The decision in the Cadder case was that the prosecution cannot use in evidence any answers which may have been given by somebody who has been detained by the Police and then has been subjected to questioning by them without the benefit of legal advice.  In subsequent cases it has become clear that this rule applies not just when somebody has been formally detained (in terms of section 14 of the Criminal Procedure (Scotland) Act 1995) but also in situations which are arguably analogous to detention.  For example, there was a case where the Police were carrying out a search of a property in connection with a suspected Misuse of Drugs and the accused was handcuffed and placed under arrest for obstructing the Police.  Although the accused was in his house and not in a Police Station, it was held that answers which he gave to Police questioning at that time were inadmissible.  This is because his situation was tantamount to being under detention and, accordingly, the Court held that he should have been given the benefit of legal advice before being questioned.  On the other hand, there was a case where the Police, in relation to an alleged assault, questioned the accused at his home address under caution (but without handcuffing or arresting him).  In these circumstances, it was held that the accused did not have the right of access to legal advice.  The deciding factor appears to be: was the accused under detention or in some similar way had his freedom of action significantly curtailed?  If so, he should be offered the opportunity to take advice from a Solicitor before being questioned.

The Supreme Court has also recently considered when a suspect can be regarded as having validly waived his right of access to legal advice.  The answer is that the right can be regarded as validly waived when the accused has been informed of his rights, he unequivocally states that he does not wish to exercise them and this waiver was freely and voluntarily made.  Thus, if you are a fully functioning adult, are offered the opportunity to take advice from a Solicitor and decline that opportunity, what you say to the Police thereafter may be used in evidence against you.  However, there are certain categories of suspects who require to be treated withgreater consideration: for example, people of low intelligence; people who, for other reasons, are vulnerable; and those who are under the influence of drugs or alcohol.  The Police would not be allowed to question them without bending over backwards to establish that they fully understood their entitlement to access to legal advice.

In conclusion, it is worth re-stating the common law regarding spontaneous admissions.  The test was clearly spelt out in the famous Manuel case more than fifty years ago and it still applies.  The prosecution are entitled to use a statement which has been freely and spontaneously given and has not been elicited by questioning, pressure or inducement.

The rules which applied prior to 1st February 2012 allow the surviving spouse or civil partner three separate prior rights – (1) a housing right,  (2) a right to furnishings and plenishings of a dwellinghouse and (3) a financial right.

The rights (pre 1st February 2012) can be summarised as follows:-

(1) HOUSING RIGHT

Where the deceased had an interest as owner or tenant in a dwellinghouse in which the surviving spouse or civil partner was ordinarily resident, the surviving spouse or civil partner has a right:

(a) where the value of the interest does not exceed £300,000, to the interest, or

(b) in any other case to the sum of £300,000

(2) FURNITURE AND PLENISHINGS

Where the deceased owned the furniture and plenishings of a dwellinghouse in which the surviving spouse or civil partner was ordinarily resident, the surviving spouse or civil partner has right:

(a) where the value of the furniture and plenishings does not exceed £24,000 to the whole of the furniture and plenishings; or

(b) in any other case, to such part of the furnitture and plenishings, to a value not exceeding £24,000, as the surviving spouse or civil partner may choose.

(3) FINANCIAL RIGHT

The surviving spouse or civil partner has a right -

(a) where the deceased left issue, to the sum of £42,000; or

(b) where the deceased left no issue, to the sum of £75,000.

As from 1st February 2012 the amount under the Housing prior right increased from £300,000 to £473,000, the amount under the furniture and plenishings prior right increased to £29,000 and the amounts under the financial prior right increased to £50,000 (where the deceased leaves issue) and £89,000 (where there is no issue).

The operation of prior rights is just one of the factors to be considered carefully by anyone who is contemplating making a Will. In some circumstances it can be advantageous to rely on the operation of prior rights. In other circumstances it is important to ensure that prior rights do not operate. It all depends on the individual’s family situation and ultimate wishes. Expert legal advice is essential.

Under the Licensing (Scotland) Act 2005 and the Criminal Justice & Licensing (Scotland) Act 2010 it is more important than ever to ensure that every single person who sells alcohol – whether in a pub or nightclub or a hotel or restaurant or a supermarket or other off-sales premises or in a club – has undergone the relevant training.

This training can be given by any Personal Licence holder or by a training provider (such as Reid Kerr College).  Written records of the training must be kept.  The Licensing Standards Officer will visit the premises and ask to see these records.

Inadequate (or non-existent) training can result in (a) selling to under-age drinkers, (b) pouring short measures, (c) serving customers who are already drunk, (d) failing to deal properly with incidents arising on the premises, (e) being unaware of the details of the Layout Plan and Operating Plan for the premises and (f) being unaware of the notices which must be displayed on the premises, namely, the notice about not serving alcohol to under-18s and the notice about the arrangements on these premises for children and young persons.  (And there will be a need to be familiar with further notices – about age verification – when the Alcohol etc. (Scotland) Act 2010 kicks in on 1st October 2011.)

Such errors and failures could result in the Premises Licence being subject to a Review Hearing, when the Licensing Board could (a) issue a warning, (b) suspend the Licence for a period (typically between 1 week and 6 months) or (c) revoke the licence.

Even a short suspension could be extremely damaging to business.  If you are unfortunate enough to be cited to a Review Hearing, HUNTER & ROBERTSON can provide you with expert representation with a view to avoiding or mitigating any adverse decision by the Board.  Your contact is John Armit.

Prevention is, of course, better than cure, so do make sure that all staff are thoroughly trained.

Further cause for concern comes in the shape of that part of the Criminal Justice & Licensing (Scotland) Act 2010 which reintroduces the concept of vicarious liability: where a member of staff commits an offence (such as selling outwith the permitted hours or selling to a child or young person or serving someone who is drunk) while acting as agent or employee of the holder of the Premises Licence, the holder of the Premises Licence is also guilty UNLESS he/she can show that he/she did not know the offence was being committed AND can show that he/she exercised all due diligence to prevent the offence being committed.  HUNTER & ROBERTSON can give advice on what is required to establish this defence.  (The bar is set quite high!).

Yet another worry for holders of Premises Licences comes with a recent decision in an English court case (which might well be followed here in Scotland).  If a customer in licensed premises is harmed by another customer who has become unruly, the holder of the Premises Licence can, depending on the circumstances, be held to be in breach of a duty of care to his/her customers and can thus be sued for damages!  Another reason to ensure that staff are thoroughly trained!  They must be able to spot a “situation” developing and be able to de-fuse it.

It’s not often that a point of law not previously decided is wrestled with in the lowly Justice of the Peace Court (the successor to the District Court), but the fact of the matter is that there are very few decided cases on the value to be attached to CCTV evidence.

We had a case recently in Paisley Justice of the Peace Court where the Crown were alleging that our client was guilty of the theft of a mobile phone (from a counter in the Reception area of a Bingo Hall where it had been inadvertently left by one of the members). There was CCTV film showing our client approaching the counter where the mobile phone was lying, standing at the counter for a few seconds beside the mobile phone and then walking away, by which time the mobile phone had disappeared. As is the norm with such film, there is a gap of about three seconds between each frame, with the result that the film did not actually show any hand picking up the mobile phone. There was another member standing on our client’s left, but admittedly she did not look well placed to be the person who had uplifted the mobile phone. The Crown relied on the evidence of the Manager of the Bingo Hall and a Police Officer that it was their interpretation of the CCTV evidence that it was our client who had lifted the mobile phone. There were no other criminative circumstances. We made a submission of No Case to Answer, arguing that the Crown were relying on only one source of evidence: no matter how many witnesses were trotted out to say what they thought the film showed, it was still just one source of evidence. There was no corroboration of the theft. Reference was made to a recent decision by the Appeal Court that corroboration of the accused’s identity could come from two Police Officers looking at the same still photograph of a person and identifying that person as the accused. However the present case was distinguishable. Identification was not in issue. The Defence did not deny that the person shown in the CCTV evidence was the accused. What was in issue here was what the accused was said to have done. The Justice agreed with us that there needed to be two separate sources of evidence and the Crown had failed to prove its case. The accused was acquitted.

Clients vary.There are some who are alert to their entitlement to such things, but there are many who either don’t know their entitlement or are too embarrassed to raise the question.If you are over 60 and wish to make a Will or a Power of Attorney, WE will save you any embarrassment: WE will raise the question of whether or not you may qualify for Advice & Assistance.(John Armit and Steven Millar are the Partners who would deal with this.)

Many of those wishing to make a Power of Attorney will be doing so mainly with their financial affairs in mind, and such people may have Capital in excess of £25,000 and thus will not qualify for Advice & Assistance, BUT it should be remembered that Powers of Attorney can also be made in respect of Welfare issues – and everybody, whether well off or not, is entitled to make a Power of Attorney for this purpose.Many doing so will undoubtedly qualify for Advice & Assistance.

HOW IT AFFECTS CHURCHES AND OTHER VOLUNTARY ORGANISATIONS

At one extreme, there are some Churches which have obtained a Premises Licence for the Church buildings or, at least, the halls adjacent to the Church.  This enables them to sell alcohol on the premises.  At the other extreme there are some Churches which will not countenance at all the consumption of alcohol within the Church buildings.  Many – or, indeed, most – Churches take the view that there is no objection to the consumption of alcohol on special occasions within the Church Hall(s), but they feel that it would send out the wrong message if they applied for a Premises Licence.  The question is: how to dispense alcohol legitimately on these special occasions?  This applies not just to Churches but also to other Voluntary Organisations (or, at least, those which do not have a Premises Licence).

One possibility is to apply for an Occasional Licence.  This can be applied for either by the Voluntary Organisation itself or by somebody who holds a Personal Licence.  This could be somebody who has a Pub or an Off-Sales or it could be somebody within the Voluntary Organisation itself who has attended the appropriate Training Course and, after being vetted by the Police, has been granted a Personal Licence by the local Licensing Board.  If it is somebody who has a Pub or an Off-Sales, he or she is likely to look for at least a share of the profit from the sale of the alcohol at the event, whereas, if the holder of the Personal Licence is a member of the Voluntary Organisation, he or she would be more likely to allow the Voluntary Organisation to keep the profit.  It is, of course, possible for the Voluntary Organisation itself to apply for the Occasional Licence, but there are restrictions on the number of days in the year during which a Voluntary Organisation may hold Occasional Licences, whereas the holder of a Personal Licence can apply for as many Occasional Licences as he or she wants.

Hunter & Robertson will be happy, if asked, to supply more detailed information about Occasional Licences.

It should be noted, in conclusion, that it is possible for alcohol to be consumed on the premises of a Church or other Voluntary Organisation without there being any kind of licence in place.  This is because it is only if there is a sale of alcohol that a licence is required. However, one needs to proceed very carefully: if the ticket or advance publicity for an event states that the cost of the event includes a drink, that would be regarded as a sale.  If you want to avoid the need for a licence, it must be clear that the alcohol being dispensed is completely free of charge.

Needless to say, anyone thinking of applying for a Personal Licence or even a Premises Licence can be guided through the process by Hunter & Robertson.  Your contact is:

John Armit:  jarmit@hunter-robertson.co.uk

We have encountered many cases of “home made” Wills and whilst some of these have been perfectly “legal” it is often the case that these home made Wills can cause problems. Sometimes they are uncertain and ambiguous,  sometimes they fail to deal with an individual’s whole estate and occasionally (and more seriously) they are completely invalid. We encountered a case recently where a Will which had been prepared  by a Will Writing Company proved to be invalid on account of the fact that it had not been signed by the granter on each page.

In our opinion there is no alternative to taking advice from a solicitor. Hunter & Robertson have many years’ experience in advising clients in the preparation of Wills. We deal with all types of Will from simple straightforward Wills to Wills involving Trusts and those which are part of an Inheritance Tax Planning strategy.

It is also our experience that many people have a serious misunderstanding of what would happen to their estate if they died intestate (i.e. without a Will). Many clients are surprised when we advise them on these matters and this advice is very often what persuades clients to put their affairs in order.

If you do not have a Will or have a Will which was made some time ago and may need updating you should not delay in contacting Hunter & Robertson.

Why not drop an e mail from the “Contact Us” section of our website or phone or e mail one of our private client solicitors direct and we will be happy to set up a meeting. For clients who are based not too far from our offices we are normally happy to arrange a home visit as we appreciate that clients are often more comfortable about discussing such matters in their own surroundings.

The solicitors to contact about Wills in Hunter & Robertson are:

John Armit : jarmit@hunter-robertson.co.uk

William Hill : whill@hunter-robertson.co.uk

Steven Millar: smillar@hunter-robertson.co.uk

HUNTER & ROBERTSON looks after the affairs of many clients in circumstances where the timely signing of a Power of Attorney has ensured the smooth continuation of the client’s financial and business affairs including management of investments, payment of bills, and processing of tax returns after an unfortunate loss of capacity. In cases where an individual loses capacity while still owning a house or investments and where no properly prepared Power of Attorney is in place the only alternative left to the individual’s family is to petition the court for the appointment of a guardian. This is a complicated, cumbersome and expensive process and while HUNTER & ROBERTSON can assist clients in this regard it is our advice to clients that the preparation of a Power of Attorney as a precautionary measure is greatly to be preferred.

A Power of Attorney can also cover WELFARE matters. It is a sobering thought to realise that, in the absence of a Welfare Power of Attorney, the legal power to make decisions about the welfare of an incapacitated person rests with the Social Work Department. Most of us would much prefer decisions on care, accommodation, diet, treatment etc to rest with a trusted family member who has experience and knowledge of our preferences in respect of such matters.

Understandably many of us are reluctant to sign a Power of Attorney on the basis that it involves a loss of control. However this is not necessarily the case. There are two points to bear in mind here. Firstly, as long as capacity is retained a Power of Attorney can always be revoked. Secondly a document can be prepared and signed which ONLY comes into force on either (a) the future request of the granter or (b) subsequent loss of capacity as certified by a medical practitioner.

It is important to stress that a Power of Attorney can only be signed and granted while the granter retains full capacity. Accordingly it is our advice that it is never too early to ask for our assistance in preparation of a Power of Attorney.

If you wish to discuss the possible preparation of a Power of Attorney please telephone one of our Private Client solicitors – John Armit, William Hill or Steven Millar.