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Supreme Court case concerning the interpretation of commercial missives for Stewart Milne’s purchase of development land from Aberdeen City Council.  The missives contained the following provision for an uplift in the price on the occurrence of certain events:

“In addition to the purchase price detailed in Clause 2 hereof, the Purchasers and the Sellers have agreed that the Sellers shall be entitled to a further payment (‘the Profit Share’) upon the Purchasers purifying the suspensive conditions contained in Clause 4 hereof and issuing a notice to the Sellers intimating to the Sellers that the Purchasers wish to purchase the relevant part of the profit-share as defined in the Schedule to which the Sellers are entitled. The Sellers’ entitlement to the relevant part of the profit-share will also be triggered by the Purchasers disposing either by selling or by granting a lease of the whole or part of the Subjects.”

The clause therefore contains 3 triggers for the payment of the uplift (or profit share):

1. Stewart Milne could buy out the Council’s share by serving a notice on them indicating that they wished to do so;
2. the Council would be entitled to a share on the sale of the property by Stewart Milne; or
3. the Council would be entitled to a share on a lease of the property by Stewart Milne.

 Profit Share was defined in the schedule as follows:

“‘the Profit Share’ means 40% of 80% of the estimated profit or gross sale proceeds or lease value less the Allowable Costs as herein defined.”

Stewart Milne sold the property to a group company and then argued that the uplift payable should be based on the actual price paid (£483k- which meant that no uplift was payable) rather than the open market value (£5.67m) of the property. The Council argued the reverse.

It may have been intended that “estimated profit”[1]  applied to the notice procedure, “gross sale proceeds” applied to a sale of the property and “lease value” applied to the lease of the property with the prospect of a sale to group company simply not considered[2] (by the Council at least).

However, although the Supreme Court[3]  (Lord Hope giving the leading judgement) observed that, it was not stated that “gross sale proceeds” are only to be used in the event of a sale on the open market, it also noted that there was nothing in the definitions to say that “estimated profit” (or “open market value”) could not also be applied to a sale.

Having observed that it was a reasonable assumption that all three methods were intended to produce the same figure (albeit by different routes) and that basing the calculation in the open market was (on a fair reading of the agreement) the commercial purpose the various methods were intended to achieve, the Supreme Court came to the conclusion that the context showed that the base figure was to be the open market value of the subjects.

Alternative argument
The Supreme Court also allowed Stewart Milne to introduce an alternative argument (which they had been prevented from presenting to the Inner House) to the effect that the word “disposal” in clause 9 should be read as referring to an arms length transfer at market value but not to an associated company for a notional value. Thus the sale to the group company would not trigger the uplift but instead the onward sale by the group company on the open market would trigger the uplift.  However, the Supreme Court rejected that argument observing that that interpretation did not fit with the words of the contract. Also, as the group company were not party to the contract between the Council and Stewart Milne, adopting the argument would mean that it would have been necessary to re-write the contract to protect the Council against the obvious risks that the arrangement would entail. That was not an option open to the court.

Helping the feckless?
Lord Hope also referred to the argument that a party who has been feckless in drafting a contract should not be protected from its fecklessness by the court’s application of a commercially sensible approach[4] However, Lord Hope did not view the current case in that way. In this case the context showed that the parties’ intention must be taken to be that the base figure for the calculation of the uplift was to be open market value. The fact that this made good commercial sense was simply a makeweight, the words of the contract making it clear that open market value must have been what the parties had in mind when they entered the contract. The only question was whether effect could be given to the unspoken intention without undue violence being done to the words; the court finding that it could.

The full judgement is available from the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Good to see the that the Office of the Public Guardian in Scotland has issued a policy document that is both practical and pragmatic on amendments to a registered power of attorney.   This policy will come into force on 1 January 2012.

“The Adults with Incapacity (Scotland) Act 2000 is silent on whether it is permissible to amend a power of attorney deed once registered. The Public Guardian has taken the view that an amendment sought by a capable granter is permissible. The Amendment Policy constitutes the Public Guardian’s approach to the management of amendments to powers of attorney.

• In short, a minor administrative amendment to a power of attorney document, e.g. a change of name or address, which requires no capacity test, will be free of charge.
• Any amendment which requires proof of continuing capacity i.e. because there is a change requested to the primacy of the deed, will incur a fee of £70.”

The policy document can be found here.

Let’s start with Edinburgh.

It has been a better week for Edinburgh as we are talking about pandas and not trams or statutory repairs.  Even its pro rugby team is winning.  But what about tax?  The City of Edinburgh Council have taken the idea of a “tourist tax” a stage further.

The policy and strategy committee of the Council has agreed in principle to this revenue raising plan.  The committee has asked officials to look into the proposal in more detail.  It is estimated that the Council could raise up to £10m a year by charging between £1 and £2 per room each night.  If formally adopted Edinburgh would be the first place in the UK to levy the charge on visitor accommodation.  The exact nature of how the tax would be raised is as yet unclear.  The officials have also to look at both a compulsory and voluntary version of this idea.

Now to the fiscal powers debate.  I was not surprised to see that the UK Government has ruled out devolving Air Passenger Duty to the Scottish Parliament.  This simply provides further evidence that the Scotland Bill is “Calman minus”.

The attitude of the UK Government is though of more interest.  The UK Government seem quite happy to go against the wishes of many businesses and business organisations in Scotland on APD.  Also by refusing to devolve APD they are failing to implement the extremely modest Calman proposals of which they said they would implement in full.

To put this in context.  Who would have thought even a few months ago that  we would see senior members of the Labour party arguing for “devo max”.  The election of Ruth Davidson to lead the Conservatives in Scotland and the stance of “Scotland Bill and no further” shows, at least in the short term, where they stand.  The Liberal Democrats are trying to distance themselves from the Conservatives and that is why they created yet another Commission on this issue.  Hopefully their recommendations will not end up as “Steel minus”.

What does this mean?  The unity surrounding Calman, the previous UK Labour Government’s proposals and now the Scotland Bill is crumbling.   It may be that the Conservatives are becomming more and more distracted by Europe and just simply do not see, or maybe do not want to see, how fast the fiscal powers debate is moving.

Now to Europe and that other fiscal powers debate.  There is so much happening here it is difficult to keep up.  The call for greater fiscal union as a means of solving the Euro crisis.  The call for a European Financial Transactions Tax.  The call to safeguard the City of London and the European single market.  The call for a referendum on UK membership of the EU.  The call for powers to be repatriated to the UK.

Before the summit Ken Clarke was urging the Prime Minister to concentrate on maintaining financial stability and to forget about the repatriation of powers.   The Prime Minister is sticking to the view that any changes would only impact upon the 17 Euro countries and thus do not necessitate a referendum about the issue in the UK.

It was also not a surprise that the Prime Minister has effectively vetoed an EU wide treaty change saying it was not in the UK’s interests.   The sticking point as expected was how to “protect” the City of London.  Not surprisingly the French and others do not hold the City in such high reagrd.   They again made the point that some of the blame for why we are in this position is becuase of a lack of proper financial services regualtion in the City of London.

I have blogged before on how much pressure Ireland is under regarding its low rate of corporation tax and that was before the latest crisis.  If further powers are to be transferred to Brussels Ireland will have to have another referendum.  Will the Irish vote for closer fiscal union with its Eurozone countries knowing that its prized low rate of corporation tax will have to be conceded?  Then there is the Scottish fiscal powers and independence debate.  Who knows what impact the Euro crisis will have on this debate.

Lastly, I enjoyed the following comment piece from Eversheds.  It seems that the rule where footballers must be paid first in the event of a club going into administration is again under attack.   The comment piece can be found here.

Have a good weekend.

Case in which Dawn Developments sought judicial review of Lanarkshire Council’s decision to grant planning permission to JHAG Ltd for a development which included a superstore, garden centre, filling station and hotel at Redwood Crescent in East Kilbride.

Dawn applied for planning permission for the erection of a superstore at West Mains Road in East Kilbride (approximately 1 km from JHAG’s proposed development) on 29 March 2010.  JHAG’s application had been lodged on 17 February and an objection to it was lodged on behalf of Dawn on 30 March.

Dawn had written to the Council requesting that its application should be considered at the same time as JHAG’s. However, at a meeting on 7 September 2010, the planning committee decided to consider JHAG’s application ahead of Dawn’s.

Dawn argued:

1)     that the council had failed to properly apply the sequential test; and

2)     that the procedure leading to the decision had been unfair.

Application of the sequential test

National Planning Policy requires application of the sequential test when considering applications for retail development. The test is designed to protect the commercial viability of town centres and involves considering locations for development in order from the town centre outwards.

In the first place Dawn said that when considering JHAG’s application the Council should also have had regard to its application which was sequentially equal. They questioned whether the Council was entitled simply to disregard its proposals generally as relating to a sequentially equal site, and whether, in considering the cumulative impact of JHAG’s proposed development with other actual or potential retail developments, their site should be taken into account.

In the second place they argued that, in assessing whether JHAG’s proposals could be accommodated elsewhere, the scale of the development should not be determined by JHAG’s application without considering whether a development on a smaller scale might be accommodated elsewhere.

When considering the authorities, Lord Drummond Young noted that the width of discretion that is available to a planning authority in applying national planning policies. In particular he referred to Tesco Stores [2010] CSOH 128 [2011] CSIH 9:

 “the sequential test … should be treated as a statement of policy designed to facilitate the delivery of national government objectives, not a rule of law. It was very difficult to suggest that there was one correct method of applying the test to the exclusion of other possible approaches. The correct method was a matter for the exercise of the planning judgment of the planning authority as to how to apply the sequential test. On that basis, a challenge to the application of the test would only be successful if the disappointed person could establish that the planning authority’s decision was unreasonable in the Wednesbury sense.”

 Lord Drummond Young found that a report prepared by the Council’s Executive Director (Enterprise Resources) and  considered by the Planning Committee at a meeting held on 5 October 2010 fully addressed the sequential approach and dealt with the cumulative effect of the development.

Lord Drummond Young also took the view that the reports conclusions fell squarely within the planning judgment of the local authority and was not persuaded that an incorrect approach had been adopted.

Procedural unfairness

With respect to procedural unfairness, Dawn argued that the Council’s officers significantly misinformed the Planning Committee.  Reports to, and comments made by, officers at the Committee’s meeting of 7 September 2010 were said to have contained inaccurate descriptions of the status of their application. The officers, it was said, gave the Committee to understand that there were fundamental problems with the Dawn’s application, in relation to both transportation issues and the period of time within which it was likely that such issues could be resolved.

However, the court heard that the Dawn had been represented at the meeting on the 7^th and that their representative had put their case clearly.  Lord Drummond Young took the view that Dawn was given a clear opportunity at that meeting to state its case and to refute any misleading statements made by Council officers.  The request to conjoin the applications was refused the meeting and no attempt was made to reduce that decision. It could not be said that there was any unfairness in taking JHAG’s application (which had been received first and proceeded rapidly) ahead of Dawn’s. Further delay would have prejudicial to JHAG and it was open to the Council to consider whether that prejudice was outweighed by the prejudice to Dawn in not having its application considered.

 As the decision not to conjoin the applications had been made and not challenged directly it was not necessary to consider the events after the meeting of 7 September. However, correspondence and other documentation after revealed that there were significant issues to be resolved with Dawn’s application which appeared to justify the statements made about the preparedness of Dawn’s application.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Appeal by Dundee City Council against a decision of Dundee Valuation Committee. The question in dispute was whether Mr Hanson, the landlord of a number of (apparently unoccupied) flats in Dundee was liable for council tax on those flats.

The council had determined that Mr Hanson was liable for council tax. However, the Valuation Committee allowed an appeal by Mr Hanson on the basis that, as a valid lease existed over each of the flats, the tenants and not Mr Hansen were liable for the council tax.

The committee found that the leases had been continued by tacit relocation and, although the flats were unoccupied, there was no rule of law requiring the landlord to serve a notice to quit or seek to recover the property where the tenant is not paying rent or appears to have abandoned the property. On the basis there were tenants with leases, the tenants were responsible for the council tax in terms of s75 of the Local Government Finance Act 1992.

The Second Division of the Inner House allowed the council’s appeal finding that the committee had erred in the procedure it had adopted meaning it had reached a decision which was “illogical, erroneous in law and based on inadequate findings in fact”.

Procedure

At the root of the procedural failings was the Committee’s failure to make findings in fact before making its decision. In particular it had failed to consider whether the properties were unoccupied because they had been abandoned by the tenants or whether the tenants were merely absent temporarily from the property.

Legal error

The committee’s understanding was that when the term of a lease expired, the lease was automatically renewed by tacit relocation and continued so to be renewed until either party served notice of termination or the landlord obtained a court order for eviction. Therefore, in the view of the committee, since none of these events had occurred, the tenancies continued by operation of law.

However the Inner House found that interpretation to be unsound:

 “In leases of heritable property, the broad general principle is straightforward. If at the expiry of the contractual endurance of the lease neither party indicates to the other that he does not consent to the renewal of the lease, the lease is held to be renewed on the basis that the mutual consent of the parties is to be presumed from their silence. At common law, any overt indication by either party that he does not consent to the prolongation of the lease is sufficient to exclude tacit relocation.”

 In considering whether the leases have been terminated by notice of termination or by a decree of removal, the Committee has overlooked the rule that the operation of tacit relocation is excluded where the tenant does not retain possession after the contractual ish”

It was noted that, where a flat let under a short assured tenancy appears to be vacant at the end of the lease, the question of whether the tenant has abandoned it will be particularly fact-sensitive.

A special problem in this case was that the landlord’s typical tenant would not be minded to give notice to the landlord and would simply vacate the flat and cease to pay rent. At first sight, that would be evidence of abandonment.  It may be supposed that those facts will come to the notice of the landlord. However, in view of the many diverse circumstances which can prevent the operation of tacit relocation, it was essential that the Committee should hear evidence in respect of each flat and make a decision based on the special facts applying.

Decision

The Inner House allowed the appeal, recalled the committee’s decision and returned the cases to the committee with a direction that it should hear evidence in respect of each flat and to make findings in fact and law in order to decide whether the tenancies remained in force.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

The Land Registration etc. (Scotland) Bill has now been introduced in the Scottish Parliament. The Bill:

• reforms and restates the law on the registration of rights to land in the land register;
• enables electronic conveyancing and registration of electronic documents in the land register;
• provides for the closure of the Register of Sasines;
• allows electronic documents to be used for certain contracts, unilateral obligations and trusts that must be constituted by writing; and
• provides for the formal validity of electronic documents and for their registration.

The Bill is available from the Scottish Parliament here

The explanatory notes are available here.

Let’s start with the Autumn Statement or in old money the pre-Budget Report.

There were only a few tax announcements of note.   January’s planned rise in fuel duty has been cancelled.   Not yet heard whether next August’s increase is also to be cancelled.  There have been further calls for the fuel duty escalator to be abandoned.  It will be interesting to see how the Scottish Government responds to the increase in business rates by the UK Government.  Tax competition within the UK; surely not.  There was also a tiny increase in the Bank Levy.

The Autumn Statement was of course dominated by the poor growth and debt figures.  It seems the reality of how we have got to this point and what lies ahead is slowly dawning.  According to figures published by the Institute for Fiscal Studies household incomes will fall by 7.4 per cent between 2009/10 and 2012/13 due to inflation and austerity measures.  This reportedly represents the worst fall in living standards since the three-day week in the 1970s and it would see an average family lose nearly £2,500 over the period.

Has the UK been living beyond its means?  Yes.  Is it going to take a number of years for the debt to work its way through the system?  Yes.  Do we now have a two tier public sector where the top tier earns more and has far greater benefits than the vast majority of those who work in the private sector?  Yes.  Will the UK and Scottish Governments have to deal with public sector wages, bonuses and benefits as well as pensions?  Yes.  Is there a quick fix.  No.

Now to the fiscal powers debate.  Interesting to see “devo max” being mentioned on the BBC’s One Show on St Andrew’s Day.  Did not expect  that.    The quality of the debate also surprised me.  Further evidence that this debate has now reached new pastures.

Interesting news report on the BBC website pages concerning the glacial process of devolving some parts of the corporation tax legislation to Northern Ireland.  It seems that a joint ministerial meeting is to take place before Christmas.  Three key points are to be addressed.  These are cost, how would this be administered and what form would the legislation take.  Not sure who is credited with first saying this but they are right.  “The main difference between evolution and devolution is that devolution takes longer.”  The article can be found here.

Now to Europe.

German Chancellor Angela Merkel has said: “Europe is working towards setting up a fiscal union in a bid to resolve the eurozone’s debt crisis.”  How quickly this debate is moving.   For example the European Union’s council of finance ministers has endorsed European Commission proposals for tax policy coordination through the so-called “Euro Plus Pact” concluded in March by 23 of the 27 member states. The report calls for avoidance of ‘harmful’ tax practices.

Interesting article on the proposed European Financial Transactions tax and how not everyone from the city of London is opposed to this proposal.   The article from the Scotsman can be found here.

One last point.  If you did not see this week’s Panorama programme on PFI and I would recommend you do so.  A school without light switches!  No transparency.  “Dodgy accounting”.  You could not make this stuff up.  This issue is not going away.  How lucky we are that we are now doing things differently in Scotland.   That said, the huge cost to us in Scotland is still going to be with us for a least a generation.   The programme can be found here.

 Have a good weekend.

Let’s start with the fiscal powers debate.

The fact that Douglas Alexander, shadow foreign secretary and Scottish Labour MP, has now entered the debate provides further evidence of a possible change in direction by the Labour party.  If you add to this the recent comments by Malcolm Chisholm MSP, former First Minister Henry McLeish and George Foulkes, former MP and MSP and presently a member of the House of Lords, something is clearly going on within the ranks of the Labour party.  Clearly plenty of opposition still exists but it seems that a number of senior figures are acknowledging that: arguing ‘the Scotland Bill and no further’ is not a realistic option.  The question is will Labour break the Calman consensus?

Now to England.  Research by the Local Government Chronicle has shown that up to a fifth of councils in England may not accept the UK Government’s offer to help pay for a freeze in council tax next year.  That is interesting as Scotland has had a council tax freeze for a number of years now. Although a number of councils have questioned this policy each council has in the end gone ahead and implemneted this policy.

That said this cannot go on forever.  At some point we will need to decide how we fund local government in Scotland.  The Scottish Government still favour a local income tax.  As I mentioned in a recent speech at Holyrood’s Scotland Bill conference this would now be possible under the proposals contained in the Scotland Bill.  Not that it is certain that the Scotland Bill will become the Scotland Act.  My speech can be found here.  Other options should include a Land Value Tax.  My preference is to allow councils some choice in the matter.  Some councils may prefer a form property tax over an income tax or possibly even both.

Now to the UK Chancellor’s Autumn Statement.  This takes place next Tuesday.  How much room to manoeuvre does he have?  Not much I suspect.  Recent debt and growth figures confirm that.  I cannot imagine him deviating from the view that reducing the national debt is his priority.  Although I have a fair bit of sympathy for that position it is equally clear that if the economy is to grow some additional investment or one or two targeted tax cuts is needed.  That is why I am hoping to see a reduction in VAT for home repairs and improvements as already happens in the Isle of Man.

What about the top rate of income tax?  The Eurozone crisis and in particular the possible introduction of a European financial transaction tax have pushed the 50p rate debate from the front pages.  I suspect this is only temporary and battle will soon commence again.  I do not expect to see any specific announcement on the 50p rate next week but I do expect to some comments along the lines of this needs to be looked at and how much if any revenue does it bring in.

I am sure we will see more anti-avoidance measures announced and possibly a consultation on a general anti-avoidance rule.

I will finish on an issue I wrote about a few weeks ago.  My earlier piece can be found here.  Ales Belyatski’s, one of the leading opponents of the Belarus government has been sentenced to four and a half years in jail.  He had been charged with tax evasion.  The Belarus government had obtained details of his bank accounts by invoking an information exchange agreement with Poland.  Several senior Polish government officials lost their jobs over the affair.

Have a good weekend.

HMRC v Atkinson 2011

The Upper Tax Tribunal has allowed HM Revenue & Customs’ appeal in the case HMRC v Executors of Atkinson.

The decision allows HMRC to refuse agricultural property relief on a farmhouse because the farmer had gone into in a care home just before his death. The executors were unrepresented at the appeal because they could not afford to pay HMRC’s costs if they lost.

The farm was owned by the deceased and let to a farming partnership.  The deceased was a partner in the farming partnership and lived in a bungalow situated on the farm until ill-health meant he had to move into a care home.  The deceased still made occasional visits to the bungalow and his possessions remained in it until his death.

HMRC had refused the Executors’ claim for agricultural property relief because they were of the view that the bungalow was not occupied for the purpose of agriculture for the relevant period required by section 117 of IHTA (“Inheritance Tax Act 1984”).   The First Tier Tribunal allowed the Executors’ appeal.

On the basis of the findings of fact the First Tier Tribunal concluded that, for the purposes of the IHTA, the partnership was in occupation of the bungalow up to the date of Mr Atkinson’s death and that such occupation “was for the purposes of agriculture in the relevant sense because the bungalow was still used to accommodate the diminishing requirements of the senior partner”.

Section 117 (b): “… section 116 above does not apply to any agricultural property unless –

(a)    It was occupied by the transferor for the purposes of agriculture throughout the period of two years with the death of the transferor, or

(b)   It was owned by him throughout the period of seven years ending with that date and was throughout that period occupied (by him or another) for the purposes of agriculture.”

Section 116 grants relief for agricultural property.

Note. There is no definition of the word “occupied” nor is any special given to the words “for the purposes of agriculture”.

The question for the Upper Tribunal was whether the First Tier Tribunal made an error of law when they arrived at a decision of fact which no tribunal properly directed could properly have reached.

The Upper Tribunal found that the First Tier Tribunal did make an error in law.

“Were the matter for us, we would have no hesitation in concluding that the partnership ceased to occupy the bungalow for the purposes of agriculture when Mr Atkinson moved to the care home with no reasonable prospect of ever returning home.”

“In our judgment, the [First Tier] Tribunal failed to apply the correct approach and ask the correct questions.  The correct approach is to identify what does and what does not amount to a sufficient connection between the use and occupation of the property in questions (the bungalow in the present case) and the agricultural activities being carried on on the agricultural property (the farm in the present case); and to ask whether the facts give rise to a sufficient connection.”

“If the [First Tier] Tribunal had adopted such an approach it could, in our judgment, have come to only one conclusion, namely that the bungalow was not immediately before Mr Atkinson’s death, occupied for the purposes of agriculture and had not been since, at latest, it had become apparent that he would never be able to return there to live.  In particular neither the occasional attendance of Margaret [his daughter-in-law] and Gary [his grandson] at the bungalow to deal with post or frost, nor the fact that some of Mr Atkinson’s belongings and furniture remained at the bungalow, can be said to constitute occupation for the purposes of agriculture throughout the seven years prior to Mr Atkinson’s death.”

The full report of the Upper Tribunal can be found here.

Note recording Lord Bracadale’s reasons for repelling Thomas and Gail Sheridan’s pleas in bar of trial at their trial for perjury.  The Sheridans had argued that the trial would breach their right to a fair trial in terms of Article 6 of the European Convention of Human Rights contending that the pre-trial publicity meant that the trial could not be before an impartial tribunal. In particular they argued that:

1. prejudicial material remained accessible at the time of the trial;
2. some of the material purported to emanate from police sources; and
3. the Crown had failed to take adequate steps to render the prejudicial material inaccessible.

Lord Bracadale applied the test[1] for prejudicial pre-trail publicity set out in Stuurman v HMA (1980) and had regard to observations made in Montgomery v HMA (2001) to the effect that the Stuurman test took account of:

a)     the length of time since publication;
b)    the focusing effect of listening to evidence over a prolonged period; and
c)     the likely effect of the directions by the trial judge.

Was there pre-trial publicity?
The first question was whether there had in fact been pre-trail publicity.  Having been presented with 13 lever arch files of material and a report of material available on the internet, Lord Bracadale unsurprisingly accepted that there had been pre-trial publicity.  Although it was highly improbable that any potential juror would have read all of it, and there was therefore a danger of overestimating the impact of the material on any particular juror, it was likely that some of the jurors would have encountered some of the prejudicial material.

Could the effect of the pre-trial publicity be removed?
The passage of time
Lord Bracadale noted that there had been significant time between publication of most of the prejudicial material (in 2006 following the defamation verdict) and the perjury trial due to take place in 2010. However, there had been publications in the intervening period which harked back to and rehearsed the earlier prejudicial material.  Additional allegations had also been made in the intervening period in relation to interfering with witnesses and evidence. Moreover, much of the material was still available on the internet. All of which meant Lord Bracadale found that the argument that the passage of time was a safeguard to a fair trial was a weak one.

Focusing effects of the hearing of the evidence
In contrast Lord Bracadale considered that the focusing effects of listening to the evidence over a pro-longed period was a powerful safeguard. It was not just a polite fiction:

“It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely, in my view, to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. In addition, the jury will have regard to the evidence as a whole, which is a significant consideration.”

Directions of the trial judge
With regard to the directions of the trial judge, the court must assume that jurors will follow the directions given to them by the trial judge. This was a case in which special directions were necessary and would require to cover, for example, internet research and to putting knowledge of the case gleaned from the media from their minds.

Decision
Lord Bracadale had been satisfied that, when taken together, the safeguards removed the risk of prejudice and a fair trial had been available to the Sheridans.

The note repeats the directions Lord Bracadale gave to the jury in his introductory remarks, the reminders he gave during the trial and also the directions given in his charge to the jury.

The full text of the note is available from Scottish Courts here.