Regulatory Crime

Richard Allan Sandeman v. The Council of the Law Society of Scotland [2011] CSIH 24

Thu, 07 Jul 2011 21:46:08 GMT

On 29 March 2010 the Scottish Solicitors Discipline Tribunal had found the petitioner guilty of professional misconduct and made an order censuring him, finding him liable for the expenses of the proceedings before it. The petitioner appealed against that decision under section 54 of the Solicitors (Scotland) Act 1980.

The petitioner argued firstly, that the circumstances of his referral to the tribunal did not justify them finding him guilty of professional misconduct, and secondly, that the tribunal were wrong to hold that professional misconduct was established on the basis that the petitioner’s conduct brought the profession into disrepute. The petitioner was alleged to have acted where there was a conflict of interest between two clients.

In relation to the first matter, the Inner House found that the petitioner had indeed acted in a situation where a conflict of interest existed, with the mutual interests of his clients being irreconcilable. They noted however that whether such actions amounted to professional misconduct was a less straightforward matter - a finding of that kind would depend on the gravity and whole circumstances of the facts. Nonetheless, having considered the whole circumstances of the situation, the Inner House found that the tribunal was entitled to find that the conduct in question might have brought the profession into disrepute, and that conduct of that gravity and culpability was sufficient to justify a finding of professional misconduct. Appeal refused.

Petition of General Osteopathic Council v. Richard Sobande for interdict and interim interdict [2011] CSOH 39

Sun, 22 May 2011 21:23:36 GMT

In this action, the petitioners sought interdict and interim interdict to prevent the respondent from describing himself as an osteopath.

The court heard that the Osteopaths Act 1993 was enacted to provide a statutory scheme for the practice of osteopathy in the UK, with section 3 of the Act designating the conditions for registration as an osteopath. Section 32 of Act provides that it is an offence for anyone to describe themselves as an osteopath in any way, if that individual is not registered as an osteopath under the provisions of the Act. The respondent had sought registration as an osteopath in terms of the Act in 2001, however he did not complete his initial application form correctly. Following an interview to allow the respondent to expand upon his application for registration, it became clear to the petitioners that the respondent was not unqualified nor unsuitable to practice, but that he had failed to take the opportunity to fill out the form appropriately and demonstrate that he was so qualified and suitable. At the end of the registration process, both the assessors and the moderators decided that the respondent should be allowed a conditional registration, so that he would be allowed to practice, on the condition that another osteopath acted as a mentor to him. The net effect of this decision was that the respondent was not fully registered in terms of the Act.

The respondent disagreed with this decision, and continued to describe himself as an osteopath, in breach of the section 32 of the 1993 Act. The Lord Ordinary concluded that the petitioners were able to competently seek a remedy of interdict in terms of the Act, and found the right to that remedy irrefutable in the face of the respondent’s continued professional description of himself as an osteopath. Interdict granted.

Nigel Allan Noble v. Ian Latimer, Sheriff Margaret Neilson, Inverness Sheriff Court, 21 April 2011

Mon, 16 May 2011 12:12:46 GMT

Parties and Background:
The pursuer was a businessman who owned several firearms which he stored at his home near Beauly. The defender was the Chief Constable of Northern Constabulary. The defender had revoked the pursuer’s firearms certificates under s.30 of the Firearms Act 1968 following a visit by police officers to the pursuer's house on 23rd May 2010. The police had received intelligence from a confidential source that the pursuer was storing firearms and shotguns insecurely. They found firearms unsecured in the pursuer’s bedroom. The police also found that certificates produced in respect of the firearms were not signed. This action was the pursuer's appeal against the revocation of his certificates.

Parties’ Submissions:
The pursuer argued that the weapons were not stored insecurely and that they were out of their storage cabinet at the time of the police visit because they were being cleaned. Previous incidents in 2007 and 2008 suggesting that the pursuer was of intemperate habits should not have been considered by the police in making their decision.

The defender argued that the earlier incidents were relevant to the decision to revoke the certificates. The weapons were being stored in an insecure manner and were easily accessible by any persons wishing to access them. There was no evidence of the weapons being cleaned; there were no cleaning materials present and the barrels of all the weapons were dirty. The pursuer had a cavalier and dismissive attitude in failing to sign his certificates. The pursuer was someone who could not be permitted to have a firearm without danger to the public safety or the peace.

Decision:
The sheriff refused the appeal and found in favour of the defender. The pursuer was of intemperate habits and was unfit to be entrusted with a firearm. Continued possession of firearms and shotguns presented a danger to public safety or peace. The pursuer’s certificates were not to be reinstated.

HMA v Sean Medeiros – Causing death by careless driving

Wed, 15 Sep 2010 16:26:58 GMT

A Sheriff has imposed a community service order on a man whose careless driving caused the death of a pensioner at a bus stop in Glenrothes. Sean Medeiros lost control of his council van when his hand became trapped in the steering wheel after he instinctively tried to grab a set of keys that had slid from the dashboard. He failed to stop his van as it left the road and collided with a bus shelter, killing a 66 year old woman.
The Sheriff agreed that it was appropriate to have regard to the guidelines issued by the English Sentencing Guidelines Council, and accepted a defence submission that the accused’s relatively low level of culpability made a prison sentence inappropriate. He ordered Mr Medeiros to complete 180 hours of community service & disqualified him from driving for the mandatory minimum period of 1 year.
Sean Medeiros was represented by Jamie Gilchrist QC of Compass Chambers.

HMA v Hamilton Farmers (East Lothian)

Thu, 29 Apr 2010 13:31:00 GMT

At Haddington Sheriff Court on 26 April 2010, the firm of Hamilton Farmers (East Lothian), pled guilty to a breach of section 2(1) of the Health & Safety at Work etc Act 1974.

HMA v E Nicholson & Sons (Metals) Limited

Tue, 23 Feb 2010 10:40:00 GMT

Demolition company fined over fatal accident
At Glasgow Sheriff Court on 16 February 2010, E. Nicholson & Sons (Metals) Limited pled guilty to a breach of section 3(1) of the Health & Safety at Work etc Act 1974.

HMA v Discovery Homes (Scotland) Ltd & Richard Pratt

Thu, 11 Jun 2009 11:57:00 GMT

Construction company and director fined over fatal accident: At Dundee Sheriff Court on 8 June 2009, Richard Pratt, a Director of Discovery Homes (Scotland) Ltd, pled guilty to a breach of sections 2(1) & 37 the Health & Safety at Work etc Act 1974.

The conviction is only the second successful prosecution of a company Director in Scotland. Mr Pratt accepted that the company’s failure to ensure adequate guarding of a smoke extraction shaft was attributable to his neglect and constituted a breach of the company’s duty to ensure the health, safety & welfare of its employees, including the deceased.

Following submissions, the Sheriff accepted the accused’s means were limited and imposed discounted fines of £5,000 and £4,000 on the company and Director, respectively.

Barry Smith of Compass Chambers represented the Director.

Her Majesty's Advocate v. Munro and Sons (Highland) Limited [2009] HCJAC 10

Tue, 03 Feb 2009 16:19:00 GMT

Crown Appeal Against Sentence:- On 11 April 2008 the respondents pled guilty at a continued preliminary hearing at the High Court of Justiciary at Edinburgh of a contravention of section 3(1) and section 33(1)(a) of the Health and Safety at Work etc Act 1974 which related to a road traffic accident involving a lorry driver employed by the respondents which resulted in a female dying. The sentencing judge imposed a fine of £3,750, discounted from £5,000 to reflect the plea of guilty at the stage at which it was tendered. The Crown appealed against the sentence on the ground that it was unduly lenient, although no exception was taken with the discount applied of 25%. The issue was whether the starting point of £5,000 could be regarded as unduly lenient. On indictment, in terms of Section 33(1A) of the Act, the court may impose a fine of unlimited amount. Here the court considered the relevant factors to be taken into account with a review of the mainly English authorities.