issn 0036-9314. december 2007. vol 75, no 6. scottish … · inside front cover – a message from...

Christmas Quiz 2007

PoCA Confiscation and asset recovery

Commercial Law

Company Law

Conveyancing

Employment Law

Family Law

Intellectual Property

Profit in Practice

Law Officers North and South of the Border

A Message from the President • News • Scott ish Law CommissionCase Roundup • Scott ish Statutory Instruments • Book Review

ISSN 0036-9314. December 2007. Vol 75, No 6.

SCOTTISHLL AA WWGAZETTE

A Message from the PresidentI have finally caught up with the rest of the worldand started researching my family history.

I have discovered that my relatives were ploughmen,agricultural labourers, caulkers, boilermakers andships’ fitters as well as the odd grocer, clerk andaccountant. Of course, that is what the men folk weredoing. Finding out about the women has beenslightly trickier. The census returns are often silent.Received wisdom suggests trying valuation rolls andelectoral rolls. Except that women tended not to ownproperty or be tenants and of course did not have thevote. So far the only occupation for a female relativehas been that of domestic servant.

It has been sobering too, picking over the details ofthe so called “Great War” and the photographs of theaftermath of the Clydebank Blitz. It’s no longer just ahistory lesson when its your own relatives who weredisenfranchised and dying.

So no lawyers in the family tree. But then, who would want to be part of aprofession that (according to the tabloid media) is almost universally despised?Could it be that we are part of what makes our country democratic andcivilised? That we help to ensure that people get education and get to choosetheir own calling in life. That they are not disenfranchised or dying. A countrythat knows all about that -Rwanda - has applied to join the Commonwealth. Theconditions of membership are that member States must embrace democracy, therule of law and respect for opposition. There are 53 countries who have alreadyagreed to these conditions. How bizarre then that those of us who (as lawyers)help to maintain these conditions should be held in such lowly regard. Clearlywe don’t do if for the kudos. We do it because we know it’s worth doing. In mycase I do it because I can – because I have the option of not being a domesticservant.

Best Wishes for a happy, healthy and prosperous 2008.

DOROTHY MCGHIE, President.

SCOTTISH LAW GAZETTE

ISSN 0036-9314. DECEMBER 2007. Vol 75, No 6

Contents

Inside front cover – A Message from the President

183 News

183 Scottish Law Commission

185 Case Roundup

186 Scottish Statutory Instruments

192 Christmas Quiz 2007

193 PoCA Confiscation and asset recoveryby Rosemary Martin

199 Commercial LawCommercial Agents – if its good enough for Gauis…

by Alan Barron

202 Company LawDouble Disqualification

by Richard N M Anderson

203 ConveyancingAdvance to Free Parking? – Moncrieff v Jamieson

by David Bartos

208 Employment LawIn Defence of the Employer’s Defence? – Case C-127/05Commission v United Kingdom

by James Murphie

210 Family LawThe Adoption (Scotland) Act 2007 – Part 1

by Prof Joe Thomson

211 Intellectual property1966 and all that…and ambush marketing scots style

by Thorsten Lauterbach

213 Profit in PracticeGoodbye to all that

by Brian Allingham

214 Law Officers North and South of the Borderby Ian S Dickinson

First Issued: March 1933

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Members of Council

News 183

New challenges forMichael JonesSimpson & Marwick haveannounced the appointment ofMichael Jones QC to set up andhead a new Dispute ResolutionDepartment.

He will join the firm as a SeniorPartner on 1st January 2008 andwill lead a team pioneering the useof technology in the preparationand presentation of claims, for thepurposes of litigation, arbitration,mediation and negotiation.

Mr Jones is one of Scotland’s mostexperienced specialists in advocacyand litigation, and is a trainedmediator. He will be joining thelargest team of claims experts inScotland, and his appointment willenable Simpson & Marwick tooffer their clients an unrivalledstandard of advice and support inthe resolution of their cases.

Mr Jones will be the first QC fromthe Faculty of Advocates, tobecome head of a Scottish litiga-tion practice. He has worked close-ly with the firm throughout hiscareer at the Scots Bar. He hasappeared for their clients in anumber of high profile cases,including the Mull of KintyreChinook helicopter crash Inquiry,the Dunblane Inquiry and, morerecently, the prosecution arisingout of the Larkhall gas explosion,where he successfully argued thatTransco could not be tried for cor-porate culpable homicide.

In his new position, he will beavailable to be instructed by solici-tors in other firms.

He is of course not the first senioradvocate to join a legal firm inrecent times. Colin Boyd QC, for-merly the Lord Advocate, is nowat Dundas and Wilson. In the early1980s Sheriff Principal Edward

Bowen, QC resigned from theshrieval bench to become a partnerin what is now Thorntons.

Almost all new advocates are nowdrawn from the solicitor profes-sion. So the barrier between thetwo professions is permeable.What does appear to be new is themigration of senior advocates inthe other direction. Solicitor-advo-cates, first permitted under theLaw Reform (MiscellaneousProvisions)(Scotland) Act 1990have proved a success. The devo-lution of stables which has takenplace this year is another indicatorof change. The OFT response to thesupercomplaint by Which? doessuggest that the Faculty’s rulesmay be unduly restrictive. Theneed for a respected referral barremains – this provides accessthrough high street firms to highquality advice. However themeans by which that system isinternally regulated looks increas-ingly out of date.

New Dean of FacultyRichard Keen QC has been electedas the new Dean of the Faculty ofAdvocates.

Mr Keen (53) takes up the office ofDean following a ballot of theFaculty's 730 members.Educated at Dollar Academy andEdinburgh University, Mr Keenwas called to the Bar in 1980 andappointed as Queen Counsel in1993. He was elected Treasurer ofthe Faculty in 2006. He succeedsMr Roy Martin QC who retiredfrom the post earlier this monthafter three years in office. Therewill now be a fresh election toappoint a new Treasurer.

Richard Keen is presently appear-ing for the family of Henri Paul atthe coroner's inquest into thedeaths of Diana Princess of Walesand Mr Dodi Al Fayed.

As a Junior Counsel, his area ofpractice covered commercial litiga-tion and insurance work. From1986 to 1993 he was StandingCounsel to the Department ofTrade and Industry.

In 1989 he was instructed in theInquiry into the Piper Alpha disas-ter. Subsequently he was engagedin the litigations which ultimatelyresolved the claims arising out ofthe disaster.

Since his appointment as QC in1993 his principal area of practicehas been commercial litigation,extending to banking, insurance,engineering, construction and off-shore energy. His advisory workhas included a number of majorfinancial restructurings recentlyincluding British Energy.

In 2000 Mr Keen led the defence ofLamin Fhimah at the trial in theNetherlands relating to the PanAm/Lockerbie bombing. Fhimahwas acquitted. Mr Keen is listed bythe Legal 500 as a leading Counselin the areas of commercial litiga-tion, construction litigation andmedia law.

Mr Keen will now lead Facultywhen the external pressures forchange have never been greater.

Scottish LawCommission –Personal injurylimitation periodsThe Scottish Law Commissionpublished a report on 5thDecember recommending that thelimitation period for personalinjury actions be extended from

News

184 Scottish Law Gazette 2007

three years to five years – a moveaimed at helping claimants andtheir representatives. TheCommission thinks that allowing alonger period will be welcomedparticularly in cases involvingclaims for occupational diseases,where gathering evidence to bringan action can be very time con-suming and difficult.

In response to the second part ofits review, the Commission recom-mends that personal injury claimswhich were extinguished before1984 should not be revived. Thispart of the Commission's workarose from concerns expressed bysurvivors of alleged institutionalchild abuse during the 1950s and1960s that they could not bringclaims for damages because theirright of action had been extin-guished as a result of the law ofprescription.

Changes to date from which timebegins to run The 1973 Act contains provisionsthat define the date when the limi-tation period starts to run. Thestart of the period may be delayedin cases where it was not reason-ably practicable for the pursuer tobecome aware that his injurieswere sufficiently serious to justifyhis bringing an action of damages,although this is subject to certainassumptions that tend to operateagainst the pursuer. TheCommission proposes that this testshould be amended to removethose assumptions; the result willbe that the test concentrates on thequestion of the seriousness of thepursuer's injuries. In addition, theCommission proposes that the testshould be amended by delayingthe start of the limitation periodduring any time when the pursuerwas excusably unaware of the seri-ousness of his injuries or that theywere caused by an act or omissionof the defender. It is thought that,in a limited number of cases, thiswill produce a result that is fairerto pursuers who are, quite reason-ably, unaware of how serious their

injuries are.

Judicial discretion to allow atime-barred claim to proceed –guidelines for the courts The Report also recommends thatcourts should continue to havediscretion to allow otherwise time-barred claims to proceed. It allowsthe courts to deal with hard casesand has the advantage of mitigat-ing the arbitrariness in a time limit,for example by enabling actions toproceed where the limitation peri-od may have been overshot byonly a very short period. Nearly allthe Commission's consulteesthought that the judicial discretionshould be retained. In addition torecommending the retention of thejudicial discretion, the Commissionrecommends that the 1973 Actshould be amended to include alist of factors which the court maytake into account when exercisingits discretion. The Commissionthinks this will be of considerablehelp to practitioners and thecourts.

Prescribed claims As originally enacted, the 1973 Actprovided for the long negative pre-scription of obligations, includingobligations to make reparation inrespect of personal injuries. Theeffect of the provision was thatobligations which had subsistedfor a continuous period of 20 yearswere extinguished at the end ofthat period unless a relevant claimhad been made or acknowledged.In September 1984 the provisionwas amended to abolish prescrip-tion for personal injuries anddeaths resulting from such injuries.Claims which had already beenextinguished by prescription werenot affected by this amendment.As a result, any claim for damageswhich prescribed before September1984 can no longer be pursued.Such claims would relate to per-sonal injuries arising beforeSeptember 1964.

The Commission considered thisdifficult issue from a principled

perspective, taking account of thegeneral legal policy underpinningthe law of prescription and limita-tion. It has taken into account thefollowing factors:

• Retroactive legislation would be required to create newliability where none exists at present. The Commissionconsiders that this would raise serious human rights issues andmight be incompatible with the European Convention on Human Rights; • Doubt has been cast on whether it would be competent for the Scottish Parliament to enact legislation which has retroactive effect prior to 1999; • Even if prescribed claims were to be revived, the rules of limitation would still apply. Most cases would be time-barred as a result of those rules.

While the courts have a discretionto allow a time-barred action toproceed, it seems unlikely that thatdiscretion would be exercised infavour of any pursuer whoseclaims had prescribed, for two rea-sons. First, any such claim willhave arisen more than 40 yearsago, in social conditions that arevery different from those of today.That makes the evaluation of sucha claim extremely difficult.Secondly, because of the lapse oftime, it is likely that significantamounts of evidence will havebeen lost.

While the Commission hasexpressed sympathy with victimsof institutional child abuse andothers whose claims have pre-scribed, it concludes that it wouldnot be appropriate for such claimsto be revived. It was not consid-ered appropriate to revive pre-1964claims in 1984, when prescriptionwas abolished in respect of person-al injuries and it would be evenless appropriate to revive suchclaims now after the lapse of a fur-ther period of more than twentyyears.

Scottish Law Commission – continued

Case Roundup 185

PATENT ENTITLEMENTBASED ON INVENTIONThe House of Lords overruled theCourt of Appeal’s judgement inMarkem Corporation v Zipher Ltd[2005] RPC 761 which had heldthat a person who claimed to beentitled to a patent which hadalready been granted to anotherperson could not acquire thepatent entitlement simply by prov-ing that he had been the inventorbut had to show also that the otherperson, for some other reason, hadnot been entitled to apply for thepatent and therefore had to evokesome other rule of law to establishhis entitlement to the title of thatpatent. Now, in Yeda Reseach andDevelopment Co Ltd v Rhone-PoulencRorer International Holdings Inc &Another, [2007] UKHL 43, 24thOctober 2007, the House foundthat the principle laid down inMarkem was wrong and a personwho sought to be added as a jointinventor only had to show that hehad contributed to the inventiveconcept underlying the claimedinvention. In this case, the DeputyDirector of the Patent’s Office act-ing for the Controller-General ofPatents, Designs and Trademarkshad held that the appellants wereentitled to apply to be registered asco-proprietors of the patent butthis decision had been reversed inthe Patents Court, as upheld bythe Court of Appeal, because theapplication was outwith the twoyear limitation period in relation tothe original patent application.The House of Lords now held,however, that the new applicationwas an amendment to an existingapplication and was not a new ordifferent claim and was thereforenot out of time and, further, thatthe appellant was entitled to havehis application to be added as ajoint inventor considered.

RACIAL BIAS INSELECTION PROCESSThe House of Lords addressed theissues as to whether an employ-ment tribunal had jurisdiction todeal with a complaint of racial biasin the selection process for localelections and also whether theprocess had been subject to illegaldiscrimination. In Watt (formelyCarter) and others versus Ahsan,[2007[ UKHL 50, 21st November2007 the House of Lords ruledthat the appropriate forum for acomplaint of this nature was theCounty Court under Section 25 ofthe Race Relations Act 1976 butthat, because an employmenttribunal had previously ruled thatit had jurisdiction to hear thecomplaint, the respondents werebarred by estoppel from claimingthat the tribunal did not havejurisdiction. As far as the selectionprocess had been concerned, itappeared that the selection panelhad made a conscious decision toselect a candidate who had no con-nection with the Pakistani commu-nity and, whatever the reasons forthat conscious decision, it did notsatisfy the terms of the 1976 actwhich did not allow any justifica-tion for direct discrimination. TheHouse of Lords reversed the Courtof Appeal which had ruled to thecontrary effect in each issue.

DAMAGES FOR REFUSALOF BAILLesley Ann Gault was chargedwith aiding and abetting Mr G inthe murder of her husband andwas released on bail pending trialand remained living at home withher triplets, then aged 6. At thetrial, the jury failed to return averdict and a re-trial was orderedand bail was continued. At thesecond trial, Ms Gault wasconvicted of murder by a majorityverdict and imprisoned for life butthe Court of Appeal of NorthernIreland quashed that convictionand ordered a third trial and Ms

Gault requested bail and theprosecution did not object. On 9thJuly 2004 bail was refused on thegrounds that she had beenconvicted of murder and re-trialwould take place soon. Sheremained in custody until 6thSeptember 2004 when bail wasgranted and she was subsequentlyacquitted at trial in October 2004.Ms Gault complained to theEuropean Court of Human Rightsof breaches of article 5.3, the rightto liberty and security and article8, the right to respect for privateand family life, of the EuropeanConvention of Human Rights.In Gault v United Kingdom(application no. 1271/05) on 20thNovember 2007, the EuropeanCourt of Human Rights found thatthe reasons given for refusal of bailpending the third trial could not beconsidered relevant and sufficientand held unanimously that therehad been a violation of article 5.3but that there was no separateissue under article 8 and Ms Gaultwas awarded 7,500 euros in respectof non pecuniary damages and2,020 euros for costs and expensesless 850 euros already received inlegal aid from the Council ofEurope.

LEGAL AID POWER INENGLAND DECLAREDILLEGALThe Legal Services Commission ofEngland & Wales (LSC) terminatedall general civil contracts withsolicitors for the provision of pub-licly funded civil work, as from31st March 2007 and new unifiedcontracts were sent to solicitors inFebruary 2007 with the require-ment that these be signed andreturned no later than 31st March2007, on a take it or leave it basis.The contract included provisionthat the LSC could amend any ofthe terms of the contract if it con-sidered it necessary or desirable todo so in order to facilitate a reformof the legal aid scheme which

Case Roundup


objective was defined to includethose reforms the Commissionwished to implement in order bet-ter to comply with its statutoryduties or to fulfil its statutory func-tions. Solicitors who did not wishto agree with such amendmentshad the option of immediately opt-ing out of the scheme and toimmediately cease acting for

clients concerned. However, inRegina (Law Society) v Legal ServicesCommission, Dexter Montague andPartners (a firm) v Same, the Times,3rd December 2007, the Court ofAppeal held that the power ofamendment was so wide that itamounted to a power to re-writethe contract and was inconsistentwith the principle of transparency

required by regulation 4 of thePublic Contracts Regulations(SI 2005 No. 5). Presumably, theconsequences of this finding,subject to further appeal, are thatthe new unified contracts mayremain in place but the provisionsas to amendment shall have noeffect.

Case Roundup – continued

Scottish Statutory InstrumentsLicensing Gambling andSecurity IndustryThe Gambling Act 2005 (Fees No.4) (Scotland) Regulations 2007 SSI2007/461Part 9 of the Gambling Act 2005(“the Act”) enables a person hold-ing an operating licence to give atemporary use notice in respect ofpremises. The effect of the notice isto authorise the premises to beused during the period specified inthe notice for carrying on gam-bling activities without an offencebeing committed under section 37of the Act (which makes it unlaw-ful to use premises for providingfacilities for gambling without theappropriate premises licence).These Regulations provide that afee of £350 will be payable on giv-ing a temporary use notice in rela-tion to premises in Scotland.

The Licensing (Scotland) Act 2005(Commencement No. 4) Order2007 SSI 2007/472This Order brings certain specifiedprovisions of the Licensing(Scotland) Act 2005 into force on1st February 2008 (article 2 andSchedules 1 and 2). So far as notalready in force, that Act isbrought into force at 5.00 a.m. on1st September 2009 (article 3).

Provisions of the Licensing(Scotland) Act 2005 have previous-ly been brought into force by S.S.I.2006/286 and 2007/129.

The Club Gaming and ClubMachine Permits (Scotland)Regulations 2007 SSI 2007/504Sections 271 and 273 of theGambling Act 2005 make provisionfor club gaming permits to beissued to members’ clubs andminers’ welfare institutes and forclub machine permits to be issuedto such clubs and institutes or tocommercial clubs. In Scotland, theissuing authority is the LicensingBoard for the area in which thepremises in question are situated.

These Regulations make furtherprovision in relation to club gam-ing permits and club machine per-mits where the applicant for, orholder of, the permit holds alicence granted under section 9(1)of the Licensing (Scotland) Act1976 (other than an off-sale licence)or a certificate of registrationunder section 105 of that Act.Regulations 3 to 7 provide as to theprocedure for making an applica-tion for a permit whilst regulations8 to 10 concern how such an appli-cation is to be dealt with. Provisionis made as to the form of any per-mit (regulation 11 and Schedules 2and 3), annual fees (regulation 14),and the variation, duration, cancel-lation, forfeiture and renewal ofpermits (regulations 15 and 17 to20). Regulation 21 deals withappeals.

The Licensed Premises GamingMachine Permits (Scotland)

Regulations 2007 SSI 2007/505These Regulations make provisionin relation to a licensed premisesgaming machine permit wherethe applicant for or holder of thepermit holds a licence grantedunder section 9(1) of the Licensing(Scotland) Act 1976 (licence for saleby retail or supply of alcoholicliquor) provided it is not an off-sale licence.

Provision is made as to the makingof applications for a permit (regu-lations 3 and 4), dealing with suchapplications (regulations 6 to 8),the form of a permit (regulation 9and the Schedule) and annual fees(regulation 11). Regulation 14 dealswith the duration of permits andregulations 15 to 20 with their vari-ation, cancellation, forfeiture andtransfer. Regulation 21 makes pro-vision as to appeals and regulation22 gives a power of entry in certaincircumstances.

The Licensing (RelevantOffences) (Scotland) Regulations2007 SSI 2007/513Section 129(1) of the Licensing(Scotland) Act 2005 (“the Act”)provides power to prescribe byregulations what offences are tocount as a “relevant offence” inthat Act. That phrase is used in anumber of places in the Act – forexample, section 21(3) and (4)requires the appropriate chief con-stable to notify a Licensing Boardwhether a person applying for a

Scottish Statutory Instruments 187

premises licence has or has notbeen convicted of any relevantoffence.

These Regulations specify thoseoffences which are to be relevantoffences for the purposes of theAct (regulation 2 and theSchedule). Regulation 3 makessupplemental provision about thetimescales for giving notification ofa relevant offence in certain caseswhere a sentence of imprisonmentis imposed on a date later than thedate of the conviction in question.

Courts – VulnerableWitnessesAct of Sederunt (Ordinary Cause,Summary Application, SummaryCause and Small Claim Rules)Amendment (VulnerableWitnesses (Scotland) Act 2004)2007 SSI 2007/463This Act of Sederunt makesmiscellaneous amendments to therules of procedure in the sheriffcourt as follows.

Paragraph 2 amends the OrdinaryCause Rules to provide that at anyprocedural hearing prior to a proofor hearing where evidence will beheard, the sheriff will consider anychild witness notice or vulnerableapplication that has been lodged orif such a notice or applicationshould be lodged or if any order inrelation to a vulnerable witnessneeds to be made. It also inserts arequirement that the list of wit-nesses must contain information asto whether the witness is a vulner-able witness and whether theappropriate notices or applicationshave been lodged.

A new Chapter 45 is inserted toprovide procedure and forms fordealing with new child witnessnotices, vulnerable witness appli-cations and applications to revieworders specifying the special meas-ures to be used in conjunction witha vulnerable witness. It also setsout the procedure for the special

measure of taking evidence by acommissioner.

Rule 32A.1 on the use of live TVlinks to take witnesses evidence isalso amended to exclude the use ofthis procedure by a vulnerable wit-ness as this may be ordered as aspecial measure.

The witness citation form is alsoamended to give the witness someinformation about the possibilityof giving evidence with a specialmeasure if they are a vulnerablewitness.

Paragraph 3 amends the SummaryApplication Rules to provide thatthe procedure in the new Chapter45 of the Ordinary Cause Rules isto be used if there is a vulnerablewitness to give evidence at anyproof or hearing under theSummary Application Rules. It isalso provided that the sheriff willmake enquiry as to whether any ofthe witnesses are vulnerable, con-sider any notices or applicationsrelating to a vulnerable witness, ormake any order that is requiredwhen he is fixing a hearing in asummary application.

Rule 2.32 on the use of live TVlinks to take witnesses evidence isalso amended to exclude the use ofthis procedure by a vulnerable wit-ness as this may be ordered as aspecial measure.

The witness citation form is alsoamended to give the witness someinformation about the possibilityof giving evidence with a specialmeasure if they are a vulnerablewitness.

Paragraph 4 amends the SummaryCause Rules to provide that at thecalling date hearing the sheriff willenquire whether there is or is like-ly to be a vulnerable witness, con-sider any child witness notice orvulnerable application that hasbeen lodged or if such a notice orapplication should be lodged or ifany order in relation to a vulnera-

ble witness needs to be made. Italso inserts a requirement that thelist of witnesses must containinformation as to whether the wit-ness is a vulnerable witness andwhether the appropriate notices orapplications have been lodged.

Act of Sederunt (DebtArrangement and Attachment(Scotland) Act 2002) Amendment(Vulnerable Witnesses (Scotland)Act 2004) 2007 SSI 2007/466This Act of Sederunt amends therules of procedure for applicationsin the sheriff court under the DebtArrangement and Attachment(Scotland) Act 2002. It gives thesheriff the same powers to dealwith applications in relation to vul-nerable witnesses and the specialmeasures that may be ordered inrelation to vulnerable witnesseswithin the meaning of theVulnerable Witnesses (Scotland)Act 2004 (“the 2004 Act”) that areheld by the sheriff under Chapter45 of the Ordinary Cause Rules inthe First Schedule of the SheriffCourts (Scotland) Act 1907.

The amendment is consequentupon the 2004 Act being com-menced where a person who is avulnerable witness within themeaning of section 11(1) of the2004 Act is giving or is to give evi-dence in or for the purposes of anycivil proceedings.

Act of Sederunt (Sheriff CourtBankruptcy Rules 1996)Amendment (VulnerableWitnesses (Scotland) Act 2004)2007 SSI2007/467This Act of Sederunt amends theSheriff Court Bankruptcy Rules1996. It gives the sheriff the samepowers to deal with applications inrelation to vulnerable witnessesand the special measures that maybe ordered in relation to vulnera-ble witnesses within the meaningof the Vulnerable Witnesses(Scotland) Act 2004 (“the 2004Act”) that are held by the sheriffunder Chapter 45 of the Ordinary


Cause Rules in the First Scheduleto the Sheriff Courts (Scotland) Act1907.

Act of Sederunt (Child Care andMaintenance Rules 1997)Amendment (VulnerableWitnesses (Scotland) Act 2004)2007 SSI 2007/468This Act of Sederunt amends theAct of Sederunt (Child Care andMaintenance Rules) 1997 (“the1997 Rules”) to give the sheriffthe same powers to deal withapplications in relation tovulnerable witnesses and thespecial measures that may beordered in relation to vulnerablewitnesses within the meaning ofthe Vulnerable Witnesses(Scotland) Act 2004 (“the 2004Act”) that are held by the sheriffunder Chapter 45 of the OrdinaryCause Rules in the First Scheduleto the Sheriff Courts (Scotland) Act1907. These powers apply to allhearings under the 1997 Rules,except those hearings where rulesin relation to vulnerable witnessesalready apply under Part XI ofChapter 3 of the 1997 Rules.

Act of Sederunt (ChanceryProcedure Rules 2006)Amendment (VulnerableWitnesses (Scotland) Act 2004)2007 SSI 2007/469This Act of Sederunt amends theChancery Procedure Rules 2006. Itgives the sheriff the same powersto deal with applications in rela-tion to vulnerable witnesses, andthe special measures that may beordered in relation to vulnerablewitnesses within the meaning ofthe Vulnerable Witnesses(Scotland) Act 2004 (“the 2004Act”), that are held by the sheriffunder Chapter 45 of the OrdinaryCause Rules in the First Scheduleto the Sheriff Courts (Scotland) Act1907.

The Fatal Accidents and SuddenDeaths Inquiry Procedure(Scotland) Amendment Rules2007 SSI 2007/478These Rules amend the Fatal

Accidents and Sudden DeathsInquiry Procedure (Scotland) Rules1977 (“the principal Rules”) on theconduct of fatal accident inquiries(“FAIs”) to take into account thecircumstances of vulnerablewitnesses.

These Rules also make amend-ments required to the FAI specificrules of procedure contained in theprincipal Rules, in particular toprescribe the forms required. Theyalso require intimation to civilpartners and make minor amend-ments to update references torepealed legislation.

Courts – CriminalThe Criminal Proceedings etc.(Reform) (Scotland) Act 2007(Commencement No. 2 andTransitional Provisions andSavings) Order 2007 SSI 2007/479The Criminal Proceedings etc.(Reform) (Scotland) Act 2007 (“the2007 Act”) received Royal Assenton 22nd February 2007.

Article 3 of this Order brings intoforce various sections of the 2007Act on 10th December 2007. Thesections coming into force on thatdate together with the relevantsubject matter are listed in theSchedule to the Order.

Articles 4 to 14 of the Order makesavings and transitional provisionsin relation to some of the provi-sions which are commenced bythis Order.

The provisions of Part 1 (bail) ofthe 2007 Act are brought into forceon 10th December 2007. Article4 makes transitional provisionsprimarily to clarify how thecommencement of this Part of theAct will apply to ongoing cases inwhich bail has been granted priorto the commencement date.

Article 4(1) confirms that certainprovisions of the 2007 Act willonly apply to bail orders which

have been granted after the com-mencement date. The provisionslisted could lend themselves toapplication to bail orders whichare already in existence at the timeof commencement. The inclusionof article 4(1) puts beyond doubtthat this is not the case.

Similarly, the provisions listed inarticle 4(1) will not apply in cir-cumstances where a bail order iscontinued on or after 10thDecember 2007. This is because, inthe absence of any indication to thecontrary, a bail order continues inforce until a case is finally dis-posed of. A continuation of bail,therefore, does not constitute anew decision on whether or not togrant bail (see Walker v. Lockhart1994 S.L.T. 209, Fitzpatrick v.Normand 1994 J.C. 128, Mayo v.Neizer 1994 S.L.T. 931, McGinn v.H.M. Advocate 1990 J.C. 269 andJamieson v. H.M. Advocate 1990 J.C.256).

Section 3(1)(b) of the 2007 Act cre-ates new evidential provisions inrelation to certain breach of bailoffences. New provision is insertedinto section 27 of the CriminalProcedure (Scotland) Act 1995(“the 1995 Act”). It provides that,where the defence does not chal-lenge the prosecution's assertionthat the accused: was on bail, wassubject to a particular bail condi-tion, failed to appear at a diet orwas given due notice of a diet, thatassertion shall be held as admitted.The transitional provision at article4(2) means that these presump-tions will not apply if a case hasalready reached the stage where aperson could no longer object tothose presumptions.

Article 4(3) makes transitionalprovision which means that thechanges to bail appeals to beinserted into section 32 the 1995Act (by section 4(2) of the 2007Act) will only have effect in caseswhere the decision to be appealedis taken on or after 10th December2007.

Scottish Statutory Instruments – continued


Section 7(2)(c) of the 2007 Actincreases the maximum penaltyavailable in the sheriff court for aperson breaching an undertakinggiven under section 22 (liberationby police) of the 1995 Act. Themaximum penalty is increasedfrom 3 months to 12 months.Article 5 makes transitional provi-sion to ensure that this higherpenalty level will only applywhere a person has given such anundertaking on or after 10thDecember 2007.

Section 15 of the 2007 Act amendssection 150 (failure of accused toappear) of the 1995 Act and pro-vides for a new regime of penaltiesin cases where the accused fails toattend court. It also makes newprovision as to how that failure toappear can be proved. Article 6provides that these new provisionswill only apply in cases where aperson failed to appear at a diet incircumstances where the court hadassigned that diet on or after 10thDecember 2007. For example: on8th December 2007 a court assignsa trial diet for 22nd December2007. The accused subsequentlyfails to appear at that trial diet. Theprovisions of section 15 (as itamends section 150 of the 1995Act) will not apply to this casebecause the court assigned the dietto which the accused failed toattend before 10th December 2007.

Article 7 makes transitional provi-sion in relation to sections 19(notice of defences) and 20 (proofof uncontroversial evidence) of the2007 Act. Paragraph 28 of theschedule to the 2007 Act relates tosection 19, and is also caught bythis transitional provision. Thechanges brought about by thosesections (and that paragraph) willonly apply to proceedings where,on or after 10th December 2007,the court has adjourned the case(under section 146(3) of the 1995Act) for a trial to take place at alater date.

Section 21 (service of documents

through solicitor etc.) of the 2007Act introduces a new requirementon solicitors engaged by anaccused to intimate that fact to theprocurator fiscal and the court.Article 8 makes transitional provi-sion so that any notification whichwould comply with the newrequirements but was given priorto the commencement of section 21will be taken as satisfying the newrequirements. If no such notice hasbeen given then the appropriatenotification is to be given forth-with.

Article 9 makes similar transitionalprovision to that found in article4(2) but in the context of thechanges made to section 90C(breach of bail under section90B(1)(b)) of the 1995 Act by sec-tion 27(2) of the 2007 Act. Again,this transitional provision ensuresthat presumptions as to certain fac-tors pertaining to bail cannot bemade if a case has reached a stagewhere a person would not be ableto exercise their right to object tothose presumptions.

Article 10 makes savings provi-sions in relation to the power ofthe High Court of Justiciary togrant production orders andorders for commission and dili-gence. The article confirms that thenew provisions of section 37(recovery of documents) do notapply to any petition which hasbeen lodged prior to 10thDecember 2007. This provision willallow the High Court to deal withany extant petitions at the time ofcommencement of section 37 of the2007 Act.

The savings provision in article 11confirms that the provisions of sec-tion 40 (power of the court toexcuse procedural irregularities) ofthe 2007 Act will not apply toirregularities which arise before10th December 2007.

Sections 43 to 48 of the 2007 Actmake provision in respect of sen-tencing powers. The transitional

arrangements found in article 12mean that the specified provisionswill apply only to cases where afirst calling took place after 10thDecember 2007, or where a “initi-ating warrant” (ie a warrant grant-ed under section 135 or 139(1)(b) ofthe 1995 Act) has been grantedafter 10th December 2007.

Article 13 makes saving provisionin relation to changes made to sec-tion 245F (breach of restriction ofliberty orders) of the 1995 Act bysection 58 of the 2007 Act. Thesechanges mean that the evidence ofone witness will be sufficient toestablish a breach of a restriction ofliberty order. By virtue of the sav-ings provision in article 13, breach-es of such orders which take placebefore 10th December 2007 will notbe affected by this change.

Paragraph 16(6) of the schedule tothe 2007 Act rectifies an omissionin section 119(11) of the 1995 Actby substituting new cross refer-ences in that section to parts of sec-tion 65 (prevention of delay in tri-als) of the 1995 Act. The effect isthat where the High Court grantsauthority to bring a new prosecu-tion under section 118(1)(c) of the1995 Act when disposing of anappeal, and the accused is remand-ed in custody pending trial, thecustody time limits in section 65 inboth sheriff court and High Courtsolemn proceedings will apply. Byvirtue of this transitional provisionthose time limits will not apply tocases where the High Court grant-ed authority for re-trial before 10thDecember 2007.

The District Courts and Justicesof the Peace (Scotland) Order 2007SSI 2007/480This Order is made under powerscontained in the CriminalProceedings etc. (Reform)(Scotland) Act 2007 (“the 2007Act”).

Article 3 is made under section64(4) of the 2007 Act. A number ofprovisions within the District


Courts (Scotland) Act 1975 (“the1975 Act”) are repealed. They arereplaced by new provisions relat-ing to the appointment, trainingand appraisal of JPs, contained inPart 4 of the 2007 Act.

Article 4(1) is made under section64(5) of the 2007 Act. It sets out theprovisions of the 1995 Act (intro-duced by the 2007 Act) that applyto remaining district courts in thesame way as they apply to JPcourts.

Article 4(2) is made under section64(6) of the 2007 Act. It modifiesthe effect of sections 17 and 18 ofthe 1975 Act for the purposes ofremaining district courts.

Article 5 is made under section67(7) of the 2007 Act. That sectionallows the Scottish Ministers tospecify a day on which those whohold office as justices of the peaceunder the 1975 Act cease to holdthat office. Subject to section 67(8)of the 2007 Act, a person whoholds office on the specified day,10th December 2007, is to beappointed as a JP under section67(1) of the 2007 Act, unless theperson declines the appointment.

Articles 6 to 14 are made undersection 71(7) and (8) of the 2007Act, and make provision in con-nection with the procedure to befollowed by and before a tribunalconstituted under section 71 of the2007 Act. Such a tribunal is consti-tuted to carry out an investigationat the request of the sheriff princi-pal in order to ascertain whether aJP should be removed from officeon the basis of any of the groundsset out at section 71(6) of the 2007Act.

Act of Adjournal (CriminalProcedure Rules Amendment No.5) (Miscellaneous) 2007 SSI2007/495This Act of Adjournal makesmiscellaneous amendments to theCriminal Procedure Rules 1996 (S.I.1996/513) (“the Rules”).

Paragraph 2(2) inserts a new rule15.17 requiring parties to lodgecopies of any part of a transcript ofproceedings upon which they arerelying in any appeal under sec-tion 106 or 108 of the CriminalProcedure (Scotland) Act 1995 andto intimate copies to the other par-ties. Copies should be lodged 7days before any procedural hear-ing and 21 days before the date ofthe hearing at which the partyintends to rely upon the transcript.

Paragraph 2(3) inserts a newChapter prescribing procedure forapplications in the investigation ofRevenue and Customs offences.The applications are for productionorders or to vary or discharge suchorders, for Revenue and Customswarrants, or for an order in rela-tion to the failure of officers to pro-vide a record of, access to, orcopies of documents or thingsremoved under a production orderor Revenue and Customs warrantwithin a reasonable time. Theseamendments are in consequence ofnew sections inserted into theCriminal Law (Consolidation)(Scotland) Act 1995 (c.39) by theFinance Act 2007 (c.11). There arealso new forms of petition andminutes for the various applica-tions under the new Chapterinserted into the appendix: seeparagraph 2(4)(b).

Paragraph 2(4)(a) amends the vul-nerable witness application form(Form 22.1A) to allow it to applyin circumstances where the adultvulnerable witness is to give evi-dence at or for the purposes ofproceedings under section 210C ofthe Criminal Procedure (Scotland)Act 1995 on an objection to a riskassessment report.

Act of Adjournal (CriminalProcedure Rules Amendment No.6) (Criminal Proceedings etc.(Reform) (Scotland) Act 2007)2007 SSI 2007/511This Act of Adjournal amends theAct of Adjournal (CriminalProcedure Rules) 1996 in conse-

quence of the CriminalProceedings etc. (Reform)(Scotland) Act 2007 (asp 6).

Paragraph 2 amends rule 2.3A toinclude reference to summary pro-ceedings.

Paragraph 3 inserts a new chapterA4 and a new rule A4.1 which pro-vides a form of written applicationfor the court to excuse a procedur-al irregularity. Such an applicationmay also be made orally in court.

Paragraph 4 provides a form ofwarrant for the apprehension of anaccused who has failed to appearin solemn proceedings.

Paragraph 5 amends rule 16.6 toallow for electronic citation of wit-nesses, providing a form of citationand form of reply to be returnedby the witness.

Paragraph 6 inserts a new chapter16A and a new rule 16A.1 whichprovides a form of written notifica-tion to the court that a solicitor hasbeen engaged by an accused and aseparate form for a solicitor tonotify the court that he has beendismissed by, or has withdrawnfrom acting for, the accused. Suchnotification may also be given oral-ly in court.

Paragraph 7 inserts a new rule 17.2which provides a form for the noti-fication to the prosecutor of adefence under section 149B andprovides that a copy of the formshould be served on any co-accused.

Paragraph 8 inserts a new chapter27A and new rule 27A.1, whichprovides that an appeal from thedecision of a sheriff on a petitionfor recovery of documents undersection 301A of the 1995 Act mustbe lodged with the Clerk ofJusticiary within 2 days of thesheriff's decision. It also provides aform of appeal.

Paragraph 9 inserts a new rule 28.2



which provides a form of writtenapplication by the prosecutor foran order requiring the accused toparticipate in an identificationparade. It also provides that theremay be a hearing. Such an applica-tion may also be made orally incourt.

Paragraph 10 inserts a new para-graph into Form 15.1-D (form ofpetition to High Court of Justiciaryfor bail pending appeal) requiringthe appellant to specify theaddress that would be his normalplace of residence if bail weregranted.

Paragraph 11 amends variousforms in the appendix to the Rulesby extending to commissioner pro-ceedings the prohibition on theaccused conducting his owndefence in sexual offence proceed-ings.

Paragraph 12 amends Form 19.4 toreflect that a request for an exten-sion of the time limit for a summa-ry appeal under section 180 of the1995 Act will be considered oncause shown.

Courts - CivilThe Small Claims (Scotland)Amendment Order 2007 SSI2007/496This Order amends the SmallClaims (Scotland) Order 1988 (S.I.1988/1999) (“the 1988 Order”).Under the 1988 Order, small claimscannot exceed £750 in amount(exclusive of interest and expens-es). The Order raises the limit of£750 to £3000. Actions for personalinjury are excluded from thecategory of actions which must bebrought as a small claim. TheOrder also amends the amount ofexpenses which the sheriff mayaward in a small claim where thevalue of the claim exceeds £200.The sheriff may now, where thevalue of the claim is £1500 or less,award expenses up to £150. Wherethe value of the claim is greater

than £1500, the sheriff may awardexpenses up to 10% of the value ofthe claim (article 2).

The Order does not affect anysmall claim which was commencedprior to 14th January 2008 (article3).

The Sheriff Courts (Scotland) Act1971 (Privative Jurisdiction andSummary Cause) Order 2007 SSI2007/507This Order raises the limit of theprivative (or exclusive) jurisdictionof the sheriff court and the limit ofthe summary cause from £1500 to£5000. The new limits do not applyto proceedings commenced beforethe Order comes into force.

Legal professionThe Legal Profession and LegalAid (Scotland) Act 2007(Commencement No. 4) Order2007 SSI 2007/497This Order brings into force on23rd November 2007 various pro-vision of the Legal Profession andLegal Aid (Scotland) Act 2007 (“theAct”).

Article 2(a) and (d) commencessection 1 (in part) and variousparagraphs of schedule 1 (theScottish Legal ComplaintsCommission (“the Commission”))of the Act. Section 1 introducesschedule 1 and is commenced onlyfor the purposes of the remainingparagraphs of schedule 1 that arebeing commenced. These providefor the appointment of a ChiefExecutive of the Commission andof other staff. The Chief Executiveis to be the accountable officer forthe Commission. Provision is madefor the procedure of theCommission, for the establishmentof committees, for its general pow-ers and for delegation of functions.The Commission must keep properaccounts (to be audited by theAuditor General for Scotland) andpublish an Annual Report which isto be laid before Parliament by theScottish Ministers.

Article 2(b) commences a numberof sections.

• sections 27 and 29 provide forthe setting and collection of theannual general levy and thepreparation of a proposed budgetfor each financial year. Sections30 and 31 allow Scottish Ministersto make grants or loans to theCommission or to provideguarantees in relation to sumsborrowed by the Commission.

• Section 32 and schedule 3make provision regarding rules asto the Commission's practice andprocedure. Schedule 3 is com-menced by article 2(e).

• Section 34(1) provides that theCommission must provide adviceregarding the process of making acomplaint.

• Section 39 allows theCommission to monitor theScottish Solicitors Guarantee Fundand any professional indemnityarrangements.

• Sections 41 and 78 provideScottish Ministers with ordermaking powers to amend theduties and powers of theCommission and to make ancillaryprovisions necessary or expedientfor giving full effect to the Act.

• Section 58 makesamendments to the constitution ofthe Scottish Solicitors DisciplineTribunal.

• Section 59 increases theborrowing limit available to theLaw Society of Scotland in respectof the Guarantee Fund from£20,000 to £1.25 million.

• Section 60 amends theSolicitors (Scotland) Act 1980 inrelation to safeguarding theinterests of clients. Sections 62and 63, respectively, provide thatnotaries public must be practisingsolicitors and for the Council of theLaw Society of Scotland to make


rules regarding notaries public.

Article 2(c) and (f) commencessection 81 (in part) and paragraphs1(15) and (16) and 6 of schedule5 (minor and consequentialmodifications) to the Act.

Section 81 introduces schedule 5

and is commenced only for thepurposes of paragraph 1(15) and(16) and paragraph 6. Paragraph1(15) and (16) makes minoramendments to provisions of theSolicitors (Scotland) Act 1980regarding the safeguarding ofclients interests. Paragraph 6amends the Public Appointments

and Public Bodies etc. (Scotland)Act 2003 to add the Commission tothe list of specified authorities inschedule 2 to that Act. The effectis that the Commission will fallwithin the remit of the Office ofthe Public AppointmentsCommissioner for Scotland.


This quiz records a journey Iwould like to make, rather thanone I have recently made,although I have visited all of theplaces mentioned in my route.

Your task is to identify the 50place names (some of them arefeatures, rather than towns,and one of them is a person)cryptically identified andnumbered en route. A prize of acopy of one of my books (thewinner may choose which one)will go to the best entry received.My decision will be final and nocomplaints will be considered,so there.

The number of each place namecomes immediately after what youare supposed to be identifying.For example, in number 1, it’s thelighthouse name I want, not theisland; in number 12, it’s thelandowner I want, not the townand, in 33, it’s the hill I want notthe island. You’ll need a map ofScotland and a lot of information.Not all of the directions (eg South)are wholly accurate. Bon Voyage.

We set out from a very northerlypoint of a very northerly island,from which we had a view of avery northerly lighthouse (1).Heading South, we took a ferryto what sounds like a verynoisy island (2), then continuedsouthwards to another, largerisland whose name suggestspretensions beyond its station (3).

At the southernmost tip ofthis island we encountered anairport, close to an ancient Vikingsettlement, perhaps once an Earl’sHouse (4).

Bad weather caused our plane tobe diverted to the nearest airport,in another island group, the capitalof which was reminiscent of theboundary of a church (5). Fromhere, we travelled across theisland to a port from which wecaught a ferry.The route took us past a well-televised stack (6) before crossingan expanse of water to reach arocky port (7) close to a townfamous for its surfing (8).

Driving South East, we soonreached what must have been aharbour for the Norse Men (9)before turning South along thecliffs.

We stopped at a town oftenvisited by a well-know writer ofbodice-rippers (10), but resisted thetemptation to pan for gold in thenearby glen (11).

Continuing South, we passedthrough a town located under amost unpopular statue of a formerlandowner (12) before turningWest to reach a crossroads townknown only as the Pass (13).Heading South, then East, wepassed through a Royal Burgh, thehome of St Duthac (14) then Southto arrive at a town which might

have been the Mouth of Brown(15).

From there, our road led SouthWest to a town named after an oldmeeting place, where the RiverPeffery enters the sea (16), thenSouth again, passing through amisnamed dark peninsula (17) tocross a bridge (18) into our largesttown on the journey so far (19).

Turning South West we followed aseries of lochs and glens with animpressive collective name (20)passing, first, a strongpoint notnamed after a Roman Emperor (21)and then, near its Western End, aseries of locks with a godly name(22), before arriving at anotherstrongpoint, this time named aftera King (23).

Resisting the temptation to turnWest towards a high-soundingisland (24), we drove Southward,crossing a bridge to reach a townonce famous for its slate (25), at thehead of a glen (26) with mightyhills (especially those on itsNorthern side (27)) and a sadhistory. Passing, as we travelledEastwards through this glen, avalley on the right where thingsmay once have been mislaid or atleast concealed (28) then on the leftan inn with royal connotations(29), we stopped for refreshment ata village containing a large GreenWelly (30).

Re-tracing our route slightly, then

Christmas Quiz 2007

Christmas Quiz 2007 193

heading West, our route took uspast a hollow mountain (31) to thetown of the little bay (32), fromwhich ferries were available to anumber of islands, including a bigone on which you can find a bighill (33).

However, we had no time forferries and our road South led usclose to the small hill where, ithas been claimed, early Kings ofScotland were once crowned (34)before leading us to the town atthe head of a loch (35) and thenSouth, East and eventuallyNortheast to a town containing thecastle of the Chiefs of the ClanCampbell (36).

Travelling generally Eastwardsfrom there, our road climbed a

famous, long hill (recentlyblocked) (37) to reach the head of alengthy loch (38) and then South tothe town where the Scottishinventor of TV and a recentlydeceased film star were born (39).

As we near our journey’s end, ourroad South East passes the rockwhere the Kings of Dalriada hadtheir seat (40). Moving with somespeed (for it is not rush hour)through the place of the GreenHollow (41), we turn southwards,past the former home of ClydeFootball Club (42), the oldest ofthe Royal Burghs (43) and an earlyNew Town (44) to reach ourdestination, my own home town,where there is a ruined Castle,a Mill which is now a theatreand an auction Market (45).

And here our journey ends, withsome regrets that we had no timeto take in other pleasant placessuch as the island with the onlybeach in the world on whichscheduled aeroplanes land (46),the island which was the landingplace of the saint after whomDunblane was named (47), thecity centre small hill bearing thename of an ancient King (48),the trans-national town burned byEdward as the Bruce looked on(49) or the three Hills overlookingthe home of a 14 person game (50).

Entries to Brian Allingham pleaseat [email protected] or 9Magdala Crescent, EdinburghEH12 5BE before 31 December.

PoCA Confiscation and asset recoveryby Rosemary Martin, University of Abertay Dundee

IntroductionThis article will focus on confisca-tion and the asset recovery aspectsof Proceeds of Crime Act 20021 sofar as applicable to Scotland.2

It would appear understandablefor the Crown Office3 to havepower to seize property and/orfinances where the accused hadbeen found guilty of a criminaloffence and has benefited from thecrime. It may not, however, be aseasily understandable for propertyto be recoverable where there hasbeen an acquittal in a criminalcase. The dichotomy raisesissues ranging from potentialincompatibilities with theEuropean Convention on HumanRights and FundamentalFreedoms4 (ECHR), the differencesin the standard and burden ofproof between the Criminal andCivil Courts, to Devolution issuesand the jurisdiction of the LordAdvocate.5

PoCA and its predecessorlegislation have been subject tochallenge on many fronts sincetheir introduction.6 If, for examplea person was found ‘not guilty’ ina criminal case but an order for theconfiscation of his property wasgranted, is this in itself breachingthe ECHR, particularly Article6(2)? Would the confiscation ofproperty equate to a presumptionof guilt?7 Would there be a differ-ence in relation to human rightsissues, if the recovery of propertyas opposed to the confiscation ofproperty was granted for the pro-ceeds of crime8 and does this applyonly to criminal offences?

The taking of a person’s propertyagainst there will may prima facie,appear to contravene the ‘right torespect for private and family life’9

but more importantly would itbreach the ‘right to protection ofproperty’ as found in Protocol 1

Article 1? Where it states: “Every natural or legal person is entitled to the peacefulenjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to theconditions provided for by law and by the general principles of international law”.10

A Brief History of asset recoverylegislation in the UKPrior to PoCA, the ability to seizeor confiscate the proceeds of crimehad proven to be difficult, certainlyincomplete and frustrating for theCourts. In 1978 ‘Operation Julie’11

uncovered large scale drug manu-facturing that had yielded consid-erable sums of money and manyconvictions. The Trial Judgeordered forfeiture against the pro-ceeds under section 27(1) of theMisuse of Drugs Act 197112 whichwas appealed by the defendants.They had been convicted of a con-


spiracy to supply rather than thenominate offences under the 1971Act. The House of Lords “withconsiderable regret” had no optionbut to allow the appeal in thedefendants favour.13 The case heldhigh profile in the public domainand the inability of the Court toretrieve the proceeds of crimecaused public outrage.14 It wasclear that crime paid.

The Hodgson Report of 198415

recommended the introductionof confiscation orders for theproceeds of crime, not just thetangible objects associated with theactual crime itself. It recommendeda prescribed minimum amountbut no maximum limit, with thejurisdiction to be held by theCrown Court.16 For those convictedof supply of Class A and/or ClassB drugs of a street value of onehundred thousand pounds orgreater would bear the burden ofproof, having to produce evidenceshowing monies were legitimatelyearned.17 Following this the DrugTrafficking Offences Act 1986 wasintroduced in England & Wales.The main advances made by thislegislation were not only tointroduce the powers of confisca-tion but to allow the Courts toassume that the defendants assetswere the proceeds of crime andavailable to them for forfeiture.The main drawback to thislegislation, however, was that itonly related to drug trafficking anddrug traffickers. There remained alarge criminal population with ahuge wealth that could still fundmajor crime including that of drugtrafficking but would not becaught by the 1986 Act.

The Criminal Justice (Scotland)Act 198718 gave limited powers ofconfiscation for those cases involv-ing drug trafficking only, however,powers were increased with theintroduction of the Criminal Justice(Scotland) Act 1995,19 allowingseizure of assets for ‘non-drug’trafficking offences. This wasfurther reinforced with the

introduction of the Proceeds ofCrime (Scotland) Act 1995.20 Therewere advances in Northern Irelandwith the Proceeds of Crime(Northern Ireland) Order 1996which set out inter alia the burdenof proof to be equivalent to thatrequired in civil cases; ‘on thebalance of probabilities’ instead of‘beyond reasonable doubt’ and inlate 2002 the Proceeds of CrimeAct 2002 came into force.21

Recovery of Assets orConfiscation of Property?Within the meaning of PoCA,recovery orders and confiscationorders are not mutually exclusive.The Court has to be crystal clearregarding which orders to useand when, if they are not to befrustrated by a breach in eitherArticles 6(2) or 7 of the EuropeanConvention on Human Rights22

(ECHR).

Part 3 Confiscation: Scotland,Confiscation Orders23

Confiscation orders are directlyrelated with criminality, eventhough the burden of proof is thebalance of probabilities whichwould usually be found in civilcases:

“If the court acts…a) it must decide whether the accused has a criminal lifestyle; b) if it decides hehas a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; c) if it decides that he does not havea criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”24

The Act specifies “the court to meanthe High Court of Justiciary or theSheriff”.25 The jurisdiction aloneimplies that Part 3 proceedings arecriminal in nature.

The criminal aspect might notappear in the first instance tobear any great importance butits interpretation is crucial indetermining success for the Courtsin confiscation. The key convention

provisions in both Article 6(2) andArticle 7 refer directly to criminaloffences. Article 6(2) states:

“Everyone charged with a criminaloffence shall be presumed innocent until proved guilty according to law”26

Article 7 states:

“No one shall be held guilty of any criminal offence on account of any act or omission which did notconstitute a criminal offence under national or international law at thetime when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”27

Here both Articles stipulate thatthe offence must be criminal innature where the use of the word‘penalty’ in Article 7 infers punish-ment, it leaves no room for civilinterpretation.

If Part 3 of PoCA is employed toconfiscate the ‘benefit’ of crime, theconfiscation can not take place ret-rospectively. By its [the confisca-tion order] juxtaposition with thecriminal aspect of the offence,the confiscation is punitive andforms part of the penalty that theaccused receives and is therefore,inherently criminal in origin. Aretrospective confiscation order forthe ‘benefit’ of crime will breachArticle 7, a point highlighted inWelch v United Kingdom28 where theStrasbourg Court held that;

“The retrospective imposition of a confiscation order...amounted to a penalty which was prohibited by the European Convention on Human Rights 1950 Art. 7(1).”

The ECtHR went on to discuss theinterpretation of ‘penalty’ as therewere conflicting views betweenthe UK Government and theCommission with regards not onlyto the interpretation of the wordbut the effect the interpretation

PoCA Confiscation and asset recovery – continued

PoCA Confiscation and asset recovery 195

would have depending on whichview was taken.

The UK Government attemptedto argue, unsuccessfully, that thepurpose of the confiscation orderwas preventative in effect and notpunitive, which would have theeffect of putting it out of reach ofArticles 6(2) and 7 (a preventativemeasure would parallel aninterdict or other remedies foundin the civil courts on which Article6(2) and 7 are silent and in apresent court this would verymuch confuse the situation as itwould attempt to join the civil pro-ceedings of PoCA with a criminalconviction). Ultimately the ECtHRheld in Welch, that the confiscationorder amounted to a penaltywhich in turn was interpreted bythe Court as being criminal innature, equating to a breach ofArticle 7.

Determining Criminal Procedurein Relation to Articles 6(2) and 7A successful prosecution isrequired before a confiscationorder can be granted and the orderitself can only be sought by aprosecutor in a criminal court. Theprocedures relating to the order arecriminal in nature in respect thatthey have been commenced byindictment resulting in solemnprocedure and being held in acriminal court; the Sheriff Court orHigh Court of Justiciary. The rulesof evidence take criminal form.The order is made on the personand not the property and will onlybe granted where there is admis-sion of guilt or successful convic-tion. If the order is granted suc-cessfully it will be placed on theaccused’s criminal record. Theamount or ‘benefit’ confiscatedcan be altered by the Court ofJusticiary due to mitigatingcircumstances.

Engel v Netherlands29 is the leadingcase that has been relied upon bydomestic courts and has beenidentified as a source of authority30

in relation to determining whether

or not a procedure should beclassified as criminal in relation tothe interpretation of Articles 6(2)and 7. Lord McFadyen focussedand simplified the discussion in Sv Miller31 where he reinforced thestarting point of the test as:

“…whether or not the domestic law regards the person in question,placed in the position in which he has been placed, as a person charged with a criminal offence…”32

Lord Drummond Young in TheScottish Ministers v Doig andOthers33 summarised the three parttest criteria as:

“…if the proceedings are regarded as criminal by the domestic law, that is conclusive for the purposes of Article 6. If not it is necessary togo on to consider the second and third criteria. The second criterionis the objective classification of the situation in which the personconcerned finds himself, bearing inmind the object and purpose of the Convention…The third criterion isthe nature and severity of thepunishment that may be inflicted as a result of the proceedings in question…Hence if there is nopossibility of punishment in the proceedings, that is a strongindication that the proceedings are not criminal in nature.

Part 5: Civil Recovery of theProceeds etc34

The recovery of the proceeds ofcrime is a civil action and as statedby Lord Kinclaven in ScottishMinisters v McGuffie:

“a civil recovery order does not amount to a criminal penalty”.35

PoCA states:

“This Part [Pt.5] has the effect for the purposes of 1(a)…enabling the authority to recover, in civilproceedings before the …Court of Session, property which is, or which represents, property

obtained through unlawfulconduct…(2)The powers conferred by this Part are exercisable inrelation to any property whether ornot any proceedings have been brought for an offence inconnection with the property.”36

This reinforces the fact that acriminal conviction or criminalproceedings are not necessary forPart 5 of the Act to come into oper-ation. Lord Kinclaven succinctlyadvised that:

“The identity of the perpetrator is immaterial…it is immaterial whether the person from whom the property is recovered has been guilty of any criminal offence, the property is still recoverable…”37

This can be contrasted with a con-fiscation order under Pt. 3 of PoCAcan only be granted if the accusedis convicted of a criminal offence. In contrast with Part 3, the recov-ery order relates directly to the realright in property and not theperson. The order can only berequested by the Civil RecoveryUnit, acting for the ScottishMinisters, but which is co-locatedwith the Crown Office. It excludesthe Lord Advocate in her positionas head of the Crown Office &Procurator Fiscal Service. It is arequirement that “conduct unlawfulunder criminal law”38 needs to bedemonstrated for a recovery orderto be successful, however, it is notnecessary for the name or identityof the person who committed thecrime to be known. The applica-tion for a recovery order can betaken against “any person who theauthority thinks holds recoverableproperty.”39

Recovery orders are directly relat-ed with the civil court and civilprocedure. The standard of proofis that of the balance of probabili-ties. The recovered property vestsin the Trustee for Civil Recovery.

Regime of Punishment v Regimeof Recovery


The ECtHR views the term ‘penal-ty’ as an “autonomous conventionconcept”40 giving the court theability to independently interpretits meaning. In 1995 the ECtHRheld that :

“the aims of prevention andreparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment”41

and that the confiscation order wasa penalty which resulted in Article7 being breached. It chose not todecide on whether a recoveryorder was to be interpreted as apenalty on that occasion.

As national legislation has becomemore explicit the two elements ofconfiscation and recovery haveparted significantly where confis-cation orders are punitive andrecovery orders are preventative.This was reinforced in Rezvi42

where Lord Stein stated:

“the purpose of confiscationproceedings was to punishconvicted offenders43…the purpose and function of the civil recovery procedure is to recover property obtained through unlawful conductbut not to penalise or punish any person who is proved to have engaged in such conduct”.44

Lord Kinclaven has agreed withthe analysis:

“Looking to the substance rather than the form, it seems to me that the orders…are part of a regime of civil recovery of property which is, or represents, property obtained through unlawful conduct rather than a regime of punishment”.45

The overarching purposes there-fore of civil recovery are to preventa significant body of wealth fromcontinually funding major crime,to act as a deterrent against furthercriminal activity, not only sendinga message, but being seen to besending a message that the

proceeds of crime, not just theprofit gained but property also,will be removed from the handsof those that hold it, regardless ofcriminal conviction.

Rights in PropertyThe recovery, or viewed from theperspective of the holder of thatproperty, expropriation of proper-ty, especially large estates, canoften be perceived by the propertyholder as a greater punishmentthan any term of imprisonment orfine that a criminal court maydeliver and it is understandablethat prima facie the removal ofproperty could be perceived as abadge of guilt. However, this fallsoutside of the scope of Article 6(2)as it is administrated and managedthrough the civil legislativeprocess. And it must be remem-bered that a recovery order willnot be granted until and unless thepetitioner demonstrates and thecourt decides, on the balance ofprobabilities, that “…any mattersalleged to constitute unlawful conducthave occurred…”46

The recovery of property is simi-larly not caught by Protocol 1Article 1. Here the holder of theproperty is not the legal owner ofthe property - referring to the firstsentence in the Protocol, the ‘pos-sessions are not his’, or he certain-ly does not hold a real right in theproperty:

“A real right is a right in a pieceof property, that is, the legalrelation ship between theindividual and the property. It is a right which can be enforced againstthe world at large, that is against anyone who challenges yourproprietary interest”47

Therefore relieving the person ofthat property is not deprivingthem of enjoyment of that propertyas it was not theirs to enjoy in thefirst place. The situation is that theproperty holder is prevented fromprofiting from his unlawful earn-ings by order, the property will go

to the state. The recovery does notact directly on the person, its pri-mary function is to obtain theproperty not to punish the personand it is not completed in isolation.Prior to recovery a full investiga-tion of tax records and financialtrails are undertaken and propertyand monies that are recovered willhave no accompanying documen-tation to vouch their legitimacy.Their origin can not be legallyaccounted for. As such investiga-tions are time consuming and thuscostly such an exercise is unlikelyto be undertaken except wherethere is a prospect of substantialrecovery.

The second sentence of Protocol 1Article 1 states that deprivation ofproperty is conditional. That depri-vation will not occur unless in thepublic interest and subject to law isa requirement. States howeverenjoy a margin of appreciation indetermining that public interest.Civil recovery of the proceeds ofcrime within PoCA, it is suggested,serves a legitimate public purposeand whether the regime is appro-priate is, a matter which falls with-in the margin of appreciation ofeach state. As such it appearsunlikely that the regime would besubject to a successful challenge inthe Strasbourg Court.

Jurisdiction of the Scottish Courts“…a member of the Scottish Executive has no power …to do any other act, so far as thelegislation or act [which] isincompatible with any of the Convention rights or with Community law…”49

The Lord Advocate is protected bythe Scotland Act.50 This is illustrat-ed in HM Advocate v Burns,51 wherethe respondent argued that theLord Advocate had acted ultravires in making an application fora confiscation order. The Courtheld that not every act of the LordAdvocate was open to challengeunder the Scotland Act 199852

moreover, that the issue to be



examined should not be interpret-ed in isolation on its substance, buton its form or effect the act wouldhave on the person to whom itrelates and whether or not therights of that person, in that partic-ular context were rights thatwould be breached under theECHR:

“…the question was whether the implement of executive decision is in fact incompatible with aconvention right. A simpleapplication for a confiscation order,was a request to the court toexercise its jurisdiction in aparticular way and did notundermine the convention right…”.53

Success of the Civil RecoveryUnitThe Civil Recovery Unit hasordered the recovery of in excessof £800,000; £650,000 of this totalbeing in cash alone in the past sixmonths.54

ConclusionCivil recovery is an extremelyeffective and powerful tool forrecovering property and moniesfrom the proceeds of crime. It isnot caught by Article 7 as it is acivil action. It has a unique timeframe in that the period of assetrecovery has a time span of twelveyears and section 288(2) of PoCAhas legislated for this period to beaccommodated in the Prescriptionand Limitation (Scotland) Act197356 resulting in the ability of the

Civil Recovery Unit to recover theproceeds of crime for a limitedretrospective period.

The criminal/civil debate will nodoubt continue as more challengesare brought to the Scottish Courts.

It could be argued however, thatPoCA has created a legal ‘smashand grab’ allowing the CivilRecovery Unit carte blanche inrecovering property from propertyholders who are not accused of acriminal offence or where a crimi-nal prosecution has failed, thecynic might add that this avenueof law enforcement provides theScottish Government with aunique funding opportunity!57

However the values recovered todate have not been significantlyahead of the costs of running theCivil Recovery Unit.58 It has cer-tainly been effective in removinglarge significant amounts from thecriminal fraternity which society asa whole may regard as positive.

Footnotes:1 Proceeds of Crime Act 2002 (c. 29).2 Parts 3, & 5. 3 In Scotland it is the Financial Crime

Unit which is the operational arm of the Crown Office and Procurator Fiscal Service (answerable to the Lord Advocate) that apply to the Criminal Court for confiscation orders resulting in seizure of moneys and/or property. The Civil Recovery Unit has noprosecutorial function and isanswerable to the Scottish Executive(now Governent). It applies to the Court of Session for recovery orders. The two types of order are quite sepa-rate & will be analysed in turn. The

Asset Recovery Agency was set up by the Proceeds of Crime Act 2002 (c.29), has two offices only, one in London & one in Belfast. These offices link with the Crown Office in Scotland.

4 European Convention on Human Rights and Fundamental Freedoms, Articles 6(2), 7, Protocol 1 Article 1. As amended by Protocol 11.

5 McIntosh v Lord Advocate and Another.[2003] 1 AC 1078. Here the Lord Advocate was accused of acting ultra vires under the Scotland Act 1998 (c.46) by breaching Article 6(2) of the ECHR which guarantees the presumption of innocence. The defender had aconfiscation order made against him forproperty &/or expenditure received from drug trafficking. This confiscation order was related to a previouscriminal conviction, hence his inability to rely on the presumption ofinnocence. The Court held that Article 6(2) only applied to those who were “charged with a criminal offence”. “...that although a person against whom anapplication for a confiscation order was made, faced a financial penalty, it was a penalty imposed for the offence of which he had already been convicted and involved noaccusation of, or inquiry into, any other offence; that therefore, in relation to the application for a confiscation order made against him, the repsondent was not aperson entitled to rely on the presumption on innocence guaranteed by article 6(2). At1078 para. 3

6 Air Canada v United Kingdom (1995) 20 EHRR. 150,. The aircraft operated bythe applicant had been seized bycustoms officers as it contained a large amount of cannibis. The applicants claimed there had been a violation on Protocol 1, Article 1of the ECHR and a breach of Article 6(1) of the Convention. The Court held that the seizure of the aircraft did not amount to violation of Prot. 1 Art.1 because “...itdid not have the effect of depriving Air Canada of ownership”. The applicants were required to pay a proportionate amount in way of a fine to have the air craft released to them, which they did. The Court held that the fine of £50,000 was proportionate to the amount of cannibis found (609 kilos) to prevent further importation of prohibited drugs. Regarding the breach of Art 6(1) the Court held inter alia; ...”the absence ofa criminal charge together with the fact that the criminal courts were not involved and there was no threat of criminalproceedings in the event of non compliance,meant that the matters complained of did not involve the determination of a criminal charge within the meaning of Article 6(1). Of the Convention.” At 152. S v Miller2001 SLT 531. The Court held that a child, in front of a childrens hearing could not claim breach of Article 6 as he was not “charged with a criminal offence”. The challenge to the structure of the panel in denying the child an

Breakdown of Figures for the Civil Recovery Unit

2003-2004 Total amount of civil recovery orders and cash seizures £696,810

2004-2005 Total amount of civil recovery orders and cash seizures £1,001,247



1 Apr - 30Sep 2007 Total amount of civil recovery orders and cash seizures £839,386

Total £5,599,887

Note: The years are financial years (1 April to 31 March)55


“independent and impartial tribunal” was rebutted as the Court held“childrens hearings constituted an independent tribunal in terms of Art. 6(1)” Porter v McGill [2002] 2 AC 357, R v Benjafield [2002] 1 All ER 815.The Court heard that there was an appeal by the defendents that confiscationproceedings had contravened their right to a fair trial and presumption of innocence under Articles 6(1) and 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998. The Court held that the confiscation orders were made priorto the date that the Human Rights Act came into force meaning that the defendents Convention rights had not been engaged.

7 McIntosh v Lord Advocate and Another.[2003] 1 AC 1078. “Upon therespondent pleading guilty to being concerned in the supply of heroin the prosecutor applied for a confiscation order against him pursuant section 1 of the Proceeds of Crime (Scotland) Act 1995.In making the application theprosecutor indicated his intention to rely on the rebuttable assumptions which a court was entitled to make, pursuant to section 3(2) of the 1995 Act,that, inter alia, property transferred to or expenditure by a person convicted ofa drug trafficking offence within the six years prior to his being indicted of the offence were the proceeds of drug trafficking and thus liable toconfiscation. The respondent raised as adevolution issue the contention that those assumptions were incompatible with the presumption of innocence accorded by article 6(2) of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms and that under section 57(2) of the Scotland Act 1998 the Lord Advocate as prosecutor had no power to act incompatibly with the Convention. The judge declined to make a declarator that the Crown had no power to invite the court to make the assumptions but the Appeal Court of the High Court of Justiciary allowed the repondent's appeal and made the declarator sought. On appeal by the Lord Advocate and the Advocate General it was held, allowing the appeal, that the presumption ofinnocence guaranteed by article 6(2) applied only to persons "charged with acriminal offence"; that although aperson against whom an application fora confiscation order was made faced a financial penalty (with a custodial penalty in default of payment) it was a penalty imposed for the offence of which he had already been convicted and involved no accusation of, or inquiry into, any other offence; that, therefore, in relation to the application for a confiscation order made against him the respondent was not a person

entitled to rely on the presumption of innocence guaranteed by article 6(2); that, further, on the assumption that article 6(2) did apply to an application for a confiscation order followingconviction, it was not unreasonable or oppressive to call on a proven drug trafficker to proffer an explanation for any significant discrepancy which could be established between hisproperty and expenditure on the one hand and his known sources of income on the other; and that, accordingly, the assumptions which a court was entitledto make pursuant to section 3(2) of the 1995 Act were not incompatible with the presumption of innocence under article 6(2)”

8 Welch v United Kingdom (1995) 20 EHRR247. In this case the applicant wasconvicted of drug trafficking offences and complained that the confiscation order constituted a “retrospectivecriminal penalty” contrary to Article 7(1) of the Convention. It was held that there had been a violation of Articel 7(1) in that it was retrospective, in the sense that the criminal conviction which acts as the ‘trigger’ forapplication of a confiscation order, had occurred prior to the Act being in force.Article 7(1) provides that; “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavierpenalty be imposed than the one that was applicable at the time the criminal offence was committed.”

9 European Convention on Human Rights and Fundamental Freedoms Art 8 (1) “Everyone has the right to respect for his private & family life, his home and his correspondence”.

10 Ibid: FN10, Protocol 1, Article 1. para.1.11 This operation was named after one of

the police women involved in the investigation, the case; Regina Respondent v. Cuthbertson and Others Appellants [1981] A.C. 470. House of Lords

12 Misuse of Drugs Act 1971, (c.38)13 Op. Cit: FN:FN 12 “Held, allowing the

appeal, that there was no jurisdiction to make the forfeiture orders, since the conspiracies to which the defendants hadpleaded guilty were not "offences under theAct "within section 27 (1), not being offences defined by any specific provision ofthe Act, and since further (Lord Scarman dubitante) conspiracy in its legal nature did not involve any dealing by the offenderswith the tangible things envisaged by the subsection, so that, when it was possible to relate a transaction to tangible things such as drugs, apparatus for making them,vehicles for transporting them or cash paid or ready to be paid for them, thattransaction must be made the subject of a charge of a specific offence before aforfeiture order could be made in respect of them” at pg. 481D-E.

14 Lee D & Pratt C., “Operation Julie”, Daily Express, Wednesday 8th March 1978, No.24345.

15 Hodgson D, Sir., “Profits of Crime and Their Recovery: Report of a Committee Chaired by Sir Derek Hodgson” ,London, Heinemann Education Books Ltd., 1984.

16 These recommendations were to take effect in English law.

17 Op. Cit: FN16 at p.150; Recommendations, section B (9), (10) & (16).

18 Criminal Justice (Scotland) Act 1987 (c.41).

19 Criminal Justice (Scotland) Act 1995 (c.20).

20 Proceeds of Crime (Scotland) Act 1995(c.43).21 As denoted in para.1. & FN: 1&2.22 European Convention on Human

Rights and Fundamental Freedoms as amended by Protocol 11.

23 PoCA Part 3, Confiscation: Scotland, Confiscation Orders, s92 (5),(6) and(7)

24 PoCA s92(5) (a-c).25 PoCA s92(13)26 Article 6 – Right to a Fair Trial s(2), The

European Convention for the Protection of Rights & Fundamental Freedoms. (as amended by Protocol 11).

27 Ibid: Article 7 s(1)28 Welch v United Kingdom (1995) 20 EHRR

247 (although the preceding legislation is relied on the points made remain relevant). The six year retrospective time span is acceptable for a confiscation order, it was that in this case the triggerof criminal conviction occurred before the legislation was in place.

29 Engel v Netherlands (No.22) ( 1979 - 80) 1EHRR 647. There was discussion regarding the distinction betweendisciplinary proceedings and criminal proceedings, before the militaryauthorities in relation to five applicants involved in the publication anddistribution of prohibited writings. “However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the personconcerned risks incurring. In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature,duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of thecontracting states and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.” At 679

30 e.g. R v H [2003] UKHL 1. 31 S v Miller 2001 SC 977.32 Ibid: FN 33: at para. [32]33 The Scottish Ministers v Doig & Others

2006 CSOH 176 at para.[22]34 Op.Cit: FN:1 Pt.5 Civil Recovery of the

Proceeds etc. s240 at pg. 150.35 The Scottish Ministers v McGuffie 2006



SLT 401. at p.414, para 67.36 PoCA Pt.5 s240. (1)(a), (2).37 Op Cit: FN 35 at para 10.38 PoCA Pt 5 s241 (1).39 PoCA s244 (1).40 Op.Cit: FN 33 at 260.41 Ibid: FN 42 at 260-262.42 Regina v Rezvi [2003] 1 AC 1099.43 Ibid: para 31.44 Ibid: 43: para 20.45 McGuffie supra at para.131.46 PoCA s.241.47 2.1 pg.9.48 R v Benjafield Lord Stein encapsulated

this position by stating: “…It is anotorious fact that professional andhabitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore, essential”, at pg. 1152 para 14.

49 Scotland Act 1998 (c.46) s57(2).50 Ibid: FN 51 “…(2) A member of the

Scottish Executive has no power to make any subordinate legislation, or to do any

other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. (3) Subsection (2) does not apply to an act of the Lord Advocate – (a) in prosecuting any offence, or (b) in his capacity as head of the systems of criminal prosecution andinvestigation of deaths in Scotland, which,because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section.”.

51 HMA v Burns 2001 JC 1.52 Ibid: FN 51.53 Op.Cit: FN 53 “the act complained of

created no risk of the complainer being directly affected by it, as any confiscation order would be made by the court independently of any will of HMA in anadversarial process in which the minuter and the respondent would haveopportunities to appeal”. At pg.10F.

54 The Scottish Government, “Latest‘proceeds of crime’ figures,” News Releaseof 29/10/07, accessed on website:www.scotland.gov.uk/News/Releases/

2007/10/29082354. 55 http://www.crownoffice.gov.uk/

News/Releases/2007/10/30173600. Accessed 04 / 11 / 07

56 Prescription & Limitations (Scotland) Act 1973 (c.52) at.19B

57 As Lord Stein commented at the Robin Cooke Lecture, 18th September 2002: “Perhaps it is an illusion that all problems can be solved; sometimes one may have to settle for containment and the ‘least bad choice’”.

58 In response to a question from Mike Rumbles, MSP, the Lord Advocateindicated the costs of the running the unit for the three years to April 2006 amounted to £2,905,000. [Question (S2W-29464) Written Answers Thursday 16 November 2006 http://www.scottish.parliament.uk/business/pqa/wa-06/wa1116.htm. The recoveries of the same period amount to £3,063,859 – a surplus of £158, 859.

Commercial Agents – if its good enough forGauis…by Alan Barron, University of Abertay Dundee

IntroductionIt seems that cases involving theCommercial Agents (CouncilDirective) Regulations 1993 are alittle like buses. You can wait forages without ever seeing one, andthen three come at once. Readersmay remember that two importantdevelopments were dealt with inprevious articles. The first con-cerned the Inner House decision inMcAdam v Boxpak Ltd.1 That casedealt with the availability of com-pensation payments following ter-mination of an agency relationship.It also considered whether anagent’s activities are ‘secondary’ interms of the Regulations and henceoutside their scope. The secondarose out of the House of Lordsdecision in Lonsdale (t/a LonsdaleAgencies) v Howard & HallamLimited.2 In that case the courtclarified the law concerning theamount of compensation payableto a commercial agent on termina-tion of the relationship. Morerecently, at Aberdeen Sheriff Court,

the Regulations again came underjudicial scrutiny.

Marjandi Limited v Bon AccordGlass3

The facts were that Marjandiworked as commercial sales agentsfor Bon Accord Glass, selling theirconservatories to members of thepublic. There was no writtenagency agreement between theparties. In practice, customerswishing to investigate the erectionof a conservatory generally con-tacted Bon Accord Glass directly.Marjandi then attended in personat the customer’s home and nego-tiated the sale of a conservatory.Marjandi had authority to negoti-ate a discount of up to 20% on thevalue of a Bon Accord Glass prod-uct. Thereafter Bon Accord Glasstook over in relation to site visits,preparation of plans and construc-tion of the conservatory. Marjandiwere paid on a commission onlybasis. Bon Accord Glass laterelected to terminate the agency

relationship and Marjandi raisedan action in the Sheriff Courtclaiming compensation under theRegulations.

However, before the question ofcompensation could be considered,two legal questions had to beaddressed. The first was whetherMarjandi were in fact agents with-in the meaning of the Regulations;the second was whether theiractivities were ‘secondary’ andthus beyond the scope of theRegulations.

Was the agent selling goods?The first question gave rise to thebulk of the debate. Ultimately itwas decided that Marjandi werenot commercial agents in terms ofthe Regulations. The Regulationsdefine a ‘commercial agent’ as: ‘aself-employed intermediary whohas continuing authority to negoti-ate the sale or purchase of goodson behalf of another person (theprincipal) or to negotiate and con-


clude the sale or purchase of goodson behalf of, and in the name of,that principal…’4

From this definition it was clear onthe facts that Marjandi had contin-uing authority to act on behalf ofBon Accord Glass. However, thereal question was whether conser-vatories were to be regarded as‘goods.’ The Regulations clearlyspecify that only if the agent nego-tiates and concludes the sale of‘goods’ on behalf of the principalwill they be a ‘commercial agent’and thus entitled to compensationon termination of the relationship.

The answer to this questioninvolved an interesting trawlthrough some old and relativelyesoteric sources. The question aris-es because of the distinction to bedrawn between sale of goods andprovision of services.Conservatories in this case werenot supplied for erection by thecustomer. The conservatories weresupplied and erected by BonAccord Glass who attended to anyrequired planning and buildingconsents. Were they thereforeproviding goods, in which casethe agent would fall under theRegulations, or were theysupplying services, in which casethe agent would be excluded? Asnoted, it was found that the supplyand erection of conservatory was asupply of services.

The starting point for that conclu-sion was to be found in Gaius.Using the example of gladiators,he distinguished between thesituation where payment is madefor every gladiator who makes itout of the arena alive, and thesituation where a payment is madefor every gladiator who is killedor injured in the arena.5 The firstsituation was said to involve acontract for leasing and hiring. Inthe second, the contract was oneof sale. A further example, whichis perhaps more apposite in thepresent circumstances, involved adistinction between the situation

where a goldsmith fashions a ringusing his own materials, and thesituation where a goldsmith makesa ring using gold provided to him.In the first situation the contractis one of sale. In the second, thecontract is one of leasing andhiring.6

These distinctions were laterreflected in Bell’s Commentarieswhere he said: ‘It is strictlyrequisite to the contract of thehire of work, when simple, thatthe locator or person who hiresthe labour should furnish thematerials, the conductor onlythe labour; and in this case theproperty of the material remainswith the locator, unaffected by theconductor’s temporary possessionof them while he is finishing thework. Where the conductor fur-nishes the materials or even theprincipal materials, as well as thelabour, it is more strictly sale thanlocation in which the traditionseems to be completed only by thedelivery of the perfect work.’7

In a case where a structure is to bebuilt on land, such as a conservato-ry, what are the ‘materials’ forthese purposes? There are twosolutions. The first is to say thatthe materials relate to the materialssupplied for the construction of thestructure. The second is to say thatthe materials concern the landmade available by the locator orhirer. In this latter case the materi-als supplied fall into the owner-ship of the landowner through aprocess of accretion or accession.In other words, they form part ofhis property incrementally as theyare attached to the land. The latterapproach was the one preferred,since this is consistent with Bell’sview which was based on passagesfrom Pothier.8 Support was also tobe found in the case of McIntyre vClow.9

In the context of a conservatory,the party purchasing the structuresupplies the land upon which thecontractor is permitted to work,

much in the same way that theparty commissioning a piece ofjewellery supplies the gold to thejeweller in Gaius’ example. Thus,the contract is not one of sale.However, the Sheriff did make thepoint that: ‘The question whetherownership of moveables in a con-struction contract is to be dealtwith by reference to the principlesof sale of goods or of accessionrequires to be dealt with in accor-dance with the circumstances ofeach individual case including thespecific terms of the contract, thenature of the works, and the over-all circumstances in which they arecarried out.’10 This makes theimportant point that the principlesset out above will not provide ananswer in every case. However, onthe facts of this case, the circum-stances disclosed that what wasbeing sold by Marjandi was notgoods but, in effect, building serv-ices. In other words, ‘there is onlyone contract and it is a contract forthe building of an extension. Therewas no contract for the sale orpurchase of the materials neces-sary for the building separate fromthe contract for the building worksthemselves.’11 That finding wassufficient to decide the issue.However, for the sake of complete-ness, and lest he should be foundto be wrong on that first issue, theSheriff also considered whetherMarjandi’s activities were primaryor secondary in terms of theRegulations.

Were the agent’s activitiessecondary?Not much needs to be said aboutthis as this question was extensive-ly dealt with in Mcadam v BoxpakLtd mentioned above. On the facts,the Sheriff was persuaded thatMarjandi’s activities were notsecondary. In other words, theiractivities were sufficiently gearedtowards the development of thegoodwill of Bon Accord Glass,such that had they been sellinggoods, they would have beenentitled to compensation ontermination of the relationship.

Commercial Agents – if its good enough for Gauis… – continued

Commercial Law 201

CommentThis case raises some concernsabout the operation of theRegulations. It is no doubt correctto say that in the circumstances ofthis case, the structures being soldby the agents were not goods, andthat what was being sold wasbuilding services. However, thishighlights a limitation in that onlyan agent selling ‘goods’ is to beregarded as a ‘commercial agent’for these purposes and thusentitled to compensation. The con-cept of compensation is essentiallyto provide monetary protection toa commercial agent who hashelped develop the goodwill of theprincipal’s business. The Sheriffclearly accepted that Marjandi haddone exactly that, and yet, becauseof the way in which the law char-acterises the nature of what wasbeing sold, they were to receivenothing. One might view this asunsatisfactory. It had been arguedon behalf of the defenders that thereasons for this might be that prin-cipals who provide services aremore likely to be in direct contactwith the purchaser of those servic-es. Thus the agent’s role in devel-oping goodwill is limited. Further,it might be that compensation wasavailable where the reputation ofthe agent was at stake. In a casesuch as this where initialapproaches were made directly toBon Accord Glass, the agent’s rep-utation was largely unaffected bytermination of the relationship.Neither of these arguments is con-vincing. The level of contactbetween the principal and cus-tomer should not be regarded asdeterminative. What is importantis the extent of the role of the agentin developing the business andgoodwill of the principal. A surfacereading of the Regulations makesthat clear. Likewise, the reputationof the agent might be viewed asbroadly irrelevant. The true focusought to be on the effect of theagent’s actions on the reputation(or goodwill) of the principal. Inlight of this it might be suggestedthat this case exposes a flaw in the

scope of the Regulations and theDirective that they implement.

A further issue is that this is yetanother case in which the partiesdid not have a written agencycontract. This was a feature ofsome of the other recent casesmentioned above. Much of thedifficulties experienced in courtcould be avoided if agents workedunder written contracts setting outthe nature of the relationshipbetween the parties. A furtherissue is that, had the agents beenemployed directly by the principal,they would have been entitled to aredundancy payment on termina-tion and, depending on the cir-cumstances, may have had addi-tional statutory compensationclaims.

One might conclude that whilstthe policy of the Regulationsmay be to protect the interests ofcommercial agents who, it wasfelt, were in a notoriously weak

position, this case exposes theflaws in the Regulations. Due tolimitations in their drafting, ratherthan protect agents, theRegulations in this case haveundermined their position. Timefor reform?

Footnotes:1 2006 SLT 217, analysed in Barron,

‘Commercial Agents’ (2006) 74 SLG 37.2 [2007] 4 All ER 1, analysed in Barron,

‘Compensation for Commercial Agents’(2007) 75 SLG 124.

3 As yet unreported, but available on the Scottish Courts Website at: http://www.scotcourts.gov.uk/opinions/CA_06.html. This is adecision of Sheriff JK Tierney.

4 Regulation 2(1).5 Institutes, Book III, para 145.6 Institutes, Book III, para 147.7 Commentaries, pages 275-276.8 Trearise, Seventh Part, No. 392.9 1874 2R 278, a decision of the Inner

House.10 At para 34, relying upon the speech of

Lord Diplock in Gilbert Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689.

11 Sheriff Tierney at para 46.

Queen’s & Lord Treasurer’sRemembrancer

Ownerless goods fall to the Crown. The Crown’s representative inScotland is the Queen’s and Lord Treasurer’s Remembrancer (QLTR).The Crown Agent for Scotland is, ex officio, the QLTR.

QLTR administers Ultimus haeres estates (ie intestate estates wherethere are no traced blood relatives), Bona vacantia (ie property whoseowner is missing or which is still held in the name of a dissolved com-pany) and Treasure Trove.

Such matters should therefore be referred to QLTR Unit. The staff ofthe QLTR Unit are happy to advise on queries about these topics.

CONTACT DETAILS:QLTR Unit, Crown Office, 25 Chambers Street, Edinburgh, EH1 1LATel- Nos 08445 613805, 08445 613804, 08445 613806 & 08445 613802Email – [email protected] – 08445 614276DX- 540310 Edinburgh 38


It is comparatively rare for achallenge against the findings infact of a Judge at First Instance tobe launched on appeal and that iseven rarer in the field of companylaw. One bold Director has,however, recently launched anappeal against the decision of aLord Ordinary in relation to aDisqualification Order. TheCompany concerned had traded assuppliers of services in joinery andstone services since 1998 but by2001 the Inland Revenue wereseeking a Winding-up Order andan Interim Liquidator appointed. Itis self-evident that most InsolvencyPractitioners will be unfamiliarwith the particular circumstancesof the company which has justbeen declared insolvent and thatthey are likely to be considerablyhandicapped in that respect unlessthe Office-holders of the companyrender them some assistance.Naturally the insolvency legisla-tion in the form of the InsolvencyAct 1986 as it applies to Scotlandprovides some assistance in thatrespect [S. 234 imposes a generalduty upon Office-holders of insol-vent companies to attend upon theinsolvency practitioner and give tohim or her such information as isrequired concerning the companyand its promotion, formation,business, dealings, affairs orproperty; S 131 imposes amore specific duty upon suchOffice-holders to provide within21 days a Statement of Affairs inthe prescribed form supported byan Affidavit; S 8 allows the Sec ofState for Trade and Industry toapply for a Disqualification Orderand one of the factors whichSch. 10 requires to be taken intoaccount in that respect is andfailure to comply with those S131and S 235]. In addition, mostinsolvency practitioners have aset of established practices –the importance of which becameevident in this case.

This particular insolvency doesnot appear to have gone well and,presumably, the InsolvencyPractitioner concerned submittedan adverse report about theDirector concerned. In any event,the Secretary of State for Tradeand Industry made an Applicationto the Court of Session for aDisqualification Order against theDirector in terms of the CompanyDirectors Disqualification Act 1986.The Director concerned opposedthat Application and, unusually, itwas put out for a full Proof beforea Lord Ordinary.

The actual Liquidator oddly didnot appear. There were two minorwitnesses. Essentially, however,the Proof became a contest ofcredibility between the Manager ofthe firm of Insolvency Practitionersand the Director concerned.The Manager gave evidence as tothe established practices of hisinsolvency firm. The Director gaveevidence as to the events that hesaid he experienced. At issuewas whether the Director hadever been asked to complete aquestionnaire known as a direc-tors' questionnaire and produce aStatement of Affairs and what theassets of the company were. Inthat respect the Lord Ordinaryidentified what he described asseven “mishaps” that had occurredover one year following theappointment of the Liquidator.These were that: 1) The companyclaimed not to have received acopy of the Winding-up Petition; 2)the computer used by theCompany was said to have‘crashed’ and then gone missing;3) The Director claimed not tohave received a pro forma state-ment of affairs for completion, 4)the Director claimed not to havereceived the Directors’Questionnaire; 5)& 6) the Directorclaims not to have received lettersfrom the liquidator; 7) certain doc-

uments which the Director claimsto have sent to the Liquidatorusing one of the company’s driversdid not arrive. As the LordOrdinary put it, each of these‘mishaps’ are no doubt possibleindividually but it was highlyimprobable they all occurred.

The Lord Ordinary concluded thatthe Director had been providedwith a pro forma questionnaireand statement of affairs basedupon the Manager's evidence; theletters in the liquidation; and theManager’s evidence about theusual insolvency practice of hisfirm together with the fact that theinformation would be required forthe first meeting of creditors. Inparticular, the Lord Ordinaryfound that when the Director, inhis initial meeting with theLiquidator, verbally stated that thecompany did not own any of theassets on the premises, that wasinaccurate. Furthermore, that theDirector had undertaken to pro-vide the Liquidator with documen-tary evidence as to the ownershipof the assets on site but failed todo so, something which seriouslyheld up the progress of theinsolvency.

Written reminders were sent bythe Liquidator which wentunanswered and the Manager’sevidence was that in the absence ofthat information the ownership ofthe assets within the company’spremises was never fully resolved.In effect, the Lord Ordinarypreferred the evidence of theManager to that of the Directorand issued a lengthy and detailedjudgment which concluded thatthe Petitioner’s case had beenmade out, that the Director’sconduct rendered him unfit to beconcerned in the management of acompany, and imposed aDisqualification Order of two years(the minimum period).

Double Disqualificationby Richard N M Anderson, Advocate who is also aChartered Accountant

Company Law 203

The Director was not, however,happy with that judgment and(represented by a SolicitorAdvocate) entered an appeal bymarking a Reclaiming Motion. Thematter came before an ExtraDivision. In the opinion of theAppeal Court, the authoritiesrelating to the duties of an AppealCourt in considering the approachto be taken to determinations offact by a Lord Ordinary were can-vassed. It concluded that, althoughpart of its function was, uponreconsideration, to determinewhether critical findings of fact,both primary and secondary, madeby the Lord Ordinary were justi-fied, an Appeal Court should bearin mind not only the advantagewhich the first instance judge has,on questions of credibility andof findings of primary fact, inactually seeing the parties andother witnesses; These include theopportunity to form, from thepersonality and manner in whicha witness gives his or her evidence(under examination andcross-examination) before thatjudge, an impression as to thereliability or otherwise of theevidence given by the witness thatcannot be assessed from theprinted page. The test was foundto be that an Appeal Court wasentitled to interfere with thatfinding only if it were demonstrat-ed that the Lord Ordinary had, inhis assessment and evaluation andin the context of the manner inwhich the proof had been conduct-

ed, “plainly gone wrong”.

The Solicitor Advocate, on behalfof the Director, submitted to theExtra Division that there were twocritical errors on the part of theLord Ordinary – Firstly, that theManager’s account of eventswas not in fact supported by thedocumentation so that, properlyunderstood, the evidence of theManager should not have beenpreferred and, at best, left thematter unclear. Secondly, that theLord Ordinary had attached far toomuch importance to the list of‘mishaps’, only four of which weresaid to be contentious. Counsel forthe Petitioner argued that the LordOrdinary was entitled to come tothe conclusions arrived at. Finally,it was submitted by the SolicitorAdvocate that the Lord Ordinaryhad abused the advantage ofseeing the witnesses by misunder-standing the evidence or placingimproper emphasis upon it andaccordingly that the matter couldnow reconsidered by the AppealCourt.

The Extra Division held, however,that in the light of the high testimposed, they had no hesitation indetermining that the attack uponthe approach of the Lord Ordinaryto the issues of credibility and reli-ability as between Manager andthe Director failed and that it couldnot remotely be said that the LordOrdinary's conclusions on thequestions of credibility and relia-

bility were ‘plainly wrong’.The Extra Division in fact went onto consider whether the finding ofunfitness and therefore the orderof disqualification be justified(holding that it could) and, on anesto basis, whether the matter ofunfitness and disqualification as awhole remained at large for theAppeal Court. If that respect, hadthey been called upon to decidethe matter, the Extra Division indi-cated (with some hesitation) thatthey would have preferred theManager’s account as inherentlymore credible on paper. TheReclaiming Motion was refusedand the decision of the LordOrdinary affirmed. The ExtraDivision reinstated the two yeardisqualification, but gave anallowance for the 20 days alreadyserved and also suspended extractof their Interlocutor for a period of21 days to allow, if so advised, thedisqualified Director to seek relieffrom the court under certain otherstatutory provisions.

This case perhaps indicates justhow difficult some of these casescan prove to be when put to thetest and also, for deciding suchmatters, the importance of themaintenance of proper paperworkby any of the professionalsinvolved.

Note:The case discussed in this column is Gerardv Secretary for State Trade and Industry [2007]CSIH 85, 21st November 2007.

Advance to Free Parking? – Moncrieff v Jamiesonby David Bartos, Advocate

The House of Lords has nowissued its judgment in this longrunning saga - [2007]UKHL 42; 2007 SLT 989 and see2007 SLG 159. It now determines apoint which has been the subject ofdebate for many years.

The FactsImagine a long Shetland voe or seainlet cutting through the west ofShetland. Next to the shoreline of along Shetland voe lay a merchant’shouse and former shop (“the dom-inant tenement”). Through most of

its history access to it had beenfrom the sea. From the land a trav-eller required to leave the publicroad, and pass 150 yards along aderelict road over neighbouringland (“the servient tenement”)which stopped just short of the


dominant tenement. Thereafter afootpath led through a gate intothe dominant tenement and thendown a steep flight of stairs to thehouse. Until 1973 the dominanttenement was part of the neigh-bouring land. The former shop andhouse were disused. At the time ofthe break-off in 1973, access wason foot and the derelict road wasdisused. The break-off deed grant-ed to the disponee “a right ofaccess from the branch public roadthrough [the nearby village]”. Theright of access was no moredetailed than that. Over the yearsthe succeeding owners of the dom-inant tenement renovated thederelict road and began to use itfor vehicular access. They created aturning circle at the end of it andbegan to park two cars and a trail-er there. All of this was on theservient tenement. The area parkedon was marked in pink on a plan.Access into the dominant tenementstill required to be on foot. Thiswas tolerated and unchallengedfor a period of about 11 years. Theneighbours then fell out.

The Orders SoughtThe dominant owners sued for –(1) declarator that the right ofaccess in the break-off deed carriedwith it an ancillary right to park onthe neighbouring land such vehi-cles as were reasonably incidentalto the enjoyment of access to thedominant tenement; and(2) interdict prohibiting the neigh-bouring owner from interferingwith the exercise of the right ofaccess and the accessory rights ofparking and depositing vehicles inthe pink area.

The Previous DecisionsThe dominant owners were suc-cessful in front of the sheriff atLerwick. The servient ownersappealed to the Inner House. TheInner House refused the appeal bytwo judgments to one. The servientowners appealed further to theHouse of Lords.

The ConcessionsThe servient owners conceded that– the right of access was a

servitude despite the omission of that word;

– the right of access was includedvehicular passage and had as an incident the right to put down and uplift passengers andto load and offload vehicles.

The ArgumentsThe arguments as presented arenot wholly clear from the speechesof the judges. However in generalterms, on the declarator thedominant owners argued that inthe circumstances at the time ofthe grant the right to park had –

(1) arisen as an right incidental or ancillary to the express grant of the right of vehicular access; or(2) arisen as a free-standing servitude impliedly granted upon the break-off of thedominant land in 1973.

These were the bases upon whichthe sheriff had granted declarator.

In relation to the declarator, theservient owners argued that (1)for the right to arise as ancillaryto the express grant, it had to benecessary for the servitude to beeffective and that as vehicularaccess could be had (albeit withoutparking), up to the boundary ofthe dominant land, the servitudewas effective without any suchancillary right; (2) the right to parkis incapable of being a servitude;and

In relation to the interdict, theservient owners argued that theorder was imprecise as it did notspecify the number of vehiclesentitled to park or the parkingtimes and the like.

The DecisionAll five Law Lords found for thedominant owners. In recent yearsit has been fairly unusual for morethan two or three Law Lords togive separate speeches, particular-ly when all agree on the result.

Here four of the five Law Lordsgave substantive judgments withLord Mance agreeing in essencewith Lord Hope. This illustratesthe difficulties which many of theirLordships found with the case. Theresult is also that it is not straight-forward to find clear principlesfrom the decision on a number ofissues.

A common feature of all of thespeeches appears to have been anunderstandable sympathy for thedominant owners’ difficulties ofaccess. As Lord Hope put it, “Forthe owners use of their vehicleswould involve walking a distanceof about 150 yards in all weathersand in times of darkness as well asin daylight over . . . a significantlysteep descent or climb in open andexposed country. In the case of amother with very young children,for example, this would meanleaving them unattended andunsupervised in the house whileparking or collecting her vehicle oralternatively taking her childrenwith her on foot in suchconditions to and from the placewhere she had to park her vehicle.Owners who had no difficultyin driving but found walkingdifficult because they weredisabled or elderly would have todo this too . . .”.

New Types of ServitudeAll of the Law Lords confirmedthat there is no prohibition on theexpansion of the types of servitudeto deal with modern inventionsand new operations.

Right of Parking as Ancillary toServitude of Vehicular AccessLord Scott observed that a servi-tude of vehicular access does notusually have this ancillary right.Ultimately, however, the consensuswas that the ancillary right ofparking had arisen because it wasnecessary for the comfortable useand enjoyment of the expresslygranted servitude in question.

Lord Hope drew on the analogy of

Advance to Free Parking? - Moncrieff v Jamieson – continued

Conveyancing 205

a drover requiring a stance for hiscattle on the way to market whichwould temporarily exclude theowner from his land. Lord Rodgerused the decision of Maecianusfrom the Roman law Digest whereit was decided that a dominantproprietor of a servitude right ofpasture had a right to erect a huton the servient land to protect himfrom the winter weather while hewas looking after his animalsthere.

These analogies assisted the courtto find that the servitude in thiscase could only be enjoyed with anancillary right to park. Even LordRodger and to a lesser extent LordNeuberger whose speeches showdoubt on this issue, eventuallyfound for the dominant proprietoron the basis of the exceptional factsfound by the sheriff in the case.

Exclusion of Servient Owner fromhis LandAll of the Law Lords were clearthat the mere exclusion of theservient owner from use of part ofhis land could not of itself preventthe creation of such an ancillaryright just as it could not preventthe creation of a servitude itself.

Lord Scott noted, particularly inrelation to English law, that therewould be a limit to the extent thata servitude or easement could oustor exclude an owner from his landbut that the limit was not crossedin this case. The right of parkingwas not such as would oust anowner from his land as he couldstill park anywhere on the land,subject merely to the right of thedominant owner to park there also.

Civiliter PrincipleLords Hope, Mance, and Scottfound that the civiliter principleprevented prejudice to the servientowners. Lord Hope pointed outthat the use of parking “must notimpose an undue burden on theservient tenement”. Questions ofhow and precisely where the rightto park is to be exercised can “be

decided under reference to the rulethat the servitude right must beused civiliter”. Thus for examplethe right did not involve storage ofvehicles on the servient land. Thenumber of vehicles would be limit-ed in this way but no indicationcould be given of precise numbers.Lord Scott noted that the principleof civiliter restricted the use of thedominant owner to reasonable useof the dominant tenement as adomestic dwelling.

Lord Neuberger took the view thatthe extent of the parking rightwould be limited by what was nec-essary for the use of the tenementtaking account of the presumedintention of the parties at the timeof the express grant. On this basishe alone ventured the view thattwo or three spaces near to thegate to the dominant tenementwould be all that was necessary.

Lord Rodger dissented on theciviliter principle to limit theamount of the vehicles parking onthe servient land but thought thatit could apply to the place on theservient land which could be occu-pied by them. This echoes LordNeuberger’s analysis.

Free Standing Servitude ofParkingLords Scott, Rodger andNeubgerer were all of the viewthat there could in principle exist aservitude right of parking. LordHope reserved his view but hiscomments on this issue tend tosupport the view that there can bea free-standing servitude of park-ing.

Lord Scott went further and alonetook the view that a free-standingservitude of parking had actuallybeen created.

Implied GrantOnly Lord Scott found that therehad been an implied grant of afree-standing servitude of parking.The remaining judges took theview that the grant was an express

grant and the question waswhether there was a right of park-ing ancillary to the express grant.The Court therefore did notapprove the application in theInner House of Ewart v. Cochrane(1861) 4 Macq. 117 (the leadingcase on implied grant ofservitudes).

Lord Rodger did however agreewith Lord Scott that the expressgrant of one servitude could carrywith it the implied grant of anoth-er servitude.

Servitude created byAcquiescenceAgain Lord Scott was the solejudge to find obiter that aservitude could be created byacquiescence of the would-bedominant proprietor.

Construction of Express Grant ofServitudeLord Hope, with whom LordMance concurred, was the onlyjudge to see the issue of whetherthere was a right of parking asbeing a matter of the constructionof the express grant. The otherssimply applied the “necessary forthe comfortable use and enjoymentof the expressly granted servitude”test for the implication of ancillaryrights.

Precision of InterdictAll of the judges agreed with LordHope’s analysis on this issue. Hefound that given that the detailssuch as the number of vehicles tobe parked on the pink area, andthe times of parking which couldbe tolerated as part of the exerciseof the ancillary right would varyfrom time to time. It was thereforeundesirable for the court order tospecify a maximum amount ofvehicles and times of parking. Healso noted, perhaps somewhatoptimistically, that these issuesought to be capable of beingworked out by the parties them-selves, given reasonable co-opera-tion on both sides. He thereforedisagreed with the view of Lord


Hamilton in the Inner House thatthe absence of such details in theinterdict would be more likely topromote rather than avoid futureconflict.

CommentThe principal issue, for all of thejudges was whether the right topark could be implied as a rightancillary to the servitude right ofvehicular access. This depended onwhether parking at the boundarywas necessary for the reasonableenjoyment of the right of vehicularaccess.

One would have expected that thestarting point would have been aconsideration of what a right ofvehicular access entails. Only LordRodger appeared to consider thenot unreasonable argument thatas servitude of access is a rightof passage through the servienttenement to the dominanttenement, it is difficult to seehow a right to park on a 150 yardstretch of private road is essentialto allow a vehicle to be driventhrough the servient land into thedominant tenement.

The outcome of the case appears tobe result driven. At the end of theday none of the Law Lords, includ-ing despite his doubts, LordRodger, were willing to accept asituation where the dominantowners might have to walk in theShetland weather conditions fromtheir parked vehicles some 150yards or so to the dominanttenement.

In both the drover and shepherdanalogies referred to by LordsHope and Rodger it is clear whythe ancillary right was necessaryfor the exercise of the servitude inquestion. The principle could justi-fy a passing place on the accessroad, or on a very long road per-haps a camping site or a rest placein long distance path, to enable thecompletion of the passage. LordHope concluded,

“. . . it is impossible to reconcile

such hardships [the walking of the 150 yards with youngchildren or by a disabled orelderly person] with the use that might reasonably be expected to be made of the servitude right of vehicular access for the convenient and comfortable use of the property.It would mean . . . that theproprietor’s right of vehicular access would effectively be defeated.”

From the point of view of sympa-thy for the dominant owners this isentirely understandable. But froma legal point of view this passageis difficult. A servitude right ofaccess is a right to pass over theservient property. How is the rightto pass over the property defeatedif cars can not be parked at theboundary of the dominanttenement ?

Vehicles can pass over theproperty. Without the parking atthe boundary the vehicular rightwould at present be restricted todropping off and without the park-ing the convenience and comfort ofthe dominant tenement would bereduced. But ancillary rights areimplied in an express grant toenable enjoyment of the servitudeitself and not the dominant tene-ment which is benefited by theservitude. It is difficult to see whythe expectation of a certain use forthe dominant tenement shouldlead to expansion of the servitudeor any right ancillary to it. As LordRodger observed, if the servitudewas thought to be insufficient thiswould be reflected in the purchaseprice and additional rightsattached the servitude could possi-bly be bought from the servientowner for a price.

The anomalies of such an ancillaryright to park were observed byLord Rodger. Thus in an urban sit-uation where there was access overa public road to a residence withno parking space on it, the ownermight have to walk some distanceover the public road from the place

where he parked the car to the hisresidence. In this instance wherethe access was over a private roadto a residence with no parkingspace on it, the owner had animplied right to park a number ofcars of uncertain limit adjacent tothe boundary free of charge.

Furthermore if there was one spacefor parking on the dominant tene-ment but more than one car wasthought to be necessary for the rea-sonable enjoyment of the dominanttenement, did that imply an ancil-lary right to park the additionalcars? As Lord Rodger noted, if themajority approach was adoptedthen it would be difficult to seewhy such a right should not beimplied.

The majority sought to deal withthe issue of the extent of the ancil-lary right by reference to theciviliter principle. “Civiliter” means“in moderation” with the resultthat the dominant owner can do noact by which the burden of theservitude becomes heavier onthe servient tenement. But thisprinciple has always been appliedto regulate the exercise of theservitude right. It has not, at leastuntil Moncrieff been used to deter-mine the extent of the servituderight or any ancillary right. Thedifficulties in applying the civiliterprinciple to limiting the extent ofthe ancillary right are illustratedby the reluctance of the Law Lordsin using the principle to indicatethe maximum amount of vehiclesentitled to park. Lord Hope indi-cated that the number of vehiclesand times of parking would varyfrom time to time. Taking that tobe the case it is difficult to see howthe civiliter principle can be givenany specific content, or be of anypractical use. What advice is thelawyer to give to either party onthe number of cars that can beparked ?

Effect on the LawLeaving aside the critique, wheredoes Moncrieff leave the law? First

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Conveyancing 207

and foremost the court recognizedthe possibility of a free-standingservitude of parking in Scots law.It is not repugnant with owner-ship, at least in so far as it does notcover the whole of the servientland. It may or may not be repug-nant with ownership if it coversthe whole of the servient land. Soit seems that it is possible to makevalid express grants of servituderights of parking which will bindand benefit singular successors. Italso must carry with it the possibil-ity that a servitude right of parkingmay have been established by pre-scription or implied grant evenbefore 28th November 2004. Onthat date section 76 of the TitleConditions (Scotland) Act 2003came into force. It disapplied forexpress grants the rule that a posi-tive servitude had to be of a typeknown to law provided that it wasnot repugnant with ownership.The court appears to have con-firmed that this was the position atcommon law in any event for allservitudes.

Secondly, in order to establish anincidental right to park, it is suffi-cient for the dominant owner toshow– that he has an express grant of a

servitude of vehicular access; and

– that the right to park isnecessary to the reasonable enjoyment of the right ofvehicular access.

When is the right to parknecessary for vehicular access?Moncrieff does not make this clear.However the test would appear tobe that without it the vehicularaccess would be effectively defeat-ed. This is a high test. It is suggest-ed that only special features such

as the impossibility of vehicularaccess onto the dominant tenementat the time of grant will justify acourt implying a right to park intoa right of vehicular access.

Thirdly, the court recognised thepossibility of new types of servi-tude to accommodate moderninventions or conditions.

Finally, Lord Hope found that themeaning and effect of the words inthe express grant must be deter-mined by examining the factswhich were observable on theground at the time of the grant,and that account could be taken ofthe use to which the dominant ten-ement might then reasonably havebeen expected to be put in thefuture. These remarks appear totake no account of the well estab-lished House of Lords authorities(Anderson v. Dickie 1915 S.C. (H.L.)79; Hunter v. Fox 1964 S.C. (H.L.)95; and Alvis v. Harrison 1991 S.L.T.64, 67G per Lord Jauncey ofTullichettle) on the construction ofexpressly granted servitudes andreal burdens to which he was notreferred. In essence the first twoauthorities support the principlethat in finding the meaning of thewords one is restricted to the fourcorners of the deed. The thirdsupports this view while allowingregard to surrounding circum-stances at the time of the grantif the terms are unclear orambiguous.

Express grants of both servitudesand real burdens share the feature,absent from ordinary contracts,that the wording is intended tobind singular successors of thegranter and grantee who can notbe expected to be aware of whatcould be observed or thought but

not expressed at the time of thegrant. In both instances the acquir-er of the servient or burdenedproperty has to rely on the faith ofthe wording of the express grant.Despite Lord Hope’s remarks it issubmitted that he should not beseen as laying down a new rule ofconstruction for express grants ofservitudes or real burdens.

DraftingThere are no styles for servitudesof parking. There is ample scopefor disagreement over parkingrights. It would seem to makesense for clauses regarding theduration of the parking to beinserted. Thus one could have a“single yellow line” clause, or a“loading” clause or the like withspecified times. There is also thepossibility of a “sunset” clausebringing the servitude to an endafter a specific number of years.

ConclusionThe speeches are difficult to readand are not easy to understand orreconcile. It will not be straightfor-ward to advise clients as a result.The one clear conclusion is thatservitudes of parking are possiblein Scots law. It will remain forfuture litigation to settle the extentof the ratio of the decision. In somerespects it may come to resemblethe well know case of Smith v. Bankof Scotland 1997 S.C. (H.L.)111where in another result-drivendecision the House of Lordssought to confer benefits to aspouse who guarantees the debtsof another spouse. Thought to berevolutionary at the time, the sub-sequent case law almost uniformlyamounts to a retreat from theapparent basis of that landmarkdecision.


A recent decision of the ECJ isworthy of consideration, morein respect of the potentially lethalthreat it carries for the well-established principles of employ-ers’ liability under UK civil andcriminal law than for the actualresult.

In June 2007, the Court of Justiceissued its judgment in Article 226proceedings which had beenbrought by the Commissionagainst the United Kingdom. TheCommission alleged that the UKhad failed to transpose correctlyArticle 5(1) of the FrameworkDirective on Health & Safety89/391/EEC into national law.Article 5(1) provides that ‘theemployer shall have a duty to ensurethe safety and health of workers inevery aspect related to the work’. Thisprovision is qualified by Article5(4) which provides that ‘whereoccurrences are due to unusual andunforeseeable circumstances, beyondthe employer’s control, or to exception-al events, the consequences of whichcould not have been avoided despitethe exercise of all due care’.1

The alleged failure of the UKrelated specifically to the ‘so faras is reasonably practicable’(SFAIRP)2 defence provided bysection 2(1) of the Health & Safetyat Work Act 1974.3 This form ofwords is frequently used toprovide a defence in statutoryprovisions in UK Health andSafety law and the onus of proofin these situations is on thedefender seeking to establish it.The principal UK authority on theoperation of SFAIRP defences isthe case of Nimmo v AlexanderCowan & Sons Ltd.4 and subsequentcases.

The Commission’s main criticismsof the UK’s implementation of the

Directive by section 2(1) and, inparticular, the SFAIRP defence,were, firstly, that it qualified theclear, absolute and unqualifiedduty imposed by Art 5(1) of theDirective. Secondly, in so far asArt 5(4) does provide a measure ofdiscretion in permitting memberstates to limit the extent ofemployers’ liability under Art 5(1),by using the SWAIRP defence,the UK had exceeded the marginavailable to it. Essentially, asAdvocate-General Mengozzipointed out, the case centred onthe conflict between theCommission and the UK in theirrespective interpretations of Article5 of the Directive.5

Fortunately for the UK, theCourt’s judgment was that theCommission’s Art 226 complaintshould be dismissed. This wasalso the conclusion arrived at byAdvocate-General Mengozzi in hisopinion.

So what prompted theCommission to embark on this,ultimately, unsuccessful yetcontroversial prosecution? It wascontroversial because, if theCommission had succeeded, thenthe long established approach ofthe UK’s various jurisdictions tothe question of employers’ liabilitywould have been severelyundermined, with seriouslegal, economic and politicalimplications for the UK.

The Court analysed theCommission’s challenge to theSFAIRP defence with reference totwo key elements: (1) that theSFAIRP defence limits the liabilityof employers in the event of anaccident at work and (2) it restricts,unlawfully, the scope of theemployers’ duty to ensure thesafety of his employees. In a

sense, these are so closely relatedthat it is somewhat artificial to tryto separate them,6 however, follow-ing the approach taken by theCourt, each of these points will beconsidered in turn.(1) According to the Commission,Article 5(1) provides for employ-ers’ liability for any event whichhas a detrimental effect on employ-ees’ health and safety, irrespectiveof whether fault/negligence onthe employers’ part was involved.In other words, the Commission’sposition was that the Directivesought to harmonise membersstates’ laws around the principle of‘no-fault liability’, whether civil orcriminal. The Commission furtherargued that the circumstancesenvisaged by Art 5(4), underwhich members states mayexclude or limit the employers’responsibility, should not beassessed by reference to‘reasonableness’ criteria. In theCommission’s view, these wereintended to be exceptionalcircumstances ie something akin toforce majeure would be requiredto be proved.7 Thus, accordingto the Commission, the UK’stransposition of the Directive wasunsatisfactory, in that it did notachieve the outcome intended bythe EC when it adopted thisDirective.

(2) The second element of theCommission’s argument was that,although Art.5(1) imposed anabsolute duty on employers toensure the safety of their employ-ees, it should not be interpreted asrequiring employers to create a‘zero-risk’ working environment.According to the Commission,Art.5(1) simply means thatemployers are required to ensureemployees’ safety by assessing therisk of accidents occurring andtaking appropriate preventive

In Defence of the Employer’s Defence? –Case C-127/05 Commission v United Kingdom2007 IRLR 720by James Murphie, Senior Lecturer, University of Abertay Dundee

Employment Law 209

measures. Even if the employersdecide that no specific precautionsrequire to be taken, they shouldstill be liable for the consequencesif an accident occurs. TheCommission’s position is that theSFAIRP defence is, therefore,operating as a restriction on thescope of that duty.The response of the UK to point (1)was that the employers’ dutyunder Art.5(1) is confined toensuring employees’ safety; theDirective is silent on the questionof compensation for accidents andthe form of liability to be used bymember states in transposing theDirective into national law. Thesematters are left to member states.The UK deliberately chose toimplement the directive usingthe Criminal Law, subject to anarrow defence of ‘reasonablepracticability’,8 as this providesa more effective deterrent foremployers. Criminal law imposesautomatic, personal liability, andis more effective than the civil law,where accident claims are compul-sorily underwritten by insurers.9

The Court accepted that, underUK law, the courts interpretedthe SFAIRP defence to mean thatliability of an employer is onlylimited where he proves thatthere was a ‘gross disproportionbetween, on the one hand, the riskto the safety and health of workersand, on the other hand, thesacrifice, whether in money, timeor trouble that the adoption of themeasures required to prevent thatrisk from arising would haveinvolved and that the risk itselfwas insignificant inrelation to that sacrifice’.10

Further, contrary to the positionadvocated by the Commission, itwas argued for the UK that theDirective does not impose strictliability since, in terms of Art.6(2),the employers’ obligations are to

‘prevent or reduce risks’, and ‘toreplace dangerous with non-dangerous or less dangerous’things.11 In other words, there isa recognition, integral to thewording of the Art 6(2), that theemployers’ obligation is relative,not absolute, and therefore subjectto qualification on grounds ofpracticability and appropriateness.

In response to point (2) above,according to the UK’s position, Art5(1) imposes a general duty onemployers to ensure a safe work-place only, expressed in broadterms and without reference to aresult to be achieved or conse-quences of any breach. Arts. 6-12of the Directive set out the moreprecise content of that duty,application of which must conformto the general principle ofproportionality. Accordingly,the UK argued that the SFAIRPdefence does not restrict the scopeof that general duty in a waywhich is contrary to the Directive’sintended outcomes.

In its judgment, the Court was ofthe opinion that the Commissionhad failed to discharge its onus ofproof under Article 226 in respectof either of its allegationsconcerning the UK’s failure totranspose the Directive correctly.However, the Court went furtherand stated its preference for theUK’s interpretation of theDirective’s terms, outlined above,on both the substantive points.

Does this mean that theCommission’s attack on the UK’sregime governing employers’ lia-bility has now been successfullyrepelled forever? Certainly, it is thefirst serious challenge by theCommission to the use of commonlaw principles of fault or negli-gence in relation to employees’health and safety, but it may well

not be the last. Perhaps this deci-sion will lead to greater scrutinyby the Commission of the forms ofliability used in UK Regulationsimplementing the more detailed‘daughter directives’ and ‘second-generation directives’. Several ofthese sets of Regulations havegiven rise to questions of interpre-tation in UK courts regarding theform of liability ie whether theycreate strict liability or fault-basedduties. One only has look at thecases of Stark v Post Office,12

McGhee v Strathclyde Fire Brigade,13

Skinner v Scottish AmbulanceService,14 and Cross v Highlands &Islands Enterprise15 for instanceswhere the Court, to some extent,has had to consider (a) the compat-ibility of the Regulations with thesource Directive and (b) the formof civil liability, if any, that hasbeen created. Perhaps, with hind-sight, the Commission may feel ithas simply picked the wrong fighton this occasion,

Footnotes:1 NB ‘Member States need not exercise

the option referred to in the first sub-paragraph’ Art 5(4).2

2 Acronym used by the Advocate-General in his Opinion, at para 27

3 S.2(1) provides: ‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health,safety and welfare at work of all his employees.’

4 1967 SC(HL)5 Opinion of Advocate General Mengozzi

para 626 A point acknowledged by the A-G,

para 53.7 Para 38.8 Health & Safety at Work Act 1974 s.2(1).9 In its submissions, the UK pointed out

that compensation for accident victims is provided by the state social security regime and through claims for damagesunder civil law.

10 Para 31.11 Art 6(2).12 2000 ICR 1013.13 2002 SLT 680.14 2004 SLT 834.15 2001 SLT 1060.


The Adoption (Scotland) Act 2007makes important changes to theScots law of adoption. It alsointroduces a new kind of order - tobe known as a permanence order -under which parental responsibili-ties and rights in relation to a childwill vest in a local authority. InPart 1 of this article we will discussthe major changes to adoption law.Permanence orders will be the sub-ject of Part 2 of this article.

A key provision is section 14. Thisprovides (sections 14(1), (2) and(3)) that where a court or adoptionagency is coming to a decisionrelating to the adoption of a child,they must have regard to all thecircumstances of the case and areto “regard the need to safeguardand promote the welfare of thechild throughout the child's life asthe paramount consideration” (ital-ics added). It will be obvious thatthe court or adoption agency arebeing asked to do the impossible:how can anyone assess what is thebest course of action to promote achild's welfare for the rest of thechild's life? But at least it makesclear that adoption is not a courseto be embarked on lightly as it ter-minates the legal links between achild and the child's birth parents.In addition the court or adoptionagency must so far as is reasonablypracticable, have regard in particu-lar to (a) the value of a stable fami-ly in the child's development; (b)the child's ascertainable views(taking account of the child's ageand maturity - a child of 12 or overbeing presumed to be of sufficientage and maturity to form such aview); (c) the child's religious per-suasion, racial origin and culturaland linguistic background; and (d)the likely effect on the child,throughout the child's life, of themaking of an adoption order(section 14(4)). These factors areall centred on the child. Howeverwhere an adoption agency isplacing a child for adoption it

must have regard so far as reason-ably practicable to the views of thechild's parents, guardians andother relatives (section 14(5))Before making any arrangementsfor adoption, an adoption agencyis expressly enjoined to considerwhether adoption is likely to meetthe needs of the child or whetherthere is some better practicalalternative and if there is such analternative it must not make anyarrangements for the adoption ofthe child (sections 14(6) and (7)).Again we see that adoption is to beused as a last resort ie when thereis no other less drastic way topromote the child's welfare.

The following couples can apply toadopt a child jointly viz a marriedcouple; civil partners; persons whoare living with each other as if hus-band and wife in an enduring fam-ily relationship; and persons whoare living with each other as if civilpartners in an enduring personalrelationship (section 29). It seemsodd that unmarried opposite sexand uncivil partnered same sexcouples do not qualify unless theyare in "an enduring family relation-ship" whereas spouses and civilpartners qualify merely because oftheir status: yet we know that atleast a third of marriages (and whyshould it be different for civilpartnerships?) end in divorce!In addition each member of thecouple must be over 21 andneither of them can be a parent ofthe child. Where a member of acouple is the child's birth parent,the other member can adopt thechild alone and the child will betreated as the child of the couple iethe birth parent does not need toadopt her own child (sections 30(1)and (3) and section 40(2)). In thiscase the adoption can be madewhen the birth parent is 18 or over.A single person can adopt if he orshe is not a member of a relevantcouple or if the other member isdead or cannot be found or is by

reason of ill health unable to makean application. The child must beunder the age of 18: an adoptedchild can be adopted again but nochild can be adopted if he or she isor was a spouse or civil partner(sections 28(4), (6) and (7)).

In addition to applying the welfareprinciple in section 14 a court can-not make an adoption order unlessit considers that it would be betterfor the child that the order bemade than not (section 28(2)).Where the child is 12 or over anadoption order cannot be madeunless the child consents exceptwhere the child lacks capacity toconsent (section 32). Moreover it isprovided that an adoption ordercannot be made unless the court issatisfied that the child's parent orguardian understands the effect ofmaking an adoption order andconsents to the order (section31(2)(a)): for these purposes aparent is a parent who has anyparental responsibilities and rightsin relation to the child (section31(15)). This comes down to thefollowing grounds:

(a) that the parent or guardian is dead (section 31(3)(a));

(b) that the parent or guardiancannot be found or is incapable of giving consent (section 31(3)(b);

(c) that the parent or guardian is inthe opinion of the court unable to discharge their parental responsibilities or exercise their parental rights satisfactorily and is likely to continue to be unable to do so (sections 31(3)(c) and (4)); and

(d)if (c) does not apply, the welfareof the child otherwise requires the consent to be dispensed with (section 31(3)(d)).

Of course these grounds only openthe gateway to allow the court to

The Adoption (Scotland) Act 2007 – Part 1by Prof Joe Thomson, Scottish Law Commissioner

Family Law 211

dispense with parental consent: thecourt should only do so if thiswould be consonant with thechild's welfare (section 14). Inother words dispensing withparental consent is a two stageprocess. First, the ground has tobe established. Second, the courtexercises its discretion to dispensewith the parent's consent on thatground if it would be in the child'sbest interests to do so. Ground (d)is therefore problematic as theground itself is constituted byreference to the child's welfare. If itis in the child's welfare that thecourt should dispense with theparent's consent the ground isconstituted and the court willautomatically dispense with theparent's consent. The two stageprocess has become one stage withthe result that a parent's consent

can be overridden whenever it isin a child's best interests to beadopted. It is thought that thisprovision could be in contraven-tion of the parents' right underArticle 8 to respect for their privateand family life. The two stageprocess preserves parentalautonomy by insisting that aground must be established beforea parent's right to refuse to consentcan be overridden because it is thechild's best interests to do so. Bymaking the child's welfare itself aground for dispensing withparental consent the new provisionseriously undermines parentalautonomy.

After parental consents have beenobtained or dispensed with, thecourt can make the adoption orderprovided it is in the child's welfare

to do so (section 14). The adoptionorder vests the parental responsi-bilities and rights in relation to thechild in the adoptive parents(section 28(1)). However the ordercan contain such terms andconditions as the court thinks fit(section 28(3)). And so, for exam-ple, provided it was in the child'sbest interests to do so, the courtcould order that the child shouldcontinue to have contact with thebirth parents. These provisionstherefore can be used to facilitateopen adoptions. Nevertheless, theeffect of the order remains that theadopted child is to be treated inlaw as if born as the child of theadopters or adopter and not beingthe child of any person other thanthe adopters or adopter (sections40(1) and (3)).

1966 and all that…and ambush marketingscots styleby Thorsten Lauterbach, The Robert Gordon University

It may be all over for the Englandfootball team in terms of Euro 2008qualification, but the English FAwill take some solace after theirrecent victory in the High Court inJules Rimet Cup Ltd v FootballAssociation1 in respect of the usageof the 1966 World Cup mascot.North of the border, draftlegislation has been introduced toundermine ambush marketers inthe wake of the now successfulGlasgow bid to host the 2014Commonwealth Games.

“World Cup Willie’s goodwill has gotstaying power”

Jules Rimet Cup Ltd (JRCL)appeared to be on a hiding tonothing with their attempt toregister as trade marks the phraseWorld Cup Willie and a cartoon ofa lion wearing a Union Jack-based

kit and having a foot outstretched,both similar to or based on theFA’s 1966 World Cup mascot. TheFA opposed the registration basedon their alleged ownership of thecopyright in the original cartoon,and the goodwill that still existedin their 1966 trade mark which,admittedly, had been rarely usedin the four decades since the event.The FA argued that JRCL’s phraseand cartoon constituted ‘passingoff’, while JRCL’s cartoon itselfinfringed the FA’s copyright in theoriginal cartoon.

Roger Wyand QC, sitting asdeputy High Court Judge, notedthat this is unusual for goodwill tosurvive for such a long time.Curiously, it was evidence present-ed by JRCL, rather than the FA,which led to the downfall of theclaimant’s action. The judge high-

lighted five specific pieces of evi-dence – marketing documents,emails and press articles contain-ing statements by JRCL executives– which suggested that JRCL werevery well aware of the goodwillthat still existed in the 1966 origi-nal:

“When these documents were put to JRCL's witnesses they all denied that these showed that the reason they chose the name World Cup Willie and had a cartoon lion designed with that name was because they thoughtthat there was any residual goodwill in the original World Cup Willie. I did not find their explanations for the wording of these documents, for which they were responsible,satisfactory. I realise that these are marketing documents and


should not be taken too literallybut describing an unknown brand as ‘some of the most valuable sports rights in the UK’ only makes sense if it is actually a reference to the value of the original World Cup Willie.”2

Therefore, Wyand QC, comfortablyreached the conclusion that JRCLwere clearly aware of the residualvalue in World Cup Willie from1966 which, in turn, would allowthem to launch a very strong brandquickly. This residual value, how-ever, could only be based on resid-ual goodwill attributed to the FA.

Not only did the court find thatJRCL was ‘passing off’ on thisbasis, but also that to try to registerthe trade marks were attemptsmade in ‘bad faith’. While WyandQC acknowledged that JRCL hadsought legal advice from a trademark attorney, this in itself couldnot preclude the finding of badfaith. For instance, JRCL were, onthe evidence, well aware of thevalue of the 1966 mascot, and thatit was still very much known andrecognised by a sector of the rele-vant public.3 The judge put it onrecord, however, that he did notthink that JRCL’s executives weredishonest or trying to mislead thecourt: “They thought that they hadfound something that no one elsewas interested in and felt thatthey were entitled to claim it forthemselves.”4

This was enough to scupperJRCL’s plans, despite a finding bythe court that they had notinfringed the FA’s copyright intheir drawing of the cartoon lion.While there was copying, not asubstantial part of the originalcartoon character had been taken:

“Both lions are kicking a ball (not shown) with their right foot; the body of each lion is in a different attitude, the original leaning back and the JRCLhunched forward; the arms are

in different positions; the face ofthe original is turned in half profile whereas the JRCL lion is almost facing the viewer. The test is a qualitative and not a quantitative test. Overall I am of the view that although there are similarities the JRCLversion does not reproducea substantial part of theoriginal.”5

A victory for JRCL of the Pyrrhictype!

“Scots IP-free draft anti-ambushmarketing legislation”

Meanwhile, the City of Glasgowhas been successful in hosting theCommonwealth Games in 2014.The organisers of the event arenaturally concerned to protectsponsorship as well as intellectualproperty matter associated withthe Games. The Legislative processthat seeks to tackle certain aspectsof what is termed ‘ambush market-ing’ into the Holyrood law-makingmachinery began in June this year.6

Official sponsors pay significantamounts of money in order tomarket their goods and services atevents such as the 2014 Games,and the Bill introduced to Hoyroodimmediately after the success isbeing awarded the Games isdeemed to be required to make itless palatable for businesses to hoponto the bandwagon by, for exam-ple, misleading the public intobelieving that ambush-marketersare authorised partners or other-wise officially connected with theevent. The Consultation documentpoints to section 33 of the LondonOlympic Games and ParalympicGames Act 2006 which creates aspecific ‘association right’ that maybe infringed by ambush marketers.However, such a right falls into thereserved domain on intellectualproperty and the organisers of theScottish-based event are reliant onWestminster to legislate specifical-ly for the 2014 event in this respect.Existing legislation, in particularthe Trade Marks Act 1994, the

common law of passing off and theTrade Descriptions Act 1968 -itself subject to change due to theimminent implementation of theEU Unfair Commercial PracticesDirective – covers a number ofimportant IP aspects of the 2014Games already.

Instead the Bill addresses the sec-ond limb of ambush marketing,namely illegal street vendors andsellers of unauthorised merchan-dise within or in close proximity toGames venues. One key provisionmakes it a criminal offence toadvertise within the vicinity of aGames event during the gamesperiod without authorisation.Section 29 of the Bill foresees aspenalty a fine of up to £20,000. It isnot clear how the drafters of thisBill have arrived at this figure, butit appears to be rather draconian.However, it mirrors the penaltyimposed by the correspondingLondon Olympics legislation.While we can expect theappointment of a high number ofenforcement officers who will havethe task to enforce the advertising,outdoor vending and ticketingoffences, it remains doubtful thatcriminal law alone can deter thedetermined ambush marketer. Anumber of law firms provideexpertise to sponsors on how tomake their respective campaignsambush-proof. We can expect thatthere will be a high demand onprevention rather than solereliance on the curing effect of thecriminal law.

Footnotes:1 [2007] EWHC 2376.2 Ibid., at para 64.3 Rumours that the regular mentioning

of England’s success in 1966 in most UK sports broadcasts have contributed to this knowledge are as yetunsubstantiated.

4 [2007] EWHC 2376, para 99.5 Ibid., at para 34.6 Draft Glasgow Commonwealth Games

Bill 2007: Consultation Document, available athttp://www.scotland.gov.uk/Publications/2007/06/25155213/1.

1966 and all that… – continued

Profit in Practice 213

Having abandoned the practiceof law almost 6 years ago, I amnow in the act of abandoning thepractice of law firm consultancy.After delivering seminars, articlesand management advice for about12 years, I have had enough of thatand I am closing the doors on newbusiness, to give myself the time topursue other interests, particularlyhill-walking and writing books.

For those of you to whom I amcurrently providing help, don’tbe alarmed: I will be finishing allon-going transactions. But I havestopped taking on new clients.

This farewell to the law includesthe writing of articles, and this willbe my 36th and last article for theGazette. The Christmas Quiz willalso be my seventh and last, so Ihave tried to make it even morespecial than usual.

Apart from a fond farewell to myeditor (with thanks for allowingme to say so many awkward andrude things in this column), myvalediction takes the form of asummary of the ways in whichmost small law firms couldimprove what they are doing tomake the practice of the law morepleasant and more profitable.

Look after your ClientsAs a service-provider to lawyers, Ihave learned a great deal abouthow my learned colleagues work.With some notable exceptions, theyhabitually fail to return telephonecalls, reply to reminders or tell mewhat is happening (even when itis in their interests to do so). I am,of course, only the provider of aservice, a fee-ed tradesman, ora nuisance asking you toconsider purchasing a firm Iam representing. So I am notdeserving of a fast response oreven politeness. But I hope youtreat your clients better than somany lawyers have treated me

over the years.

Your clients are your life blood.They make pay day possible. Treatthem well and they will rewardyou by returning to you andtelling other people to bring theirbusiness to you. Treat them badlyand they will reward you bybad-mouthing you all over town.

There is no more unhappy clientthan the one who does not knowwhat you are doing, does notknow how long it will take anddoes not know what it will costhim. Solve these problems andyour clients will be happier andmore likely to refer others to you.

Look after your staffTalk to them and find out whatis happening in their lives. Askthem how they could work moreefficiently or more comfortablyand be prepared to accept theirresponses and implement theirsuggestions.

Treat them as individuals andescape from the annual pay risesand Christmas bonuses. Pay risesshould be given to rewardimprovements and promotions,not to mark the turn of the year.Bonuses should be paid for specificachievements.

Remember that a full day’s wageentitles you only to a full day’swork, nothing more. You haveto earn their respect and loyalty.

Get into the 21st centuryThere are still numerous firms outthere without a website. You areinvisible to the large majority ofpotential new clients who willalways, before doing anything else,have a look on the web to see whatis available. They may dial upyour town and “solicitor” and, ifyour name does not appear at thetop of the list presented to them byGoogle, you have already lost

their business.

In 5 years’ time, most propertieswill be sold using the internetrather than an estate agents’ officeand newspaper advertisements.If you do have a website, makesure it is smart and regularlyupdated. Look at what otherpeople are doing and steal theirideas. Decide what you want yourwebsite to achieve and design it orre-design it accordingly.

Network your computers andmake proper use of them formanaging your transactions, withdiaries, huge banks of styles(letters as well as documents) andchecklists – case management iseasy and effective.

Manage your time properlyYou do not always need to beavailable to everyone. Make surethat, at least for one hour each dayand one half day each week, yourdoor is closed and your telephoneis out of reach of everyone, so thatyou can deal with the large itemswhich, otherwise, you will have totake home with you.

Be early for every appointmentand don’t answer that telephonecall when you are about to leavethe office or meet a client.

Delegate and TrainThe rule is that each piece of workshould be handled by the personwith the lowest qualifications to doit properly. Make sure that all ofyour staff are receiving propertraining to qualify them to do thethings you are doing just now. It’shard work, but it pays off in thelong term.

Charge Proper FeesDelete the words “modified to”from your memory.

Have a good-sized minimum feefor everything and refuse to go

Goodbye to all thatby Brian Allingham


below it. It probably costs youabout £150 in time and outlays justto open (and later close) a file, somake that your basic charge beforecalculating any time or other fee.

Have a proper scale of fees forproperty transactions and stick toit. Losing a few clients will not bea problem if all your remainingclients are paying you 10% morethan last year. Let someone elsehave the client who wants only thecheapest fee; he will also be themost difficult client to deal withand you are better off without him.Find a proper way to charge forexecutries and quote a fee. No-oneelse will be quoting a fee, so youwill impress your clients and pickup new business. It doesn’t have tobe a cheap fee either; just anagreed one.

Give up the services which arelosing you money, including (formost people) anything with thewords “Legal” and “Aid” in thetitle.

Plan your retirement in advanceAbout 6 years in advance, togive you time to convert yourparalegals into partners, giving

them the right to buy you out andcontinue the firm. If you want toget a proper value for theGoodwill of your firm, you aregoing to have to find someonewho agrees that the Goodwill isworth buying.

Otherwise, if you can afford toretire, get on with it, but makesure you have something to doafterwards. Don’t die of boredom.

Work hard to attract younglawyersAn advert in the Journal willprobably get you nowhere. Lookfor people you have worked with(on the other side of a transaction)and offer them a handsomepackage if you really want them towork for you: a salary beyondyour wildest nightmares, variedwork, good holidays and whateverelse it takes to get them to come toyour firm. Ask them what it wouldtake to get them to work for you.

Even if they still don’t fancy thejob, they may know someone whodoes.

Employ trainees, who remain goodvalue for money, and try (really

try) to persuade them to stay onafterwards (or encourage them togo elsewhere with an offer of aplace with you later in theircareer).Convert your secretaries intoparalegals and your paralegals intosolicitors. They will respond with aloyalty beyond your dreams.

Talk to your partnersYes, I know they are difficultso-and-sos, but talking to themwill help you to solve problemsbefore they arise.

Well, that’s about it. AManagement Degree, 20 years’experience of running a firm and12 years of advising other lawyershow to run their firms - allcondensed into 1,000 words ofadvice. I hope it is good value foryour money.

I have had fun writing this columnfor 7 years. I wish the editor andall my readers the very best for thefuture. To everyone who hasattended my seminars or read mycolumns, thank you for listening.

Goodbye to all that – continued

Law Officers North and South of the Borderby Ian S. Dickinson, Formerly of The Law School,University of Strathclyde

Since June 2007 the principal lawofficers of the Crown for bothScotland and England have beenwomen. Moreover they are the firstfemales to fill the respective officesof Lord Advocate and Attorney-General. More significantly, atpresent both Scottish law officersare solicitors whereas in Englandboth law officers are members ofthe English Bar. Between 2001 and2006 this was not the case

In 2001 the Prime Ministerappointed Harriet Harman, asolicitor, as his Solicitor Generaland shortly after in Scotland alsoa solicitor, Elish Angiolini, wasselected as Solicitor General forScotland. This was an appoint-ment by the First Minister of theScottish Executive in terms of theScotland Act 1998. The 2001appointment of solicitors in bothjurisdictions clearly broke newground and on the face of it went

some way towards dismantlingthe distinctions between advo-cates/barristers and solicitors.This policy change in the case ofScotland moved a significant stepfurther in 2006 when on theresignation of Colin Boyd QC, theLord Advocate, the then SolicitorGeneral. Elish Angiolini, assumedoffice as principal law officer of theCrown in Scotland. Moreover incommon with her predecessors inthe Scottish Executive, Lord

Law Officers North and South of the Border 215

Hardie and Colin Boyd QC ,shethereupon entered the Scottish cab-inet. Thus at a stroke the 2006appointment modified a longstanding practice in Scotland. Thiswas referred to in the advicetendered by Lord President Clydeto Ramsay MacDonald, the firstLabour Prime Minister, who in1924 wished to appoint a solicitoras Lord Advocate. It was to theeffect that “it is part of the unwrit-ten constitutional law of the landthat the Lord Advocate and theSolicitor General for Scotland areappointed from among the mem-bers of the Scottish Bar. Thissprings-in the same way as otherparts of the law-from longcustom”.

No such policy shift as regards theAttorney-General was evidentsouth of the border. In GordonBrowns cabinet reshuffle in June2007 Lord Goldsmith resigned asAttorney-General and wassucceeded by Baroness Scotland ofAsthal, a highly experiencedmember of the English Bar and aGovernment minister since 1999.This was in accordance with thelong settled practice that the officeof Attorney-General is filled by a

member of the English Bar chosenby the Prime Minister.

Furthermore on appointment thenominee becomes leader of the Barin England.

A related question concernscabinet membership. No Attorney-General has been a member ofthe British cabinet since 1928. Incontrast when in 1999 the ScottishExecutive (now Government) cameto power under the Scotland Act,the First Minister, Donald Dewar,included Lord Hardie, the LordAdvocate, in his cabinet. Despitewidespread criticism of the deci-sion, this remained the positionuntil 2007 when the incoming SNPadministration assumed power asa minority Government. ElishAngiolini, Lord Advocate underthe previous Labour-Lib Dem.administration, was invited toserve as principal law officer bythe new First Minister. She did notbecome a member of his cabinetbut will attend meetings whenrequired for the purpose of givinglegal advice.

To conclude, in England the oldorder as regards the selection of

law officers has evidently beenfully re-established. However inScotland former practice has beenprogressively modified since 2001in what could be described as aweakening of the distinctionsbetween advocates and solicitors.Although the future role of theAttorney-General in particularis under detailed consideration,meantime in both jurisdictionsthere is unanimity, on oneimportant issue namely thatthose serving as law officersshould remain outside the cabinet.

Footnotes:1 On resigning as Lord Advocate Colin

Boyd left the Scottish Bar and appliedfor re-admission to the Law Society of Scotland as a solicitor. He will remain aQC and as a life peer will continue to sit in the House of Lords as Lord Boyd of Duncansby (The Herald May 16 2007).

2 Memorandum on the Law Officers of Scotland : NILQ vol.26 No 1 p.26.

3 The issue is examined in Post Devolution Developments 2002 SLT 39.

4 Whats the future for the Attorney-General? The Times July 10 2007.

The Elder Client :A Practical GuideFiona McDonald &Susan DuffThomson/W GreenISBN 978-0-414-01680-4Hardback price £50Private client business has grownrapidly over the last few years. Ithas moved on from just being willsand trusts. More clients are nowliving longer but often becomingincreasingly vulnerable in theirdeclining years. The passage of the

Adults with Incapacity (Scotland)Act 2000 provided a comprehen-sive and accessible source of lawfor continuing powers of attorneyand guardianships whereas thelaw relating to curatories hadalways been quite difficult toaccess and the reforms introducedby the Law Reform (MiscellaneousProvisions) (Scotland) Act 1990 inrelation to powers of attorney werestriking in the universality of theirapplication which may not havealways have been intended. TheAdults with Incapacity (Scotland)Act was not without some

problems and, following review, ithas been amended by the AdultSupport and Protection (Scotland)Act 2007. The revised provisionsof the 2000 Act relating to theintromission of funds arereproduced in full in this textwhich is very useful for anyoneadvising in this area.

However those practising in thisfield will know the black letterlaw is just not enough. Elderlyvulnerable clients will often look totheir solicitor to provide advice onfinancial matters – not necessarily

Book Review


those for which authorisation isrequired from the FSA; on benefitsand services available; on tradingdown to a smaller house or equityrelease; Inheritance Tax; costs inrespect of care homes and a wholerange of other issues. It is truly aholistic area of practice.

So a lawyer practising in this areaneeds a wide range of knowledgeon a variety of interlocking areasof law as well as possessing a par-ticular sensitivity to the needs ofclients – the ‘soft skills’ side ofpractice. So it is into this field thatthe authors have ventured in whatis really a first in Scotland. Theapproach taken is that of practicaladvice on a very wide range ofareas. It is truly holistic.

There are 182 pages of textwhich are crammed with helpfulinformation and contacts. Forexample advice about the Taxicardscheme operated by many localauthorities, community alarms,changing electricity suppliers andso on. The book gives examplesthroughout of problems andpossible advice which may begiven. It is at its best in flagging up

issues for consideration.

Inevitably things move on andwith the law stated at 1stSeptember 2007 the statement bythe Chancellor, Alistair Darling inrelation to on the death of the sec-ond spouse the proportion of thenil band rate unused on the firstspouse’s death would be availableto the second spouse. That changewill assist those families who aremoderately well off in the £500K to£750K range where there are oftennot enough assets other than thehouse to use the nil band rate onthe first death – or of course usea more complex arrangementsuch as nil band rate trust. Theprospective changes to CGTsimilarly could not be takenaccount of. Again the decision inArgyll & Bute Council v ScottishPublic Services Ombudsman wastoo late to be included.

The wide ranging scope of thebook inevitably means that itshould not be seen as definitivestatement of the law of succession,trusts, powers of attorney andguardianship. For example thetreatment of guardianship makes

no reference to the variety ofunreported cases available on theScottish Court website which dealwith issues which arise under theAct. At times one might havewanted more footnotes to followup the authority for statementswhich are made. That however isa very minor criticism. It dealswith issues of professional practicein a very integrated way – suchas the soft law of professionalpractice guidelines and theimpact of the accounts rules onsolicitor-attorneys.

The authors are to be warmlycongratulated on what is a novelsynthesis of practical guidance forthe profession. It will promptpractitioners into asking the rightquestions at the right time andwill provide a reassuring sourceof advice for the practical issueswhich arise in organising theaffairs of the elderly. There issomething here for anyonepractising in the private clientarea whether they have years ofexperience or are coming fresh toit and it is competitively priced.

Book Review – continued

The Society's website was one of theprincipal channels by which information wasdisseminated in our proxy gathering exercisefor the recent Client Communication rules.

The news section is regularly updated.

•

The site is located at:

www.slas.co.uk

For the members area of the site you need a user name and password.

To check out what is there you can use the following:

User name : makesure Password : 18011884

HOLIDAHOLIDAY RESPITE INY RESPITE INSCOSCOTLANDTLAND

Announcement by the

SCOSCOTTISH SOLICITTTISH SOLICITORS BENEVOLENT FUNDORS BENEVOLENT FUND

Arising from an arrangement with the Tod Foundation the ScottishSolicitors Benevolent Fund is happy to announce that it has fundsavailable for the provision of Scottish holiday respite for solicitorsand/or the dependants of solicitors who have practiced in Scotlandfor a minimum of two years but who are unable to finance suchrespite for themselves. The conditions are flexible and, if you know ofany practitioners or practitioner’s dependants who might qualify forthis assistance, then please pass details, in confidence, to:

The SecretaryScottish Law Agents Society166 Buchanan StreetGlasgow G1 2LWTEL: 0141 332 3536FAX: 0141 353 3819EMAIL: [email protected]

issn 0036-9314. december 2007. vol 75, no 6. scottish … · inside front cover – a message from...

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