Skull wrote:
The short game: CRT, accepts all legal costs up to the present date and brakes off engagement.
The long game: CRT, accepts crippling legal costs over a protracted period and then, breaks off engagement.
There's no other game in town boys . . . .
I might not understand the law like Alastair Kinroy QC, but I do understand strategy and tactical manoeuvre.
http://www.ampersandstable.com/ampersand/Who_9_viewNow it's our turn to drive home our advantage . . . .
I don't know anything about this case or the allegations can someone enlighten me as to what is being alleged?
I found three cases involving Mr Kinroy all of which he was on the losing side. Rather a long post.
__________________________
BELHAVEN BREWERY COMPANY LTD V ASSESSOR FOR HIGHLAND AND WESTERN ISLES
[2008] CSIH 3
COURT OF SESSION (LAND VALUATION APPEAL COURT)
LORD JUSTICE CLERK, LORD CLARKE AND LORD HODGE
15 JANUARY 2008
Licensed premises – Public house – Rateable valuation – Role of the surveyor – Valuation and Rating (Scotland) Act 1956
Belhaven Brewery Company Ltd (the company) opened a public house in Inverness called Bar Pivo on 14 March 2003. The premises had previously been a bank. The assessor entered the premises in the roll from that date with a net annual value (NAV) of £32,000. That value applied for the period 14 March 2003 to 31 March 2005. The company appealed that assessment on the basis of an expected downturn but withdrew its appeal when the downturn did not occur.
The 2005 revaluation took effect on 1 April 2005. The tone date for revaluation was 1 April 2003. In the 2005 revaluation public houses were valued in accordance with the scheme of the Scottish Assessors' Association for licensed premises. That scheme introduced the concept of the fair maintainable turnover in the calculation of NAV (see Suburban Taverns (Glasgow) Ltd v Assessor for Glasgow).1 Since the premises opened only about 2 weeks before the tone date the assessor based his valuation on turnover figures for the 46-week period from 7 March 2003 to 24 January 2004. It brought out an NAV of £41,000. He carried out a check calculation based on the years to 31 March 2004 and 31 March 2005. That brought out an NAV of £40,000. He entered the premises on the roll at a NAV of £41,000. The company appealed contending that the turnover figures were not sustainable.
The company's valuer, Mr Peter Henry RCIS, based his valuation on the turnover figures for the year ended 31 March 2006. The application of the scheme to those figures brought out an NAV of £32,500. The Valuation Appeal Committee rejected the use of the 2005–2006 figures, but having regard to the valuer's check calculation it allowed the appeal to the extent of substituting an NAV of £40,000. The company appealed by case stated and its valuer required the committee to state a case, tabling six grounds of appeal. The solicitors for the company lodged the stated case but neglected to serve copies on the assessor. When the assessor heard by chance that the appeal had been lodged the solicitors for the company told him that after discussions with the valuer the appeal would proceed. At the outset of the hearing counsel for the company moved for leave to abandon the appeal.
He told the court that the grounds of appeal had been drafted by Mr Henry and that no advice on the grounds had been sought until shortly before the hearing when counsel had advised that the appeal should be abandoned. Mr Henry then accepted that the appeal was unstateable. Counsel apologised to the court and the assessor on behalf of Mr Henry. He gave an undertaking that 'Mr Henry would never again take an appeal to the court without taking legal advice at the earliest opportunity'. He accepted that Mr Henry should be found personally liable to the assessor in expenses on a solicitor and client base.
•
1 [2008] CSIH 5, [2008] LLR 414, Ct Sess (LV).
[b]Held – giving leave to abandon the appeal –
(1) A person who is not legally qualified may be allowed to conduct an appeal before a local Valuation Appeal Committee. This is a useful provision. It can be helpful to a committee if an appeal is presented by a competent rating surveyor; but problems can arise where an appeal is conducted by a representative who lacks a proper understanding of valuation law and practice and who does not take legal advice.
(2) In recent years Mr Henry has persistently abused the privilege of conducting appeals before committees. The court had had occasion to comment on his conduct towards assessors, committees and secretaries to committees, on his perverse challenges to revaluation schemes that have generally been accepted by responsible rating surveyors. Mr Henry had also caused problems for the court. He had taken numerous appeals against decisions of committees on mostly irrelevant grounds. Mr Henry had been warned in previous hearings that the court might award expenses against the appellant's representative personally.
(3) Mr Henry's conduct in this and other cases had constituted an abuse of process. His undertaking would spare the court the waste of administrative and judicial time and resources. It was an undertaking in foro. If Mr Henry were to breach it he would be in contempt of court.
(4) Mr Henry's undertaking would not affect the waste of time of assessors, committee members and clerks that is caused by the hopeless appeals that he takes to local committees and the pointless cases he requires them to state. The assessor has a duty to defend his assessment if satisfied that it is sound. If he were not to do so he would be in breach of his duty of fairness to other ratepayers. Appeals committees and their clerks are reminded that reg 13(2) of the Valuation Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 provides that if in any particular case the committee is satisfied that there are good and sufficient reasons for doing so it may refuse to permit a person to represent a party at the hearing.
Statutory provisions considered
Lands Valuation (Scotland) Act 1854:s 13
Valuation and Rating (Scotland) Act 1956
Act of Sederunt (Valuation Appeal Rules Amendment) 1982 (SI 1982/1506):r 10
Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI 1995/572):reg 13(1)
Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI 1995/572):reg 13(2)
Lands Valuation (Scotland) Act 1854, s 13
Valuation and Rating (Scotland) Act 1956
Act of Sederunt (Valuation Appeal Rules Amendment) 1982 (SI 1982/1506), r 10
Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI 1995/572), reg 13(1), (2)
Cases referred to in judgment
Belhaven Brewery Group plc v Assessor for Glasgow City Council 2003 SC 395, [2003] RA 98, Ct Sess (LV)
Graham v Robert Younger Ltd 1955 SC 28
Noble v Assessor for Grampian Valuation Joint Board 2004 SC 383, Appl Ct (LV)
North British Trust Hotels Ltd v Assessor for Highland and Western Isles 2005 SLT 419, Appl Ct (LV)
Sinclair v Lothian Regional Assessor [2003] RA 202, Ct Sess (LV)
Suburban Taverns (Glasgow) Ltd v Assessor for Glasgow [2008] CSIH 5, [2008] LLR 414, Ct Sess (LV)
[b]Alastair Kinroy QC for the appellant
J Raymond Doherty QC for the respondent
Cur adv vult
CLERK LJ:
[1] This appeal relates to a public house called the Bar Pivo at 38–40 Academy Street, Inverness. The subjects were previously a bank. The appellant opened them as a public house on 14 March 2003. The assessor entered them in the Roll with effect from that date at a net annual value (NAV) of £32,000. That value applied for the period 14 March 2003 to 31 March 2005. The appellant appealed against the assessment on the ground of a material change of circumstances on the basis of an expected downturn in trade; but withdrew the appeal when the downturn did not occur.
[2] The 2005 revaluation took effect on 1 April 2005. The tone date for the revaluation was 1 April 2003. In the 2005 revaluation public houses were valued in accordance with the scheme of the Scottish Assessors' Association for licensed premises (the 2005 scheme). This scheme introduced the concept of the fair maintainable turnover in the calculation of NAV (cf Suburban Taverns (Glasgow) Ltd v Assessor for Glasgow [2008] CSIH 5, [2008] LLR 414). Since the premises opened only about 2 weeks before the tone date, the assessor based his valuation on turnover figures for the 46-week period from 7 March 2003 to 24 January 2004. It brought out a NAV of £41,000. He carried out a check calculation based on the average of the turnovers in the years to 31 March 2004 and 31 March 2005. That brought out a NAV of £40,000. He entered the subjects in the Roll at a NAV of £41,000. The appellant appealed against the entry.
[3] Before the committee, the appellant's representative, Mr Peter Henry FRICS, submitted that the turnover figures on which the assessor based his valuation were not sustainable (cf Suburban Taverns (Glasgow) Ltd, above). He based his valuation on the turnover figures for the year to 31 March 2006, that is to say the first year of turnover after the revaluation came into force and the third year after the tone date. The application of the 2005 scheme to these figures brought out a NAV of £35,200.
[4] The committee rejected Mr Henry's use of the 2005–2006 figures; but, having regard to the assessor's check valuation and an alternative calculation based on the indexing of the figures for the first year's trading, it allowed the appeal to the extent of substituting a NAV of £40,000.
[5] Mr Henry required the committee to state a case. He tabled six grounds of appeal. In May 2007 the solicitors for the appellant lodged the stated case. They neglected to serve copies of the stated case on the assessor (cf Act of Sederunt (Valuation Appeal Rules Amendment) 1982, r 10). When the assessor heard by chance that the appeal had been lodged, the solicitors for the appellant told him by email dated 26 October 2007 that, after discussions with Mr Henry, it had been decided that the appeal would proceed. On 11 November 2007 Mr Henry confirmed this to the assessor.
The abandonment of the appeal
[6] At the outset of the hearing on 12 December 2007, counsel for the appellant moved for leave to abandon the appeal. In doing so he offered an undertaking on behalf of Mr Henry to which I shall refer. His motion was not opposed by counsel for the assessor.
[7] Counsel told us that the grounds of appeal were drafted by Mr Henry. No advice on the grounds of appeal had been sought until shortly before the hearing. On 7 December 2007 counsel advised that the appeal should be abandoned. On 10 December he amplified that advice. Mr Henry then accepted that the appeal was unstateable.
[8] Counsel for the appellant apologised to the court and to the assessor on behalf of Mr Henry. He said that Mr Henry accepted that he had made a serious mistake.
The background
[9] A person who is not legally qualified may be allowed to conduct an appeal before a local valuation appeal committee (Valuation Appeal
Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995, reg 13(1)). This is a useful provision. It can be helpful to a committee if an appeal is presented by a competent rating surveyor; but problems can arise where an appeal is conducted by a representative who lacks a proper understanding of valuation law and practice and who does not take legal advice. In recent years Mr Henry has persistently abused the privilege of conducting appeals before committees. We have had occasion to comment on his conduct towards assessors, committees, and secretaries to committees, and on his perverse challenges to revaluation schemes that have been generally accepted by responsible rating surveyors (cf Belhaven Brewery Group plc v Assessor for Glasgow City Council 2003 SC 395, at para [16]; Sinclair v Lothian Regional Assessor [2003] RA 202; Noble v Assessor for Grampian Valuation Joint Board 2004 SC 383; North British Trust Hotels Ltd v Assessor for Highland and Western Isles 2005 SLT 419).
[10] Mr Henry has also caused problems for this court. He has taken numerous appeals against decisions of committees on mostly irrelevant grounds. At this sitting we have heard two appeals in which counsel was prepared to argue only two of nine grounds tabled by Mr Henry, neither of which had any merit [Suburban Taverns (Glasgow) Ltd v Assessor for Glasgow [2008] CSIH 5, [2008] LLR 414, and this case].
[11] In Noble v Assessor for Grampian Valuation Joint Board 2004 SC 383 we found the appellants liable to the assessor in the expenses of a number of hopeless appeals that Mr Henry ought not to have brought. We did so on an undertaking by Mr Henry that he would meet those expenses himself.
[12] In North British Trust Hotels Ltd v Assessor for Highland and Western Isles 2005 SLT 419 several hopeless appeals were abandoned on the morning of the hearing. Mr Henry had taken the appeals without legal advice and had sought counsel's advice only a few days before the hearing. We awarded expenses to the assessor against the appellants, but one of our number gave notice of the possibility that in a similar situation the court might award expenses against the appellant's representative personally (at para [13]).
[13] We hoped that our decision in North British Trust Hotels Ltd (above) would ensure that there would be no repetition of such conduct. Now it has happened again.
The undertaking offered by Mr Henry
[14] Counsel for the appellant gave an undertaking that 'Mr Henry would never again take an appeal to this court without taking legal advice at the earliest opportunity'. He accepted that Mr Henry should be found personally liable to the assessor in expenses on a solicitor and client basis.
Conclusions
[15] Mr Henry's conduct in this and other cases has constituted an abuse of process. His undertaking will spare this court the waste of administrative and judicial time and resources that occurs in situations like this. It is an undertaking in foro. If Mr Henry were to be in breach of it, he would be in contempt of court (Graham v Robert Younger Ltd 1955 SC 28). I would add that in any case in which a rating surveyor may instruct solicitors to lodge an appeal to this court, those solicitors are not relieved of their own duty to consider whether the appeal may properly be brought.
[16] But Mr Henry's undertaking will not affect the waste of the time of assessors, committee members and clerks that is caused by the hopeless appeals that he takes to local committees and the pointless cases that he requires them to state. It may be that he hopes that in such cases assessors will concede reductions in NAV for the sake of peace. If so, that is a futile strategy. When a hopeless appeal is taken to a committee, the assessor does not have the option that would be available to a private litigant of compromising to save time, trouble and expense. If the assessor is satisfied that his valuation is sound, it is his duty to defend it. If he were not to do so, or were to compromise the case for the sake of peace, he would be in breach of his duty of fairness to other ratepayers (Lands Valuation (Scotland) Act 1854 (the 1854 Act), s 13).
[17] Appeals to local committees involve assessors and committees in considerable trouble and expense. The process of drafting a stated case and dealing with the tiresome revisals that Mr Henry usually proposes adds unreasonably to the burdens of the clerk. I remind committees and their clerks that reg 13(2) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 provides that if in any particular case the committee is satisfied that there are good and sufficient reasons for doing so, it may refuse to permit a person to assist or represent a party at the hearing.
[18] Since the abolition of domestic rating, most appeals to committees are taken by commercial organisations on the advice of professional valuers. There is no sanction if such appeals are taken irresponsibly. Under s 13 of the 1854 Act, a local committee has the power to award expenses where a complaint by a ratepayer has been made without reasonable or probable cause. It is unfortunate, in my view, that committees do not have the same power in relation to appeals.
Disposal
[19] I propose to your Lordships that we should grant leave to the appellant to abandon the appeal and find Mr Henry personally liable to the assessor in the expenses of the appeal on an agent and client basis.
LORD CLARKE:
[20] I agree with your Lordship in the chair as to how this appeal should be disposed of and there is nothing I wish to add.
LORD HODGE:
[21] I have read and agree with the opinion of your Lordship in the chair. I agree that the appeal should be refused. Having regard to what this court said in North British Trust Hotels Ltd v Assessor for Highland and Western Isles 2005 SLT 419 it is very unfortunate that Mr Henry has until now insisted in this unstateable appeal. The undertaking which counsel has proffered and the award of expenses against Mr Henry personally are the proper means of disposing of the appeal and addressing the problem which it has exposed.
Leave to abandon the appeal granted. Mr Peter Henry FRIC to be personally liable to the assessor in the expenses of the appeal an on agent and client basis.
Solicitors: Simpson & Marwick for the appellant
Drummond Miller for the respondent
KERRY BARKER
Barrister
_________________________
City of Aberdeen District Council and another v Secretary of State for Scotland and another
COURT OF SESSION: INNER HOUSE
Lords Allanbridge, Cowie and Wylie
June 28 1991
Material considerations — Matter dealt with under other legislation — Whether capable of being material consideration — Application for planning permission for hot food retail shop — Possible problem of dropping of litter — Whether proper reason for refusal of planning permission
The first respondent, the Secretary of State for Scotland, by his reporter, allowed an appeal by the second respondents, Scotstown Holdings Ltd, and granted planning permission for the change of use of premises in North Deeside Road, Cults, Aberdeen, to use as a hot food retail shop. The planning authority and the local community council appealed against the decision on the ground, inter alia, that the reporter, who had identified loss of amenity as the main issue in the appeal, had erred in law in considering that as the dropping of litter in public places was dealt with under other legislation it was not a proper reason for withholding planning permission.
Held The appeal was allowed and the decision quashed.
Problems of litter could affect residential amenity and should be considered by the planning authority or the reporter in that context. To ignore them on the basis that they were dealt with under other legislation was an error of law: see pp 3G-4B.
Per curiam: In view of the undisputed finding that the premises were in an area of mixed commercial and residential use the reporter had not erred by applying too high a test in asking himself whether the proposed change of use would result in a serious loss of amenity.
No cases are referred to in the opinion
Appeal under sections 231 and 233 of the Town and Country Planning (Scotland) Act 1972
This was an appeal by the City of Aberdeen District Council and Cults, Bieldside & Milltimber Community Council under sections 231 and 233 of the Town and Country Planning (Scotland) Act 1972 against a decision dated September 24 1990 of the first respondent, the Secretary of State for Scotland, by his reporter, who had allowed an appeal by the second respondents, Scotstown Holdings Ltd, against a refusal of planning permission by the district council for the change of use of premises at Unit 7, The Courtyard, 327/329 North Deeside Road, Cults, Aberdeen, to use as a hot food retail shop.
Colin Boyd (instructed by Bennett & Robertson) appeared for the appellants, City of Aberdeen District Council and Cults, Bieldside & Milltimber Community Council.
Gerard Moynihan (instructed by the solicitor for the Secretary of State for Scotland) appeared for the first respondent.
Alastair Kinroy (instructed by Bird Semple Fyfe Ireland) appeared for the second respondents, Scotstown Holdings Ltd.
The following opinion of the court was delivered.
LORD COWIE: This is an appeal under the provisions of sections 231 and 233 of the Town and Country Planning (Scotland) Act 1972.
The appellants are the City of Aberdeen District Council as planning authority and Cults, Bieldside & Milltimber Community Council. They are appealing against a decision of the Secretary of State for Scotland, who allowed an appeal by Scotstown Holdings Ltd against a refusal of planning permission by the district council for the change of use of premises at Unit 7, The Courtyard, 327/329 North Deeside Road, Cults, which is restricted to Class I in the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1973 [SI 1973 No 1165 (S90)], as amended, to use as a hot food retail shop. The first respondent is the Secretary of State for Scotland and the second is Scotstown Holdings Ltd.
The description of the site and the representations made for and against the application by the parties are fully set out in the reporter's letter of September 24 1990.
The reporter's conclusion was that, having considered all the matters raised in the representations, there were no sound and clear-cut reasons for the refusal of planning permission in this instance provided that certain safeguards were provided by way of conditions. He then proceeded to specify certain conditions directed particularly to the question of amenity. These conditions were as follows:
1. The development hereby permitted shall be begun before the expiration of five years from the date of this permission.
2. The premises shall not open for business outwith the hours 0800 to 2300 Monday to Saturday, nor at any time on Sunday.
3. The change of use hereby permitted shall not begin until provisions for the extraction and filtration of cooking smells have been made in accordance with a scheme to be agreed with the planning authority; any plant installed in accordance with such a scheme shall be maintained to the satisfaction of the planning authority.
4. No recorded music shall be played on the premises at a level which would result in a sound level measurement in excess of 55 dB(A) within 10 metres of the premises.
The appellants have appealed against that decision on various grounds which are set out in the case but we were informed by counsel for the appellants that he was presenting an argument on only three of these grounds.
The first was that the reporter had erred in law in considering at para 18 of his decision that as the dropping of litter in public places was dealt with under other legislation it was not a proper reason for withholding planning permission.
The second was that there was no evidence before the reporter to allow him to hold at para 17 of his decision that cooking smells can be substantially reduced by the installation of modern filtration equipment and, in any event, to attach condition 3 to the grant of planning permission which assumes that it can be done was unjustified.
The third was that the reporter had erred in law when he reached the conclusion in para 13 of his decision that the test of whether planning permission should be refused in the circumstances of this case was whether the hot food retail shop would result in a serious loss of amenity to nearby residents as opposed to loss of amenity of a lesser standard.
On the first ground it was submitted by counsel for the appellants that it was clear that the reporter had put out of his mind the consideration of litter as a ground for refusing planning permission because, in his view, the control of litter in public places was covered by other legislation. Indeed, it was indicated in the answer to this ground of appeal by the first respondent that it would have been improper for him to have refused planning permission by assuming that members of the public would not comply with the law.
In his reply, counsel for the first respondent indicated that he did not intend to present an argument in support of that answer and what he submitted was that, on a fair reading of paras 18 and 19 of the reporter's decision, it was clear that the reporter had not put out of his mind the question of litter as being a material consideration in deciding whether planning permission should be refused but had come to the view on consideration of that matter among others that it did not amount to a sound and clear-cut reason for the refusal of planning permission.
We are unable to read the reporter's decision in that way. What he says in para 18 is:
Turning to other matters raised reference has been made to possible problems of litter. This is often raised in connection with hot food shops but it is now generally recognised that as the dropping of litter is dealt with under general legislation it is not a proper reason for withholding planning permission.
The reporter then goes on to deal with other considerations in the same paragraph.
In our opinion, the only proper inference that can be drawn from the words quoted are that, having considered the matter of litter, the reporter had decided to put it aside as of no significance because it could be dealt with under other legislation. Nowhere does he say that litter was still a matter which was of relevance in dealing with the question of loss of amenity. In our opinion, that would have been very easy for him to say if that had been his view. Furthermore, it would have been consistent with a decision which is referred to in the textbook by Mr Eric Young entitled Scottish Planning Appeals: Decisions on Law and Procedure and of which we approve notwithstanding other decisions which appear to be inconsistent with it. In that decision, which is reproduced in section 6 and is numbered 6.22 on p 175 of Mr Young's book, the reporter says:
While problems of litter and vandalism were primarily matters for the police, they could also affect residential amenity and so they were also matters for consideration by the planning authority.
Likewise, in our opinion, they are matters for the reporter to consider in the context of residential amenity and to ignore them on the basis that they are dealt with under other legislation is, in our opinion, an error in law. As was pointed out by counsel for the appellants, in other fields of legislation consideration has to be given to activities which infringe the criminal law and it could not be said that because it is for the police to control these activities they can be ignored. Breach of the peace in licensed premises when considering the renewal of a licence is an example.
It was submitted by counsel for the respondent that although the reporter did not specifically state that he took the question of litter into consideration when looking at the issue of amenity, it was clear from the opening words of para 19 that he had done so because in reaching his conclusion he refers back to para 18 by saying: “I have taken account of these and all the other matters raised in the representations”. We do not read these words as referring back to the matter of litter. In our opinion, the reporter had already disposed of the matter of litter in para 18 and his reference back to these and all the other matters raised in the representations refers to matters other than litter.
For all these reasons, notwithstanding the valiant attempt by counsel for the first respondent to persuade us that the clear implication to be taken from the reporter's words was that he had taken the matter of litter into consideration when arriving at his conclusion, we are not prepared to accept that submission. Having failed to do so, when, as the reporter himself states, the principal issue in this case was whether the proposed use of the premises would result in a serious loss of amenity, such failure is, in our opinion, an error in law and accordingly his decision must be quashed.
That is sufficient to dispose of this appeal but it might be helpful if we were to give our views on the other grounds of appeal.
As regards the second ground of appeal, we are satisfied that there was sufficient information before the reporter to justify him in deciding that it was not impossible to install an effective filtration system at the premises and on that account we are satisfied that he was justified in attaching condition 3 to the grant of planning permission requiring the developer to come up with a scheme for dealing with cooking smells. The position might have been different if there had been any suggestion by the appellants that such a system could never be effective because in that situation the condition would have been unjustifiable, but that is not the situation here. All that the reporter has done, on the basis of the information which was before him, was to give the parties the opportunity of reaching agreement on an effective filtration system and we consider that he was entitled to do so on the basis of the representations before him. Accordingly, there is no merit in this ground of appeal.
As regards the third ground of appeal, the appellants' submission was that the reporter had asked himself the wrong question in respect that he had asked himself, as para 13 of his decision discloses, whether the change of use of the premises to a hot food retail shop would result in a serious loss of amenity.
Counsel's argument was that that was applying too high a test in the circumstances of this case. It was pointed out that these premises were, according to the policy of the district local plan, in an R1 residential area where activities would not be permitted unless the appellants could be satisfied that the use would cause no conflict with or any nuisance to the enjoyment of the existing residential amenity. In these circumstances it was clear that the test of loss of amenity was much lower than that adopted by the reporter.
In any event it was submitted by counsel for the appellants that the reporter had not attached sufficient weight to the difference between the proposed use of this unit as a hot food retail shop and the use of the other units which was restricted to Class I in the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1973, as amended, and argued that the proposed use would have a significant effect on the amenity of the area.
In our opinion, however, the answer to these submissions lies in the undisputed finding that, notwithstanding the fact that this is an R1 residential area and that there is a condition restricting the use of the units, this is an area of mixed commercial and residential use (of the reporter's finding at para 14 of his decision) and, accordingly, that the test of loss of amenity is a higher one than for a purely residential area. For that reason we do not consider that the reporter has applied too high a test and we are of the opinion that this third ground of appeal must also fail.
In view of the fact that the first ground of appeal is, in our opinion, a sound one we shall allow the appeal and quash the decision of the reporter dated September 24 1990.
Appeal allowed; decision of first respondent's reporter quashed.
Glen and Another v HM Advocate
__________________________
(1988) Times, 3 March
Majority required for conviction
Published 3 March, 1988
Before the Lord Justice-Clerk (Lord Ross), Lord McDonald and Lord Hunter
Opinion January 8, 1988
In directing a Scottish jury of 15 on majority verdicts, the trial judge should emphasize that no verdict of guilty could be returned unless at least eight of its members voted for conviction. Unless that condition were satisfied, the jury's verdict had to be one of acquittal. It was therefore unnecessary to direct as to the minority necessary for a verdict of acquittal.
The High Court of Judiciary, in its appellate capacity, so held in allowing two appeals against convictions at the High Court in Glasgow (Lord Dunpark and a jury) under the Misuse of Drugs Act, 1971.
Mr Derek Batchelor for the first appellant; Mr John Young for the second appellant; the Lord Advocate (Lord Cameron of Lochbroom, QC) and Mr Alastair Kinroy for the Crown.
THE LORD JUSTICE-CLERK
giving the opinion of the court, said that the appellants appealed against convictions on four charges in respect of which they had been convicted by a majority verdict.
Their common ground of appeal was that the trial judge had misdirect the jury in charging it that while there were three verdicts open to it and that it could return a verdict unanimously or by a majority, it could only return a verdict by a majority if at least eight of its members favoured that verdict. As a result of tha misdiscretion, the appellants argued, there had been a miscarriage of justice.
In his charge, the trial judge had told the jury that it might return a verdict of guilty, not guilty or not proven. Subsequently, he said:
“Any verdicts you return need not necessarily be unanimous. It may be by a majority but it is particularly important that if it is a guilty verdict you are going to return, then of course the minimum majority of 15 is eight so there must be at least eight of you in favour of any verdict you return.”
When he had completed his charge, but before the jury retired to consider its verdicts, the trial judge was asked by the Advocate-Depute to clarify whether he had directed that there must be eight members of the jury in favour of any verdict befire it could be returned by majority.
The trial judge confirmed that was so. The jury had thereafter retired and returned to give the majority verdicts for conviction against which the appellants now appealed.
The direction given by the trial judge fell to be contrasted with the practice disclosed in McPhelim v HM Advocate (1960 JC 17), and the description of the proper course to be followed in charging juries as to majority verdicts given by the Lord Justice-General in Affleck v HM Advocate (1987 SCCR 150).
In the opinion of the court, the direction given to the jury that at least eight of its members must favour any verdict it returned was wrong. In his report to the court, the trial judge had made it clear that he had so charged the jury deliberately.
He stated that he considered to be misconceived the suggestion that the jury should have been directed that the majority of eight was required only for a verdict of guilty.
But in the court's opinion, the misconception was on the part of the trial judge. As was indicated by Lord Fleming and Lord Moncrieff in Mackay v HM Advocate (1944 JC 153), it was not indispensable for the judge to tell the jury explicitly the conditions under which a verdict of acquittal might be returned.
Having been told of the three verdicts open to them, and the condition upon which alone they might convict, the members of the jury would naturally assume that if that condition was not satisfied they should acquit.
In his report, the trial judge had stated that a verdict of, say, five for guilty, seven for not proven and three for not guilty would not be a valid verdict. Their Lordships disagreed. It would be a valid verdict for acquittal.
Having regard to the direction given by the trial judge, their Lordships could not distinguish the present case from Affleck. The jury in that case had been directed that if seven of its members voted for guilty on a given charge, four for not guilty and four for not proven, those voting for guilty being in the minority, it would have to reconsider the matter until not less than eight of its members voted for one verdict, which it might then return. On appeal, the court had held that the jury must have been confused by that direction which was unsound in law.
It was plain from the trial judge's report that he had envisaged that the jury might divide three ways. Given a direction that there must be at least eight of its members in favour of its verdict, there was a risk that a waverer on the jury might be induced to change his mind and side with others in order to constitute the requisite majority of eight.
Of course, it might be contended that a direction that no majority verdict of guilty could be returned unless at least eight members of the jury favoured it, might have the like effect. But that direction was now well-established, and had not in their Lordships' experience caused problems. It was important that the jury realized that if there were not eight of their number for guilty, the verdict returned had to be one of acquittal.
Their Lordships therefore concluded that the trial judge had misdirected the jury. The Lord Advocate had accepted that if the court held that there had been a misdirection, it could not be said that there had not been a miscarriage of justice. The convictions appealed against would therefore be quashed.
Solicitors: Ross Harper & Murphy, WS for Quinn, Martin & Langan, Bellshill; Crown Agent.
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