Inequality in the UK

Photo by Søren Astrup Jørgensen on Unsplash

So much for equality of opportunity in 21st century Britain. It looks as if this country is becoming more unequal, if the latest research is to be believed.

True, we have legislation such as the Human Rights Act 1998; the Equality Act 2010; and EU legal principles such as (Article 157) of the Treaty on the Functioning of the European Union (TFEU) which embed anti-discrimination laws. Parliaments and the EU can pass all manner of laws, but this of itself does not guarantee the conditions of true equality to flourish. Equal pay laws have been in force since 1975 in the UK, but tell that to Glasgow City Council female employees who had to struggle every step of the way to win their battle for pay equality in January 2019.

Since the inception of the Scottish Parliament in 1999, Scottish Governments have introduced various initiatives to tackle the scourge of child poverty. The latest attempt can be found in the Child Poverty (Scotland) Act 2017 which aims to combat some of the causes of this problem by 2030. In a recent blog (Food for thought? published on 16 April 2019) I discussed the suggestion, in a report by the Scottish Human Rights Commission, that the right to food security should be recognised as a fundamental human right. This proposal was made against a background of increased use of food banks in Scotland.

Everywhere you go organisations proclaim their commitment to equality and diversity and, if you take things at face value, you might allow yourself to be fooled into thinking that great progress is being made.

We can have a plethora of events such as Black History Month; Disability Awareness Month; World AIDS Day; International Women’s Day; and Day Against Homophobia, Transphobia and Biphobia, but if they are to be judged in any way successful they must lead to real change.

And yet … something is clearly not working when the UK Government’s own Social Mobility Commission concludes (in its latest Report) that levels of inequality in this country remain stubbornly persistent.

Now, the Institute of Fiscal Studies has weighed in with its own take on the matter. Professor Sir Angus Deaton will chair a Review which will examine the causes of inequality in modern Britain. The Institute of Fiscal Studies, a leading UK Think Tank, has stated that rising levels of inequality and exclusion threaten the very foundations of democracy in this country.

In April 2010, Nick Clegg, then Leader of the Liberal Democrats, trumpeted his Party’s manifesto commitment which would ensure that fairness was ‘hardwired’ into British society. I wonder if, from the comfort of his executive office at Facebook HQ in Silicon Valley, Mr Clegg now sees his time as UK Deputy Prime Minister (2010-15) as a wasted opportunity?

In her column in last Saturday’s edition of The Independent, Janet Street Porter spoke of the lack of diversity at the BBC as a working class person

… who managed (against all the odds) to make a living out of working for the BBC, an organisation where (even in 2019) the over-educated and middle class dominate. We’re proof that in modern Britain, social mobility still moves at a glacial pace. …

… For all the BBC trumpets its ethnic, gay and gender-fluid presenters, one category is conspicuously absent on the radio and television – white working class people.”

This inequality can be traced from “birth to work” according to the Social Mobility Commission’s findings:

“In this our sixth State of the Nation report we lay bare the stark fact that social mobility has stagnated over the last four years at virtually all stages from birth to work. Being born privileged in Britain means that you are likely to remain privileged. Being born disadvantaged, however, means that you will have to overcome a series of barriers to ensure that you and your children are not stuck in the same trap.

At a time when our country needs to be highly productive and nimble we impede our own progress as a nation if we do not maximise the talent of all our citizens – especially those that start the furthest behind. We fail if we do not make it possible for every individual to have choices about where they go and what they do in life.

This report shows that more needs to be done to support the most vulnerable. Our analysis finds that, too often, well intentioned policies fail to reach those who would benefit most, while cuts to other provisions disproportionately impact the most vulnerable.

Clearly a lot still has to be done to make the UK a fairer society.

A link to the Social Mobility Commission’s Report can be found below:

A link to the Institute of Fiscal Studies’ website can be found below:



Another facet of inequality in the UK was revealed by Sky News on 2 July 2019. A survey revealed that LGBT workers were more likely to be paid less compared to their straight colleagues and were still afraid of revealing their sexual orientation in the work-place:

LGBT+ workers earn less and are still afraid to come out – survey

Copyright Seán J Crossan, 13 May & 2 July 2019

Veganism = Discrimination?

Photo by Ivana Milakovic on Unsplash

Regular readers of this Blog will be aware that several of my previous articles have examined whether veganism could be a protected characteristic (a philosophical belief) in terms of Section 10 of the Equality Act 2010.

We still await the decision of the London Employment Tribunal in relation to the case of Jordi Casamitjana v League Against Cruel Sports (lodged in December 2018) which will give us a first indication as to whether veganism is capable of being a protected characteristic in terms of the Equality Act.

A link to an article on the BBC website about Mr Casamitjana’s claim can be found below:

Sacked vegan claims discrimination in landmark case

A landmark tribunal will decide whether veganism is a “philosophical belief” akin to a religion.

In the meantime, Crossland Solicitors (an Oxfordshire based law firm) have carried out some really interesting research concerning the issue of vegan beliefs and work-place discrimination.

Nearly 1,000 employees and 1,000 employers took part in the research. The conclusions from this exercise are that nearly 45% of employees are of the opinion that they have experienced less favourable treatment due to their beliefs and nearly a third of respondents felt that they had been actively victimised by their employers because of their veganism. It seems to be the case that a large number of employers take the view that veganism is a fashion trend or a fad as opposed to an ethical and philosophical set of views which guides people in their daily lives.

Hopefully, the London Employment Tribunal will issue it’s decision in the very near future about Mr Casamitjana’s claim in order to provide some needed clarity to this area of the law.

A link to the research on Crossland’s website can be found below

Copyright Seán J Crossan, 12 May 2019

How dare you mention my age!

Photo by Elena Saharova on Unsplash

The above picture may conjure up blissful images of a well deserved retirement, but the reality can be very different for many older employees and workers. Financial necessity and a higher state pension age may mean that many individuals will have to remain in work for much longer than they would like.

In October 2011, the UK Parliament issued a PostNote entitled “An Ageing Workforce” which made the following observations in its introduction:

Over the next decade, the changing age profile of the workforce will be the most significant development in the UK labour market, as a third
of workers will be over 50 by 2020Employers will be expected to respond to this demographic shift by making work more attractive and feasible for older workers, enabling them to work up to and beyond State Pension Age (SPA) if they are capable.”  

Significantly, this PostNote went on to state:

Within 20 years, nearly a quarter of the UK population will be aged 65 or over. People are now spending an average of 7 years longer in retirement than in the 1970s …

A link to this PostNote can be found below:

Click to access postpn391_Ageing-Workforce.pdf

Not much has changed for the better it would seem. Some 7 years later, the above conclusions would also be mirrored by a Report issued by the Women and Equalities Committee of the House of Commons on 17 July 2018 which stated:

“The talents of more than a million people aged over 50 who want to work are being wasted because of discrimination, bias and outdated employment practices. … Government and the Equality and Human Rights Commission (EHRC) are failing to enforce the law on age discrimination and must be clearer that prejudice, unconscious bias and casual ageism in the workplace are all unlawful under the Equality Act 2010.”

A link to the Committee’s Report can be found be found below:

It’s all very well going on about the need for people to work beyond state pension age, but what if older employees and workers find themselves being actively discriminated against by employers? What rights (if any) do they have? Admittedly, age discrimination is not just problem for older people; younger people can often find themselves victims of this type of discrimination (see Hutter v Technische Universität Graz (2009)). 

Age discrimination in the news

I was thinking about unlawful age discrimination this week after reading a story on BBC Northern Ireland’s website. It was reported that the Arts Council of Northern Ireland had been sued by its former Chief Executive, Roisin McDonough who was alleging age discrimination. Ms McDonough has now settled her claim with the Arts Council for £12,000. It was alleged by Ms McDonough that the issue centred around the failure by the Arts Council to consider giving her the option of flexible retirement arrangements. She had requested that she be allowed to work 4 days instead of 5 from 1 April 2017. Apparently, this request was never dealt with properly and Ms McDonough was subsequently asked to name a date when she intended to leave her employment. 

A link to the BBC Northern Ireland article can be found below: 

Age discrimination: Arts chief Roisin McDonough awarded £12,000

Roisin McDonough claimed the Arts Council had discriminated against her because of her age.


The Equality Act 2010

It was only with the introduction of the Employment Equality (Age) Regulations 2006 that unjustified age discrimination became illegal across the UK. Please note that I have deliberately used the word ‘unjustified’ in my first sentence because there can be situations where discrimination on the grounds of a person’s age can be be quite lawful (more about that later in this blog). 

The 2006 Regulations have now been replaced by the Equality Act 2010. For dedicated Brexit followers, these Regulations were introduced because, in 2000, the European Union passed Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Interestingly, this Directive also spawned new legal protection in relation to a person’s sexual orientation and religion and belief. Admittedly, the scope of the Directive was limited to the area of employment. It did not cover these types of discrimination in relation to the provision of goods and services. 

We have since moved on and many of the key principles of the Directive are now to be found in the Equality Act 2010. 

Section 5 of the Equality Act states that in relation to the protected characteristic of age:

(1) (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

It is, therefore, unlawful for employers and service providers to discriminate against an individual on the grounds of that person’s age. Employers must be particularly careful in relation to recruitment policies and procedures, terms and conditions of employment, promotion and training opportunities and termination of the employment relationship. Practically speaking, this will mean that employers will have to be especially careful when recruiting workers to their organisations.

Any advertisements or recruitment criteria which seem to suggest a preference for one age category over another should be discouraged – unless there is a sound legal reason for this. It’s probably very unwise for recruiters to use phrases like ‘Mature person sought for post’; ‘Dynamic individual preferred’ or ‘Youthful enthusiasm’ or ‘Are you still hungry enough to succeed?’ (see Canadian Imperial Bank of Commerce v Beck 2010; McCoy v James McGregor and Sons Limited and others 2007; and Hutter v Technische Universität Graz (2009)).

That said, there are situations where the law will permit differences in treatment based on a person’s age. The National Minimum Wage Act 1998 and the associated Statutory Regulations, for example, continue to operate meaning that workers can be paid different minimum and living wage rates depending on their age. In situations involving redundancy, those employees with 2 or more years’ continuous service will be entitled to receive a statutory redundancy payment. It is very likely that older employees may have longer service than their younger colleagues and will, therefore, be better off financially under the employer’s redundancy arrangements.

A case where an employer attempted unsuccessfully to justify direct age discrimination occurred in O’Reilly v (1) BBC & (2) Bristol Magazines Ltd (2010) Miriam O’Reilly, a very experienced and well regarded radio and television journalist, lost her job as one of the main presenters of the BBC’s popular Countryfile television programme (which has been broadcasting since 1989 until the present day). Ms O’Reilly was then 51 years of age. This was part of a strategy by the BBC to appeal to a much younger audience. The new presenters who had been recruited to work on the programme were all in their 30s. 

Held: by the Employment Tribunal (unanimously) that O’Reilly had been subjected by the BBC to direct age discrimination and that the BBC and Bristol Magazines Ltd had subjected her to age victimisation. Claims for sex discrimination were not proved. The Tribunal was strongly of the opinion that had O’Reilly been 10 or 15 years younger, she had would have been in a strong position to retain her presenting post on the programme. In fact, it was heard during the evidence that the BBC had considered offering Michaela Strachan (a well known television presenter who had guest presented on the show) a permanent presenting job. Strachan was then aged 42 as opposed to O’Reilly who was 51. 

Health and safety considerations might seem like a fairly straightforward way of justifying age discrimination in relation to certain jobs which rely on the person displaying a high level of technical competence e.g. an airline pilot, but employers will have to be very careful here that they do not use this issue as a blunt instrument as the Court of Justice of the EU decided in Case C-447/09 Prigge and Others v Lufthansa [2011].

In Prigge, Lufthansa, the German national airline operated a compulsory retirement age of 60 for its pilots. Prigge and a number of other pilots who had either reached or were approaching this age, objected to the policy on the grounds that it was an example of age discrimination. Lufthansa, amongst other things, argued that the policy could be objectively justified on the grounds of health and safety.

Held: by the Court of Justice that Lufthansa’s mandatory retirement age of 60 could not be objectively justified and was not a proportionate means of achieving a legitimate aim. The airline had committed unlawful discrimination on the grounds of age by operating the compulsory retirement age.

For many years, the UK in common with many other EU member states permitted employers to operate compulsory retirement ages. Until 2011, the default UK retirement age for both men and women was 65. This has now been abolished and people have the right to request that they permitted to work on. 

As a consequence of major demographic change i.e. a rapidly ageing population in this country, it will be necessary for people to work for longer than previous generations. A person’s entitlement to receive a state and/or occupational pension scheme has been raised to 66 years of age if you intend to retire by October 2020 (and then to age 67 between 2026 and 2028). These projections may still be overly optimistic given the UK’s demographic time bomb and, in 2016, the Independent Review of Retirement Income, chaired by Professor David Blake of Cass Business School, submitted that people would have to work into their seventies in order to avoid hardship and poverty in their old age. This research was also supported by a study by Royal London which suggested a retirement age of 77!  

The Court of Justice of the European Union gave cautious approval to the UK’s then default or mandatory retirement age of 65 (see Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (2009)). Compulsory retirement ages set by EU member states were essentially a proportionate means of achieving a legitimate aim i.e. the orderly management of a country’s labour market and the opening up of employment opportunities for younger people.

Having said that, with the abolition of the UK’s default retirement age, employers will still have to be careful how they handle the issue of older employees. Requests to continue working by those individuals in the older age demographic will have to be considered seriously by employers. Employers may be justified in refusing to continue employment if they can demonstrate that an older employee falls short of a basic (objective) standard of mental or physical abilities required to perform the job; or in situations where the law lays down the retirement age. Finally, we should also be aware that younger people can also be the victims of age discrimination. 

ACAS Guidance on Age Discrimination

In March 2019, ACAS helpfully produced new guidance on how to prevent age discrimination in the workplace.

Some of the ACAS examples can be found below:

Example 1 – Ordinary direct discrimination (Section 13: Equality Act 2010)

Manager Louise is looking to fill a role which will require the successful applicant to then complete difficult training. She instructs her HR manager to discount her team’s younger members, presuming they will not want the hard work. She also tells HR to discount older members, thinking they will not adapt to the change. Instead she shortlists Bruce and Mikel, believing people in their mid-thirties are more likely to have the necessary blend of ambition and sense of responsibility. Her actions are likely to be discriminatory.

Example 2 – Direct discrimination by association (Section 13: Equality Act 2010)

Senior manager Jurgen decides not to invite employee Sarah and her partner Claude to a business party because Claude is much older than her. Jurgen feels Claude would not fit in with the party mood. This is likely to be discriminatory.

Example 3 – Direct discrimination by perception (Section 13: Equality Act 2010)

Siobhan is turned down for a supervisor’s job because her bosses decide she does not look mature enough for the role. They think she looks about 20. In fact, she is 30. Her bosses’ decision is likely to be discriminatory.

Example 4 – Indirect discrimination (Section 19: Equality Act 2010)

City centre gym manager Esme tells employees she needs two more staff to work on reception. She adds that anyone interested needs to look ‘fit and enthusiastic’ as the gym is trying to encourage more young people to join. Her requirement may indirectly discriminate against older staff unless it can be objectively justified.

Example 5 – Harassment (Section 26: Equality Act 2010)

Sixty-year-old Margaret feels humiliated and undermined at the store where she works because of her age. Despite her extensive experience in retailing and recently gaining a qualification as a visual merchandiser, her manager Darren regularly tells her in front of other staff that she is ‘out of touch’ and that the store needs ‘fresh blood’. Darren’s behaviour is likely to be harassment.

Example 6 – Victimisation (Section 27: Equality Act 2010)

Manager Alan tells apprentice Reyansh he is happy with his progress and performance. Reyansh then feels confident enough to tell Alan that some of the older employees regularly make fun of him because of his age and play pranks such as leaving toys where he’s working. Reyansh wants this to stop. Alan tells Reyansh to toughen up and that the firm has no time for complainers. Some weeks later Alan punishes Reyansh for complaining by cancelling his training course. This is likely to be victimisation.

The ACAS Guidance can be accessed using the link below:

Click to access Age_discrimination_key_points_for_the_workplace.pdf

Copyright Seán J Crossan, 9 May 2019

Get me an Uber!

Photo by Thought Catalog on Unsplash

An interesting story today about industrial action being taken by taxi drivers working for Uber. The action is taking place in the USA and in cities across the UK (including Glasgow). It is designed to draw attention to working practices within the company before it lists its shares on the New York Stock Exchange.

Quite a few of my previous blogs have looked at employment status and the steady increase in the number of individuals who provide services to organisations but, critically, not under the traditional employment contract model.

Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.

Those individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights, rights to information and consultation etc.

Admittedly, employees will not acquire these rights from day 1 of their employment, but the critical difference in relation to people working under a contract for services is that they have the potential to obtain employment rights (by completing the requisite period of continuous service e.g. 2 years’ continuous service for entitlement to protection against unfair dismissal and for entitlement to a redundancy payment.

There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.

The industrial action being taken by Uber drivers today is principally an attempt by these types of workers to secure better contractual terms and conditions. The law does now appear to be recognising that individuals working for organisations such as Uber (and Lyft) are not genuinely self-employed persons. Rather they should be categorised as workers with an entitlement to a basic level of legal protection (see the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA).

A link to the Aslam judgement can be found below:

Click to access uber-bv-ors-v-aslam-ors-judgment-19.12.18.pdf

A link to an article on the BBC website about the industrial action can be found below:

Copyright Seán J Crossan, 8 May 2019

The Age of Criminal Responsibility

Photo by Nicole Honeywill on Unsplash

In a previous blog (Criminal Responsibility published on 27 February 2019), I commented on the Age of Criminal Responsibility (Scotland) Bill which was then proceeding through the Scottish Parliament. At the time of writing my previous blog, this Bill had completed Stage 2 of the legislative process.

The purpose of the Bill was to raise the age in Scotland when people become responsible for acts or omissions which are deemed to be criminal in nature. Scotland had one of the lowest ages of criminal responsibility in Europe (and the rest of the world). The aim of the Bill was to raise the age of criminal responsibility from 8 years to 12.

The Bill was passed by the Scottish Parliament on 7 May 2019 (completing Stage 3 of the legislative process) and will soon become the Age of Criminal Responsibility (Scotland) Act 2019. So, the age of criminal responsibility is now going to be set at 12 years of age in Scotland.

A link to the Bill as passed by the Scottish Parliament can be found below:

The Scottish Government has stated that it will review the age of criminal responsibility in 3 years time, with a possible view to raising it.

In evidence given to Equalities and Human Rights Committee of the Scottish Parliament during the passage of the Bill, it was pointed out that the United Nations had been critical of Scotland’s longstanding position on the age of criminal responsibility and had demanded that it should be raised.

Obviously, children can commit dreadful acts – which if committed by an adult would normally be dealt with by the criminal justice system in Scotland. Murders and other awful offences have been committed by children and such situations will still have to be addressed. We only have to think about the murder of the toddler, James Bolger in 1993 in England. The Scottish Government will argue that the new Act has measures in place to deal with such situations. It will be interesting to see how the law develops in this area.

A link to an article on the BBC website which covered the passing of the Act can be found below:

Age of criminal responsibility raised from eight to 12

MSPs unanimously back law which means primary school-aged children will no longer be arrested.


Readers can look at a short video on the BBC News website where the Chairman of Scouts Scotland argues that it is not useful in the longer term to stigmatise some children by describing them as criminals:

Scouts chairman: Labelling children criminal ‘impacts life’

Labelling a child a criminals can “impact the rest of their life”, says Scouts Scotland Chair Moray MacDonald.

Copyright Seán J Crossan, 8 and 13 May 2019

TUPE or Redundancy?

Photo by Ian Tormo on Unsplash

Readers of this blog will know that TUPE and redundancy are two employment law issues which have featured regularly in the last month or so.

So, today, we have a story which combines both.

Jobs lost as courier SGM Distribution goes into liquidation

SGM Distribution, a courier company, based in North-East Scotland (Aberdeen and Letham to be precise) has gone into liquidation. Thankfully, 51 of the DGM employees have had their employment transferred to another employer. These fortunate individuals will, of course, have their core terms and conditions of employment protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended).

Sadly, 16 of DGM’s employees will be having their employment terminated by reason of redundancy. Redundancy is a potentially fair reason for dismissal in terms of Section 98(2)(c) of the Employment Rights Act 1996 – assuming that such an exercise has been carried out properly by the employer.

The definition of redundancy is contained in Section 139(1) of the Employment Rights Act 1996:

For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

(a) the fact that his employer has ceased or intends to cease—

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business—

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.


Those former DGM employees unlucky enough to be made redundant are having their contracts terminated. On the other hand, the vast majority of the former DGM employees will maintain their continuity of employment (on their existing terms and conditions) with their new employer. They have a right not to experience any detriments to their terms and conditions of employment as a result of this transfer of an undertaking. Entirely positive changes to their contracts e.g increased pay, holiday entitlement, flexible working arrangements and enhanced family friendly working benefits would be most welcome. In terms of the TUPE Regulations, the new employer has limited scope for implementing negative changes to the employment contracts of the transferred employees. Any attempted changes must be for economic, technical or organisational reasons – not an especially profitable area for employers.


Just when you find one story about the implications of TUPE or redundancy, another pops up. Please see a link to a relevant story from BBC Northern Ireland involving the Canadian company, Bombardier:

Bombardier to sell NI operations

The Canadian aircraft manufacturer employs about 3,600 people in Northern Ireland.

Copyright Seán J Crossan, 2 May 2019


Photo by Gemma Evans on Unsplash

A recent decision of the Appeal Court of the High Court Justiciary has provided further clarification on the law surrounding the issue of consent in situations where a person is accused of rape.

The decision itself is a classic example of Appeal Court judges interpreting the meaning of statutory provisions.

For many years in Scotland, rape had the following common law definition:

… a man having sexual intercourse with a woman by overcoming her will by force‘.

The above definition was later significantly amended by a majority decision of the Appeal Court of the High Court in Lord Advocate’s Reference No. 1 of 2001 2002 SLT 466. The effect of this ruling was the removal of the reference to force in the common law definition of rape. Thereafter, the presence (or absence) of consent to sexual conduct would be a vital issue for the prosecution’s case.

We have also moved on from the situation whereby the victims of rape are not just female. A reading of Section 1 of the Sexual Offences (Scotland) Act 2009 (the relevant legislation), which defines the crime of rape, makes it quite clear that men and women can be victims of this offence.

Section 12 provides that “consent” means “free agreement”. Section 13 states that free agreement is “absent” in certain circumstances, including where the complainer is “incapable because of the effects of alcohol or any other substance of consenting”.

I shall now turn to the case in question.

In GW v Her Majesty’s Advocate [2019] HCJAC 23 HCA/2018/423/XC, Lords Carloway, Menzies and Turnbull confirmed that a person who is asleep cannot give consent that s/he wishes to engage in sexual relations. Furthermore, their Lordships also ruled that such an individual cannot be deemed to have given prior consent to such a course of behaviour.

This appeal occurred because the partner (‘GW’) of a woman claimed that he had not raped her while she was sleeping. Part of his defence was that he had engaged in this type of conduct on previous occasions in the relationship and the woman had not objected to this behaviour. Furthermore, the partner claimed that such conduct was a continuing feature of their relationship and, therefore, as such it established a pattern of prior consent. In other words, the partner had a reasonable belief that the woman had consented to this type of sexual activity.

As previously discussed, the relevant legislation is the Sexual Offences (Scotland) Act 2009. What does consent actually mean? The judges were unambiguous in reaching their decision: a sleeping person is simply incapable of giving consent and, in such a situation, it is not possible for an accused to construe advance or prior notice of consent.

During their deliberations, the judges looked at the purpose of the Sexual Offences (Scotland) Act 2009 and considered evidence which had been presented to at Stage 2 of the passage of the Bill through the Scottish Parliament.

Lord Carloway, the Lord Justice General, in delivering the opinion of the Appeal Court stressed that the wording of Section 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 2009 (which defines the crime of rape) uses the words ‘consenting’ and ‘consents’. These words are in the present tense and, therefore, a previous course of dealings between the parties is not in itself enough to establish that there is prior or actual consent to sexual relations. Consent exists in the here and now when the act of sexual intercourse is being carried out.

Section 14 of the 2009 Act which specifically addresses the issue of consent while a person is asleep is extremely unambiguous in its meaning. Subsection (2) states:

A person is incapable, while asleep or unconscious, of consenting to any conduct.’

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

Copyright Seán J Crossan, 2 May 2019