Services to save people the time, cost and stress of court action
Free mediation services for people involved in civil disputes are being expanded to cover all of Scotland.
The services offer those who are eligible an opportunity to negotiate a mutually acceptable resolution to their civil dispute, reducing the stress, cost and time of going through a court process.
Mediation hubs already exist in 22 sheriff court areas – 18 are delivered by the University of Strathclyde Mediation Clinic and four by Edinburgh CAB Mediation Services. The expansion will see the University of Strathclyde Mediation Clinic open a further 17 hubs across the country.
Free mediation services, backed by more than £250,000 of Scottish Government funding in 2023-2024, are available for civil disputes involving sums up to £5,000, with hundreds of cases referred to the hubs every year. Examples of such disputes include those involving goods and services, building work, unpaid bills, employment and vehicle disputes.
Victims and Community Safety Minister Siobhian Brown said: “Civil disputes, especially when they end up in court, can be costly and time-consuming for those involved and can affect individuals, communities and organisations.
“Mediation within the civil justice system offers the opportunity for a more flexible and affordable way to resolve those disputes.
“The expansion of the availability of mediation services will widen access to justice for citizens and businesses consistently across the whole of Scotland.”
Head of Strathclyde Law School Professor Adelyn Wilson said: “We are delighted that the Mediation Clinic’s partnership with the Scottish Government has continued to flourish.
“To be able to offer free mediation to eligible parties in 35 Scottish courts is a tremendous honour and responsibility, and an important step towards ensuring access to justice across Scotland.”
Injury law expert, National Accident Helpline, has announced the winners of its Future Legal Mind competition, with Scottish student Syed Adil taking one of the prizes.
Syed will be awarded £1,500 which will go towards his studies, as well as mentoring with experienced lawyers. He will also be given the opportunity to complete a work experience placement at National Accident Helpline’s law firm, National Accident Law.
Syed is currently studying a dual degree in Scots and English Law, with European Legal Studies, at the University of Aberdeen. He hopes to further pursue a master’s degree and be called to the Scottish and English Bar, developing a career as a cross-border Barrister, and utilising his dual-qualifying degree to its full extent.
This year, the competition – which is one of the leading law essay competitions in the UK – was split into two categories: undergraduate and postgraduate. Syed was awarded the undergraduate prize and Matthew Johnson, studying at Oxford Brookes GDL, was awarded the postgraduate prize.
The competition was judged by National Accident Helpline, with the panel made up of John Kushnick, Legal Operations Director, Jonathan White, Legal and Compliance Director, and Helen Fairhurst, Marketing Director.
John Kushnick said: “Syed presented in a calm and caring way, having prepared a thorough and excellently referenced essay.
“What made him stand out was his passion for law, as amply evidenced by his extensive extra-curricular activities. A very impressive candidate indeed.”
Jonathan White commented: “Syed’s entry stood out for me because of the current relevance of the topic in view of recent, well-publicised events.
“He articulately set out his concerns about the government exceeding its authority following Brexit and the essay was brilliantly researched and extensively referenced.”
Runners up of the competition have also been announced as:
Undergraduate – Tamar Knight, Cardiff University
Postgraduate – Kieran Power, University of Law Bloomsbury
Postgraduate – Sebastian Dack-Owens, BPP Law School
As part of the competition, students were invited to submit their thoughts on two topics. These were ‘Now that the UK has officially left the EU, what legal changes would you recommend making over the next 10 years?’ and ‘Is the UK court system fit for purpose and what role should other, alternative forms of dispute resolution play?’.
Shortlisted students were then required to send a short recording of why they deserve to be named the winner.
Jonathan White, Legal and Compliance Director at National Accident Helpline, added: “We believe it’s crucial for the legal sector to evolve in a way that inspires the next generation to build their careers in law – that’s why we continue to run Future Legal Mind.
“We look forward to continuing to support and champion Syed and Matthew in their careers over the years ahead, as well as seeing what the competition will bring in 2023.”
The finalists for this year’s competition were:
Undergraduates:
Farid Ahmed, studying BA Hons Law and Politics at the University of Stirling
Simon Cooper, a second-year student at Bournemouth University
Syed Adil, studying a dual degree in Scottish and English Law with European Legal Studies at the University of Aberdeen
Sarah Daniel, a first-year student at the University of London
Tamar Knight, studying an undergraduate LLB Law degree course at Cardiff University
Postgraduates:
Federica Boscolo Gnola, studying a Graduate Diploma in Law Postgraduate Course at the University of Law
Jason Nicholson, a postgraduate Legal Practise Course at the University of Law
Kieran Power, completing a Graduate Diploma in Law at the University of Law’s London Bloomsbury campus
Matthew Johnson, a Graduate Diploma in Law postgraduate student at Oxford Brookes
Sebastian Dack-Owens, a Bar Training Course student at BBP Law School
Experts to assess needs of women in the justice system
Gender inequality and improving women’s experiences within the justice system will be addressed by a new Scottish Government panel.
Members will examine the experiences of women as both victims and offenders in a range of settings including policing, community justice, criminal and civil courts, tribunals and prisons.
The Women’s Justice Leadership Panel, which met for the first time yesterday, will be chaired by Community Safety Minister Ash Regan.
Membership includes Solicitor General Ruth Charteris QC, academics and representatives from the Scottish Prison Service, Police Scotland, Community Justice Scotland, the Scottish Women’s Rights Centre and the Centre for Women’s Justice.
Key issues for the panel include:
how women experience the Scottish justice system differently from men, in what ways their needs are not being met and how it impacts on them
international and UK examples where women’s needs are more appropriately met
how to address under-representation of women in senior leadership roles and how this impacts on the culture in justice organisations
Ms Regan said: “The Scottish justice system needs to evolve to ensure it serves the needs of women. For example, issues like the impact of caring responsibilities on women or the blurred line between victimisation and offender status are issues which could be understood better.
“Some significant improvements have been made, but often changes are piecemeal and do not provide the fundamental reform needed to embed women’s rights.
“We need to develop a better picture of the evidence to demonstrate how the experience of the justice system differs depending on gender and promote a consistent understanding of the impact of this on women. This will help us deliver better outcomes for women and reflect expectations of what a modern justice system should look like.”
The membership of the panel comprises:
Ash Regan – Minister for Community Safety (Chair)
Ruth Charteris QC – Solicitor General
Jacqueline Clinton – Scottish Prisons Service
Ch Supt Linda Jones – Police Scotland
Rose McConnachie – Head of learning, development and innovation at Community Justice Scotland
Jen Ang – Director of Development and Policy Scottish Women’s Right Centre/Just Right
Harriet Wistrich – Director, Centre for Women’s Justice
Professor Vanessa Munro – University of Warwick, School of Law
Mariam Ahmed – Co-Chief Executive Officer for Amina Muslim Women’s Resource Centre
Free impartial advice for private landlords at legal webinar
In Scotland the temporary ban on evictions, other than anti-social behaviour cases, is still ongoing, in addition to changes in Capital Gains Tax thresholds, reporting rules and increasing property values: all matters which private landlords and letting agents should be aware of, or they may face expensive fees.
Thorntons’ Dispute Resolution specialists Gillian Buchanan and Kirsty Waughman, alongside Property Partner Andrew Kirkhope, are hosting a free webinar from 9.30am on Wednesday 5 May 2021 to update private landlords and letting agents on current issues.
The one hour event, which includes an online Q&A session, will cover the emergency measures currently affecting the private rental sector, Capital Gains Tax overview and the increase in property values, as well as a cautionary tale about wrongful termination which demonstrates the costs associated with evicting a tenant under false pretences.
Gillian Buchanan, Dispute Resolution Partner at Thorntons, said: “This event will provide an opportunity to gain expert legal insight on dealing with landlord and tenant issues. We hope to arm attendees with practical advice which should help to protect their property portfolios.”
A cross-justice Review Group has recommended that a new, national specialist Court with trauma-informed procedures be created to deal with serious sexual offence cases.
As part of a wide ranging Review into the prosecution of sexual offences, the Group made extensive recommendations, most of which can be considered on a standalone basis. In addition to the specialist Court these include the presumed use of pre-recorded evidence; measures to improve the current experience of complainers with a particular focus on improved communication; steps to enhance jury involvement; and improvements to aspects of the Children’s Hearings System.
The Review Group was tasked principally with improving the experience of complainers in sexual offence cases within the Scottish court system, without compromising the rights of the accused. The recommendations will now be considered by the Lord Justice General, Lord Carloway.
Lady Dorrian said: “The wide ranging review was prompted in particular by the growth in volume and complexity of sexual offending cases affecting all sections of the criminal justice system. We have made recommendations which we believe will fundamentally change and improve the way sexual offences are prosecuted in Scotland.
“I am grateful to the Review Group, and to all those who contributed to its work, for their commitment and openness, and for the ‘clean sheet approach’ members adopted in undertaking this task, which has enabled a full scope of recommendations to be made for the consideration of the Lord Justice General.”
Recommendations – Summary
Specialist Court
A new, national specialist sexual offences Court would be created for serious cases (on indictment) in which trauma-informed practices and procedures were adopted and where those involved in the proceedings were trauma-informed, including support staff. Trauma-informed training for prosecutors and defence agents would include accredited courses in dealing with vulnerable witnesses and the use of examination techniques.
The cases would be presided over by a combination of High Court judges and sheriffs who had received trauma-informed training in best practice in the presentation of evidence of vulnerable witnesses. The Court would have sentencing powers of up to 10 years imprisonment with a provision for remit to the High Court for sentencing higher than that if required.
The presumption would be for the evidence given by the complainer to be pre-recorded.
Presumption of Pre-recorded Evidence
Evidence from complainers in serious sexual offence cases would be recorded by specially trained police officers as early as possible after an alleged incident. Additional evidence, including questioning on behalf of the accused, would also be recorded at the earliest possible opportunity following discussion at judicially lead management hearings. The recordings would, subject to court approval, be used in court as the complainer’s evidence reducing the need for the complainer to appear.
Improving complainers’ experiences
There would be a focus by all parties in the criminal justice sector on improving communication with complainers on basic concepts and the processes and procedures involved from the reporting of an allegation to its progression to trial.
One additional means of implementing this would be via the introduction of a single, trauma-informed point of contact who would provide specific information relevant to the particular case throughout the justice process.
A new Charter for complainers would be created setting out standards and values adopted by key criminal justice agencies. This would lay down the way in which complainers could expect to be treated, the information to which they were entitled, and how they would be communicated with. Complainers would also have access to publically funded, independent legal representation in order to oppose applications made to ask questions about their previous sexual history during evidence (known as a section 275 application).
The right for a complainer in proceedings not to be identified in the media would be expressly set out in legislation rather than relying upon current convention and agreement.
Improving efficiency
Improvements to the efficiency and conduct of proceedings would also be progressed by fixing targets to reduce the time from when an incident is reported to the conclusion of proceedings; early identification of prosecutors; and strengthening the requirement to lodge a meaningful indication of the accused’s position (defence statement).
Juries
There would be more focus on plain language directions given to the jury by the judge, and assistance in explaining the process of how they should go about making their decision (their route to verdict). Other steps to enhance the quality of jury involvement in trials would include the development of a pilot programme to communicate information to juries regarding certain rape myths and stereotypes.
Time-limited Pilot
The Group suggested that further consideration could be given to the possibility of developing a time-limited pilot of single judge, rape trials to fully assess and fully consider their effectiveness and how they are perceived by complainers, accused and lawyers from a practical perspective.
Children’s Hearings System
Separate recommendations in relation to the Children’s Hearings System and court proceedings in relation to sexual offences, were made taking into account their unique nature.
They include a focus on the adoption of trauma-informed practice; the nationwide rollout of training for specialist recorded interviewing of children and further progression of recommendations made in the Evidence and Procedure Review; the greater use of case management powers; and improving communication to complainers on what is involved in such proceedings, particularly the limits on the information that can be shared and the reasons for that.
Crown Agent David Harvie said: “The introduction of a specialist sexual offences court would be an important step towards meaningful improvement in the delivery of justice in Scotland, for complainers, for accused, for society as a whole and is one that I fully support.”
Chief Executive of Rape Crisis Scotland Sandy Brindley: “All too often survivors tell us that the process of seeking justice – and in particular their experience in court – is as least as traumatic as the attack(s) itself. It is clear that significant action is needed.
“The report of the Review Group, chaired by Lady Dorrian, is important and necessary. The recommendations are bold, evidence based, and have the potential to transform Scotland’s response to sexual crime. This is a unique opportunity for Scotland to lead the way internationally in improving access to justice for people who have experienced sexual crime.”
Dr Marsha Scott, Chief Executive of Scottish Women’s Aid, said: “Improving court experiences for survivors of sexual violence is vital in improving their access to justice, and in strengthening the overall response of the justice system to violence against women and children.
We welcome the publication of this Review, and believe that the recommendations it makes reflect the gap between the promise of justice and the lived experience of survivors who so often feel re-victimised and let down by court processes.
“This review is a helpful starting point and we will continue to work with colleagues across the justice system to further improve the court experiences of survivors of sexual violence, particularly child survivors who we would like to see further protections for.”
Kate Wallace, Chief Executive of Victim Support Scotland, said: “People who have gone through some of the most serious crime need reassurance that their contact with the justice system will not cause them further harm.
“It’s important that all agencies involved in supporting people in the aftermath of crime are sensitive to the needs of these people. Trauma-informed practice must become part of the DNA of Scotland’s justice system – from the introduction of a new specialist court, showing commitment to allowing pre-recording evidence, through to improving communication before, during and after a trial.
“We know only too well from our experience of supporting people after crime, the emotional, psychological and financial impact this can have on them. The recommendations as put forward from the cross-justice Review Group are an important step forward for transforming justice in Scotland to allow us to better meet the needs of victims, witnesses and families. We now need commitment from all involved to ensure that the recommendations are carried forward.”
Detective Chief Superintendent Samantha McCluskey, of Police Scotland, said: “The nature of rape and other serious sexual offences present considerable evidential challenges. Investigations must be rigorous and thorough to ensure the best evidence available is secured. Victims must have the confidence that their complaint will be taken seriously and professionally.
“We acknowledge the recommendations from the Review Group chaired by the Lord Justice Clerk, in particular the manner in which our specialist officers record statements made by complainers in cases of serious sexual offences.
“We are acutely aware of how difficult it can be to report sexual crime and we are continually working with partners on ways to improve the police response to reports of rape and sexual crime. We are also fully supportive of wider measures that will improve the experience of victims and survivors of sexual crime throughout the criminal justice process.”
Amanda Millar, President of the Law Society of Scotland, said: “This has been a very important piece of work involving representatives from across the justice system. We would support meaningful improvement for complainers and witnesses involved in sexual offence cases that ensure the rights of an accused person are preserved.
“Solicitors work with those accused and those who are victims of crime. Providing greater access to legal advice for complainers would help to ensure they can get the right legal advice and support in bringing forward cases which are by their very nature, highly sensitive and distressing.
“We would also support introducing a trauma-informed approach and provision of additional training for the professionals involved in these cases. Following on from recent research into how juries make decisions, the recommendation to address some of the myths that surround rape and sexual offences would offer information and insight for jury members.
“We have previously expressed significant reservations about such cases being heard by a single judge without a jury, which was proposed as a means to deal with the backlog of court cases caused by the Covid-19 pandemic. These concerns remain. It will be essential to consider all the implications if any pilot is to go ahead, with outcomes examined carefully along with other important areas of potential reform that impact on the scrutiny of evidence.
“We will examine the report’s recommendations in detail and continue our engagement to ensure that any proposals would work in practice and that we have a fair and transparent justice system that upholds the rule of law and operates in the interests of justice.”
Review Group
The cross-justice Review Group includes representatives from the judiciary, the SCTS, the Crown Office and Procurator Fiscal Service, the Faculty of Advocates, the Law Society of Scotland, Police Scotland, representatives from the Scottish Children’s Reporter’s Administration, the Scottish Government, the Scottish Legal Aid Board and third sector organisations including Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.
Pre-recorded Evidence
The Review Group’s recommendations are in furtherance to the recommendations of the judicially lead Evidence and Procedure Review.
Family law experts in Edinburgh are suggesting five alternative solutions to couples wrestling with relationship disputes and unable to go to court to reach a resolution under current guidelines.
Gibson Kerr has seen an influx of requests from concerned parents and separating partners as to what options are available to resolve disputes while the courts remain closed for non-urgent cases.
Head of Family Law Fiona Rasmusen (above) said: “We try to encourage clients to adopt ways of resolving their family disputes and concerns which don’t involve a lengthy or expensive court process.
“With the courts currently closed for non-emergency disputes, now is an even better time to engage in an alternative method to try to resolve issues and concerns.
“The particular route you decide to take will depend on many things including the relationship that you have with your former partner and the nature of the dispute.”
The firm has revealed five common methods of resolving disputes that can take place outside of the courts. The more common disputes Gibson Kerr deal with include dividing assets, support, occupation of the family home, and childcare arrangements.
Fiona, an accredited expert in family law, said: “Former couples can sit down together and negotiate an agreement themselves, with advice from their lawyers to hand – this is what’s referred to as ‘Kitchen Table’ resolution.
“This can save a lot of legal fees, and can even make the relationship more amicable than other methods. Once you have terms decided, you should engage your solicitor to have the arrangements drafted into a formal agreement.”
For couples who can’t easily sit down together to discuss their separation, they might find it easier to work with a neutral mediator to come to an agreement. Gibson Kerr advises that couples have separate legal advice throughout the process, and ask their solicitors to create an agreement once they have reached a resolution.
Collaborative law is another avenue open to couples in conflict, where they work with specially trained solicitors to come together and reach a fair and reasonable settlement. In these situations, both parties agree they will not raise court proceedings, meaning it is less likely to result in a total breakdown of relationships.
Fiona said: “The most common way family law disputes are dealt with is negotiations through solicitors, where each party’s solicitor works to come to an agreement – outside of a court.
“Instead of going to courts, we also encourage clients to look at arbitration, where an independent and qualified arbitrator is appointed to hear a case and make a decision. Arbitration can be very useful if there are one or two important points you want to solve, for example deciding the date you separated, or where your child should go to school.
“As well as being completely confidential, you choose your arbitrator and you can decide the timescales and how the proceedings are managed – including where and when it takes place.”
“When the courts reopen fully, separated partners can look to raise an action. The advantages of going to court are that the process is strict in terms of fairness and timescales, and you will get a definite result at the end of it.
“However, as it’s expensive and lengthy, and can be stressful, we tend to advise clients to look at all of the other options available ahead of making the decision to go to court.”
Anyone interested in alternative methods of dispute resolution should contact one of the family law solicitors at Gibson Kerr on 0131 226 9161.
Although Christmas is now a distant memory, for many families it only served to heighten tensions when it comes to the issue of child arrangements for parents who have separated.
But, of course, the issues surrounding separated or divorced parents seeing their children are the same throughout the year. Sally Nash, Senior Associate, Family Law at Gilson Gray, shares four helpful tips on dealing with the factors that may arise when reaching an agreement on child care arrangements.
There is no normal
It is important to bear in mind that there is no “norm”. Clients often come to us to say that a well-meaning friend or colleague has told them that a particular pattern of contact is what “always happens”; or that it is a given that any children will principally reside with mum.
While there are certain patterns of contact which we see more often than others, ultimately what parents agree upon varies significantly.
The days are also long gone where it is presumed that the person best placed to have the children with them most of the time is mum. The law clearly directs that all such matters are determined based on what is in the best interests of the particular child concerned. Inevitably, that will vary from child to child.
The arrangements will also hugely depend on practicalities such as how close the parents live to one another. The bottom line is that there is no right or wrong answer to any situation.
2. Watch your language
Although the concepts of “custody” and “access” have been a thing of the past in Scotland since 1995, we all too often hear those terms and think of negative connotations – that a child “belongs” to one parent and the other parent is “permitted” to see the child.
However, whilst there are a few exceptions; in most family situations now both parents will have equal parental rights and responsibilities and both are entitled to be involved in all important decisions.
In our view, it helps if discussions are framed against the background of the correct terminology of “residence” and “contact” which more appropriately reflects what the discussion is about.
3. Put the child first
Even where a separation is amicable, parents can fall into the trap of making the care arrangements for their children about them and their separation, and not about the children themselves.
We would advise to give careful consideration where there is a dispute about care arrangements as to whether what is being objected to is because what is proposed is not felt to be in the best interests of the child, or if it is actually connected to the impact it would have on the parent themselves.
4. Try to find a solution
In the first instance our advice would always be to try to work with the other parent to come up with an arrangement that best meets the needs of your child.
For two parents who are struggling to resolve arrangements directly between them, there are methods of alternative dispute resolution available such as mediation where a third party can try to help you and the other party to work through the issues that have arisen.
However if the arrangements cannot be agreed, the ultimate recourse is to the court. As solicitors working day to day in this field, our advice would always be to avoid court if possible.
The bottom line is that once the arrangements for the care of the child are within the remit of the court, essentially a third party will try to make the best decision they can about what is in the best interest of the child, but what is decided may not give either parent what they want..
Ultimately, communication and cooperation between both parents is key to reducing conflict.
Sally Nash is a Senior Associate in Gilson Gray’s Family Law Team. She has worked exclusively in the field of family law for the last 15 years.
For more information or guidance on dealing with issues related to family law, visit www.gilsongray.co.uk
