Homicide?

Photo by Valentin Salja on Unsplash

For my latest Blog, I’m sticking with Scotland’s public prosecution system.

The Lord Advocate, James Wolffe QC, has just won an interesting ruling before the Appeal Judges of the High Court of Justiciary.

The case in question is Crown Appeal under Section 74 by Her Majesty’s Advocate v Jason Gilmour [2019] HCJAC 74 HCA/2018/000542/XC.

The reason for the Crown’s appeal was that Mr Gilmour’s victim had subsequently died.

The simple question was this: could the Crown, having accepted Mr Gilmour’s guilty plea to the charge of aggravated assault, then pursue a subsequent prosecution against him for murder?

As Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge) noted:

The charge of murder alleges that on 11 June 2012 the respondent [Gilmour] assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.”

Before the introduction of the Double Jeopardy (Scotland) Act 2011, it was a clearly established principle of Scottish criminal law that an accused who had assaulted a victim could be charged subsequently with either culpable homicide or homicide if the victim later died due to the injuries sustained by reason of the assault.

The introduction of the Act meant that some clarification of the law was required.

As Lady Dorrian, the Lord Justice Clerk stated in response to the Lord Advocate’s appeal:

The rationale for this was that the crime of murder was a separate crime and “it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party”- HM Advocate v Stewart (1866) 5 Irv. 301. In Tees v HMA 1994 JC 12 the accused had pled guilty to a charge of assault under deletion of attempted murder, and was re-indicted for culpable homicide when the victim died.

In delivering the Opinion of the Court, Lady Dorrian succinctly concluded that:

“Whatever may have been the position prior to the introduction of the 2011 Act … that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.

Section 11 was the key part of the 2011 Act and the intention of the legislation was clearly to permit the possibility of a subsequent prosecution of the accused for murder – even in situations where s/he had previously faced a charge of attempted murder and had been acquitted.

In early 2019, Mr Gilmour’s had been prosecuted for his victim’s murder. He was convicted of culpable homicide and sentenced to a prison sentence of four and a half years. This has now been upheld by the Appeal Court.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac74.pdf?sfvrsn=0

Copyright Seán J Crossan, 14 November 2019

The public interest?

Photo by Karl Bewick on Unsplash

We have an independent criminal prosecution service in Scotland headed by the Lord Advocate (a Scottish Government Minister). James Wolffe QC, the current Lord Advocate, has responsibility for the Crown Office and the Procurator Fiscal Service.

Yesterday, the role of the Lord Advocate came under intense media scrutiny as a result of the decision of the Crown Office not to prosecute several Police Scotland officers who had been accused of causing the death of a man who had been taken into custody in 2015.

The deceased was 31 year old Sheku Bayoh, who was arrested by Police officers in the Scottish town of Kirkcaldy. It was later established in a post mortem that Mr Bayoh had consumed drugs (MDNA and Flakka).

On a more sinister level, Mr Bayoh was found to have 23 different physical injuries. The Bayoh family and their solicitor (Aamer Anwar) always maintained that the actions of Police officers had caused the death and that they should face prosecution for their actions.

To the dismay of the Bayoh family, the Lord Advocate has declined to pursue criminal charges against the Police officers as this would not be in the public interest.

Today, Humza Yousaf, the Scottish Government Cabinet Secretary for Justice decided to convene a public inquiry into the circumstances of Mr Bayoh’s death – which may be some small consolation to his still grieving family.

The Bayoh family may also be considering the possibility of a civil action for compensation against the Police officers who they are alleging have responsibility for the death.

This case is a timely reminder that it is the State (or the Crown) which has the ultimate power to determine who will be prosecuted for crimes – not the victim or the family of the victim.

The possibility of the Bayoh family being granted the right to initiate a private prosecution against the Police officers is unlikely. The High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place.

It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused.

Two fairly recent attempts to raise private prosecutions in Scotland have been rejected out of hand by the High Court of Justiciary (see Bill for Criminal Letters by (1) John and Linda Stewart and (2) Allan and Aileen Convey Against William Payne AND (1) Matthew McQuade and Jaceline McQuade and (2) Yvonne Reilly Against Henry Clarke [2016] HCJAC 122 HCA/16-2/XM HCA/16-3/XM).

A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d26a25a7-8980-69d2-b500-ff0000d74aa7

The most famous, partially successful private prosecution in Scotland in was the affair which became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70).

Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that matter had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:

Sheku Bayoh: Family feel ‘betrayed’ over decision not to prosecute officers

His family said they felt betrayed over the decision not to bring criminal charges against police officers.

Copyright Seán J Crossan, 12 November 2019

State immunity

Photo by Paulette Wooten on Unsplash

Par in parem non habet imperium

… or, if you prefer, equals should not have jurisdiction over equals.

It’s a legal principle which forms an important foundation of public international law or the relationships between foreign countries.

In the UK, we have the State Immunity Act 1978 which confers immunity from prosecution or civil actions on eligible foreign nationals and emanations (or bodies) of a foreign state.

Practically speaking this means that courts and tribunals sitting in the UK are not permitted to have jurisdiction over eligible foreign nationals e.g. diplomatic staff and eligible bodies controlled by a foreign state. Furthermore, if state immunity applies to a situation, this means that it will be nigh impossible to enforce a court or tribunal order against eligible foreign nationals or bodies.

That said, it is important to realise that the type of state immunity recognised by the Act of 1978 is not, however, an absolute concept. In commercial disputes between foreign states, UK courts and tribunals may have jurisdiction in the matter.

The famous House of Lords’ decision – I Congresso del Partido [1983] AC 244 – is a case in point where Lord Wilberforce was of the view that the Republic of Cuba had been engaged in commercial or private law activities and should not be entitled to rely on the principle of state immunity.

It’s not normally an issue which tends to grab the attention of the public, but add to it a human interest story and you’ve got a totally different perspective.

That said if you work for Transport for London, you’ll be more than aware that state or diplomatic immunity is often used (dubiously it has to be said) by the staff of foreign embassies to avoid paying the City’s congestion charge:

‘Take diplomats who owe congestion charge to international court’

Boris Johnson is urged to act against foreign embassies for £105m unpaid congestion charge.

And yet, you wait years for a media story about state immunity to appear and two come along within as many months of each other.

Harry Dunn

The first story concerned the tragic death of Harry Dunn, a 19 year old motor cyclist, who was killed in a collision with the driver of a car on 27 August 2019.

Deaths on the road are an unhappy and frequent event, but criminal and civil law are usually more than capable of dealing with the consequences of such incidents i.e. punishing the offender and compensating the victims (or their families).

What made Harry Dunn’s death more unusual (from a legal perspective) was the fact that driver – Anne Sacoolas – was claiming diplomatic immunity in order to escape responsibility (both criminal and civil) for the incident.

Ms Sacoolas, as it turns out, is the wife of a United States Air Force (USAF) officer and diplomat stationed at RAF Croughton, Northamptonshire. The accident occurred near to or just outside the air base which hosts USAF personnel.

It was suspected that Ms Sacoolas had caused the accident by driving her vehicle on the wrong side of the road. Subsequently, Ms Sacoolas went back to the United States and has refused to return to the UK to face legal action.

Predictably, her actions caused outrage and the British media gave the story an extremely high profile. The parents of Harry Dunn met with the UK Foreign Secretary and US President Donald Trump to discuss the case.

As of the date of writing, Ms Sacoolas remains in the United States – although she has been interviewed by British Police detectives – but it does not look as if there is going to be happy ending to this story for the Dunn family.

On 5 October 2019, the US State Department, which employs diplomatic staff, confirmed that diplomatic immunity is very rarely withdrawn from individuals.

When your employer is Uncle Sam …

The second story which caught my eye about state immunity involved two employment disputes at RAF Croughton (again) and RAF Lakenheath which are both run by the USAF.

Two female employees (Caroline Wright and Anthea Webster) working at the air bases were unable to proceed with their Employment Tribunal claims because their employer, the United States of America, claimed state immunity.

In other words, British courts and tribunals have no jurisdiction over what goes on at these bases – even if they are located within the territory of the UK. No matter the potential merits of Wright and Webster’s claims, they have been effectively struck out on the principle of state immunity.

A link to the Wright and Webster Employment Tribunal judgement can be found below:

https://assets.publishing.service.gov.uk/media/5dbae021e5274a4a9a464fec/Mrs_A_Webster_and_Miss_C_Wright_-_v_-_United_States_of_America_-_3327693_2017_-_Preliminary_Judgment.pdf

Comclusion

State immunity may, from time to time, stir up public outrage or incomprehension – especially in highly emotive cases like the death of Harry Dunn. That said, it remains too useful a tool for countries in their dealings with other states.

Theoretically, it allows diplomatic staff to go about their business without let or hindrance when working abroad – especially in countries with which their state employer has difficult or hostile relations. Think of American diplomats stationed in Cuba or British diplomats stationed in Iran.

In countries where foreign military forces are stationed, international agreements between the host state and its guests very often operate on the basis of state immunity. This is a price which the host state is prepared to pay and, for any one living in the UK between the 1960s and 1990s, they will recall that this was a feature of the American military presence at many British airforce and naval bases. Even in 2019, ordinary UK citizens may be completely unaware of the exact terms of the agreements between this country and the USA regarding the deployment of American military forces because (theoretically) the provisions of the Official Secrets Act 1989 (as amended) will apply.

It is also a feature of arrangements that Britain has with the Government of the Republic of Cyprus in relation to the British Sovereign military bases of Akrotiri and Dhekelia. So, people in glass houses shouldn’t throw stones …

Links to media stories covering the death of Harry Dunn and the Wright and Webster Employment Tribunal decision can be found below:

Harry Dunn death: Parents call for US driver to be charged

The mother of the 19-year-old killed in a crash says it is “ludicrous” not to charge Anne Sacoolas.

https://news.sky.com/story/us-claims-state-immunity-in-employment-row-with-british-workers-11855956

Copyright Seán J Crossan, 7 November 2019

Undue influence?

Photo by Simon Rae on Unsplash

A recent case in the Outer House of the Court of Session dealt with the issue of undue influence between a mother and her daughter, but don’t jump to conclusions – yet.

We often think of parents exercising a huge amount of influence over their children – especially when they are younger. This is a necessary condition of life. We trust and hope that our parents and guardians will use this influence for our benefit.

As the years go by, children naturally enough want to take control and make their own decisions – good or bad – in spite of parental opinions. Making your own decisions can be an example of youthful rebellion or a sign of growing maturity and confidence – depending on the type of relationship that we have with our parents.

I want to flip this discussion around and change focus. What if the influence in the relationship is going in a different direction? What if it is the child rather than the parent who is the influencer (to use a fashionable term)?

This is not a particularly unusual situation: many people with older parents (and we do live in what seems to be a rapidly ageing society in Scotland and the rest of the UK) will be acting in a very sound legal fashion if they set up a power of attorney to make decisions on behalf of their parents.

We all hope that our parents will remain healthy in old age and will continue to enjoy their independence, but what if the day comes when parents can no longer exercise their autonomy in decision making. The power of attorney facility in Scots Law allows children (or other relatives) to make vital decisions on behalf of their ailing parents. In short order, the power of attorney is something most of us would rather not use; it’s an insurance policy when the worst happens allowing us to make those vital decisions about parental healthcare and the management of family assets.

The case in question was Adeline Margaret Wilson v Peter Watkins & Another [2019] CSOH 44 where Lord Brodie concluded in his Opinion that there was no evidence of undue influence which would have rendered the course of dealings (the transfer of ownership of the parental home) between mother and daughter suspect or dubious in any meaningful way.

In this case, the mother (Mrs Wilson) had invited her daughter and her son-in-law (Mr Watkins) in 2012 to come and live with her. Mrs Wilson had gained title to her home following the death of her husband some years before. The Watkins sold their property in order to move in with Mrs Wilson.  The trio enjoyed a good relationship at first and, some time later (2013), Mrs Wilson transferred the ownership of the property to her daughter by way of a disposition (although she reserved a liferent to herself permitting her to remain living in the house). There appears to have been a falling out in 2015 and Mrs Wilson left the home to move in with her other daughter.

A legal challenge was lodged by Mrs Wilson at the Court of Session in order to have the disposition (the conveyance of title) set aside i.e. made voidable on the grounds that Mrs Watkins (and her husband) had exercised undue influence by persuading her to transfer the ownership of the property to them.

As Lord Brodie emphasised, the relevant judicial precedent in Scotland is Gray v Binny (1879) 7 R 332 which contains Lord Shand’s four part  test addressing the issue of undue influence.

In the essence, the key elements of this test are as follows:

(1) that there was a relationship which created a dominant and ascendant influence,

(2) that the relationship was one of confidence and trust,

(3) that a material and gratuitous benefit had been given to the
prejudice of the granter, and

(4) that the granter had been without the benefit of any independent advice at the material time.

Critically, Lord Brodie was of the view that Mrs Wilson’s case failed to satisfy elements 2-4 of the Shand criteria. Put simply, the mere existence of the relationship of parent and child did not of itself prove that undue influence had affected the transaction or legal dealings between the parties to the dispute. Mrs Wilson’s case was therefore without merit and was not permitted to proceed to trial or proof.

As a point of interest, the Watkins had submitted a counter-claim of £45,000 in respect of an allegation of unjust enrichment against Mrs Wilson had the issue of undue influence been permitted to proceed to proof. This figure represented the sum which the Watkins had used from the sale of their own house to make improvements to Mrs Wilson’s home prior to the falling out of the trio.

A link to Lord Brodie’s Opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh44.pdf?sfvrsn=0

The effect of undue influence

Undue influence potentially renders a contract or legal transaction voidable so that it may be rescinded or cancelled. It is therefore a factor which can undermine the validity of contracts or legal transactions.

If rescission, however, is being sought as a remedy by one of the parties to the contract as a remedy, there must be no delay in claiming relief after the influence has ceased to have an effect. Delay in claiming relief in these circumstances may bar the claim since delay can be used as evidence of affirmation or agreement.

Undue influence can perhaps occur particularly in the following types of relationship: parent and child; and husband and wife.

There will, of course, be other relationships where a stronger party may exert a particularly negative influence on the weaker party, for example, members of a religious cult who unquestionably obey the orders of their spiritual leader (see both the English decision of Allcard v Skinner (1887) 36 Ch D 145 and the Scottish decision of Anderson v The Beacon Fellowship (1992) S.L.T. 111 which I discuss in Chapter 2 of Introductory Scots Law: Theory & Practice )(3rd Edition)).

During the 1990s, the issue of undue influence in connection with the relationship of husband and wife was given much needed judicial clarity Several cases were brought before the Scottish and English courts regarding the issue of undue influence in the marital relationship and all of these cases had remarkably similar facts, whereby the pursuers, a number of wives, alleged that they had agreed to re-mortgage the marital home so that a bank would lend money to their husbands (usually, but not always, for business purposes).

These wives claimed that they had not been given sufficient information by their husbands when they had agreed to approve what later turned out to be very risky transactions. Some of the pursuers had not sought independent legal advice before agreeing to take out the second mortgage.

Initially, the House of Lords, in Barclays Bank plc v O’Brien [1993] UKHL 6, stated that a married woman (or cohabitee) must be regarded as a special, protected class of guarantor when agreeing to guarantee her husband’s (or partner’s) debts because of the nature of the relationship. The bank should be on alert for signs of undue influence which would undermine the validity of the transaction. Their Lordships were of the opinion that the bank should be placed under a duty of care to ensure that the wife or the cohabitee had had the benefit of independent advice.

Their Lordships, however, rowed backed slightly from this position in a subsequent English case: CIBC Mortgages v Pitt [1994] 1 AC 200. In other words, the legal position on undue influence as factor which might undermine a legal transaction was evolving. In Pitt, a wife was not allowed to succeed in her claim of undue influence because the mortgage was in the names of both husband and wife and, therefore, she was benefiting from the transaction.

The decision of their Lordships in Barclays Bank plc v O’Brien was, however, not followed by the Inner House of the Court of Session in Mumford v Bank of Scotland 1996 SLT 392 where it was held that banks are not under a general duty to explain all the material circumstances of a loan to someone who has guaranteed it.

In Smith v Bank of Scotland [1997] UKHL 26, the House of Lords attempted to bring Scots law into line with English law. Lord Clyde stated that there were a number of sound reasons for attempting to harmonise the laws of Scotland and England:

“I am not persuaded that there are any social or economic considerations which would justify a difference in the law between the two jurisdictions in the particular point here under consideration. Indeed when similar transactions with similar institutions or indeed branches of the same institutions may be taking place in both countries there is a clear practical advantage in the preservation of corresponding legal provisions.”

In a further English case, Royal Bank of Scotland PLC v Ettridge (No. 2) [2001] UKHL 44 the House of Lords appeared to retreat from the position that it had originally laid out in Barclays Bank v O’Brien (1993) whereby that married women or cohabitees should be regarded as a special, protected class of guarantor. The House of Lords in Ettridge has stated that undue influence will not be automatically presumed merely because the parties to a transaction are husband and wife.

In a series of of subsequent cases (Forsyth v Royal Bank of Scotland PLC (2000) SLT 1295, Clydesdale Bank Ltd v Black (2002) SLT 764 and Royal Bank of Scotland PLC v Wilson & Ors (2003) ScotCS 396), the Inner House of the Court of Session refused to accept the automatic presumption that wives were unduly influenced by their husbands. Misrepresentations by the husband were more likely to have induced the wives to agree to become guarantors rather than any hint of undue influence. Misrepresentation, of course, a completely separate factor which can potentially render a legal transaction voidable.

In Mumford v Bank of Scotland (1996), Lord Hope made the following statement which (I think) sensibly sums up the approach taken by the Scottish courts in these types of cases between husbands and wives:

There is no indication in this passage that a presumption of undue influence can arise merely from the nature of the transaction and the fact of the relationship. What is important is the effect of that relationship in the particular case, with the result that each case must be examined upon its own facts.” [my emphasis].

In conclusion, I think that Lord Hope hit the nail on the head: the mere existence of a relationship where influence could be abused does not of itself mean that anything underhand has occurred and, therefore, each case will have to be approached on its own merits.

Copyright Seán J Crossan, 26 October 2019

Take it or leave it …

Photo by Liviu Florescu on Unsplash

Take it or leave what?

This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.

The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.

Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.

What’s the legal position?

Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.

The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.

Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).

The statutory periods are detailed below:

  • One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
  • If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
  • If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks

It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.

Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.

Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.

What if some people still refuse to sign the new contracts after their statutory period of notice has expired?

There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.

Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).

No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.

A link to the story on the Sky News website can be found below:

Asda refuses to remove sack threat for thousands of staff over compulsory contracts http://news.sky.com/story/asda-refuses-to-remove-sack-threat-for-thousands-of-staff-over-compulsory-contracts-11845215

Postscript

It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.

Please see the link below to this story:

https://www.mirror.co.uk/money/asda-worker-sue-supermarket-after-20857926

The Guardian also reported that the negative publicity from this story could be costly for Asda – see the link below:

https://www.theguardian.com/business/2019/nov/10/asda-faces-backlash-enforces-new-contracts

Copyright Seán J Crossan, 26 October and 12 November 2019

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019

Holocaust denial

Photo by Alexey Soucho on Unsplash

To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.

Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.

Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.

The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).

Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:

the so-called Holocaust is being used for political and commercial purposes”.

He also stated during the speech:

Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”

The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.

Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.

Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.

The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.

The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.

If so, it will be interesting to see how the judges respond.

As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.

A link to a press release about the decision of the court can be found below:

A link to the actual judgement of the court can be found below:

Copyright Seán J Crossan, 8 October 2019