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Archive for November, 2013

Saudi Arms Inquiry

The story of the Saudi Arms Inquiry throws mainstream criminal law and criminology theories into chaos and illustrates the application of English criminal law in favour of one class.

The inquiry involved allegations of massive corruption. No prosecutions were brought in the “interests of the state”. This can be compared with thefts of small amounts of property resulting in prison sentences.

In December 2006 the Serious Fraud Office abandoned its investigation into a multimillion pound arms deal between BAE and Saudi Arabia. This followed a private threat from Saudi Arabia that intelligence cooperation with Britain would be cut unless the inquiry was abandoned. The Attorney-General stated that the decision to end the inquiry had been taken in the public interest. The investigation would cause serious damage to UK/Saudi security, intelligence and diplomatic co-operation. It would be likely to have seriously negative consequences for the UK public interest in terms of national security and foreign policy objectives.

The inquiry concerned allegations that a multimillion pound slush fund was linked to the deal. The Saudi government had threatened to cancel a £10 billion order for 72 Eurofighter Typhoon jets.

In April 2008 the High Court ruled that the decision by the government and by the Serious Fraud Office to stop an investigation into allegations of corrupt dealings between BAE Systems and Saudi Arabia was a threat to the reputation of British justice, unlawful and an abject surrender.

Lord Justice Moses and Lord Justice Sullivan are reported to have made the following comments:

  • They feared for the reputation of the administration of justice if it could be perverted by a threat.
  • Any similar future unlawful threats to the rule of law must be resisted by the government, or the courts would intervene.
  • No-one is entitled to interfere with the course of our justice. The rule of law is nothing if it fails to constrain overweening power.
  • The Director of the Serious Fraud Office had ceased to exercise the power to make the independent judgment conferred on him by Parliament.
  • The Director (in reality the government) contended that he was entitled to surrender to the threat and that such threats were a part of life. So bleak a picture of the impotence of law invited at least dismay, if not outrage.
  • The government had failed to recognise that the threat uttered was not simply directed at this country’s commercial, diplomatic and security interests but was aimed at its legal system.
  • If such a threat had been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice.
  • There was no evidence that any consideration had been given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat.

On appeal to the House of Lords (2008) by the Director of the Serious Fraud Office, the appeal was allowed. The Lords stated that where he took the view that protecting the lives of British citizens outweighed the public interest in pursuing an investigation into allegations of corruption, the Director was entitled to exercise his discretion to discontinue the investigation, following threats by a foreign state as to consequences affecting national security if he did not do so.

The issue was not whether he had been right or wrong but whether the decision was one which he was lawfully entitled to take. In the opinion of the Lords, it had been.


Work Equipment

Work equipment

Reasonable foreseeability

Case      Hide v The Steeplechase Company (Cheltenham) Ltd and others [2013] EWCA Civ 545

 

Statute reference            Provision and Use of Work Equipment Regulations 1988, reg. 4(1)

 

Facts      H, a professional jockey, claimed compensation from SC following injuries which he suffered from  a fall during a hurdle race at Cheltenham racecourse in November 2006. His horse fell after jumping a hurdle. H was thrown and struck a railing at the side of the track. On H’s behalf it was argued that the railing was positioned too close to the hurdle and that the railing was too solid and insufficiently padded. At first instance, his claim failed. Both the hurdle and the rail were work equipment. They were “suitable”, adopting the common law interpretation of reasonable foreseeability. H appealed to the Court of Appeal.

Decision               1. The appeal was allowed.

2. An accident of the type which happened to H was possible and in that sense foreseeable. It was for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided.

 


Judicial Killing

Philosophical and moral objections to judicial killing

These include the following:

  • George Orwell’s description of an execution in colonial Burma: the condemned man stepped aside to avoid a puddle on his way to the gallows. Orwell saw what he described as the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. Orwell concluded that there can be no exceptions: either one executes or one does not. Either the hangman places the noose over the condemned’s head, or the electric chair operator throws the switch, or he does not. There cannot be degrees of capital punishment.
  • Albie Sachs’ view of judicial killing is that the death sentence violates the right to human dignity and the right not to be subjected to cruel, inhuman or degrading punishment. If a killer is executed, in Sachs’ opinion, he/she achieves a perverse moral victory because by killing the killer, the state effectively reduces public abhorrence at the idea of the deliberate taking of human life.
  • Albert Camus stood apart from his contemporaries in post World-War II France through his refusal to accept the death penalty. He opposed his former resistance comrades’ approval of the execution of collaborators. His opposition to capital punishment contributed to his split from the Stalinists and resulted in his refusal to endorse the use of terrorism by Algerian nationalists. During his childhood in Algiers, public executions by guillotine were carried out.

Camus’ views on judicial killing included the following:

There is not a writer who ignores the value of human life and I suppose that this is one of the honourable definitions of that profession. It is perhaps for that reason that I have always detested the justice of men in power.

We must serve justice because our condition is unjust, add to happiness and joy because this universe is unhappy. In the same way, we must not sentence to death because we have been given death sentences.

Any death sentence is a denial of morality.

Inside existing nations men must strive for a new social contract; on the world level, an international convention should abolish the death penalty.

The world is divided between those who agree to be murderers when necessary and those who refuse with all their strength.


Schools Liability For Independent Contractors

Woodland v Essex County Council: Supreme Court decision on liability of schools for swimming accidents

The tragic consequences of swimming accidents involving schoolchildren, and the sometimes complex legal issues which can arise from such accidents, are illustrated by two recent judgments, one given by the Supreme Court and one by the Court of Appeal. 

The recent Supreme Court decision in Woodland v Essex County Council centred around one issue; whether the county council owed a “non-delegable duty of care” towards the claimant following an incident on 5th July 2000.

The claimant, aged 10 at the date of the incident, was a pupil at Whitmore Junior School. The national curriculum at the time required various physical activities including swimming. Essex County Council, the respondent education authority, arranged for swimming lessons to take place at a local pool owned by Basildon Council. The school hired Direct Swimming Services, an independent contractor, to teach and supervise swimming classes. During one swimming lesson, the claimant was in a group being supervised by a swimming teacher and lifeguard, employed by the independent contractor. The claimant got into difficulties and suffered a serious brain injury as a consequence. It was alleged that these injuries were caused by the negligence of the independent contractors’ employees. The facts are to be decided in a later High Court case; the issue in the present appeal was whether the respondent education authority could also be liable towards the claimant due to a non-delegable duty of care towards her.

The claim was dismissed by the High Court. The appeal to the Court of Appeal was dismissed. The Court of Appeal made the following points:

  1.  It had long been established that there were strong policy reasons, because of the vulnerability of patients, for imposing liability on hospitals for any negligence in the delivery of treatments which were offered to patients, even for those treatments which were administered by a person who was not employed by the hospital. However, this principle had not been extended to circumstances where the treatment was carried out outside the hospital’s premises.
  2. Imposing liability on the education authority on the facts of the case could have a significant chilling effect on the willingness of schools to provide valuable experiences, for example swimming lessons, for pupils.
  3. So long as a public body knows the premises, knows that the premises appear to be safe and knows that they are staffed by competent and careful persons, their duty of care will be discharged. On the facts of the present case, the pool was staffed by a lifeguard and the swimming instructor was qualified.

On further appeal to  the Supreme Court,  that  Court stated that as the swimming lessons took place during school hours and formed part of the school’s teaching functions, delegation to an independent contractor did not negate the education authority’s duty of care. In doing so, the Court commented that:

  • There are two types of non-delegable duty; where an independent contractor is hired by the defendant to perform some inherently hazardous function in the course of his work and secondly, as here, where performance of the duty remains personal to the defendant.
  • This type of case has three characteristics; the duty arises due to the antecedent relationship between the claimant and defendant, the duty is a positive one to protect a particular class of people against a particular class of risk and thirdly that the duty is personal to the defendant. As teaching swimming remained within the respondent’s functions, the fact that the respondent education authority hired the independent contractor to teach pupils in its care did not negate its liability.
  • Schools owe children a high duty of care due the pupils’ inherent vulnerability; the decision of the Supreme Court therefore did not place an unreasonable burden on service providers.

 

In the recent Court of Appeal case of Wilkin-Shaw v Fuller and Kingsley School Bideford Trustee Co Ltd  (2013), the facts were that C, a fourteen-year old girl, went on a school trip to Dartmoor. The school had entered a team of children for an annual expedition. F, the team manager responsible for training the children for the challenge, organised a training weekend on Dartmoor. F and his assistants decided that the children could progress to remote supervision. This meant that the children could walk unaccompanied and meet at checkpoints. The group of children, which included C, arrived at the next checkpoint to find no teachers there. One of the teachers (T)  who was supposed to meet them fell into a brook and managed to get out. A scoutmaster who had come across the group of children telephoned F and told him that the children were getting cold and should carry on walking. F advised the children by telephone not to cross the brook. The scoutmaster showed the children how to cross the brook. C  fell into the brook and was drowned.

W, the administratrix of C’s estate, claimed compensation for negligence against F and the school which employed him for loss to C’s estate and psychiatric injury. At first instance, the claim was dismissed.  W appealed to the Court of Appeal. On her behalf, it was argued that a high standard of navigational skills was required for those training children on Dartmoor, T had been negligent in failing to reach the checkpoint to meet the children, and the school was vicariously liable for her failure.

The Court of Appeal dismissed the appeal and made the following points:

  1. Given the high standard reasonably to be expected, and the seriousness of the elementary errors made, T had been negligent.
  2. It was highly speculative as to what would have happened if T had been at the checkpoint to meet the  children. Her evidence had been that she would have checked the children’s fitness, but any question as to their route would have been put to F by telephone.
  3. Even if T had remained at the checkpoint, the intervention of the scoutmaster would have broken the chain of causation.

 

Swimming accidents involving school pupils may also attract criminal sanctions. In July 2013 Leisure Connection Ltd, the operator of a leisure centre in Maldon, Essex, was fined £90,000 plus £100,000 costs following the death by drowning of a seven-year old girl. The fines were imposed under section 3 of the Health and Safety at Work, etc., Act 1974 for failure to ensure the health and safety of non-employees.

The HSE investigation identified serious failings with lifeguard cover at the pool. The company had failed to ensure that sufficient and suitably positioned lifeguards were always on poolside to ensure the safety of pool users.

A spokesperson for the HSE is reported to have commented after the case that members of the public visiting leisure centre swimming pools have an entitlement to expect that the operator paid to run them will deploy and train its staff so as to provide sufficient numbers of lifeguards in the right places so as to operate the pool safely.


Chilcot Inquiry

Chilcot Inquiry

Before this Inquiry started its hearings, Public Interest Lawyers commented that the key issues should include the following:

  • Examination of the role of legal advice on the legality of the      invasion and the UK’s international human rights obligations.
  • The misleading of the public over prior commitment to regime      change.
  • The use of indiscriminate weaponry and tactics, including the      targeting of infrastructure, the use of cluster bombs, fuel-air explosives      and depleted uranium shells.
  • War crimes.
  • At least 650,000 deaths, four million refugees and the devastation      of Iraq.
  • A victim-centred approach must be fundamental.

The Inquiry hearings have been held without taking evidence under oath and have expressly excluded legal consequences. Its function was not to apportion blame.

Matters emerging during the Chilcot Inquiry hearings have included the following:

On November 29, 2009 the Mail on Sunday reported that in July 2002 the Attorney-General wrote to Blair stating that to depose Saddam Hussein would be a blatant breach of international law.

In March 2003 he gave legal backing to the War. The newspaper report suggested duress.

The letter of July 2002 is reported to have contained the following points:

  • The War could not be      justified purely on the grounds of regime change
  • It was not self-defence:      there was no threat from Iraq
  • Humanitarian intervention      was not relevant
  • It was very hard to rely      on earlier UN Resolutions.

Elizabeth Wilmshurst, a senior legal adviser at the Foreign Office, told the Inquiry that it was the unanimous view of Foreign Office lawyers that the Iraq War was illegal. She resigned in protest against the invasion. Wilmshurst stated that the invasion was illegal. The rules of international law on the use of force by states are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the UN Charter. The advice of the FO lawyers was ignored by Ministers.

The Attorney-General changed his opinion after a secret briefing with American government lawyers in February 2003. The Americans told him that “the French” had told them that a second UN Resolution was not needed to sanction the War. This has been denied by “the French”. Britain’s decision to go to war was based on a series of private conversations and anecdotes.

Documents relating to the Attorney-General’s advice on the legality of the war are not to be declassified.

Sir Michael Wood, the chief legal adviser at the Foreign Office, stated that he considered that the use of force against Iraq in March 2003 was contrary to international law. That use of force had not been authorised by the UN Security Council and had no other basis in international law.

The Attorney-General was finally consulted only at the very last minute as the troops were ready to go in.

John Prescott is reported to have commented that intelligence reports at the time were “tittle-tattle” and that his role was to support Blair and the Cabinet.

The inquiry has finished its public hearings and was currently (June 2012) analysing the evidence brought before it and is preparing a draft report.

It has been reported that the inquiry is now stalled because the current cabinet secretary is blocking evidence to protect the confidentiality of discussion between Bush and Blair.


Workplace Stress

The law related to workplace stress continues to develop. The main issues for consideration in cases of alleged illness caused by workplace stress are as follows:

  • Whether the employee has suffered damage to health as a result of workplace conditions
  • The extent of medical evidence in relation to the above
  • Whether the employer knew or ought to have known that workplace conditions were damaging the health of the employee and failed to take steps to deal with this
  • Whether there are external factors which have contributed to the employee’s illness
  • The application of the general principles of common law negligence, that is, a duty of care, breach of that duty and resulting damage.

 

The most recent example of the development of these issues is the Court of Appeal case of Brown v London Borough of Richmond upon Thames (2012).

 

B claimed compensation from L for work-related stress. At first instance, his claim succeeded. The judge found that B had suffered stress associated with his work which had harmed his mental health and led to a breakdown at the end of June 2003.

B was awarded £25,000 for moderately severe psychiatric harm and £4,891.42 for loss of earnings up to June 30, 2004.

The main point of the appeal was the cut off date for the award for loss of earnings. On B’s behalf, it was submitted that the award should have continued beyond that date. Another issue was the relationship of the stress at work aspect to the fact that during the relevant period B suffered the traumatic breakdown of his marriage.

B started his employment with L in 1965. He was promoted to Operations Manager of the Parks and Open Spaces Department. He retired in May 2004 on the grounds of ill-health. His last working day was June 30, 2003 when he suffered a mental breakdown. The judge found that the effect of L’s negligence was limited to twelve months from his last working day and that the causative effect of any breach of duty ceased at the end of 2004, being superceded from that point by the effects of the breakdown of his marriage.

In January 2000 B told R, his manager, that he had seen his GP, complaining of headaches and heart palpitations. R said that she would refer this to L’s occupational health unit. She did not do so.

In October 2002 B’s GP wrote to R, stating that B’s physical and mental health were suffering as a result of the ongoing and difficult work environment. This letter was not shown to R until December 2002.

In January 2003 a risk assessment was carried out by R and an action plan was drawn up to minimise risks to B’s health. This was not put into effect.

In August 2003 B’s wife told him that she had formed a relationship with another man. She left the matrimonial home in October 2003.

The judge also found that when B’s GP wrote to R , L should have foreseen that B was at risk of psychiatric harm associated with his work. L was also at fault for failing to implement the action plan.

B appealed to the Court of Appeal. That court made the following points:

  • The breach of duty by L started in early 2003, as found by the judge. The evidence of what information was or should reasonably have been available to the employer at an earlier date was not of such a compelling nature as to lead to the conclusion that the judge had been wrong in this respect.
  • The overall test was the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know.
  • The appeal would be allowed in relation to the issue of loss of earnings from June 30, 2004. The judge had not conducted a careful analysis which a complicated issue of this sort required. There was also medical evidence that B was unfit for work in late 2007 and that he would not be fit for work until six months after the end of litigation. That issue would be remitted to the judge for further consideration of the impact of  the breakdown of B’s marriage.

 

The Brown case is the latest in a long line of decisions which is generally recognised as having started in 1990 with the case of Johnstone v Bloomsbury Health Authority, involving the hours worked by hospital doctors, where the Court of Appeal ruled that employers are under an implied duty to take reasonable care not to injure their employees’ health. This applies to physical and mental health.

 

The landmark decision in this area of law is Sutherland v Hatton and Others (2002) where the Court of Appeal ruled that the general principle was that employers should not have to pay compensation for stress-induced illness unless such illness was reasonably foreseeable. Employers are normally entitled to assume that employees can withstand the normal pressures of a job. The court set out a number of practical propositions for future claims concerning workplace stress, including:

  • Employers do not have a duty to make searching enquiries about employees’ mental health. They are entitled to take what they are told by employees at face value unless they have good reason to disbelieve employees’ statements.
  • Indications of impending harm to health at work must be clear enough to to show an employer that action should be taken, in order for a duty on an employer to take action to arise.
  • Where an employee wishes to remain in a stressful job, and the only alternative is demotion or dismissal, the employer is not in breach of duty in allowing the employee to continue.
  • No type of work may be regarded as intrinsically dangeorus to mental health.
  • Employers who offer confidential counselling advice services, with access to treatment, are unlikely to be found in breach of their duty of care in relation to workplace stress.
  • The amount of compensation will be reduced to take account of pre-existing conditions or the chance that the employee would have become ill in any event.

Disability Discrimination

Reasonable adjustments

Rersignation

Case    Osei-Adjei v RM Education (2013) Morning Star, November 15, EAT

Facts    O was employed by R as an education consultant. He told his employer that he suffered from dyslexia. No adjustments were made for him. In 2010 concerns were raised about the standard of his work. He was provided with a mentor, placed on a performance improvement plan (PIP) and carried out a work assessment. He was later diagnosed as suffering from depression. A few days after being deemed fit for work with all adjustments in place or due to be put in place, he resigned and complained of constructive unfair dismissal and disability discrimination. The ET dismissed the constructive dismissal complaint but upheld the disability discrimination claim on the basis that the employer had not assessed the effect of O’s dyslexia before placing him on a PIP. He was awarded £4000 for injury to feelings and £10,000 for psychiatric damage. There was no award for future loss of earnings because the chain of causation had been broken when O resigned. O appealed to the EAT.

Decision          1. A reasonable adjustment must be an adjustment designed to enable an employee to attend work or to return to work. Carrying out an assessment achieved neither of these things.

2. O was not entitled to compensation for future loss of earnings. He was fit for work when he resigned, his job was open to him and all reasonable adjustments had been or would be made.

3. The award for psychiatric damage was reduced to £5000, based on “mild” damage.

 


Compromise Agreements

Compromise agreement

Binding effect

Case    Allma Construction Ltd v Bonner [2011] IRLR 204, EAT

Statute reference         Employment Tribunals Act 1996, s.18; Employment Rights Act 1996, s.203

Facts    B complained of unfair dismissal. On the Friday before the hearing A’s solicitor offered £1000 to settle the case in a telephone call to B’s solicitor. B instructed his solicitor to accept the offer. B’s solicitor left a message with an ACAS officer stating that the offer had been made and accepted. B then changed his mind. On the Monday B’s solicitor told ACAS and A’s solicitor that the acceptance was retracted. The ET ruled that there had been no binding settlement. There had merely been an invitation to treat. A appealed to the EAT.

Decision

1. The appeal was allowed.

2. A contract to settle the claim had been concluded on the Friday.

3. All that was required of ACAS was that it had taken action under section 18 of the 1996 Act and in some way endeavoured to promote settlement of the claim.


Restrictive Covenants

Inducing breach of contract

Case    CEF Holdings Ltd v Mundey and others  [2012] IRLR 912, QB

 

Facts

C employed 3000 people. 19 defendants were former employees and two others were companies planning to compete with C in the United Kingdom. It was alleged that two of the employees had tried to entice employees of C to join a competing company and that other defendants had breached their contracts by failing to report approaches made to them. C had obtained injunctions to prevent the defendants from competing.

Decision

1. The employee recruitment restriction clause was invalid. It prevented the inducing, soliciting or endeavouring to entice away any employee of C, regardless of where they worked or whether the defendants knew of their existence, was invalid.

2. The injunction sought had no geographical limitation.

3. C had not established sufficient evidence to support a conspiracy or other wrongful conduct needed for springboard relief.

4. Claims could only be brought against defendants in the place where they were domiciled.


Age Discrimination

Burden of proof

Case    Osoba v Chief Constable of Hertfordshire Constabulary (2013) Morning Star, November 8, EAT

Facts    O, who had been employed by C for 30 years, was asked if he wanted to retire as part of a reorganisation to save money. As an alternative, he was offered the option of staying in his current role or applying for another post. He opted to stay in his current role. P, the officer in charge of reducing the number of employees, drew up a matrix giving points to officers. O scored no points and was selected for redundancy. He complained of age discrimination, arguing that P had deliberately manipulated the matrix. The ET found that the matrix had been inconsistent and that therefore the burden of proof shifted to C to account for the apparent discrimination. O’s claim was dismissed on the basis that he had not been placed at a particular disadvantage. O appealed to the EAT.

Decision          1. The appeal was dismissed.

2. The ET had found that P was honest and had made mistakes in the application of the matrix.

3. On the evidence, there had been no discrimination.

4. Employers can defend themselves against discrimination claims by claiming incompetence.