Seán Crossan's Scots Law

Act of God?

Throughout the ages, God tends to be blamed for a lot of unfortunate events (it isn’t just a late 20th/early 21st Century phenomenon).

In the Scots law of delict (and in the English law of tort), there is a potential defence to an action for negligence known as damnum fatale or an act of God. The essence of this defence so the defender (or respondent) asserts is that s/he could not prevented harm from occurring to the victim because it was a completely unforeseeable event.

When discussing this defence, the standard case in Scotland to which many commentators refer is Caledonian Railway Co v Greenock Corporation (1917). In this case, the House of Lords was far from impressed by the Greenock Corporation’s argument that freakishly heavy rainfall during summer should be treated as an unforeseeable occurrence – in other words, an act of God. The Corporation had diverted the course of a local burn (stream) in order to fill a swimming pool. Heavy rainfall occurred and the water from the pool overflowed and flooded neighbouring property which belong to the Caledonian Railway. The Greenock Corporation was found liable to the Railway for the damage caused. The amount of rainfall might be unusual for other places in Scotland, but certainly not for Greenock. Knowing Greenock well, I can attest to the amount of rain that falls there on a regular basis and I think an argument could easily be made to confer upon it the dubious accolade of the wettest town in Scotland.

The defence of damnum fatale arose recently (and briefly) in a case before Lord Glennie in the Outer House of the Court of Session (see Allen Woodhouse v Lochs and Glens (Transport) Ltd [2019] CSOH 105).

I will say, of course, from the outset that Lord Glennie sensibly rejected any possible part that this defence might have to play in proceedings:

‘But I am left with this concern. My finding on the evidence is that the weather conditions were unpleasant and the wind was strong – but there was nothing exceptional about the conditions, winds of that strength were foreseeable, and extreme turbulence, being a feature of the topography of that area, could also be foreseen. For that reason I would have rejected the defence of damnum fatale, had it been necessary to consider it.’

The facts of the case were as follows:

Mr Woodhouse was a tourist, who was on a 7 day Ceilidh Spring Break, staying at the Loch Awe Hotel. As part of the package, the defenders (Lochs and Glens (Transport)) took the tourist party on day trips using one of its buses. On one of the day trips, Mr Woodhouse and his fellow tourists had stopped near the top of the well known beauty spot, the Rest and Be Thankful. The weather was particularly foul that day and, understandably, most of the tourists did not take the opportunity to leave the bus and go out to the viewpoint.

This part of the excursion was all too brief and the bus driver decided to leave the viewpoint. Shortly after the bus had pulled away, the driver became aware that the passenger door was slightly open and she stopped the bus to close it. When this was done, she started the bus and headed down the Rest and Be Thankful on the Inveraray side. By this point, the force of the wind had increased dramatically and the bus was effectively heading directly into the path of a violent gale. To cut a long story short, the driver took (what she believed were) reasonable precautions and moderated her speed and driving technique. Nevertheless, despite these measures, the bus eventually went off the road due to a combination of unfortunate events i.e. the uneven slope just above Loch Restil; the lack of a safety barrier at the time of the accident; the high winds and the build up of mud on the vehicle’s wheels as it attempted to navigate the grass verge which affected the braking system.

As a result of the bus leaving the road, Mr Woodhouse suffered injuries and he brought an action for compensation (£15,000) against Lochs and Glens (Transport) for the alleged negligence of its employee. Although Mr Woodhouse’s claim was initially lodged in the Sheriff Court, it was later transferred to the Court of Session in recognition of the importance of some of the issues and consequences which it raised (there were 51 other passengers on the bus that day).

Due to the fact that control of the situation was the responsibility of the defenders and its driver, the burden of proof switched to the defenders to demonstrate that they were not liable in negligence to Mr Woodhouse. The merits of his claim would, therefore, stand or fall on the basis of Mr Woodhouse’s reliance on the legal principle known as the facts speak for themselves (res ipsa loquitur).

In dismissing Mr Woodhouse’s claim for damages, Lord Glennie noted that:

‘I am persuaded on the evidence that the defenders have discharged the burden on them of proving that the accident happened without their negligence. The evidence that the coach was well maintained and did not suffer from any relevant pre-existing defect was not challenged; indeed it was a matter of agreement in the Joint Minute lodged in process by the parties. The only challenge, the only suggestion of fault advanced by the pursuer, was in relation to the actions of the driver.’

Critically, his Lordship went on to say that, although the bus driver may have misjudged the actual speed at which she was driving the vehicle, she had not been driving dangerously.

Taken together, all of these factors demonstrated that neither the defenders nor the driver were liable in negligence to Mr Woodhouse.

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

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh105.pdf?

Postscript

On Friday 21 February 2020, two women were injured in a Glasgow street when a shop sign was dislodged in high winds and landed on them. Were the high winds an act of God or did the store fail to safeguard against this type of incident? Read on …

Two women hit by falling M&S sign in Glasgow city centre

The pedestrians are taken to hospital after the sign landed on them outside the store in Argyle Street.

Related Blog articles dealing with defences to actions in delict:

https://seancrossansscotslaw.com/2019/01/26/volenti-non-fit-injuria-or-hell-mend-you/

https://seancrossansscotslaw.com/2019/12/09/howzat-or-volenti-again/

Copyright Seán J Crossan, 23 December 2019 & 21 February 2020

No smoke without fire …

Photo by Patrick Hendry on Unsplash

It would seem that Whirlpool, the domestic appliance manufacturer of Creda, Hotpoint, Indesit and Proline tumble dryers does not have its sorrows to seek as product defects (which could endanger the safety of the public) continue to plague the brand. The appliances have been nicknamed the ‘killer dryers’ because they may represent a fire risk.

Manufacturers of products have a duty of care to ensure that their products are free from defects which could cause damage to property or death or personal injury.

Related Blog article:

Help! The tumble dryer’s on fire!

https://seancrossansscotslaw.com/2019/06/14/help-the-tumble-dryers-on-fire/

Last week, the company admitted that nearly half a million of its appliances could have a serious manufacturing defect which could cause property damage and, more seriously, death or personal injury.

Whirlpool’s (civil) liability to victims is said to be strict in terms of a number of Acts of Parliament:

Sale of Goods Act 1979
Consumer Protection Act 1987
Consumer Rights Act 2015

There is also the issue of possible criminal liability for dangerous and defective products in terms of the Consumer Protection Act 1987.

Potentially, Whirlpool could be liable to a large group of people:

Business customers (retailers and traders) who purchased products from Whirlpool directly in terms of the Sale of Goods Act 1979; and
The ultimate consumer of the products i.e. any one who does not have a contract of sale with the retailer or manufacturer, but who may suffer property damage, injury or death as a result of exposure to the dangerous product (see Donoghue v Stevenson [1932] UKHL 100) in terms of the Consumer Protection Act 1987.

Those consumers who purchased dangerous item(s) directly from a retailer will, of course, have a contract of sale in terms of the Consumer Rights Act 2015 and they can take legal action against the retailer. The retailer can then pursue a claim against the manufacturer or supplier from whom they obtained the goods.

An excellent link to an article about the problems facing Whirlpool appliances can be found below by clicking on the link to the Which? website:

https://www.which.co.uk/news/2019/12/whirlpool-announces-recall-of-up-to-519000-indesit-and-hotpoint-fire-risk-washing-machines-in-the-uk/?utm_source=whichcouk&utm_medium=email&utm_campaign=whirlpoolrecall171219

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

http://news.sky.com/story/half-a-million-whirlpool-washing-machines-recalled-over-fire-risk-11889023

Copyright Seán J Crossan, 23 December 2019

A civil action

Photo by Mateus Campos Felipe on Unsplash

What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.

In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).

Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.

I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.

Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.

It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.

So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.

In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey [2019] EWHC 3508 (QB)).

It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.

A link to the judgement of the English High Court can be found below:

https://www.judiciary.uk/wp-content/uploads/2019/12/APPROVED-JUDGMENT-Young-v-Downey-18.12.19.pdf

The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.

In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.

Links to media articles about the two cases can be found below:

https://news.sky.com/story/hyde-park-bombing-ira-member-john-downey-was-responsible-for-1982-attack-11889683

Journalist wins Japan civil rape case

Related Blog Articles:

The public interest?

https://seancrossansscotslaw.com/2019/11/12/the-public-interest/

The burden of proof

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

Private prosecutions

https://seancrossansscotslaw.com/2019/05/29/private-prosecutions/

Copyright Seán J Crossan, 23 December 2019

Serious drugs

Photo by George Pagan III on Unsplash

Petitions for judicial review in respect of alleged breaches of Article 8 of the European Convention (right to respect for private and family life) submitted by serving prisoners seem to be very much in vogue.

At the beginning of December, we had the Court of Session dismissing a petition for judicial review submitted by William Beggs (the notorious ‘Limbs in the Loch’ killer (see William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95).

Some weeks later, another petition has been disposed of by the Court of Session which raised many of the same legal principles. David Gilday, another inmate of Her Majesty’s penal establishments, has proved to be no luckier than Beggs.

Gilday was complaining about a breach of his Article 8 rights when correspondence (a greetings card) addressed to him was seized by the prison authorities on suspicion that it was impregnated with unlawful (psychoactive) drugs. Suspicions had been raised when a sniffer dog gave the package more than usual attention.

Article 8 of the European Convention is not an absolute right and it may be limited by State authorities (in this case the Scottish Prison Service) for:

“… the prevention of disorder or crime and for the protection of health or morals.”

Lord Pentland in the Outer House of the Court of Session noted:

“… that prison officers sometimes come into inadvertent contact with psychoactive substances in prison and the view had been taken that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to such substances. That stance seems to me to be responsible and proportionate. In my opinion, a wide margin of discretion should be extended to the SPS to identify what constitutes a risk in a prison setting and to determine how best to address that risk … As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”

Consequently, the petition submitted by Gilday should be dismissed as the prison authorities had acted quite legitimately in interfering with the prisoner’s rights under Article 8 of the European Convention.

A link to Lord Pentland’s Opinion (Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers [2019] CSOH 103) can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh103.pdf?sfvrsn=0

Related Blog Article:

For your eyes only?

https://seancrossansscotslaw.com/2019/12/04/red-letter-day/

Copyright Seán J Crossan, 23 December 2019

Say what you want?

Photo by Denin Lawley on Unsplash

There is no such thing as the absolute right to free speech or free expression – not even in the United States of America. The US Supreme Court formulated the Miller Test as far back as 1973 which defined boundaries as to what forms of expression may constitute obscenity (see Miller v California 413 US 15 (1973)).

This country is (certainly) not America when it comes to the issue of freedom of speech. Although Articles 9 and 10 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998) do protect the individual’s right to freedom of conscience, thought etc and expression, there is recognition that the State may have good reason to restrict these rights (known as the margin of appreciation).

In an earlier Blog, I discussed the fact that the European Court of Human Rights ruled that denial of the Holocaust is not a belief which should be protected by law.

See:

Holocaust denial

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

A famous example of the margin of appreciation being utilised (and approved by the European Court of Human Rights) in this country was the decision of Wingrove v UK [1996]. Here the film, Visions of Ecstasy, used highly sexualised imagery in its depiction of religious themes. Such a presentation would have been highly offensive to devout Roman Catholics (and a breach of the then, very strict blasphemy laws). Consequently, the British Board of Film Classification (the UK censor) refused to allow the film to be released. In this case, it was felt that someone’s artistic freedom of expression would cause grave offence to another group of people.

Wingrove is a really a moot point these days given that, in 2008, the UK reformed its blasphemy laws and the uncut version of Visions of Ecstasy was given a theatrical release (with an 18 certificate) in 2012. Yet it remains an interesting example of the tension between diametrically opposed viewpoints and how the State can be forced to mediate between these.

A link to the Wingrove judgement can be found below:

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22wingrove%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58080%22]}

Gender Critical Speech

I was reminded about freedom of speech only this week when an Employment Tribunal put clear limits on an individual’s right to say certain things. The individual lost the case, but its aftermath has stirred up a hornet’s nest of recriminations, with even JK Rowling weighing in to criticise the Employment Tribunal.

The case in question was Forstater v 1) CGD Europe 2) Centre for Global Development 3) Masood Ahmed Case No 2200909/2019 18 December 2019. It involved Maya Forstater who was engaged by the Centre for Global Development (a Think Tank) as a Visiting Fellow from January 2015 to 31 December 2018. Ms Forstater is a professional researcher and writer on public policy, tax and business. She provided services in this respect to the Think Tank. She is also had an active social media presence on Twitter.

Ms Forstater had issued a number of tweets about UK Government policy in which she questioned the right of trans females to call themselves women. Several of her colleagues complained about these and stated that they were ‘transphobic’ in nature. When her contract with the Think Tank was not renewed, she took the view that this decision had been motivated by her statements on Twitter. She, therefore, took the view that she was being subjected to direct discrimination by reason of her beliefs in terms of Sections 4, 10 and 13 of the Equality Act 2010. Furthermore, Forstater argued that her rights to freedom of thought, conscience and religion and expression (Articles 9 and 10 of the European Convention) had been breached.

As Employment Judge Tayler noted:

“When questioned during live evidence the Claimant [Ms Forstater] stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.”

In dismissing Ms Forstater’s claim, Employment Judge Tayler stated:

“However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.”

A link to the Forstater judgement can be found below:

https://doc-08-3g-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/ro6ahkv1c745m9ad7rvct412fk1uvhmp/1576958400000/06325118964551598628/*/12P9zf82TicPs2cCxlTnm0TrNFDD8Gaz5?e=download

In arriving at his judgement, Employment Judge Tayler was influenced by an earlier decision which defined the scope of a person’s beliefs and whether they ought to be protected.

Mr Justice Burton sitting alone in the Employment Appeal Tribunal in the case of Grainger v Nicolson Appeal No. UKEAT/0219/09 [2009] formulated some pretty clear guidelines about what constitutes a belief capable of protection under the UK equality laws. His Honour stated that for a belief to be capable of protection, it must satisfy the following requirements:

It must be genuinely held.
It must be a belief and not … an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

We may not have heard the last of Ms Forstater who may well be given to leave to appeal against Employment Judge Tayler’s judgement.

A link to the decision in Grainger v Nicolson can be found below:

http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

A link to a report about the Forstater decision can be found below on the BBC News website:

Maya Forstater: Woman sacked over trans tweets loses tribunal

Maya Forstater lost her job after she questioned government plans to let people declare their own gender.

Author’s note:

Since the original article was published in December 2019, Ms Forstater has successfully appealed to the Employment Appeal Tribunal (EAT) and overturned the original decision of the Employment Tribunal.

Please see a link to the EAT’s judgement in this respect which was issued on 10 June 2021:

https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

Copyright Seán J Crossan, 21 December 2019

Employee or not?

Photo by Olivier Collet on Unsplash

We’re nearly at the year’s end and, funnily enough, I find myself returning to where I started this Blog: a person’s employment status.

The person in question is our friend, Jess Varnish, the former British and Olympic cycling champion who took British Cycling and Sport UK to an Employment Tribunal alleging wrongful dismissal. Ms Varnish lost that particular round, but she has now been given the right to appeal against the original Tribunal decision.

Wrongful dismissal (which is distinct from unfair dismissal) occurs when a person has their employment contract terminated and such a termination is a breach of the contract. Such situations commonly occur where an

Only individuals with a contract of employment as defined by Section 230(1) of the Employment Rights Act 1996 can bring a claim for wrongful dismissal against the employer. Such individuals are said to have a contract of service as opposed to a contract for services.

If you are an employee you either have entitlement to certain legal rights and protections – or the ability to acquire these e.g. the right not to be unfairly and/or wrongfully dismissed; the right to a redundancy payment; the right to request flexible working patterns etc.

If, however, you are engaged (not employed) by an organisation, you enjoy none of these rights or the ability to acquire them. This situation applies to an increasing number of people who are engaged on contracts for services.

In January 2019, the Employment Tribunal ruled that Ms Varnish was not an employee and, therefore, she did not have a contract of service with either British Cycling or UK Sport.

I am definitely going to keep an eye on developments in this case

A link to a story about the Jess Varnish legal action can be found below on the BBC News site:

Jess Varnish wins right to appeal in British Cycling case

Former Great Britain cyclist Jess Varnish has won the right to an appeal hearing in her employment case against British Cycling.

Hitman (or woman) for hire

Photo by Dimitri Houtteman on Unsplash

Implausible or unlikely as the above Blog title may sound, you can apparently hire people to carry out murders on your behalf – quite easily.

How did I find this out? Simply by chancing upon another Blog article on WordPress. This article exposed one chilling aspect of modern life: the reality of the so called ‘dark web’. This is an unregulated part of the internet where all sorts of criminal activities (arms dealing, drugs, human trafficking, prostitution – and even murder for hire) can be accessed.

The article in question (see the link below) discussed a situation where someone arranged the murder (or a ‘hit’) on their stepmother for $5:

https://wordpress.com/read/feeds/22973954/posts/2522423606

We often think of contract killings as being something straight out of Hollywood. After all, one of the most popular movies currently being aired on Netflix is ‘The Irishman‘ (directed by Martin Scorsese) which depicts the life and times of Frank Sheeran, an enforcer for the Mafia. In one of the scenes, an enquiry is put to Sheeran by Russell Bufalino, a Mafia boss: ‘I hear you paint houses?’ Painting houses has nothing to do with interior decoration, but rather that Sheeran is a gun for hire.

Going back a few years, a terrific (and underrated) Hollywood movie starring Brad Pitt and the late, great James Gandolfini (‘Killing Them Softly’) had scenes with the main character, Jackie Cogan (played by Pitt) negotiating contract killings with a Mafia lawyer – as if this was a normal business transaction (in certain worlds/sub-cultures it will be).

It so happened this morning, that I was discussing the law of contract with a group of students. In particular, I had planned to talk to them about void contracts. The above article was, therefore, something of a fortunate discovery in that arranging the murder of another person (for a fee) is a really graphic example of a void agreement. In other words, such an agreement is a criminal conspiracy.

I also have to add that I was pretty shocked at the very low value placed on the potential act of taking of another human life.

If an agreement (or part of it) is deemed to be void, it can have no legal force – it is as if it never existed. Neither party to the agreement can enforce it. So, if the person who hired the killer was unhappy that the murder had not in fact been carried out or had been botched in some way, would they have any legal redress?

I hope you answered absolutely not! The law would be a complete ass if participants in criminal conspiracies were able to enforce their agreements in the civil courts on the basis of contract law. Such a situation would positively encourage people to enter into all sorts of questionable activities.

It reminds me of the case recounted to my first year law class by Professor John Huntley many years ago (Everet v Williams [1725] 2 Pothier on Obligations 3 9 LQR 197). He told the story of the two highway robbers who agreed to split the proceeds of their crimes on a 50/50 basis. One of the robbers made off with the stash leaving his partner in crime with nothing. This unfortunate individual took legal action to recover his share. As Professor Huntley concluded, when the judge discovered the background to the legal action, he was very fair: he ordered that the two highwaymen should be put to death by hanging.

That is the moral of the story: if you get involved in a criminal conspiracy, the law does not offer you any protection if you are cheated by your partners in crime. Furthermore, silence (on your part) is probably a sensible option because to attempt to recover your share of the ill gotten gains would amount to a confession of guilt on your part. Don’t be naive and think you could be vague about the background to the legal action; the judge will almost certainly want to know why you are raising an action to recover a debt or items of property.

An interesting story, which appeared on the Sky News website (20 October 2022), about the consequences of hiring a contract killer can be found be clicking on the link below:

https://news.sky.com/story/gunned-down-at-the-drive-in-son-ordered-hit-on-his-own-mob-associate-dad-12725170

Copyright Seán J Crossan, 18 December 2019 & 20 October 2022

Decriminalisation?

Photo by Seán J Crossan

Don’t worry: I renewed my TV licence before the deadline.

Failure to obtain a TV licence (unless you benefit from an exemption) is a criminal offence and could be punishable by a fine of up to £1,000.

Currently, the Communications Act 2003 and the Communications (TV Licensing) Regulations 2004 contains the relevant law.

So, it was with some interest that I read that the UK Government intends to review the law and decriminalisation may be an option. This of course, would mean that it would no longer be a criminal offence for failure to obtain a TV licence.

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

https://news.sky.com/story/government-reviewing-decriminalising-non-payment-of-bbc-licence-fee-11888375

When beginning my introductory lectures about law and legal obligations, I often remark to my students that legal principles or rules (especially in relation to criminal law) are a reflection of society’s values.

Well, guess what? Society can move on or evolve. The law is a living, breathing entity. There is nothing fixed about it.

This week, a new UK Parliament will convene at Westminster following last Thursday‘s General Election. It is a widely accepted constitutional principle that no Parliament can bind its successors. The Prime Minister has already signalled his intention to take a very different path from the Parliament that sat between June 2017 and December 2019.

When discussing the possible decriminalisation with regard to non-payment of the TV licence fee, one of my students asked what would happen to those individuals who had previously been convicted of this offence?

Too bad; tough, I responded. That is the law and if you break it, you pay the penalty. So, a final word of warning: don’t be tempted to flout the law in the hope that decriminalisation will happen any time soon.

Commit the crime, pay the fine.

Copyright Seán J Crossan, 16 December 2019

Law or high politics?

Photo by Element5 Digital on Unsplash

Both is the answer to the question posed by the above Blog title.

And to what does the question refer? The British General Election results of Thursday 12 December 2019.

But before I venture some thoughts about what last Thursday’s results might mean for IndyRef2, I’d like to go back to the UK General Election of 1992. It may be instructive to remember the words of Jim Sillars, a then prominent Scottish Nationalist politician and Westminster Parliamentarian:

‘We have not yet resolved the paradox of when Scotland votes for the Labour Party and England votes for the Tories [the Conservative Party].’

Returning to the events of the General Election just past, Sillars’ remarks can be easily updated to read what happens when Scotland votes for the Scottish Nationalist Party, but England votes for the Conservatives?

Like all good questions, there is no easy answer to it. Yes, Boris Johnson MP is now the Prime Minister of a Conservative Party majority UK Government. Brexit will now almost get done (excuse the poor English – not mine).

And yet, there may be trouble ahead.

As predicted, the UK Government has restated its opposition to Indyref2.

Yesterday, during Sophy Ridge’s Show on Sky News, Michael Gove MP, a senior UK Cabinet Minister, rejected the idea of a second independence referendum (please see the link below):

http://news.sky.com/story/michael-gove-absolutely-rules-out-second-scottish-independence-referendum-11887189

Nicola Sturgeon MSP, First Minister of Scotland quickly responded by stating that Scotland ‘cannot be imprisoned’ within the UK:

https://www.bbc.co.uk/news/av/election-2019-50801743/nicola-sturgeon-scotland-cannot-be-imprisoned-in-uk

So this is where law and high politics collide.

Firstly, what’s the legal position?

The last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) too place because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh (St Andrew’s) Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Secondly, what’s the political position and where does the Scottish Government go from here?

This is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister is pointing to her democratic mandate from the Scottish electorate after the SNP increased its share of Westminster parliamentary seats from 35 to 48. Any refusal on part the UK Government to approve another referendum can and will be portrayed as a deliberate denial of the Scottish people’s fundamental democratic rights.

I often have to remind my students that when we elect a Parliament, we are appointing legislators (law makers) – as well as politicians.

Mr Johnson is clearly political master of all he surveys …

… for now at least.

Both Governments are clearly playing to their respective constituencies and it will be interesting to see if a greater impetus for Scottish independence begins to build north of the border.

The next Scottish parliamentary elections in May 2021 will provide some idea of the strength (or weakness) of the pro-independence cause.

Currently, despite the SNP’s electoral successes last Thursday night, Nicola Sturgeon and her Government certainly have the weaker hand, but in a political poker game of high stakes (the survival or dissolution of the 300 year old union between Scotland and England), high politics may well yet overcome dry, legal arguments.

As the German statesman, Otto von Bismarck noted:

‘Politics is the art of the possible.’

The old statesman also remarked:

‘Politics is not a science, as the professors are apt to suppose. It is an art.’

Who will be the more artful politician: Nicola Sturgeon or Boris Johnson? Time will tell.

Related Blog articles:

A step closer? Indyref2?

A step closer? Indyref2?

Bring it on! (or Indeyref2?)

Bring it on! (or IndyRef2?)

Joint and several liability?

Photo by James Day on Unsplash

This week, purely by chance, I seem to be on a bit of a theme: discussing the legal implications of the Glasgow Bin Lorry Accident which occurred on 22 December 2019.

You can read about the events of that unfortunate incident by accessing the link below to my previous Blog:

https://seancrossansscotslaw.com/2019/12/10/post-traumatic-stress-or-psychiatric-injuries/

The previous Blog discussed claims for psychiatric injuries in relation to the tragedy in Glasgow, but another legal action at the Court of Session in Edinburgh, stemming from these events, has just been determined this very week.

The case in question is Glasgow City Council v First Glasgow (No 1) Ltd [2019] CSOH 101.

It will be recalled that it was Harry Clarke, the driver of the bin lorry or refuse collection truck, who had suffered a blackout while driving due to an undisclosed medical condition. He had lost control of the vehicle and this had caused the accident which resulted in the deaths of 6 people and injuries to 15 more in Glasgow City Centre.

Glasgow City Council, Clarke’s employer, was vicariously liable for his negligence. This is now a question of fact. What was in dispute, however, was whether Clarke’s former employer (First Glasgow), a bus company where he was employed as a driver, should also bear liability for his role in the tragedy?

Why – you may well ask?

As Lord Ericht, the trial judge, noted the argument advanced by Glasgow City Council amounted to the following:

‘The sole ground on which this case is pled is a narrow one. The case is pled solely on the basis of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.’

Section 3 of the above Act addresses a situation where two defenders or more could be held jointly and severally liable for wrongful or negligent acts or omissions.

Glasgow City Council had already paid out substantial damages to the families of the deceased and to those who suffered injury on 22 December 2014 (£860,000 together with expenses of £43,714.40). The Council was now seeking to recover these sums in ‘their entirety’ from Clarke’s former employer.

There two issues in the case were as follows:

1. Whether it is necessary for a claim under the 1940 Act that both the pursuers and defenders be under a duty of care to the injured person; and

2. If the answer to the first issue is yes, did the defenders in this case have a duty of care to the injured person?

Essentially, the Council’s argument rested on First Glasgow’s knowledge of Clarke’s medical condition and the potential dangers that this represented if he continued to drive for a living.

Reference was made by the Council to a previous incident that occurred in April 2010:

“On 7 April 2010, Clarke lost consciousness whilst driving a bus when engaged in the course of his employment with the defenders [First Glasgow]. The type of episode from which he suffered was similar to that which was ultimately suffered by him during the events [of 22 December 2014]. The incident was investigated by the defenders and it was known by them that he could present a risk to passengers and others should there be a repetition of the event. In the course of the investigation by the defenders, Clarke changed his story about where and how he had suffered the fainting episode. Any reasonable investigation would have revealed that he was being dishonest to those trying to assess his ability to drive.”

In fact, the Council had sought a reference about Clarke from First Glasgow as to his suitability for employment. It was claimed by the Council that the reference request would almost certainly have asked for information about Clarke’s general health and any issues in this regard which would have impaired his ability to carry out driving duties. Unfortunately, the reference was not produced by the Council on the grounds that it had either been lost or misplaced.

The Council pointed out in its submissions to the Court of Session that First Bus should have informed it (as Clarke’s new employer) about the danger he represented if he was given a driving job. Had the full extent of Clarke’s health problems been notified to the Council, he would not have been allowed to continue in his employment as a driver. The Council would have then (possibly) sought to redeploy him in a non-driving role.

In this sense, the Council was attempting to rely upon the principle of foreseeability alone as creating the basis for a duty care owed to it by First Glasgow. Lord Ericht expressly rejected this reasoning by focusing on the tripartite test laid down by Lord Bridge in Caparo Industries PLC v Dickman [1990] UKHL 2 (a judgement of the House of Lords) which emphasised the following factors which need to be present in order to establish a duty of care:

foreseeability;
proximity; and
fairness, justice and reasonableness.

Significantly, Lord Ericht highlighted the fact that First Glasgow had issued the reference about Clarke to Glasgow City Council. It was, therefore, issued for the new employer’s benefit alone. It was not meant to benefit members of the public (a very broad class of people) and, critically, the public was completely unaware of the existence of said reference and could not in any way be said to have relied upon it.

In arriving at his decision, Lord Ericht made the following statement:

“In order to succeed in its claim under section 3, the pursuers will have to establish that the defenders were directly liable to the injured party in negligence in respect of a reference given by the defenders to the pursuers. The issue which came before me for debate was whether as a matter of law, in the circumstances of this case, a previous employer who gives a reference to a new employer can be liable in negligence to a third party who is injured by the employee during the course of his new employment.”

His Lordship went on to say:

“In my opinion for the 1940 Act to apply both parties must be liable to the injured person. Section 3(2) operates in situations where both A and B are liable to C. It does not operate where only A is liable to C, but B is liable to A.”

Reference was also made by Lord Ericht to the decision of the House of Lords in Spring v Guardian Royal Assurance PLC [1994] UKHL 7 where the claimant, an ex-employee of Guardian Royal Assurance, was prevented from gaining new employment in the insurance industry because Guardian Royal provided a prospective employer of the claimant with a negligent employment reference. The reference claimed that the claimant had committed fraud while he had been working for Guardian Royal. This was not true, the claimant had merely been incompetent in carrying out his duties for Guardian Royal.

Held: by the House of Lords that Guardian Royal owed the claimant a duty of care and it was foreseeable that he would suffer harm as a result of the negligent reference. Clearly, the claimant and Guardian Royal had a special relationship – that of employer and employee.

To the disappointment of Glasgow City Council, Lord Ericht chose to distinguish Spring from the present case before him:

“The case of Spring v Guardian Assurance established that an employer giving an employment reference owes to the employee who is the subject of the reference a duty of care and would be liable to the employee in negligence if he failed to do so and the employee suffered economic damage. In the present case, the court is being asked to go further and find that there is a duty of care to a third party who is neither the employee nor the recipient of the reference. This is an exercise which must be approached with great care.”

Interestingly, one of the issues raised by Counsel for First Glasgow was that it was under no duty to disclose the incident of 7 April 2010 to the Council (when Clarke fainted while driving) because doctors who had examined him stated that it was extremely unlikely to happen again.

In this respect, First Glasgow did not owe a duty of care to Clarke’s victims. Therefore, the provisions of Section 3 of the Law Reform (Miscellaneous Provisions) Act 1940 did not apply to this situation and the Council’s claim for damages from First Glasgow was dismissed.

A link to Lord Ericht’s Opinion in the Outer House of the Court of Session can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh101.pdf?sfvrsn=0

A link to an article in The Scotsman About the case can be found below:

https://www.scotsman.com/news/glasgow-council-lose-legal-bid-to-avoid-paying-1m-compensation-to-bin-lorry-crash-victims-1-5060212