Legal Matters Scotland
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27th September 2023

A free early morning round up of news for legal professionals across Scotland.
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INDUSTRY
Father of murdered teen expresses concerns over single judges in rape trials
The father of a murdered teenager has expressed concerns about plans to allow single judges to preside over rape trials in Scotland. While he supports other aspects of the Scottish Government's proposals to protect victims and eliminate the not proven verdict, he opposes the introduction of juryless trials for serious sex offences and the appointment of a victims' commissioner. Joe Duffy's daughter, Amanda, was murdered in 1992, and her case resulted in a not proven verdict. "The Scottish legal system is recognised as the only legal system in the world with three verdicts. This is an outmoded, outdated and unnecessary system," he said. It comes as MSPs on the Criminal Justice Committee are expected to spend several months hearing from relevant organisations and victims.
Report calls for independent scrutiny of biometric data in Scotland's criminal justice system
The independent scrutiny of biometric data in Scotland's criminal justice system should be extended to cover the entire landscape, according to a report by Scottish Biometrics Commissioner Dr Brian Plastow. Currently, oversight of biometric data is limited to policing bodies, however, the report argues that biometric data is extensively used in criminal prosecutions, prisons, and the management of violent and sexual offenders. Dr Plastow believes that all criminal justice agencies should benefit from independent oversight and the protection provided by the statutory Code of Practice. He urges Scottish ministers to seriously consider extending the oversight of his office and the safeguards of the Code of Practice to the entire ecosystem.
New baseline needed for cases awaiting trial, says Lord President
In an address to Parliament House to open the new legal year, the Lord President said that Scottish criminal courts are no longer expected to return to pre-pandemic levels of cases awaiting trial. Lord Carloway said that, while good progress had been made with the recovery programme, which aimed to restore the courts to their pre-pandemic capacity, due to the “ever-increasing volume” of indictments and complaints libelling sexual offences “we no longer expect to restore matters to the pre-pandemic position. We need to adjust our expectations and set a new reasonable baseline for the number of cases waiting to go to trial at any one time”. Modelling now predicted that “the number of High Court cases waiting for trial will recover to a new reasonable baseline level by March 2025, and sheriff solemn trials by March 2026”. The Lord President did not indicate what that baseline might be. Solemn cases are still waiting about twice as long to come to trial – more than 40 weeks compared with around 22 weeks – as before the pandemic.
New justice hub to open in Dundee
A new justice hub is set to open in Dundee next year, aiming to minimise trauma to vulnerable witnesses. The hub, located at Quadrant House, will serve both the High Court and Sheriff Courts in the region and provide a trauma-informed evidence by commission (EBC) suite. This will enable vulnerable witnesses to have their evidence and cross-examination pre-recorded, reducing the need to attend court in-person. The hub is expected to be operational by summer 2024 and will be the fifth bespoke EBC suite in Scotland. In addition to the EBC suite, the hub will include a digitally enabled civil court room and two additional vulnerable witness live-link rooms. Eric McQueen, chief executive of SCTS said: “The creation of the justice hub is a further step in our strive to modernise our services by ensuring the most vulnerable can have their evidence pre-recorded or can give their evidence by live link from the justice hub to the courtroom, while reducing the risk of further traumatisation as far as possible.”



 
THE LAW
Proposed Calum's Law aims to regulate use of restraint and seclusion in Scottish schools
Calum's Law has been introduced to the Scottish Parliament to regulate the use of restraint and seclusion in schools. The law aims to create a national framework for recording and reporting incidents of physical intervention in schools. It seeks to address the lack of clarity and inconsistency in definitions of restraint and seclusion across the country. The legislation would require schools to report all incidents to a Scottish Government body and ensure that parents and guardians are always informed. It would also establish standards for decision-making and training processes on the use of physical intervention. If passed, the Scottish Government would be required to regularly publish data and report to parliament.
Children's rights law could leave 'gaps' in legal protections
Cllr Tony Buchanan, COSLA's spokesperson for children and young people, has written to Holyrood's equalities, civil justice and human rights committee to raise concerns over plans to incorporate the UN Convention on the Rights of the Child (UNCRC) into Scots Law, with public authorities to only be required to comply with the UNCRC's requirements when delivering powers under powers set by an act of the Scottish Parliament - but not when delivering duties under UK acts of parliament. Cllr Buchanan said this approach will "add substantial complexity to the legal position and nature of legal duty on public authorities", and "will leave significant gaps in terms of legal protection of children's UNCRC rights", including in key areas like care and education.


STEP UK Tax, Trusts and Estates Conference 2023

The popular STEP UK Tax, Trusts and Estates Conference is back for 2023. Taking place this autumn in three venues across the UK, six leading industry experts will cover six crucial topics to keep you up-to-date with current and future developments of the essential tax, trusts and estates, all in one day. Topics of discussion include general tax updates, lifetime trust, IHT updates, and much more…

This conference is always incredibly popular, and places are limited. Register early to avoid disappointment. View the full agenda to see why this conference is a must-attend event.


 
FIRMS
CMS announces two Scotland partner hires
CMS has announced the appointment of new partners, Barry Edgar and Fenella Mason, who, respectively, join the firm’s offices in Glasgow and Edinburgh. Mr Edgar is a commercial real estate lawyer with extensive experience in advising institutional and private equity clients on investment and development transactions. Ms Mason becomes a partner in the Infrastructure, Construction & Energy Disputes practice. Previously at Burness Paull, where she led the firm’s Construction & Projects team for 13 years, she has over 30 years’ experience advising clients on construction and engineering dispute resolution, both internationally and domestically. 

 
CASES
Judge urged to release secret polling on strength of union
A judge has been urged to release secret polling on the strength of the Union in a bid to challenge the UK Government's "licence to secrecy". Judge Alastair Wright presided at the Upper Tribunal hearing in central London on Tuesday, in which the Cabinet Office and the Information Commissioner's Office pleaded for the information to be kept secret, but Tommy Sheppard of the SNP has been fighting for its release since 2019. The UK Government argues that the information is exempt from Freedom of Information laws as it relates to policy development. However, Sheppard argues that there is no policy to develop as the UK Government's stance on maintaining the Union is unchanging. The judge has yet to make a decision.
Police probe after man dies following Stonehaven disturbance
Detectives have launched an investigation after a man died following a disturbance in Aberdeenshire. Police Scotland said the alarm was raised at a property in Broomhill Road, Stonehaven, at about 10:40 on Tuesday. Officers said the man, who has not been named, was taken to hospital and pronounced dead a short time later. A 50-year-old man has been arrested.
CORPORATE
Scottish SMEs urged to protect against shareholder splits
Nicholas Howie, a lawyer at Scottish legal firm Lindsays, warns that Scottish SMEs, especially family and smaller enterprises, should protect themselves against the risks caused by shareholder splits. He said: “Addressing this ‘what if' can be an awkward one to approach - particularly for those who are in business with relatives or friends and even more so when it's brought up at a time when things are not going well." Howie added: "My experience, however, is that it's a conversation which a greater number of business owners across Scotland would be well advised having. The steps to be taken in the event of a shareholder dispute need to be built into contingency plans and procedures to help protect the future of the business and those who could be affected by any decisions made.”
PROPERTY
Hundreds of build-to-rent apartments approved
Glasgow City Council has granted planning permission to developer Clydebuilt LP C/o Ediston Real Estate for the first phase of a mixed-use development of up to 14 storeys at the Shawlands Arcade site in Pollokshields, with the development to include 329 build-to-rent flats ranging from studios to three-bedroom apartments. A number of councillors raised concerns over the lack of social housing provision in the development, and over the lack of parking provision in the development. The development will also include ground-floor spaces for retail and other services.

 
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