Armes and Non-Delegable Duties

The Supreme Court this week decided a significant case in relation to the ongoing litigation arising from historic child sex abuse.  The claimants had all been abused in 1980s whilst in foster care managed by Nottinghamshire County Council.  In 2001 the House of Lords held that you could hold a children’s home liable for abuse committed on its premises by a member of staff under the doctrine of vicarious liability.  Subsequent cases have widened the scope of this responsibility to hold organisations such as the Catholic Child Welfare Society responsible for abuse committed in one of its residential schools.

In Armes v Nottinghamshire CC , which was handed down by the Supreme Court on Wednesday, the claimants were able to expand this still further arguing that given the  ” local authority carried out the recruitment, selection and training of foster parents, paid their expense” and conducted a number of other processes the relationship they had with foster parents was akin to that of employer. Furthermore the local authority
“exercised powers of approval, inspection, supervision and removal”  of children being placed with foster families meaning that the whole framework of the adoption process was under their direct control.

What was more interesting however was the issue of delegated and non-delegable duties as the claimants lost this particular argument.  Some duties of care in Tort law are non-delegable this means that a person with that duty of care cannot discharge it to another party.  The leading case on this is Woodland v Essex County Council which arose after a child was seriously injured during the course of a school swimming lesson which was run by a company called Direct Swimming Services who had been employed by the local authority to teach children swimming.  Normally it would be the company who would have been held responsible but the Supreme Court held the local authority responsible because their duty of care towards the children under their care was non-delegable – it could not be passed on to someone else. This was limited in scope the Supreme Court held  as Parents are legally obliged to entrust their child’s care to a school despite having no control over how that care manifests itself. But crucially public authorities would only owe a duty in respect of functions which they assumed a duty to perform and where the control over the child had been delegated. The Law Lords seemed to favour a limited construction of delegated duties which concentrated on the discharge of statutory functions.

In Armes Lord Reed (Paragraphs 37-45 are the relevant ones for this discussion)  held that it was too broad to hold that foster care was a non-delegable duty of care as it would limit the local authorities options in discharging their functions. The Child Care Act 1980  permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friend . The crucial question (para 37) was “whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements”

To hold them liable for every action taken by any of those groups of people would mean that the local authority would not be promoting the best interests of the child as they would be too concerned with avoiding liability.  This is applied Woodland and limited the scope of what would be considered a non-delegable duty of care.

This case should be understood as the Court’s attempt to determine what mechanism imposed liability on the authority for the actions of their appointed foster carers. To simply hold that this duty was not duty that could be delegated would be too far reaching an imposition on the Council. Instead focusing on the control the Council had to prevent abuse occurring was a better framework for the imposition of liability as it focused more on what the council could potentially have done to prevent such abuse occurring.

 

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Monroe v Hopkins – the ‘wild west’ defence

The judgment that was handed down this afternoon in Monroe v Hopkins [2017] EWHC 433 QB is significant in its interpretation of a couple of the points to do with the interpretation of the 2013 Defamation Act.  Not least beacuse this case was the most high profile case yet of a social media spat resulting in defamation proceedings.

After the General Election in 2015 there was a protest in Whitehall which got out of hand   a war memorial was graffitied with the statement “F*** Tory scum”. It was particularly shocking as it was on the Monument to the Women of World War II and there was an attempt made by some on the far left, to explain this incident in political terms. The defendant Katie Hopkins, an outspoken opinion writer on the far right, known for deliberately seeking controversy over racist statements, tweeted the claimant, the journalist Jack Monroe saying;  “Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” It seems from the defendants case that she thought the claimant was another journalist who had tried to explain the protests. The claimant was shocked by this, as she came from a military family and was by her own admission proud of the military,  and she tweeted back “Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me.”

The case of mistaken identity was resolved after an exchange of tweets, mostly from claimant, but no apology from Katie Hopkins (the Defendant was forthcoming). The first issue of whether the statement was defamatory relatively straightforward – the claimant contended that the ordinary meaning of the words were that either she had defaced a war memorial or that she approved the defacing of the war memorial. The defendant’s case was that read in its proper context what she meant was the claimant ““was supportive – politically – of those who had painted the slogan onto the monument.” The correct test was to be found in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 which required the court to look at the context and the meaning that the reader would draw from the statement. The context element the judge concluded was made all the more difficult by twitter, because timelines are difficult to read as a unified piece and often earlier statements disappear. However,  looking at the statement in the first tweet and Katie Hopkins subsequent tweet where she described the claimant as “social anthrax” it was clear that the ordinary meaning of the words were to infer that the claimant did approve of the defacing of the monument as her apparent lack of concern about mis-identification meant that context in which the statement was read was one that pointed to that conclusion.

The requirement imposed by section 1 of the 2013 Defamation Act that the claimant needs to show that they the defamatory statement “has caused or is likely to cause serious harm to the reputation of the claimant.” In Sobrinho v Impresa Publishing SA [2016] it was clarified that an injury to feelings alone, however grave, will not be sufficient to activate the requirements of section 1. This provision reflects the pre-2013 position where the Courts were inclined to strike out cases involving trivial or procedural harms – see Jameel v Dow Jones [2005] EWCA Civ 75. The first tweet, the defamatory tweeted was deleted a few hours afterwards. However the court held that what matters  “is not the period of time for which a person is exposed to the message but the impact the message has”. This very significant in the assessment of the scope of section 1 and the evidence based assessment that Court undertook looking at the context of the tweet, its exposure (based on the number of views that the defendants twitter profile had) and any responses or reaction to the original tweet.

Significantly on the subject matter of the tweet and whether readers believed the court held that the absence of evidence  that it was believed was not “evidence of a lack of harm.” This seems to be quite significant as the court seems to suggest that this would not inform a contextual assessment of the damage or likely damage to reputation in an assessment of harm under section 1. This would mean that an outlandish, but harmful claim, could potentially be defamatory. The court also gave relatively short shrift to the idea of the ‘wild-west’ theory regarding social media, which maintained that more latitude should be applied to these statements.

It is noteworthy that the damages were very high because they included the full legal costs for the claimants, which has led some commentators to note that the decision raises problems about free speech and the potential “chilling effect” of the decision.  The implications for freedom of expression more generally do deserve some attention as political speech gets more heated and attempts to shoehorn views into 140 characters means nuance is lost.

Ten years on: yes, the Iraq war was wrong, but…

This basically sums up the problems the Iraq war and the humanitarian basis for it. The war had no real legal basis and was a clear stain on the authority of international law. There is however a deeper moral and political question that those of us who marched in 2003 need to reflect upon. What would have happened had he stayed.

Shiraz Socialist

Like many readers of this blog, I was there on 15 February 2003, and I’ve never had cause to regret it. But I don’t share the self-righteous preening of tyrant-lovers like Andrew Murray, nor the slightly more forgivable solipsism of Laurie Penny (who at least has -or had- the excuse of youth). Even at the time, I was sickened by the refusal of the SWP, Galloway, Murray, etc to address the human rights issues and their systematic, deliberate, whitewashing of Saddam (Galloway, of course, being the most grovelling and egregious Saddam fan). A little later, their support for the fascistic gangs who were murdering Iraqi trade unionists alienated me once and for all. The subsequent degeneration of the Stop The War Coalition into a shrivelled Westphalian excuse-machine for vicious dictators and tyrants everywhere has only served to confirm my worst expectations.

Ian Taylor, an unrepentant marcher and anti-war campaigner, puts his…

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Why Tony Blair can’t be tried at the ICC

This question is going to be asked a lot over the next couple of days  as the Chilcot report into the War on Iraq is published.  The media coverage of this question has been terrible so here’s a quick summary of why Tony Blair cannot be prosecuted at the International Criminal Court (ICC) for the 2003 invasion of Iraq.

The first thing to understand is that the law in this area is very messy. There is a big difference between the law that applies to the actions of states and the law that can be used to hold an individual person criminally responsible meaning that they get sent to jail. The Crime of Aggression is the technical term for punishing someone who invades another country.

Lloyd George first proposed the idea at a Cabinet meeting in late November 1918, when the British Government was debating whether or not they could prosecute Kaiser Wilhelm II for starting the First World War.  During the inter-war years several different attempts were made to devise an international legal mechanism to punish the Crime of Aggression. None of these were particularly successful and the 1928 Kellogg-Briand Pact was an attempt to get states to agree to renounce war rather, rather than impose a scheme for criminalising individual leaders. At the Nuremberg Tribunal after World War Two this was part of the basis for establishing the existence of a presumption that states should not wage aggressive war. A similar formulation was used in the Tokyo tribunal, although one of the judges issued a dissenting opinion on this point. Both of these tribunals have been criticised as victors justice, and on the point of the Crime of Aggression they arguably were – there was, for example, no question of holding the Soviet Union responsible for their 1939 invasion of Finland.

Around the same time the newly drafted Charter of the United Nations implemented a blanket prohibition on the use of force by states, but permitted self-defence and UN authorised military action.  This created a somewhat awkward system riddled with exceptions – for example when in 1961 the Indian Army invaded Portuguese Goa that was not considered aggression, and the US were able to commence the Vietnam War in 1964 within the framework of the UN Charter (this point is contentious –see this argument).  Importantly this was a law that applied to states as states. An illegal war  referred to a state acting outside the limits of conduct permitted by Article 2 and 51 of the UN Charter – it did not necessarily make this a crime that a person could be set to jail for.

Although several separate commissions worked on proposals of this nature in the 1950s little happened. In 1974 a UN General Assembly resolution set out a definition of aggression but listed no judicial body that could prosecute someone for the Crime of Aggression. In the 1990s special courts were created to prosecute crimes arising from conflicts in Yugoslavia, Rwanda and Sierra Leone. These courts were designed to try offences committed against civilians or on the battlefield, not responsibility for the war itself.  When the statute for a permanent international criminal court was drafted in 1998 no agreement was reached over the Crime of Aggression. Instead a specialised committee was tasked with drafting proposals to be adopted in 2010.  The Kampala amendments, as they are known, come into force in 2017.

The amendments have a temporal limitation clause – under Article 11 of the ICC statute the ICC can only hear cases concerning war crimes that occurred after 2002 – in the case of the Kampala amendments the ICC can only deal with cases of aggression that occur after 2017.  Given the invasion of Iraq took place in 2003 this makes any prosecution simply impossible. Furthermore Article 15 of the amended ICC statute requires states that are signed up to the ICC to sign up separately to the jurisdiction of the court in relation to the Crime of Aggression. Britain has not signed up to the jurisdiction of the amendments but is a member of the ICC, which allowed to the prosecutor to investigate the conduct of British soldiers in Iraq in 2006.  What this means (to indulge in a thought mischievous thought experiment) is that the new Prime Minister Theresa May could decide after her Brexit negotiations break down next year, to launch a commando raid on Brussels. British soldiers could be tried at the ICC for any violations of the laws of warfare or mistreatment of civilians during the operation , but the Prime Minister could not be prosecuted for actually ordering the operation in the first place as Britain has not signed up to the Kampala amendments.

These procedural barriers aside there are two areas under Article 8 of the amended ICC statute, which indicate that any case against Tony Blair would be much more difficult than might be assumed. Firstly there is a requirement that the act of aggression’s “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” This as scholars have noted allows enormous wiggle room as it is not clear what these terms actually mean. Secondly other provisions in Article 8, in particular the definition of aggression as being contrary to the Charter of the United Nations, would allow the lawful enforcement argument to be presented in a different way. Given that a major plank of the case for invasion made by Blair was the enforcement of existing Security Council resolutions the argument has been made that this had sufficient legal cover under the UN Charter. Cards on the table – I completely disagree with that assessment, I think the war was a violation of Article 2 of the UN Charter. It is however (as I point out above) not the same as saying that it passes the hurdle for criminalising someone for taking the decision. Article 8 offers some wiggle room on this point for Tony Blair’s would be defence counsel.

Professor Philippe Sands engaged in an intriguing series of thought experiments about other alternative ways of prosecuting Blair. The likeliest he concluded was the creation of a special court by the UN. Political will aside this would run into significant legal hurdles given the status of the agreement between the UN and the ICC which, recognises the ICC’s primacy in dealing with the “most serious crimes” and Article 2 requires both bodies to respect the others mandate. In sum given the way the law stands at the moment it is not at all clear that Tony Blair could be prosecuted for commencing the Iraq war. This is not a conspiracy but a reflection of broader structural problem in international law; it is very difficult to hold individual leaders legally responsible for their actions. Around 17 years ago the House of Lords made some progress in this area with the Pinochet judgment but this is an uphill struggle and it will take years before there is anything approaching a regime in international criminal law that can act as a serious deterrent to someone contemplating the invasion of another country.  Equally, the entire fact this discussion is even taking place in Britain is a reflection of the fact that it is a functioning democracy which respects the international rule of law. The real battle will be designing a legal regime to deter states, such as Russia where these features are lacking, from committing acts of aggression.

 

 

The Bill of Rights is Here ??! Understanding the Queen’s speech

The Queen’s speech normally outlines the legislative proposals of the Government for the next parliamentary session. Only as some sharp eyed commentators noted the 2016 one simply cut and paste a reference to the British Bill of Rights from the Queen’s speech in 2015. The only reference to the British Bill of Rights was to say that “Proposals will be brought forward for a British Bill of Rights.”

Two quick observations on this firstly the context. There were references to upholding “the sovereignty of Parliament and the primacy of the House of Commons”  and this was linked not only to the Bill of Rights but also to the EU referendum. It seems likely that there is about to be a retrenchment of power in the Commons (which is often code for retrenchment of executive power) and in the context of a Bill of Rights this could well mean shielding the power of ministers to take executive action from review on human rights grounds. This was a stated aim of the Conservatives in their 2014 proposals for a British Bill of Rights and has been a long standing goal among sections of the Conservative party keen to repeal the Human Rights Act.

Secondly the explanatory notes to the speech reveal a growing incoherence at the heart of the project. For example the explanatory note states that a British Bill of Rights will safeguard “against abuse of the system and misuse of human rights”.  There are numerous problems with the concept of the “misuse of human rights”  some of which have been detailed by Professor Mark Elliot . There are also problems raised by Article 1 of the ECHR and the application of absolute rights  which make the concept of “misuse” of rights difficult if not impossible  – all of this government would have to surmount if it were  to remain an ECHR signatory and pass a Bill of Rights of this nature.  As has been pointed out there is now a split among ministers as to whether leaving the ECHR would be necessary for a British Bill of Rights . In this context it is hardly surprising that the the House of Lords European Union Committee has strongly criticised the government over these proposals.

Most importantly however the proposals still aren’t there – only a statement that proposals will be published.

The Supreme Court and Vicarious Liability

On the 2nd of March the Supreme Court handed down their judgment in Mohamud v Morrison. The case has some significant implications for vicarious liability but does not fundamentally alter basic principle found in the line of cases following the House of Lords ruling in Lister v Hesley Hall [2001] UKHL 22.  The Supreme Court also handed down this week Cox v Ministry of Justice which goes much further than the law has previously gone before on the principle of the relationship between the defendant and the wrongdoer for the purposes of establishing vicarious liability.

The question in Cox was whether the prison service was vicariously liable for the act of a prisoner in the course of his work in the prison kitchen, where by an act of his own negligence he caused an injury to a member of the prison staff by dropping a bag of rice on her.  The claimant was the supervisor of the catering operations in the prison which were specifically designed following official guidance from the Ministry of Justice to provide a working environment for the prisoners as part of the rehabilitation process, this involved payment and the capacity for prison officers (who acted as managers) to dismiss prisoners that were poor workers, which could in turn have negative impacts on their prospects for probation. The leading authority on whether the conduct between the parties constitutes a relationship of employment is Catholic Child Welfare Society [2012] UKSC 56 where Lord Phillips established that the notion of control was to be construed broadly and the principle that defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not (see Lord Nichols in Dubai Aluminium v Salaam [2002] UKHL 48).  The lower courts had rejected the claimants case on the basis that this was not a contract of employment because the work component was mandatory  for prisoners and therefore not a contract of employment.  The Supreme Court however were clear that mere “technical” arguments on the status of employment were unlikely to be successful and noted that the interests of both the prisoners and the prison management were in alignment.  Lord Reed was clear that the prisoner’s activity formed “part of the operation” of the Prison and was unimpressed by the floodgates orientated arguments made by the defendants.

In Mohamud the claimant was assaulted by an employee of the defendant who was working at one of their petrol stations. The assault was unprovoked and quiet savage in nature and another employee of the defendant had attempted to prevent the assault.  Applying the “close connection” test in Lister the judge at first instance held that the employee’s job involved “nothing more than serving and helping” customers and as such the defendant’s could not be held liable for the conduct of their employees.  The issue before the Supreme Court claimants argued was that the “close connection” test should be replaced and the courts should apply a broader test of “representative capacity” in relation to vicarious liability. In historic cases of vicarious liability Warren v Henlys Ltd [1948] 2 All ER 935 and Keppel Bus Co Ltd v Ahmad [1974] 1 WLR 1082 assaults by employees on customers were not usually considered to impose vicarious liability on employers, following a narrow application of the Salmond test. The close connection test in Lister introduced a new dimension too vicarious liability but as it was clarified by Lord Toulson close connection should be determined in accordance with the interests of justice not measured on an imaginary scale. On this basis neither Lord Toulson nor Lord Dyson saw any problem with the basic approach of Lister. On this basis Lord Toulson concluded that

“[the employees] conduct in answering the claimant’s request in a foul mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter [the assault] was an unbroken sequence of events.

Therefore vicarious liability should be imposed upon Morrisons. One feature of this judgment is fairly clear, the ‘close connection’ did not need to be further refined. Therefore some of the commentary in the last 24 hours that this has significantly changed Tort law needs to be taken with a pinch of salt. There are three observations it is worth making;

  • In Mohamud neither Lord Toulson nor Lord Dyson considered the case of Mattis v Pollock [2003] 1 WLR 2158 even though they endorsed the idea of a continuing chain of events which was initiated by the employer in the course of his duties. Mattis may not be particularly helpful given the facts of Mohamud, as in Mattis the defendants had employed the individual employee for the purposes of security which involves some level of potential physical coercion, whereas in Mohamud the employee in question was employed to serve customers. Nevertheless the crucial aspect of Mattis, that liability can be established if the alleged wrongdoing begins in the course of employment and initiates an unbroken chain of events, was implicitly endorsed.

 

  • Cox shows just how far the Catholic Child Welfare Society principle extends in terms of considering different situations a relationship of employment sufficient for the purposes of establishing vicarious liability. However, one aspect that has now definitely been relegated to one of secondary importance is the issue of control, which was the key factor in leading authorities such as Mersey Docks v Coggins [1946] 2 All ER 345.  Rather the Supreme Court seemed much more keen to endorse ‘alignment of interests’ as the principle question following the reasoning of the Court of Appeal in Viasystems v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151. For your exams focus on the question of alignment of interest to determine the existence of a relationship giving rise to vicarious liability.

 

  • Whilst stretching Lister and potentially opening the door to a much wider number of claims it is not clear that the law has significantly changed. It is also noteworthy that the Law Lords did not take floodgates arguments seriously in either Mohamud or Cox. Indicating a much more ‘claimant friendly’ approach to the construction of both the close connection test and the relationship between the wrongdoer and the defendant.

Brexit and the forthcoming war over the British Bill of Rights

This is the excerpt for your very first post.

It has been noted by several observers that the Government’s proposals for a British Bill of Rights have been subject to a gentle kicking into the long grass. In May 2015 it briefings seemed to indicate that proposals would be published in the Autumn. However, Autumn came and went and there are still few details about when we can expect the Bill of Rights Proposals.

In the course of the Brexit debate over the last week or so a very interesting detail about the forthcoming Bill of Rights debate emerged. The Justice Secretary, speaking before the House of Commons Constitution Committee that the ECHR was admirable and expressed a desire to stay a state party to the ECHR even if Britain voted to leave the EU. The Home Secretary’s speech on Monday in support of the Remain campaign suggested that staying in the EU still left open the possibility of leaving the ECHR (David Allen Green details the saga here).   The Justice Secretary’s position has clear legal precedent – 19 state parties to the ECHR are not members of the EU, although the Home Secretary’s position is much more dubious given the status of Article 49 of the Treaty of the European Union (TEU). This rule only applies to new member states but the requirement for member states to respect human rights and for the EU to take action against states that violate human rights is contained in other provisions in the TEU.

The problem comes when a choice has to be made about what the shape of a British Bill of Rights looks like.  It is no secret that the current Home Secretary was deeply embarrassed by the political fall out stemming from the Oothman judgment and her failure to secure Abu Qatada’s deportation. One of the driving forces behind the campaign to repeal the HRA were the high profile cases where deportation was blocked under either Article 3 (torture) or Article 8 (Family life) grounds. What data there is about attitudes towards the ECHR and the HRA shows that the public at large are often quite hostile to individuals using the ECHR to resist deportation. Therefore it is difficult to believe that in a post-Brexit world that a British Bill of Rights which retained membership of the EHCR, and hence the legal obligation under Article 3, would be palatable. Given that extremist positions about sovereignty in relation to supranational institutions are the raison d’être of the Brexit cause why would continued membership of the ECtHR be tolerated? Equally if the Remain campaign were to win, regardless of any legal argument, an attempt to withdraw from ECHR would be fiercely opposed by other states and EU institutions who would be inclined to defend existing structures confident in the knowledge that broader political threats of Brexit were unlikely to materialise.

Whilst the above is at this stage still crystal ball gazing it is intended to highlight how the Bill of Rights debate will almost certainly be the prisoner of wider political forces. Also as it will take place after the EU referendum there will be strong incentives for the winning and losing sides to refight many of the same arguments over the ECHR in the Bill of Rights (although the battle lines may become more blurred at the cabinet level).