Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Postscript

Lest we become judgemental about the US Penal system, on 4 October 2019, The Guardian reported that the new born child of an inmate at HM Prison Bronzefield in Surrey had died. The mother had been in an “advanced state” of pregnancy, but had been left alone in her cell overnight when she had given birth to the child.

A link to the story can be found below:

https://www.theguardian.com/society/2019/oct/04/baby-dies-in-uk-prison-after-inmate-gives-birth-alone-in-cell

Copyright Seán J Crossan, 10 September and 4 October 2019

Stop the coup …?

Photo by Samuel Zeller on Unsplash

On 28 August 2019, the UK Prime Minister, Boris Johnson MP announced that he would seek the permission of Queen Elizabeth II, the British Head of State to prorogue (suspend) the sitting of the Westminster Parliament between 10 September and 14 October 2019. The Queen duly acceded to this request – though in her defence she could not really refuse being a mere ceremonial Head of State i.e. without possessing real executive powers

The Prime Minister has argued that there was nothing untoward or sinister about this development and that it was a necessary step to introduce a new Queen’s Speech which would set out the priorities of the Government which he leads.

This did not convince opposition politicians (Jeremy Corbyn, Nicola Sturgeon and Jo Swinson et al) who predictably labelled the move a “coup” i.e. an unlawful seizure of power and the undermining of British democracy. They argued that the move to suspend Parliament for 5 weeks was more about the Prime Minister driving his Brexit agenda through without proper parliamentary scrutiny – not about a new legislative programme.

In any event, the courts have now become involved in the matter: 78 British parliamentarians (representing all strands of political tradition) petitioned Scotland’s Court of Session to have Prime Minister Johnson’s action declared invalid.

A preliminary hearing took place last week and the judge, Lord Doherty was refused to grant the petitioners an interim interdict (a temporary court order) preventing the Prime Minister from carrying out his intention to prorogue the UK Parliament. A full hearing of the Court followed on Tuesday 3 September in Edinburgh, where both sides (the petitioners and the UK Government) set out their respective legal arguments in full.

As of this morning (Wednesday 4 September 2019), Lord Doherty has made his decision whereby he has declined to uphold the petition to prevent the Prime Minister from proroguing Parliament.

A link to Lord Doherty’s opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

The underlying rationale of Lord Doherty’s judgement seems to be that this political and not a legal matter. In other words, it will be for members of the UK Parliament – or ultimately the British electorate – to sort out this matter.

A link to the Evening Standard’s website containing video footage of Lord Doherty delivering the substance of his opinion can be found below:

https://www.standard.co.uk/news/politics/scottish-courts-throw-out-challenge-to-boris-johnson-proroguing-parliament-a4228621.html

This will not be the final word on the matter – there are bound to be appeals against Lord Doherty’s judgement (and he may well be relieved to be exiting stage left). I would not be surprised if this matter ultimately proceeds to the UK Supreme Court for a definitive judgement.

This, of course, is one of the problems with having an unwritten British Constitution. In other countries, which have written constitutions (France, Germany, Italy and the USA), there are very clear rules about suspending Parliament or the national legislature. Only last week in Italy, the prominent politician Matteo Salvini withdrew his party (the Northern League) from the Government in an attempt to force fresh, national elections. Mr Salvini miscalculated because the Italian President (the Head of State) decided not to dissolve Parliament and call new elections. Rather the President gave Salvini’s ex-coalition partner, the 5 Star Movement, and the Democratic Party an opportunity to form a new government (which they have duly managed to achieve). President Mattarella was clearly entitled to take this action under the relevant Articles of the Italian Constitution.

This does not mean that, in political systems with written constitutions, the courts have no role. Of course they do. It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

In such circumstances, it’s hardly surprising that Lord Doherty is only too happy to pass the buck to the politicians … for now anyway …

Watch this space.

Postscript

The Inner House of the Court of Session (consisting of Lords Carloway, Brodie and Drummond Young) will now hear an appeal by the petitioners against Lord Doherty’s judgement. This is scheduled to take place the week beginning Monday 9 September 2019.

In a separate, but connected, legal challenge, the English High Court rejected a bid by the campaigner, Gina Miller, to have the prorogation of Parliament declared unlawful. Leave to appeal to the UK Supreme Court has been granted.

Copyright Seán J Crossan, 4 and 6 September 2019

Facebook folly

Photo by Kon Karampelas on Unsplash

Regular readers of this Blog will be aware that a number of my previously published articles have commented on individuals being dismissed from employment because they posted offensive or ill advised comments on social media platforms.

Such dismissals can be potentially fair grounds for termination of the contract of employment because the employer will able to claim that the employee’s behaviour (or misconduct) has caused reputational damage.

Section 98 of the Employment Rights Act 1996 makes it very clear that that acts of misconduct committed by the employee can constitute fair grounds for dismissal.

An interesting case which was reported today is McAlpine v Sodexo Justice Services (Sodexo Ltd) ET Case 4121933/18 where McAlpine, a prison officer employed at Her Majesty’s Prison Addiewell, lost his claim for unfair dismissal. On the facts, the Edinburgh Employment Tribunal held that Sodexo, the employer, was justified in dismissing McAlpine for posting offensive comments about Muslims (amongst other things) on Facebook while he was off duty.

It was not a competent defence put forward by McAlpine that some of the remarks which he posted were not his own, but rather those of the far right activist and campaigner, Tommy Robinson (real name Stephen Yaxley-Lennon).

Sodexo had a clear social media policy for its employees and the relevant sections can be found below:

6.1 You must avoid making any social media communications that could damage our business interests or reputation, even indirectly…

6.2 You must not use social media to defame or disparage us, our employees or any third party; to harass, bully or unlawfully discriminate against employees or third parties; to make false or misleading statements; or to impersonate colleagues or third parties”.

In a section entitled Miscellaneous Rules, individuals were informed about the following conditions governing their employment with Sodexo:

Employees must be honest at all times, in connect with their employment and must not breach the trust and confidence that is provided to them by the Company or Client. … Employees must not engage in, condone or encourage any behavior that could be regarded as harassment, bullying, victimisation or discrimination”.

Significantly, Sodexo had also stated that a “… breach of any of these rules would be considered gross misconduct”.

The Employment Tribunal was satisfied that in deciding to dismiss McAlpine for misconduct, the employer had followed its disciplinary procedure correctly and the ultimate sanction of termination of his employment was within the band of reasonable responses.

It is worth noting that the employer’s disciplinary procedures were fully in accordance with the current ACAS Code of Practice.

In these circumstances, it can hardly be surprising that McAlpine lost his case.

A link to the Employment Tribunal’s judgement can be found below:

https://assets.publishing.service.gov.uk/media/5d1dcab8ed915d0bc72d8700/McAlpine_v_Sodexo_-_4121933-2018_-_Judgment.pdf

Copyright Seán J Crossan, 3 September 2019

Space oddity?

Photo by History in HD on Unsplash

It had to happen at some point: the first allegation of a criminal act in outer space.

The locus: the international space station orbiting Planet Earth.

The suspect: a NASA astronaut.

The alleged offence: the astronaut in question is accused of hacking into her ex-wife’s bank account from the international space station. Good old fashioned fraud or theft in a hi-tech setting. At last reality is catching up with all those fictional crime dramas set in outer space.

Which criminal law has jurisdiction? Good question.

Thankfully, we have a point of reference: Article VIII of the 1967 Outer Space Treaty.

Article VIII states:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

That said, no single State/country or Agency (e.g. NASA or ESA/ASE) controls the international space station. We do have an Inter-governmental Agreement signed in 1998 regulating the space station and Article 22 is particularly relevant (please see the image below):

Under the terms of Article 22, it looks as if the Americans probably have jurisdiction in the matter because one its astronauts is alleged to have committed the crime.

Readers can find a link below to the Inter-governmental Agreement of 1998:

https://www.state.gov/wp-content/uploads/2019/02/12927-Multilateral-Space-Space-Station-1.29.1998.pdf

Should we be surprised about this development? No, wherever humans go, crimes will undoubtedly be committed. As space travel, exploration and colonisation become more common in the coming decades, expect more stories about crime in outer space and the need to police it effectively.

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

http://news.sky.com/story/is-this-the-first-crime-committed-in-space-11792853

Copyright Seán J Crossan, 30 August 2019

Copyright Seán J Crossan, 30 August 2019

Once a criminal …

Photo by GRAS GRÜN on Unsplash

… always a criminal?

That’s a very good question. Do we lock people up and throw away the key with all the cost implications for society or do we need new and bolder approaches to deal with this age old problem?

Do we stigmatise or brand people as criminals for life or, as a society, are we serious about rehabilitating members of the community who fall into lives of crime?

Obviously, there is a tension here: we have to balance the interests of victims of crime and giving people who commit crimes the chance to reform. No one is pretending that this will be easy.

In a previous blog (Crime and … kindness? published on 12 March 2019), I commented on a story which reported the visit to Scotland of two American judges who were very keen to promote new approaches to criminal justice in order to cut rates of reoffending.

The two American judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They both pointed to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. The second judge, Judge Pratt, on the other hand, specialises in “procedural justice”.

She explained to BBC Scotland what was meant by the term “procedural justice”:

“… that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

In Scotland, the Children’s Hearing our Panel system has been held up as a shining example of an approach taken by the State when dealing with young people who have broken the rules of society. Keep children out of the criminal courts and you may have more of chance of getting them back on track so that enter adulthood as law abiding citizens. Brand them as criminals from a young age and you may well set them on a path from which there is no return.

So, it was with some interest that I read about a novel approach taken by the Police in The English city of Bristol for dealing with young people who had been involved in dealing in drugs in attempt to promote rehabilitation and cut reoffending rates.

In an initiative called the “Call-In-Scheme”, Avon and Somerset Police are targeting first offenders aged between 16 and 21 who have been caught dealing drugs. The choice: go to court, be convicted with all the consequences this outcome will entail or go straight. Participants in the scheme will be selected by a panel.

How do you incentivise or encourage people to break patterns of criminal behaviour? Well, offer young offenders free driving lessons, job opportunities and even fitness classes.

The scheme will not apply to individuals who have committed sexual or violent offences or those have relevant, previous convictions for drug offences.

Will it succeed? Watch this space …

A link to the story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.290819/data/9082006/index.html

Copyright Seán J Crossan, 30 August 2019

Stormy weather, I’m at the end of my tether!

Photo by J W on Unsplash

We know summer is finally here when people are enthused about the prospect of attending the ever growing list of open air music festivals across the UK and Ireland.

Everyone involved in these events always hopes that the sun will come out, but the reality is that you have to prepare for the likelihood of bad weather. Most of the time, revellers will be able to put up with poorer conditions and it is unlikely that the event will be cancelled.

On occasion, the predicted weather can be very poor, not to say downright dangerous and festival organisers are left with the agonising decision of having to make the call to cancel the event.

This happened at the beginning of August when the Houghton Music Festival in East Anglia was cancelled due to severe weather warnings. Now clearly, by making this decision, the Festival organisers were implementing their duty of care to the artists, the workers and the music lovers.

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

https://news.sky.com/story/houghton-festival-in-east-anglia-cancelled-due-to-severe-weather-warnings-11780064

I was more interested in the contractual implications of cancelling the event. More specifically: does the cancellation of an event result in frustration of contract? In other words, will the frustrating event lead to termination of the contract?

The Festival organisers were very quick to say that the fans were entitled to seek a refund of the ticket price (no doubt minus the booking fee). Admittedly, I was less interested in this aspect of the story. In particular, I was mulling over the impact of cancelling the Festival on local businesses – particularly the local hotel/accommodation/B&B industry.

In 2016, research published by UK Music (Wish You Were Here) demonstrated a number of things:

  • the number of people attending UK music festivals had risen from 27.7 million to 30.9 million between 2015 and 2016;
  • the number of people travelling between different parts of the UK had increased; and
  • the number of foreign tourists willing to attend UK music festivals had risen by 20% in 2016.

(Source: The Guardian available at https://www.theguardian.com/music/2017/jul/10/uk-music-industry-gets-boost-from-12-rise-in-audiences-at-live-events)

So, what if you’re in the business of running a hotel, B&B or renting out a property on Airbnb and the bad news is announced that the local music festival has been cancelled, where do you stand legally?

Is the contract that you entered into with prospective guests capable of enforcement or has it been cancelled due to frustration?

It really depends on the circumstances …

What if the accommodation provider is aware of the fact that the guests have specifically booked rooms or a property in order to attend the festival? Some hotels go even further and might put together event all inclusive packages for guests – so called ‘special offers’ which might include things like all meals provided, spa treatments and even transport to and from the festival site.

This is quite different from a situation where the guest books rooms or hires a holiday property and does not disclose to the accommodation provider the purpose of his or her visit to the local area.

In the famous case of Krell v Henry [1903] 2 KB 740, Lord Justice Vaughn-Williams was of the opinion that frustration of contract was not limited to either the destruction or non-existence of the subject matter of the contract. It will be important to identify the substance or the purpose of the agreement. The cancellation of an event can frustrate the performance of a contract where that event is an absolutely material term of the agreement.

In Krell, the pursuer was the owner of a flat in the central London district of Pall Mall. The pursuer’s flat was on the route of the proposed coronation procession of the new King, Edward VII, which was scheduled to take place on 26 and 27 June 1902. The pursuer had advertised his flat for rent during the daytime on 26 and 27 June for the purpose of viewing the procession. The defender, who was anxious to view the procession, responded to the advertisement and entered into an agreement to hire the flat on the days specified. An announcement was made on 24 June stating that the procession was to be cancelled owing to the King’s illness. The defender refused to pay the balance of the rent for the flat by reason that events had frustrated performance of the contract. The pursuer brought an action against the defender for payment of the balance of the rent.

The English Court of Appeal stated that the cancellation of the event frustrated the contract and discharged the parties from their obligations under it. The clinching argument in the defender’s favour was that both parties clearly entered into the contract with the same intention. The reason behind the hire of the flat was, therefore, a material term of the contract.

Had the defender failed to communicate his motivation for hiring the flat, then the contract would have remained capable of enforcement by the pursuer. Lord Justice Vaughn-Williams was of the opinion that frustration of contract was not limited to either the destruction or non-existence of the subject matter of the contract. It was also important to identify the substance or the purpose of the agreement. In other words, did the parties share the same intentions?

The illness of King Edward resulted in a second legal action. This time, however, the English Court of Appeal took a completely different approach to the issue of frustration of contract.

The decision in Krell v Henry can be contrasted with the decision below:

Herne Bay Steamboat Co v Hutton [1903] 2 KB 683 the pursuers had entered into a contract to hire a steamship to the defender for two days. The Royal Navy was assembling at Spithead to take part in a naval review to celebrate King Edward’s coronation. The King was to review the fleet personally. The defender wished to transport paying guests from Herne Bay to Spithead to see the naval review. Due to the King’s illness, an official announcement was made cancelling the review. It would still have been perfectly possible for the defender to take his passengers on a cruise to see the assembled fleet. The defender, however, refused to use the vessel claiming that the contract had been frustrated. The pursuers brought an action against the defender for the balance of the fee of £250 owed by the defender who was refusing to pay for the hire of the boat.

The contract was not discharged by reason of frustration. The main purpose of the contract could still be achieved i.e. to take paying guests for a cruise around the fleet.

Conclusion

The difference in approach taken by the Court of Appeal in both cases is sometimes difficult to understand. In Krell v Henry, both parties had clearly intended that the purpose of the contract was to view the procession. Reinforcing this fact, was the fact that the defender was only entitled to use the flat during the daytime. In Herne Bay Steamboat Co v Hutton, the purpose of the defender in hiring the steamship was to see the naval review, but this was not the purpose of the owners who were not the slightest bit interested why the vessel had been hired. Lord Justice Vaughn-Williams compared the situation to someone who hires a carriage to go and see the Epsom Derby, but the outbreak of some unforeseen epidemic means that the races are cancelled. This makes no difference to the owner of the carriage who will still expect to be paid for the hire of his vehicle.

Copyright Seán J Crossan, 28 August 2019 

Special defence?

Photo by Gregory Pappas on Unsplash

I was motivated to write this particular blog entry when I read about an account of the outcome of a criminal case from England.

In that case, a young man (Dale Kelly) was acquitted of the charge of sexually assaulting a young woman while she was asleep. Kelly was able to satisfy the court that he had been sleep-walking at the time of the incident and, therefore, had no control over his actions.

Technically, the jury at York Crown Court returned a verdict of not guilty by reason of insanity.

A link to the story on The Guardian’s website can be found below:

https://www.theguardian.com/uk-news/2019/aug/20/sleepwalking-man-cleared-of-sexually-assaulting-woman

If such a case had occurred in Scotland, we might be talking about the possible application of the special defence of automatism. Automatism is one of six potential special defences that are now deemed to exist in Scots criminal law (the others being alibi; coercion or necessity; incrimination; insanity; and self-defence).

That said, it is not immediately clear that Mr Kelly would have been acquitted had his trial taken place in Scotland.

What is automatism?

Automatism is a condition whereby an individual unconsciously loses control of the body through no fault of his own, for example, due to the involuntary ingestion of mind altering drugs or a condition such as sleep walking or epilepsy. Crucially, the accused did not make a conscious decision to commit a criminal act. It is during the unconscious episode that the accused commits a crime, but does not know what is happening and has little (if any) recollection of this event having taken place.

An example of the successful pleading of the defence of automatism arose in Her Majesty’s Advocate v Ross (1991) SLT 564, 1991 JC 210.

The accused had been drinking in a public house and, while present there, he subjected several of his fellow drinkers to a violent assault with a knife. It later emerged that someone in the public house had placed temazepam and LSD tablets in the lager can from which the accused had been drinking. The combination of temazepam and LSD had caused the accused to suffer an extremely violent reaction and this was the reason for him carrying out the attack on the other customers in the public house. The accused relied on the defence of automatism and was subsequently acquitted because he was able to convince the court that he had lost control of his body. It should, of course, be appreciated that the accused had no knowledge that he had ingested the temazepam and LSD tablets and could not be held responsible for what later happened.

Often the type of automatism found in Her Majesty’s Advocate v Ross (1991) is referred to as external automatism because the reason for the loss of control by the accused is caused by an external factor, for example, ingesting drugs without his knowledge.

Critically, Lord Justice-General Hope made the following remark in Ross:

“I understood [the Solicitor General] to accept that there was evidence that the appellant [Ross] had no control over his actions with the result that they were involuntary.”

Historically, the Scottish courts permitted attempts by an accused to use a defence of internal automatism. Internal automatism is caused by some physical condition from which the accused suffers, for example, epilepsy, diabetes or sleepwalking. It could be argued, however, that the concept of internal automatism was limited by the decision of the High Court of Justiciary in Her Majesty’s Advocate v Cunningham (1963) SLT 345 where the accused failed to convince the court that his epilepsy should be used as a defence to the charge that he had committed a number of road traffic offences. Previously, however, the Scottish courts had recognised the concept of internal automatism as a defence (as in His Majesty’s Advocate v Ritchie (1926) JC 45).

In Cunningham, Lord Justice-General Clyde stated that:

“Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence.”

Admittedly the decision in Cunningham, has been viewed by some as a blatant attempt by the High Court of Justiciary to narrow the range of possible defences available to the accused in Scots criminal law.

Nevertheless, the ramifications of Cunningham seem to suggest that a condition such as parasomnia as experienced by Mr Kelly might not result in an acquittal verdict in Scotland, but rather a lesser sentence being imposed by the court.

As Doctor Claire McDiarmid of the University of Strathclyde’s Law School has noted, a court has accepted the defence of automatism in a situation where the accused suffered from diabetes which caused hypoglycaemia (see MacLeod v Mathieson 1993 SCCR 488). That said, the sheriff was at pains to point out that the defence could only be used in such circumstances which related to a first attack of the condition. In other words, if the accused was well aware that a condition from which s/he suffered tended to result in loss of mental and bodily control this might not be easily forgiven or overlooked by a court. In other words, the negative consequences resulting from the medical condition could be not just reasonably foreseeable, but highly probable.

Critically, returning to Ross, the accused’s behaviour had resulted from the actions of other parties i.e. the spiking of the can of lager which was absolutely not his responsibility. The Scottish courts seem more willing to accept the defence of automatism in these types of situation as opposed to an incident such involving Mr Kelly who had a history, from childhood, of parasomnia. This factor might have weighed very heavily on the outcome of the trial had it taken place in Scotland.

A link to Doctor McDiarmid’s paper discussing automatism and special defences generally in Scots criminal law can be found below:

https://strathprints.strath.ac.uk/51182/3/McDiarmid_Ashgate_2014_How_do_they_do_that_automatism_coercion_necessity_and_mens_rea.pdf

Copyright Seán J Crossan, 22 August 2019