Latest Cases

Sentencing – Murder – Life sentence – Punishment part. High Court of Justiciary: In an appeal against sentence in which the principal issue was the extent, if any, to which, when imposing a life sentence and fixing the punishment part, the sentencing judge should take account of the accused's conviction on another offence libelled on the same indictment, the court held that the sentencing judge correctly had applied s 2, as amended, of the Prisoners and Criminal Proceedings (Scotland) Act 1993, and gave guidance to sentencing judges when determining the punishment part where, in addition to being convicted of a charge in respect of which a life sentence was imposed, an accused person was also convicted of another charge on the same indictment. 

Employment – Contract of service. The employment tribunal (the tribunal) had allowed the employer's counterclaim against the employee for breach of implied contractual terms of good faith, trust and confidence. In allowing the employee's appeal against that decision, the Employment Appeal Tribunal held that the tribunal had applied the wrong test by failing to decide for itself whether the employee had actually done what had been alleged, and further, on the evidence, there had not been a breach of contract by the employee, as alleged. 

Unfair dismissal – Determination whether dismissal fair or unfair. In dismissing the employer's appeal against the findings by the employment tribunal (the tribunal) of breach of contract, unfair dismissal and discrimination by reason of sex, the Employment Appeal Tribunal held, inter alia, that the employer had failed to show the reason why the deductions from the employee's wages had been reduced, and that the tribunal had not erred in its approach to the burden of proof when considering the complaints of discrimination. The employee's appeal, against the tribunal's rejection of a claim for reduction of wages during a relevant time period, was allowed. 

Unfair dismissal – Compensation. In determining the level of basic and compensatory awards to which the employee was entitled following a finding of unfair dismissal by the employment tribunal (the tribunal), the Employment Appeal Tribunal held that the tribunal's failure to make a reduction pursuant to Polkey v AE Dayton Services ([1987] All England LR 974) was puzzling given its finding of 50% contributory fault on the employee's part. Further, the operation of s 123(6) of the Employment Rights Act 1996 did not permit the differential treatment of different elements of a compensatory award. 

Capital gains tax – Disposal of assets. The Upper Tribunal (Tax and Chancery Chamber) allowed the appeal by the Revenue and Customs Commissioners against a decision of the First-tier Tribunal (Tax Chamber) which had upheld the taxpayer's argument that he had been entitled to elect to claim Enterprise Investment Scheme (EIS) relief on that part of the gain accruing on the disposal of a mixed-use asset referable to its non-business use, and so enabling him to take advantage of the more generous taper relief then available in respect of gains occurring on the disposal of business assets. 

European Union – Environment. The Court of Justice of the European Union made a preliminary ruling concerning the interpretation of arts 9 and 11 of Council Directive (EEC) 92/43 (on the conversation of natural habitats and of wild fauna and flora). The request had been made in proceedings between Cascina Tre Pini Ss (Cascina) and the Ministry of the Environment and the Protection of the Land and the Sea and others concerning the procedure for review of the status of site of Community importance of a site including a plot of land of which Cascina was the owner. 

Income tax – Earnings from employment. The taxpayer banks (UBS and Deutsche Bank) had set up schemes to pay employees' bonuses in such a way that they could avoid paying income tax and national insurance contributions. The schemes involved 'restricted securities' and so took advantage of the tax exemption benefits of Ch 2 of Pt 7 of the Income Tax (Earnings and Pensions) Act 2003. The Revenue and Customs Commissioners determined that income tax and national insurance had been payable. The First-tier Tribunal (Tax) dismissed the banks' appeals. The Upper Tribunal (Tax and Chancery Chamber) allowed UBS's appeal and upheld the scheme, while DB's appeal was dismissed as having failed to meet the requirements of s 429 of the Act. The Court of Appeal, Civil Division, found that both schemes had fallen within the regime under Ch 2 of the Act so had been eligible for the corresponding tax benefits. 

Extradition – Extradition hearing. The respondent judicial authority sought the appellant Romanian national's extradition pursuant to a European arrest warrant. The district judge ordered the appellant's extradition and the appellant appealed. Allowing the appeal, the Administrative Court held that in the instant case the warrant had been invalid by reason of inadequacy of particulars of conduct, pursuant to s 2(4)(c) of the Extradition Act 2003. The appellant had been entitled to known in the context of which the case against him had been framed in the warrant which offences were said to have been committed by him and how many offences he would fact at trial. 

Judicial review – Legal aid. Court of Session: Refusing a reclaiming motion in judicial review proceedings brought by a serving prisoner, challenging the Scottish Legal Aid Board's refusal to treat advice given to him in connection with challenging his exclusion from the franchise in the European Court of Human Rights as a 'distinct matter', the court agreed with the Lord Ordinary's conclusion that the petitioner and others in a like position would not be able to obtain Scottish legal advice and assistance in connection with possible proceedings before the Strasbourg court beyond a possible diagnostic interview. 

Income Tax – Pay as you earn (PAYE) system. The Upper Tribunal (Tax and Chancery Chamber) (the tribunal) dismissed the taxpayers' appeals against the decision of the First-tier Tribunal (Tax Chamber) which had dismissed appeals by the taxpayers against determinations and notices of decisions assessing the taxpayer as liable for a substantial sum in respect of unpaid income tax and national insurance contributions. The tribunal further refused the taxpayers permission for judicial review of those determinations and notices of decisions.