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Jones Whyte: from startup Abused clients: how do we Self-regulation: can it be
to Firm of the Year best support them? made independent also?
P.16 P.18 P.22
Journal of the Law Society of Scotland Volume 67 Number 1 – January 2022
Seeing the offender
Why the new guideline on sentencing young
offenders deserves support from the public
Publishers
The Law Society of Scotland
Atria One, 144 Morrison Street,
Edinburgh EH3 8EX
t: 0131 226 7411 f: 0131 225 2934
Editor
Email > peter@connectcommunications.co.uk
e: lawscot@lawscot.org.uk Read > www.lawscot.org.uk/news-and-events/blogs-opinions/
Follow > twitter.com/jlsed
President: Ken Dalling
Vice President: Murray Etherington
Chief Executive: Diane McGiffen
Online resources
Another year
www.lawscot.org.uk (home page) As 2022 gets into its stride, how are we as a reason for inaction, if that leads to
www.lawscot.org.uk/members/journal/ doing? I have heard various people say they transport and other vital sectors, as well as
www.lawscotjobs.co.uk
had to curtail their Christmas plans, due the health service, being crippled due to staff
Subscriptions to the interference, actual or suspected, of absence. Achieving freedom is not as black
Practising Certificate (inclusive cost) £622.50; coronavirus. For some, the experience was and white as the more libertarian politicians
Non-Practising Members (UK and Overseas, worse than the previous year when we at would have us believe.
inclusive cost) £315; Annual subscription UK £84;
least knew in advance that get-togethers Barring further disruption, what else can
Overseas £108; Trainees Free
would be very limited. our profession expect of this year? On past
Editorial It is to be hoped, however, that the early form it will be several months before we
Connect Publications (Scotland) Ltd months of this year will be less of an ordeal, hear the Scottish Government’s proposals
Editor: Peter Nicholson: 07785 460743 without the lockdown restrictions that following the consultation on regulation.
e: peter@connectcommunications.co.uk made their 2021 equivalent a struggle for Hopefully, rather than Esther Roberton’s
Advertising: Elliot Whitehead: +44 7795 977708 many. That still depends to an extent on solution in search of a problem, they will
e: journalsales@connectcommunications.co.uk everyone doing what they can to focus on the matters that clearly
Review editor: David J Dickson limit the spread of infection, even need fixing. Talking of which,
Online legal news: if we weary of face coverings, can ministers continue to stall
e: news@connectcommunications.co.uk distancing, testing and the rest on legal aid, especially if the
Other Connect Publications contacts, after all this time. I have never withdrawal from duty schemes
telephone 0141 561 0300
subscribed to the view that face now being announced by
Head of design: James Cargill (0141 561 3030)
coverings are an infringement of various local bars becomes
james@connectcommunications.co.uk
freedom – an enabler of freedom, widespread? The revelation
Editorial board more like, if they permit more before Christmas that payments to
Amanda Millar, Past President activities to be safely undertaken than legal firms in the first year of COVID fell
Austin Lafferty, Lafferty Law would otherwise be the case, and if their use by 24% (£31.8 million), has only added to
Andrew Todd, Springfield Properties Plc
offers more reassurance to the vulnerable. solicitors’ determination to take a stand.
Matthew McGovern, McGovern Reid
Ayla Iridag, devilling To achieve anything resembling normality, Court lawyers can expect further
Kate Gillies, Harper Macleod LLP it seems to me, we have to assume the arguments over the proposed rules for
continuing presence of one or more variants remote and in-person hearings; and those
of the virus in our midst, and not shrink from in criminal work face ongoing debate over
deploying a combination of measures, while corroboration, not proven, and even jury trial
seeking to avoid restrictions that are socially itself, as the Lord Advocate has more than
and economically unsustainable. It may be hinted in relation to sexual assaults.
Disclaimer difficult, but it is a better strategy than, for In short, the year is unlikely to be a quiet
The views expressed in the Journal of the Law
Society of Scotland are those of invited contributors
example, founding on the latest variant being one. My wish for us all is that it at least
and not necessarily those of the Law Society of supposedly less severe than its predecessor brings a positive feel.
Scotland. The Law Society of Scotland does not
endorse any goods or services advertised, nor any
claims or representations made in any advertisement,
in the Journal and accepts no liability to any person
for loss or damage suffered as a consequence of their
responding to, or placing reliance upon any claim or
Contributors
representation made in, any advertisement appearing
in the Journal. Readers should make appropriate
enquiries and satisfy themselves be fore responding
to any such advertisement, or placing reliance upon
any such claim or representation. By so responding,
or placing reliance, readers accept that they do so at
their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected
publication be reproduced without the written
permission of the copyholder and publisher,
legal publication please email: peter@connectcommunications.co.uk
application for which should be made to the publisher.
© The Law Society of Scotland, 2022 Krista Laura Natalie Jim Keith
ISSN: 0458-8711 Johnston Connor Bruce Gallagher Carter
is a solicitor is a partner with is a solicitor Institute of is principal of
The Journal of the Law Society of Scotland is advocate and Thompsons in the Family Legal and Keith Carter
distributed each month to more than 12,000
member of who acts in Law team Constitutional & Associates,
practising and non-practising Scottish
solicitors, along with trainee solicitors,
the Scottish cases involving with Harper Research, employment
registered paralegals and non-lawyer Sentencing historic sexual Macleod University of consultants
subscribers. Council abuse St Andrews
January 2022 \ 3
THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND
VOL.67 NO.1 – JANUARY 2022
Perspectives Features Briefings In practice
04 Journal online 12 34 Civil court
40 Professional news
Website exclusives for January Why the new guideline on Recent cases, including some
New CEO’s message; future
sentencing young people? unusual points
05 Guest view President; Innovation Cup; ABSs;
Adam Tomkins 36 Insolvency legal aid; policy work; court fees
14
Compensation for breach of
06 Viewpoints How the new guideline supports 43 Post-pandemic workplace
administrator’s duties
Success fees; Blog; Reviews trauma-informed practice Rupa Mooker on holding on to
36 Licensing your employee talent
07 Offbeat
16 Some tricky points likely to
Quirky news; Profile column 44 Risk management
The founders of Jones Whyte feature in 2022
Lessons from carrying out risk
08 President interview on the firm’s success
38 Planning audit visits
Look after each other
Overview of the draft NPF4
18 46 Electronic signatures (1)
policy document
Regulars How to support abused clients? Panel of providers will help
38 Immigration solicitors choose a solution
20 Bill that will extend the hostile
47 Electronic signatures (2)
09 People Formula 1 and sport disputes environment
When they are not suitable –
37 Consultations
39 Discipline Tribunal for the time being at least
46 Notifications 21 Cases on accounts rules and
48 Archive Child vaccination: court rulings 48 Ask Ash
cashroom manager failings
48 Classified Dealing with a bully acting
49 Recruitment 22 for the other side
Legal services: a model for
transparent self-regulation?
24
Auctioneers
Future loss in uncertain times
special feature:
Page 27
26
Tradecraft: some practice tips
ONLINE INSIGHT
P U B L I S H E D O N LY O N W W W. L A W S C O T. O R G . U K / M E M B E R S /J O U R N A L /
All is fair in... The exclusionary rule and The uneasy relationship Where lightning
disciplinary procedures? pre-contract negotiations between adjudication strikes twice
Recent judicial suggestions Richard McMeeken welcomes and insolvency Experience of representing
that an employee’s contract the Outer House decision in Iain Drummond considers a injured cyclists following road
is subject to the implied term Dragados (UK) v DC Eikefet recent case that provides lessons traffic collisions suggests that
that any disciplinary process Aggregates as restating the for the construction sector police and local authorities
will be conducted fairly, sound importance of the rule excluding concerning the enforcement are failing to act in relation
reasonable but create a new pre-contract negotiations in of adjudicators’ decisions by to certain accident blackspots,
risk for employers, Stephen settling questions of construction companies in liquidation Roz Boynton claims
Connolly believes
4 / January 2022
OPINION
Adam Tomkins
The Human Rights Act is a work in progress; there are issues on which it is not working
as intended, and the UK Government’s plans to update the Act should be supported
he Human Rights Act 1998 (“HRA”) may be does not feature in the current Government’s consultation.
T
fundamental but, like any other aspect of The relationship between legislation and rights is governed by
constitutional reform, it is work in progress, ss 3 and 4 of the HRA. Section 3 provides that, where possible,
not the last word. Our devolution legislation is to be interpreted compatibly with Convention rights;
“settlement” is not settled, but fluid: the s 4 that, where this is impossible, a declaration of incompatibility
Scotland Act 1998 has been amended on may be granted. In practice, few such declarations have been
multiple occasions. Likewise, the relationship between the issued. One of the reasons for this is that s 3 has been widely
courts and parliamentary government, of which the HRA is used to interpret – or, sometimes, straightforwardly to rewrite
a key part, is dynamic, not static. – legislation to render it rights compliant. Again, this is not
The UK Government’s proposals to revise and update what was intended by those who wrote the HRA and it needs
Britain’s human rights laws, published by the Ministry to be corrected. The courts should not be in the business of
of Justice last month, seek to build on, not to bury, the disregarding what legislation says in order to ascribe to it a
foundations laid by the HRA. Under the Government’s plans, meaning at odds with what Parliament intended.
now out for public consultation, there will be no move to Let us grant that, at present, the
withdraw the UK from the European Convention on Human courts do this not of their own free
Rights. Convention rights will continue to form the bedrock of will but because they consider
the UK’s new Bill of Rights. As the consultation paper makes that Parliament mandated it in
clear, the HRA was “a well-intentioned attempt to enhance s 3. It follows that s 3 needs to be
rights protections in the UK”. The Government will “leave in recrafted in order to make it clear
place those aspects of the Human Rights Act that have not that this is not what Parliament
proved problematic in practice”. This is all to be welcomed. wants. If Parliament enacts
By and large, the HRA has indeed worked well in practice. legislation incompatible with
But, as with any general rule, there are exceptions – and it Convention rights, the remedy
is on these that the core of the Government’s proposals are lies in s 4 and not in s 3.
focused. They concern the relationship of domestic precedent Finally, on free speech, you
to decisions of the Strasbourg court; the extent to which would have to have been living in a
domestic courts may effectively rewrite legislation; and the bunker not to appreciate that free
strength of the protection our law affords to freedom of speech is increasingly fragile in
speech. Let us consider each in turn. modern Britain. Hate crime legislation and the popular desire
The first is governed by s 2 of the HRA, which requires that to ban all speech deemed offensive are but two instances
in appropriate cases relevant Strasbourg authority “must” be of this. Our human rights law does need to offer greater
taken into account. Our courts have tended not merely to take protections for free speech, and not only when speech clashes
into account decisions of the European Court of Human Rights, with the right to privacy. The Government is right to take this
but to follow and apply them. This is not a uniform practice opportunity to consult on how best this may be achieved.
– there are well-known exceptions – but it has become the If enacted, the Government’s proposals will sharpen and
general pattern. This is not what was intended when the HRA improve our human rights laws, offering increased protection
was written. The independent review of the HRA (whose report while at the same time clarifying that all-important balance
was published alongside the Government’s proposals) was of between the power of the courts and the authority of
the view that s 2 required amendment, and the Government is parliamentary Government to set public policy.
wise, in my view, to put a number of options as to how this may
be achieved to public consultation.
However it is done, the result will in the end be the same: Adam Tomkins is the John Millar Professor of Public Law at
namely, to empower our own courts to interpret and apply the University of Glasgow; from 2016-21 he was a Scottish
human rights law as best befits the interests and circumstances Conservative MSP for Glasgow
of the United Kingdom. This is an important aspect of what Jack The consultation is at consult.justice.gov.uk/human-rights/
Straw and Lord Irvine of Lairg 20 years ago called “bringing human-rights-act-reform/, and runs until 8 March 2022
rights home” – although it is noticeable that that kind of jingoism A response to this article is planned for February
January 2022 \ 5
VIEWPOINT BOOK REVIEWS
European
Success fees: Criminal Law:
An Integrative
an anomaly Approach (4th edition)
ANDRÉ KLIP
PUBLISHER: INTERSENTIA
ISBN: 978-1780689685; €125
The last 12 months have seen a win, she would have to pay the stipulated
surprisingly large number of claims for success fee, and further, that “win” meant In this fourth edition of the authoritative text
augmented solicitors’ fees reach the “any resolution to the litigation that results on European criminal law, the author takes the
courts, particularly in England. Most in an agreement or a court award which subject matter from strength to strength.
would be void and unenforceable at reduces your liability to the pursuers..., What use is it to a lawyer in Scotland, post-
common law, as pacta de quota litis whether this be partial or full… The Court, Brexit? Such a question risks exposing a narrow
(contracts under which solicitors are through the Auditor… will decide how view of the law. There are many Scottish
to receive an agreed portion of clients’ much you can recover... If the amount… decisions where foreign law has been referred
litigated winnings). does not cover all our work, you pay the to as an aid to interpretation. Cross border
However, the Civil Litigation (Expenses difference.” In my view the most intense criminality is being vigorously exploited by
and Group Proceedings) (Scotland) inequity resides in the word “partial”. organised crime groups and others. With clarity
Act 2018, s 2 has legalised such “success Holding that the award of expenses of thought, analysis and language, Professor
fee” agreements, which nowadays are did not include the success fee, the court Klip leads us through the development of EU
usually enveloped in lengthy letters stated: “The ‘success fee’ in this case is criminal law and procedure and its envelopment
of engagement. not an expense which is part of, or directly of the different agreements now in place.
Of course, success fees are inherently related to, the process. It is a private UK practitioners will still need to advise
something of an anomaly, seeing that arrangement between solicitor and client clients in the grip of the judicial authorities in
solicitors routinely strive for their clients’ which is outwith the boundaries of the EU states. Consideration of EU criminal law
success. What distinguishes success process; it is an extrajudicial item. It is a and practice will aid greater understanding
fees from other augmented fees was form of incentive to the agent to represent of the new agreement and insight into the
lucidly set out by Lord Doherty in A & the client in the litigation. It is not related approach taken by our European partners.
E Investments v Levy & McRae [2020] to the work which the solicitor does in UK nationals no longer have EU citizenship;
CSOH 14: “The success fee elements are carrying out that task.” in EU criminal law, one cannot underestimate
not conditional fee arrangements. They One can only wonder that a principle the significance that citizenship plays, not
do not provide that a certain fee will be so well entrenched in both English and least in the area of surrender of fugitive
paid in the event of success. They are Scots law was taken all the way to the offenders. It will be interesting to observe
contingency fees. The amount payable Inner House – probably propelled by how the UK-EU relationship progresses but
varies depending not just upon success the involvement of the auditor. The sum this book, addressing as it does so clearly the
but also upon the amount recovered. They unsuccessfully sued for was £7,277.52. developments in EU criminal law, shines a light
are not speculative fee arrangements. The auditor originally allowed a success on future challenges that may be faced.
At common law such fee arrangements fee of 70% of the recoverable taxed David J Dickson, solicitor advocate. For a fuller
involve no fee being due if the litigation fees against the pursuers, or £3,942.40. review see bit.ly/3JHj66t
does not succeed, but payment of an However, the court held that in terms of
ordinary fee in the event of success.
By contrast, here the amount of the
the letter of engagement, the success fee
was limited to 25% of the sum sued for, or
Chewing the Fat
Tasting Notes from
success fee varies not merely according (indulge me) “only” £1.819.38. a Greedy Life
to whether the litigation is successful, but Hence, the defender cannot recover her
JAY RAYNER
in proportion to how successful it is.” solicitors’ success fee from the pursuers. (GUARDIAN FABER PUBLISHING:
Cabot Financial (UK) v Weir [2021] CSIH To further embitter matters, she failed to £6.99; E-BOOK £2.19)
64 concerned the success fee element obtain sanction for the employment of her “Luxury is, of course, expensive. This volume, on
in the defender’s solicitors’ letter of senior counsel. the other hand, is... the price of a not very large
engagement, and whether an award of All in all, surely rather more of a drink. It’s also much more fun.”
expenses on an agent/client, client paying Cadmean than a Pyrrhic victory.
This month’s leisure selection is at bit.ly/3JHj66t
basis could include a success fee. The
The book review editor is David J Dickson
letter provided that, if the client should George Lawrence Allen, Edinburgh
BLOG OF THE MONTH www.lawscot.org.uk
“Where are all the men?” completing an anonymous survey seems to
The question is posed by Darren Kerr, be beyond many. But recalling recent tragic
careers and wellbeing manager at the circumstances, more of us men should at least
Society, as he reveals that only two men attend sessions to hear others’ experiences
(one not even a solicitor) responded to – and find a way to talk about our own.
a call to contribute to the International
Men’s Day mental health campaign. Even To find this blog, go to bit.ly/3EXbETJ
6 / January 2022
Hi ho, hi ho... WORLD WIDE WEIRD
The boom in homeworking since the pandemic company’s premises. Here the stairs were being 1
has brought with it much comment around used to start work, and the fateful journey was Faster food?
employers’ liability, workplace health and a “service in the interests of the employer”. McDonald’s has
safety and the like. “Work” has its limits all the same. The introduced exercise
But at what point does work activity previous month, the Italian Supreme Court bikes as seats
begin? A German federal appeals court for overturned two lower tribunals in ruling for diners at two
social security has allowed a claim by a man that a woman who engaged in the time- restaurants in
who slipped and broke his back while honoured national practice of leaving her China. Diners can
descending a spiral stair from his desk for an espresso with colleagues, and generate electricity
bedroom to his home office. His tripped in the street and broke her wrist as to charge their phones
employer’s insurance company she returned, was not acting in the context while trying a healthier way
refused the claim, but the court of her work – despite her claim that she was to eat fast food.
held that cover applied to the same “satisfying a physiological need connected bit.ly/3n11Z9Z
extent as to an incident on the with her work activities”. A bitter cup, indeed.
2
Hoist for a heist
A man has been charged with
stealing an 18metre footbridge
from a park in Akron, Ohio, paying a
trucking company for crane service.
Police searching under warrant
found parts of the structure.
ab.co/3JJHLdi
3
Political bruisers
PROFILE Two politicians in Brazil decided to
settle a dispute over a waterpark by
Antony McFadyen
having a fight in a Mixed Martial Arts
(MMA) boxing ring. It seems they
shook hands and hugged afterwards
– but did it settle anything?
Antony McFadyen, the Society’s acting head of Professional Practice, leads bit.ly/3FXWgbh
a team of solicitors offering support and advice on the Society’s rules and guidance
e Tell us about your career so far?
I began my career at Gallen & Co, Glasgow. I did
sheriff court work there for just over a decade,
before joining the Professional Practice team as
a senior solicitor in September 2018.
TECH OF THE MONTH
r What for you are the most
significant events for the
profession since you joined? Houzz
It feels like a bit of a cheat of an answer, but it Free: Apple store; Google play
has to be the pandemic. Its impact on how firms
If you’re planning to redecorate or
of all types offer legal services, how the courts
improve your home this year, you
have adapted, and on home/hybrid working ways of working were produced very quickly,
might find Houzz useful. It’s a free app
has been immense. I think the profession has greatly assisted by the Society’s committees.
that has a library
squeezed about 20 years’ worth of progress into These helped solicitors to give clients badly
of millions of
the last 20 months and its response has been needed assistance in extremely trying times.
photos, showing
fantastic. But for that, the reforms on the horizon
exteriors and
following the Legal Services Review would top u What’s your top tip interiors of
the list. for new lawyers? various styles.
Take every chance you get to learn from
And if you’re
t What are you most proud somebody more experienced who is willing to
planning to
of in your career? help you. Nobody likes having to admit they
do the work
It sounds slightly hackneyed, but I am proud don’t know the answer or how to do something,
yourself, you can
of the profession for coming through the last but there is a strength in recognising where you
ask the Houzz
couple of years in the way it has. I like to think can benefit from others’ experience.
community for
I helped in my own way via the Professional
advice.
Practice team’s work. The documents on new Go to bit.ly/3JHj66t for the full interview
January 2022 \ 7
PRESIDENT
Ken Dalling
With COVID-19 still prevalent as we begin another year, let us resolve
to be more aware of any need for support through the stresses it
brings, whether for ourselves or those around us
new year should bring thoughts Offering support
A
of optimism, a fresh start and The Law Society of Scotland has a number of resources
the opportunity to be better and available by way of Lawscot Wellbeing and LawCare.
do better. Regrettably, with the These are signposted on our website and I would urge
ongoing COVID-19 situation, you all to have a browse. An understanding of what support
it is likely that any optimistic is available may just make the difference in recognising that
sentiments are rather either you or someone you know would benefit from that
swallowed up in what seems to support. Only once the need for action is recognised can
be a recurring Groundhog Day action be taken.
of risks, fears and general unhappiness. Past President Amanda Millar, an accredited specialist
I have written here before of the pride which I have taken in the field of mental health law, with extensive experience
in the perseverance and fortitude of the profession and of interacting with people
the profession’s achievements throughout the pandemic who are at a low point
– and I don’t expect that to change – but I am well aware in their lives, shared with
that such achievements can come at a cost. As we approach Council in December
the second anniversary of the first lockdown, it remains the value of just talking.
important that each of us consider, for ourselves and for She told us that people
those around us, the extent to which we may need help or were often reluctant to
support in coping with the inevitable stress that COVID-19 involve themselves in
imposes on us all. Such stress only adds to that which the lives of even their
inevitably comes with the responsibilities on each of us closest friends for fear of
practising as a solicitor, whether in crime or family law, saying the wrong thing.
commerce or private client work, in-house or public sector. That is a mistake. There
So what can we do about that? Well, the serenity prayer is no “wrong thing” that
calls upon a higher power to let each of us accept the things can be said and, actually,
we cannot change, courage to change the things we can, just prompting the
and the wisdom to know the difference. So far as COVID-19 opportunity to listen
goes, the power to change does rest with individuals whose is all important.
positive engagement with safety measures should be Jerry Springer had a
of benefit to us all. Beyond that, and as a counter to the life as a serious politician
sometimes inevitable anger and madness brought on by before he became a chat
those feelings of risk, fear and unhappiness, we each need to show host. Whatever
be self aware and sympathetic to those with whom we work. prompted his catchphrase,
Self awareness and kindness to others may be an the sentiment expressed by it is of value. So, in the year ahead,
easy prescription to write but a more difficult one to have please “Take care of yourselves, and each other.”
dispensed. However, any difficulty in following good advice
doesn’t undermine the value of that advice. It is all too easy
to be self absorbed, but that is dangerous for each of us and Ken Dalling is President of the Law Society of Scotland –
risks us being blind to the troubles of others. President@lawscot.org.uk
8 / January 2022
Intimations for the People section should be
People on the move
sent to peter@connectcommunications.co.uk
To advertise here, contact
Elliot Whitehead on +44 7795 977708;
journalsales@connectcommunications.co.uk
ANDERSONBAIN LLP, Aberdeen
announces the appointment of
Laura Youngson, previously with
RAEBURN CHRISTIE CLARK &
WALLACE, as a new partner to the
firm, Katie Burns (previously with
McEWAN FRASER LEGAL) as a
senior solicitor, and Paul Flecher-
Herd as a solicitor.
BELL + CRAIG, Stirling and Falkirk
announces the retirement of its
director George H Craig with effect Neil Kennedy David McLaughlin Lee Qumsieh
from 31 October 2021. He will
continue to be associated with the
firm as a consultant.
D & J DUNLOP, Ayr announces
the retirement of George A Hay
as a partner with effect from
30 November 2021. He will
continue to be associated with
the firm as a consultant.
CULLEN KILSHAW, Galashiels,
announces the retirement of James McMackin Jo Clancy Gurjeet Singh
consultant Gavin Hamilton, with
effect from 31 October 2021, McCASH & HUNTER, Perth, MACNABS, Perth, Pitlochry and Michael Nicholson has been
after more than 40 years in legal announce the promotion of Susan Blairgowrie, has opened a new appointed chief executive of
practice, much of it with IAIN Scott to partner with effect from office at 40 Henderson Street, CELTIC FOOTBALL CLUB.
SMITH & PARTNERS. Cullen 1 January 2022. Bridge of Allan FK9 4HS (t: He was formerly Celtic’s
Kilshaw wishes Gavin a long and 01738 623432). The firm has also director of legal and football
healthy retirement. MACKINNONS, Aberdeen, Aboyne appointed as partner Rachael affairs and has been with
and Cults, has announced the MacDonald, an accredited the club since 2013.
Ian Forrester QC has returned following appointments and specialist in family law, who
to practice following his promotions. Pamela Bursill, joins from HARPER MACLEOD, PATERSON BELL LTD, Edinburgh,
appointment as the UK nominated formerly partner and latterly and promoted Sarah Mitchell to Kirkcaldy, Cupar and Methil,
Judge to the General Court of consultant at RAEBURN CLARK partner in the Private Client team. criminal defence and criminal
the European Union ending CHRISTIE & WALLACE in Aberdeen appeal specialists, announce three
due to Brexit. He has joined and Banchory, and Gregor Sim, MACROBERTS, Glasgow, promotions to associate: David
AMPERSAND ADVOCATES previously a partner with JAMES Edinburgh and Dundee, has McLaughlin and Lee Qumsieh
and expects to concentrate & GEORGE COLLIE in Aberdeen re-elected Neil Kennedy as in Tayside and Fife; and James
on advisory and arbitration and latterly a senior associate managing partner for a second McMackin in Edinburgh.
work, including appointment with BRODIES, join the Property four-year term, from 1 May 2022.
as an arbitrator. team as senior associates. Laura MacRoberts has appointed ROAD TRAFFIC ACCIDENT LAW
Totten, a one time property adviser Jonathan Gaskell, who joins (SCOTLAND) LLP, Edinburgh,
HARPER MACLEOD, Glasgow, at Mackinnons, returns to the from DWF, as a partner in its Glasgow, Aberdeen and Peebles,
Edinburgh, Inverness, Elgin and firm from SAVILLS, Aberdeen as Construction team, and Rod announces the appointment
Lerwick, has appointed Laura assistant property manager, while Hutchison, previously with of Jo Clancy, who joins from
Marie Meldrum as a business Jackie Cocker joins as a property LEDINGHAM CHALMERS, as a THORNTONS, as an associate
development associate with adviser, based in the Aboyne office, legal director in its Corporate working on cycling and pedestrian
its HM Connect support and from JAMES & GEORGE COLLIE. Finance team. injury claims, and the promotion to
development network. She joins Hollie Hutchison has been senior solicitor of Thomas Mitchell
from ANDERSON STRATHERN promoted to senior solicitor MORTON FRASER, Edinburgh and Zara Jones.
where she was a senior solicitor in Private Client, and Anna and Glasgow, has appointed
in the Employment Law team. Kaparaki and Rachael Bain as partners Chris McLeish, who Gurjeet Singh, of Glasgow, has
to senior solicitor in Dispute joins the Real Estate team from launched a new practice, SINGH
Gordon Lindhorst, advocate Resolution. Charlotte Arthur DWF, and Andrew Walker, who & CO SOLICITORS, specialising in
has rejoined WESTWATER becomes a senior accredited joins the Corporate team from employment law and immigration
ADVOCATES. From 2016 to paralegal in Private Client, and ADDLESHAW GODDARD, and (t: 07541 950585;
2021 he was an MSP for the Susan Fulton a paralegal in promoted Jack Kerr to partner e: info@singhandcosolicitors;
Lothian region. Property/Private Client. in the Private Client team. w: singhandcosolicitors.com).
January 2022 \ 9
I N A S S O C I AT I O N W I T H
Made in Scotland Engineering legal technology for the better
Over the last 300 years, Scottish scientists, engineers, and do that too, but we genuinely believe that human interaction is
technology innovators have made discoveries and inventions that the key to our success. Law firms want to talk, to make sure this
have changed our very relationship with the world around us. kind of software works for them, and we guarantee we’ll listen and
Winston Churchill once said: “Of all the small nations of this work with them to ensure it always does.
earth, perhaps only the ancient Greeks surpass the Scots in their
contribution to mankind.” Proud to be part
That’s an incredible accolade, but earned. As a small example Scotland is at the forefront of a future which will be forged in a
of Scottish innovation, today, we take it for granted that surgery digital world. It’s a world in which data and digital technologies
will be quick and pain-free, that mechanics and robotics can are transforming every element of our working and personal
support the human body and that the water from our taps will lives. Here at Denovo, we feel incredibly proud to be part of
be safe to clean and cook with. Yep, there’s a Scot behind all of an industry that understands the importance of technological
those world-changing innovations. advancement in a modern society.
From the simple processes of everyday life to the cutting At Denovo, we also understand that it still needs that human
edge of 21st century medicine and modern tech companies connection to work, and we do that very well.
like Rockstar North (think Grand Theft Auto) and, if we may be
so bold, ourselves – Scotland remains at the heart of scientific If you want to have a chat with a bunch of passionate Scots
and technological innovation. Think about it: who was the chief about helping you make your business even better, call us
engineer tasked with powering the Starship Enterprise to split the on 0141 331 5290. If you prefer to write to us our email is
infinitive and “to boldly go”? info@denovobi.com
We Scots definitely “give it all we’ve got… (Captain)!”. And if you’re even just a wee bit curious
then visit our website: www.denovobi.com
Denovo: our passion
OK, so we haven’t been around for as long as the Starship
Enterprise, but over the last 30 years, our team of Scottish
software developers, legal case management specialists,
legal accountants, cashiers, and legal technology experts at
Denovo Business Intelligence have been engineering and
innovating software for the legal profession, and we believe
even James T Kirk would approve.
More recently, we have been working intensively to create
a software platform that does four simple jobs:
1. Is customisable to all Scottish work types
2. Is 100% accounts compliant
3. Is developed in Scotland for Scottish law firms
4. Make lawyers’ lives a hell of a lot easier.
Those have been the goals since day one. That’s our
passion. Hearing that what we have created is actually
helping make a difference in the Scottish legal community
is the biggest compliment we could ever receive.
People make Scotland
Open, friendly, and helpful is how we Scots like to see ourselves,
and it’s built into our ethos here at Denovo. Indeed, this seems
to be one of the main reasons that law firms are drawn to work
with us – we’re just nice, normal folk, who know their stuff and
who really want to help. Our software is incredibly impressive, of
course, but the compliment we get more than any other is how
fantastic and supportive our team are. You see, on top of their tech
skills, Denovo people innovate, listen, support, guide and advise.
Some legal tech companies make much of features like digital
resources, online academies and virtual content. To be honest we
10 / January 2022SENTENCING
Youthful excess:
as eloquent of the behaviour of young
adults dear to us, or dare I say, of our
younger self! Research also explains why
this behaviour, which can contribute to
what price?
criminality, tails off in the mid-20s.
All of this is, of course, directly relevant
to sentencing. It means a young person
lacking maturity will generally have a
Coming into force this month, the new guideline on sentencing lower level of culpability than an older
young people provoked conflicting views during consultation. person for a similar offence.
Krista Johnston, who took part in its development, explains the
thinking and attempts to answer the critics Not children
Without citing any research calling into
question the evidence drawn on by the
Council, some who disagreed with this
did so on the basis of assumptions such
he Scottish Sentencing 25 years, I joined the Council as its as that the Council was suggesting under
T
Council’s new guideline solicitor member in 2018 and was 25s should be treated as children, or that
on sentencing young appointed to the committee leading they do not know right from wrong.
people, its highest on the guideline’s development It is important in this specific context
profile guideline to shortly thereafter. Naturally, I have an to emphasise that neither the research
date, comes into effect interest in how the guideline has been nor the guideline states that all under
on 26 January. Following extensive received and I am keen to address 25s necessarily have immature brains.
research and engagement, the guideline any misunderstandings around it. The That is why the guideline requires an
was submitted to the High Court and was Council’s consultation report does this in assessment of the individual’s maturity
approved on 9 November 2021. This depth, so I will focus here only on a few when under 25, taking into account,
marked what Lady Dorrian, Lord Justice of the key objections that surfaced. among other things, the impact of any
Clerk and chair of the Council, called a trauma or adverse childhood experiences.
“significant milestone which will help to Why 25? It also needs to be stressed that the
increase understanding and awareness Let’s start with the decision to define a research does not suggest that under
of this complex and challenging area”. young person for the purposes of the 25s do not know right from wrong, but
There certainly appears to be a need guideline as someone under 25. While rather that they may have more difficulty
for this. An independent analysis of organisations overwhelmingly agreed acting appropriately or controlling their
responses to a public consultation on the with this proposal, a significant majority emotions and impulses despite knowing
draft guideline revealed overwhelming of the individuals responding to the that what they are doing may be wrong
support from organisations with consultation did not. or have negative consequences.
experience of the criminal justice system; As any experienced defence lawyer Another common dissenting argument
but it also showed that many individuals will tell you, and studies have shown, was that young people can vote, marry,
disagreed with aspects of the guideline many young people begin to desist join the armed forces or learn to drive at
and appeared to lack understanding of from offending by their mid-20s. earlier ages so the guideline should align
the law surrounding young offenders A comprehensive review of the latest with these. But reaching full maturity is
and the factors relevant when neurological, neuropsychological, and a process, not an event, and it does not
sentencing them. psychological evidence on cognitive arrive on a particular birthday.
This may not come as any great maturity – which provided the evidential The decision on the age threshold
surprise to those who work within the basis for the guideline’s definition of a aligns with developments elsewhere.
system. Criminal justice has always young person – explains why. For example: the new youth justice
provoked a great deal of interest from It found that the brain does not vision and priorities prepared by the
those outwith the profession, many of fully develop until at least 25, and that Scottish Government and the Youth
whom hold strong opinions on how we cognitive development can be delayed Justice Improvement Board proposes to
should be tackling crime and improving or hindered by experiences of trauma extend the Whole System Approach to
the protection of the public. Defence and adversity in childhood. In particular, those up to age 26 where possible and
solicitors will have had to defend their the areas of the brain governing emotion appropriate; the Probation Service in
vocation a hundred times. Now there develop before those which assist with England & Wales assesses the maturity
is a new matter to justify: “Why should self-control. This imbalance explains of offenders up to age 25 in pre-sentence
the criminal justice system treat under the risk-taking, emotionally-driven reports; and the Irish Government has
25s differently?” behaviour commonly attributed to young announced that it will look at increasing
As a defence lawyer for more than people. We might even recognise that the age limit for its youth diversion
scheme from 18 to 24.
Krista Johnston
is a solicitor
Selecting the disposal
“In recognition that a young person might be advocate, a
director of Martin Two further themes emerged during
in need of a more interventionist approach Johnston & Socha,
and a member of
consultation: first, how the guideline
[the guideline] allows for a more challenging the Scottish
Sentencing
should address victims’ issues; and
secondly, the role of community-based
community sentence for a young person” Council options as opposed to custody.
12 / January 2022more effective than a short period of
custody, especially when such an order
can effect lasting change and successful
rehabilitation of a young person.
And in respect of one of the guideline’s
key themes – rehabilitation, which it
states should be a primary consideration
– the consultation results were similar to
the findings of a nationally representative
study carried out on the Council’s
behalf by Ipsos MORI. This revealed
that a majority of the public believe that
rehabilitation is the single most important
thing Scottish courts should be trying to
achieve when sentencing young people.
Further work
As well as the final guideline receiving
the High Court’s approval in November
last year, it has been gratifying to note it
has met with a largely positive reaction.
The work does not end there, however.
The complexities involved in sentencing
young people are not, generally speaking,
well understood by those outwith the
criminal justice system. The guideline
will play a part in addressing this, but
it will not be enough in and of itself,
and the Council will be undertaking
specific educational activity in the days
and weeks ahead in furtherance of
its statutory duty to increase public
awareness and understanding of
sentencing. The profession can help
spread the word, too.
We all have an interest in increasing
public confidence in sentencing, and this
is especially important as the Council
In respect of the first issue, the Council As the Council has noted elsewhere, enters a new phase of its work, where
takes the impact of crime on victims community payback orders can impose its focus will be on offence guidelines
very seriously and carried out direct severe restrictions on offenders, and involving a number of matters of
engagement with victims’ and survivors’ can last months or years. They can significant public concern. These include
organisations during the consultation. include elements of punishment, such guidelines on death by driving, rape,
Based on these discussions, and its as deprivation of liberty or unpaid work, sexual assault, indecent images of
consideration of consultation responses, and rehabilitation, such as programmes children, and domestic abuse offences.
the Council amended the guideline. to help stop further offending behaviour. These are also offences in which children
This was to make it clearer that the And confronting and moving away from or young people can, sadly, be involved:
assessment of seriousness – which the causes of one’s offending behaviour either as perpetrator or victim or as
requires the evaluation of the level of can sometimes be one of the hardest witnesses. It is therefore imperative that
culpability and harm – includes the things for any offender to do. the development of these guidelines is
impact on any victim or victims; and, Practitioners know that community informed by research and engagement
critically, that the guideline does not sentences can be anything but a “soft involving children and young people and
affect the assessment of harm. That is option”. It is also worth bearing in mind those who work with and represent them.
to say, although lack of maturity affects that while the guideline states that a I look forward to hearing practitioners
culpability, it does not have any bearing period of custody should usually be regularly refer to the guideline in court.
on the consideration of the impact on shorter for a younger person than an Those of us already familiar with it will
the victim. older person, in recognition that a young note that the guideline refers to young
With regard to community sentences, person might be in need of a more people having a greater capacity for
the Council recognises that these interventionist approach it allows for a change and rehabilitation than older
can provide an effective – and more challenging community sentence people. So too is there a capacity for
challenging – sentencing option. for a young person than might otherwise change in people’s attitudes to sentencing
Indeed, research suggests community- be selected. and to how we treat young people who
based sentences are more successful It can be a hard sell to the public, but offend. The efficacy of the guideline
in reducing reoffending than short in terms of their longer term protection, depends upon us all helping to achieve
custodial sentences. a community sentence must surely be that goal.
January 2022 \ 13SENTENCING
A trauma-informed guideline
Trauma specialist psychotherapist Kirsty Giles, introduced by criminal defence
lawyer Iain Smith, writes on how the new sentencing guideline should support
trauma-informed practice, which both are campaigning to promote
Iain Smith (of Keegan Smith) writes: this link: bit.ly/3Jijj2j to find out the revolving door of prison,
have had the pleasure of that the answer is, everything. and supporting people with
I
knowing Kirsty Giles, an Now that we know about substance misuse difficulties
integrated psychotherapist the incredibly detrimental which are only exacerbated
who specialises in trauma, for impact adverse childhood in the prison setting.
a few years now. Over the past experiences can have on Our small but mighty
12 months, she has joined a young person’s life group, Trauma Aware Law,
forces with some lawyers including myself, trajectory, what do we do seek to help you in your
Melissa Rutherford, Tony Bone and Nadine with this knowledge? curiosity. We can provide
Martin, as well as colleagues James Docherty, We turn it into practice. Kirsty Giles
training and awareness sessions
project lead at the Violence Reduction Unit, Understanding the biology and on trauma-responsive practice: the
BAFTA winning filmmaker Stephen Bennett, and science of toxic stress and how it affects “how to” of learning.
educator Douglas Clark to form the Trauma the developing brain is an excellent start, but We are all on the same page here; we
Aware Law Group. what does this mean in a courtroom? What does want safer streets and a safer country for our
Together we decided to ensure that trauma- it mean for the criminal justice system? How do children and families and we also want to help
informed practice was embedded with law we use it to influence and guide us when our job people to heal.
students to promote an early understanding is to make Scotland safer? If we have learned anything from the ACEs
and create a more compassionate and We’ve heard of “presiding with kindness”, but study and the incredible movement across
understanding legal system in the future. To that what does that actually mean? Kindness and Scotland to understand this information and
end we spoke to every law school in Scotland, criminal justice in the same sentence is a fairly how it impacts on people’s lives, I’d like us to
with a huge turnout and a positive response. new concept. As a children and young person remember this:
Some universities have now added trauma psychotherapist, these words are easy to say, Hurt people hurt people, but healed people
awareness to their curriculum. The group have and the science is relatively easy to understand, heal people. For every individual we keep out of
also delivered the Law Society of Scotland’s but putting it into practice is where the work prison and help to rehabilitate and recover, we
inaugural Trauma Accredited Law course, with truly begins. know that healed person can go on to heal other
plans to expand the course in 2022. We all have a responsibility to become people. We call it “lived experience”, but what we
The highlight of 2021 took place in November, curious about trauma-informed practice. really mean is “hope”.
when the High Court approved the Scottish Please seek out this new knowledge and If judges and lawyers understand the
Sentencing Council Guidelines on Young People, way of working in order to make Scotland importance of trauma, the new guideline
which the Trauma Aware Law Group hope will safer by reducing reoffending rates, stopping is sure to be a success.
create a system change and a smarter approach
to understanding and addressing traumatised
folk who float into the justice system. The group,
in association with the Law Society of Scotland,
are providing a free talk on 20 January 2022
(see the Society’s CPD page) on why all lawyers
and judges need to gain knowledge of trauma
and, more importantly, how we all respond.
The new guidelines oblige lawyers and judges
to see properly who is before the court, and
prioritise repair and rehabilitation ahead of
retribution and punishment.
Traumatised folk can’t be punished out
of their pain or addiction, but they can be
helped and healed.
Kirsty Giles writes:
The science is clear and the evidence is
unavoidable. Adverse childhood experiences
(ACEs) are the strongest predictor for an
individual to become involved in crime, as a
victim, as a perpetrator, or often both. What have
ACEs got to do with justice? Read the paper at
14 / January 2022Spoofing & hacking -
how secure is your
email account?
These days we are all aware of the potential
dangers of fraud when it comes to our emails.
So, what are the main issues that you might
face when dealing with malicious email?
IN ASSOCIATION WITH LAWWARE
For the purposes of this article, I will be focusing specifically useful information such as bank details and
on email through Microsoft Office 365 as this is the mail details of transactions you are conducting for
platform we resell to clients, and which is fast becoming the clients.
most popular email service for businesses. Let’s define a
couple of terms and then look at what can be done to They may then contact the client asking for
mitigate some of the risks to your firm. funds to be transferred. The client, seeing
that the email came from their solicitor, could
Spoofing. then make payment to the bank account that
Spoofing occurs when you, or a third party, receives an the scammer provided to them.
email that at first glance looks to have come from your
account. In fact, it has not. Your account has not been Prevention.
hacked or compromised. Fortunately, there is a solution available to all
Office 365 customers that can help prevent
The sender has made it appear that the email was sent by this situation – Multi Factor Authentication.
you. Closer examination reveals that the sending address
was something completely different. Typically, a Gmail or Multi Factor Authentication (MFA) provides
other free account that scammers use. an additional layer of security for your Office
365 account by requiring not only your email
While a message like this will not pass detailed inspection, address and password but also a second
it may be enough to trick people into thinking that it came authentication step.
from yourself or someone else at your firm.
This can be either a code sent via text
While not as serious as a full email breach, this is a message or through an app installed on your
common method employed by scammers which most of us mobile device.
have encountered at some point.
When you sign into Office 365, you will be
Solution: DKIM Technology. prompted for this second stage verification.
This is where a technology called DKIM (Domain Keys
Identified Mail) can come in. With this feature enabled on While a hacker may have access to your
your Office 365 account, all outgoing messages will be email address and password, unless they
digitally signed with an invisible key unique to your firm. also have your mobile phone, they will not be
When a mail server receives a message, it will check this able to gain access to your account.
key and verify that it really came from your firm.
The good news.
If this check fails, the message is not delivered to the If you have Office 365 email administered by
recipient. LawWare, then both DKIM and Multi Factor
Authentication are available to you. Please
Hacking. contact me to find out more.
This kind of attack worries people the most and is Colin Ferguson.
potentially the most damaging to your firm. It means that 0345 2020 578 or
someone has illegally gained access to your email account innovate@lawware.co.uk.
and can access your contacts list, and emails you have
both sent and received. Scammers may monitor your
account for some time, reading messages and gatheringINTERVIEW
Thriving in a pandemic
A new start in 2013; Law Firm of the Year in 2021. Peter Nicholson met the founders
of Jones Whyte to find out what lies behind the firm’s growth and success
ight years old, and the winner in the same Rapidly expanding businesses sometimes overreach
E
year of “best firm” trophies from both the themselves financially. How has Jones Whyte kept a proper
main legal awards for the Scottish profession. handle on this? “We recruited an extremely skilful operations
Jones Whyte must be doing something right, and performance director a couple of years ago,” Whyte
even if its founding partners play down having replies. “He’s an MBA graduate and actually an engineer by
had any great vision when they set out. trade; he previously worked at Rolls-Royce and in the Middle
Certainly neither Ross Jones nor Greg Whyte would have East. Prior to this our own financial insight was fairly novice.
predicted even just a few years ago that they would now be We’re now far more sophisticated in that regard.”
heading a firm of more than 200 staff – a figure reached when “Pat on the back to Greg for hiring him,” Jones adds.
in April 2021 they were selected to take on the client files of “Lawyers are not always good at that kind of stuff and if that’s
Glasgow practice W W & J McClure, then in administration. not your strength, get someone in to do it.”
But their story has been one of seizing opportunities that Even so, taking on McClure’s work, doubling the firm in size
have arisen. It transpires that they didn’t even know each other once more, was a pretty massive step. How did it come about?
all that well before they teamed up. As Jones relates it, they “We were advised of the opportunity by another lawyer we
met playing five-a-side football, lost touch for a year or so are friendly with,” Whyte explains, “and we had previously
while Whyte did a scholarship, then bumped into each other referred some work to McClure, so it was a relatively warm
at the gym, discovered in a two-minute conversation that both introduction. Ultimately it was down to the former directors
were thinking of working for themselves, had coffee together, and the administrator to pick who they thought would be the
“and within about five minutes we’d agreed we would pack our best fit to hold these files and offer services to the clients.
jobs in and go it alone”. We made a presentation, as did other firms, and they chose us.
So any initial mission statement was just a back of the envelope No more sophisticated than that.”
job? “I don’t think it was even as good as that,” Jones admits. For Jones Whyte it brought in new practice areas,
“I think we were both kind of at a natural crossroads, a including a huge step-up of its private client interest. “We did
situation that a lot of lawyers a few years qualified will relate a small amount before, and now it has become one of our
to,” Whyte joins in. “Both of us had an idea that we would major practice areas. That was obviously a huge challenge,
like to have a go at doing things ourselves. Around 2013 it especially in the period immediately post-acquisition, but we’re
wasn’t quite the usual path; I think having mutual support and happy to say that we have restructured; we are now able to
someone to bounce ideas and suggestions off, and tell you give any former client of McClure who calls us a clear path as
when you were being daft, was very useful.” to what we can do for them, and hopefully an assurance that
With commercial lawyer Jones launching with civil litigator their file is in safe hands.”
Whyte, “there was a synergy in being able to do more than The takeover did create a client relations issue, in that
one thing. And it worked quite well for us. You can have the many McClure clients had signed up and paid for a trust
best plans in the world but ultimately it comes down to what administration service, and found it hard to understand
business is coming through the door. Fortunately, that aspect that Jones Whyte had taken over the client files but not
went relatively smoothly”. the business itself. Hence a lot of “firefighting” dealing with
complaints – some of which made it to the press – when
Growth curve clients were advised that they would be charged for further
Within a year, two people had become four, and the growth work. In fact the sheer number of cases meant that the
has continued exponentially. As Jones puts it, “We’re probably firm was initially advising some clients to consult other
the biggest wee firm in Scotland just now.” That is, still “a law solicitors – as all were free to anyway – though following
firm for the person in the street. We don’t have any aspirations the restructure it is now able to deal with all queries directly.
to practise corporate law or anything like that – what your “Understandably, some clients were confused and couldn’t
ordinary person wants legally, we want to do every piece of understand that the law firm they had previously instructed
that, whether it’s injury claims, power of attorney, buying a didn’t now exist. Some had paid that firm for legal services
house, leasing a shop, anything. That’s our customer”. that now couldn’t be fulfilled. It was difficult to convey the
Whyte comments: “I think we are for all intents and message that while what had happened was unfortunate, it
purposes still a high street firm, albeit one with over 200 wasn’t anything to do with us and that we are here to offer to
people. We now cover most areas of law, and if we don’t we help pick up the pieces,” Whyte observes.
have close partners that we can refer business reciprocally to
and from. We don’t spend much time trying to define ourselves Standing out
but we’re quite happy just now trying to consolidate our Autumn 2021 saw Jones Whyte named Law Firm of the Year at
position and improve our client offering after what has been the Scottish Legal Awards; and Law Firm of the Year, Scottish
a very hectic year.” Independents, at The Herald Law Awards of Scotland. What
16 / January 2022You can also read
