against this backdrop, more than half of businesses indicated they have been affected by price increases. Over 50 per cent of businesses in the manufacturing and accommodation and food services industries reported having to absorb additional costs, against an average of 38 per cent across all sectors.

• A number of businesses also reported a drop in domestic demand for goods and services in March 2022, including almost a quarter of businesses in the motor vehicle and accommodation and food service industries.

Faced with such challenges, there can be pressure on directors to adapt their operations and implement new strategies to weather an uncertain outlook. As prices rise, many businesses are having to give careful consideration to their financial position and explore different options for protecting cash flow – whether that includes refinancing funding arrangements, negotiating with creditors, making redundancies or other operational restructuring.

As a result, directors may find themselves having to make difficult decisions which can often have a significant impact on their employees, creditors and other stakeholders. At the same time, directors must be mindful of their duties. Where a company is experiencing financial difficulty, directors should be alive to the risk of personal liability and/or disqualification from acting as a director in the event of any breach of duty, such as for wrongful trading. The personal impact of these concerns should not be underestimated.

Finding the right solution

While the proportion of businesses absorbing price increases suggests a level of resilience across different sectors, there are undoubtedly challenges ahead. In these circumstances, early engagement with specialist advisers can be beneficial in helping directors understand their responsibilities and assess restructuring options.

What’s more, at Shepherd and Wedderburn, we recognise periods of distress can be difficult for directors to navigate and understand the need for them to look after their own mental health and wellbeing. This is why we have collaborated with Care first, a leading wellbeing services provider, to give the company directors we work with free access to a wellbeing assistance programme.

Care first offers 24-hour confidential counselling, information and support, with all calls answered by counsellors accredited by the British Association for Counselling and Psychotherapy. By facilitating access to Care first’s services, we aim to give directors access to the dedicated, expert support they may need to care for themselves so they are fully equipped, in turn, to make the best business decisions.

• Suzanne Knowles is a senior associate in Shepherd and Wedderburn’s restructuring and business advisory team.

UN body calls for release of Scottish Sikh detained in India

Mr Johal, a Sikh from Dumbarton, was arrested shortly after travelling to the Punjab for his wedding in November 2017. He denies being involved in a plot to assassinate Hindus.

The UN working group has now said that the “continued pre-trial detention of Mr Johal lacks legal basis, and is arbitrary”, noting in particular that there is “no judicially admissible evidence against Johal, despite intelligence agencies having over three years to investigate”, The Guardian reports.

The group’s report, which has not yet been published online, reportedly concludes that Mr Johal was “targeted because of his activities as a Sikh practitioner and supporter and because of his activism writing public posts calling for accountability for alleged actions committed against Sikhs by the authorities”.

It goes on to say that he has been “deprived of his liberty on discriminatory grounds, owing to his status as a human rights defender and based on his political activism, religious faith and opinions”.

Maya Foa, director of Reprieve, said: “This is a watershed moment. There is no longer any excuse for the government’s continued failure to call for Jagtar’s release and return. When a British citizen is tortured and held in pre-trial detention for four years, facing a potential death sentence, the prime minister’s responsibility is clear. What is Boris Johnson waiting for?”

NEW Law Society of Scotland accredited PEAT2 training provider – Kinch Robinson

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This course includes all compulsory Mandatory Ethics topics – Anti-Money Laundering, Conflict of Interest and Confidentiality. Being fully immersive, other core subjects such as regulation of the profession, rules, standards and conduct and duties to the court are also covered.

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And finally… grassed up

The suspect, named as Marcus Renard Hubbard, was caught on CCTV taking a lawnmower from a home, filling it up with petrol and then mowing the lawn, police say.

Officers arrived at the home – in Port Arthur, Texas – and chased Mr Hubbard, who allegedly took the lawnmower with him, FOX News reports.

Police say he eventually ditched the lawnmower in an alley and escaped on foot. He is now wanted for the offence of burglary of a building.

Lodges, Pods, Terraces & Tubs

Being in “Lockdown” has changed many people’s thinking. Working from Home (WfH) is now the norm! It can be done.

Separating your work from your leisure / relaxation time is the challenge. With many of us now “stay-cationing” or “holi-staying” it is so important to have areas / spaces that you can go to that help us to achieve such.

Lodges & Pods – These provide a quick fix for dedicated Office Space and / or capacity for visitors / guests from time to time www.law-pods.co.uk / www.grand-lodges.co.uk

Glazed Terraces provide inexpensive and practical outdoor / indoor space – where there is much (day)light and an airy / healthy environment too www.exclusi-veranda.co.uk

Hot tubs are no longer a frivolous “luxury”. They are comforting, energy efficient, and provide many mental and physical health benefits www.scott-tubs.co.uk

For more information contact richard@scottslaw.co.uk

Anyone who makes a purchase during May will have the chance of winning a week’s holiday in June or July at the lodge pictured below in the Black Isle.

AQP have an expert team dedicated to Executry and Trust affairs

email: exeinstructions@alexquinn.co.uk

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