Alan Dewar QC presented a paper on test purchasing and under age sales to the CLT Licensing Conference on 8th May 2013 and commented, in particular, on the recent landmark Inner House decision in LIDL UK GmbH v City of Glasgow Licensing Board [2013] CSIH 25, 5th April 2013. Alan appeared in that case for the Glasgow Board.

The paper read as follows:

Introduction

Test purchasing is a relatively new feature of licensing law in Scotland. Its parameters and uses are still being mapped out and only a fledgling body of case law (north and south of the Border), has been generated.  But against that background, we can begin to ask how useful a tool test purchasing is in combating the sale of alcohol to children and young persons. Is it proving effective in rooting out under age sales, or is it more trouble than it is worth? Should it be used more widely, or should it be deployed selectively and only acted upon by way of review proceedings before licensing boards in truly serious cases?

These are but some of the questions that test purchasing throws up. I intend in this paper to address a few of these, primarily through the prism of the recent Inner House decision in LIDL UK GmbH v City of Glasgow Licensing Board [2013] CSIH 25, 5^th April 2013, a case in which Scott Blair, Advocate, and I, appeared for the Board.

Scott Blair asked me to speak at this Conference shortly after we had argued the case before the Inner House. In agreeing to do so, I hoped that the decision of the Court would be issued ahead of today to allow discussion of it, and so it has turned out. But I was under no illusions. Having argued the case before the Division, I had little doubt which way it was going to go. Yes, Scott had managed to persuade Sheriff J K Mitchell that the decision of the Board was a sound one. By the end of the Inner House hearing, on the other hand, I rather suspected that the real interest in the case was going to be the basis upon which we would lose. And, once again, so it has turned out.

I have seen the decision described as a “landmark” ruling on test purchasing. Who am I to disagree? But, having said that, I wonder just how important it will prove to be? At one level it might be thought to have put paid to review proceedings being considered appropriate in cases where there has been a single failed test purchase, and to it being thought proper for a Board to apply any of the section 39 steps or sanctions with the issue of deterrence in mind. But on a deeper analysis, matters may not be quite as straight forward as that. I’ll return to that in due course. In the meantime, I’ll deal with a little history and remind you of how test purchasing is dealt with under the Licensing (Scotland) Act 2005 (“the 2005 Act”).

The position under the 1976 Act

I can deal with this pretty quickly as there isn’t such a position, as the issue simply didn’t feature in the Licensing (Scotland) Act 1976 (“the 1976 Act”) or, as far as I’m aware, any of its predecessors. But there was a precursor in another, not entirely unrelated context, to what now appears in the 2005 Act.

That context was tobacco related products in relation to which there was in 2003 a pilot scheme across four local authority areas. A number of safeguards were employed and one material difference to what is enacted in the 2005 Act was that the tobacco scheme was to be operated by trading standards officers rather than the police. For those interested, the background can be found in the Scottish Executive Tobacco Products Test-purchasing Pilot Scheme here.

Of more direct interest, perhaps, is the question whether the notion of test purchasing might fall foul of the law on entrapment. A number of cases have tested this issue north and south of the Border, and the net result is that as long as test purchasing operates within the well developed common law confines, it is unobjectionable on entrapment grounds. It was put this way in the Divisional Court in England and Wales by Lord Bingham CJ in Nottingham City Council v Amin [2001] 1 Cr App R 426 at 431, a taxi licensing case, where his Lordship said the following:

“On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurized or wheedled into committing it by a law enforcement officer. On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else.”

That approach was followed by the House of Lords in two cases concerning the supply of heroin, R v Looseley; R v G [2001] 1 WLR 2060, and much the same approach has been followed in Scotland: see Cook v Skinner 1977 JC 9 and MacDonald v Skinner 1977 JC 29, both licensing cases. The matter was dealt with by Lord Justice-General Emslie in the following terms:

“It is not in doubt that in cases of this type in Scotland the test of the competency of such police evidence is: “Was it fair to the accused?” and that in determining that matter the Court has to try to reconcile two important interests which are liable to come into conflict, namely (i) the interests of the citizen to be protected from illegal or irregular invasion of his liberty by the authorities, and (ii) the interest of the State to secure that evidence bearing on the commission of a crime and necessary to enable justice to be done shall not be withheld from a court of law on any mere formal or technical ground…………It is clear from the decided cases to which we were referred, that where the Court has held that evidence has been obtained unfairly there has been established, on the part of the police officers concerned, conduct which clearly amounted to a trick upon the accused, and, in particular, a trick which involved positive deception and pressure, encouragement or inducement to commit an offence which, but for that pressure, encouragement or inducement, would never have been committed at all.”

What this amounts to, then, is that entrapment will not succeed as a defence or a ground of opposition to what has been done unless some unfair trick has been played upon the accused or respondent causing him or her to commit an offence which he or she would would not otherwise have committed. Such a possibility always exists as a matter of fact, and in some cases it is not entirely easy to draw the line between what the law regards as legitimate police behavior and what amounts to a trick, but the reality is that the issue is unlikely to arise very often in test purchasing as regulated under the 2005 Act.

And to that I now turn. But for those who wish to look in more detail at entrapment, I commend an article written by Scott Blair entitled “Test-Purchases, Entrapment and the Fairness of Licensing Board Proceedings” (2006) SLLP 31.

The position under the 2005 Act

Test purchasing is dealt with succinctly in section 105 of the 2005 Act in the following terms:

“(1) A child [a person under the age of 16] or young person [a person aged 16 or 17] who buys or attempts to buy alcohol (whether for himself or another person) commits an offence.

(2) It is not an offence under subsection (1) for a child or young person to buy or attempt to buy alcohol if the child or young person is authorised to do so by the chief constable for the purpose of determining whether an offence is being committed under section 102 [which makes it an offence to sell alcohol to a child or young person].

(3) A chief constable may authorise a child or young person to buy or attempt to buy alcohol as mentioned in subsection (2) only if satisfied that all reasonable steps have been or will be taken to avoid any risk to the welfare of the child or young person.”

By virtue of the Licensing (Scotland) Act 2005 (Commencement No. 2 and Transitional Provisions) Order 2006 (SSI 2006/286) subsections (1) to (3) of the 2005 Act and a number of related provisions were commenced on 1^st June 2002.

Following the operation of a pilot scheme in Fife, test purchasing in relation to alcohol became available on a national basis in December 2007. I understand that operations are generally conducted on an intelligence led basis i.e. purchases will be attempted in licensed premises where police have reason to believe that underage sales are or may be occurring on a regular basis.

Also of relevance in the present context is the Guidance on the 2005 Act issued by the Scottish Executive (as it then was) in April 2007 under section 142 of the 2005 Act. In terms of section 142(3), Boards must have regard to this Guidance. The Guidance covers a wide range of topics. Paragraph 105 of that Guidance is in point in the present context and provides as follows:

“It is hoped that, in the majority of cases, transgressions will be resolved before there is a need for boards to apply sanctions, for example through LSOs and the licence holder. This means any cases that reach the stage of review, and the potential imposition of sanctions, will have a history of non-compliance, and for that reason will not be entirely trivial. Boards will be faced with a range of different scenarios and have a choice of action they can take.”

It may be thought that this paragraph makes it entirely clear that sanctions will only be appropriate where there is a history of non-compliance, and the Court certainly viewed matters in that way in the LIDL case, but it does, I suggest, require to be borne in mind that the Guidance is no more than that i.e. its precepts are not mandatory and Boards will be faced with many different factual scenarios, some serious, some less so, and will still require in a review hearing to arrive at its own view, exercising its own judgment, as to whether (in terms of section 39(1) “a ground for review is established” and, if it has, whether it considers it necessary or appropriate to take any of the steps set out in subsection (2) such as a written warning, a suspension, or a revocation of the licence.

I do not propose today to attempt to deal comprehensively with all of the issues that may arise at review hearings dealing with failed test purchase scenarios. Time would not permit that. But as this audience will be well aware, one of the most contentious issues that has arisen so far is encapsulated in the following question that I pose:

Should action as regards possible suspension (or indeed any of the section 39(2) steps) only take place where there have been two or more failed test purchases, or might a serious single failure properly lead to a suspension or other sanction?

In tackling that apparently straightforward question, I propose to look, among other things, at whether punishment is an appropriate basis for action under section 39; whether some sort of finding of fault on the part of the licence holder is necessary to justify action under section 39; and whether deterrence (in relation to the licence holder who is the subject of the review proceedings, or others, or both) is a relevant issue for a Board to consider when contemplating action under section 39.

And that is where the LIDL case comes in as it dealt with all of these issues, although not perhaps as exhaustively as might, at first blush, be thought. The principal reason for making that last point (a somewhat cautionary note) is that cases and disposals in this area are are, very much, fact specific. That means that it has to be kept in mind that the Inner House decided the LIDL case entirely on the factual scenario with which the case is concerned. And while the Court has given some pointers as to how similar cases may be dealt with in future, its Opinion, I suggest, will by no means be the last word on test purchasing. Only time will tell where the issue goes next.

Dealing briefly with the facts, the case was concerned with the LIDL store at 300 Victoria Road, Glasgow. The background was that the police had received numerous complaints from within the local community regarding increased underage drinking and youth disorder in the locality. The police decided to carry out test purchase operations for alcohol at the 10 premises identified as being within the relevant locality. The test purchaser was 16.5 years of age. In all of the premises other than the LIDL store staff refused to sell alcohol to the test purchaser on the basis that he was too young to buy alcohol. In the LIDL store the test purchaser was sold a bottle of wine. A month later a second test purchase at the same LIDL store was attempted. On the second occasion the sales assistant asked the test purchaser to provide identification and the sale of alcohol was refused. A review hearing before the Glsgow Board took place at the instigation of the police and determined that grounds for review had been established, and that it was necessary and appropriate for the purposes of the licensing objective of preventing crime and disorder that the premises’ licence relating to the store should be suspended for a period of five days, all in terms of section 39(2). An appeal was taken by LIDL to the Sheriff but was rejected. That decision was appealed to the Court of Session and that appeal was upheld. The reasons for the decision of the Inner House are set out in the Opinion of the Court delivered by Lord Mackay of Drumadoon dated 5^th April 2013.

In broad terms, the Inner House took the view that the process of review is essentially forward looking and should not be concerned with imposing a penalty in respect of some past event that is not likely to recur; that, having regard to the fact that LIDL had promptly investigated the matter and dismissed the employee responsible for the sale, he having breached the policies and procedures in which he had been fully trained, a ground of review relating to LIDL (as opposed to the employee) had not been made out and did not justify the sanction imposed; and that, in proceeding as it did, the Board, in imposing a penalty against a licence holder who was not at fault, had apparently misapprehended its proper function as a licensing board. On that basis the Court refused to remit the matter back to the Board for reconsideration and granted the appeal, thereby, via the Sheriff, revoking the suspension and bringing the review proceedings to a close.

All very straightforward, one might think. A pretty comprehensive dismissal of the actings of the Board and an end, perhaps, to review proceedings based on a single failed test purchase. At one level that may be so. The reality, I suggest, is a little more complicated.

Let us begin with the issue of punishment. It might be said that the decision of the Inner House sets itself against the notion that the powers of a Board may be used punitively.  While there may be room for argument on this, the fact of the matter is that the  review provisions in the 2005 Act do not refer to the imposition of a “penalty”, but rather, as outlined above, the taking of a “step”.

This fits with the general notion that in the interpretation of statute, Parliament is presumed not to confer powers for the purpose of punishment unless there are clear indications that this was the intention of Parliament.  Accordingly, a step which is imposed purely for the purpose of punishment is not likely to be regarded as legitimate.

That is not to say, however, that the consequences of a step may not be punitive in effect.  Plainly the revocation of a licence has considerable financial consequences.  But, I suggest that the punitive effect must be the consequence of a step rather than the reason for it.

There is, in my view, probably some force in the point taken by the Inner House, under reference to paragraph 105 of the Scottish Guidance set out above, that review powers are in general to be seen as relating to situations in which there is a history of non-compliance and where the position is relatively serious: see paragraph 35 of the Opinion of the Court.

But in saying this I pause to observe once more that the Guidance is not binding and is expressed in rather loose terms. A Board can depart from the Guidance if it gives a reason to the Scottish Ministers for doing so: see section 142(3) and (4) of the 2005 Act. This might allow a Board to take a stronger or more robust line on certain matters if local circumstances warrant it.

In this respect it can be said that the approach of the Inner House fits with the nature of the licensing objectives being broadly preventative in nature and that that is probably what the Court  meant at paragraph 35 of the Opinion when it considered that “the process of review is essentially forward looking”.

This embraces the notion that in some (probably not many) cases, steps can be taken which will interrupt for a period, or permanently, an inconsistency with the licensing objectives.  Permanent interruption could embrace revocation.  A periodic interruption could embrace a period of suspension appropriate in the circumstances, or a variation of the terms of the licence might represent a middle way.  In each case, I suggest, it will be necessary to link the step to one or more of the licensing objectives and where the step that is taken is one of suspension or revocation, considerations of proportionality must plainly be to the fore, not least because that is a possible ground of appeal of the decision of the Board.

If the situation arises where the Board cannot have confidence that by passage of time and taking of steps any inconsistency of the licensing objective would not be likely to recur then plainly it would be open to the Board to consider revocation of the licence.  The effect may be punitive but the basis upon which the step has been taken cannot be punitive.

In other cases of a less serious nature the Opinion of the Court  suggests that the Board will, when imposing a period of suspension, have to have in view what is appropriate having regard to the need to impose a period of suspension sufficient to cure the underlying problem.   So, for example, if the underlying problem is one of training or defective policies then a period of suspension could be imposed of sufficient length to allow measures to be taken to cure the defects in question.

So much for punishment. I now deal with the issue of fault. With reference to paragraph 42 of the Opinion, in which the Court is critical of the Board for imposing a penalty against LIDL when there was no finding of fault in relation to it (as opposed to its  employee), the argument for the Board was that this was not a case of strict liability and that the sanction was not imposed for the purposes of securing a financial penalty.  That was not what was said in the Statement of Reasons.  However, the Court inferred that a financial penalty was indeed the purpose, and one might think that it was entitled to do so.

In this context, I do not read the reference in paragraph 42 to the availability of a due diligence defence to LIDL as meaning that fault must always be present on the part of a licence holder before a step can be taken, or indeed that a Board needs to  investigate fully a due diligence defence.

The Inner House was plainly concerned with the circumstances arising from an allegation of a sale to an under-age person where such a defence might be available to the licence holder.  It must be the case that a Board has in view considerations of proportionality in determining to impose a sanction of suspension and it is well established law that proportionality must include a determination of the relative fault or otherwise of the persons involved.

I suggest therefore that in cases of under-age sales, consistent with existing case law, the Court will expect the Board to have regard to the possibility that a due diligence defence might be made out in determining what steps might be taken.

Of course that in turn depends on what the Board is told at the hearing and to that extent there remains, I suggest, a practical onus on a licence holder to provide information in that regard. It is not enough, in my view, for an agent simply to say that a due diligence defence might be available.  Flesh would have to be put on the bones.  Nor does a Board have to hold a trial, as it were.  It still has the option of deferring matters pending the outcome of criminal proceedings or, if not minded to do so, to consider matters on the material before it.

What role, if any, has the issue of deterrence in review proceedings? Looking at matters generally, I am not of the view that the decision of the Inner House precludes the Board from having regard to considerations of deterrence in taking a step on review.  The Court mentions that possibility at paragraph 41 albeit that it discounts its proper use on the facts in the LIDL case because it did not form part of the reasons given.  The Court does not however suggest that that would be an improper basis for review.  Further it was not argued for LIDL that deterrence could not be a relevant consideration. What matters in terms of section 39(1) of the 2005 Act is whether, on the evidence before the Board, a ground for review has been established and, if it has, whether the Board considers it necessary or appropriate for the purposes of any of the licensing objectives to take any of the steps mentioned in section 39(2).

It is also relevant to recognise that the Licensing Act 2003 which governs licensing in England and Wales, and its related guidance, can be read as embracing considerations of deterrence.  Case law to date in England supports that view: see R (Bassetlaw District Council) v. Worksop Magistrates' Court [2008] EWHC 3530 (Admin).

Although the Scottish Guidance is silent on the question of deterrence, my view is that in the absence of any clear indication in the 2005 Act or the Guidance that deterrence is not a legitimate factor, it would still be open to a Board to have deterrence in mind in considering whether any of the steps mentioned in section 39(2) should be taken.  Arguments along these lines were presented to the Sheriff in the LIDL case and accepted by him, and I do not read the Opinion of the Inner House as undermining the legitimacy of that approach.

It seems to me that the decision leaves open the possibility of a sanction being imposed to deter a licence holder, and conceivably other licence holders, from certain forms of behaviour or from adopting certain practices in the future.

But it is also apparent that any decision which has considerations of deterrence inherent in it would be all the stronger if the step imposed had the effect of affording an appropriate opportunity for any defects in the practices within the relevant premises to be remedied.

So, I suggest that, arising from the Opinion of the Court, the issue of deterrence as a basis for the exercise of review powers can be used but should perhaps be used sparingly. Or at the very least, if deterrence is part of the thinking underlying a disposal it should be set out explicitly in the Statement of Reasons what the justification for that is.

Is the 2005 Act operating as the Scottish Parliament intended? Is there a need for change?

I come to my title. The Sheriff accepted that, having regard inter alia to the licensing objectives set out in section 4 of the 2005 Act, the approach of the Board in review proceedings under that Act required to be broader and more far reaching than had been the case under the 1976 Act regime. The Inner House did not consider that there was very much to that argument. So, the Spirits that I refer to in my title in the guise of the Glasgow Board might be willing to take a rather broader, more imaginative, view of their powers but the Spirits in the form of our Inner House judges are not. Perhaps there is no great surprise in that. Ultimately, it will be for the Scottish Parliament to determine whether the 2005 Act is being operated as intended, and, if considered appropriate, to provide, in the form of legislative change, a clearer indication as to what the true aim of test purchasing is intended to be. 

Alan Dewar QC
8th May 2013

Case comment from Alan Dewar QC on Donald v Ayrshire & Arran Health Board and Others.

As is well recognised, it is far from easy for pursuers to establish liability in clinical negligence litigations. The test for medical negligence, and professional negligence generally, laid down in Hunter v Hanley 1955 SC 200 is hard for pursuers to satisfy, and even if negligence is established difficult questions of causation can prevent liability being determined in favour of a pursuer. Recent examples of such failures in the Court of Session can be seen in Hannigan v Lanarkshire Acute Hospitals NHS Trust [2012] CSOH 152, Glancy v Southern General Hospital NHS Trust [2013] CSOH 35 and N M v Lanarksire Health Board [2013] CSIH 3.

But in some cases pursuers are able to buck the trend, meet with success, and obtain the damages awards they seek. One such case is Robin Donald and Others v Ayrshire & Arran Health Board and Others [2013] CSOH 23.  In this case a widower and his four daughters succeeded in obtaining awards of damages against one of the partners in their local GP practice. He had failed to refer the unfortunate Mrs Donald to hospital with a suspected deep vein thrombosis (DVT) which, over the following fortnight, developed into a massive pulmonary embolism which killed her.

The case was by no means straightforward. At the start of the proof diet, presided over by Lord Glennie, the pursuers’ case was directed against a vascular surgeon in respect of alleged failings when he reported to Mrs Donald’s GP practice on an ultrasound scan performed on her in Ayr Hospital two years prior to her death, as well as against two of the partners of the GP practice in respect of their failure to refer her to hospital in the period immediately prior to her death. The case against the surgeon was dropped after he gave evidence in the proof but his evidence on the findings of the scan was important in making clear the extent of the knowledge of the GP practice as regards Mrs Donald’s medical history, and in particular her predisposition to developing DVTs.

Against that background Lord Glennie was persuaded to hold that the GP primarily involved was negligent in failing to refer Mrs Donald to hospital for further investigation following a consultation with her in his surgery. Crucial to that chapter of the evidence was the evidence given by Mr Donald in relation to thigh pain reported to the GP during that consultation which, unusually, Mr Donald had attended due to his wife’s failing health arising from her constant, unremitting breathlessness. The GP had no recollection of thigh pain having been reported, did not think it had been and had not noted it, but accepted that had it been reported he should probably have referred Mrs Donald to hospital. Lord Glennie preferred the evidence of Mr Donald on this important matter, leading to a finding of negligence against the GP.

But the difficulties faced by pursuers in such cases are highlighted by the fact that although a strong case was also mounted against the second GP in relation to a later attendance by him at Mrs Donald’s home only two days prior to the death, Lord Glennie was not satisfied that negligence had been established against him.

The issue of causation in relation to the cause of death was also hotly contested. In essence, the question was whether the cause of death was a DVT giving rise to increased breathlessness over the last fortnight of her life, and leading to the fatal pulmonary embolism developing on the day she died, or, alternatively, a sudden, massive, non-diagnosable, embolism unrelated to Mrs Donald’s history of breathlessness. In that regard Lord Glennie preferred the evidence of the pursuers’ expert vascular surgeon, Professor Vaughan Ruckley, to the effect that the embolism developed from the DVT which, on the balance of probability, would have been diagnosed had Mrs Donald been referred to hospital a fortnight before her death following the consultation attended by Mr Donald.

The pursuers were represented by Ampersand members Alan Dewar QC and Lisa Henderson, Advocate, while the GP practice were represented by Dorothy Bain QC and Isla Davie, Advocate who are also from Ampersand. A further member of Ampersand, Archie MacSporran, Advocate, was junior counsel for the vascular surgeon.

Alan Dewar QC

Case comment from Isla Davie on Fiona Brown v East Lothian Council

This case is brought on the personal injuries roll by Fiona Brown for injury she sustained whilst conducting a zumba class in the Town Hall in Haddington. She had hired the hall from East Lothian Council. She claims that she sustained an injury to her foot when she landed on an ‘undulation’ in the wooden floor. Her case is brought under common law and under sections 5 and 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992.  No case is included under the Occupiers’ Liability (Scotland) Act 1960.

At debate the defenders were successful in having the statutory case struck out on the basis that, in the circumstances averred, the Town Hall was not a ‘workplace’ for the pursuer in terms of the 1992 Regulations. It is a decision of wider application for cases where a person may be working within premises, but it is unclear whether the duty holder has ‘made the premises available’ to the person as a workplace.

The term “workplace” is defined in section 2(1) as “any premises or part of premises which are not domestic premises and are made available to any person as a place of work”. It was not averred that the Town Hall had been made available to the pursuer as a place of work, rather than as a place of recreation. The pursuer had hired the premises to conduct a fitness class and was in fact working at the time of her accident, but it was not averred that the defenders knew it was going to be her place of work.

The pleadings identified that others worked at the Town Hall, for example a caretaker, so it was a workplace in terms of the 1992 Regulations for some of those present at the premises. The question identified by Lord Jones was whether the Town House was a ‘workplace’ because it had been made available to a person, other than the pursuer, as a place of work – would the pursuer enjoy the protection of the regulations because she too was working there?

In the case of Donaldson v Hays Distribution Service Limited 2005 1 SC 523 the First Division decided “on a sound construction of the regulations in the relevant context, they afford no protection to persons present at the workplace as visitors but not as workers”. However, the question here was different. If the Town Hall was a workplace in respect of other people, and the pursuer was in fact working there, did the regulations apply?

Lord Jones answered that question in the negative on two bases. Firstly, there was nothing in the definition of ‘workplace’ at section 2(1) to suggest an intention that someone who is present in the premises which are made available to someone else as a place of work should enjoy the protection of the regulations for no reason other than they happen to be at work there. Secondly, a number of the regulations require an arrangement to be made at the workplace that can only be made if it is known what type of work is to be done there, for example there are provisions regarding having suitable seating, heating,  and facilities, which all depend on the type of work activity being carried out. None of these provisions were tempered by reasonable practicability. Such formulation suggests that there is some implied knowledge on the part of the duty holder regarding the type of work being carried out.

Lord Jones agreed with the dicta in Donaldson that not much should be taken from the fact that the regulations contain a ‘diversity of form’. Although some of the regulations, such as regulation 5 and 12(2) are not ‘work or worker specific’ in their terms, it is unlikely that some provisions were intended to apply to protect workers and others were intended to protect a broader group.

Isla Davie

Commentaries by Geoffrey Mitchell QC on the UK Supreme Court's decision on legal professional privilege, including the implications for the construction sector

Under Scots law, communications between a lawyer and a client, made in connection with the giving of legal advice and whether in contemplation of litigation or not, are privileged. This is well understood. Yet consider the position when a professional person who is not a lawyer gives legal advice. This is very common in the modern professional and business world.
For example, an accountant may give legal advice to a client on a tax issue. That accountant will hold a degree, will have experience of professional practice, will be overseen by a professional body, and will thus be qualified to give the advice. Yet, in Scots law, that advice will not be privileged. Can this position be justified? What are the barriers that prevent legal advice given by all professional persons from attaining privileged status? These questions raise issues that are fundamental to the basis of the privilege, and the identity of the party that the privilege is intended to benefit.

Status quo
The subject was discussed recently by the Supreme Court in the case of R (on the application of Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1; affirming [2010] EWCA Civ 1094. By a majority of five to two, the court decided that “legal advice privilege” should not be extended so as to cover advice given by professional people other than lawyers, even where that professional person is qualified to give the advice.

The decision is not binding on Scots law, but the similarities to English common law are such that a Scottish court will see it as highly persuasive. This was largely implied in the speech of Lord Reed, one of the two Scottish justices who sat on the court. However, parties who wish to litigate on this matter in Scotland should look to the dissenting speech of Lord Sumption, where some of the difficulties in the majority position are laid bare.

Logic of the law
Pricewaterhouse Coopers (“PwC”), chartered accountants, devised a tax avoidance scheme for the benefit of clients. Prudential sought advice from PwC in connection with overseas holdings, and PwC advised Prudential that the scheme could be adapted for their benefit. Prudential implemented the scheme through a series of transactions. An inspector of taxes served a notice on Prudential in terms of the Taxes Management Act 1970, seeking disclosure of documents connected to the transactions.

Prudential challenged the validity of the notice by way of judicial review. They lost both at first instance and in the Court of Appeal. In front of the Supreme Court, Prudential argued that there was no principled basis upon which the privilege could be restricted to cases where the adviser happens to be a lawyer, as opposed to a qualified accountant.

The President of the court, Lord Neuberger, gave the leading speech for the majority. It was universally believed that the privilege applied only to communications made in connection with advice given by members of the legal profession. While the extent of the privilege may be “illogical in the modern world” (per Lord Neuberger, at para 48), it did not follow that the court should instinctively modify or remove the limitation.

Three reasons were given. First, alteration of the rule would create uncertainty. Secondly, any modification of the rule should be left to Parliament, which was best placed to assess any public policy implications that might arise from a change. Finally, although Parliament has, on occasion, extended the privilege by statute (to, among others, licensed conveyancers), it has always used as its starting point the proposition that the privilege extends only to advice given by lawyers.

Principled dissent
One point on which all the justices were agreed was that the privilege existed not for the benefit of the lawyer, but rather for the benefit of the client. Thus, while the lawyer must refuse (unless the client consents) to disclose advice given, the client may disclose the advice at will. However, the majority found that the existence of the privilege depended upon the status of the person giving the advice.

In his dissenting speech, Lord Sumption took a different view. Having reviewed the case law, he found that the privilege did not depend on the status of the person giving the advice, but rather on the nature of the advice itself. Once this was appreciated, “there can be no principled reason for distinguishing between the advice of solicitors and barristers on the one hand and accountants on the other” (per Lord Sumption, at para 122).

This is a compelling argument. If indeed the privilege is a “substantive right of the client” (per Lord Sumption, at para 114), and the advice is his to disclose at will, why should it matter that it was given to him by a lawyer, and not by another equally well qualified professional? In principle, should the privilege not also cover advice given by, for example, an actuary, an auditor or a town planner, each of whom will have the necessary training, practical experience and consequent legal expertise?

In addressing the arguments of the majority, Lord Sumption made the following points. Although an extension of the privilege may increase the number of claims, and perhaps produce some uncertainty, it is the function of courts to ensure that modern professional practice is reflected in the way that the law is applied. Put another way, just because a proposed step will not be straightforward, does not of itself seem a persuasive reason for not taking that step. Further, he said, although Parliament is on occasion well placed to assess the impact from proposed changes in the law, that consideration did not apply in this case. The privilege was a creation of the common law. Therefore, “it is for the courts of common law to define the extent of the privilege” (at para 131).

Judgment call
Reading between the lines, it is apparent that there may have been a fear that if the privilege could be claimed by non-lawyers, matters may “get out of hand” (per Lord Sumption, at para 136). But there are many examples of situations, particularly in the field of delict, where modification or extension of a legal principle by the courts has prompted a rash of claims and subsequent litigation. The approach adopted by the courts on those occasions has been to scrutinise the claims, and thereby set precise legal parameters. This is the way that our law develops.

It has to be appreciated that the speeches of the majority are also persuasive. The court was plainly in an unenviable position. As Lord Reed put it, the court had a choice whether or not to extend the privilege, and had to make “a judgment...as to the most appropriate course of action” (at para 98).

It remains to be seen what judgment will follow should the issue form the subject of litigation in Scotland. In Lord Reed’s view, a Scottish court would require to make a policy decision, and there were factors that might weigh heavily in the balance against extension of the privilege. Chief among those would be the ability of the legislature and the executive to consult widely, and to consider the issue prior to enacting legislation. For example, the privilege has recently been extended under the Legal Services (Scotland) Act 2010 to “licensed providers” of legal services. A “licensed provider” is carefully defined. Thus, the argument would run, a Scottish court should be wary of extending the privilege to all professionals, when the Scottish Parliament has chosen to extend that privilege “on a conditional and limited basis” (at para 113).

This article first appeared on The Journal Online on 18th March 2013

[34] But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.”

Referendums are held on questions that are said to be so important that the elected representative should not take the decision without consulting the people.  Whether A3P1 applies to referendums or not, if it is accepted (and I recognise that it is not currently accepted by almost all politicians) that some prisoners should have a vote in elections, at least that same group of prisoners should be entitled to vote in a referendum.  It would be absurd if a certain group of prisoners were enfranchised so as to elect a legislature but not to vote in a referendum on a question which the legislature sought the views of the electorate. From the Explanatory Notes and Policy Memorandum it appears the Scottish Government sought to consciously avoid that very parity.

It is unfortunate that the Scottish Government seek to continue the blanket disenfranchisement of prisoners in relation to the referendum vote. But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation.  It is not in anybody’s interests to see courts involved in the run-up to the vote in October 2014 yet clause 3, as currently drafted, appears to take that very risk.


Paul Reid is an Advocate with Ampersand and a part-time tutor of Public Law at the University of Edinburgh

This article first appeared on the UK Constitutional Law Group blog on 13th March 2013.

Ampersand's Simon Di Rollo QC writes on the balance between criminal and civil cases.

The activities of the late Jimmy Savile place into sharp focus the inconsistency in the treatment of historical allegations of sexual and physical abuse between the criminal and the civil courts.

Someone who says that many years ago he or she was the victim of abuse will find it almost impossible to bring a claim for damages in the civil courts.

On the other hand, if taken up by the prosecuting authorities identical allegations will almost certainly result in prosecution in a criminal court.

Why is it so much easier to bring a criminal prosecution than to bring a claim for damages?

The death of such a high profile, apparently abusive individual, highlights the problem. Criminal prosecution is no longer possible for him.

A claim for civil damages against his estate or against those vicariously responsible may now be the only opportunity to establish the truth in a court of law.  Of course the media feeding frenzy and the consequent scope for opportunists to make bogus claims must be taken into account.  The fact that the person against whom the allegations are made is dead and cannot challenge them must be weighed in the balance in considering whether it is safe to proceed.

One might have thought that the lower standard of proof - balance of probabilities as opposed to the criminal standard of proof beyond reasonable doubt - would enhance the prospects of success in civil cases.

However, most civil claims would fail because of the strict three year time limit set out in the applicable legislation. This period can only be extended at the discretion of the court.  That discretion will not be exercised in the claimant’s favour unless the delay can be justified and an absence of prejudice demonstrated. Unless the defender can show that he is prejudiced because of the non availability of witnesses, the absence of documents or the inability of witnesses to remember specific details then the court will not override the time bar.

It has also been made clear that in civil cases delay is not to be excused because of the psychological effects of abuse or the fear of not being believed.  Recently, the Inner House also spelled out that suppression of memory is not a good reason either.

As one commentator put it in 2007, “The prospects for victims of (historic) child abuse, at least in securing ‘compensation’ through the civil courts in Scotland, seem now wholly circumscribed if not excluded.  Even if justified under current law broader questions of justification - for others - remain.”

The hard-line approach was reaffirmed by the House of Lords in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 where Lord Hope said:

“[Serious] breaches of the criminal law are not … subject to any time-limits.  But in the case of civil justice the position is different.  It has been observed repeatedly that where there is delay the quality of justice diminishes.  Witnesses may have died, memories become dimmed and relevant documents may have been destroyed and lost.  As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice.  Times change too, and conduct which may seem reprehensible today may have been regarded as acceptable or even as normal many years ago.”

No one could seriously dispute that these are powerful reasons.  Nor can the Court’s interpretation of the applicable legislation concerning time bar be criticised.

What is difficult to understand is why there should be such steadfast resistance in the civil courts when exactly the same allegations would be pursued in the criminal courts.  Surely the same delay reduces the quality of prosecution evidence to the same extent.  The same witnesses die, the same memories fade and the same documents are lost and destroyed.  Exactly the same danger of judging past behaviour by today’s standards arises whether the claim is brought in the criminal as opposed to the civil courts.

Yet there is not a single modern example of a Scottish criminal court being prepared to hold that an accused should not face trial because there is no possibility of a fair hearing due to the passage of time.

Recently in HMA v K 2011 SLT (Sh Ct) 205 the accused successfully argued at first instance that the delay was fatal.  Sheriff Pender ruled that two persons charged with assaults allegedly having taken place in 1970 and 1971 should not face trial in 2011 due to the very long delay, loss of written records and the death and unavailability of potential witnesses.  On appeal the High Court reversed his decision.  Its reasons for so doing are not yet available.

What is clear is that none of the alleged victims would have the remotest prospect of a civil remedy. A civil court would hold that the prejudice caused by the delay was fatal to any extension of the time limit.

In the end the reason for the difference in treatment is simply that there is one rule for criminal cases and another rule for civil cases.  Neither rule is satisfactory.  Consistency demands that there be an adjustment to both so that those accused secure a fair trial and those genuinely abused secure a remedy.

Although the prospects for systematic reform look bleak there may be a glimmer of hope in civil cases.  The Scottish Law Commission looked at the rules governing civil claims as recently as 2007 and did not recommend any major alteration.  However, the Scottish Government is currently consulting on the issue of time limits in damages claims and in particular whether there should be special rules in cases of historical sexual and physical abuse. The consultation ends on 15 March.

Surely the answer in civil cases is to remove the time limit altogether where serious criminal conduct causes personal injury.  The test in such cases should be: can the delay be adequately explained and is a fair hearing is still possible?

In criminal cases judicial development of the rules seems very far away.  The current test is whether the prejudice caused by the delay is so grave that it cannot be removed by an appropriate direction by the trial judge to the jury.  This test was developed in another context - prejudicial pre-trial publicity.  It is at best doubtful whether it is suitable for the quite different questions that arise where there has been a long delay between the events and the investigation of them.

The test begs the question as to what precise directions are to be given to the jury as to how it should deal with fading memories, unavailable witnesses and lost documents.  It leaves considerable uncertainty as to what extent a jury takes such directions into account when reaching its verdict. There might be scope to challenge a conviction on the basis that the reasons for a particular jury’s verdict are unclear.  There is just possibly some basis for such an approach in the Strasbourg jurisprudence.

The assiduousness with which the court protects a defender in a civil action does not recur when the same allegations are tried in the criminal courts.  For consistency and common sense it is high time that it did.

This article first appeared in the Scotsman on 25 February 2013.