All we need is “ze fallen Madonna with ze big boobies” and it could be an episode of Allo, Allo. Instead, this is a case concerning an appeal by the Procurator Fiscal of Aberdeen against a sheriff’s decision on the grounds of bias.

The case involved Chief Inspector Thomas Forrester who was charged with dangerous driving[1] after allegedly instructing a constable driving a police car, in which he was travelling to catch a plane, to put the sirens on and move to the wrong side of the road. When the constable did so, a collision occurred between two cars travelling in the opposite direction.

During a delay in proceedings, the sheriff called the procurator fiscal’s depute and the defence counsel into chambers to inquire as to progress and was told by the procurator fiscal’s depute that, amongst other witnesses waiting to be called, were the police officers who interviewed Chief Inspector Forrester. The sheriff then remarked “Oh that will be the Gestapo!”

The sheriff ultimately found that the interview of Chief Inspector Forrester by the investigating officers was unfair and excluded it as evidence. The Procurator Fiscal appealed to the High Court on the basis that the sheriff’s remarks inferred bias and, his decision to exclude the interview as evidence, disclosed actual bias.

The High Court refused the Appeal.  In coming to its conclusion, the High Court referred to Wallace v Thomson (2009):

 “[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation”.

Similar considerations, held the High Court, applied with regard to the sheriff’s comments in this case.  It was “bordering on the ludicrous” to suggest that the sheriff was actually comparing the behaviour of the police officers with that of the Gestapo during the Second World War. On hearing the words used in context, there was no prospect of a fair minded individual concluding that the sheriff was biased against the procurator fiscal and, having regard to the way the sheriff approached the objection to the admissibility of the interview and the reasoning he employed, there was also no prospect that a fair minded individual would form the view that the sheriff was biased when deciding the issue.

It was noted (the court’s opinion being delivered by Lord Carloway):

“An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it.  Such evidence is not present in this case..”

With regard to the interview, the issue was whether the sheriff had erred in determining that the Crown had failed to demonstrate that the interview had been fair and that admissions made had been spontaneous and voluntary. The sheriff had rejected evidence of the detective chief superintendent who conducted the interview to the effect that the interviews purpose had been to allow the chief inspector to tell his side of the story. Instead the sheriff concluded, from the manner of the interview and the surrounding circumstances[2], that the true intention had been to prompt the chief inspector into making an admission. On reaching that conclusion the sheriff was bound to sustain the objection to the interview as evidence. Authority for that finding came from Chalmers v HMA (1954) and the words of Lord Justice General (Cooper):

 “It is not the function of the police… to direct their endeavours to obtaining a confession from the suspect to be used as evidence against him at the trial”

 Herr Flick would not have approved.

A full report of the decision is available from Scottish Courts here.

Two local authorities in central Scotland are set to begin sharing more services.  Clackmannanshire and Stirling councils have been jointly running education and social service departments since March 2011.  Now, a report due to be submitted on 11 August will recommend that the authorities begin sharing IT and personnel services as well.

The report from the BBC can be found here.

Health Secretary Nicola Sturgeon said: 

“We are working on a strong presumption – supported by the landlords, and underpinned by our contingency arrangements – that older people will not be moved.  The welfare of all the residents will be maintained with minimum possible disruption. 

“The Scottish Government is working with COSLA and other partners such as ADSW [Association of Directors of Social Work] and SCSWIS [Social Care and Social Work Improvement Scotland] to ensure continuity of care for all residents in Southern Cross care homes in Scotland.

“This formal announcement signals the start of a process to break up the southern cross group on a consensual basis, it does not mean that the business has gone into administration, or that any care homes will close in the immediate future.”

The background to this statement is the announcement on Monday of this week that Southern Cross is to transfer all of its care homes to other operators.   

The Scottish Government has issued two revised codes of practice under the Adults With Incapacity (Scotland) Act 2000.

Code of Practice for Continuing and Welfare Attorneys.  The revised code can be found here.

Code of Practice for persons authorised under intervention orders and guardians.   The revised code can be found here.

The Adults with Incapacity (Scotland) Act 2000 was introduced to protect individuals with incapacity and to support their families and carers in managing and safeguarding the individuals’ welfare and finances.

The latest SDLT Bulletin is now available from HMRC here.

It contains guidance on the following:

• New SDLT online system
• Introduction of the 5 per cent rate for residential property
• Overpayments of tax due to a mistake in the return
• First-time buyers
• Multiple dwelling acquisitions
• Preventing avoidance

“The Report of the Commission on Funding of Care and Support” was published last week.  Although this report looks at the situation in England, and was commissioned by the UK coalition Government, the issues raised and the recommendations made are of direct relevance to us here in Scotland.

Extracts from the four key findings:

1. The current adult care funding system in England is not fit for purpose and needs urgent and lasting reform.
2. The current system is confusing, unfair and unsustainable.  People are unable to plan ahead to meet their future care needs.  Eligibility varies depending on where you live.
3. A major problem is that people are unable to protect themselves against very high care costs.   The current availability and choice of financial products to support people in meeting care costs is very limited.
4. Most people are realistic about the need for individuals to make some contribution to the costs of care in later life, but they want a fairer way of sharing costs and responsibility between the state and individuals.

Extracts from some of the main recommendations:

1. To protect people from extreme care costs we recommend capping the lifetime contribution to adult social care costs that any individual needs to make at between £25,000 and £35,000.   We think £35,000 is an appropriate and fair figure.
2. Not everyone will be able to afford to make their personal contribution, and those currently just outside the scope of eligibility for means-tested support are not currently protected.   To address this, means-tested support should continue for those of lower means, and the asset threshold for those in residential care beyond which no means-tested help is given should increase from £23,500 to £100,000.
3. Those who enter adulthood already having a care and support need should immediately be eligible for free state support to meet their care needs, rather than being subject to a means test.
4. Universal disability benefits for people of all ages should continue as now.
5. People should contribute a standard amount to cover their general living costs, such as food and accommodation, in residential care.   We believe a figure in the range of £7,000 to £10,000 a year is appropriate. [1] 
6. In reforming the funding of social care, the UK Government should review the scope for improving the integration of adult social care with other services in the wider care and support system.   In particular, we believe it is important that there is improved integration of health and social care.  [2]

Estimated cost

The estimated cost of these proposals is £1.7bn per year rising to £3.6bn by 2025.

Two examples from the Report may help explain how this would work in practice.  

Example 1:

Alice lived alone in her own home worth £180,000.  She had dementia and needed to go into a residential care home when she was 83 for the last 5 years of her life.

Under the current system

Alice’s daughter needed to arrange for Alice’s home to be sold in order to be able to use the money to pay for Alice’s care.   Alice had to pay for all her care and living costs in full until she died, spending £165,000 from her pension income and housing wealth.

Under Dilnot

Alice would initially need to contribute in full to her care and general living costs.  After two years she would have contributed £35,000 towards her care and reached the cap.   From then on, the state would pay Alice’s annual care costs of £18,500.  Alice’s general living costs would be paid out of her pension income.  Alice would be able to keep 80% of her wealth.

Example 2:

John has a stroke at the age of 85.  He could no longer manage at home and entered a care home costing £28,500 a year.   He lived in the care home for four years before he died.  Prior to this, he lived on his own, in a house which he owned outright and was worth £140,000.  He had £220 a week from his own pension and the state pension.

Under the current system

John had to contribute all his income except for £22.60 a week and use his housing assets to pay for his care.   He continued to pay for his care in full until he died, spending £74,000 from the value of his home.

Under Dilnot

John would pay the first £35,000 of his care costs and after two years he would reach the cap and then receive all his care without charge.  He would continue to contribute £10,000 a year towards his general living costs.  This would be done through his pension income.

John could choose to use his housing assets to pay for the £35,000 (taking out a deferred payment from the local authority), and still have £105,000 left, three-quarters of his wealth.

Reaction to this report in England

UK Government Ministers responded cautiously.  The health secretary, Andrew Lansley, described the Dilnot report as “an immensely valuable contribution” but warned that the UK Government needed to “consider carefully” the “significant costs” of reform.

Age UK welcomed the proposals. [3] Michelle Mitchell, Charity Director at Age UK, said: “Age UK welcomes the Dilnot Commission recommendations, which set out a clear blueprint for the long term sustainable reform of social care.

The Guardian said:  “Life is littered with potential financial catastrophes, from costly-to-treat illnesses to house fires, but in most cases the risks are pooled, whether through the state or the insurance market.    When it comes to care those with more than £23,500 are on their own, facing potentially unlimited liabilities.   The results are dire.  One in five retirees will clock up costs of more than £100,000.  Some 20,000 people are forced to sell their homes every year.  So Dilnot’s plan is very welcome as a way of staving off ruin for an unlucky minority.”

The Daily Mail took a different view: “The £35,000 doesn’t cover charges for bed and board; those could reach £10,000 per year.  And anyone wanting more than bog standard levels of care will pay extra.  So the middle classes will still face massive costs – while those on benefits will pay nothing.”

 Conclusion

This is a good and more importantly a timely report that points to the questions that we in Scotland also need to ask and answer.

In my next article I will look at latest thinking on this issue in Scotland and in particular what our main political parties said prior to the recent Scottish General Election.

James Aitken
Legal Knowledge Scotland

The article from the Scotsman can be found here.

Interesting article on the debate surrounding the introduction of a specific tax relief for “games firms”.

The article refers to a report by Gartner Inc.  The report stated that it is likely that the games market will grow 10.4% between 2010 and this year.  Spending on video games should increase in coming years so that by 2015 worldwide spending will reach £69.9 billion.

Jim McGovern, Labour MP for Dundee West, is quoted as saying: “This report increases the pressure on the UK Government to start acting to support our computer games industry.  In the last month Ireland has announced it will introduce tax breaks and Pennsylvania became the 17th US state to do the same.”

The present UK coalition Government in its July 2010 emergency Budget decided not to introduce a tax relief for the games industry that the previous UK Government had planned to introduce.

The article from the Courier can be found here.

Pryor v The Chief Constable of Greater Manchester Police, 30 June 2011

English Appeal Court case described by Lord Justice Ward as a “sorry tale” and concerning the police seizure of a vehicle believed to have been driven without a valid insurance certificate.

Mr Pryor purchased a car (a Honda) which he lent to his friend Mr Burton whilst he was abroad. He gave Mr Burton a signed letter confirming that he was the registered owner of the vehicle and stating that Mr Burton had his full permission to drive the vehicle.

Mr Burton was stopped by Greater Manchester Police for using a mobile phone whilst driving. The police asked Mr Burton to produce his licence, MOT and an insurance certificate.  Mr Burton produced the paperwork including the letter from Mr Pryor and a Saga Insurance certificate for his own car (a Ford) which states that:

“The policy holder may also drive with the consent of the owner a motor car not owned by and not hired under a hire purchase or self-drive agreement to the policyholder”

However, this did not satisfy the police who phoned Saga and were informed by them (wrongly as it turned out) that Mr Burton was only insured to drive other cars under his policy if the other vehicle had its own insurance cover.  According to the police computer the Honda had no cover.  The police then seized the Honda under s165A of the Road Traffic Act 1988.

In terms of s165, the police can require a person driving a motor vehicle to produce various documents including a “relevant certificate of insurance”.  In terms of s165A, if the person fails to produce the documents requested and the constable has reason to believe the vehicle is being driven without the documentation in place; the police can seize the vehicle.

Mr Pryor brought a claim against the police for wrongful interference with property.  The claim was dismissed by the District Court on the basis that the issue was whether the police officer had reasonable grounds for believing that Mr Burton was driving without insurance.  Notwithstanding the fact that Mr Burton was driving with permission and with insurance,  what was important whether the police had reasonable grounds for believing that the vehicle was being driven without insurance and the (albeit misleading) information from Saga had provided those reasonable grounds.

However, the Court of Appeal allowed the appeal finding that (in the words of Lord Justice Ward) it was “plain as a pikestaff” that the police had failed to establish grounds for seizure of the Honda and had wrongly interfered with Mr Pryor’s goods.

In order to justify seizure of a vehicle three facts must be present:

1. a constable in uniform must require that a driver produces a relevant certificate of insurance,
2. the driver must fail to produce the relevant certificate, and
3. the constable must have reasonable grounds for believing that the vehicle was being driven without insurance.

The Judgement in the District Court rested on the third element of the test.  However, the Court of Appeal made it clear that that this element of the test only applies if the driver fails to produce the relevant certificate.

The police attempted to argue in court that the “relevant certificate” was the certificate for the Honda not the Ford, however, Lord Justice Ward said that was “simply wrong”. The purpose of the Road Traffic Act is to ensure that users of motor vehicles are insured against third party risks.  Mr Pryor was covered because his policy (for the Ford) extended to his driving, with the consent of the owner, a car not owned by him.  The certificate he produced said exactly that.  Since the certificate he produced demonstrated that he was not guilty of driving without insurance it was plainly a relevant certificate.

As Mr Pryor had not failed to produce the relevant certificate (in terms of the second part of the test), the police constable’s belief, that the certificate did not mean what it said, was neither here nor there.

A noteworthy aside is that the insurance company clearly believed that the cover was only extended if the car being driven was itself insured by its owner.  It will be interesting to see whether this case leads to a rewording of some insurance policies.

A call for evidence has been issued by the Scottish Parliament’s new Scotland Bill Committee.  The deadline is 9 September 2011.

The Committee which now has an SNP majority has also asked for comments on devolving control over Corporation Tax and the Crown Estate to the Scottish Parliament and the role of the Supreme Court.

Given the result of the Scottish General Election it will be interesting to see how the Unionist and Federal parties respond to the proposed amendments to the Scotland Bill.

One issue that needs to be looked at again is whether the income tax proposal is workable.

Also, given that the Scottish Parliament is going to gainhave increased fiscal powers under any political scenario we now need to start seriously at creating a Scottish Exchequer that combines the role of HM Treasury and HM Revenue & Customs.

The Scotland Bill Committee’s webpage and “call for evidence” can be found here.