Ageism & sexism? Still far from dead in 2019

In Chapter 7 of Introductory Scots Law, I examine the impact of unlawful discrimination.

Two interesting stories about alleged age and sex discrimination were covered by the BBC this week. These stories suggest that ageism and sexism, as an ongoing problem, in society are still pretty deeply rooted.

A person’s age or sex are protected characteristics in terms of Sections 5 and 11 of the Equality Act 2010 respectively.

Niamh McGrady: Actress criticises ‘ageist’ casting couch language

Niamh McGrady calls out a casting company asking for a woman “in her late 30s, still attractive”.
Disclaimer: The BBC is not responsible for the content of this email, and anything written in this email does not necessarily reflect the BBC’s views or opinions. Please note that neither the email address nor name of the sender have been verified.
A father-of-two had complained about the image used on the JD Sports website to sell the new Scotland top.
Disclaimer: The BBC is not responsible for the content of this email, and anything written in this email does not necessarily reflect the BBC’s views or opinions. Please note that neither the email address nor name of the sender have been verified.

Copyright – Seán J Crossan, 9 February 2019

The “Gay Cake” Row

Photo taken from the Peter Tatchell Foundation website:

http://www.petertatchellfoundation.org/ive-changed-my-mind-on-gay-cake-row-heres-why/

In Chapter 7 of Introductory Scots Law, I looked at a case from Northern Ireland which quickly gained the unfortunate moniker or nickname of the “Gay cake row”.

The case in question was Ashers Baking Company Ltd & Others v Lee [2016] and the dispute eventually reached the UK Supreme Court for its final determination (Lee v Ashers Baking Company Ltd & Others [2018] UKSC 49).

It’s probably useful to have a brief recap of the facts of the case:

Ashers Bakery chain is owned by the McArthur family and has its operational base in County Antrim, Northern Ireland. The McArthurs are practising Christians. In May 2014, Gareth Lee, a customer, raised a complaint when his order for a cake was declined by Ashers. Mr Lee had asked for a cake depicting the characters, Bert and Ernie from the well known, American children’s television series, Sesame Street. The cake was also to have a slogan place on it: “Support gay marriage”. The bakery owners justified the refusal to make the cake on grounds of their strong religious beliefs and they could not be seen to be condoning or supporting gay marriage. Mr Lee also claimed that he had suffered discrimination due to his political beliefs – he volunteered with QueerSpace, an organisation which supports LGBT+ people.

At the time of these events (and even now in February 2019), Northern Ireland is the only part of the United Kingdom where same sex marriage is not available (although same sex couples can enter civil partnerships). QueerSpace is not a campaigning organisation, but it does have a pro-same sex marriage position. Mr Lee, supported by the Equality and Human Rights Commission, decided to pursue a claim for direct discrimination on the grounds of his sexual orientation and political beliefs against Ashers for its refusal to provide him with a service. The McArthur family was strongly of the view that their rights to freedom of thought, conscience and religion (which they enjoyed courtesy of Article 9 of the European Convention on Human Rights) were being infringed if they had to complete Mr Lee’s order as originally requested.

The Belfast County Court issued a judgement against Ashers finding that it had discriminated against Lee by reason of his sexual orientation and political beliefs. Ashers appealed this decision and, in October 2016, Sir Declan Morgan, Northern Ireland’s Chief Justice (sitting in the Court of Appeal) was strongly of the view that Mr Lee had suffered direct discrimination on the grounds of his sexual orientation and his political beliefs. The Court of Appeal of Northern Ireland also stated that Mr Lee had suffered discrimination by reason of his association with members of the LGBT+ community.

Ashers Bakery was then given leave to appeal to the UK Supreme Court. On 10 October 2018, Lady Hale, delivering the unanimous judgement of the Supreme Court, stated that

In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area 

… Everyone, as article 1 of the Universal Declaration of Human Rights put it 70 years ago is “born free and equal in dignity and rights”. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

After dismissing the part of Mr Lee’s claim for sexual orientation discrimination, Lady Hale then went on to address the issue of whether the refusal by Ashers to make the cake with its slogan could be construed as a discrimination on the grounds of someone’s political beliefs.  She noted that, in Northern Ireland, political beliefs were constitutionally protected. That said, however, this part of Mr Lee’s claim should also be dismissed:

“The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion … 

… The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.”

The objection [by the Bakery] was to the message, not the messenger.”

Ashers Bakery was not aware of Mr Lee’s political beliefs and involvement with QueerSpace and, therefore, it could not be said that he was being discriminated against by reason of his association with certain individuals who possessed protected characteristics (i.e. members of the LGBT+ community):

It is worth noting that the reason political beliefs are constitutionally protected in Northern Ireland has much to do with that region’s troubled history since its creation in 1921 as a result of the Government of Ireland Act 1920.

Lady Hale also noted:

The Court of Appeal [of Northern Ireland] held that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community” (para 58). This suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.”

Conclusion

The UK Supreme Court has made quite a nuanced decision in dealing with the dispute between Ashers Bakery and Mr Lee. It will not satisfy everyone. If one had had to stare into the legal equivalent of a crystal ball before the Ashers’ decision, the logic of a previous decision of the Supreme Court – Bull and Another v Hall and Another [2013] UKSC 73 – might have led many to speculate that the Bakery would lose the appeal. This has turned out not to be the case.

In Bull (also discussed in Chapter 7 of Introductory Scots Law), it will be recalled that the Christian owners of a Cornwall B&B establishment had committed an act of direct discrimination by refusing to accommodate a same sex couple who had pre-booked a double room. The owners of the establishment had defended their decision to refuse the couple a double room on the basis of their religious beliefs. Interestingly, it was Lady Hale who also gave the leading speech in Bull.

I think we have to be very clear about the implications of the Supreme Court’s judgement: Mr Lee was not refused the provision of services by Ashers Bakery because of his sexual orientation. The Bakery was not refusing to bake him a cake: it objected to the message that he wanted to place on the cake.  As David Scoffield QC, who appeared for Ashers Bakery, submitted:

The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.”

In the Bull decision, Lady Hale referred to Bayatyan v Armenia (2012) 54 EHRR 15, 494, where the Grand Chamber of the European Court of Human Rights made the following statement:

The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”

Quite simply, it would have been a grave breach of the McArthur family’s sincerely held Christian beliefs – which are protected under Article 9 of the European Convention – if they had been forced to make a cake with the particular slogan which Mr Lee had requested.

A number of links to articles on the BBC website which cover the case can be found below:

http://www.bbc.co.uk/news/uk-northern-ireland-45810720

http://www.bbc.co.uk/news/uk-northern-ireland-45812579

Postscript

In August 2019, it was reported that Mr Lee was taking his case to the European Court of Human Rights in Strasbourg, France.

It will be interesting to see what develops from this.

https://www.theguardian.com/uk-news/2019/aug/15/gay-marriage-cake-customer-takes-case-to-european-court

Copyright Seán J Crossan, 8 February and 15 August 2019

It happened outside work … (or it’s my private life!)

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Photo by William Iven on Unsplash

In Chapter 6 of Introductory Scots Law, I focus on the conduct of employees (or should I rephrase that and say misconduct?).

Misconduct – especially the most serious examples of bad behaviour in the workplace – might be grounds for a fair dismissal of the employee concerned.

Section 95 of the Employment Rights Act 1995 states that an employment contract could be terminated by the employer by reason of the employee’s conduct. Such a dismissal or termination of contract could be regarded as a fair dismissal (Section 98: ERA 1996).

If procedures are properly followed by the employer when contemplating dismissal as the ultimate disciplinary sanction, it will be very difficult for the employee to dispute this.

It’s very important for an employer to spell out to employees the type of conduct which could justify dismissal. This might usefully be done by having a section in the employee handbook which specifically addresses the issue of misconduct in the workplace. Additionally, a proper induction process for new employees might focus on the types of behaviour which the employer would almost certainly not condone. Regular refresher training for existing and longer term employees could also be very useful and, in bigger organisations, this would be an important function of the Human Resources or Personnel Department. The recent introduction of the EU’s General Data Protection Regulations (GDPR) in May 2018 is a case in point. Existing members of staff who handled personal or confidential data under the previous data regime would almost certainly be required to be brought up to speed about the more serious consequences of breaching the GDPR.

Misconduct outside the workplace

What about misconduct committed by employees outside working hours? There is an enduring myth amongst members of the public that what happens in your private life is no business of your employer’s. This is a very naive view to hold: employee misbehaviour – whether during working hours or outside work – can adversely affect the employment relationship. The employer will argue that misconduct committed outside working hours can have serious reputational consequences for the organisation.

As many individuals have found to their cost, extra curricular activities can lead to dismissal from employment or some other disciplinary sanction (see Pay v Lancashire Probation Service [2004] IRLR 129 where a probation officer who was part of a sado-masochistic circus act in his spare time was deemed to be fairly dismissed). On the other hand, the employer has to be careful and must not be heavy handed (see Redfearn UK [2012]  ECHR 1878 where the employee suffered unlawful discrimination when he was dismissed on the grounds of his political beliefs).

The case law is full of examples of employees getting themselves into trouble outside working hours as a result of alcohol and drugs misuse or committing criminal acts. Some examples can be seen below:

Richardson v City of Bradford Metropolitan Council[1975] IRLR 296 a senior meat inspector employed by the Council lost his claim for unfair dismissal in relation to misconduct committed outside work: he had stolen money from his local rugby club where he held the office of Treasurer. The Council argued successfully that this incident demonstrated a serious lack of integrity on the employee’s part and, thus, made him unsuitable for continuing employment.

Moore v C & A Modes [1981] IRLR 71 the employee in question was a section leader in a retail store. He had been caught shoplifting at another store and his employer decided to dismiss him. The dismissal was fair: the employee’s conduct had undermined his employer’s trust and confidence in him, not to mention the potential damage done to its reputation as a result of his criminal behaviour.

X v Y [2004] EWCA Civ 662 a charity support worker who worked with with young offenders was cautioned by police officers after committing an indecent act with another male in a public toilet at a motorway service station. He was also placed on the Sex Offenders’ Register as a result of receiving the Police caution. The employee had not been honest to the Police when asked questions about his job and, compounding this, he failed to inform his employer about the situation. The employer decided to dismiss this individual and the dismissal was deemed to be fair. The reputational damage which the employer suffered because of the employee’s failure to disclose what had happened was a significant factor here. The English Court of Appeal was of the view that the employee’s right to respect for a private life (on grounds of his sexual orientation) was not relevant here in terms of Article 8 ECHR as the indecent act in question was not of a private nature because it had been performed in a public toilet.

The right to privacy?

In particular, public sector employers or employers which discharge public functions will have to be aware of the consequences of Article 8 of the European Convention on Human Rights – the right to respect for a person’s private and family life. Unwarranted interference in a employee’s private life may cause the employer to find itself in a legal minefield. There can even be implications for free speech or freedom of expression (in terms of Article 10 ECHR) which could lead to an employee taking legal action against the employer (see Smith v Trafford Housing Trust [2012] EWHC 3221).

As a result of the Scotland Act 1998 and the Human Rights Act 1998, which implemented provisions of the ECHR directly into domestic law, the contract of employment is by no means immune from human rights considerations.

Private employers are also not exempt from the effects of the ECHR. They will be indirectly affected: the UK as a signatory to the Convention must ensure that human rights are adequately protected and this will extend to relationships between private individuals e.g. employers and employees.

The problem(s) with social media

In December 2018, Sky News reported that a Dundee United footballer, Jamie Robson had been subjected to disciplinary action for dressing in a racially offensive costume at a private party. Pictures of Mr Robson dressed in the offensive costume were posted on social media:

Dundee United defender Jamie Robson disciplined for blackface fancy dress
http://news.sky.com/story/dundee-united-defender-jamie-robson-disciplined-for-blackface-fancy-dress-11579477

With the explosion in the use of social media, there is now a much greater chance of employees being caught behaving in inappropriate ways or posting offensive comments online. In such an environment, employers will have legitimate concerns about the reputational damage done to their organisations as a result of employee misconduct which becomes widely publicised via social media platforms such as Facebook, Instagram or Whatsapp.

That said, however, we now live in a society where it is much easier for employees to be caught out in terms of misconduct committed outside of working hours. In Chapter 6 of Introductory Scots Law, I considered the implications of two Employment Tribunal judgements in relation to employee use of the popular social media platform, Facebook:

  • Stephens v Halfords plc ET Case No. 1700796/10 3rd November 2010 Torquay ET
  • Preece v JD Wetherspoons plc ET Case No. 2104806/10 18th January 2011 Liverpool ET

In Stephens, the employee was deemed to have been unfairly dismissed and was awarded compensation of over £11,350 (ouch!), whereas in Preece, the circumstances surrounding the employee’s use of social media did constitute grounds for a fair dismissal. Preece had signed the employer’s policy on the use of e-mail and social networking sites which contained the following warning that disciplinary action would be taken if comments were “….. found to lower the reputation of the organisation, staff or customers”.

In a more recent decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016, the Norwich Employment Tribunal held that an employee’s claims that she had  been unfairly dismissed and wrongfully dismissed regarding “derogatory” remarks (which she had made on Facebook) about her employer had not been proved. Mrs Plant, the employee in question, had been with the company for 17 years and had a spotless disciplinary record.  In December 2015, the employer had introduced a very robust social media which listed the types of online behaviour which could be regarded as misconduct. In particular, employees were reminded that:

In particular, employees were reminded that:

The document also reminds employees that conversations between friends on Facebook are not truly private and can still have the potential to cause damage, reminding employees that comments can be copied forward onto others without the
permission, it stresses the need to not rely on privacy settings.

Furthermore, the Employment Tribunal noted that the new policy stated:

“… that any breach of this policy will be taken seriously and may lead to disciplinary action under the respondent’s disciplinary policy. Serious breaches will be regarded as
gross misconduct and may lead to summary dismissal under the respondent’s disciplinary procedure
.”

The Employment Judge Postle concluded that:

The Claimant [Mrs Plant] was aware of the Policy and one assumes she read it, she must have been aware what was and what was not allowed. The Claimant would have been aware of the consequences if she breached that policy despite this her profile referred to her position within respondents as an operator and dogsbody, it was clearly a description of her job with respondent clear to see it was derogatory and insulting if not to the respondents certainly to her colleagues occupying the same position. There is then that reference to that bloody place and the need to hurry up and sue them and pissing myself laughing. In the absence of an adequate explanation from the Claimant which was sadly lacking the respondents were entitled to believe that these comments were aimed at the respondent. …

I repeat that it might be that one would dismiss and another would not dismiss. It
may be seen as harsh but the respondents taking account of the Claimants long service and clear record nevertheless dismissed for a clear breach of the Policy and that would fall within the range of a reasonable response open to an employer. The dismissal was therefore not unfair and the dismissal was not wrongful
. [my emphasis]”

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

https://assets.publishing.service.gov.uk/media/5909db43e5274a06b30002d3/Mrs_E_Plant_v_API_Microelectronics_Limited_3401454.2016.pdf

Bullying and harassment via social media platforms

Social media can also be used by both managers and employees to bully and harass colleagues. In the wake of the #MeToo and Time’s Up movements, employers that ignore allegations of sexual harassment are almost playing with fire if they allow the workplace to become a degrading, humiliating or offensive environment.

Employers should have a clear policy on social media use both within and outwith working hours. Fortunately, organisations such as the Advisory Conciliation and Advice Service (ACAS) are on hand to provide useful guidelines as to employers can develop a coherent social media policy:

http://www.acas.org.uk/index.aspx?articleid=3375

Once the social media policy has been formulated, it will be the responsibility of the employer to ensure that employees are aware of its contents and that they understand the consequences of any breach of the rules contained therein.

It’s my private life!

Another issue for employers to grapple with is the personal use by employees of the internet or telecommunications equipment during working hours. Employers may have very good reasons for monitoring internet use e.g. to assess whether work is actually being done properly and to ensure that employees are not doing anything inappropriate during working hours. That said, there is a balance to be struck between the employer’s legitimate interests and the employee’s right to privacy.

In Chapter 6 of Introductory Scots Law, I discussed the implications of the European Court of Human Rights’ decision in  Bărbulescu v Romania [2016] (Application No 61496/08). It is worth restating the facts of the case:

Bărbulescuthe employee had his contract terminated by his employer because he had used his professional Yahoo Messenger email account to send messages to his brother and his fiancée. The email account had been set up for the express purpose of communication with clients of the employer. This account was not to be used for personal purposes as per the employer’s internal regulations. Furthermore, the employee was informed that communications with clients would be monitored by the employer. The employee argued that his right to privacy under Article 8 of the European Convention on Human Rights had been breached, but his legal action before the Romanian courts was dismissed. Eventually, he took his case to the European Court of Human Rights in Strasbourg.

The Fourth Chamber of the European Court of Human Rights considered the question as to whether Bărbulescu had a legitimate expectation of privacy in relation to use of the email account?: its conclusion was that he did not.

Bărbulescu’s situation was different from two previous decisions of the European Court – Halford v United Kingdom (1997) and Copland v United Kingdom (2007) – where the employers appeared to permit (to a certain extent) employee use of office telephones for personal purposes. A further question pondered by the Fourth Chamber of the Court was that although the employer had forbidden the use of work emails for personal use, did Bărbulescu still have a legitimate expectation that his account was not being monitored? The Fourth Chamber was of the opinion that employers had a legitimate right to check (during working hours) that their employees were fulfilling their job. The employer’s monitoring of Bărbulescu’s email account was far from excessive and satisfied the proportionality test.

Bărbulescu Round 2 (5 September 2017)

Since the Bărbulescu decision in 2016, the Grand Chamber of the European Court of Human Rights has overruled the judgement of the Fourth Chamber of the Court in September 2017.

At the time of the original Bărbulescu decision, I stated that it did not give employers free rein to read the private emails of employees which they had sent using company accounts as some of the British media were reporting (e.g. the BBC; The Telegraph; and The Mirror). The original judgement was not a snoopers’ charter and the moral to be taken from it was that employers had to be very clear as to how they expected employees to behave in relation to facilities like professional email accounts and company telephones (whether landlines or mobiles) and the fact that these may be monitored. An employer who failed to lay down clear guidelines could be running the risk of breaching the duty of trust and confidence and Article 8 (the right to privacy) of the European Convention.

Bărbulescu v Romania [2017] 5 September 2017 the Grand Chamber of the European Court of Human Rights held that the employer had violated Bărbulescu’s Article 8 rights.

What are the implications of the judgement for employees and employers in the UK?

Clearly, the Grand Chamber’s judgement will most obviously be welcomed by employees as bolstering the right to privacy in the workplace.

Contracting States to the European Convention on Human Rights have a positive obligation or duty to ensure that the necessary conditions exist to ensure that there is respect for the individual’s right to privacy in terms of Article 8:

“These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [my emphasis]

The European Court of Human Rights did, however, acknowledge that Contracting States to the Convention do enjoy a “wide” margin of appreciation (or discretion) “in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace”.

The Grand Chamber went on to note:

“… the Court [the Grand Chamber] is at best concerned with the protection of a core or minimum level of private life and correspondence in the workplace against interference by a private law employer.”

Conclusion

It remains something of an urban myth that employees cannot be disciplined for misconduct committed outside working hours. In extreme cases, the employer will even be entitled to use the nuclear option of dismissal. Each case will turn on its own facts and a key issue to explore will be the impact that the misconduct has on the employment relationship. If out of hours misconduct causes damage to the employer’s reputation e.g. derogatory posts on social media or downright criminal behaviour, these could, in themselves, be compelling reasons for disciplinary action (up to and including dismissal).

It is highly advisable for employers to develop a range of coherent policies which address the issue of misconduct in and outside the workplace and to ensure that employees are aware of these.

The notion that employees have an absolute right to a private life is also questionable. As we have seen, in the Bărbulescu decision, employers should be mindful of minimum rights to privacy, but this does not mean that employees will automatically be able to cry foul if they discover that their internet and telephone use is being monitored in the workplace. Again, employers should ensure that they have policies in place to address this issue clearly and that employees are aware of any rules.

 

Copyright Seán J Crossan, February 2019

In … definitely not out … yet

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Photo by Christian Wiediger on Unsplash

You might be forgiven for thinking that the United Kingdom has already left the European Union, but this country remains very much a member state – for the time being. This means that the UK is still subject to all of its legal obligations under European primary legislation (e.g. the Treaty on the Functioning of the European Union) and EU secondary legislation (Regulations, Directives, Decisions etc).

An interesting example of this was reported in The Independent (4 February 2019) where it would appear that the European Commission is in the process of taking enforcement action against the UK in relation to untreated sewage leaks at sites in Sunderland and London.

The link to the article in The Independent can be found below:

UK facing EU court after failing to stop sewage spills

https://edition.independent.co.uk/editions/uk.co.independent.issue.040219/data/8761361/index.html

This article has been gifted to you by an Independent Subscriber. If you enjoyed reading this, why not take out a free trial subscription to the Daily Edition?

Apparently, this has been an ongoing environmental problem for some 5 or 6 years now – despite assurances given by the water companies that the issue has been rectified. Enforcement action by the European Commission is governed by Article 258 of the Treaty on the Functioning of the European Union (TFEU). Article 279 of the TFEU, covering interim measures, may also be relevant here. Sometimes an ongoing breach of Treaty or legal obligations by a member state can cause serious, irreparable harm and (interim) measures may be required to prevent this. It should be appreciated that EU enforcement action could take several years before a judgment is issued and this is why the possible option of interim measures is so useful for the European Commission.

The UK Government has received a Letter of Notice from the European Commission which highlights alleged breaches of the EU Urban Waste Treatment Directive (Council Directive 91/271/EEC). At Whitburn in Sunderland, the European Commission has calculated that 300,000 tonnes of untreated sewage had managed to get into the water system in the period from January to August 2018.

The Independent article goes on to quote several Labour Party Members of the European Parliament who voice their fears about the very real prospect of declining environmental standards when the UK finally leaves the EU.

This is not the first time that the UK has got itself into bother with EU environmental protection laws (since victory of “Vote Leave” in the Referendum of 23 June 2016) as the link to an article in The Guardian from January 2018 demonstrates:

UK taken to Europe’s highest court over air pollution

https://www.theguardian.com/environment/2018/may/17/uk-taken-to-europes-highest-court-over-air-pollution

Conclusion

This dispute over water quality may rumble on – even after Brexit – and there is the possibility of fines being imposed on the UK for failure to comply with the Urban Waste Treatment Directive. Some might ask why the UK would continue to be bound by the consequences of the Directive after Brexit? Well, it’s like any divorce: when you’re a party to a pre-existing, legally enforceable agreement, it doesn’t simply end upon dissolution of the marriage. This is perhaps something that we’re going to appreciate more fully when Brexit finally happens.

As Yannis Varoufakis, the Economist and former Greek Finance Minister, stated in September 2016: the EU is like the Hotel California (the 1976 song made famous by US rock group, The Eagles). “You can check out any time you like, But you can never leave!”

So … for the moment, we’re definitely still in.

Copyright Seán J Crossan, February 2019

The problem with human rights …

Photo by Samantha Sophia on Unsplash

It was perhaps appropriate this week that I began a number of lectures about human rights in Scotland. You might ask: why this is appropriate? Well, on Sunday 27 January 2019, we had the annual Holocaust Memorial Day. This important date commemorates the liberation of Auschwitz on 27 January 1945, the Nazi extermination camp, by the armed forces of the former Soviet Union (the Red Army).

It was at this point and with the final defeat of Nazi Germany in May 1945,that the real horrors of Hitler’s regime were fully exposed throughout Europe and the rest of the world.

The anniversary was especially important this week when several British media outlets (the BBC and The Guardian) highlighted a poll conducted on behalf of the Holocaust Memorial Day Trust* which revealed that 1 in 20 British people did not believe that the Holocaust had actually taken place; 8% of adults questioned believed that the extent of the killings had been exaggerated; and over 50% of respondents could not provide the correct figure for the number of Jews killed by the Nazis (6 million in case you didn’t know). As Harriet Sherwood in The Guardian pointed out: the findings of this research closely “echoes the findings of a survey** carried out in seven European countries in November [2018] (“One in 20 Britons does not believe that the Holocaust took place, poll finds” by Harriet Sherwood writing in The Guardian on 27 January 2019)

* The Holocaust Memorial Trust:

https://www.hmd.org.uk/news/we-release-research-to-mark-holocaust-memorial-day-2019/

** CNN (2018) A Shadow over Europe:

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

From 1945 onwards, particularly amongst Western European nations and the USA and Canada, there was a renewed emphasis about protecting basic human rights and democratic freedoms. The Superpower standoff (‘The Cold War’) between the USA and the USSR was also portrayed (in the West anyway) about a greater struggle to protect freedom and democracy. The United Nations’ Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) demonstrated a renewed desire on the part of the international community to protect human rights.

The UK, Scotland and Human Rights

Human rights legislation is now a major source of law in Scotland and the UK. In 1999, the Scotland Act 1998 came into force and the new Scottish Parliament was obligated to pass laws which complied with international human rights standards. A year later, in October 2000, the Human Rights Act 1998 came into operation further reinforcing the United Kingdom’s commitment to the protection of human rights.

In 1950, the UK became one of the first signatories to the European Convention on Human Rights, but it chose not to implement this Treaty directly into UK domestic legislation. The Westminster Parliament could have passed an Act to enshrine human rights protection at the heart of the British constitutional and legal framework, but chose not to do this. It was not until the election of the Labour Government of Tony Blair in May 1997, that there was a clear commitment to pass legislation in this regard.

This meant that, for the first time, ordinary people could enforce the European Convention in the courts of the United Kingdom against the British State and its institutions. Prior to the Scotland Act 1998 and the Human Rights Act 1998, people in the United Kingdom had to go the European Court of Human Rights (based in the French City of Strasbourg) if they wanted to enforce their human rights.

Since 1966, the UK had accepted the compulsory jurisdiction of the European Court of Human Rights, but individuals who used the services of this Court could often expect to wait for 5 years (on average) to have their cases heard and determined. The Government of Prime Minister Tony Blair equated the direct implementation of aspects of the European Convention into domestic law as an example of bringing human rights home.

In Scotland, we’re approaching the twentieth anniversary of the European Convention becoming part of Scots Law and we often take things for granted.

 Why are human rights so problematic?

Controversy No 1

Should human rights be universal i.e. should everyone benefit from them?

I often pose the following scenario to students:

What if Adolf Hitler had been captured by the Russians when Berlin fell in 1945, do you think he should have been put on trial like the other top Nazis at Nuremberg?

Did Hitler have a right to a fair trial?

I remember reading Professor Richard Overy’s superb book “Interrogations: the Nazi Elite in Allied Hands, 1945” (Allen Lane: 2000), which highlighted the disagreement between the Allied Powers about how best to deal with Nazi war criminals. The then UK Prime Minister, Winston Churchill would have summarily executed captured Nazi leaders (and lower ranking functionaries) arguing that the law of the outlaw should prevail (or at the very least Parliament would pass an act of Attainder). These individuals, by behaving atrociously towards their fellow human beings, had given up any claim to civilised treatment themselves. Franklin D Roosevelt, the then US President and Josef Stalin, then Chairman of the Communist Party of the USSR argued successfully for the creation of an international judicial tribunal to prosecute those accused of war crimes.

In this respect, the Nuremberg War Crimes Tribunal (as it became popularly known) was the forerunner of the modern International Criminal Court.

Something else that is worthy of consideration: in 1961-62, the State of Israel put Adolf Eichmann, one of the principal architects of the Holocaust, on trial for crimes against humanity.

Many of the first citizens of the State of Israel were Holocaust survivors or had family members who perished at the hands of the Nazis.

Yet … the Israelis still felt it was important to put this man on trial publicly so that the whole world would learn about the true extent of the evil nature of Hitler’s Third Reich.

Eichmann was captured by Mossad agents (the Israeli Foreign Intelligence Service) in Argentina (where he had fled, by way of Austria, after the Second World War) and he was taken back to Israel to face trial.

It might be argued that it would have been easier and more convenient for Mossad to assassinate Eichmann in Argentina or simply make him ‘disappear’

Do “monsters” have human rights? Hannah Arendt, the German Jewish Political Theorist, referred to Eichmann not as a “monster” but as someone who represented the “banality of evil” (Eichmann in Jerusalem: A Report on the Banality of Evil published by Viking, 1963)).

Some footage of the Eichamann Trial from Youtube can be viewed by accessing the following link:

http://www.bing.com/videos/search?q=adolf+eichmann&FORM=HDRSC3#view=detail&mid=AAFFED8CDB8ED628A674AAFFED8CDB8ED628A674

Even to this day, the controversy of who should benefit from human rights persists: many of the cases dealing with alleged human rights abuses involve murderers, paedophiles, terrorists and rapists.

  • Should the law whereby prisoners serving sentences in UK jails forfeit the right to vote in British elections be abolished? (see Hirst v United Kingdom (No. 2) (2005) ECHR 681).
  • Should a murderer who dismembered his victim have the right to complain about the prison authorities opening his private correspondence with his legal advisers? (see Beggs v The Scottish Ministers [2007] UKHL 3)
  • Should prisoners have the right to claim damages from the Scottish Government for failure to provide modern and hygienic toilet facilities? (see Napier v The Scottish Ministers [2005] CSIH16)
  • Should a radical Islamic preacher promoting or condoning Jihad be deported from the UK on the basis of information obtained from terrorist suspects who were tortured? (see Othman (Abu Qatada) v UK (Application No. 8139/09) 12 January 2012)
  • Should a mass murderer responsible for the deaths of over 70 people in Norway be entitled to complain about the inhumane and degrading conditions of his solitary confinement? (see Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

Opponents of the European Convention will, of course, highlight cases such as the above to attack the principle that human rights should and must have universal application.  Why should individuals who threaten the safety and security of the community benefit from the protection of human rights? In 2010, the journalist, Andrew Neill (on The Daily Politics Show) famously challenged John Hirst that he had shown no respect whatsoever for the human rights of the woman that he killed:

https://youtu.be/vjBEcLvPTAA

Supporters of human rights, on the other hand, will have to grit their teeth and argue that decent treatment of individuals such as William Beggs (the “limbs in the loch” murderer) and the Norwegian mass murderer, formerly known as Anders Breivik can and should be justified. They will make the argument that civilised treatment of vile individuals is a guarantee that those of us who are good and decent members of society will also be treated fairly by the State and its agents.

Controversy No 2

Another area which is often a source of discord in relation to the protection of human rights is that there is no universal definition of human rights.

Over the years, issues such as abortion, abolition of corporal punishment for children, access to IVF, euthanasia and same sex marriage have sharply divided opinion.

Advocates of greater abortion rights in Northern Ireland have, for example, argued (only partially successfully) that the Province’s more restrictive Abortion laws are a breach of human rights (see In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland)[2018] UKSC 27).

This is not the end of the debate about Northern Ireland’s abortion law as the following BBC illustrates:

Abortion law: Abortion due to disability ‘prohibited’

Sarah Ewart is trying to change the law with a case based on her personal experience of abortion.

A question of balance?

Determining whether a person’s human rights have been breached can also involve a delicate balancing act as two judgements before the UK Supreme Court this week (week beginning 28 January 2019) have demonstrated:

Case 1

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents) [2019] UKSC 3

Persons convicted of relatively minor criminal offences e.g. not wearing a seatbelt; committing a minor assault; stealing a sandwich; or stealing a book priced 99p should not have to declare these convictions to prospective employers and thus adversely affect their future employment. The current requirement in law for disclosure of relatively minor convictions was a breach of Article 8 of the European Convention on Human Rights (right to a private and family life). 

Case 2 

R (on the application of Hallam) v Secretary of State for Justice R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2

Hallam and Nealon had been imprisoned (wrongly as it turned out) for 7 and 17 years respectively. Their convictions were quashed (set aside) by the English Court of Appeal. They both sought to claim compensation for wrongful imprisonment. They were refused compensation by the UK Secretary State of Justice who had made the decision (in terms of Section 133 of the Criminal Justice Act 1988) that the new evidence which had led to their release from prison did not demonstrate beyond reasonable doubt that they had not committed the offences. The new evidence made the men’s convictions merely unsafe. The UK Supreme Court by a majority of 5 to 2 decided that the failure of the Justice Secretary to grant compensation in terms of Section 133 of the Act did not breach the presumption of innocence in terms of Article 6 of the European Convention (the right to a fair trial). 

In a third case this week, the European Court of Human Rights stated that there was no breach of Article 8 of the European Convention in respect of a man who was being compelled to take a paternity test. His right to a private life had to be weighed against the rights of the other party who wished to clarify her family origins (see Mifsud v Malta 29 January 2019 (Application No. 62257/15)).

Controversy No. 3

Another bone of contention for opponents of human rights legislation is that it can give too much discretion to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention which have been implemented by the UK. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics (see R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5).

When viewing this argument through the prism of Westminster legislation it soon becomes apparent that this is factually incorrect because all that superior court judges can do is to issue a declaration of incompatibility if a particular law or legal provision is found not to comply with the Human Rights Act 1998. The declaration of incompatibility is like a football referee issuing a yellow card: foul play is being acknowledged, but the player remains on the field … for now. It will then be over to the Westminster Parliament (as the highest legal authority in the land) to bring in corrective measures to ensure that the law is changed, but this is Parliament’s decision alone: take note prisoners in UK jails who are still waiting to be given the vote – despite the decision in Hirst v United Kingdom (No 2) (2005) ECHR 681.

The Guardian newspaper did report (in December 2017) that the UK Government had reached a compromise with the Council of Europe which would allow a small number of prisoners to vote:

https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights

Hardly, the resounding victory that John Hirst would have hoped for.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Scottish Parliamentary Legislation

Admittedly, things are rather different with Scottish Parliamentary legislation which fails to comply with either the Scotland Act 1998 or the Human Rights Act 1998. As a legislature, which derives its authority from Westminster, all Scottish laws must usually be compliant with human rights. This is true for all legislative acts of the devolved institutions throughout the UK. 

In 2016, the Scottish Government experienced an embarrassing defeat in the UK Supreme Court when parts of its flagship Named Person scheme was found to breach Article 8 of the European Convention on Human Rights (Right to a privateand family life)(see The Christian Institute and others The Lord Advocate [2016] UKSC 51). The Named Person scheme had been introduced as part of the the Children and Young People (Scotland) Act 2014. After the UK Supreme Court’s decision, the scheme could not proceed as originally intended by the Scottish Government. 

Conclusion

Human rights are undoubtedly problematic for the reasons discussed. As a colleague of mine said: “When emotion comes into the debate it is very difficult to arrive at a balanced judgement.” Yet if we deny that human rights are universal i.e. that only certain people deserve them, are we not on the slippery moral slope?

It is worth recalling that Nazi Germany’s call for a boycott of Jewish owned businesses, the Law for the Restoration of the Professional Civil Service of 1933 and the Nuremberg Decrees of 1935 was a clear statement of intent that some people in Germany (the Jews) were less equal than others. The Jewish community in Germany was gradually marginalised and disenfranchised as a result of these measures.

As Pastor Martin Niemöller*, a prominent opponent of the Nazis wrote:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

*Gerlach, Wolfgang – And the Witnesses were Silent: The Confessing Church and the Jews . Lincoln, Nebraska: University of Nebraska Press, 2000, p. 47.

These words might be worth remembering in this week of Holocaust Memorial Day 

We might also pause for a moment to look around the world and recognise the fact that we in the West enjoy rights that others can dream about:

‘Why I fled Saudi Arabia and sought asylum in the UK’

Two Saudis who sought asylum in the UK explain why they risked everything.

Saudi woman’s refugee campaign sparks online debate

After Rafah al-Qunun fled Saudi Arabia she turned to social media to campaign for asylum

Five things Saudi women still can’t do

So Saudi women can now drive and watch football, but as Megha Mohan reports, some things are still off limits.

Copyright Seán J Crossan, February 2019

Crime and Punishment in Scotland

Photo credit by niu niu on Unsplash

In Chapter 1 of Introductory Scots Law, the Scottish criminal justice system is discussed.

As of today (29 January 2019), the Scottish Government has published its annual statistics on the number of accused persons who have made an appearance before Scotland’s criminal courts. The statistics cover the period 2017/18.

The figures clearly demonstrate three things:

1. Fewer people in Scotland are being charged with criminal offences (a decrease of 11% from 2016/17);

2. There is a decrease in the number of guilty verdicts being handed down by the Scottish criminal courts (a reduction of 10% from 2016/17); and

3. There has been a significant reduction in the number of community sentences (a decrease of 10% from 2016/17).

These figures are in marked contrast to media grabbing headlines such as the one in The Scottish Daily Express on 12 May 2018 which highlighted the fact that the Renfrewshire and Inverclyde Police Division had the highest murder rate (11 homicides) in the UK for 2017/18!

A link to the Scottish Government’s statistics can be found below:

https://www2.gov.scot/Publications/2019/01/2354/2

A link to the BBC website providing analysis and commentary can be found below:

How are Scotland’s courts dealing with offenders?

Community sentences drop as figures show another decline in the number of people appearing in criminal courts.

Copyright Seán J Crossan, January 2019

Volenti non fit injuria? (or hell mend you!)

Photo by Davide Guglielmo on FreeImages

In Chapter 3 of Introductory Scots Law, I discuss the defences available to parties who have been accused of causing loss or injury by reason of them committing a negligent act.

One of the best known defences to an action for negligence is volenti non fit injuria. I often like to say to my students that, colloquially, this translates as the hell mend you defence! The pursuer has knowingly embarked on a reckless and dangerous course of action and has accepted the consequences of the risk. S/he has only himself to blame for the losses or injuries caused. For the defender in a civil action, volenti is a complete defence – unlike the concept of contributory negligence which is said to be a partial defence. 

The case law relating to this defence is well established and it’s probably worth mentioning some of the judgements where volenti has featured prominently:

ICI v Shatwell [1965] AC 656 two brothers were blown up while testing detonators before they had taken refuge in a safety shelter. The Shatwell brothers had acted in complete defiance of their employer’s instructions. The employer was able to rely on the defence of volenti and the claim for negligence was dismissed. 

McGlone v British Railways Board (1966) SC (HL) 1 – a 12 year old boy injured while climbing an electricity transformer on the defender’s property should have had the foresight and the presence of mind to know that he was engaging in a highly dangerous activity. The boy’s claim for damages was dismissed. 

Titchener v British Railways Board (1984) SLT 192, SC (HL) 34 – a 15 year old girl who was struck by a train while trespassing on the defender’s property could not rely on the defender’s negligence. She was old enough to know better i.e. she knew that the railway was a dangerous place. As in the previous two decisions, the girl’s claim for damages was dismissed. 

A recent case before the Sheriff Court’s All Scotland Personal Injury Court and the subsequent appeal to the Sheriff Appeal Court in Edinburgh illustrates whether it will be permitted to advance volenti as a legitimate defence to a breach of a duty of care.

Raybould v T N Gilmartin (Contractors) Ltd [2018] SAC (CIV) 31

Diane Raybould, a 59 year old woman with mobility problems, sustained injuries at her home in West Forth Street, Anstruther on 3 February 2015 while attempting to gain access to the property. The front door of the property led directly on to the pavement which, at the time of the accident, had been dug up by T N Gilmartin (the contractor). Fife Council had engaged the contractor to install street lighting. Mrs Raybould had been attempting to access her property via the front entrance. She was aware of the existence of the pavement works and there were barriers around the excavations. There were, however, no planks or boards laid down by the contractors to afford easier access to the property. In short: “The area was a mess.” The contractor argued that by attempting to navigate such an obviously dangerous obstruction, Mrs Raybould had voluntarily assumed the risk of harm or injury to herself. In other words, the contractor should have benefit from the defence of volenti non fit injuria.

The Hearing before the All Scotland Sheriff Personal Injury Court

At the Hearing in the Sheriff Court, Mrs Raybould’s claim for damages against the contractor was dismissed.

The Sheriff emphasised a number of issues which had clearly formed the basis of the judgement against Mrs Raybould:

  1. She was perfectly aware that there was no board or plank lying across the pavement excavations to assist her to access her home relatively safely;

2. She could not plausibly claim that she was unaware of the dangers of attempting to access her property via the front door;

3. She admitted that she felt a strong sense of apprehension or anxiety about any attempt to navigate the obstacles at her front door;

4. She had mobility problems and had to use a walking stick; and

5. She knew that pavement barriers had been placed by the contractors to deter people from using the footpath outside her home.

The Sheriff also found it compelling that Mrs Raybould could have chosen to enter her home via the property’s back door. In fact, there was no pressure of time on her to choose the front door and she never said that she was unable to use the back door to the property.

The Sheriff was strongly of the opinion that Mrs Raybould had been unable to demonstrate that the contractor’s acts or omissions had caused her to fall and sustain injury. Therefore, any alleged breach of the duty of care on the part contractor could not be said to be the proximate cause of the accident. If anything, the proximate cause of Mrs Raybould’s injuries was her decision to attempt a dangerous crossing of the pavement to gain access to her front door.

Interestingly, the Sheriff also entertained the possibility that, if the defence of volenti could not be relied upon by the contractor, the partial defence of contributory negligence would be appropriate in that Mrs Raybould would be 80% liable for her injuries.

(We shall return to the issue of contributory negligence later in this Blog when we discuss the findings of the Sheriff Appeal Court).

Taking all these factors into consideration, the Sheriff concluded that the contractor should be allowed to rely on the defence of volenti non fit injuria. Consequently, Mrs Raybould’s action for damages was dismissed and she was ordered to pay the costs of the contractor.

Mrs Raybould was, however, permitted to appeal to the Sheriff Appeal Court in Edinburgh on a point of law.

The Appeal

Sheriff Principal Stephen QC gave the opinion of the court which overturned the Sheriff’s original decision in favour of T N Gilmartin. In no way could it be said that Mrs Raybould had waived or released T N Gilmartin from its duty of care to her. The contractor was, therefore, liable in damages to Mrs Raybould. That said, however, it was clear that Mrs Raybould had contributed equally to the negligence by the contractor and, consequently, any damages payable should be reduced by 50% as per the Law Reform (Contributory Negligence) Act 1945.

The Sheriff had correctly stated that Mrs Raybould’s conduct was in some way to blame for her injuries, but he had also failed to assess the blameworthiness of the contractor (as per the guidelines laid down in the UK Supreme Court’s decision in Jackson v Murray [2015] UKSC 5). In Jackson, the UK Supreme Court stressed the importance of assessing the blameworthiness of all the relevant parties in situations where contributory negligence applied.

Sheriff Principal Stephen QC made the following remarks:

“Volenti, in effect, amounts to a waiver by the pursuer of the defenders’ liability to her in damages. There must be proof that the pursuer knew of the risk (sciens) and also that she accepted the risk or voluntarily assumed the risk (volens). In this case there is no suggestion that the pursuer either implicitly or explicitly gave any such waiver or that the circumstances would allow the court to infer that the pursuer has impliedly consented to take the risk. It is accepted on behalf of the defenders that the pursuer was not asked about “waiver” or whether she was prepared to absolve the contractors of any liability they may have towards her.”

The learned judge went on to observe that:

“It is a common place activity and foreseeable that a householder such as the pursuer [Mrs Raybould] would seek to enter her home by the front door. The pursuer asked for assistance before proceeding. She used her stick to assist her by providing another point of contact with the ground. … The sheriff’s conclusion that volenti applies permeates his reasoning. However, we have found that volenti does not and cannot apply to the facts of this case.”

Interestingly, Sheriff Principal Stephen QC observed that the contractor had not actually advocated the defence of volenti in its pleadings before the Sheriff at the original hearing. In point of fact, it was the Sheriff who took it upon himself to introduce the defence of volenti! This was clearly an example of the Sheriff “innovating”.

Conclusion

At both the original trial and the appeal hearing, Thomson* and Stewart* were quoted with approval in relation to volenti. These authorities had made the point that volenti had a “very restricted application” and could provide a complete defence to a breach of a duty of care. In circumstances, where the defence of volenti is applicable, the pursuer must actually be aware of the risk and consent to the consequences of the defender’s breach of duty.

*(Thomson on Delict (Chapter 8); and Stewart: Reparation: Liability for Delict (Chapter 30)).

The Sheriff should not have entertained the issue of volenti in the first place. As Sheriff Principal Stephen QC stated: ” volenti does not and cannot apply to the facts of this case.”

The correct approach to take was that of contributory negligence.

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

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018-sac-(civ)-31.pdf?sfvrsn=0

Copyright Seán J Crossan, 26 January 2019