The latest Blog title sounds like the name of a quaint English or Scottish public house, but as you might expect it relates to matters legal.
This last week, I have just begun to teach my First Year university students about the law of delict (or tort in other common law jurisdictions) and, as always, I’m looking for relevant cases or stories in the news to illustrate this area.
Obligingly enough, a report of a case came through on Friday 17 January 2020 about a plumber called Darren Conquer who has just been awarded £540,000 in damages by the Outer House of the Court of Session as a result of being the victim of medical negligence (see Darren Conquer v Lothian Health Board  CSOH 8).
As I often say to students the basis of the law of delict is loss or injury wrongfully caused (or as the Romans would have said: damnum injuria datum).
Mr Conquer had injured his arm while playing football and he had, subsequently, undergone medical treatment for this. This is where it gets interesting: the injury had occurred some 16 years ago, but Conquer was not suing the person or persons who had injured him during the football match.
This is, of course, where the issue of volenti non fit injuria arises. When you engage in a physical sport, like football, you must accept the risk of possible injury – on the proviso that all of the players conduct themselves properly and within the rules of the game.
The basis of the pursuer’s claim was that the Health Board, as the employer of the doctors who treated him, was vicariously liable because the injury to the arm been misdiagnosed and, consequently, the proper medical procedures had not been followed. Put simply, the pursuer was arguing that the Health Board was culpable or at fault for his losses.
Had the correct diagnosis been made by the doctors and the correct treatment applied, the pursuer would have made either a full recovery or nearly a full recovery and would have been able to return to his job within 6 months of sustaining the injury. The real issue seems to have centred around the failure by the doctors to carry out surgery on the pursuer at a much earlier and vital stage of his treatment.
In short, the medical negligence was the primary cause (the causa causans) of the pursuer’s losses i.e. his inability to work at his chosen trade of plumber (a skilled trade where he had the potential to make a good living).
The doctors treating Conquer owed a duty of care to him and they had been negligent in the manner of both the diagnosis of the severity of the injury and the treatment which followed (or didn’t follow perhaps more accurately).
A link to the opinion of Lady Carmichael in the Outer House can be found below:
A contract will seldom be formed as a result of actual violence but threats of violence are more probable. Violence or the threat of violence must be of such a nature that they are enough to overwhelm a mind of ordinary firmness. Colloquially, one might say that there should be no literal gun placed to the head of another person in order to get them to enter a contract. Force and fear will have the effect of making the putative contract void. Threats to take legitimate legal action against someone do not fall into the category of force and fear.
I was reminded of this area of contract law today when reading a report of the activities of the Sicilian Mafia which is responsible for a €10 million agricultural fraud involving European Union subsidies. The Mafia has become particularly adept at creaming off these subsidies over many decades.
One of the features of the most recent fraud to be exposed is the time honoured Mafia practices of extortion and intimidation: law abiding Sicilian landowners are pressurised to sell their land to criminal enterprises which then go on to ‘milk’ the seemingly bottomless pit of EU subsidies. In the parlance of The Godfather, these law abiding citizens are made an offer they can’t refuse and, in the absence of effective law enforcement combined with the traditional weakness of the Italian State, what else are they supposed to do? It would take an extremely brave person (perhaps foolhardy) to stand up to such threats.
A link to the story about the activities of the Sicilian Mafia as reported in The Independent can be found below:
When introducing students to the law of contract, one of the first Scottish cases that I discuss with them is several hundred years old – Earl of Orkney v Vinfra (1606) Mor 16481.
It tends to stick in their minds – possibly – because of its particularly lurid details. I often say to the students that the story reads like something from either The Godfather Trilogy or The Sopranos TV series.
Andrew Vinfra was summoned to the Earl’s castle. He was presented with a deed (a formal document) by the Earl, the feudal overlord of the Islands, and he was ordered to sign it. The document was an agreement that Vinfra was to pay the Earl the sum of 2,000 Merks. Vinfra had no intention of agreeing to this proposition, whereupon the Earl started to curse and swear at him. The Earl then bluntly declared to Vinfra that he would drive his whinger (dagger or dirk) into Vinfra’s skull. The terrified Vinfra’s resolve completely crumbled at this point and he signed the document. He was wise to do so: the Earl had a notorious reputation for thuggery and violence. Murder was well within his capabilities.
Later, when at a safe distance from the Earl, Vinfra took steps to have the contract declared void on the grounds that he had signed the document because the Earl had used force and fear. The Earl attempted to pass off the incident as high jinks, but Vinfra was able to prove that his fear of being murdered was genuine. The court declared that the agreement was void: it had not been entered into voluntarily by Vinfra. It could not be enforced by the Earl against Vinfra. It was treated as if it had never existed.
The students, of course, love the drama of Vinfra’s ordeal and they naively scoff that this situation wouldn’t happen today …
My riposte to that attitude is to remind them that there are places not too far from Scotland where organised crime is a feature of daily life. The latest report of events from Sicily tends to bear this out.
Further reading about the Italian Mafia organisations and its ‘business’ activities can be found below:
Mafia Business: The Mafia Ethic and the Spirit of Capitalism by Pino Arlacchi (1986: Verso Books)
Cosa Nostra: A History of the Sicilian Mafia by John Dickie (Hodder: 2007)
Mafia Republic: Italy’s Criminal Curse. Cosa Nostra, ‘Ndrangheta and Camorra from 1946 to the Present by John Dickie (Sceptre: 2014)
The Sicilian Mafia: the Business of Private Protection by Diego Gambetta (Harvard University Press: 1996)
Gomorrah: Italy’s Other Mafia by Roberto Saviano (Picador Classic: 2012)
More years have passed than I care to remember, but ITV would broadcast a television series called Crown Court made by Granada (one of the ITV companies). The programme was basically involved dramatic reconstructions of criminal trials which had taken place in the real Crown Court. It was very popular with viewers – as unsurprisingly these types of dramas tend to be – running for a total of 11 series (or seasons as our North American friends might say) from 1972 until 1984.
I’m going to say that I’m far too young to remember the original broadcasts and it was the repeats that I saw during the school lunch break when I would be at my recently retired great aunt’s house.
If readers are so minded, there is a link below to one of the episodes on the Youtube:
The reason why I’m recalling Crown Court is due to the fact that permission will soon be granted which will permit television cameras to be used in the real Crown Court in England and Wales. This is part of a push to increase public awareness of the criminal justice system in England and Wales.
The Crown Court (Broadcasting and Recording) Order 2020 will soon be ratified by the UK Government which will permit the limited broadcasting of certain proceedings – primarily sentencing statements of judges.
Please see a link below to a press release issued by the UK Government in this regard:
I did not know until today that it has been over 100 years since cameras were allowed into an English criminal court – the trial for murder of Doctor Harvey Hawley Crippen in 1910 at the Old Bailey in London (or the Central Criminal Court).
The Crown Court is the location for trials which proceed on indictment before a jury (or as we would say in Scotland, it is a court of solemn procedure). In some respects, this court is a hybrid of the Scottish Sheriff Court and the High Court of Justiciary.
Overseas readers – those in North America particularly – will probably shake their heads in disbelief about this story. After all, both civil and criminal cases are regularly televised in that part of the world. What’s the fuss?
I must confess that I don’t really share the excitement about this development in the Crown Court. It’s not because I have any major objections to television broadcasts of trials – subject of course to safeguards being put in place for vulnerable witnesses and victims. As someone who principally deals with Scots Law, I just have a feeling of déjà vu. In Scotland, we have been here before and our English brethren, it seems, are left playing catch up.
Back in the 1990s, BBC Scotland made a ground-breaking television series called The Trial which consisted of 6 episodes looking at a particular aspect of Scottish criminal justice. Our library had a copy of the series and I would often show a particular episode – The Loan Path Murder – to my First Year law students. It was an excellent educational tool because it involved a real murder trial consisting of court-room footage (i.e. cross-examinations of the accused and the principal witnesses); and the defence and prosecuting counsel had an input (as well as the defence solicitor for the accused). The programme makers avoided sensationalism and the viewers got a realistic and measured insight into the world of Scots criminal law.
Over the last few decades, BBC Scotland has made further forays into the Scottish legal system (with varying success it has to be remarked). That said, in January 2020, the television station has just broadcast a programme called Murder Trial: The Disappearance of Margaret Fleming. Over two episodes. the background to a murder trial involving the disappearance of a vulnerable young woman is explored with contributions from Police Scotland, the Crown prosecutor, defence counsel and journalists who covered the story. All episodes are currently available on the BBC iPlayer.
A link to the trailer for the programme can be found below:
In any event, sentencing statements by Scottish judges in the High Court of Justiciary are regularly available on broadcast media and I often use this as learning resource for my students when trying to explain to them how the judges decide what sentence should be imposed on the now guilty party.
Even the UK Supreme Court has permitted cameras and no doubt many members of the public were gripped by the prorogation of the UK Parliament proceedings at Guildhall, London in September 2019.
I do want to finish on a positive note: anything that demystifies the criminal law (and the legal system more generally) is to be welcomed. The court room is still to be regarded as a serious place and, if programme makers behave sensibly and sensitively, there is no reason why this should be undermined. When I arrange visits to the High Court of Justiciary for my students, from time to time, I do remind them that court is not about entertainment and one of the ground rules that we go over is no filming or taking photographs while they are on the premises. There are limits to some things.
Links to the story about the announcement that TV cameras are to be permitted into certain Court Court proceedings can be found below on the Sky News website:
Here, in the United Kingdom, the Brexit saga seems to be drawing to the end of stage 1 i.e. ratification of the withdrawal agreement that the EU and British Government of Boris Johnson have negotiated. The European Union (Withdrawal Agreement) Bill is likely to pass through the House of Lords this week or early next week.
Meanwhile in the rest of the EU, business seems to be going on fairly normally and, it was with some relief this week that I read about a forthcoming decision of the Court of Justice concerning the operation of the Single European Market – and not about Brexit.
The Republic of Hungary, a fellow EU member state – for the present time anyway, may be on course to lose this case which, at its heart, addresses the free movement of capital. Essentially, Hungarian law may well be incompatible with the operation of the Single European Market and, as well we know, EU Law enjoys primacy over domestic law:
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1
Case 6/64 Costa v ENEL  ECR 585, 593
HP Bulmer Ltd & Anor v J. Bollinger SA & Ors  EWCA Civ 14
Case 148/78 Pubblico Ministero v Ratti (1979) ECR 1629
Defrenne v Sabena  ECR 455,  ICR 547,  1 All ER 122
C-106/77 Simmenthal  ECR 629
C-106/89 Marleasing  ECR I-7321
In 2017, Hungary passed a law which compelled non governmental organisations (NGOs) to declare their sources of funding to the Government (this information would then be available via a publicly accessible website). If a group received funding from a foreign individual or organisation above the value of 500,000 Hungarian Forints (or €1500 euros), this had to be made public. Furthermore, groups finding themselves in receipt of such funding had to declare themselves as ‘organisations in receipt of support from abroad’ on their websites and in their official communications.
The measure became popularly known in Hungary as the ‘Stop Soros’ Law – a reference to the antipathy of the Government of Hungary towards George Soros, the Hungarian-American billionaire. Soros is an energetic supporter of liberal social values which are often at complete odds with the right wing and ultra conservative views of the Hungarian Government.
A link to a story about the background to the Law can be found on the Reuters’ website below:
Advocate General Campos Sánchez-Bordona has just issued an Opinion about the legality of Hungarian law in this respect. The controversial Hungarian Prime Minister, Viktor Orbán, has long been hostile to groups in civil society who are opposed to his Government’s aims and objectives and which receive funding from abroad.
According to the Advocate General, Hungarian law potentially breaches the free movement provisions of the Single European Market in relation to capital – as well as data protection, freedom of association and privacy rules contained in the European Charter of Fundamental Rights (see Case C-78/18 European Commission v Hungary).
A link to the Advocate General’s Opinion can be found below:
This Opinion is not the end of the matter because it is always worth remembering that the Court of Justice may not approve it when it makes its decision on the matter. As the Advocate General currently sees things, Hungarian law disproprotionately discriminates against those individuals and organisations who are not Hungarian. It is a barrier to the legitimate, free flow of capital across the borders of EU member states.
The Single Market (or Project 1992) came into existence on 1 January 1993. The Project saw the 12 member states of what was then the European Communities (the Coal and Steel Community, Euratom and the EEC collectively) implement ambitious plans to ensure frictionless trade. It was said that British businesses would find it as easy to sell goods or to provide services in Madrid as they presently were able to do so in Manchester.
The Single Market was based on 4 fundamental principles:
Free movement of persons
Free movement of goods
Free movement of services
Free movement of capital
Over the years, a huge amount of case law has built up around free movement of persons, goods and services, but it is rarer to see a decision of the Court of Justice regarding free movement of capital or money. Yet, free movement of capital is an essential corollary to the smooth operation of the Single Market.
How, for example, would consumers of goods and services in one member state pay for these if legitimate or honest money cannot flow back and forth across borders? Please note that I am not advocating the removal of all barriers to free movement – I am all too aware of the necessity to combat the money laundering activities of organised crime. Anyone who has read Misha Glenny’s excellent and terrifying book, McMafia: Seriously Organised Crime (2017: Vintage), will appreciate the real challenges that free movement of capital represents for law enforcement agencies across the EU.
Put simply, the 3 more prominent freedoms of the Single Market would grind to a halt if money was subject to all sorts of unrealistic barriers e.g. member states being able to impose very restrictive limits on the amount of money citizens could move in and out of the country. With the globalisation of financial services, many of us will either have forgotten these types of restrictions – or never experienced them.
When speaking to younger people, it often strikes me that many of them, who do travel regularly to Europe, have any real concept about things like tariff barriers, currency restrictions or passport controls. Brexit (and all its ramifications) may well be something of a wake -up call.
Admittedly, the original founding Treaty of the European Economic Community or the EEC (the Treaty of Rome) did envisage free movement of capital.
One of the first cases that I remember from my studies in EEC Law was Case 286/82 Luisi and Carbone v Ministero del Tesoro  ECR -00377. At that time, Italy operated currency restrictions which meant that its citizens were limited to the amount of money that they could take out of the country. Luisi and Carbone were both fined by the authorities for taking more money out of the country than they were permitted under current domestic law. They argued that Italian law was in breach of the Treaty of Rome because it prevented them from going to another member state in order to receive services (and to pay for these). The Court of Justice was of the view that the restrictions imposed by Italy were unduly excessive.
In the 21st Century, we often forget that restrictions on movements of people, goods, services and capital were very common place. It is the direct influence of the European Single Market that consigned many of these barriers to trade to the status of historical curiosities.
Who’s ‘I’? Amanda Pinto – that’s who, but more about her later.
In Scottish criminal procedure, we place a great deal of emphasis on the principle of corroboration. In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond reasonable doubt. This is a very strict burden and, in Scotland, the prosecution achieves this standard by corroborating its evidence against the accused. Corroboration means that there must be at least two independent sources of evidence such as witness testimony and the use of expert and forensic evidence. Reasonable doubt is a nagging doubt which would lead a reasonable person to the conclusion that it would be unsafe and unjust to find the accused guilty.
Not every legal system places such importance on the principle of corroboration: some of our English brethren seem (very) disinclined to follow us.
This week, distaste for corroboration has been voiced somewhat forcefully by Amanda Pinto QC, the incoming Chairperson of the Bar Council of England and Wales (the English equivalent of the Faculty of Advocates). Ms Pinto represents some 16,000 barristers and her views are therefore not to be dismissed easily.
Of particular concern to Ms Pinto seems to be UK Government proposals to introduce an element of corroboration into English criminal legal practice. Speaking to Jonathan Ames of The Times (of London), her main objection to the introduction of corroboration appears to be in relation to rape trials:
“We’ve rightly come away from requiring corroboration [in England and Wales],” she says. “Because if you require corroboration in something that is typically between two people, then you restrict access for justice for some victims entirely.”
Several years ago in Scotland, we also had a discussion on the merits of the continued use of corroboration in criminal proceedings. Lord Carloway (now the Lord Justice General), Police Scotland and the Crown Office and Procurator Fiscal Service were of the opinion that this requirement should be abolished. Significantly, the Faculty of Advocates and the Law Society of Scotland were opposed to this development. Warnings of possible miscarriages of justice were raised if this was allowed to happen. Corroboration was retained.
Nore recently (in 2019), groups representing survivors of sexual abuse made powerful and emotional submissions to the Scottish Parliament arguing that the requirement of corroboration be abolished. We still have the principle in place in Scotland.
Responding to these submissions by abuse survivors, Brian McConnochie QC, a senior member of the Faculty of Advocates went on record defending the current evidential requirement:
“I know that some people consider that corroboration is something which we ought to abandon or abolish, and as often as not the argument is given that it should be abolished because nobody else has it. I’ve never been convinced by that argument. We went through a process where it was discussed at significant and considerable length, and at the end of that process the decision was taken that it should go no further.”
James Wolffe QC, the current Lord Advocate (head of the Scottish prosecution service) has openly stated that a review of corroboration could be on the cards, but Gordon Jackson QC, current Dean of the Faculty of Advocates has voiced the Faculty’s continuing opposition to such a development:
A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.
Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.
What about a person who declares themselves to be pansexual?
According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.
An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.
Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:
The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.
Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …
Explaining her reason for going public about her sexual orientation, Ms Moran stated that:
“… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”
A link to the story in Pink News can be found below:
Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports ).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below: