Special defence?

Photo by Gregory Pappas on Unsplash

I was motivated to write this particular blog entry when I read about an account of the outcome of a criminal case from England.

In that case, a young man (Dale Kelly) was acquitted of the charge of sexually assaulting a young woman while she was asleep. Kelly was able to satisfy the court that he had been sleep-walking at the time of the incident and, therefore, had no control over his actions.

Technically, the jury at York Crown Court returned a verdict of not guilty by reason of insanity.

A link to the story on The Guardian’s website can be found below:

https://www.theguardian.com/uk-news/2019/aug/20/sleepwalking-man-cleared-of-sexually-assaulting-woman

If such a case had occurred in Scotland, we might be talking about the possible application of the special defence of automatism. Automatism is one of six potential special defences that are now deemed to exist in Scots criminal law (the others being alibi; coercion or necessity; incrimination; insanity; and self-defence).

That said, it is not immediately clear that Mr Kelly would have been acquitted had his trial taken place in Scotland.

What is automatism?

Automatism is a condition whereby an individual unconsciously loses control of the body through no fault of his own, for example, due to the involuntary ingestion of mind altering drugs or a condition such as sleep walking or epilepsy. Crucially, the accused did not make a conscious decision to commit a criminal act. It is during the unconscious episode that the accused commits a crime, but does not know what is happening and has little (if any) recollection of this event having taken place.

An example of the successful pleading of the defence of automatism arose in Her Majesty’s Advocate v Ross (1991).

The accused had been drinking in a public house and, while present there, he subjected several of his fellow drinkers to a violent assault with a knife. It later emerged that someone in the public house had placed temazepam and LSD tablets in the lager can from which the accused had been drinking. The combination of temazepam and LSD had caused the accused to suffer an extremely violent reaction and this was the reason for him carrying out the attack on the other customers in the public house. The accused relied on the defence of automatism and was subsequently acquitted because he was able to convince the court that he had lost control of his body. It should, of course, be appreciated that the accused had no knowledge that he had ingested the temazepam and LSD tablets and could not be held responsible for what later happened.

Often the type of automatism found in Her Majesty’s Advocate v Ross (1991) is referred to as external automatism because the reason for the loss of control by the accused is caused by an external factor, for example, ingesting drugs without his knowledge.

Critically, Lord Justice-General Hope made the following remark in Ross:

“I understood [the Solicitor General] to accept that there was evidence that the appellant [Ross] had no control over his actions with the result that they were involuntary.”

Historically, the Scottish courts permitted attempts by an accused to use a defence of internal automatism. Internal automatism is caused by some physical condition from which the accused suffers, for example, epilepsy, diabetes or sleepwalking. It could be argued, however, that the concept of internal automatism was limited by the decision of the High Court of Justiciary in Her Majesty’s Advocate v Cunningham (1963) where the accused failed to convince the court that his epilepsy should be used as a defence to the charge that he had committed a number of road traffic offences. Previously, however, the Scottish courts had recognised the concept of internal automatism as a defence (as in His Majesty’s Advocate v Ritchie (1926)).

In Cunningham, Lord Justice-General Clyde stated that:

“Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence.”

Admittedly the decision in Cunningham, has been viewed by some as a blatant attempt by the High Court of Justiciary to narrow the range of possible defences available to the accused in Scots criminal law.

Nevertheless, the ramifications of Cunningham seem to suggest that a condition such as parasomnia as experienced by Mr Kelly might not result in an acquittal verdict in Scotland, but rather a lesser sentence being imposed by the court.

As Doctor Claire McDiarmid of the University of Strathclyde’s Law School has noted, a court has accepted the defence of automatism in a situation where the accused suffered from diabetes which caused hypoglycaemia (see MacLeod v Mathieson 1993). That said, the sheriff was at pains to point out that the defence could only be used in such circumstances which related to a first attack of the condition. In other words, if the accused was well aware that a condition from which s/he suffered tended to result in loss of mental and bodily control this might not be easily forgiven or overlooked by a court. In other words, the negative consequences resulting from the medical condition are not just reasonably foreseeable, but highly probable.

Critically, returning to Ross, the accused’s behaviour had resulted from the actions of other parties i.e. the spiking of the can of lager which was absolutely not his responsibility. The Scottish courts seem more willing to accept the defence of automatism in these types of situation as opposed to an incident such involving Mr Kelly who had a history, from childhood, of parasomnia. This factor might have weighed very heavily on the outcome of the trial had it taken place in Scotland.

A link to Doctor McDiarmid’s paper discussing automatism and special defences generally in Scots criminal law can be found below:

https://strathprints.strath.ac.uk/51182/3/McDiarmid_Ashgate_2014_How_do_they_do_that_automatism_coercion_necessity_and_mens_rea.pdf

Copyright Seán J Crossan, 22 August 2019

The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More (1996)). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

Copyright Seán J Crossan, 22 August 2019

Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

Don’t do it!

george-pagan-iii-624417-unsplash.jpg

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:


https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.

Copyright Seán J Crossan, 17 & 26 May and 17 August 2019

The £20k snip …


Photo by Piron Guillaume on Unsplash

You go in to hospital for a cystoscopy (a medical procedure involving the bladder) but you end up being circumcised. It sounds like a very, very bad joke, but sadly all too true as a recent report on Sky News confirms.

Medical negligence? Almost certainly. The victim receives £20,000 in compensation from the hospital in question.

This story has provided an opportunity to review the law on medical negligence.

Doctors and other medical practitioners are deemed to possess special skill, knowledge or expertise. When carrying out medical services, they owe a duty of care (see Donoghue v Stevenson [1932]) to their patients.

In cases of alleged medical negligence, the courts will judge a doctor according to the standard that is expected of a member of that profession, for example, a supposedly competent physician.

That said, however, in the area of medical negligence, particularly, the courts have accepted that members of the profession may have different opinions about how best to treat patients. One doctor may apply a particular procedure in order to treat a patient, whereas another doctor may rely on a completely different course of treatment. Both approaches to patient treatment are perfectly valid – so long as they are based on sound scientific and empirical evidence.

In Bolam v Friern Barnet Hospital Management Committee (1957), the House of Lords decided to give doctors and by extension other professions a certain amount of leeway to determine their own professional rules. A doctor would not be negligent if he used a medical procedure which was accepted as being a proper procedure by a responsible body of doctors who are skilled in a particular field of medicine.

The rule in Bolam was slightly finessed by a later decision of the House of Lords in Bolitho v City & Hackney Health Authority (1997). Lord Wilberforce stated the Bolam test was still the correct one to apply. However, doctors could not expect to escape liability for negligence by pointing out that their decision was backed by accepted medical procedures. A court would have to be certain that these procedures and the opinions of medical experts were reasonable. However, the fact that many medical experts backed a particular procedure would often be taken to mean that the doctor had behaved reasonably by relying on the procedure in the question. Only rarely would a court be entitled to reject the views of a body of medical experts.

In Hunter v Hanley [1955], one of the most famous medical negligence cases, the Inner House of the Court of Session decided that a doctor had fallen below the requisite standard of care and was, therefore, liable for the injuries suffered by the pursuer (the claimant).

in that case, Lord President Clyde established the following test for medical negligence claims:

  1. The pursuer must show that there is a usual and normal [medical] practice;
  2. The pursuer must show that the defender failed to follow or adopt this practice; and
  3. The pursuer (most importantly) must show that the course of action taken by the doctor is not one which a professional person of ordinary skill would have followed if s/he had been acting with ordinary care.

When deciding whether a doctor has failed to meet the necessary standard of care, it is important not to use hindsight. Doctors can only be judged according to the knowledge that they actually possessed or could have gained access to at the time when the pursuer suffered loss or injury.

In Roe v Ministry of Health (1954), the English Court of Appeal decided that the pursuer’s personal injury claim should fail. Lord Denning famously stated that ‘we must not look at the 1947accident with 1954 spectacles’. This statement of Lord Denning could be also expressed in the following terms: hindsight is a wonderful thing.

Sometimes, of course, a doctor’s conduct may fall well below the accepted standard of the profession, but they will still manage to escape liability to a patient. This usually arises when they doctor can show that the negligence was not the primary cause (causa causans) of the injury, but rather merely a factor in the background of events (causa sine qua non).

In two well known cases – Barnet v Chelsea and Kensington Hospital Management Committee [1969] and Kay’s Tutor v Ayrshire and Arran Health Board [1987], doctors who were accused of medical negligence were able to prove that their breach of the duty of care to the patients in question was not the primary cause of harm or injury and they were, therefore, able to escape liability.

That said the case reported by Sky News would appear to fall into that special category of res ipsa loquitur or the facts speak for themselves (see Cassidy v Ministry of Health [1951]. In other words, the inference of medical negligence is so overwhelming that there really cannot be a a credible, alternative explanation for the injuries suffered by the patient in this rather bizarre case.

A link to the story on Sky News can be found below:

http://news.sky.com/story/man-circumcised-by-mistake-at-leicester-hospital-gets-16320000-compensation-11778098

Copyright Seán J Crossan, 5 August 2019

Burka bans and horse racing in a Hijab

Photo by أخٌ في الله on Unsplash


I have just been reading two, contrasting stories
about Islamic dress codes which appeared in today’s UK media.

The first story comes from our close neighbour and EU partner, the Netherlands which has decided to bring in a new law banning certain forms of Islamic dress – principally the Burka, Hijab and the Niqab – from being worn by female Muslims in hospitals and schools and while travelling by public transport. This ban imitates similar initiatives in other EU member states such as Austria, Denmark, France and Germany. Those individuals who ignore or flout the ban run the risk of being fined €150. Some Dutch politicians, for example, Geert Wilders of the far right Party for Freedom would like the law to be extended in order to ban Islamic headscarves.

The second story comes from the UK and couldn’t be more different in tone. The BBC reports that a female, Muslim jockey, who wears the Hijab, has made history by winning the Magnolia Cup at Glorious Goodwood.

Links to the two stories can be found below:

http://news.sky.com/story/netherlands-burka-ban-comes-into-force-in-schools-hospitals-and-on-buses-11774887

Khadijah Mellah: Hijab-wearing jockey triumphs on Haverland and makes history

These two stories made me think about the limits of tolerance in relation to the outward signs of religious belief in our communities. Under UK and EU laws, a person’s religion is a protected characteristic and s/he has the right not to be subjected to unlawful, less favourable treatment (discrimination).

The right to enjoy protection from religious discrimination was first introduced to the mainland UK as a result of the EU Directive 2000/78/EC on Equal Treatment in Employment and Occupation. The laws on religious discrimination were to be found in the Employment Equality (Religion or Belief) Regulations 2003. It should be noted that the scope of these Regulations was limited in that they applied only to the area of employment – not, for example, the provision of goods and services.

Previously, Northern Ireland was the only part of the UK which had laws on religious discrimination – for understandable reasons given the troubled history of that part of the world. The Regulations did not extend to Northern Ireland because it already had laws in place to deal with this issue.

The Regulations have now been superseded by the provisions of the Equality Act 2010 (primarily Section 10) which are much wider in scope in that they cover both religious discrimination in employment and the provision of goods and services.

Additionally, Article 22 of the EU’s Charter of Fundamental Rights recognises a person’s right to cultural and religious diversity.

Wearing Islamic dress is obviously a way in which very religious members of this community can express their religious beliefs. Reading both articles today, I found myself asking the question what would be the legal effects if a similar ban on Islamic dress was introduced in the UK?

The new UK Prime Minister, Boris Johnson, has made disparaging remarks about forms of Islamic dress, but admittedly he does not seem willing to introduce a ban.

Countries such as Austria, Denmark, France, Germany and now the Netherlands are just as much bound by laws such as Directive 2000/78/EC and the Charter of Fundamental Rights as the UK is at the time of writing, so how do they justify banning certain forms of Islamic dress?

Freedom of religion is not absolute and sometimes the State can decide that a person’s religious beliefs must take second place if they clash with other people’s human rights (e.g. sexual orientation) or general public safety goals. In the UK, discrimination less favourable treatment in connection with a person’s protected characteristics may be permitted under the Equality Act 2010 if it can be objectively justified i.e. it is a proportionate means of achieving a legitimate aim. Health and safety or concerns about terrorism are often grounds used by States across the EU to justify periodic crackdowns on the wearing of Islamic dress in public places.

Copyright Seán J Crossan, 1 August 2019

Tax needn’t be taxing …

Photo by Colin Watts on Unsplash

I spend quite a lot of time talking to students about the work of what I label the “mainstream Scottish courts” i.e. the Justice of the Peace Courts, Sheriff Courts (trial & appellate functions), the High Court of Justiciary, the Court of Session and the UK Supreme Court.

Quite right too because these courts are very important and account for thousands and thousands of cases (both civil and criminal) every year.

Now comes the ‘but’ …

… I would, however, be doing my students a disservice if I left them with the false impression that these courts or judicial bodies dealt with every type of legal dispute. Frankly speaking, there are lot of legal issues which these courts will not deal with (especially those lower down the Scottish judicial hierarchy). They are simply not equipped to deal with a wide range of legal disputes which arise, for example, in employment, data protection, heraldry, intellectual property, immigration, mental health, social security and taxation.

This is where courts or tribunals of special jurisdiction come in. These bodies are equipped to deal with extremely technical or specialist areas of law such as taxation or social security. Citizens who might feel aggrieved about decisions made by organs of the State – Jobcentreplus or Her Majesty’s Revenue and Customs (HMRC) – can raise legal challenges before specialist tribunals.

In a previous blog (“Hello, I’m Lorraine and I’m definitely self-employed” published on 22 March 2019), I discussed the situation where the First Tier Tribunal (Tax Chamber) had to decide on the employment status of the well known British TV presenter, Lorraine Kelly.

The only time members of the public typically get to hear about the work of specialist tribunals is when it involves a celebrity or a football team (as with the long running saga concerning the affairs of Rangers Football Club).

Most of the time, these tribunals are working quietly in the background, largely unseen and unremarked upon, but they are making decisions which can affect large numbers of people.

I was reminded of this fact today, when it was reported that someone had successfully challenged a decision of Revenue Scotland (which was set up to administer specifically devolved taxes in Scotland) in relation to Land and Buildings Transaction Tax (LBTT). Several years ago, LBTT replaced stamp duty on conveyancing transactions in Scotland . Conveyancing, for those of you who don’t know, involves the buying, selling and leasing of heritable property (land and buildings). Surprise, surprise the State charges a tax on these types of transactions – unless the value of the property falls below a certain threshold or you happen to benefit from an exemption.

Anyway, to return to the case in point, Revenue Scotland has just lost its appeal from the First Tier Tribunal before the Upper Tier Tribunal and its attempt to impose a daily financial penalty on two individuals who submitted their tax return 21 months late has been quashed.

It may seem an obscure matter, but many people buying a house will be affected by LBTT and, potentially, the consequences of late submission of the return which must be submitted to Revenue Scotland – whether any tax is payable or not. Here we have a tribunal clarifying the law without much fanfare.

A link to the case before the Upper Tier Tribunal for Scotland can be found below:

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019-ut36.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=6acbf29343-EMAIL_CAMPAIGN_2019_07_25_11_03&utm_medium=email&utm_term=0_07336e1dbf-6acbf29343-66775629

Postscript

The purpose of statutory Tribunals is to keep complex matters such as taxation outwith the mainstream court structure. That said, from time to time, the courts superior courts will inevitably become involved in issues if an appeal goes beyond the Upper Tier Tribunal.

A good example of this happened last week when the UK Supreme Court had the final say in a VAT (Value added tax) case which originated in Scotland.

A link to the story as reported on the BBC website can be found below:

Aberdeenshire farmer wins case to reclaim £1m in VAT

The HMRC had taken Frank Smart to the UK Supreme Court in the legal battle involving subsidies.
A link to the press release about the case which was issued by the UK Supreme Court can be also be found below:
Readers, should they wish, can read the full judgement by going to the Supreme Court’s website:

Copyright Seán J Crossan, 25 July and 1 August 2019