Seán Crossan's Scots Law

Special Offers!

My students are well aware that I like to use stories which appear in the media to illustrate legal points or issues. Today, I have been reviewing some old media stories which I have distributed to students over the past few years.

One such story which caught my eye, and is always a topical issue, concerns contract law. When I begin to teach students about the basics of contract law, we often spend a bit of time discussing the difference between genuine offers and invitations to treat.

Invitation to treat

The phrase “invitation to treat” often causes puzzled expressions to appear on the faces of the individuals attending the lecture. I’ll say to them that it’s probably an expression that they have not previously heard. Even if they work in a retail environment or a customer facing role, it’s not something that they are likely to have encountered.

After all, when was the last time you walked around a supermarket or department store and heard over the PA system something like this:

“Hello shoppers, we’d like to make you aware that we have a great range of invitations to treat in the store today.”

I can just imagine the reaction from most of the customers: utter and total bemusement.

What you’re much more likely to hear is the disembodied voice saying something like this:

“Hello shoppers, we’d like to make you aware that we have a great range of offers in the store today.”

Now, the content of the above announcement isn’t strictly correct. The store or the retailer isn’t making you (the potential customer) an offer; they are making you an invitation to treat.

What is an invitation to treat?

This area is especially relevant for retailers and their pricing policies. Customers might think that a price ticket or indication is a firm offer issued by the retailer.

Very simply, it’s a basic form of marketing or advertising by the retailer or the trader. They wish to alert you to the fact that they have goods or services available that might be of interest. It is then up to you to go and make the offer to the appropriate representative of the trader. This offer will be considered (perhaps extremely quickly and without much in the way of negotiation) and accepted leading to a contractual agreement between the parties. An invitation to treat is a willingness by the trader/retailer to enter into negotiations with a potential customer. The trader or retailer is effectively saying: ‘I’m open to offers or make me an offer‘.

It’s been well established law for some time that goods displayed on shelves or in shop windows are not offers to the general public capable of acceptance, but rather they should be seen for what they are: invitations to treat (see Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953) and Fisher v Bell (1961)) .

Misleading price indications

What if the retailer or trader applies the wrong prices to a product? Does the customer have the right to hold the seller to this price – even if it’s a mistake?

This can be a particularly acute problem for retailers and traders which use the internet or other digital platforms to advertise and sell goods. You only have to think about some of the big internet traders to realise that keeping track of the prices on every product sold by them must represent a really tough operational challenge.

What if prices are not kept up to date?

What about data input error where someone keys in the wrong price and is totally unaware of this?

What if the promotion (e.g. a discount) applies to only a small group of products or a particular geographical area?

These have all been known to happen to retailers and traders who use the internet or other digital media.

We’re now living in a more hi-tech age where lots of traders will advertise goods and services on the internet, but these platforms should be seen as the virtual equivalent of the high street trader’s shelves or shop window. Even if prices are affixed to certain products or services, the customer should always be wary. These are merely an indication of what the trader would like to achieve. There is nothing, in theory, to stop the customer haggling or negotiating over the goods or services.

In traditional retail or sales environments i.e. face to face situations, the customer sales representative could quickly deal with the problem of wrongly mispriced goods. The customer might huff and puff and threaten legal action, but usually to no avail. Quite simply, the goods which were on display were invitations to treat (not offers). The customer was, in fact, making the offer which the customer sales representative was refusing to accept.

True, many retailers might choose to go ahead and sell the goods at the wrongly marked price as a gesture of goodwill because this was seen as a sensible customer relations tactic, but legally the store was not obliged to do this. Obviously, if there was a really big price discrepancy, even the most customer centred business might choose to draw the line somewhere (I suppose all organisations have their bottom line).

In sales generated using the internet or other digital media, there is a lack of a traditional gate-keeper (a sales assistant). Transactions are processed electronically and remotely and contracts for wrongly (i.e. lower) priced goods may slip through.

Usually, but not always, the virtual retailer or trader will have an explicit term in their general contractual conditions which states that the transaction will not be binding until such time as the customer receives a confirmatory email or other form of message.

Legal consequences

Although a store might not be liable to a customer for misleading price indications or statements under the law of contract, there are potential criminal consequences. The store could be prosecuted under criminal law and fined for misleading consumers. These laws are now contained in the Consumer Protection from Unfair Trading Regulations 2008.

Please see link to the story about the Co-op getting its pricing policy wrong:

Co-op chain accidentally introduces 20% discount at stores

A supermarket chain accidentally introduces a 20% discount at 140 stores instead of just at one branch – costing it thousands in lost revenue.

Conclusion

Contrary to popular opinion, advertisements displayed in newspapers, magazines, trade journals and on the internet are not offers, but are regarded as invitations to treat. The offer is to be made by the consumer in response to the advertisement. The advertiser is at liberty to accept or decline any offers potential customers might choose to make.

An invitation to treat can take the following forms: goods in a shop window display, on a shop shelf or in a catalogue, goods exposed for sale at an auction or via the internet. The offer can be made by taking goods to the checkout (real or virtual) or requesting them from the shop assistant, it is then up to the advertiser or the shop assistant to decide whether to accept or refuse the offer. A shop assistant does not have to give a customer a reason for refusing to accept an offer and is not bound by the marked price on the goods. If, for instance, you happen to be under 18 years of age and you attempt to purchase alcohol from your local supermarket, the assistant will be well within her rights to refuse to accept your offer to purchase these goods.

Questions

1. For a contract to exist, the agreement must also be legally binding/legally enforceable. What does this mean?

2. What are the two elements of any contract?

3. What is an invitation to treat?

4. Provide FIVE examples of an invitation to treat.

5. Why must an invitation to treat be distinguished from a distinct and definite offer?

6. Where is the point of sale in a supermarket and what, in terms of offer and acceptance, happens there?

7. What is a misleading price indication?

8. Does a retailer have to sell a consumer the goods with the wrong price on the ticket or label?

9. What other legal consequences arise as a result of misleading price indications by a retailer?

See link to find answers to the above questions:

https://seancrossansscotslaw.com/questions-answers/

Copyright Seán J Crossan, 27 March 2019

Nemo dat quod non habet!

What is the legal position if goods are stolen from their true owner? Can a thief pass good title (ownership) to an innocent third party? Obviously, someone who knowingly purchases stolen goods cannot obtain good title to them. Such a purchaser will have acted in bad faith and will probably be guilty of the crime of reset.

In Scotland, we often use the maxim or saying nemo dat quod non habet i.e. if you’re not the owner (or someone authorised by the owner), you cannot transact in the goods and pass ownership or title to an innocent third party.

A number of stories have appeared in the media in the last few days which have made me think about the possible application of the legal principle of nemo dat quod non habet.

The first story concerned an attempt by the Republic of Italy to have a stolen painting returned, which is believed to have been taken by the Nazis during World War II:

The Uffizi Gallery has replaced it with a copy. The exact location of the original is a mystery.

Might this Nazi-stolen painting be returned?

The second story concerned the theft of a Picasso painting which occurred slightly more recently:

Stolen Picasso painting found by ‘art’s Indiana Jones’ after 20 years

http://news.sky.com/story/stolen-picasso-painting-found-by-arts-indiana-jones-after-20-years-11675555

Clearly, an individual who knowingly purchases stolen property from the thief or retains possession of the item(s) cannot acquire good title or ownership. The passage of the years does not diminish the fact that the goods are stolen property.

An excellent example of the legal principle of nemo dat quod non habet can be seen in the following case:

Rowland v Divall [1923] in April 1922, Divall bought an ‘Albert’ motor car from a man who had stolen it from the true owner. One month later, Divall sold the car to a dealer named Rowland for £334. Rowland repainted the car and sold it to a Colonel Railsden for £400. In September, the police seized the car from Railsden.

Held: by the English Court of Appeal that the car had to be returned to its true owner. Railsden brought a successful action to recover the price of £400 that he had paid to Rowland. Rowland, in turn, successfully sued Divall for £334.

Poor Divall, however, was not so fortunate. As he had purchased the car directly from the thief, he would need to track this person down in order to initiate an action for recovery of the purchase price. Thieves, by their very nature, tend not to hang around waiting to be caught and they have a nasty habit of vanishing into thin air.

Section 17 of the Consumer Rights Act 2015

This section of the Act provides very important protection to consumers by ensuring that a trader has the right to sell the goods which are the subject matter of the contract. In a contract of sale, this will mean that the seller must have the right to sell the goods at the time of the actual sale or, if the contract is an agreement to sell, s/he will have the right to sell the goods at the time when the property is to pass to the buyer.

Problems usually arise in this area when the consumer later discovers that the seller has supplied her with stolen goods.

In many respects, Section 17 of the Consumer Rights Act 2015 is very similar to Section 12 of the Sale of Goods Act 1979 (which previously regulated consumer contracts for the sale of goods).

Although the Consumer Rights Act applies to transactions where the trader is only a part-owner of the goods, failure by the trader to disclose to the consumer that he is only a part-owner of the goods and, that consequently, the buyer will only be entitled to a part-share in the goods would represent a breach of Section 17.

In situations where the trader can only give a consumerbuyer a limited title to the goods, she is duty bound to inform the buyer thathe only enjoys limited rights in the property and, therefore, it will beentirely the buyer’s choice if he wishes to proceed with the transaction. Fulland frank disclosure by the trader of any limitations in respect of his titleto the goods means that, at the very least, the buyer will have made aninformed choice if he proceeds with the contract – albeit under somewhatdisadvantaged circumstances.

The main protection that Section 17 gives to theconsumer buyer is that the trader (the seller) is promising that she has theright to sell the goods to the buyer. So, if the goods supplied were stolen,then the seller would be in breach of the duty imposed by this Section of theAct and the buyer would be entitled to reclaim the whole of the purchase pricefrom the seller.

The consequences of abreach of Section 17 by a trader

A breach of Section 17(1) of the Consumer Rights Act 2015 by a trader is extremely serious and this reflected in Section 19(6) of the Act as it will give the consumer the right to reject the goods.

Quiet possession

Another important protection for consumers contained in Section 17 is that she has the right to enjoy quiet possession of the goods after the contract has been implemented. Effectively, the trader promises that no third party can dispute the consumer’s right to own the goods or possess them which would disturb his enjoyment of them. Any disturbance of the consumer’s right of quiet possession by third parties will mean that a potential claim lies against the trader.

Other sales

The Sale of Goods Act 1979 applies to the following transactions:

1. Business to business sales (B2B)

2. Consumer to business sales (C2B)

3. Consumer to consumer sales (C2C)

The general rule regarding the transfer of title to corporeal moveable property (tangible, moveable property) from seller to buyer is that only the true owner of the goods (or her authorised agents) can pass ownership of the goods. A thief, for example, can almost never pass good title to a third party if the goods were stolen by him or the contract was induced by fraud (see Morrison v Robertson (1908)).

Section 12(1) of the Sale of Goods Act 1979 offers protection to a buyer who purchases corporeal moveable property in good faith from most of the negative consequences of the nemo dat quod non habet rule. It states that in a contract of sale … there is an implied condition on the part of the seller that in the case of a sale, he has a right to sell the goods and, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass. This means that the buyer will be able to sue for the return of the price of the goods from the seller (who had no right to sell them in the first place). This applies even where the buyer has used the goods.

Furthermore, Section 21 of the Sale of Goods Act 1979 states that a buyer will not acquire good title to goods in a situation where the person selling them is not the owner and/or lacks the authority to sell them. In other words, the buyer cannot become the owner of the goods and the true owner will be able to reclaim the goods even from a person who bought the property in good faith.

Section 12(2)(b) states that the buyer has the right toenjoy quiet possession of the goods and any disturbance of this right by thirdparties will mean that a potential claim lies against the seller.

Section 12(3) addresses situations where the seller can only give the buyer a limited title to the goods. If such a situation applies to the sale of goods, the seller is duty bound to inform the buyer that he only enjoys limited rights in the property and, therefore, it will be entirely the buyer’s choice if he wishes to proceed with the sale. However, at least the buyer will have made an informed choice.

In many respects, the protection offered to a buyer purchasing corporeal, moveable property in good faith is remarkably similar to those rights found in the Consumer Rights Act 2015.

It will not always be possible, however, to return the stolen property to the true owner when the goods have been converted into other goods and cannot be retrieved e.g. when cattle have been stolen, slaughtered and eaten. In such situations, the true owner will have to be content with an award of damages based on the value of the property now lost to her forever.

Exceptions to Nemo dat quod non habet

The nemo dat quod non habet rule is only a general rule. Like most general rules in the law, however, there are a number of exceptions under both the common law and statute which might mean that someone who is not the true owner of the goods can pass good title to a third party. The practical effect of this is that the third party will often become the lawful owner of the goods despite the original owner’s protests.

Hopefully, buyers purchasing property in good faith which turns out to be stolen or having a defective title, will not fall into one of these exceptions to the general rule!

Conclusion

An innocent (or good faith) buyer of goods might discover, to their horror, that the property is stolen. The general rule is that a thief cannot pass good title to a third party – even if such a person is entirely honest. The rule is often expressed as nemo dat quod non habet.

Both the Sale of Goods Act 1979 and the Consumer Rights Act 2015 provide important legal protection to good faith buyers of stolen property (and more generally in situations where the seller’s title to goods is defective in some way).

The main protection that Section 12 (Sale of Goods Act 1979) and Section 17 (Consumer Rights Act 2015) gives to a buyer is that the seller is promising that s/he has the right to sell the goods to the buyer. So, if the goods were stolen, then the seller would be in breach of the duty imposed by the relevant legislation and the buyer would be entitled to reclaim the whole of the purchase price from the seller.

Copyright Seán J Crossan, 26 March 2019

Veganism = human cruelty?

Photo by Jon Tyson on Unsplash

Regular readers of this blog will be aware of my interest in philosophical beliefs and whether these are capable of protection in terms of the Equality Act 2010. It seems to be an area of law which is being developed on a fairly regular basis – often with pretty surprising results.

The Employment Tribunal decided, for example, in Hashman v Milton Park (Dorset) Ltd t/a Orchard Park ET /3105555/2009 that a belief in the sanctity of both human and animal life could constitute a legally protected philosophical belief.

Several of my previous entries have looked at whether veganism could be a philosophical belief. This issue could soon be decided by the outcome of an Employment Tribunal case lodged at the end of 2018 (Casamitjana v League Against Cruel Sports).

What about anti-veganism? To be honest I’d never heard of this before, but a story on Sky News caught my attention:

Veganism is human cruelty’: Protester eats raw pig’s head outside vegan festival

http://news.sky.com/story/protester-eats-raw-pigs-head-outside-vegan-festival-11674741

A YouTuber going by the name of Sv3rige ate a pig’s head outside Vegfest, a vegan festival in Brighton to draw attention to his belief that “veganism is human cruelty”.

Sv3rige’s explained his motivation to Sky News:

“We did it – it was eight of us – because veganism is malnutrition and you can’t get over 15 nutrients from plants and some of us are ex-vegans who got sick because of it.”

A crass publicity stunt or a genuine attempt to highlight someone’s deeply held beliefs?

Food for thought indeed!

Copyright Seán J Crossan, 26 March 2019

Locking horns (Frustration of Contract Part 2)

Photo by Uriel Soberanes on Unsplash

In February, one of my blogs (Frustration of Contract) dealt with the circumstances surrounding the issue of frustration as a factor which could lead to termination of a contractual agreement.

One of the stories discussed in that particular blog was the dispute between Cardiff City FC and FC Nantes in respect of the tragic death of Emiliano Sala, the Argentinian footballer who had signed for the English Premiership club.

Despite Sala’s death, the French club was till demanding a portion of the transfer fee of £15 million. This led to speculation on my part as to whether frustration of contract could be an argument put forward by Cardiff.

The plot has since thickened an, today (25 March 2019), it has been reported that Cardiff City is now claiming that the transfer deal was never legally binding. The Premiership side asserts that the proper paperwork was not completed; the French side disputes this.

So, it looks as if the two clubs are going to be locking horns in what now seems to be an inevitable legal dispute.

A link to an article on the BBC website can be found below:

saw this on the BBC News App and thought you should see it:

Emiliano Sala: Cardiff set to claim transfer deal ‘not legally binding’

Cardiff City football are set to tell Fifa the deal to buy Emiliano Sala from Nantes for £15m was not legally binding.

Copyright Seán J Crossan, 25 March 2019

Related Blog Articles:

Locking horns (Frustration of Contract Part 2)

Pay up! (or Frustration of Contract Part 3)

Stormy weather, I’m at the end of my tether!

Welcome to Austria?

https://seancrossansscotslaw.com/2020/03/18/crazy-days-force-majeure-frustration/

Strippers are workers too. Discuss.

Photo by Eric Nopanen on Unsplash

We had Lorraine Kelly and employment law in one of Friday’s blogs (Hello, I’m Lorraine and I’m definitely self-employed). Today, rather than TV personalities, we have strippers (which demonstrates the sheer breadth of this area of the law).

Anyway, a report on Sky News (Sunday 24 March 2019) highlighted the campaign by women working as strippers who wish to be classified as workers rather than self-employed individuals. A worker has, of course, a broader meaning than employee in both UK and EU employment law.

Workers enjoy, for example, protection under legislation such as the Working Time Regulations giving them access to holiday pay and minimum holiday entitlement, as well as regulating their working time (i.e. the 48 hour limit). The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is also an important source of legal protection for workers.

In terms of Section 230 of the Employment Rights Act 1996, an employee is someone who has a contract of service. As I have stated in previous blogs, an employee has potential access to multiple employment rights – a situation which a worker or self-employed individual can really only dream about.

In the Sky News piece, the spokesperson for individuals providing services in the “adult entertainment” business makes an eloquent claim for greater legal rights. We hear tried and tested arguments about the level of control (arguably) which nightclubs have in relation to these individuals. This is an attempt to deploy the control test to the advantage of people working in this industry. Whether it will be a clinching argument which secures the status of worker for many people remains to be seen.

A link to the Sky News article and video can be seen below:

Strippers seek workers’ rights recognition

http://news.sky.com/video/share-11674273

This is not, however, the first time that an individual working in the “adult entertainment” industry has sought employment rights.

In Chapter 6 of Introductory Scots Law, I discuss the case of Quashie v Stringfellows Restaurants Ltd [2012] EWCA Civ 1735 where an individual argued that they had employment status and, therefore, the right to legal protection – principally in relation to unfair dismissal in terms of the Employment Rights Act 1996.

Quashie provided services as a lap dancer to two clubs, Stringfellows and Angels, both owned by Stringfellows Restaurants Ltd over a period of about 18 months. Stringfellows decided to dispense with Quashie’s services on 9 December 2008 because the management was suspicious that she was involved with drugs while working on the premises.

Quashie submitted a claim for unfair dismissal to an Employment Tribunal. The customers paid Quashie to dance – not Stringfellows Restaurants – and she had to pay the clubs a fee for the right to dance there. There was no barrier, in theory, to Quashie accepting engagements to dance at other clubs not owned by Stringfellows Restaurants – as long as she had not made a prior booking to dance at Stringfellows or Angels.

Holidays could be taken by Quashie when she wished, but so long as she completed a form giving advance warning of her intention to do this. Quashie received a club agreement from Stringfellows Restaurants which stated that she was an independent contractor. Admittedly, Stringfellows Restaurants did put Quashie on a rota to dance on a regular basis and a failure by her (or other dancers) to turn up for these shifts meant that she would be suspended from the clubs the following week and she would not be permitted to work.

The Employment Tribunal held that there was no mutuality of obligation between the parties and that Quashie was not an employee and that the right to claim unfair dismissal (Section 94: Employment Rights Act 1996) was not available to her. Quashie appealed to the Employment Appeal Tribunal. On appeal, the Employment Appeal Tribunal overturned the original decision of the Employment Tribunal and found Quashie to be an employee. Stringfellows Restaurants appealed to the English Court of Appeal.

Held: by the English Court of Appeal that the Employment Appeal Tribunal had erred and that the original Employment Tribunal decision should be reinstated: Quashie was not an employee as there was insufficient mutuality of obligation between the parties.

Conclusion

As reported in the Sky News piece, the argument being advanced that strippers should be given worker status is clearly a more modest attempt to secure some employment rights for individuals working in this industry. It may be easier to win this argument than the contention that such individuals should be treated as employees (as occurred in Quashie). That said, it will be for judges to determine on a case by case basis who has employment status and who does not.

Postscript

In an attempt to secure better employment rights for women working in the “adult entertainment” industry, BBC Scotland reported in July 2019 that many lap dancers working in Glasgow had joined a trade union.

Please see a link to this story below:

The lap dancers who joined a union

Copyright Seán J Crossan, 25 March and 22 July 2019

Scottish Criminal Court Statistics

The first quarterly bulletin detailing criminal court activity was published the week beginning 11 March 2019 by the Scottish Courts and Tribunals Services (SCTS).

The SCTS notes that:

“There were 109,881 first instance criminal cases registered in Scottish courts in 2017/18 which is 25% less than the number of cases registered in 2014/15 and 7% less than 2016/17. Most of the reduction in cases registered is attributable to changes in summary crime rather than solemn crime.”

A link to a commentary on these official statistics can be found below:

http://www.scotcourts.gov.uk/docs/default-source/aboutscs/reports-and-data/criminal-court-statistics/qcc01/scts-quarterly-criminal-court-statistics—bulletin-q1-2018-19.docx?sfvrsn=2

According to SCTS:

“The statistics in this bulletin do not have information relating to accused persons in terms of what they were charged with or their resulting conviction or sentence as there are already well–established National Statistics on these aspects of criminal justice. This bulletin does not cover court cases relating to civil business.“

See the Scottish Government’s website for statistics relating to criminal or civil justice:

http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice

The SCTS goes on to say:

“This is the first bulletin in a new series of quarterly reports on criminal court activity and can be viewed within the ‘Statistics’ section of webpage“:

http://www.scotcourts.gov.uk/about-the-scottish-court-service/reports-data.

Hello, I’m Lorraine and I’m definitely self-employed

Photo by Sam McGhee on Unsplash

I rarely tire of writing about employment status and today is no exception.

I never thought, however, that I would be talking about Lorraine Kelly, the well known British TV personality, and employment status in the same breath. I suppose there’s a first time for everything.

Anyway, Ms Kelly has just won an income tax dispute valued at £1.2 million with Her Majesty’s Revenue and Customs (HMRC). She was able to demonstrate to the First Tier Tax Tribunal that she was not an employee of ITV, but rather she was a freelancer or a genuinely self-employed person. If you are classified as a freelancer or a self-employed person, you will be able, quite legitimately and courtesy of a competent accountant, to pay less in income tax to the Exchequer. Clearly, this situation will be more advantageous to higher, earning individuals such as Ms Kelly.

Judge Jennifer Dean, who chaired the Tribunal, was convinced that Ms Kelly was effectively a theatrical performer who was “presenting a persona of herself … she presents herself as a brand and that is the brand ITV sought when engaging her [my emphasis].”

Significantly, Ms Kelly was also able to show that ITV did not give her any employee or worker benefits such as holiday and sickness pay. There were also no restrictions placed on her ability to carry out work for other organisations.

I think that it would be safe to say that Judge Dean would have had Section 230 of the Employment Rights Act 1996 at the forefront of her reasoning when she decided that Ms Kelly does not have a contract of service with ITV, but rather she has a contract for services.

Employment status as a real issue does matter and, in Lorraine Kelly’s case, the lack of it will mean that she pays far less in income tax to HMRC.

On another point, Lorraine Kelly’s dispute with HMRC provides an insight into the work of specialist Tribunals. Members of the public probably have little awareness of the existence of the Tax Tribunal, but this story shines a light on an otherwise obscure part of the legal system.

A link to an article about the story on the BBC website can be found below:

Lorraine Kelly wins £1.2m tax case against HMRC over ITV work

HMRC claimed she was employed by ITV, but the judge ruled that Kelly’s TV persona is a daily performance.

Stuck at red …

Photo by Erwan Hesry on Unsplash

Two interesting stories appeared in the UK media today which highlight the important role of regulatory bodies in the field of consumer protection. This is a topic which has already been considered in a number of recent posts (Watchdogs and No more heartbreak hotel?) both published on 14 March 2019.

The first story involves the Competition and Markets Authority (CMA) which has effectively shown the red light to the proposed merger between the two supermarket chains, ASDA and Sainsbury’s. Any newly merged company would have tremendous economic power and such a development could adversely affect the interests of UK consumers e.g. by restricting consumer choice. In response to this setback, both retailers have offered to sell off approximately 150 supermarkets and some petrol stations in the hope that the CMA may eventually be persuaded to allow the merger to go ahead.

The second story involves the Advertising Standards Agency (ASA) which has banned the use of adverts by 150 autism therapists who claim that a controversial practice, involving high doses of vitamin C and zinc, known as CEASE (Complete Elimination of Autistic Spectrum Expression) can ‘cure’ the condition. The ASA has issued these therapists with an enforcement notice telling them to stop making and advertising such claims that CEASE is an effective treatment for autism. According to the ASA, these assertions are being made without “proper scientific foundation” and “could seriously harm children”.

Links to the two stories can be found below:

Ad watchdog orders 150 ‘autism cure’ therapists to stop
http://news.sky.com/story/ad-watchdog-orders-150-autism-cure-therapists-to-stop-11672357

Sainsbury’s and Asda offer to sell supermarkets to merge

The chains tell the UK competition watchdog they would sell up to 150 supermarkets to be able to merge.

Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:

http://www.scotland-judiciary.org.uk/8/2163/HMA-v-Aaron-Campbell

Vulnerable witnesses

Photo by Milada Vigerova on Unsplash

In March 2017, Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge), introduced a new practice note for trials in the High Court of Justiciary which involved child and vulnerable witnesses. The practice note permitted more evidence to be taken by commission i.e. the witness’ evidence and cross-examination can be taken in advance of the trial. This means that vulnerable witnesses do not need to make a personal court appearance.

A link to the practice note can be found below:

http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts—practice-note—number-1-of-2017.pdf?sfvrsn=4

BBC Scotland reported today that Lady Dorrian will head up a review into how trials involving sexual offences are carried out. The review will also involve key organisations such as the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.

It is now acknowledged by the Scottish Courts and Tribunals Service that the criminal courts are dealing with an increasing number of sexual offences.

The Scottish Parliament is currently looking at changing the law to allow victims of alleged sexual offences to pre-record their evidence and has introduced the Vulnerable Witnesses (Criminal Evidence)(Scotland) Bill.

The Bill’s broad approach – although welcomed by many MSPs – has been criticised by the Scottish Parliament’s Justice Committee which would like to see Scandinavian practices such as Norway’s Barnahus principle being incorporated.

The Barnahus principle relies heavily on a child victim undergoing one forensic interview in an environment where welfare support is readily accessible. Such an interview should should take place as quickly as possible after the alleged sexual offence has taken place.

Lord Carolway, the Lord Justice General, has publicly stated that victims of sexual offences should not be forced to make court appearances.

Lady Dorrian’s review does, however, acknowledge that any reforms contemplated to criminal procedure must protect the rights of an accused person. Article 6 of the European Convention on Human Rights, of course, guarantees a person’s right to a fair trial.

A link to a press release issued by the Scottish Courts and Tribunals Service in respect of the Dorrian review can be found below:

https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2019/03/20/improving-the-management-of-sexual-offence-cases

It will be interesting to see what recommendations come out of the Dorrian review.

A link to two articles on the BBC website can be found below:

MSPs back new approach to child victims of crime

Justice committee urges the government to adopt a Scandinavian model to deal young crime victims.

Sexual offence cases review by Scottish courts

The way people are treated by the courts during sexual offence cases is to be looked at.